Taxpayers United for Assessment Cuts v. Austin

• Citation: 994 F.2d 291
• Decision Date: 01 July 1993
• Docket Number: No. 92-1854,92-1854
• Parties: TAXPAYERS UNITED FOR ASSESSMENT CUTS, et al., Plaintiffs-Appellants, v. Richard H. AUSTIN, et al., Defendants-Appellees, Citizens for Education Ballot Question Committee, Intervening Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 291

994 F.2d 291

TAXPAYERS UNITED FOR ASSESSMENT CUTS, et al., Plaintiffs-Appellants, v. Richard H. AUSTIN, et al., Defendants-Appellees Citizens for Education Ballot Question Committee Intervening Defendant-Appellee.

No. 92-1854.

United States Court of Appeals Sixth Circuit.

Argued March 23, 1993.

Decided June 1, 1993.

Rehearing Denied July 1, 1993.

Timothy Downs (argued and briefed), Bethesda, MD, for plaintiffs-appellants.

Gary P. Gordon, Asst. Atty. Gen. (argued and briefed), Lansing, MI, for defendants-appellees.

Kevin J. Moody (argued and briefed), Michael J. Hodge, Miller, Canfield, Paddock & Stone, Lansing, MI, for Intervening defendant-appellee.

Before: RYAN and SUHRHEINRICH, Circuit Judges; and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

In this action under 42 U.S.C. § 1983 (1988), the plaintiffs, Taxpayers United for Assessment Cuts ("Taxpayers") and several individuals who are registered voters in Michigan, allege that their First and Fourteenth Amendment rights were violated when the Michigan Board of State Canvassers ("Board") refused to certify their proposed initiative for submission. They now appeal from an order of the district court dismissing their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, we AFFIRM the district court.

I

Taxpayers, one of the plaintiffs, is a nonprofit, unincorporated Michigan association that circulated an initiative petition in Michigan. If adopted, its proposal would reduce property tax assessments and give Michigan circuit courts jurisdiction over property tax assessment disputes. The other plaintiffs are registered voters in Michigan who support the initiative. The original named defendants are state officials who are charged with enforcing Michigan election laws. A group called Citizens for Education Ballot Question Committee ("Citizens"), which was formed to oppose the initiative advocated by the plaintiffs, intervened in this action as a defendant.

Under Michigan law, individuals and associations can initiate legislation if they can obtain signatures from registered voters totaling eight percent of the total vote cast in the last gubernatorial election. Once the signatures have been collected, the signed petition forms are submitted to the Board, which is the body charged with determining whether the signatures on the petitions are valid and sufficient in number. If enough signatures on the petition comply with the requirements imposed by Michigan law, then the Board certifies the initiative to be processed in accordance with Michigan law.

In March, 1990, the Board approved the form of Taxpayers' proposed petition to initiate legislation. Taxpayers circulated the petition, obtained 224,048 signatures, and submitted the petition to the Board. A fair summary of the proceedings before the Board and the Michigan courts is as follows: the plaintiffs needed to collect, based upon the results of the most recent gubernatorial race, 191,726 valid signatures to get their proposal certified. After examining the 46,441 submitted petition sheets, the Board's staff disqualified a large number of signatures on the basis of statutory deficiencies as part of a process referred to in the record and by the parties as the "technical checks." An example of a signature eliminated by this process is a signature which was not accompanied, as required, by the signatory's complete home address. There remained 212,071 signatures after such invalid signatures were eliminated. Following its usual procedure, the Board's staff then chose a random sample of 1,599 signatures from these 212,071 signatures, and found that 210 of the 1,599 signatures were invalid for various reasons; e.g., the signatory was not in fact a registered voter. The Board's staff ultimately projected, based upon the results of this random sampling, that only 184,390 of the remaining 212,071 signatures on Taxpayers' petition were valid, that is, 7,336 fewer than the 191,726 required to certify the initiative. The staff presented its findings to the four-member Board. After holding several hearings on the sufficiency of the petition, the Board concluded that it could not certify the initiative.

