STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM LET LANSING VOTE, a ballot Case No. 17-815-AW ‘question committee organized under the laws of the State of Michigan, Hon. James S. Jamo Plaintiff, Circuit Court Judge vs. Chris Swope, in his official capacity as Clerk for the City of Lansing City, Defendant. / I Nicholas Bostic (P40653) James D. Smiertka P20608 Attomey for Plaintiff F, Joseph Abood P42307 909 N. Washington Ave. Amanda O'Boyle P81925 Lansing, MI 48906 Attomeys for Defendant 517-706-0132 124 W. Michigan Ave., S* Floor Lansing, MI 48933 Robert L. Baldori P40044 517-483-4320 Attomey for Plaintiff 2719 Mt. Hope Ra. Okemos, MI 48864 517-351-6555 PLAINTIFF'S MOTION FOR ORDER TO SHOW CAUSE Let Lansing Vote, for its response, states: 1, This motion seeks an order to show cause pursuant to MCR 3.305(C). 2. Immediate action is necessary because the challenged ordinance and the state law under which it operates went into effect on January 1, 2018. 3. The public will be limited in its access to lawful medical marihuana due to the limitations contained within the challenged ordinance, the disruption to the current established market in the greater Lansing area, and uncertainty surrounding the validity of the ordinance or whether it will passa public vote if the referendum is properly applied.4, Plaintiff relies on the arguments and documentation attached to its Response to Motion for Summary Disposition already on file with this Court which is incorporated herein by reference. 5. The attached brief is incorporated herein by reference. WHEREFORE, Plaintiff respectfully requests this Honorable Court issue its motion for an order to show cause and require the Defendant City Clerk to establish a valid ground for rejecting all presumptively valid petition signatures. 132018 Date sholas Bostic P40653 ttomey for PlaintiffSTATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM LET LANSING VOTE, a ballot Case No. 17-815-AW question committee organized under the laws ofthe State of Michigan, Hon. James S. Jamo Plaintiff, Cireuit Court Judge vs, Chris Swope, in his official capacity as, Clerk for the City of Lansing City, Defendant. BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR AN ORDER TO SHOW CAUSE FACTS ‘Submissions and responses On September 7, 2017, the Lansing City Council passed Ordinance 1217 which regulated ‘medical marihuana facilities in conjunction with the state law, MCL 333.27101 et seq. Let Lansing Vote isa ballot committe registered with the Michigan Secretary of State.' Let Lansing Vote circulated petitions secking a referendum pursuant to local ordinance to suspend operation of the ordinance until it was repealed or submitted to the voters. See Attachment C for the language of the petition? (On October 6, 2017, Let Lansing Vote submitted 6,450 signatures. As of October, 2017, there were 80,505 registered voters in the City of Lansing. See Exhibit 1, Swope letter of October 20, 2017, Five percent of that number is 4,025. Of those signatures submitted, Defendant Swope admitted that 3,899 were valid. Id, Defendant Swope listed several reasons for disqualification of signatures but he did not specify which signatures were invalid or which "state" committe sine Lansing voters alo live in Eton County 2 The number in the upper right comer was assigned by the ity Clerk and the number in the upper left comer was assigned by Let Lansing Vote 1petitions forms were invalid. Id, Because of the vagueness of the reasons for invalidation, Let Lansing Vote submitted a Freedom of Information Act Request. In a Freedom of Information ‘Act response, an Assistant City Attomey sent copies of the petitions under cover ofa letter dated October 25, 2017. In that response, a shorthand code was provided which explained why certain signatures were invalidated iff marked by the code in the margin. See Attachment B. In addition, the Assistant City Attomey explained that identified petition pages were excluded for “circulator certificate errors." Id Pursuant to the city charter, Let Lansing Vote submitted an additional 280 signatures on October 27, 2017. Exhibit 3. The total count of “approved” signatures was now admitted by Defendant to be 3,980 indicating that only 81 additional signatures had been deemed valid. Id. Signature and petition page details Elbert Burch submitted 124 signatures on October 6, 2017 that were determined by the Defendant to be valid signatures because those signatures were not marked with one of the specified rejection codes. Elbert Burch’s petition page numbers were: 784-785 and 798-821 (Attached Exhibit 4; See O'Boyle letter of Oct 25, 2017, Exhibit 2). Upon inquiry on October 27, 2017, Chief Deputy City Clerk Brian Jackson stated that signatures determined to be valid on Mr. Burch’s petition forms would not be counted because he did not fill in the space labeled “County of Registration, ifregistered to vote, of a Circulator who is not a Resident of Michigan.” (Exhibit 2, OBoyle letter; Exhibit , Affidavit of Osmar). On October 26, 2017, Let Lansing ‘Vote submitted an affidavit from Mr. Burch confirming that he was not registered to vote in any county. See Exhibit 42 » The affidavit