United States District Court, E.D. Michigan, Southern Division
SEAN MICHAEL MYERS, DAKOTA BLUE SERNA, PHIL BELLFY, JEANNE DAY-LABO, ANDRE GODWIN, ROBERT PAUL WIMER III, and STEPHANIE MICHELLE MAPES, Plaintiffs,
RUTH JOHNSON MICHIGAN SECRETARY OF STATE, CHRISTOPHER THOMAS DIRECTOR OF ELECTIONS, and BOARD OF STATE CANVASSERS, Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS AND DENYING AS MOOT PLAINTIFFS' REQUEST FOR
V. PARKER U.S. DISTRICT JUDGE
September 8, 2016, Plaintiffs, initially two signatories to a
petition to legalize marijuana in Michigan filed by the
Michigan Comprehensive Cannabis Law Reform Committee, also
known as MILegalize, initiated this lawsuit challenging
Defendants' decision to deny ballot access to the
petition for the November 8, 2016 election. In their
Complaint, Plaintiffs alleged that Defendants' conduct
violated their rights under the First, Fifth and Fourteenth
Amendments to the United States Constitution. Plaintiffs also
filed a motion for temporary restraining order, seeking to
stop Defendants from printing ballots for the election that
did not include the MILegalize initiative. After this Court
denied Plaintiffs' motion, concluding that their claims
were barred by res judicata, Plaintiffs filed an Amended
Complaint adding five individuals as plaintiffs and extending
their claims to include any initiative petitions currently
filed or ongoing in the State of Michigan, including an
anti-fracking petition, which Plaintiffs claim they signed in
addition to the MILegalize petition. On November 11, 2016,
Defendants filed a motion to dismiss in response to
Plaintiffs' Amended Complaint. The motion has been fully
briefed. Because res judicata still bars
Plaintiffs' claims, and alternatively because the claims
fail on the merits, the Court is granting Defendants'
Standard for Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, a complaint
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action . . ..” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.' ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
Supreme Court provided in Iqbal and
Twombly, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Id. (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability
requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of illegal [conduct].”
Twombly, 550 U.S. at 556.
deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption,
however, is not applicable to legal conclusions.
Iqbal, 556 U.S. at 668. Therefore,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555).
Factual & Procedural Background
to June 7, 2016, Michigan law provided that a signature on a
petition proposing an amendment to the state constitution or
to initiate legislation was “rebuttably presumed
… stale and void if the signature was made more than
180 days before the petition was filed with the office of the
secretary of state.” Mich. Comp. Laws § 168.472a.
In 1986, Michigan's Board of State Canvassers
(“BSC”) adopted a procedure for rebutting the
statutory presumption for signatures made outside the 180-day
window. This procedure enabled the proponent of an initiative
petition to rebut the presumption by:
(1) Proving that the person who executed the signature was
properly registered to vote at the time the signature was
(2) Proving with an affidavit or certificate of the signer or
by every local or municipal clerk that the signer was
registered to vote in Michigan within the “180 day
window period” and further, that the presumption posed
under MCL 168.472a could not be rebutted through the use of a
random sampling process.
(Am. Compl. ¶ 17.)
amendment to Section 168.472a, effective June 7, 2016,
removed the ability to rebut the presumption of staleness.
Section 168.472a now reads:
The signature on a petition that proposes an amendment to the
constitution or is to initiate legislation shall not be
counted if the signature was made more than 180 days before
the petition is filed with the office of the secretary of
Mich. Comp. Laws § 168.472a. Before the amendment became
effective, however, in fact on June 1, 2016, MILegalize filed
its petition seeking inter alia the legalization of
marijuana in Michigan with the Michigan Secretary of State.
Id. ¶ 25.)
registered Michigan voters, signed the MILegalize petition,
but did so more than 180 days before its filing.
(Id. ¶¶ 6-12.) In fact, Michigan's
Bureau of Elections (“BOE”) determined that over
200, 000 of the approximately 354, 000 signatures on the
petition were collected more than 180 days before its filing.
(Id. ¶ 25.) Plaintiffs assert that MILegalize
was able to rebut 137, 000-plus signatures at the time of
filing; however, this still did not provide them
with the 252, 523 signatures required to place the petition
on the ballot. (Id. ¶¶ 25, 27.)
Therefore, on June 6, 2016, BOE staff recommended denying
ballot access to the MILegalize petition. (Id.
¶ 26.) The BOE accepted the staff recommendation on June
9, 2016. (Id. ¶ 62.)
16, 2016, MILegalize filed an action in the Michigan Court of
Claims against the Michigan Secretary of State, Director of
the BOE, and the BSC challenging the BSC's application of
Section 168.472a. (See Defs.' Resp. to
Pls.' Mot. TRO, Ex C, ECF No. 7-4.) In the complaint,
MILegalize argued that the statute infringed on the right to
utilize the initiative process under Michigan Constitution
Article 2, Section 9. (Id.) MILegalize also asserted
that the statute violates the First, Fifth, and Fourteenth
Amendments to the Michigan and United States Constitutions.
August 23, 2016, the Court of Claims granted the
defendants' motion for summary disposition.
(Id., Ex. D, ECF No. 7-5.) Based on the Michigan
Supreme Court's decision in Consumer Power Co. v.
Attorney General, 392 N.W.2d 513 (Mich. 1982), the Court
of Claims ruled that Section 168.472a is constitutional and
rejected MILegalize's constitutional challenges to
BSC's procedure for rebutting the presumption of
staleness of petition signatures. (Id.)
appealed the Court of Claims' decision to the Michigan
Court of Appeals, which denied the appeal “for lack of
merit in the grounds presented” on September 7, 2016.
(Id, Ex. E, ECF No. 7-6.) The Michigan Supreme Court
denied MILegalize leave to appeal in an order issued on the
same date. (Id., Ex. G, ECF No. 7-8.) As stated
earlier, two individuals who signed the MILegalize petition
outside the 180-day window initiated this lawsuit on
September 8, 2016. Those individuals are Plaintiffs Sean
Michael Myers and Dakota Blue Serna.
Myers' and Mr. Serna's Complaint, which is identical
in many respects to the complaint filed in the Michigan Court
of Claims' case, was prepared by the same law firm and
attorneys: Thomas Lavigne and Matthew R. Abel of Cannabis
Counsel, PLC. As reflected earlier, Mr. Myers and Mr. Serna
also filed a motion for TRO, for which this Court held oral
argument on September 13, 2016. The Court denied the motion
on the record, concluding that res judicata bars
Plaintiffs' claims and, alternatively, that it was too
late in the election process for the Court to enter any order
enabling the MILegalize petition to appear on the November ...