LEAGUE OF WOMEN VOTERS OF MICHIGAN v SECRETARY OF STATE; SENATE v SECRETARY OF STATE
Docket Nos. 160907 and 160908
Michigan Supreme Court
Decided December 29, 2020
Argued on application for leave to appeal March 11, 2020.
Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Bridget M. McCormack
Chief Justice Pro Tem: David F. Viviano
Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
LEAGUE OF WOMEN VOTERS OF MICHIGAN v SECRETARY OF STATE
SENATE v SECRETARY OF STATE
Docket Nos. 160907 and 160908. Argued on application for leave to appeal March 11, 2020. Decided December 29, 2020.
In Docket No. 160907, the League of Women Voters of Michigan (LWV), three individual voters, and Michiganders for Fair and Transparent Elections (MFTE) (collectively, the LWV plaintiffs) filed a complaint in the Court of Claims for declaratory and injunctive relief against the Secretary of State regarding 2018 PA 608, which made three sets of changes to the statutory procedures governing petition drives. First, it amended the standards in
In an opinion by Justice VIVIANO, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH, the Supreme Court held:
The Legislature has standing to appeal when it intervenes in a case in which the Attorney General fails to defend a statute against constitutional attack in court. However, in Docket No. 160907, the case was moot as to the lead plaintiff, MFTE, because it was no longer pursuing its ballot initiative, and no other plaintiff had standing to pursue the appeal. Accordingly, the lower-court decisions in that case were vacated. As a result, any interest the Legislature might have had to provide it with standing had dissipated and thus the matter was moot. Further, extending the standing doctrine to find that the Legislature had suffered harm based on the Attorney General opinion was unwarranted. The Court of Appeals holding that the Legislature has no standing in its case against the Secretary of State, Docket No. 160908, was thus affirmed on alternative grounds, and both cases were remanded to the Court of Claims for dismissal.
1. In order to intervene in an action, a person must meet the standards of
2. When the LWV plaintiffs filed their complaint, they stated that MFTE intended to circulate petitions in 2019 or possibly 2020. However, MFTE subsequently suspended its petition efforts because of the COVID-19 pandemic, which raised the question whether the case had become moot as to MFTE. Although there was no binding precedent on point, the relevant cases from other jurisdictions were in uniform agreement that the voluntary abandonment of a petition drive renders a case moot. Because MFTE is no longer circulating its petition, a judgment on the merits of the case would be a decision in advance about a right before it has been actually asserted and contested or a judgment that could not have any practical legal effect upon a then-existing controversy. A decision would only serve to instruct MFTE as to the law in this area should MFTE choose to pursue a petition in the future. Because MFTE no longer had anything at stake in the dispute, the case was moot as to MFTE.
3. LWV and the individual-voter plaintiffs lacked standing to challenge the constitutionality of 2018 PA 608. The individual-voter plaintiffs and the LWV s members sought to exercise their rights as Michigan registered voters to support placement of proposals on the general election ballot by signing petitions, and they requested a declaratory judgment and injunctive relief. Under Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349 (2010), if a litigant meets the requirements of
4. Generally, when a case is determined to be moot on appeal, the lower-court judgments are vacated. Because this practice is rooted in equity, the decision whether to vacate turns on the conditions and circumstances of the particular case. In this case, the Attorney General declined to defend the constitutionality of 2018 PA 608, the Legislature began its own action in the Court of Claims rather than intervening, the Court of Claims adjudicated a dispute with no actual controversy contrary to
5. Generally, standing is assessed at the outset of the case. Under Lansing Sch Ed Ass‘n, standing is a limited, prudential doctrine that assesses whether a litigant s interest in the issue is sufficient to ensure sincere and vigorous advocacy. A litigant has standing if there is a legal cause of action and the litigant meets the requirements of
Lower-court judgments in Docket No. 160907 vacated; Court of Appeals judgment in Docket No. 160908 affirmed on alternative grounds; both cases remanded to the Court of Claims for dismissal.
Justice CLEMENT, concurring in part, concurring in the judgment in part, and dissenting in part, fully agreed with the Court s decision to grant the Legislature s motion to intervene in Docket No. 160907 and with the analysis supporting that decision. However, she would have reached the merits of the issues presented, and she therefore dissented from the Court s decision to conclude that the dispute in Docket No. 160907 was moot, both for the reasons offered by Justice ZAHRA as well as because the allegations made by MFTE and the individual-voter plaintiffs remained live concerns that needed judicial resolution. Not having prevailed on the question of whether the dispute in Docket No. 160907 was moot, she concurred with the result of the Court s disposition of the Legislature s original action for a declaratory judgment in Docket No. 160908. However, she did not join the Court s analysis, because she would have provided a definitive answer regarding why the Legislature could not obtain a judicial declaration to compel an executive official to implement a statutory enactment namely, that although the Legislature satisfied the test for standing under
Justice MARKMAN, joined by Justice ZAHRA, dissenting, would have denied the Legislature s motion to intervene in the LWV case because, given that neither party filed a timely appeal, there was no longer a justiciable controversy in which the Legislature could intervene. He would have held that the Legislature possessed standing in its own right in its case against the Secretary of State under the unique circumstances of this case, which were that the Attorney General, at the request of the Secretary of State, issued an opinion in which she asserted that the challenged statutory provisions are unconstitutional; that in the LWV case, although the Legislature did not file a motion to intervene in either lower court and both lower courts held that the Legislature lacked standing, both lower courts proceeded nonetheless to treat the Legislature as if it were a party; and that, absent the Legislature s participation, there would have been no actual controversy because the Legislature was the only one arguing in favor of the constitutionality of the statutory provisions at issue, given that the Attorney General refused to do so. Justice MARKMAN would have resolved the substantive questions of law in that case, in particular, the constitutionality of the checkbox and precirculation-affidavit requirements as well as the 15% cap on ballot-proposal signatures per congressional district. He noted that the majority not only left unresolved questions it was asked to resolve by the Legislature, but it left those matters in a state of disarray and confusion for citizens concerned about the proper procedures for placing constitutional and legislative measures on the ballot. He also agreed with Justice ZAHRA that the LWV case was not moot for the reasons Justice ZAHRA explained.
Justice ZAHRA, joined by Justice MARKMAN, dissenting, stated that although he would deny the Legislature s untimely motion to intervene in Docket No. 160907 and dismiss that case altogether, he would not have reached the question of whether that case is moot. Instead, for the reasons stated by Justice MARKMAN, he would have recognized the Legislature s standing in Docket No. 160908 and would have proceeded to decide the merits of that dispute. Justice ZAHRA disagreed with the majority that the issues presented in that case were rendered moot by the postponement of MFTE s ballot-initiative efforts because those issues were of great public significance and were likely to recur, yet evade meaningful judicial review. He explained that given the condensed timeline for collecting signatures on a petition initiating legislation or proposing a voter-initiated constitutional amendment, it would be unreasonable to expect a timely ruling in cases where a specific ballot proposal is at issue, much less a facial challenge to an election law affecting all ballot proposals. He noted that this case was begun more than a year and a half ago and still has not resulted in a final disposition on the challenged provisions, thus presenting an example of the difficulty in obtaining timely relief in ballot-initiative cases. Further, it appeared that MFTE was merely postponing its initiative efforts until the November 2022 election, not abandoning them altogether. Finally, he noted that MFTE s suspension of its petition drive did not change the circumstances under which plaintiffs brought this lawsuit. Various petition drives, apparently relying on the Attorney General s advisory opinion, began collecting signatures on petitions that did not comply with 2018 PA 608 because the Board of State Canvassers instructed those launching petition drives to prepare petition sheets that conformed to the opinion of Attorney General. He stated that the majority opinion s decision added to the uncertainty among those seeking to exercise their rights to engage in direct democracy and that, as a result, petition drives would be caught between either complying with 2018 PA 608, risking rejection early on by the Board of State Canvassers, or complying with the Attorney General s advisory opinion, risking invalidation later by a decision from this Court.
