View source

{{law}}'''Bogaert v. Land''' is a federal lawsuit filed on July 18, 2008 in the [[Judgepedia:United States District Court for the Western District of Michigan|United States District Court for the Western District of Michigan]] by [[Rose Bogaert]] against [[Terri Lynn Land]] in Land's official capacity as [[Michigan Secretary of State]].

In the lawsuit, Bogaert asked for emergency consideration of a request for a preliminary injunction relative to the signatures filed in the [[Andy Dillon recall (2008)]].

On August 27, 2008, United States District Judge Robert Holmes Bell issued a preliminary injunction ordering Land to re-examine the Dillon recall signatures without reference to Michigan's [[Laws governing recall in Michigan|statutory requirements]] prohibiting [[residency requirements for petition circulators|non-residents]] of Dillon's district from circulating petitions; and further ordered that if sufficient signatures are found, then Land must place the recall against Representative Dillon on the November 4, 2008 general election ballot.<ref name="ballotnews">[http://www.ballot-access.org/2008/08/27/michigan-petitioning-victory/ ''Ballot Access News'': "Michigan petitioning victory", Aug. 27, 2008]</ref> <ref>[http://www.freep.com/apps/pbcs.dll/article?AID=/20080827/NEWS06/80827049/1008 ''Detroit Free Press'': "Ruling revives recall effort against speaker Dillon," Aug. 27, 2008]</ref>

Bogaert claims that her rights under the U.S. Constitution were violated by MCL 168.957, the Michigan statute that forbids [[recall]] signatures to be collected by people who live in a district other than the district of the legislator whose recall is sought.

The action filed by Bogaert is a 42 U.S.C. 1983 civil rights action.


===Judge rules Michigan restrictions unconstitutional===

On August 27, 2008, United States District Judge Robert Holmes Bell issued a preliminary injunction ordering [[Michigan Secretary of State]] [[Terri Lynn Land]] to re-examine the signatures without reference to statutory requirements prohibiting non-residents of Dillon's district from circulating petitions; and further ordered that if sufficient signatures are found, then Land must place the recall against Representative Dillon on the November 4, 2008 general election ballot.<ref name="ballotnews"/>

In the ruling, Judge Bell agreed with recall supporters that part of Michigan's law governing recall signature gathering is unconstitutional because it infringes on political speech rights protected in the First Amendment.<ref name="judgebell">[http://www.mlive.com/newsflash/index.ssf?/base/news-56/121985454887370.xml&storylist=newsmichigan Associated Press: "Court revives effort to recall Mich. House speaker," Aug. 27, 2008]</ref>

Bell ruled that signatures from voters inside Dillon's district should be counted even if they were collected by petition circulators who lived outside the district or weren't registered to vote. Under Michigan law, those signatures aren't considered valid.<ref name="judgebell"/>

"The circulation of recall petitions is core political speech," Bell wrote, saying that recall organizers' First Amendment rights were "severely burdened" by state law.<ref name="judgebell"/>

Bell said the state and Dillon did not show how requiring recall petition circulators to be registered voters and district residents improves the integrity of recall petitions.<ref name="judgebell"/>


===Dillon appeal for re-hearing rejected===

Dillon quickly appealed the court order.  The grounds for his appeal is that the order did not leave him enough time before the September 8 deadline for printing ballots to challenge the signatures as fraudulent. Judge Bell denied Dillon's request for a re-hearing in his court, saying, "Representative Dillon was well aware of the tight schedule for challenging the recall petitions. Michigan law does not guarantee that state representatives will be given a second opportunity to challenge recall petitions in the event some portion of the state law is deemed to be unconstitutional. There was no impediment to his raising all of his challenges to the recall petitions by the June 2, 2008, deadline for submitting challenges. Representative Dillon effectively waived his right to challenge the authenticity of the signatures on the petitions circulated by non-residents and/or non-registered voters by failing to timely raise those challenges."<ref>[http://www.rightmichigan.com/story/2008/8/29/185144/348 ''Right Michigan'', "Breaking: Judge denies Dillon's desperate demand to stop recall", August 29, 2008]</ref>

Michigan is in the [[Judgepedia:United States Court of Appeals for the Sixth Circuit|Sixth Circuit]], which is where Dillon would therefore turn to file any additional appeals. 


==Background==

Land's office had previously determined that Bogaert's petition drive to place a question on the August 5, 2008 ballot to remove Dillon from office had fallen short by 776 signatures.  2,053 signatures that Land determined to be invalid were said to be invalid solely on the basis of the [[circulator]]'s out-of-district status.

The lawsuit says that MCL 198.957 is unconstitutional and therefore should be disregarded as a proper basis for invaliding these signatures.  If a federal judge agrees, the signatures could be re-instated and a recall election could be called.

Since it is too late for the recall question to go on the August ballot, the petition filed by Bogaert requests that the recall action be placed on the November 4, 2008 ballot.  

Dillon's name is expected to be on the ballot as he seeks his final term in office in the [[Michigan State Legislature|Michigan state legislature]].  If this lawsuit succeeds, Dillon's name could be on the November ballot twice--once as a regular candidate and once as the subject of a recall election.

In that case, if Dillon wins his re-election, he could also simultaneously be recalled from the term he is currently serving, which ends in January 2009.


==References==

<references />

[[Category:Residency requirements]]
[[Category:Signature challenges, Michigan]]