ESCANABA — Bay College and its legal counsel responded Wednesday to questions about the legality of a mass mailing about the college’s millage proposal that was sent to members of the Delta County Chamber of Commerce recently.

The mailing is permitted under current law.

The mailings drew attention primarily due to when they were sent to Delta County Chamber members due to a section of the state’s campaign finance law which forbids the use of public funds for certain types of communication within the 60-day period before an election.

Specifically, Sec. 57 (3) of the Michigan Campaign Finance Act of 1976 reads, “Except for an election official in the performance of his or her duties under the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, a public body, or a person acting for a public body, shall not, during the period 60 days before an election in which a local ballot question appears on a ballot, use public funds or resources for communication by means of radio, television, mass mailing, or prerecorded telephone message if that communication references a local ballot question and is targeted to the relevant electorate where the local ballot question appears on the ballot.”

During an interview conducted Tuesday about her use of an alias to promote the millage on Facebook, Coleman told the Daily Press the mailings were paid for by Bay College, but noted the mailings had been approved by the college’s legal counsel, Thrun Law Firm, P.C., prior to being sent to Chamber members. She also noted the mailing lacked any direct requests for specific actions — such as requests to “support” or “vote yes” — which are forbidden under the law.

In a memo sent to the Daily Press Wednesday, Thrun acknowledged Sec. 57(3) is still in the state statute, but stated the section has been invalidated by a higher court.

“While that particular provision remains in the Michigan statute, the US District Court for the Eastern District of Michigan in Taylor v Johnson ruled on February 5, 2016 that statutory provision is constitutionally unenforceable,” Christopher J. Iamarine of Thrun Law Firm, P.C. wrote.

In that case, a group of mayors, county commissioners, school superintendents, and a single individual sought an injunction of the section, claiming it violated their First and Fourteenth Amendment rights to free speech and their Fifth and Fourteenth Amendment rights to due process. They also claimed the language was vague because it applied to communications that simply referenced ballot measures.

“Public officials deserve clarity on this issue so that they may serve in the normal course without fear of arbitrary sanctions or prosecution. Underscoring the vague nature of 57(3) are several bills pending in the Legislature either repealing or clarifying it. … This matter is best resolved through the legislative process, with due deliberation and debate. Given the fast approaching March 8, 2016 elections, however, time is of the essence and the court must act,” said United States District Judge John Corbett O’Meara in his decision.

O’Meara’s issued the requested injunction and stated the plaintiffs had “demonstrated a strong likelihood of success on the merits of their claim that (the section) is unconstitutionally vague.” That decision was used earlier this year in a decision on a different case where mass emails asking for millage support were sent by an employee of Schoolcraft College, a community college in Lower Michigan. Ultimately, those emails were found to be in violation of the act, but the decision noted any claims made under Sec. 57(3) had to be dismissed.

“In 2016, section 57(3) was litigated and declared unconstitutional by the United States District Court for the Eastern District of Michigan. … Under the terms of the court’s order, the Department is permanently enjoined from enforcing MCL 169.257(3),” wrote Adam Fracassi of the Michigan Department of State’s Bureau of Elections in the decision on the emails.

Because of the injunction on enforcement and the ruling the section as unconstitutional, Thrun says the section was not violated.

“… that Bay College violated Section 57(3) of the Michigan Campaign Finance Act is fundamentally false,” wrote Iamarine.