©2020 State of Michigan
LEAGUE OF WOMEN VOTERS OF MICHIGAN, MICHIGANDERS FOR FAIR AND TRANSPARENT ELECTIONS, HENRY MAYERS, VALERIYA EPSHTEYN, and BARRY RUBIN, Plaintiffs-Appellees, and SENATE and HOUSE OF REPRESENTATIVES, Intervenors-Appellants, v SECRETARY OF STATE, Defendant-Appellee.
No. 160907
Michigan Supreme Court
FILED December 29, 2020
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Bridget M. McCormack
Chief Justice Pro Tem: David F. Viviano
Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh
STATE OF MICHIGAN
SUPREME COURT
SENATE and HOUSE OF REPRESENTATIVES, Plaintiffs-Appellants, v SECRETARY OF STATE, Defendant-Appellee.
No. 160908
Michigan Supreme Court
December 29, 2020
BEFORE THE ENTIRE BENCH
These consolidated cases involve constitutional challenges to recent amendments of the Election Law,
We grant the Legislature s motion to intervene in League of Women Voters of Mich v Secretary of State, Docket No. 160907, and hold that the Legislature has standing to appeal when the Attorney General abandons her role in defending a statute against constitutional attack in court. Next, we conclude that the case, now properly before us, is moot as to the lead plaintiff, Michiganders for Fair and Transparent Elections (MFTE), because it is no longer pursuing its ballot initiative. As no other plaintiff has standing to pursue the appeal, we vacate the lower-court decisions. Finally, in light of this analysis, we affirm on alternative grounds the Court of Appeals holding that the Legislature has no standing in its case against the Secretary of State, Docket No. 160908. Accordingly, we remand both cases to the trial court so they can be dismissed.
I. FACTS AND PROCEDURAL HISTORY
Under our Constitution, “[a]ll political power is inherent in the people.”
The Legislature is not absent from the process. It is charged with implementing the constitutional provisions for referenda and initiatives,
In 2018, the Legislature amended the Election Law, making three sets of changes to procedures governing petition drives. 2018 PA 608. First, it amended the standards for “determin[ing] the validity of a petition” by requiring that “[n]ot more than 15% of the signatures to be used . . . shall be of registered electors from any 1 congressional district.”
A few months after these amendments took effect, the Attorney General issued a written opinion that they violated the state and federal Constitutions. OAG, 2019-2020, No. 7,310, p ___ (May 22, 2019). Thereafter, plaintiffs League of Women Voters of Michigan (LWV), MFTE, Henry Mayers, Valeriya Epshteyn, and Barry Rubin (collectively, the LWV plaintiffs) sued the Secretary of State, seeking a declaratory judgment that the amendments were unconstitutional along the same lines as the Attorney General suggested. As explained in the complaint, LWV is a nonpartisan group focused on voting and democratic rights. The individual plaintiffs are Michigan voters and MFTE is a ballot-question committee that, at the time the complaint was filed, intended to circulate petitions to amend the Constitution.
A few weeks after the LWV plaintiffs brought their action, the Legislature also filed suit against the Secretary of State, requesting a declaratory judgment that the amendments were constitutional. The two cases were consolidated in the Court of Claims. The Secretary of State, represented by the Attorney General, did not dispute that some of the amendments were unconstitutional, and she also suggested that the Legislature might lack standing to bring its case. In its subsequent opinion, the court agreed that the Legislature had no standing but nonetheless treated its submissions defending the statutes as amicus briefs because the Secretary of State was declining to offer any such defense. On the merits, the court held that the paid-circulator-affidavit requirement was constitutional but the geographic-distribution and checkbox requirements were not.
Plaintiffs in the League of Women Voters case filed a bypass application in this Court, and the Legislature sought to intervene. We denied the bypass and motion to intervene, and the case went to the Court
None of the parties in the League of Women Voters case sought to appeal, but the Legislature filed an application for leave to appeal listing both its own action and the League of Women Voters action as the cases being appealed. We docketed both cases, but our Court clerk informed the Legislature s counsel that it would need to file a motion to intervene in the League of Women Voters case to become a party to that action. The motion was subsequently filed and the Court heard argument.
It then came to the Court s attention that MFTE had terminated its petition drive. Consequently, we sought supplemental briefing on, among other things, whether this development mooted the League of Women Voters case as to MFTE, whether the remaining LWV plaintiffs had standing, and whether, if the case was mooted as to MFTE and no other plaintiff had standing, the Court should vacate the lower courts judgments in the League of Women Voters case.
II. STANDARD OF REVIEW
Questions of law, such as those at issue here, are reviewed de novo.1
III. ANALYSIS
In consolidated cases with this much procedural complexity, our analysis of the various issues is necessarily layered. A roadmap is therefore useful: We begin with the Legislature s motion to intervene in League of Women Voters of Mich v Secretary of State, Docket No 160907, which we grant. Next, we hold that this case is moot as to MFTE and that none of the other plaintiffs have standing to maintain the action. Consequently, we dismiss the League of Women Voters case and vacate the constitutional holdings below. This leaves the Legislature s appeal in its original action, Senate v Secretary of State, Docket No 160908. Because the lower courts decisions on the merits have been vacated, we conclude the Legislature lacks standing to pursue its own case.
A. THE MOTION TO INTERVENE
In addition to meeting this standard, however, the Legislature must be an aggrieved party. In Federated Ins Co v Oakland Co Rd Comm, we stated that the “case ceased to be an action when the losing parties below (plaintiffs) failed to file a timely application for leave to appeal in this Court. Once plaintiffs deadline for filing a timely application for leave to appeal
to pursue such an appeal as an intervenor there must be a justiciable controversy, which in this case requires an appeal by an “aggrieved party.” Because neither of the losing parties below filed a timely appeal, and because the Attorney General does not represent an aggrieved party for purposes of this case, there is no longer a justiciable controversy.4
In other words, Federated held that there was no justiciable controversy because neither of the losing parties below filed a timely appeal and because the Attorney General was not an aggrieved party. Federated never held that there would be no justiciable controversy if the losing parties below failed to file a timely appeal but a party with appellate standing filed a timely motion to intervene (i.e., before the deadline to file an application for leave to appeal). Therefore, Federated left open the possibility that there may be a justiciable controversy in such circumstances.5 This rule makes sense we see no reason why an
entity that otherwise is aggrieved and therefore has appellate standing should be prohibited from intervening before a lower-court judgment becomes final, i.e., before the deadline to file an application for leave to appeal.6 Moreover, the court rule does not require a motion to intervene to be filed any sooner.7
Unlike the Attorney General in Federated, the Legislature is aggrieved. As Federated stated,
An aggrieved party is not one who is merely disappointed over a certain result.
Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court s power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case.8
The Legislature has suffered a concrete and particularized injury arising from the actions of the lower courts. Not only did those courts conclude that the Legislature had no standing to pursue its case, they also considered and rejected the Legislature s arguments that certain portions of 2018 PA 608 were constitutional in the League of Women Voters case.
More importantly, failure to permit the Legislature s intervention in such circumstances would enable the executive branch to nullify the Legislature s work by
declining to contest a lower-court ruling that a challenged statute is unconstitutional, thereby precluding any ultimate judicial determination of the issue.9 An executive s nondefense of statutes thus poses grave risks to our constitutional structure.10 It
breach left by the Attorney General.13 Therefore, when the Attorney General does not defend a statute against a constitutional challenge by private parties in court, the Legislature is aggrieved and, upon intervening, has standing to appeal. The Legislature accordingly has appellate standing in the League of Women Voters case.
B. MOOTNESS IN LEAGUE OF WOMEN VOTERS v SECRETARY OF STATE
As noted, plaintiffs in League of Women Voters v Secretary of State are LWV, MFTE, and various Michigan voters. When plaintiffs filed their complaint, they stated:
[MFTE] intends to circulate petitions for a constitutional amendment to strengthen and reform Michigan s campaign finance reporting and disclosure requirements. [MFTE] is drafting its proposal and intended to begin its campaign in the summer of 2019, but because of the uncertainty regarding PA 608 and anticipated additional costs, [MFTE] may need to raise additional financial support and may not be able to circulate petitions for its proposal until 2020.
As plaintiffs counsel acknowledged to the Court and confirmed in the supplemental briefing, MFTE has suspended its petition efforts because of the COVID-19 pandemic. This development raises the question whether the case has become moot as to MFTE.
As this Court explained in Anway v Grand Rapids R Co:14
“It is universally understood by the bench and bar . . . that a moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy. The only way a disputed right can ever be made the subject of judicial investigation is, first, to exercise it, and then, having
acted, to present a justiciable controversy in such shape that the disputed right can be passed upon in a judicial tribunal, which can pronounce the right and has the power to enforce it.”15
We have not addressed mootness in the context of a voluntarily abandoned ballot-question petition drive, but the relevant cases we discovered from other jurisdictions are in uniform agreement that the voluntary abandonment of a petition drive renders a case moot. In Personhood Nevada v Bristol, the respondents challenged a
Another instructive case is Poulton v Cox.20 There, the petitioners backed an initiative to introduce legislation; when the Lieutenant Governor rejected their application, they sought an order requiring the Lieutenant Governor to reverse his action.21 After filing the petition with the Utah Supreme Court, the petitioners “[p]ublicly and formally ceased efforts to place the proposed initiative on the ballot. ”22 Thus, the issue evaded review “only because” the ballot proponents ended their efforts.23 The court held that the petition was moot because effective relief no longer was possible.24
We agree with the reasoning of Personhood Nevada, Poulton, and the other cases cited above, and we believe that such reasoning applies with equal force here. The original parties to the case conclude likewise, arguing to the Court in their supplemental briefing that the case is moot as to MFTE. Because MFTE is no longer circulating its petition with the intent to put it on this year s ballot, a judgment on the merits of the case would be “a decision in advance about a right before it has been actually asserted and contested, or a judgment . . . which . . . cannot have any practical legal effect upon a then existing
controversy.”25 Our decision would only serve to instruct MFTE as to the law in this area should MFTE choose to pursue a petition in the future.26 But MFTE does
have anything at stake in this dispute.27 It would be, too, a singular
require dispatch, nothing inherent in the current case or the issues it presents suggests that it could not receive a timely decision on the merits. It is not, therefore, an issue that will evade judicial review were it to arise again in the future.
C. STANDING AS TO THE OTHER PLAINTIFFS IN LEAGUE OF WOMEN VOTERS
Because the issue of whether
Plaintiffs requested a declaratory judgment and injunctive relief. As this Court stated in Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010),30 “[W]henever a litigant meets the requirements of
As the remaining plaintiffs now admit, and the Secretary of State agrees, they cannot show a present legal controversy rather than a hypothetical or anticipated one. A declaratory judgment is not needed to guide plaintiffs’ future conduct. Plaintiffs only ask for a declaratory judgment because it perhaps may be needed in the future should they decide to sign some initiative. They have no plans now to sign any. Therefore, because plaintiffs do not meet the requirements of
It is true that the bar for standing is lower when a case concerns election law. The Court of Appeals noted in Deleeuw v State Bd of Canvassers that “[e]lection cases are special . . . because without the process of elections, citizens lack their ordinary recourse. For this reason we have found that ordinary citizens have standing to enforce the law in election cases.”35 Deleeuw cited Helmkamp v Livonia City Council,36 which similarly stated, ” ‘[I]n the absence of a statute to the contrary, . . . a private person . . . may enforce by mandamus a public right or duty relating to elections without showing a special interest distinct from the interest of the public.’ ”37
However, these cases should not be interpreted as allowing any citizen to bring an action for declaratory judgment regarding the constitutionality of any election law that might affect his or her interests in the future. In Deleeuw, the plaintiffs, petition signers, sought to have Ralph Nader put on the 2004 ballot as an independent candidate for president. In Helmkamp, the plaintiffs, residents and electors of Livonia, filed a complaint for a declaratory judgment and an order of mandamus compelling defendants, the City Council of Livonia and the Election Commission of Livonia, to call a special election to elect a mayor.
In both of these situations, the facts demonstrated that there was a present legal controversy. In Deleeuw there was a candidate whom the plaintiffs claimed should be placed on the upcoming ballot, and in Helmkamp there was an election that the plaintiffs claimed should be held. Not so here, where there is no such controversy because MFTE is not currently pursuing a ballot initiative and the other plaintiffs have not alleged that they have any concrete plans to sign any other petition (much less shown that their signatures would not be counted due to
D. VACATUR OF THE LOWER-COURT DECISIONS IN LEAGUE OF WOMEN VOTERS
Having determined that the case is moot and that no other plaintiff has standing to pursue the case, we must now consider whether to vacate the lower-court opinions in League of Women Voters v Secretary of State. The United States Supreme Court normally vacates lower-court judgments in moot cases.39 We have followed this general practice.40 “Because this practice is rooted in equity, the decision whether to vacate turns on ‘the conditions and circumstances of the particular case.’ ”41
This Court has also vacated Court of Appeals opinions as a result of mootness. See, e.g., People v Smith, 502 Mich 624, 632; 918 NW2d 718 (2018) (vacating as moot the part of the Court of Appeals’ judgment holding a resignation provision to be invalid because the defendant had resigned from office prior to the Court of Appeals’ decision); In re Investigative Subpoenas, 488 Mich 1032 (2011) (vacating the Court of Appeals’ judgment when a subsequent decision of the United States Supreme Court rendered it moot). Other courts have also vacated lower-court decisions when cases have been rendered moot. See, e.g., Freeman v Burrows, 141 Tex 318, 319; 171 S2d 863 (1943) (“When a cause becomes moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed.“); Van Schaack Holdings, Ltd v Fulenwider, 798 P2d 424, 431 (Colo, 1990) (affirming “the court of appeals determination that the trial court‘s judgment should be vacated“); Dep‘t of Human Resources, Child Care Admin v Roth, 398 Md 137, 143; 919 A2d 1217 (2007) (” ‘Where there might be some effects from the trial court‘s decision in a moot case we vacate the judgments below and order that the trial court dismiss the action.’ “), quoting In re Kaela C, 394 Md 432, 452; 906 A2d 915 (2006); Aquacultural Research Corp v Austin, 88 Mass App 631, 631; 41 NE3d 418 (2015) (“We conclude that the case is moot and vacate all of the unreviewed decisions.“).
