Local Government Law Bulletin March 24, 2016 Mark E. Nettleton

The State House Passes “Fix” to the Local Ballot Proposal “Gag Order” Statute Enjoined by Federal Judge

A federal judge recently issued an injunction on the implementation and enforcement of certain provisions of Act 269 of the Public Acts of Michigan of 2015 (“Act 269”), the so-called “Gag Order” legislation. On Friday, February 5, 2016, Honorable John Corbett O’Meara, U.S. District Court for the Eastern District of Michigan, issued an injunction enjoining the State of Michigan from enforcing the provisions of Section 57 of Act 269, which prohibited a public body, or a person acting for a public body, from using “public funds or resources” for a “communication” that “references a local ballot question” and is “targeted to the relevant electorate where the local ballot question appears on the ballot” during the 60 days prior to the election on that ballot proposal.

With an upcoming special election on May 3, and the August primary and November general elections following, the injunction is an important decision for local governments. As a result of the injunction, local governments may spend public funds to prepare and disseminate to voters objectively worded fact statements on local ballot proposals any time prior to an election. Local governments are still prohibited from expending public funds to expressly advocate for or against local ballot proposals.

In issuing the injunction, the Court noted that local governments and voters are disadvantaged with respect to obtaining factual information on local ballot proposals and that the language of Act 269 imposing the “gag order” is likely “unconstitutionally vague,” especially since violations of Section 57 by a public official could result in a criminal misdemeanor charge.

The lawsuit to enjoin Section 57 was brought by 19 plaintiffs from around the State and included elected city and county officials, school board presidents and district superintendents, and appointed city managers. One private citizen also joined the lawsuit. In their complaint filed with the federal court, the plaintiffs alleged that Section 57 violated their first amendment right to freedom of speech and their fifth and fourteenth amendment rights to due process of law because the language of Section 57 was too vague; local officials could not possibly know from the language of the statute what communications would be permitted under the law and what language could potentially subject them to a criminal misdemeanor charge.

In granting the requested injunction, Judge O’Meara focused on the likelihood that the language of Section 57(3) would be deemed “unconstitutionally vague” as local officials would not know, under the provisions of Section 57(3), what conduct or communication was permitted. Judge O’Meara wrote that “public officials deserve clarity on this issue so that they may serve the public in the normal course without fear of arbitrary sanction or prosecution.”

There are several proposals pending in the Legislature to either clarify the meaning of what is permitted and prohibited by Act 269 or to repeal the “gag order” provision altogether. Most recently, the State House passed HB 5219 to clarify the provisions of Section 57. HB 5219 has been sent to the State Senate for consideration.

Under HB 5219, Section 57(3) of the Michigan Campaign Finance Act would be amended to permit a local government to use public funds or resources for radio or television advertisements, mass mailings or prerecorded telephone messages concerning a local ballot proposal, so long as the communication on the ballot proposal was “factual and neutral” and related to the “purpose or direct impact of a local ballot question.” If, however, the communication could be “reasonably interpreted as an attempt to influence the outcome of a local ballot question,” the communication would not comply with Section 57(3) and would constitute an impermissible expenditure of local funds. The bill would also permit a local government to expend funds simply to disseminate the text of the ballot proposal and inform voters of the date of the election at which the ballot proposal will be considered.

HB 5219 would also eliminate the criminal misdemeanor provisions. Under HB 5219, violation of Section 57(3) would subject an individual to a civil fine of not more than $1,000 and local governments would be fined up to $20,000 or the amount of the improper expenditure, whichever is greater.

While HB 5219 is an improvement on Section 57(3) in Act 269 due in part to the elimination of the 60-day limitation on any communication concerning a local ballot proposal and removal of the criminal penalty provision, the revised language is still unclear. Under the Michigan Campaign Finance Act, the Secretary of State’s office is required to determine whether there has been a violation of the statute. Opponents of HB 5219 have argued that the meaning of the proposed language is ambiguous and subject to interpretation and will likely result in more complaints being filed with the Secretary of State alleging local governments and officials have violated Section 57(3). The Secretary of State’s office will need to determine whether the local government’s communication on the ballot proposal can be “reasonably interpreted as an attempt to influence the outcome of a local ballot question,” or whether the communication is “factual and neutral information.” This language itself may similarly be determined to be “unconstitutionally vague.”

As a result of the injunction by the federal judge, local governments may use public funds to communicate factual and objective information to local voters on a ballot proposal, notwithstanding the adoption of Act 269. In the interim, we will continue to monitor efforts in the Legislature to amend Act 269 and proceedings in federal court with respect to the injunction.

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