If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

COMMITTEE TO BAN FRACKING IN 

MICHIGAN,

Plaintiff-Appellant,

FOR PUBLICATION

January 21, 2021

9:00 a.m.

v No. 354270

Court of Claims 

BOARD OF STATE CANVASSERS, LC No. 20-000125-MM

Defendant-Appellee.

Before: CAVANAGH, P.J., and JANSEN and SHAPIRO, JJ.

JANSEN, J.

In this constitutional challenge to MCL 168.472a, plaintiff, Committee to Ban Fracking in 

Michigan (CBFM), appeals as of right the order of the Court of Claims granting summary 

disposition in favor of defendant, the Board of State Canvassers, under MCR 2.116(I)(1), on the 

basis of a lack of subject-matter jurisdiction. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

This is the third appeal before this Court in this matter. In 2017, this Court summarized 

the facts of this case as follows: 

[CBFM] is engaged in a statutory initiative campaign that seeks to include a ballot 

option to ban horizontal hydraulic fracturing, which is commonly known as 

“fracking.” . . . [CBFM] sought to have the issue on the 2016 ballot and, on April 

14, 2015, the Board of State Canvassers approved the form of CBFM’s initiative 

petition. On May 22, 2015, [CBFM] began circulating their petitions and collecting 

signatures. By November 18, 2015, the 180th day, [CBFM] had collected over 

150,000 signatures – but that was less than the required number of 252,523. By 

June 1, 2016, the deadline for filing initiative petitions for the November 2016 

ballot, [CBFM] had over 207,000 signatures – but, again, that was less than the 

required number. [CBFM] is apparently continuing to collect signatures with the 

same petition sheets in an effort to have the fracking issue on the November 2018 

ballot. Accordingly, on June 1, 2016, [CBFM] filed this action [in the Court of 
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Claims] challenging the 180-day rule set forth in MCL 168.472a[.] [Comm to Ban 

Fracking in Mich v Dir of Elections, unpublished per curiam opinion of the Court 

of Appeals, issued March 14, 2017 (Docket No. 334480) (Comm to Ban Fracking 

I), pp 1-2 (footnotes omitted).] 

The Court of Claims granted summary disposition of CBFM’s claims in favor of the 

Director of Election under MCR 2.116(C)(8) on the basis that CBFM had failed to establish the 

existence of an actual controversy where CBFM had failed to collect the required number of 

signatures or submit their initiative petition to the Secretary of State. Id. at 2. This Court affirmed, 

concluding that “because no actual controversy ripe for declaratory relief exists, the Court of 

Claims lacked jurisdiction to issue a declaratory judgment and properly dismissed [CBFM’s] 

complaint.” Id. at 5. 

CBFM again appealed to this Court in 2019. This Court summarized CBFM’s activities 

following its first appeal as follows: 

[CBFM] continued to collect signatures and on November 5, 2018 – the day 

before the 2018 election – [CBFM] sought to file the initiative petition with the 

Secretary [of State] for a vote, if necessary, in the 2020 election. According to 

[CBFM], they had collected 270,962 signatures. However, the Director of 

Elections refused to accept the petition because the front-page summary stated that 

it was to be voted on at the November 8, 2016 general election and that election 

had already passed. [CBFM] filed a complaint in this Court seeking a writ of 

mandamus requiring the director to accept their legislative initiative petition. We 

denied the complaint. Comm to Ban Fracking in Mich v Secretary of State, 

unpublished order of the Court of Appeals, entered November 15, 2018 (Docket 

No. 346280).

In December 2018, [CBFM] filed the instant complaint, challenging the 

Secretary’s action in several respects including a claim that the Secretary had 

usurped the power of the Board [of Canvassers], which is the only entity charged 

by statute with determining the sufficiency and adequacy of an initiative petition. 

[CBFM] also alleged that the petition did not violate MCL 168.471, which provides 

that petitions must be filed at least 160 days before the election at which the 

proposal would be voted on. Comm to Ban Fracking in Mic v Secretary of State, 

unpublished per curiam opinion of the Court of Appeals, issued April 2, 2020 

(Docket No. 350161) (Comm to Ban Fracking II); p 2 (footnote omitted).]