was submitted before the conversation with Mr. Jackson based on a guess by 2Vince Ivory submitted 226 signatures that were determined by the Defendant to be signatures because those signatures were not marked with one of the specific rejection codes. Vince Ivory's petition page numbers were: 670-699, 735-738, 760-781, 818-819. See Exhibit 6. (On October 27, 2017, Mr. Jackson told Let Lansing Vote thatthe valid signatures submitted by Ivory were not counted in the approved total due to Mr, Ivory stating he was registered to vote in "St. Louis City" as his county of registration. (Exhibit 5, Osmar affidavit). “St Louis City” is the proper designation of the County where Vince Ivory is registered to vote. In 1876, the City of St. Louis seceded from the County of St. Louis and became an independent city.* In certain states, some jurisdictions are not in any County but are treated as counties. St. Louis City is one of these jurisdictions therefore the entry was proper, and these signatures should be counted in the total. See St. Louis City Charter at Exhibit 7, Also on October 26, 2017, Let Lansing Vote submitted a formal challenge to the petition review specifically explaining how Defendant incorrectly disqualified the entire petition pages from Mr. Burch and Mr. Ivory. See Exhibit 8, Defendant responded by saying “Furthermore, there is nothing in the City Charter that would provide for the reconsideration of a signature or citculator certificate determination.” (See Swope letter of October 31, 2017 Ex 4). Plaintiff as to why Burch’s petition pages were rejected. * ‘This fact is subject to judicial notice. See Missouri Constitution of 1875, Art. 19, § 20 which contained a provision allowing the separation ofthe City and County of St. Louis. See also 1915 Charter of the City of St. Louis, Missouri, with the Scheme of Separation between County of St. Louis and City of St. Louis, Wilson Printing Company, 1915. While the most convenient sources ate internet sources, Plaintiff does not rely on them exclusively. A convenient source is found at ‘htps:/foabel.hathitrustorg/egi/pt?id=nyp.33433014084077;view=lup;seq=13. 3LAW/ARGUMENT 1 Standards Pursuant to MCR 3.305(C), the only requirement for an order to show cause is a showing, ‘of necessity for immediate action. Plaintiff asserts that this is not the same burden as the showing necessary to obtain the writ. This showing is limited to the necessity for immediate action. AS \with all ballot or election questions, time is always of the essence. In this instance, the state law and the challenged ordinance became operational on January 1, 2018. Applications for licenses ‘were submitted in the middle of December 2017 and there is an extreme amount of uncertainty at present as to how the market will respond to the new limitations, whether an adequate supply ‘be available for those in need, and whether entrepreneurs should invest in the licensing scheme. Plaintiff is asking for the show cause order to require Defendant to justify his invalidation of presumptively valid signatures on the same date and time as the Defendant's Motion hearing which is January 17, 2018 at 2:00 p.m. Before a show cause order may issue, there must be “a sufficient foundation of competent evidence, and legitimate inferences therefrom.” In re Contempt of Caleutt, 184 Mich App 749, 757; 458 NW2d 919 (1990) An affidavit attached to an ex parte motion for an order to show ‘cause must meet the requirements of MCR 2.119(B). It must be made on personal knowledge, state with specificity admissible facts establishing the grounds stated in the motion, and show affirmatively that the affiant, if sworn as @ witness, can testify about the facts stated in the affidavit. Although an affidavit must be verified by a person with personal knowledge of the » Caleutt was a contempt action but Plaintiff asserts that the requirement to obtain the order should be the same. 4facts, the court may rely on reasonable inferences drawn from the facts stated. Michigan ex ret Wayne Prosecutor v Powers, 97 Mich App 166, 168; 293 NW2d 752 (1980). Plaintiff asserts thatthe attached correspondence from the Defendant, the affidavits from Mr. Burch and Mr. Osmar, the documentation of the status of the St. Louis City, and the attached petition pages combine ~ along with reasonable inferences — to provide the competent evidence required for an order to show cause, Tl, Presently available evidence. ‘The first piece of competent evidence is Defendant's admission as to the number of required signatures. The rational inference is that 4,025 signatures are needed based upon the ‘mathematical calculation of 5% of 80,503 registered voters. The second piece of competent ‘evidence is Defendants admission that as of the first set of petition pages, 3,899 valid signatures existed, See Exhibit 1, Defendant’ letter of October 20, 2017. ‘The third pieve of competent evidence isthe City Attorney's Freedom of Information Act response which identifies how invalidated signatures are marked. The same response also identifies entte petition pages which were determined to be invalid due to "circulator certificate errors." The reasonable inferences from