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Myers v. Ruth Johnson Michigan Secretary of State

United States District Court, E.D. Michigan, Southern Division

May 12, 2017




         On 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.[1] Because res judicata still bars Plaintiffs' claims, and alternatively because the claims fail on the merits, the Court is granting Defendants' motion.

         I. Standard for Motion to Dismiss

         A 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 557).

         As the 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.

         In 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).

         II. Factual & Procedural Background

         Prior 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 executed and;
(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.)

         An 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 state.

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.)

         Plaintiffs, 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;[2] however, this still did not provide them with the 252, 523 signatures required to place the petition on the ballot.[3] (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.)

         On June 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.[4] (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. (Id.)

         On 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.)

         MILegalize 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.

         Mr. 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 ...

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