The Court of Claims ultimately granted summary disposition of CBFM’s claims in favor 

of the defendants, determining that the erroneous date listed on the initiative petition violated the 

statutory requirements of MCL 168.471. Id. at 2-3. CBFM appealed, and this Court reversed, 

concluding that because initiative petitions are not required to state the election at which the 

proposed law will be voted on, the petition’s reference to a previous election did not preclude the 

question from appearing on the 2020 ballot. Id. at 3-4. Further, this Court ordered the Secretary 

of State to accept the initiative petition as of November 5, 2018, and forward it to defendant for 

canvassing. Id. at 4. 
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On June 8, 2020, defendant certified that CBFM’s petition was insufficient because 

approximately 89% of the signatures had been collected more than 180 days before the petition 

had been filed. Therefore, MCL 168.472a barred defendant from counting those signatures. 

Following defendant’s determination that the petition was insufficient, CBFM filed a complaint 

for a writ of mandamus in the Michigan Supreme Court, asserting that our Supreme Court had 

original jurisdiction over the action under MCL 168.479. CBFM claimed that it was entitled to 

“mandamus or any other appropriate remedy,” and asked our Supreme Court to declare the 180-

day rule found in MCL 168.472a unconstitutional. On July 2, 2020, the Michigan Supreme Court 

denied CBFM’s complaint. Comm to Ban Fracking in Mich v Bd of State Canvassers, ___ Mich 

__; ___ NW2d ___ (2020) (Docket No. 161453). 

On July 6, 2020, CBFM filed the instant action in the Court of Claims seeking a declaration 

that MCL 168.472a was unconstitutional as applied to statutory-initiative petitions. CBFM argued 

that the 180-day rule found in MCL 168.472a unconstitutionally infringed on Const 1963, art 2, 

§ 9, in which the people of Michigan reserved their right to statutory-initiative petitions. CBFM 

argued that unlike Const 1963, art 12, § 2, which concerns constitutional-amendment petitions, 

Const 1963, art 2, § 9 did not include a call for legislative regulation. Thus, according to CBFM, 

this omission reflected a legislative intent that Const 1963, art 2, § 9 expressly limited the 

Legislature’s authority regarding statutory-initiative petitions. CBFM argued in the alternative 

that, even if Const 1963, art 2, § 9 permitted the Legislature to regulate statutory-initiative 

petitions, the 180-day rule was “a direct curtailment of the right and invocation-standard set forth 

by the Constitution.” Plaintiff requested a preliminary injunction to require defendant to canvass 

plaintiff’s petition without excluding signatures that violated the 180-day rule. 

Defendant responded, and argued, inter alia, that CBFM had not shown it was entitled to 

injunctive relief: CBFM’s action was “untimely and filed in the wrong court.” Defendant argued 

that MCL 168.479 granted exclusive jurisdiction to the Michigan Supreme Court, and the 

Michigan Supreme Court had already denied CBFM’s complaint. 

Ultimately, the Court of Claims granted summary disposition in favor of defendant under 

MCR 2.116(I)(1), opining that it lacked subject-matter jurisdiction over CBFM’s claims. The 

Court of Claims stated: 

[T]his Court lacks jurisdiction to grant the relief requested. 

* * *

The plain language of [MCL 168.479(2)] is clear – any challenge to [defendant’s] 

decision on an initiative petition must be filed in the Supreme Court. This language 

is mandatory[.] 

* * *

[CBFM] properly pursued its challenge to [defendant’s] decision in the Supreme 

Court, the Court [CBFM] admitted had original jurisdiction over such a challenge. 

Because the Supreme Court has jurisdiction over these challenges, this Court has 

none and can proceed no further. 
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The Court of Claims thus dismissed CBFM’s complaint. This appeal followed. 

II. STANDARD OF REVIEW

CBFM first argues that the Court of Claims erroneously determined that it lacked subjectmatter jurisdiction over its claims on the basis of its erroneous interpretation that the Michigan 

Supreme Court had exclusive jurisdiction over its claims under MCL 168.479. More specifically, 

CBFM argues that our Supreme Court’s jurisdiction under MCL 168.479 is actually nonexclusive 

where MCL 600.6419 vests the Court of Claims with exclusive jurisdiction to hear claims for 

declaratory relief against the state, and CBFM is seeking declaratory relief. We disagree, and 

conclude that MCL 168.479 controls in this case because it is the more recent and specific statute. 