this evidence allows a conclusion that signatures with no ‘markings in the margin were valid (along with the common-law presumption that they are valid) «and the ability to match up the allegedly invalid petition pages with either Mr. Burch or Mr. Ivory. See Exhibit 2, City Attomey’s FOIA response of October 25, 2017. ‘The fourth piece of evidence is Defendant's response of October 31, 2017 in which he admits 3,980 valid signatures. See Exhibit 3, Defendant's letter of October 31, 2017. The fifth piece of evidence is the Burch petition pages (Exhibit 4) and sixth piece of evidence includes theaffidavit of Burch along with the second affidavit of Mr. Osmar (Exhibit 4). The inference that flows from these two pieces of evidence allows a factfinder to conclude that Page 784 contained 5 valid signatures; Page 785 contained 4 valid signatures; Page 798 contained 6 valid signatures; Page 799 contained 5 valid signatures; Page 800 contained 6 valid signatures; Page 801 contained 7 valid signatures Page 802 contained 8 valid signatures; Page 803 contained 7 valid signatures Page 804 contained 8 valid signatures for a total of 56 valid signatures on these nine pages alone. This alone satisfies the missing 45 signatures as claimed by Defendant. ‘The seventh piece of evidence is the Ivory petition pages at Exhibit 6. The cighth piece of evidence is the Charter of the City of St. Louis of 1915 with references to the Missouri Constitution of 1875, Art. 19, §20, The Charter and the Missouri Constitution are subject to judicial notice pursuant to MRE 202. The Charter may also be subject to judicial notice pursuant t0 MRE 201(b)(2). The Charter and the Missouri Constitution would not be considered hearsay ‘pursuant to MRE 803 (8) and/or (16). The inference that flows from these two pieces of evidence allows a factfinder to conclude that: Page 673 contained 4 valid signatures; Page 674 contained 5 valid signatures; Page 675 contained 6 valid signatures;Page 676 contained 5 valid signatures; Page 678 contained 4 valid signatures; Page 679 contained 4 valid signatures Page 680 contained 5 valid signatures; Page 682 contained 7 valid signatures; Page 684 contained 6 valid signatures; Page 685 contained 7 valid signatures for a total of 53 valid signatures on these ten pages ‘alone. This alone satisfies the missing 45 signatures as claimed by Defendant. IIL. Application of the law to the evidence and inferences. ‘Signatures appearing on petitions filed with the Secretary of State for initiative and referendum are presumed valid, and the burden is on the protestant to establish their invalidity by clear, convineing and competent evidence. Jaffee v Allen, 87 Mich App 281; 274 NW2d 38 (1978). There is no reason to apply a different rule to local petitious in light of the numerous references in state law to the local process. Inthe situation of a referendum petition directed at a statute, the filing ofthe petition suspends the statute until the petition is found to be invalid or a vote of the people occurs on it. Farm Bureau Mut Ins Co of Michigan v Commissioner of Ins, 204 Mich App 361; 514 NW2d 547 (1994), leave denied, 445 Mich 917; 519 NW2d 892 (1994). ‘The presumption of validity embodied in Michigan election law combined with the evidence and inferences above, state a claim for mandamus. The requirements of the City Charter as to Defendant's responsibility limit his ability to declare a signature invalid. Plains? thas presented competent evidence that Defendant arbitrarily rejected 79 petition pages with valid signatures. The City Charter does not authorize the Defendant to disregard valid signatures.TV. Limitations on the exercise of discretion. AL State law. MCL 117.4j(3) is @ catch-all empowerment toa city which grants it the power to exercise power in the management and administration of the municipal government. The statute requires that it be subject to the general laws of the state. MCL 117.25 is such a law and sets forth certain requirements such as: - stating the body, organization or person responsible for its circulation; - requiring that each sheet be verified by affidavit by the circulator; - requiring at least 5% of the registered electors of the municipality; - requiring each signer to write the date of signing and his/her street address; ~allimitation of one year as to the age of each signature. MCL 117.25(1). The last sentence of subsection (1) incorporates MCL 117.2Sa which incorporates MCL 168.488. This may create some ambiguity because MCL 117.4] is notin the list of sections to which it applies. MCL 168.488(2) then makes MCL 168.482(1), (4), (5) and (6) applicable to petitions which seek to place a question on the ballot before the electorate under a statute that refers tothe section and to the circulation and signing of the petition, Those provisions required: = MCL 168.482(1) —the size of a petition. = MCL 168.482(4) — the introductory language for the signatures. = MCL 168.482(5)— the language of a waning about certain signature violations. - MCL 168.482(6) — the mandated format for the remainder of the petition after the ‘warning to electors as stated in MCL 168.544e(1) and (2),= MCL 168.5440(1) ~ sets the requirements for information on each line for a signature and the circulator’ certificate = MCL 168.54c(2)— sets the requirements for a circulator’ information on the petition sheet. This provision only allows the filing official to discount the petition if the circulator does not provide a signature, street address and the date of signing. Failure to include the county of registration to vote or leaving it blank does not allow the signature ofthe circulator to be considered invalid. 