Taxpayers and several individual plaintiffs (collectively referred to as "plaintiffs") then sought a writ of mandamus in the Michigan Court of Appeals to force the Board to certify the initiative. The court of appeals remanded the case to the Board and ordered it to recalculate the number of valid signatures using a larger random sample. The Board so re-examined the petition, but again found that there was a shortfall. Taxpayers returned to the court of appeals, but the court of appeals refused to remand again. Taxpayers sought appeal to the Michigan Supreme Court, but the court denied leave to appeal.

The plaintiffs then filed the instant § 1983 action in federal district court alleging that the state had deprived them of their First and Fourteenth Amendment rights. Specifically, they contended that they had been denied their right to vote and their rights to assemble and to engage in political speech. They also raised due process and equal protection challenges, alleging that the state must prove that the Michigan procedure for reviewing the validity of initiative petitions is necessary to serve a compelling state interest. Plaintiffs did not allege, however, that the bases for removing names from the petition were different from those normally used by the Board or that the Board in any other way processed the petition differently from the way it generally processes petitions. In short, the plaintiffs do not allege any class-based discrimination or disparate treatment.

The defendants moved for dismissal of the complaint, arguing that the district court did not have jurisdiction because the complaint did not present a federal question. They further contended that the complaint did not state a claim upon which relief could be granted and also contended, alternatively, that they were entitled to summary judgment because the record showed without dispute that the plaintiffs were not entitled to relief.

The district court rejected the defendants' jurisdictional defense, but held that the plaintiffs' allegations did not state a claim for violation of their First or Fourteenth Amendment rights. ¹ It reasoned that, as to jurisdiction, the federal Constitution does not guarantee the right to an initiative; however, once a state creates an initiative, the initiative becomes a means by which voters can communicate with other voters; therefore, the state must ensure that the process does not violate federal constitutional rights. The district court therefore held that there was jurisdiction because the complaint alleged a claim that was not, quoting Duke Power Co. v. Carolina Envtl. Study, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978), "so patently without merit as to justify ... the court's dismissal for want of jurisdiction." See also Oneida Indian Nation v. Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). Nevertheless, the court concluded that the contested provisions of Michigan law and the procedures followed by the Board do not violate the plaintiffs' First Amendment rights. The district court also rejected the equal protection and due process arguments: after noting that the right to vote was not implicated and that no suspect classification was involved, it concluded that the Michigan laws and the Board's procedures in processing the tendered supporting signatures were rationally related to Michigan's legitimate interest in ensuring that its initiatives are run honestly. The plaintiffs then filed this timely appeal.

II

The state defendants argue (and Citizens also argues) that the district court did not have jurisdiction over this lawsuit. ² Citing an unpublished order of this court and a couple of decisions from other jurisdictions, they point out, and plaintiffs do not dispute, that the right to initiative is created by state law and is not a right guaranteed by the federal Constitution. Therefore, the state defendants contend, this case presents no federal question. Taxpayers contends that, while a right to initiative is not guaranteed by the federal Constitution, once the state enacts an initiative procedure, there are constitutional limits on the way in which the state may administer the initiative. Thus, the plaintiffs contend, the district court had jurisdiction because they allege that the way in which the initiative was processed in this case violated the Constitution.

The plaintiffs assert jurisdiction under 28 U.S.C. § 1331, which gives the federal courts jurisdiction over causes of action arising under the Constitution and laws of the United States, and under 28 U.S.C. § 1343(a)(4), which gives the federal courts jurisdiction over actions for money damages or equitable relief under any federal statute providing for the protection of civil rights, including the right to vote.

In an unpublished order of this court, Lott v. Austin, 1987 WL 38525, 1987 U.S.App. LEXIS 11163 (6th Cir. August 18, 1987), which is cited by the state defendants, this court affirmed the dismissal of a federal constitutional challenge to Mich.Comp.Laws Ann. § 168.472a, which is part of the statute regulating the initiative process. Concluding that the initiative process "is a creature of state law and is not a right secured by the federal Constitution," this court affirmed the dismissal of the complaint in that case for failure to present a federal question. ³ Id. at * 1.

In support of this decision, this court cited two decisions from other jurisdictions: Wright v. Mahan, 478 F.Supp. 468 (E.D.Va.1979), aff'd without opinion, 620 F.2d 296 (4th Cir.1980) and Walgreen Co. v. Illinois Liquor Control Comm'n, 111 Ill.2d 120, 94 Ill.Dec. 733, 488 N.E.2d 980, appeal...