Gary P. Gordon (P26290) | Jason T. Hanselman (P61813) | Dykema Gossett PLLC | 201 Townsend Street, Suite 900 |
Lansing, MI 48933 | 517-374-9133 | [email protected] |
[email protected]

1. Michigan Association of Counties (MAC)
2. Michigan Townships Association (MTA)
3. Conference of Western Wayne

It appears that public officials are restrained from discussing—verbally, in writing, or electronically—through mass communications any ballot measure within 60 days of the election, if the communication would involve the expenditure of public funds. Unfortunately, Section 57(3) is so poorly written that public officials do not know, for example, if they can respond to a question from the public regarding a pending ballot proposal at a televised public meeting. If the public official is being paid to attend the meeting or if the meeting space or equipment are paid for by public funds, arguably “public funds” are being used for a “person acting for a
public body” to engage in “communication” by “television.” Where such an open question could result in criminal charges for public officials violating the new law, such ambiguity creates a chilling effect restraining political speech and violates the United States Constitution. In this case, the Michigan Legislature seeks to treat public officials, public employees, public body volunteers, or anyone else deemed to be “acting for a public body” different than others who are similarly situated. For example, at a city council meeting, a part-time city council member would be barred from discussing an impending charter amendment, while his or her next
door neighbor would have no similar restriction. Such disparate treatment among similarly situated individuals violates the Equal Protection Clause. The Act is also too vague. The Governor recognized the “confusion with the new language” before signing PA 269 and implored the Legislature to fix it. The Legislature now appears to recognize the error in its ways and is considering legislation to correct the ambiguities. Michigan citizens—and amici curiae, specifically—deserve clarity in laws that carry criminal penalties. Section 57(3) is far too vague to provide such certainty—it should be declared unconstitutional and its enforcement
enjoined.

U.S. District Judge John Corbett O’Meara accepted an agreement between the Secretary of State’s office and local governments and school groups, permanently enjoining Secretary of State Ruth Johnson from enforcing PA 269.

O’Meara’s order references his previous temporary injunction against enforcement of the law, saying that the local governments had “demonstrated a strong likelihood of success on the merits of their claim that (the law) is unconstitutionally vague and thus void.”

Michigan’s legislature added an amendment to a campaign finance bill to prevent local public officials from using public resources to communicate regarding local ballot measures within 60 days of an election. 2015 PA 269 (“PA 269”).