League of Women Voters of Michigan v. Secretary of State

Order Michigan Supreme Court
Lansing, Michigan
September 11, 2020 Bridget M. McCormack,
Chief Justice
161671(76)(77)(78) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
LEAGUE OF WOMEN VOTERS OF MICHIGAN, Richard H. Bernstein
DEBORAH BUNKLEY, ELIZABETH CUSHMAN, Elizabeth T. Clement
and SUSAN SMITH, Megan K. Cavanagh,
Justices
Plaintiffs-Appellants,
v SC: 161671
COA: 353654
SECRETARY OF STATE,
Defendant-Appellee.
___________________________________________/
On order of the Court, the motion for immediate consideration and the motion to
file supplemental authority are GRANTED. The motion for reconsideration of this
Court’s July 31, 2020 order is considered, and it is DENIED, because we are not
persuaded that reconsideration of our previous order is warranted. MCR 7.311(G).
VIVIANO, J. (concurring).
Plaintiffs’ central claim in this case is that the statutory deadline requiring
absentee ballots to be received by 8:00 p.m. on election day, MCL 168.764a, is
unconstitutional under Const 1963, art 2, § 4. I voted to deny the application for leave to
appeal in this matter previously and concur in the Court’s order denying plaintiff’s
motion for reconsideration. I did so (and do so) because, while I agree the Court of
Appeals should have focused first on the Constitution’s plain language (and not the ballot
summary), no clear errors were apparent in the majority’s analysis of the constitutional
text. 1
I write separately to highlight another reason why this Court should not exercise
its discretionary power to grant the application: this lawsuit appears to be a friendly
scrimmage brought to obtain a binding result that both sides desire. Nearly from the
start, the defendant Secretary of State has agreed with plaintiffs that the deadline must be
struck down as unconstitutional. 2 In reaching a different conclusion, the Court of
1
Also important is that the ruling below did not change the status quo: the statute was
enforceable before and remains so now. Moreover, nothing precludes us from examining
its constitutionality in an appropriate future case—one without this case’s serious
problems, which I describe below.
2
The parties disagree on plaintiffs’ alternative constitutional arguments against the
statute and plaintiffs’ claims that their constitutional rights to vote and vote by absentee
2
Appeals rejected the parties’ attempt to “affect the entire state by means of an agreement
as to the proper interpretation of . . . the Constitution as will be applied generally.”
League of Women Voters of Mich, ___ Mich App ___, ___ (2020) (Docket No. 353654),
slip op at 4. Apparently disappointed by her nominal victory below, the Secretary of
State has consented to plaintiffs’ efforts to have this Court rule against her and declare
unconstitutional the statute she would normally be charged with defending. The
Secretary of State did not file a response to plaintiffs’ application for leave in this Court
but instead agreed to plaintiffs’ motion for immediate consideration. And now she has
given plaintiffs’ motion for reconsideration her blessing. Indeed, the motion purports to
speak for both sides of this conjured dispute.
This is not the way the judiciary works. In our adversary system, the parties’
competing interests lead to arguments that sharpen the issues so that courts will “not sit
as self-directed boards of legal inquiry and research . . . .” Carducci v Regan, 230 US
App DC 80, 86 (1983) (Scalia, J.); see also Fuller, The Adversary System, in Berman, ed,
Talks on American Law (New York: Vintage Books, 1971), p 35 (“[B]efore a judge can
gauge the full force of an argument, it must be presented to him with partisan zeal by one
not subject to the restraints of judicial office. The judge cannot know how strong an
argument is until he has heard it from the lips of one who has dedicated all the powers of
his mind to its formulation.”). Our role, therefore, is to act as neutral arbiters of real
disputes brought by adverse parties. Carducci, 230 US App DC at 86.
Courts cannot fulfill this role when the parties agree on the merits to such an
extent that no honest dispute exists. Cf. United States v Windsor, 570 US 744, 782
(2013) (Scalia, J., dissenting) (“We have never before agreed to speak—to ‘say what the
law is’—where there is no controversy before us.”). Such agreements among parties
have long been condemned by the United States Supreme Court:
[A]ny attempt, by a mere colorable dispute, to obtain the opinion of the
court upon a question of law which a party desires to know for his own
interest or his own purposes, when there is no real and substantial
controversy between those who appear as adverse parties to the suit, is an
abuse which courts of justice have always reprehended, and treated as a
punishable contempt of court. [Lord v Veazie, 49 US (8 How) 251, 255
(1850).]
This is particularly true when the constitutional validity of a statute is at stake:
Whenever, in pursuance of an honest and actual antagonistic assertion of
rights by one individual against another, there is presented a question
involving the validity of any act of any legislature, State or Federal, and the
ballot are violated by local clerks who fail to immediately process absentee-ballot
applications and by requiring absentee voters to pay postage to mail the ballots.