Here, the equitable considerations weigh in favor of vacating the lower-court decisions. This case has been a procedural mess from the beginning—with the Attorney General declining to defend the constitutionality of
E. STANDING AND MOOTNESS IN THE LEGISLATURE‘S CASE
Generally, standing is assessed at the outset of the case.42 Under Lansing Schools, standing is “a limited, prudential doctrine,”43 the purpose of which “is to assess whether a litigant‘s interest in the issue is sufficient to ‘ensure sincere and vigorous advocacy.’ ”44
Lansing Schools spelled out that “a litigant has standing whenever there is a legal cause of action” and “whenever a litigant meets the requirements of
[w]here a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant.46
The party‘s interest must persist as the case goes forward—if it does not, the case becomes moot.47
At the time the Legislature filed its complaint here, it had two potential sources of interest in the case.48 The first was the ongoing litigation in League of Women Voters v Secretary of State—it
This is a complicated issue.49 Views on legislative standing are wide-ranging, with those such as the late Justice Scalia on the one hand, who vehemently opposed expansion of legislative standing as an encroachment on the separation of powers.50 On the other hand are views such as those of Justice Alito, who would conclude that “in
expressed by the United States Supreme Court in Coleman v Miller,52 in which the Court held that members of the Legislature had standing when their votes had “been overridden and virtually held for naught[,] although if they are right in their contentions their votes would have been sufficient to defeat ratification.”53
[I]f the Executive‘s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court‘s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President‘s. This would undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is. Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court. [Id. at 762 (opinion of the Court) (quotation marks, citations, and brackets omitted).]
But this was in the context of allowing the Bipartisan Legal Advisory Group of the House of Representatives to intervene to defend the constitutionality of the Defense of Marriage Act, not allowing them to have standing to initiate their own action every time the Executive declares a law unconstitutional.
Ultimately, we do not need to resolve this thorny matter in the present case. In
The second source potentially giving rise to standing is the formal Attorney General opinion that concluded the statute at issue is unconstitutional. That opinion was, as noted, issued before the Legislature filed its lawsuit and it remains in place now. Thus, the only way to hold that the Legislature has standing to pursue its case would be to conclude that any time the Attorney General issues a formal opinion concluding that an act is unconstitutional, the Legislature has been harmed in such a way that it has standing to bring an action for declaratory judgment. Such a conclusion would be an outlier, going far beyond even Justice Alito‘s view that Congress may step in to defend the constitutionality of an act that has already been struck down by a court when the Executive refuses to do so.55 It would require a
private party could challenge the Attorney General‘s opinion. Thus, the Legislature had no standing to pursue its case on the basis of the Attorney General opinion.59
IV. CONCLUSION
We can recall few cases that have been so divorced from the factual circumstances
standing in order to defend a statute that the Attorney General has left undefended in court. But we further hold that the League of Women Voters case is moot as to MFTE and that no other party has standing. Therefore we vacate the lower-court decisions in that case. Given these holdings, we affirm on alternate grounds the Court of Appeals’ conclusion that the Legislature has no standing to pursue its own case. We therefore remand both cases to the trial court for entry of dismissal orders.
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
STATE OF MICHIGAN SUPREME COURT
LEAGUE OF WOMEN VOTERS OF MICHIGAN, MICHIGANDERS FOR FAIR AND TRANSPARENT ELECTIONS, HENRY MAYERS, VALERIYA EPSHTEYN, and BARRY RUBIN, Plaintiffs-Appellees, and SENATE and HOUSE OF REPRESENTATIVES, Intervenors-Appellants, v SECRETARY OF STATE, Defendant-Appellee. SENATE and HOUSE OF REPRESENTATIVES, Plaintiffs-Appellants, v SECRETARY OF STATE, Defendant-Appellee.
No. 160907, No. 160908
CLEMENT, J.
CLEMENT, J. (concurring in part, concurring in the judgment in part, and dissenting in part).
I concur in full with the Court‘s decision to grant the Legislature‘s motion to intervene in Docket No. 160907 and with the Court‘s analysis of why it is granting that motion. However, having granted intervention, I would reach the merits of the issues presented, and I therefore dissent from the Court‘s decision to conclude that the dispute in Docket No. 160907 is moot, both for the reasons offered by Justice ZAHRA1 as well as further reasons I will explain. That said, not having prevailed on the question of whether the dispute in Docket No. 160907 is moot, I further concur with the result of the Court‘s disposition of the Legislature‘s other effort at bringing this dispute before the courts: its original action for a declaratory judgment in Docket No. 160908. I cannot join the Court‘s analysis, however, as I disagree that “we do not need to resolve this thorny matter [of legislative standing] in the present case“—in my view, if we are to close the courthouse door to the Legislature (a decision with which I agree), we owe a definitive answer as to why.
I. MOOTNESS
I agree with Justice ZAHRA that the issues raised in Docket No. 160907 fall, at minimum, within the exception to the mootness doctrine allowing courts to adjudicate issues which are capable of repetition, yet likely to otherwise evade judicial review. I further believe that there is not even a need to apply an exception to the mootness doctrine, because at least the allegations made by plaintiff Michiganders for Fair and Transparent Elections (MFTE), as well as those made by the
First, as to MFTE, it alleges in its complaint that it “intends to circulate petitions for a constitutional amendment to strengthen and reform Michigan‘s campaign finance reporting and disclosure requirements.” It has not recanted its intent to do that; rather, it abandoned its efforts to collect signatures to place the proposal on the 2020 ballot. But nothing has happened that would change its interest in its proposal—it is not as though some other, similar constitutional amendment was ratified (or even voted on) in 2020, nor has the Legislature enacted legislation that mollifies MFTE‘s concerns. Taking its complaint at face value, I believe MFTE still retains an interest in knowing whether it must satisfy the requirements of
The majority contends that any decision here “would only serve to instruct MFTE as to the law in this area should MFTE choose to pursue a petition in the future.” In a certain literal sense, this is true. Until a ballot-question committee actually gathers the requisite number of signatures, submits them to the Board of State Canvassers, and has those petitions rejected by the board on the ground of being improper in form, there will always be some degree of speculation or uncertainty about what the future holds and whether a judicial interpretation of the statute is strictly necessary. I do not believe this degree of speculation defeats a declaratory-judgment action under our jurisprudence; it seems very clear to me that a ballot-question committee has a valid interest in knowing what rules it must follow if its efforts are going to be legally valid. We have said that an ” ‘actual controversy’ exists [for purposes of the declaratory-judgment court rule, currently
I also believe the individual-voter plaintiffs in Docket No. 160907 continue to have a live interest in the outcome of this dispute. The majority concludes that their case presents no “actual controversy” under
prefers. Rather, in challenging an ineligible name, such a plaintiff is essentially trying to control (or at least influence) the behavior of all other voters in the jurisdiction, so that those voters will not be presented with the possibility of voting for a particular option.3 If voters can litigate the question of whether candidates they have no desire to vote for can appear on a ballot, just to control the options presented to all other voters in the jurisdiction, it seems to me that a voter has an even greater interest in whether their own signature will be legally effective—at that point, the voter is not trying to influence the behavior of others but rather obtain some legal certainty for his or her own participation in the electoral process.
