MIGOP v. Benson
MIGOP v. Benson
MIGOP v. Benson
JOCELYN BENSON,
Defendant.
determine a briefing schedule for a Rule 12 motion to dismiss Plaintiffs’ complaint. The basis of
In the four counts of the complaint, Plaintiffs Ronald Weiser and the Michigan
Republican Party allege that a long-standing rule regarding the Michigan Campaign Finance Act
(MCFA) violates—both on its face and as-applied—free speech rights under the First
Amendment and Equal Protection guarantees under the Fourteenth Amendment. Since 1983, the
Department of State has interpreted MCFA such that an office holder may receive contributions
in excess of the limits provided by the Act if the officeholder’s recall is “actively being sought.”
The reasoning for this conclusion was that proponents of a recall are required to form a political
committee, but contributions to such committees were not subject to limitations under the
MCFA. As a result, if office holders subject to recall were held to MCFA contribution limits
while recall proponents were not, the office holders would be at a significant disadvantage. Such
office holders would be limited in their ability to raise money to defend themselves, while those
Plaintiffs’ complaint challenges this decades-old construction, arguing that the “recall
Gretchen Whitmer, who has been the subject of at least 7 recall attempts since June of 2020.
Each of Plaintiffs’ four counts is premised upon the argument that the “recall exception” allows
while any challengers to the incumbent are subject to MCFA contribution limits. This argument,
Plaintiffs err in asserting that the Governor is permitted to keep or use any excess
contributions for her re-election effort. The Department has instead interpreted the MCFA to
require that any contributions collected by an office holder in excess of MCFA limits for
purposes of opposing a recall must be returned or disgorged (for example, donated to a party or
charity) if a recall election is not called. Simply put, office holders do not get to keep or use that
There is also no as-applied advantage for Governor Whitmer against any potential
Republican opponents for the November 2022 election. MCL 168.951(1) provides, in pertinent
part, that a recall petition shall not be filed against the governor during the last year of the
governor’s term of office. The Governor’s term ends at noon on January 1, 2023. MCL 168.63.
Any recall petition, then, must be filed by 11:59 a.m. on January 1, 2022. And, even if there
were an eleventh-hour recall petition filed against the Governor, and if even that recall petition
succeeded in gathering sufficient signatures, the latest possible date for a special recall election
on the basis of that petition would be the August 2022 primary—which would be the same
election in which a Republican nominee to challenge Governor Whitmer in the general election
would be chosen. MCL 168.963(4). And the Governor would still have to promptly return or
disgorge any unspent contributions in excess of MCFA limits after the recall election. The
Governor could not, then, use any unspent “recall exception” funds to support her re-election
against the Republican challenger in the 2022 general election. There is no fundraising
Further, there is a significant likelihood that Plaintiff’s claims will be moot by the time
the Court rules on the contemplated motion. As of this date, none of the recall petitions that have
been approved have returned valid signatures within the required 180 days, and no new recall
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petitions have been approved since September of 2020. If there are no additional recall petitions
filed by January 1, 2022, any possible recall effort will necessarily be considered “concluded”
because no new petitions could be filed. The Governor would be required to disgorge any
contributions received in excess of the MCFA limits at that time—months before even the April
19, 2022 deadline for Republican gubernatorial candidates to file their nominating petitions.
Finally, this Court should abstain from exercising jurisdiction over Plaintiffs’ claims
under the Burford doctrine, which provides that where timely and adequate state-court review is
available, a federal court sitting in equity must decline to interfere with the proceedings or orders
of state administrative agencies: (1) when there are difficult questions of state law bearing on
policy problems of substantial public import whose importance transcends the result in the case
then at bar; or (2) where the exercise of federal review of the question in a case and in similar
cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of
substantial public concern.. New Orleans Pub. Serv. Inc. v. New Orleans, 491 U.S. 350, 361
(1989). To justify abstention there must be (1) “a complex state regulatory scheme [present]
which would be disrupted by federal court review” because the state has an overriding interest in
the subject matter involved and (2) “a state-created forum with specialized competence in the
particular area” because the federal court would be ill-equipped to review state rules and
regulations which have an entirely local effect. Ada-Cascade Watch Co. v. Cascade Resource
Recovery, Inc., 720 F.2d 897, 903 (6th Cir. 1983). Here, there is already an administrative
complaint raising the same important issues of state law about the recall exception and its
December 16, 2021. Plaintiffs’ complaint in this case seeks only equitable relief, not damages.
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For these reasons, Defendant Secretary of State Jocelyn Benson requests the Court
schedule a pre-motion conference so that a motion to dismiss may be filed and decided in this
Respectfully submitted,
DANA NESSEL
Attorney General
s/Erik A. Grill
Erik A. Grill (P64713)
Heather S. Meingast (P55439)
Assistant Attorneys General
Attorneys for Defendant
P.O. Box 30736
Lansing, Michigan 48909
517.335.7659
Dated: October 13, 2021 Email: [email protected]
CERTIFICATE OF SERVICE
I hereby certify that on October 13, 2021, I electronically filed the foregoing paper with
the Clerk of the Court using the ECF system which will send notification of such filing of the
foregoing document as well as via US Mail to all non-ECF participants.
s/Erik A. Grill
Erik A. Grill (P64713)
P.O. Box 30736
Lansing, Michigan 48909
517.335.7659
Email: [email protected]
P64713