3
decision necessarily rests on the competency of the legislature to so enact,
the court must . . . determine whether the act be constitutional or not; but
such an exercise of power is the ultimate and supreme function of courts. It
is legitimate only in the last resort, and as a necessity in the determination
of real, earnest and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the legislature
could transfer to the courts an inquiry as to the constitutionality of the
legislative act. [Chicago & Grand Trunk R Co v Wellman, 143 US 339,
345 (1892).]
The Supreme Court has accordingly declared that no controversy exists to
adjudicate when both sides seek the same result. See Moore v Charlotte-Mecklenburg Bd
of Ed, 402 US 47, 47-48 (1971) (dismissing case when both sides argued that a law was
constitutional and should be upheld). And the Court has dismissed individual claims and
vacated judgments on such claims when no controversy existed as to those claims, even
in situations like the present case, where the parties have adequately disputed other
issues. See Webster v Reproductive Health Servs, 492 US 490, 512-513 (1989)
(dismissing one of several claims because no controversy existed regarding it when
appellees abandoned their argument); Williams v Zbaraz, 448 US 358, 367 (1980)
(vacating the portion of a judgment regarding a constitutional claim that the district court
had no jurisdiction to decide because of the lack of adverse contentions and controversy,
but reaching other issues in the case).
We have likewise endorsed the proposition that the parties’ “controversy must be
real and not pro forma . . . . Courts cannot be used for the purpose of deciding even real
questions in pro forma suits,” or else “the most complicated and difficult questions of
law, and the constitutionality of statutes might be settled by the court upon such pro
forma proceedings, when no real controversy or adverse interests exist, and no proper
examination of the important questions is made by counsel or the court.” Anway v Grand
Rapids R Co, 211 Mich 592, 612 (1920) (quotation marks and citation omitted).
Accordingly, we are “limited to determining rights of persons or of property, which are
actually controverted in the particular case before” us. Id. at 615 (quotation marks and
citation omitted; emphasis added). “The judicial power . . . is the right to determine
actual controversies arising between adverse litigants . . . .” Id. at 616 (quotation marks
and citation omitted; emphasis added). Thus, for example, to obtain a declaratory
judgment on the constitutionality of a statute—which is essentially what plaintiffs seek
here—the parties must have “adverse interests” forming an actual controversy. See
Assoc Builders & Contractors v Dir of Consumer & Indus Servs, 472 Mich 117, 126
(2005), overruled on other grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487
Mich 349, 372 n 20 (2010).
We do not, therefore, simply scan the horizon for important legal issues to opine
on—we address such issues only as they arise in the genuine controversies between
adverse parties that come before us. On the central legal issue in this case, the parties are
companions, not opponents. At best, this cooperation deprives courts of the adversarial
4
back-and-forth required to fully and fairly decide legal issues big and small. At worst,
the agreement might undermine the courts’ power to hear the constitutional challenge. In
an appropriate future case, the Court may need to consider whether these types of
friendly lawsuits or claims must be dismissed for lack of jurisdiction. But we need not
decide that issue here. Instead, it is sufficient to note that these concerns provide
additional justification for our decision to deny leave in this case and reject the present
motion for reconsideration.
These concerns flow from the executive branch’s refusal to defend a statute.
Executive nondefense of legislation presents problems that stretch beyond the legal
points mentioned above. See Meltzer, Executive Defense of Congressional Acts, 61 Duke
L J 1183, 1186-1187 (2012) (advocating the traditional practice of executive defense of
statutes for a host of reasons: the difference between the legislative and executive
branches, “institutional continuity within the executive branch,” and the likelihood that
normalizing such nondefense will cause it to become pervasive and further erode
perceptions of judicial restraint due to political polarization and the “temptation to equate
what is misguided or immoral with what is unconstitutional”). At the very least, courts
should be wary of encouraging this practice without having structures in place to
accommodate the dislocations it causes in what should be adversarial litigation. Cf.
Shaw, Constitutional Nondefense in the States, 114 Colum L Rev 213, 247-256 (2014)
(noting various options adopted by other jurisdictions, such as enacting statutes that
require the executive to notify the legislature when it intends not to defend a law,
providing for legislative standing, or selecting an alternative executive branch actor (such
as the governor) or outside counsel to defend the statute).