Notably, the majority acknowledges “that the bar for standing is lower when a case concerns election law.” Frankly, even in the absence of a relaxed standing rule in election cases, I think a voter positioned as these individual-voter plaintiffs are positioned would have standing to litigate this question. The relaxed standing rule in election cases only strengthens my view—an observation that applies with equal force to MFTE‘s interests as well. Consequently, while I agree with Justice ZAHRA that this dispute at least falls within the “capable of repetition, yet evading review” exception to our mootness doctrine, I do not even believe the case is moot such that an exception need be invoked.
II. LEGISLATIVE STANDING
A. THE LEGISLATURE‘S CLAIMS ARE NONJUSTICIABLE
Of course, regardless of whether the dispute in Docket No. 160907 is moot, this Court could reach the merits of the legal issues presented if the Legislature can maintain its declaratory-judgment action against the Secretary of State in Docket No. 160908, seeing as the issues presented are essentially identical. The Court of Appeals rejected this argument, holding “that the Legislature did not and does not have standing to bring a declaratory action in the matters at hand.” League of Women Voters of Mich v Secretary of State, 331 Mich App 156, 175; ___ NW2d ___ (2020). The Legislature appeals this ruling to us, maintaining that it need not intervene in Docket No. 160907 to bring these issues before us and that its own declaratory-judgment action against the Secretary of State under
Our Constitution vests this Court with “the judicial power of the state,”
This Court laid out the governing standard for standing in Michigan in Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). There, we said that standing is “a limited, prudential doctrine,” id. at 372, whose purpose “is to assess whether a litigant‘s interest in the issue is sufficient to ‘ensure sincere and vigorous advocacy,’ ” id. at 355, quoting Detroit Fire Fighters Ass‘n v Detroit, 449 Mich 629, 633; 537 NW2d 436 (1995), meaning that “the standing inquiry focuses on whether a litigant ‘is a proper party to request adjudication of a particular issue and not whether the issue itself is justiciable,’ ” Lansing Sch Ed Ass‘n, 487 Mich at 355, quoting Allstate Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993).
Under this approach, a litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of
MCR 2.605 , it is sufficient to establish standing to seek a declaratory judgment. Where a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant. [Lansing Sch Ed Ass‘n, 487 Mich at 372.]
Here, if the focus is on whether the litigant‘s interest in the issue is to ensure sincere and vigorous advocacy, I have no doubt that the Legislature can satisfy this threshold. But as Lansing Sch Ed Ass‘n notes, our standing inquiry is separate from our justiciability inquiry. And I do not believe a legislative declaratory-judgment action against an executive officer is justiciable when the Legislature seeks nothing more than a judicial declaration that the executive must implement a law as the Legislature prefers.
In general, the rule is that “a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment” “[i]n a case ofactual controversy within its jurisdiction . . . .”
The Legislature argues that it must be able to maintain its declaratory-judgment action because “[i]f an executive branch member and the Attorney General team up to nullify a law and no party sues, that would leave the Legislature without a remedy.” But this is not true—if the Legislature cannot maintain a direct action against the executive branch, “[t]he matter would [be] left, as so many matters ought to be left, to a tug of war between the
In short, under Lansing Sch Ed Ass‘n, our standing analysis and our justiciability analysis are distinct questions. The Court of Appeals held that the Legislature lacks standing. I disagree—if the test of standing is going to be whether we will get sincere and vigorous advocacy, I believe the Legislature satisfies it. However, I agree with the result of denying relief to the Legislature, because its claims are nonjusticiable. The purported injury suffered by the Legislature—the practical nullification through executive nonimplementation of a law the Legislature has enacted—is not one that the judiciary has recognized in the past. We have not done so for good reason: it would threaten the separation of powers and risk injecting this Court into political disputes between the Legislature and executive despite the fact that those coordinate branches of government are capable of resolving their disputes through the political process. When private litigants without access to the constitutional levers of power assert that their rights are being violated—as in Docket No. 160907—I of course believe it is generally the judiciary‘s duty to resolve such disputes, but if no such litigant steps forward, I would not set this Court up as the arbiter of disputes solely between branches of government to which we are coequal, not superior.
B. RESPONSE TO THE MAJORITY
Although we reach the same result—denying relief to the Legislature in Docket No. 160908—I am unable to join the majority‘s analysis. The majority says that when the Legislature filed its complaint for a declaratory judgment, it “had two potential sources of interest in the case.” The first is “the ongoing litigation in [Docket No. 160907],” which raises the question “whether an executive officer‘s actual or threatened nondefense of legislation in a private lawsuit gives the Legislature a sufficient interest to bring its own action against those officers.” The second “is the formal Attorney General opinion that concluded the statute at issue is unconstitutional.” The majority concludes that neither one of these is sufficient to confer standing on the Legislature. As noted, in my view the issue here is not whether the Legislature has standing but rather whether its issue is justiciable, but setting this distinction aside, I believe these two options erect a straw man that the majority knocks down to elide the actual question presented—whether the Legislature has recourse to the judiciary to compel the executive to enforce a law.
The majority‘s first proffered and rejected rationale for granting the Legislature
Second, the majority posits that the other source of interest the Legislature may have had to maintain its declaratory-judgment action was the Attorney General opinion holding that the statute at issue was, in pertinent part, unconstitutional. The majority says that “theonly way to hold that the Legislature has standing to pursue its case would be to conclude that any time the Attorney General issues a formal opinion concluding that an act is unconstitutional, the Legislature has been harmed in such a way that it has standing to bring an action for declaratory judgment,” and concludes that this “would require a very generous view of legislative standing . . . .” I struggle to see the relevance of the Attorney General opinion. The Legislature‘s allegation is that the Secretary of State is not going to implement 2018 PA 608 because the statute is alleged to be unconstitutional. As it happens, that conclusion is memorialized here in an Attorney General opinion, but I do not see how or why that is essential to this analysis. If the Attorney General had issued an opinion reaching the opposite conclusions, the Secretary of State could still have insisted
In Docket No. 160908, a litigant—the Legislature—filed a complaint initiating a civil action asking for a declaratory judgment. We are going to decline to provide that judgment. I agree with that decision, but I believe we owe the litigant a square explanation why. The majority contends that neither the Secretary of State‘s litigation posture in Docket No. 160907 nor the existence of the Attorney General opinion the Secretary of State is relying on is sufficient to confer standing on the Legislature and closes the courthouse door as a result. I do not believe this is an adequate explanation, because itdoes not investigate the core concern of the Legislature: whether it may obtain a judicial declaration to compel an executive official to implement a statutory enactment. Neither the Secretary of State‘s litigation position nor the existence of the Attorney General opinion is the sine qua non of the Legislature‘s complaint; batting them down gets us no closer to an answer. I simply do not think we can avoid answering the question of whether the Legislature is entitled to maintain its action in Docket No. 160908 and get a judgment on the merits. I agree with the Court that it cannot maintain its action, but I would answer the question squarely rather than beating around the bush.