1d. Retuming to MCL 117.25, subsection (7) specifically authorizes a mandamus action by a person agerieved by an action or failure of action of the city clerk regarding this type of petition, In this case, the failure of action is to count presumptively valid and actually valid signatures. Defendant's assertion that the Charter does not allow for a challenge is unavailing. This provision of state law cannot be avoided by Defendant, B. City Charter. ‘The Lansing City Charteris the next source of limitations on the discretion of the Defendant. The pertinent provisions are: - a requirement of 5% of the electors registered in the City. 2-403.1 ~ arequitement that the measure to be initiated or referred be set forth in full. 2-403.2. 1 requirement that signors be registered electors, an indelible signature, the signer’s residence, and the date of signing. 2-403.3, 4 requirement that the circulator provide a sworn affidavit stating that each signature is ‘genuine signature of a registered elector and that it was affixed in the presence of the circulator. Iaa time limit of 90 days for the date of the signature, 2.403.4. ‘The Charter does not allow the Defendant to concem himself with the county where the circulator is registered to vote. Even though the "discretion exercised here isin the executive branch, an explanation of proper judicial discretion is still helpful. Discretion “in the trial court is nota private, arbitrary or personal, but a legal, discretion to be exercised according to established and well-known principles of law.” People v Gage, 188 Mich 635, 642; 155 NW 464 (1915). The discretion is not unlimited and the Supreme Court has given the following guidance: “When {discretion is] invoked as a guide to judicial action it means a sound discretion, that isto say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by reason and conscience of the judge to a just result.” Langnes v Green, 282 US 531, 541; 51 SCt 243, 247; 75 LEd 520 (1931); Poet v Traverse City Osteopathic Hosp, 433 Mich 228; 445 NW2d 115 (1989). In the instant case, the review of submitted petitions — legally ~ begins with the ‘presumption that the submitted signatures are valid. The reviewer's discretion is then constrained ‘by the principles of law set forth above in the state law and charter. There is simply no authority to identify additional requirements to impose on a petition, a signature, ora circulator. Imposing such requirements is not only arbitrary, it is ulira vires. The Michigan Court of Appeals has held that granting unfettered discretion to those empowered to enforce an ordinance can render the ordinance unconstitutional on vagueness grounds. Plymouth Charter Twp v Hancock, 236 Mich. App 197, 199-200; 600 NW2d 380 (1999). Plaintiff asserts that there is no reason to treat a charter provision differently than an ordinance. 10The culmination of the legal presumption of validity and the limitations embodied in the state law and charter produce a situation where the process is actually ministerial, not discretionary. Defendant cannot avoid his duty by claiming that since he is tasked with comparing the signatures to the voter role that he is therefore performing a discretionary function and his decision is beyond review. Once the Plaintiff submits at least 4,025 valid signatures, the submission by the Defendant ofthe petition to City Council is mandatory and therefore isterial. Defendant's decisions as to which signatures are valid is not his personal discretion but dictated by the limitations in the state law and charter. In Wilcoxon v City of Detroit Election Commission, 301 Mich App 619; 838 NW2d 183 (2013), the Court of Appeals explained that the ministerial act of placing a name on the ballot was a proper subject for mandamus. The Court of Appeals upheld the trial cour’ independent determination of valid signatures in the context of ‘a mandamus action where the Cit Clerk had improperly invalidated signatures. While Wilcoxon was a nominating petition issue, only the administrative review process is different. Wilcoxon is instructive because it highlights the legal premise that the exclusion of a signature, petition, or circulator verification isan exercise in judgment premised in the applicable statutes and not a private, arbitrary discretion. It also makes it clear that judicial review and determination as a fact-finder is appropriate and contemplated by the legislative scheme. ‘The Defendant may claim that the Charter does not authorize a correction of his mistake in striking entire pages due to alleged “circulator certificate errors.” Defendant’ position would imply that the clerk could deliberately make errors on his first