Local officials sue Michigan over ballot info law

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — A group of 18 elected and appointed local officials on Tuesday sued Michigan in federal court, alleging that a new state law violates their constitutional right to freely discuss local ballot proposals.

The law, approved in December after last-minute revisions in the House, prohibits public bodies from using taxpayer resources to refer to a local ballot proposal by mail, prerecorded phone call, radio or television advertisement within 60 days of the election.

Legislators who supported the new law said it was designed to prohibit local governments from using taxpayer dollars to advocate for ballot proposals to raise taxes.

But the law violates the First Amendment to the U.S. Constitution by banning “the free flow of objectively neutral, core political speech,” according to a complaint filed in U.S. Eastern District Court in Detroit.

The suit also contends the law violates the 14th Amendment, which guarantees the right to due process, by subjecting public officials to criminal prosecution without providing adequate notice or guidance about what amounts to a violation.

“As a result, it chills speech altogether,” said Scott Eldrige, an attorney with Miller, Canfield, Paddock and Stone who is representing the plaintiffs.

But a spokesman for House Speaker Kevin Cotter, R-Mount Pleasant, called the lawsuit “silly.”

“The administrators still have their 1st Amendment rights; they just can’t take money out of the classroom or township treasury to buy themselves a campaign commercial,” Cotter spokesman Gideon D’Assandro said Tuesday. “They have always been allowed to voice their own opinion on their own time and using their own money.”

Prior to the law signed by Gov. Rick Snyder earlier this month, state law already prohibited express advocacy for ballot measures, and officials say the new law goes too far by restricting their ability to discuss ballot issues of any kind, including school millage renewals, city charter amendments and more.

“It is an overly broad statute as written,” Eldrige said. “There’s no compelling state interest in completely prohibiting communicating objective, neutral information to constituents. And even if there were a compelling state interest that could be articulated by proponents of this statute, it’s certainly not narrowly tailored.”

Officials who knowingly break the law are guilty of a misdemeanor and can be punished by up to 90 days in jail and/or a fine of up to $1,000. A local government, as opposed to an individual, could face a fine of up to $10,000.

Metro Detroit plaintiffs in the case include Warren Consolidated Schools Superintendent Robert Livernois, Roseville Mayor Robert Taylor and Waterford Superintendent Keith Wunderlich. The Secretary of State and State of Michigan are named defendants.

Fred Woodhams, a spokesman for the Michigan Secretary of State’s Office, said the department had not yet been served the complaint and declined comment.

Local officials have pushed back against the statutory language since it was first inserted to a heavily changed bill that sped through the House and Senate. When he signed the bill, Snyder asked the Legislature to clarify the language that had raised concerns.

Separate bills introduced this month in the House and Senate would either change or repeal the law. Officials said Tuesday they could not wait for legislative action because the law is already restricting their ability to share information about local proposals set to appear on the March 8 ballot.

The complaint requests an injunction to block enforcement of the law.

“This law was created by the Legislature in the dark hours of the night, and this kind of last-minute, knee-jerk policy making is exactly what continues to plague our great state,” Livernois said. “In this particular case, that law resulted in the trampling — and I mean trampling — of our constitutional rights.”