Elizabeth T. Clement
LEAGUE OF WOMEN VOTERS OF MICHIGAN, MICHIGANDERS FOR FAIR AND TRANSPARENT ELECTIONS, HENRY MAYERS, VALERIYA EPSHTEYN, and BARRY RUBIN, Plaintiffs-Appellees, and SENATE and HOUSE OF REPRESENTATIVES, Intervenors-Appellants, v SECRETARY OF STATE, Defendant-Appellee. SENATE and HOUSE OF REPRESENTATIVES, Plaintiffs-Appellants, v SECRETARY OF STATE, Defendant-Appellee.
No. 160907; No. 160908
STATE OF MICHIGAN SUPREME COURT
MARKMAN, J. (dissenting).
The majority grants the motion of the Michigan Senate and House of Representatives (the Legislature) to intervene in the suit brought by the League of Women Voters of Michigan (LWV) and others against the Secretary of State, holds that that case is moot as to plaintiff Michiganders for Fair and Transparent Elections (MFTE), and concludes that the remaining plaintiffs in that case lack standing. As a result, the majority vacates the lower-court decisions. It also holds that the Legislature lacks standing in its own case against the Secretary of State. Accordingly, it remands both cases to the trial court to be dismissed.
I respectfully dissent. Instead, I would deny the Legislature‘s motion to intervene in the LWV case, hold that the Legislature possesses standing in its own right in its case against the Secretary of State, and resolve the substantive questions of law in the latter case, in particular, the constitutionality of the checkbox and pre-circulation affidavit requirements as well as the 15% cap on ballot-proposal signatures per congressional district. The majority opinion leaves all of these questions unanswered. Moreover, the Court not only leaves unresolved questions it was asked to resolve by the Legislature, but it leaves these matters in a state of utter disarray and confusion for every Michigan citizen concerned about the proper procedures for placing constitutional and legislative measures on the ballot. Are those who pursue such measures obligated to abide by the statutory direction of the Legislature or by the direction of the Attorney General in her opinion as construed by the Secretary of State? Take your pick; toss a coin; chance a guess. The majority opinion offers not the slightest legal guidance. Until the issues are resolved at some future date, the initiative and referendum processes
I. FACTS & HISTORY
In December 2018, the Michigan Legislature passed and the Governor signed 2018 PA 608. This act imposed new requirements for gathering petition signatures for statewide ballot proposals, including initiatives, referendums, and constitutional amendments. In May 2019, the Attorney General issued OAG, 2019-2020, No. 7,310, p ___ (May 22, 2019), in response to a request from Secretary of State Jocelyn Benson regarding the constitutionality of certain aspects of 2018 PA 608. The Attorney General opined that the pre-circulation affidavit requirement, the checkbox requirement, and the 15% cap on ballot-proposal signatures per congressional district, in her judgment, were each unconstitutional.
The LWV, MFTE, Henry Mayers, Valeriya Epshteyn, and Barry Rubin have brought an action for declaratory relief challenging the constitutionality of these aspects of 2018 PA 608 against the Secretary of State, who was, and who continues to be, represented by the Attorney General.2 The Court of Claims granted LWV‘s motion for summary disposition in part and struck down as unconstitutional the provisions that allow no more than 15% of petition signatures to be obtained in any
In a separate case brought in the Court of Claims, the Legislature sought a declaratory judgment that 2018 PA 608 is constitutional in its entirety. The Court ofClaims consolidated these two cases, but ultimately held that the Legislature lacked standing to bring its own case and thus dismissed it. However, the court treated the Legislature‘s briefs effectively as amicus briefs in the LWV case, given that no party in that case was offering arguments in favor of the constitutionality of 2018 PA 608; the Secretary of State fully agreed with LWV that all of the challenged provisions are unconstitutional. The Legislature appealed the Court of Claims’ decision to the Court of Appeals, but did not file a bypass application in this Court, and the Court of Appeals consolidated the two cases for appellate review.
The Legislature then filed a motion in this Court to intervene in the LWV case and requested that we grant LWV‘s bypass application and uphold the constitutionality of 2018 PA 608 in its entirety. We denied the Legislature‘s motion to intervene, denied LWV‘s bypass application, and ordered the Court of Appeals to issue an opinion by January 27, 2020. League of Women Voters v Secretary of State, 505 Mich 931 (2019).
The Court of Appeals issued a published opinion by this deadline, holding that the Legislature lacks standing and that the 15% cap on ballot-proposal signatures per congressional district, the checkbox requirement, and the pre-circulation affidavit requirement are each unconstitutional. League of Women Voters of Mich v Secretary of State, 331 Mich App 156; ___ NW2d ___ (2020). Judge BOONSTRA, concurring in part and dissenting in part, agreed with the majority that the 15% cap on ballot-proposal signatures per congressional district and the pre-circulation affidavit requirement are unconstitutional, but he would have held that the Legislature possesses standing and that the checkbox requirement is constitutional. The Legislature then filed an application for leave to appeal in this Court and a motion to intervene. We heard oral argument onMarch 11, 2020, and on July 31, 2020, we directed the parties and the proposed intervenors to file supplemental briefs regarding mootness and standing. League of Women Voters v Secretary of State, 506 Mich ___; 946 NW2d 306 (2020). They subsequently did so on August 28, 2020.
II. STANDARD OF REVIEW
“Whether a party has standing is a question of law that is reviewed de novo.” Mich Ass‘n of Home Builders v City of Troy, 504 Mich 204, 212; 934 NW2d 713 (2019). Questions of court rule and statutory interpretation are also reviewed de novo. Safdar v Aziz, 501 Mich 213, 217; 912 NW2d 511 (2018).
III. ANALYSIS
The majority grants the Legislature‘s motion to intervene in the LWV case, while holding that the Legislature lacks standing to seek declaratory relief in its own right.
A. THE LWV CASE
In Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 288; 715 NW2d 846 (2006), this Court held that the Attorney General could not appeal as an
The LWV case is analogous in this regard to Federated. The Legislature is not a party in the LWV case and it did not file a motion to intervene in either the Court of Claims or the Court of Appeals. And neither the plaintiffs nor the defendant in LWV filed anapplication for leave to appeal in this Court. Because neither party below filed a timely appeal, there is no longer a justiciable controversy, and because there is no longer a justiciable controversy, the Legislature cannot intervene. “[T]his case ceased to be an ‘action’ when the losing parties below . . . failed to file a timely application for leave to appeal in this Court.” Id. at 294.3 The Legislature cannot intervene in an action that no longer exists. Rather, the LWV case is over, and the Legislature waited too long to file a motion to intervene. For these reasons, I would deny the Legislature‘s motion to intervene and would dismiss the application for leave to appeal in the LWV case.
The Legislature argues that it has a right to intervene under
Since I would deny the Legislature‘s motion to intervene and would dismiss the LWV case, it is unnecessary to decide whether the majority is correct that the LWV case is moot as to MFTE and that the remaining parties lack standing. However, given that both the majority and Justice ZAHRA address mootness, I feel compelled to indicate that I agree with Justice ZAHRA that the LWV case is not moot for the reasons explained by Justice ZAHRA.
B. “LEGISLATURE” CASE
In a case of actual controversy within its jurisdiction, a Michigan court of record
may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted. [Emphasis added.]
In the LWV case, there was from the start no “actual controversy” between the parties because both parties (LWV and the Secretary of State) argued that each of the statutory provisions at issue here is unconstitutional. Therefore, absent the Legislature‘s intervention, the Court of Claims should have peremptorily dismissed the LWV case. Instead of doing this, that court allowed the Legislature to participate, but only as an amicus. Furthermore, the Legislature should have moved at that time to intervene so that it could have been added as an actual party in the LWV case, but it did not.