Michigan lacks most such tools. The Attorney General does have the statutory
authority to intervene to protect any right or interest of the state. See MCL 14.101; MCL
14.28. But the Attorney General represents the Secretary of State here, and she did not
attempt to intervene in opposition to her client. Defending both sides of an actual case
might raise ethical concerns. See Attorney General v Pub Serv Comm, 243 Mich App
487, 518 (2000) (holding that “pursuant to the rules of professional conduct, if the
Attorney General chooses to stand in opposition to a state agency or department as an
actual party litigant and yet simultaneously attempts to represent that state agency in the
litigation, such dual representation creates a conflict of interest that must be addressed
and rectified”) (emphasis omitted); but see League of Women Voters of Mich v Secretary
of State, __Mich App__, ___ (2020) (Docket Nos. 350938 and 351073); slip op at 4 n 1
(BOONSTRA, J., concurring in part and dissenting in part) (noting the Legislature’s
contention that the Attorney General historically set up conflict walls when arguing both
sides of a case). Even so, we have no history of forcing the Attorney General to argue
both sides in an actual case when she has already staked out a position. In her dissent, the
Chief Justice cites two orders in which we directed the Attorney General to brief the
opposing positions, but both orders involved requests for advisory opinions. See post at
2, citing In re House of Representatives Request for Advisory Opinion Regarding
Constitutionality of 2018 PA 368 & 369, 924 NW2d 882 (2019), and In re Request for
Advisory Opinion Regarding Constitutionality of 2005 PA 71, 474 Mich 1230 (2006). By
5
definition, they involve no case or controversy or even any parties; we can hear these
matters only because the Constitution explicitly allows it. Const 1963, art 3, § 8. 3
The Chief Justice also suggests that, like the United States Supreme Court, we
could begin appointing amici curiae to file briefs defending the constitutionality of
undefended statutes. It is not clear to me, however, that the Supreme Court has ever
employed amici in a case like the present one, where the parties have agreed on the
merits almost from the beginning. Rather, these appointments appear to occur when the
government confesses error or changes its view before the Supreme Court, when the
Court of Appeals below or the Supreme Court raises an issue sua sponte, or when the
respondent fails to appear before the Supreme Court. See Note, Should the Supreme
Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan
L Rev 907, 920-939 (2011).
In my view, this proposed solution places courts well outside their lane as passive
tribunals. It departs from the principle that parties, and not the courts, choose the issues
to be resolved. Id. at 943-944. It further risks tarnishing the courts’ neutrality by forcing
judges to decide which cases merit an amicus and which do not. The United States
Supreme Court’s practice sheds little light on this point. For example, in roughly the last
quarter of the twentieth century, when the government confessed error, the Supreme
Court sometimes denied certiorari, sometimes vacated the decision below and remanded,
and sometimes appointed amici. Id. at 948. No official or discernable principles govern
why some cases get singled out for appointment of amici and others do not. Cf. Shaw,
Friends of the Court: Evaluating the Supreme Court’s Amicus Invitations, 101 Cornell L
Rev 1533, 1535 (2016) (“The Court keeps no official records of such invitations, and its
rules do not reference them. Similarly, there is no official guidance on when the Court
will invite such an amicus, whom it will invite, how it makes its selections, or the precise
nature of the amicus’s mandate.”) (citations omitted). And, as a practical matter, who
will pay for the added cost of court-appointed amici? Even if these concerns could be
waved aside, appointing an amicus at the appellate level will do nothing to develop the
factual record in the trial court if, as here, the parties were never adverse regarding the
issue at stake. See Executive Defense, 61 Duke L J at 1210 (“In many cases . . . a court’s
judgment about constitutionality might depend on the evidentiary record assembled in the
district court concerning the strength or weakness of the asserted government interests.”).
Thus, the problems presented by executive nondefense of a statute would only be
exacerbated if the Court appointed amici to create the semblance of an adversary
proceeding where one never existed.
We should think long and hard before we go out of our way to adopt any
3
A majority of this Court has recently directed the Attorney General to argue both sides
of a question when the Attorney General changed her view of the proper interpretation of
a statute before our Court. See Maples v Michigan, ___ Mich ___ (2020) (Docket No.
160740).
6
unprecedented measures to facilitate executive nondefense of statutes. I fear that the
pervasiveness of this practice poses serious dangers to our system of government, and our
accommodation of it will only exacerbate these dangers. Courts require real disputes,
and thus the better course from our vantage is for the executive branch to enforce and
defend statutes—even when it disagrees with them or thinks they are unconstitutional.
Cf. Executive Defense, 61 Duke L J at 1235 (“I have tried to set forth a range of reasons
why the executive branch should enforce and defend statutes such as Don’t Ask, Don’t
Tell and [the Defense of Marriage Act]—even when it views them as wrongheaded,
discriminatory, and indeed as shameful denials of equal protection.”). But even aside
from my larger concerns with the practice, there is absolutely no warrant to appoint amici
in this case since the parties have been joint adventurers nearly from the start. For all
these reasons, I concur in the denial of the motion for reconsideration.