The Court of Claims granted summary disposition in favor of defendant under MCR 

2.116(I)(1) on the basis that it lacked subject-matter jurisdiction to consider CBFM’s claims. MCR 

2.116(I)(1) provides: “(1) If the pleadings show that a party is entitled to judgment as a matter of 

law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the 

court shall render judgment without delay.” Additionally, this Court reviews whether a trial court 

has subject-matter jurisdiction de novo. Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 

278; 831 NW2d 204 (2013). This Court also reviews issues of statutory interpretation de novo. 

Id. 

III. ANALYSIS

Whether a statute applies in a certain case is an issue of statutory interpretation. In re 

Forfeiture of $176,598, 465 Mich 382, 385; 633 NW2d 367 (2001). When interpreting a statute, 

this Court’s goal is to give effect to the intent of the Legislature. US Fidelity & Guaranty Co v 

Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). The 

language of the statute itself is the primary indication of the Legislature’s intent. Id. This Court 

interprets statutes by considering “[t]he fair and natural import of the terms employed, in view of 

the subject matter of the law[.]” Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 

274; 744 NW2d 10 (2007) (quotation marks and citation omitted). This Court must read the statute 

as a whole and may not read provisions in isolation. Robinson v Lansing, 486 Mich 1, 15; 782 

NW2d 171 (2010).

MCL 600.6419(1) provides that, “[e]xcept as provided in [MCL 600.6421] and [MCL 

600.6440], the jurisdiction of the court of claims, as conferred upon it by this chapter, is 

exclusive.”1 MCL 600.6419(1)(a) provides in pertinent part that the Court of Claims has 

jurisdiction “[t]o hear and determine any claim or demand, statutory or constitutional, . . . or any 

demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ 

against the state or any of its departments or officers . . . .” 

 

1 MCL 600.6421 creates exceptions for trials by jury, and MCL 600.6440 precludes claims for 

which there is an adequate remedy in federal court.
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Comparatively, MCL 168.479 concerns the Michigan Supreme Court’s jurisdiction to hear 

decisions by those aggrieved by a decision of defendant and provides as follows:

(1) Notwithstanding any other law to the contrary and subject to subsection 

(2), any person who feels aggrieved by any determination made by the board of 

state canvassers may have the determination reviewed by mandamus or other 

appropriate remedy in the supreme court.

(2) If a person feels aggrieved by any determination made by the board of 

state canvassers regarding the sufficiency or insufficiency of an initiative petition, 

the person must file a legal challenge to the board’s determination in the supreme 

court within 7 business days after the date of the official declaration of the 

sufficiency or insufficiency of the initiative petition or not later than 60 days before 

the election at which the proposal is to be submitted, whichever occurs first. Any 

legal challenge to the official declaration of the sufficiency or insufficiency of an 

initiative petition has the highest priority and shall be advanced on the supreme 

court docket so as to provide for the earliest possible disposition.

Mandamus is a discretionary writ and an extraordinary remedy. Berry v Garrett, 316 Mich App 

37, 41; 890 NW2d 882 (2016).

At first glance, MCL 600.6419 and MCL 168.479 appear to be in conflict. MCL 

600.6419(1) provides that the Court of Claims has exclusive jurisdiction to hear extraordinary 

writs against the state or any of its departments or officers, but MCL 168.479(1) grants jurisdiction 

over determinations made by defendant exclusively to the Michigan Supreme Court. 

If there is conflict or tension between statutes, this Court must engage in judicial 

interpretation to harmonize the conflicting provisions and carry out the intent of the Legislature. 

Nowell v Titan Ins Co, 466 Mich 478, 483; 648 NW2d 157 (2002). “Statutes that relate to the 

same subject or that share a common purpose are in pari materia and must be read together as one 

law, even if they contain no reference to one another and were enacted on different dates.” 

O’Connell v Dir of Elections, 316 Mich App 91, 99; 891 NW2d 240 (2016) (quotation marks and 

citation omitted). If there is a conflict between statutes that are in pari materia, a more recent and 

specific statute controls. Id.