In Federated, this Court held that “the party seeking appellate relief [must] be an ‘aggrieved party . . . .’ ” Id. at 291. That is, “[i]n order to have appellate standing, the party filing an appeal must be ‘aggrieved.’ ” Manuel v Gill, 481 Mich 637, 643; 753 NW2d 48 (2008). As we explained,
to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court‘s power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [Federated, 475 Mich at 291-292.]
“A party who could not benefit from a change in the judgment has no appealable interest.” Id. at 291 n 2 (quotation marks and citation omitted). “Of course one [also] may not appeal from a judgment, order or decree, in his favor by which he is not injuriously affected.” Id. (quotation marks and citations omitted). Generally, “a party who prevails on every claim cannot be considered to be aggrieved by a court‘s ruling.” Manuel, 481 Mich at 644.
In the LWV case, the Court of Claims held that the 15% geographical limitation and the checkbox requirement are unconstitutional and that the affidavit requirement is constitutional. LWV appealed in the Court of Appeals, arguing that all three requirements are unconstitutional. However, LWV lacked appellate standing with respect to the issues on which it prevailed in the Court of Claims because it was not an “aggrieved party.” The only issue as to which LWV possessed appellate standing was that pertaining to the affidavit requirement, as to which it did not prevail in the Court of Claims. Yet, the Court of Appeals unaccountably ruled on all three of the appellate issues.
Although the Court of Appeals did not address whether LWV was an “aggrieved party,” it held that the Legislature was not an “aggrieved party,” because although the Courtof Claims held that the Legislature lacked standing, it nonetheless fully considered and addressed the Legislature‘s arguments. The Court of Appeals also held that the Legislature lacked standing because it did not have an interest that was distinct from that of the general public. Moreover, although the Court of Appeals held that the Legislature lacked standing, the entirety of its opinion reads as if the Legislature possessed standing because the Court of Appeals fully addressed its arguments in an indistinguishable manner from the arguments of the LWV. That is, the Court of Appeals’ opinion is phrased throughout in terms of LWV representing one side of the dispute and the Legislature representing the other side.
Given that LWV ultimately prevailed on the issues regarding the geographic-distribution-requirement
The Court of Appeals stated further:
While the Legislature also argues that “[l]eaving the Court of Claims Opinion in place will result in a single member of the executive branch being able to exercise unchecked veto power over a bill that has already been passed and enacted into law,” the Court of Claims analyzed the Attorney General‘s legal conclusions, this Court scrutinized those conclusions, and presumably, our Supreme Court will also consider the legal conclusions in the Attorney General‘s opinion. In light of that review process, it cannot be concluded that the Attorney General has “unchecked veto power” over 2018 PA 608. [League of Women Voters of Mich, 331 Mich App at 174 n 10.]
The Court of Appeals thus erred again, in my judgment, in failing to consider that if this Court were eventually to agree with the Court of Appeals that the Legislature lacked standing, we would then have been unable to consider the legal conclusions of the Attorney General‘s opinion because neither LWV nor the Secretary of State was going to appeal the Court of Appeals’ decision to this Court since their positions would already have prevailed in the Court of Appeals. In other words, we would have been unable to consider the conclusions of the Attorney General‘s opinion in the LWV appeal because that case could not have been appealed to this Court, and we would also have been unable to address these conclusions in the Legislature‘s case if we agreed with the Court of Appeals that the Legislature lacked standing to bring its own action. That is, the Court of Appeals seemingly did not recognize the full significance of its holding concerning the Legislature‘s lack of standing.
Judge BOONSTRA concluded that, because this Court has most recently held that standing is a matter of mere judicial discretion, at least under these unique circumstances, he would exercise that discretion to fully address the Legislature‘s arguments. The circumstances are indeed unique because the Legislature is suing to maintain the effectiveness of its legislative process in enacting 2018 PA 608-- an act that the Secretary of State is now declining in part to enforce and the Attorney General has opined is unconstitutional in part. In other words, apart from the Legislature, there would appear to be no one to argue in opposition to the position taken jointly by LWV, the Secretary of State, and the Attorney General.
I generally agree with Judge BOONSTRA. That is, under at least the unique circumstances of this case, I agree that the Legislature possesses standing-- these unique
circumstances comprising in particular (a) that the Attorney General, at the request of the Secretary of State, issued an opinion in which she asserted that the challenged statutory provisions are unconstitutional; (b) that in the LWV case, although the Legislature did not file a motion to intervene in either lower court and both lower courts held that the Legislature lacked standing, both lower courts proceeded nonetheless to treat the Legislature as if it were a party; and (c) that, absent the Legislature‘s participation, there would have been no “actual controversy” because the Legislature was the only one arguing in favor of the constitutionality of the statutory provisions at issue.4 As Judge BOONSTRA
this case represents an “incredibly rare” circumstance in which “the Attorney General refuses to defend a statute and instead affirmatively attacks it. Historically, even when the Attorney General disagreed with a policy embodied in the statute, the Office of the Attorney General would set up a conflict wall and appoint assistant attorneys general to argue both sides of the dispute. In that way, there were always attorneys defending the Legislature‘s enactment.” [League of Women Voters of Mich, 331 Mich App at 202 n 1 (BOONSTRA, J., concurring in part and dissenting in part) (alterations omitted).]
Judge BOONSTRA further noted that under
The majority also questions whether I “intend to suggest that any time the executive fails to enforce a statute, the Legislature can step in to fill the void[.]” No, I do not. However, what we have here is not a situation in which the executive has simply chosen not to enforce a statute; rather, it is one in which the executive has affirmatively taken the position that the challenged provisions are unconstitutional where the executive was the only party in the LWV case who could possibly have defended the constitutionality of those provisions. It is at least in such a remarkable situation that I believe the Legislature possesses the right to defend laws it has enacted on behalf of the people of this state. Or is it the majority‘s position that the Attorney General, at her sole and unchecked discretion, may deprive the people of any legal defense of the enactments of its representatives in the Legislature by mere recourse to arguing a contrary position?
Because, unlike the majority, I would not vacate the lower courts’ opinions in the LWV case, it is unnecessary for me to decide whether the Legislature would possess standing to bring its own cause of action under such alternative circumstances.
As he further recognized, this Court has adopted a “limited, prudential approach” to standing. Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349, 353; 792 NW2d 686 (2010).5 Under this approach, “the court‘s decision to invoke [standing is] one of discretion and not of law.” Id. at 355 (quotation marks and citation omitted). That is, it is a “prudential limit that [can], within the Court‘s discretion, be ignored.” Id. at 356-357. “The purpose of the standing doctrine is to assess whether a litigant‘s interest in the issue is sufficient to ensure sincere and vigorous advocacy.” Id. at 355 (quotation marks and citation omitted). “[W]henever a litigant meets the requirements of
sufficient to establish standing to seek a declaratory judgment.” Id. at 372. As discussed earlier,
In the Legislature‘s case, there is an “actual controversy” because while the Legislature argues that all the statutory provisions at issue are constitutional, the Secretary of State argues that they are all
Furthermore, even if Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992), was controlling (which I concede that it is not, see note 5 of this opinion), I believe that the Legislature possesses standing (at least under the instant circumstances) even under the more demanding standing requirement set forth in Lujan and adopted by this Court in Lee v Macomb Co Bd of Comm‘rs, 464 Mich 726; 629 NW2d 900 (2001), and National Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004), before those cases were overruled by Lansing Sch Ed Ass‘n, 487 Mich 349. Pursuant to Lujan:
“First, the plaintiff must have suffered an ‘injury in fact‘—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . traceable to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Lee, 464 Mich at 739, quoting Lujan, 504 US at 560-561.]