MCCORMACK, C.J. (dissenting).
I would grant reconsideration, grant the plaintiffs’ application for leave to appeal,
and order expedited consideration. I agreed with the reasons identified in Justice
BERNSTEIN’s statement dissenting from our previous order denying leave to appeal,
League of Women Voters of Mich v Secretary of State, ___ Mich ___ (July 31, 2020,
Docket No. 160907-8), about why this case deserved our consideration. Now there is
more.
The plaintiffs present a letter from the General Counsel and Executive Vice
President of the United States Postal Service (USPS) stating that Michigan’s deadline for
receiving absentee ballots is “incompatible” and “incongruous” with the USPS’s delivery
standards, creating a risk that ballots requested close to the election will not be returned
in time to be counted; the letter encourages election officials to keep those standards in
mind when communicating with voters about how to successfully vote by mail. The risk
of late-arriving ballots is heightened by the USPS’s recent decommissioning of mail
sorting machines and other cost-cutting measures likely to lead to further delays in mail
delivery highlighted in news reports the plaintiffs submitted. Finally, the plaintiffs
present evidence that is not merely hypothetical—they point to the volume of absentee
ballots not received until after the August 2020 primary election that went uncounted, a
volume that had the potential to be outcome-determinative in at least one election.
The potential deprivation of thousands of Michiganders’ fundamental right to vote
deserves our attention. In my view, with this new evidence, the plaintiffs have
demonstrated that our prior order denying leave to appeal was based on a “palpable
error.” MCR 2.119(F)(3); see also MCR 7.311(G). Moreover, they have shown that
their application involves “a substantial question about the validity of a legislative act,”
an issue that “has significant public interest and . . . is one by or against the state or one
of its agencies,” and “a legal principle of major significance to the state’s jurisprudence,”
MCR 7.305(B)(1) through (3), and that the Court of Appeals’ decision “will cause
material injustice,” MCR 7.305(B)(5)(a). It’s not often we see a case that checks all
those boxes. We should acknowledge as much by exercising our responsibility as the
7
state’s highest court and further considering this case; 4 I respectfully dissent from the
Court’s order denying reconsideration.
4
Justice VIVIANO argues that denying review is appropriate because the parties to this
case are not truly adversarial, as the Secretary of State agrees with the plaintiffs that the
statutory requirement that ballots be received by the time the polls close on Election Day
is unconstitutional under Const 1963, art 2, § 4(1). I agree with Justice VIVIANO that
there are important reasons why courts generally rely on the parties to a lawsuit to present
adversarial arguments, but I am not persuaded that the plaintiffs here should be penalized
by the Secretary of State’s acquiescence in their argument, a position over which the
plaintiffs have no control. Notwithstanding the Secretary of State’s position, the statute
remains binding, and the plaintiffs’ purported injury stands. I would not insulate that
injury from appellate review for reasons beyond the plaintiffs’ control.
Moreover, the Court is not without recourse for obtaining a fully aired argument on the
issues presented. It could invite amici curiae to file briefs, including the Legislature—an
entity that certainly has an interest in defending its own work. The Court could also
appoint an attorney to act as amicus curiae to defend the judgment below—a measure the
United States Supreme Court takes regularly. See, e.g., Seila Law, LLC v Consumer Fin
Protection Bureau, ___ US ___; 140 S Ct 2183, 2195 (2020) (noting that the Court
appointed Paul Clement as amicus curiae to defend the judgment below because the
parties agreed on the merits of the constitutional questions). While that has not
previously been our practice, we have issued similar orders when concerned with
receiving robust arguments on both sides of an issue. See, e.g., In re Request for
Advisory Opinion Regarding Constitutionality of 2005 PA 71, 474 Mich 1230 (2006)
(granting the request to issue an advisory opinion and directing the Attorney General to
brief both sides of the issue presented); In re House of Representatives Request for
Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 924 NW2d 882
(2019) (requesting the Attorney General to submit separate briefs arguing both sides of
the issues presented and inviting the House of Representatives and the Senate, and any
member of either chamber, to file briefs). I would use one of these strategies here to
address the important issue Justice VIVIANO flags. I am sympathetic to his concerns
about the difficulties that may arise in implementing these proposals. But I am not
convinced that if the choice is to grapple with those difficulties or tell the plaintiffs they
can’t access the Court because the Secretary of State shares their view that the statute
unconstitutionally disenfranchises Michigan voters, the latter is the better option.
Closing the courthouse doors to a party in an important case for that reason strikes me as
particularly bitter medicine.
8
BERNSTEIN and CAVANAGH, JJ., join the statement of MCCORMACK, C.J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 11, 2020
a0909
Clerk