MIGOP v. Benson

Download as pdf or txt
Download as pdf or txt
You are on page 1of 5

Case 1:21-cv-00816-JTN-SJB ECF No. 14, PageID.

80 Filed 10/13/21 Page 1 of 5

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RONALD WEISER and MICHIGAN


REPUBLICAN PARTY, No. 1:21-cv-00816

Plaintiffs, HON. JANET T. NEFF

v MAG. SALLY J. BERENS

JOCELYN BENSON,

Defendant.

Robert L. Avers (P75396) Charles R. Spies (P83260)


Attorney for Plaintiffs Attorney for Plaintiffs
350 South Main Street, Suite 300 1825 Eye Street, NW, Suite 900
Ann Arbor, Michigan 48104 Washington, DC 20006
734.623.1672 202.466.5964
[email protected] [email protected]

Heather S. Meingast (P55439) Jason Torchinsky


Erik A. Grill (P64713) Attorney for Plaintiff MRP
Assistant Attorneys General 2542 North Wakefield Street
Attorneys for Defendant Benson Arlington, VA 22207
PO Box 30736 202.302.6768
Lansing, Michigan 48909 [email protected]
517.335.7659
[email protected]
[email protected]
/

DEFENDANT SECRETARY OF STATE JOCELYN BENSON’S


PRE-MOTION CONFERENCE REQUEST

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 12, 2021 Email: [email protected]
Case 1:21-cv-00816-JTN-SJB ECF No. 14, PageID.81 Filed 10/13/21 Page 2 of 5

Defendant Secretary of State Jocelyn Benson requests a pre-motion conference to

determine a briefing schedule for a Rule 12 motion to dismiss Plaintiffs’ complaint. The basis of

the proposed motion is outlined briefly below.

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

seeking their recall would be “operating under different sets of rules.”

Plaintiffs’ complaint challenges this decades-old construction, arguing that the “recall

exception” is unconstitutional on its face and as applied to contributions collected by Governor

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

office holders—and Governor Whitmer, specifically—to gather unlimited amounts of money

while any challengers to the incumbent are subject to MCFA contribution limits. This argument,

however, is simply wrong, and fails to state a claim as a matter of law.


Case 1:21-cv-00816-JTN-SJB ECF No. 14, PageID.82 Filed 10/13/21 Page 3 of 5

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

money for their re-election.

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

advantage or resultant viewpoint discrimination, and so Plaintiffs’ claims necessarily fail.

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

2
Case 1:21-cv-00816-JTN-SJB ECF No. 14, PageID.83 Filed 10/13/21 Page 4 of 5

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

application to Governor Whitmer, and a decision by the Department is currently expected by

December 16, 2021. Plaintiffs’ complaint in this case seeks only equitable relief, not damages.

Abstention, therefore, would be appropriate.

3
Case 1:21-cv-00816-JTN-SJB ECF No. 14, PageID.84 Filed 10/13/21 Page 5 of 5

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

matter before it proceeds any further.

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

You might also like