The Legislature satisfies each of these requirements. First, the Legislature has suffered an “injury in fact“-- statutes that the Legislature enacted have been rendered null and void. Second, there is a causal
Concluding that Lujan has been satisfied here given that the lower courts effectively allowed the Legislature to intervene is consistent with United States Supreme Court‘s decisions allowing Congress to intervene in cases to defend the constitutionality of laws. The United States Supreme Court has “long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Immigration & Naturalization Serv v Chadha, 462 US 919, 940; 103 S Ct 2764; 77 L Ed 2d 317 (1983). In Chadha, Congress was allowed to intervene to defend the constitutionality of a single-house-of-Congress legislative veto.
Similarly, in United States v Windsor, 570 US 744; 133 S Ct 2675; 186 L Ed 2d 808 (2013), the Court allowed the Bipartisan Legal Advisory Group of the House of Representatives to intervene in litigation to defend the constitutionality of the Defense of Marriage Act. As the Court explained:
[I]f the Executive‘s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court‘s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become onlysecondary to the President‘s. This would undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is. Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court. [Id. at 762 (quotation marks and citations omitted).]
The same reasoning applies here.7 Both the Secretary of State and the Attorney General agree with LWV that the challenged provisions are unconstitutional. The Legislature thus is the only party arguing in favor of the constitutionality of these provisions. Accordingly, under at least these unique circumstances,8 I would
IV. CONCLUSION
I would deny the Legislature‘s motion to intervene in the LWV case, hold that the Legislature has standing in its own case against the Secretary of State, and would resolve the substantive questions of law in the latter case. It is regrettable that the majority leaves these questions unanswered and gives rise to confusion for all participants in this case, as well as for all persons seeking to place constitutional and legislative measures on the ballot, concerning what constitutes the law of this state. After substantial delays in finally “resolving” this case, we not only do not resolve it in any way but we leave the matter considerably more confused and uncertain.
Stephen J. Markman
Brian K. Zahra
LEAGUE OF WOMEN VOTERS OF MICHIGAN, MICHIGANDERS FOR FAIR AND TRANSPARENT ELECTIONS, HENRY MAYERS, VALERIYA EPSHTEYN, and BARRY RUBIN, Plaintiffs-Appellees, and SENATE and HOUSE OF REPRESENTATIVES, Intervenors-Appellants, v. SECRETARY OF STATE, Defendant-Appellee. SENATE and HOUSE OF REPRESENTATIVES, Plaintiffs-Appellants, v. SECRETARY OF STATE, Defendant-Appellee.
ZAHRA, J. (dissenting).
I dissent. The majority opinion improperly grants the motion of the Michigan Senate and House of Representatives (collectively, the Legislature) to intervene in Docket No. 160907. Because I would deny the Legislature‘s untimely motion to intervene under Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286; 715 NW2d 846 (2006),1 I would not reach the question of whether that case is moot. Instead, for the reasons stated by Justice MARKMAN, I would recognize the Legislature‘s standing in Docket No. 160908 under Lansing Sch Ed Ass‘n v Lansing Bd of Ed2 and would proceed to decide the merits of this dispute. Nonetheless, I am compelled to address the majority opinion‘s remarkable conclusion that the case has been rendered moot by the fact that Michiganders for Fair and Transparent Elections (MFTE) has temporarily paused its pursuit of its ballot initiative amidst the current pandemic.
It is a well-established principle that ” ‘[t]he judicial power . . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.’ ”3 Accordingly, ” ‘this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before’ it.”4 Generally speaking, “[a] moot case presents nothing but abstract questions of law which
do not rest upon existing facts or rights” such that “a judgment cannot have any practical legal effect upon a then existing controversy.”5 Of course, moot issues may yet be justiciable where they are “of public significance and
The constitutionality of an election law affecting all exercises of the people‘s power to propose new laws by petition (the initiative), to approve or reject laws enacted by the Legislature (the referendum), and to propose constitutional amendments by petition (voter-initiated constitutional amendments) is undoubtedly an issue of public significance.7 The more pertinent question is whether the issues presented are likely to recur, yet evade judicial review. In Meyer v Grant, the Supreme Court of the United States held that an action challenging a Colorado law making it a felony to pay petition circulators was not moot, even though the election in which the proponents had hoped to present their ballot proposal had already taken place, because the issue was “one capable of repetition, yet
evading review.”8 The Court explained that courts “may exercise jurisdiction over [a challenge to an electoral restriction] if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.”9 Because “Colorado grants the proponents of an initiative only six months in which to obtain the necessary signatures,” the Court reasoned that “[t]he likelihood that a proponent could obtain a favorable ruling within that time, much less act upon such a ruling in time to obtain the needed signatures, is slim at best.”10 The Court also held that it was reasonable to expect that the same controversy would recur between the proponents and the state because the proponent‘s initiative had not yet been enacted, the proponents continued to advocate for its adoption, and they continued to make preparations for future attempts to obtain the signatures necessary to place the issue on the ballot.11
Similarly, the Michigan Election Law requires signatures on a petition initiating legislation or proposing a voter-initiated constitutional amendment to be made within 180 days of the petition‘s filing with the Secretary of State.12 Despite its decision to postpone its initiative efforts, MFTE retains an interest in knowing whether it must satisfy the requirements of PA 608. Given the condensed timeline to collect signatures, it is
unreasonable to expect a timely ruling in cases where a specific ballot proposal is at issue, much less a facial challenge to an election law affecting all ballot proposals. Further, all indications are that MFTE is merely postponing its initiative efforts until the November 2022 election, not abandoning them altogether.13 Thus, “it is reasonable to expect that the same controversy will recur” between
Plaintiffs argue that while the issues presented are capable of repetition, they
Finally, MFTE‘s suspension of its petition drive has not changed the circumstances under which plaintiffs brought this lawsuit. As plaintiffs themselves acknowledge, the uncertainty surrounding petition drives has existed from the moment the Attorney General opined that various portions of PA 608 were unconstitutional.15 Various petition drives, apparently relying on the Attorney General‘s advisory opinion, began collecting signatures on petitions that did not comply with PA 608 because the Board of State Canvassers instructed those launching petition drives to prepare petition sheets that conformed to the opinion of Attorney General.16 Aside from the fact that PA 608 is presumed constitutional
until the judiciary exercises its exclusive power to say otherwise,17 the
Accordingly, while I would deny the Legislature‘s motion to intervene in Docket No. 160907 and dismiss that case altogether, I disagree with the majority opinion that the issues presented in that appeal—the same issues presented in Docket No. 160908—are rendered moot by the postponement of MFTE‘s ballot-initiative efforts. Instead, the facial
challenges lodged against PA 608 are issues are of great public significance and are likely to recur, yet evade meaningful judicial review. Because I am not convinced that plaintiffs, the purported moving parties now seeking to have their own case declared moot, have satisfied the heavy burden required to demonstrate mootness, I would not grant the rare relief the majority opinion grants today.18 Instead, I would decide these important questions forthwith.
Brian K. Zahra
Stephen J. Markman