Legislators, journalist, unions bring suit over how legislation passed


by Cynthia Price
Legal News

If Representatives Brandon Dillon, Rashida Tlaib, and Rebekah Warren, journalist Bonnie Bucqueroux, Steve Cook and Richard Trainor of the Michigan Education Association (MEA), the MEA itself, the Michigan State AFL-CIO, Michigan Building & Construction Trades Council, the American Civil Liberties Union of Michigan, and Change to Win have their way, Michigan will no longer be a “Right-to-Work” (RTW) state.
At least temporarily.

This group, which includes one of  the original plaintiffs locked out of the State Capitol building during the December RTW vote who filed for a temporary injunction to have the building reopened, has filed in Ingham County Circuit Court to have the legislation invalidated pursuant to the Michigan Open Meetings Act.

So-called Right-to-Work legislation prohibits union security clauses in agreements between employers and labor unions; these clauses generally mandate that workers who are represented by unions either pay dues or pay “their fair share of the cost of union representation.” Proponents say that preventing these types of agreements make for freedom in the workplace and is only fair to those who would prefer not to join unions; opponents view RTW as a step toward breaking the backs of unions, which will experience difficulty operating without the funding the security clauses provide.

There is not much about what happened surrounding the legislation’s passage that is not subject to dispute. It is certain that the RTW legislation was passed during the post-election lame duck session after never having gone through a committee hearing process; that right after Governor Rick Snyder indicated he was willing to drop his previous disinterest in seeing Michigan become a RTW state on Dec. 6, 2012, the RTW bills were introduced on both the House and the Senate floors as substitutes for existing bills which did not previously include anything resembling RTW language; and that they were debated and voted on during a period of time on Dec. 6 when the doors to the Capitol building were locked and the public prevented from entering for approximately four hours.

There is nothing illegal about most of that, but it is the final portion, which, as near as anyone associated with the case can remember, is unprecedented, that sparked the lawsuit.

Three people from the MEA prevented from entering the building, including the previously-mentioned Steve Cook, asked the Ingham County Circuit Court on Dec. 6 to issue a temporary injunction to have the doors reopened. The current lawsuit is an amended complaint to that same case.

Plaintiffs contend that the process violated the Open Meetings Act of 1976, as well as the U.S. Bill of Rights First Amendment and the Michigan Constitution. The complaint reads in part (statements were numbered consecutively in the document):

195. The Open Meetings Act provides as follows:

a. “All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided.”

b. “All decisions of a public body shall be made at a meeting open to the public.”MCL15.263(2).

c. “All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as [otherwise provided....” MCL15.263(3).

d. “[A]ny person may commence a civil action in the circuit court to challenge the validity of a decision of a public body made in violation of this act.” MCL15.270(1).

e. “A decision made by a public body may be invalidated if the public body has not complied with the requirements of [MCL15.263 (1), (2), and (3)] in making the decision... and the court finds that the noncompliance... has impaired the rights of the public under this act.” MCL15.270(2).

196. Defendant Michigan House of Representatives did not comply with the requirements of MCL15.263(1), (2), and (3) in making the decision to pass right-to-work legislation.

197. Defendant Michigan Senate did not comply with the requirements of MCL15.263(1), (2), and (3) in making the decision to pass right-to-work legislation

198. Defendants’ noncompliance impaired the rights of the public under the Open Meetings Act.”

A reading of the December court transcript indicates that the defendants (who are now the Michigan legislative houses,  the State of Michigan, the Michigan State Police Captain Kevin McGaffigan, and Other Unknown Public Officials) argued that the sole reason for closing the capitol building was concern for public safety on the part of the Michigan State Police.

There was indeed an incident where a few anti-RTW protesters rushed the Senate floor, but televised coverage shows that that was brought under control and no further incidents occurred.

Naturally, it is difficult to know what the Attorney General’s office will argue going forward. A spokesperson from that office said, “Our office will file a response to the amended complete complaint in approximately two weeks” from Wednesday, having only been served Monday Feb. 4.

According to ACLU-Michigan Executive Director Kary L. Moss’s press statement, “Rushing controversial bills through a lame duck session is a bad way to make public policy under the best of circumstances; doing so on such important issues while the public is shut out of the debate every step of the way is illegal and shameful.”

The complaint includes the fact that both chambers added an unrelated appropriation to the bill language, which by Michigan law prevents it from going to public referendum. “You had a very controversial piece of legislation introduced without being subject to committee hearings, directly onto the house and senate floors, debated for a few hours — and then tacking on this appropriation which further prevents the people from undoing the policy,” Moss said in an interview, “that just completely closes the door on the public’s right to be heard.”

The journalist involved, Bonnie Bucqueroux, is co-founder of Lansing On-line and an instructor at Michigan State University School of Journalism.  She joined the suit because, as she states, “I was disappointed to find myself locked out of the Capitol and unable to report on this historic event. A vibrant and free media is vital to keeping government honest.” 

But perhaps most vehement in his opposition to what happened is local State Representative Brandon Dillon.

“There was a lot of anger over the process,” he says. “I was particularly upset over the fact that so many of the gallery seats had been taken up by Republican staffers, taking seats from people who had driven across the state. It was a pretty intense atmosphere.”

Dillon feels that the RTW legislation’s passage has been planned over the years since it was originally discussed in 2007. “It wasn’t something that was done at the last minute. I think all the evidence points in that direction: when the opportunity presented itself, they went ahead and did it.”

He hopes that it is clear the lawsuit focuses not on the RTW legislation itself but on how what happened reflects on democracy and transparency in government. “Look,” he says, “from my perspective and a lot of my colleagues’, there’s a lot that happened that we don’t like policy-wise, but the important thing is, you should respect the process.”

To read the complaint, go to: http://www.aclumich.org/sites/default/files/file/RTWcomplaint.pdf.