count, but that thereafter there is ‘no way to correct those errors. Warda v City Council of City of Flushing, 472 Mich 326; 696 NW2d 671 (2005) provides a clear path for judicial review of the Defendant's decision. uIn Warda, the city council declined to reimburse a police officer for legal fees in defending a criminal charge which he claimed was related to his work for the city as a vehicle inspector. The statute which authorized reimbursement, MCT. 691.1408(2), was permissive and granted discretion to the council as to whether reimbursement should occur. The Michigan Supreme Court held thatthe council's decision was not subject to judicial review for two reasons. First, the statute provided no limits upon the city council's decisioa and no guidance by which an appellate court would review the decision, Inthe instant ease, both of these situations are in fact provided. The state law and the charter identify the requirements of a valid signature and a valid petition. The statute expressly allows judicial review and identifies the contemplated procedure. ‘That procedure, mandamus, has both common-law and rule based guideposts. V. Constitutional implications of arbitrary governmental conduct. Ina broad and general sense, the United States Supreme Court has emphasized that “(t]he touchstone of due process is protection of the individual against arbitrary action of government,” Wolff v McDonnell, 418 US 539, 558; 94 SCt 2963, 2976; 41 LEd2d 935 (1974). Warda also held that even where a discretionary decision is not statutorily reviewable, judicial review is available when a plainti ‘asserts a violation of the state or federal constitutions. “[I]he power of Judicial review does not extend only to invalidating unconstitutional statutes or other legislative ‘enactments, but also to declaring other governmental action invalid if it violates the state or federal constitution.” Sharp v City of Lansing, 464 Mich 792, 810-811; 629 NW2d 873 (2001). In Sharp, the Supreme Court held that a reverse discrimination claim could not be reviewed because the decision had been made pursuant to a plan approved by the Civil Rights ‘Commission. The plan, however, was subject to review under a declaratory or injunctive claim 12as to whether the plan violated the Equal Protection Clause. Regaidless ofthe legitimacy of the state law and the charter provisions, Plaintiff'is permitted to challenge the application of those provisions to Defendant's conduct toward its petitions. Sharp, at 812, In this particular case, Defendant's failure to specifically identify not only why but under ‘what authority he did not count the petition sheets of Mr, Ivory and Mr. Burch creates the necessity for immediate action via an order to show cause. Warda provided situations which may exist that allow judicial review of truly diseretionary executive actions. These include decisions ‘based upon improper classifications which violate equal protection or public policy and decisions influenced by corruption. Warda, supra, at 335, citing Huse v East China Twp Bd, 330 Mich. 465, 470-471; 47 NW2d 696 (1951). CONCLUSION Defendant admits that 3,980 valid signatures were provided. Within this motion and contained within the attachments is proof that accepting even a small fraction ofthe Ivory or Burch petitions provides the additional 45 signatures needed ‘The common-law establishes that signatures are presumed valid, Defendant has excluded entire pages based on claimed circulator errors for which no authority exists to support his action, The competent evidence attached to this motion combined with reasonable inferences Provides a basis to issue an order to show cause and to grant judgment to Plaintiff. The Burch petition pages (Exhibit 4) and the affidavits at Exhibit 4 demonstrate that Defendant's decision ‘was arbitrary. The petition pages at Exhibit 4 establish that Mr. Burch submitted 124 valid signatures. ‘The Ivory petitions (Exhibit 6) and the documentation of the status of St. Louis City as an independent city at Exhibit 7 establishes that Defendant's decision was arbitrary. The petition 13pages at Exhibit 6 establish that Mr. Ivory submitted 226 valid signatures. When combined with Defendant's admission that 3,980 signatures were submitted, the set of petition pages from either ‘Mr. Ivory or Mr. Burch provide the required number of valid signatures and the Defendant's obligation is triggered. RELIEF REQUESTED WHEREFORE, Plaintiff respectfully requests this Honorable Court issue its motion for an order to show cause and require the Defendant City Clerk to establish a valid ground for rejecting all presumptively valid petition signatures. 432018 Date ‘Nicholas Bostic P40653 /sttomey for Plaintiff CERTIFICATE OF SERVICE 1, J. Nicholas Bostic, certify that, on January 3, 2018, I served Plaintiff's Motion for Order to Show Cause on F. Joseph Abood Attomey for Defendant, by first class mail by placing samme in a postal receptacle at Lansing Michigan with postage affixed and electronically. 1 declare that the above statement is true to the best of my information, knowledge and belief. Dated: January 3, 2018 909 N. Washington Ave. Lansing, MI 48906 517-706-0132