LANSING- On the heels of last week’s emergency filing by MILegalize in the Michigan Supreme Court, the marijuana legalization group yesterday filed a pair of appeals and motions in Michigan higher courts requesting decisions by September 6, 2016, in order to ensure time for placement on the general election ballot in November of 2016.
An August 23 ruling issued by Judge Borrello of the Court of Claims is the subject of an appeal filed by MILegalize on August 30 in the Court of Appeals (COA); a second motion was filed just moments later by MILegalize in the Michigan Supreme Court (MSC), asking to bypass the Appeals Court and have the case decided by the MSC.
“With all due respect to the Court of Appeals, the elections clock is ticking,” said MILegalize Chairman, attorney Jeffrey Hank, “and given the very serious legal questions of public interest at stake and our determination to ensure the constitutional rights of every Michigan voter are protected from usurpation by the legislative, executive, or judicial branches of government, our campaign must explore every option to get timely relief to place the Michigan Marihuana Legalization, Regulation, and Economic stimulus act on the 2016 ballot so that voters are not deprived of the opportunity to participate in their own self-government.”
On June 25, 2015 MILegalize began petitioning throughout Michigan in support of a 2016 vote on the adult use of marijuana with the tax revenue raised directed to currently under-funded transportation, schools, and local communities. MILegalize collected enough signatures to qualify. Approximately 200,000 of the 354,000 signatures submitted to the state on June 1, 2016 were older than 180 days, which are perfectly acceptable but the state is attempting to enforce a second validation of the signatory’s voter status that has not been applied to any campaign, ever.
The rebuttable presumption is recognized by the State and by past case law, but the procedure adopted by the Board of State Canvassers for the second validation is impossible to accomplish- mostly because the Bureau of Elections confirmed that the state’s 1500-plus clerks could refuse to comply with the procedure. Predictably, the clerks did refuse requests to certify petitions, leaving MILegalize with a no-win situation. Further, state law actually requires using the Qualified Voter File to canvass the petitions. MILegalize used the state’s own voter database to validate signatures more than 180 days old and provided proof to the state. The number of signatures submitted is not in dispute. An impossible to comply with technicality is what is keeping MILegalize off the ballot.
To remove this roadblock MILegalize filed the original lawsuit, containing a Writ of Mandamus and other motions, in the Michigan Court of Claims on June 16. On August 23 the case was dismissed on a few grounds including that his Court had no authority to direct the actions of the Board of State Canvassers and that he was required to follow past Supreme Court rulings. MILegalize’s appeals note at least five clear errors of the Court of Claims, and include a plea for justice for its other claims the Court of Claims did not address.
On August 25 MILegalize filed an original action in the Supreme Court under MCL 168.479. This was an action MILegalize planned as a result of the two month time the Court of Claims took to issue a decision, and was in motion prior to the release of the Court of Claims Opinion. The August 30 filings were both related to more specific appeals of the Court of Claims decision.
“This is a case whose outcome will affect the November ballot, and should receive speedy consideration,” said attorney Thomas Lavigne, of Detroit’s Cannabis Counsel. Lavigne is a Board member of MILegalize and is on the legal team presenting to the MSC. “The Supreme Court has a process to accelerate decisions on elections issues, and I have every confidence that they will take this case immediately.” David Cahill, another member of the legal team, said “For more than 40 years the Legislature has cut back on the right of the people to petition. If our case does not succeed, that right will have died the death of a thousand cuts.” Also involved in the legal effort to get the Supreme Court to act on the issue: attorney Matthew Abel. Abel said, “If MILegalize is forced to endure the Appellate process instead of going straight to the Supreme Court, it would almost certainly prevent us from making the 2016 ballot.” MILegalize has vowed to take the case to the US Supreme Court if necessary.
The rebuttable presumption was created in reaction to a citizens petition to lower legislator pay in 1973. For another 13 years it was not enforced by the State of Michigan because the Attorney General declared it unconstitutional. In 2016, MILegalize became the first citizens group positioned to secure ballot access using current law and modern methods to validate signatures and demonstrating a model how citizens groups might be able to once again achieve ballot access rather than initiatives being the select tool of monied interests like billionaires and established political special interest groups. In reaction, the state Legislature enacted a hard 180-day petitioning limit that infringes on the citizens right to petition– once again. What started as MILegalize’s marijuana legalization campaign poised to succeed has turned into the campaign leading a historical battle to reclaim the shared democratic power of the People guaranteed to Michigan citizens by their constitution, and currently being denied.
To the MILegalize volunteers and supporters, Hank had this to say: “We haven’t stopped fighting for you, and you should not stop fighting for us. Actions like the MILegalize petition drive- and our current lawsuits- are how citizens can fix government. In this instance, the law is clearly in need of a fix. Don’t give up no matter how much you feel the system is stacked against you. The surest way we prevail is to stay united and keep getting stronger and stronger until we win. The stakes are too high to ever accept defeat. We have the moral high ground in this struggle for justice and you never go wrong doing the right thing.”