MCL 168.479 and MCL 600.6419 are in pari materia because each statute relates to 

subject-matter jurisdiction. Of these two statutes, MCL 168.479 controls because it is more recent 

and specific. MCL 168.479 was amended by our Legislature in 2018, see 2018 PA 308, and in 

contrast, MCL 600.6419 was amended in 2013 by 2013 PA 164. MCL 168.479 also specifically 

applies to requests for relief from specific determinations made by the board of state canvassers, 

as in this case. Comparatively, MCL 600.6419 is broader and applies to all claims against the 

state, its departments, or its officers. Therefore, because MCL 168.479 is more recent and specific, 

we conclude that creates an exception to the exclusive jurisdiction of the Court of Claims and 

controls in this case.

MCL 168.479(1) provides in pertinent part that “any person who feels aggrieved by any 

determination made by the board of state canvassers may have the determination reviewed by 
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mandamus or other appropriate remedy in the supreme court.” (Emphasis added.) Courts should 

generally give the word “shall” a mandatory meaning and the word “may” a permissive meaning, 

“unless to do so would clearly frustrate legislative intent as evidenced by other statutory language 

or by reading the statute as a whole.” Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 

NW2d 668 (1982). 

CBFM argues that the permissive language found in MCL 168.479(1) supports its position 

that it was entitled to file a later action in the Court of Claims after the Michigan Supreme Court 

denied its mandamus action. Indeed, if MCL 168.479(1) did set forth a permissive invitation to 

file complaints concerning decisions by defendant with the Michigan Supreme Court, rather than 

as a mandatory provision, it would frustrate the legislative intent of MCL 168.479. Specifically, 

MCL 168.479(1) provides that a person “may” have a determination made by defendant reviewed 

in the Michigan Supreme Court. However, CBFM fails to consider MCL 168.479 as a whole. 

MCL 168.479(2) is clear that any person challenging the determination made by defendant 

regarding sufficiency or insufficiency of an initiative petition is required to file a timely legal 

challenge in the Michigan Supreme Court. See MCL 168.479(2), which unambiguously provides: 

(2) If a person feels aggrieved by any determination made by the board of state 

canvassers regarding the sufficiency or insufficiency of an initiative petition, the 

person must file a legal challenge to the board’s determination in the supreme court 

within 7 business days after the date of the official declaration of the sufficiency or 

insufficiency of the initiative petition or not later than 60 days before the election 

at which the proposal is to be submitted, whichever occurs first. Any legal 

challenge to the official declaration of the sufficiency or insufficiency of an 

initiative petition has the highest priority and shall be advanced on the supreme 

court docket so as to provide for the earliest possible disposition.

The stated purpose of MCL 168.479 is to have any legal challenge to the sufficiency or 

insufficiency of an initiative petition decided as promptly as possible, by our Supreme Court. 

Reading MCL 168.479(1) and (2) together, we conclude that the most logical interpretation of the 

statute is that the permissive word “may” in subsection (1) provides that the Michigan Supreme 

Court may review the issue, and subsection (2) establishes the procedure to have a decision made 

by defendant reviewed. To be clear, the permissive language in MCL 168.479 does not create a 

choice of forum for potential litigants, it merely serves as an invitation of judicial review to an 

aggrieved party. 

In sum, we conclude that the Court of Claims did not err by granting summary disposition 

in favor of defendant where it lacked subject-matter jurisdiction over CBFM’s claims. CBFM’s 

sole legal remedy in this case was to file a legal action in the Michigan Supreme Court, which it 

did. CBFM was entitled to file any legal challenge in our Supreme Court, including a request for 

declaratory and injunctive relief; it was not limited to its mandamus action. However, having filed 

an action in the Michigan Supreme Court, and the Michigan Supreme Court having denied 

CBFM’s mandamus complaint, CBFM has exhausted its legal remedies with respect to judicial 

review of defendant’s insufficiency determination of its initiative petition. 

On appeal, CBFM also challenges the constitutionality of MCL 168.472a, known as the 

180-day rule, and requests relief in time for the 2020 election. However, given our conclusion that 
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the Court of Claims did not have subject-matter jurisdiction of CBFM’s claims, we need not 

address these issues. 

Affirmed. Defendant, as the prevailing party, is entitled to tax costs. See MCR 7.219(A). 

/s/ Kathleen Jansen

/s/ Mark J. Cavanagh