The Building Tradesman Newspaper

Friday, February 20, 2015

Judge dumps open meetings challenge to state's right-to-work law

By Marty Mulcahy, Editor

LANSING - The state's Open Meetings Act was not violated when the Michigan Legislature adopted a statewide right-to-work law in December 2012, a state Court of Claims judge ruled Feb. 6.

A slate of labor unions, including the Michigan Building and Construction Trades Council (MBCTC), Michigan AFL-CIO and Michigan Education Association, brought the lawsuit seeking to overturn the right-to-work law on the basis that public access to the state Capitol's legislative chambers was restricted when key votes were taken, violating the state's Open Meetings Act.

But Judge Deborah Servitto, a court of appeals judge assigned to the Court of Claims case, ruled that "the temporary cessation of admission to the Capitol building did not impair the rights of the public as a whole. The public and the media were present in spite of the closure and were able to observe directly and through media coverage."

MBCTC attorney John Canzano said "we think the judge got it wrong," and said the team of lawyers for the plaintiffs is considering an appeal.

The lawsuit stems from the contentious events of December 2012, when the Michigan Capitol doors were locked to prevent additional people from coming to witness or engage their legislators while the hotly contested right-to-work bills were being debated on the House and Senate floors. The public, including some journalists, were locked out for more than four hours on Dec. 6, 2012, while legislators debated and voted on the bills. While individuals already in the Capitol could stay, people waiting outside were not allowed to enter.

Plaintiffs presented as evidence an e-mail from Peter Langley, director of the Senate Majority Policy Office, sent on Dec. 6, 2012, which said: “The House is having Republican staff report to the House gallery for the day — something to consider for our side.”

On Dec. 10, Ralph Fiebig Jr., a House Republican constituent relations staff member, sent an e-mail inviting all constituent relations staff to meet him at the Capitol the next morning. He wrote: “I would like everyone to get there before 6:55 a.m. in case they allow us to enter before 7 a.m. That way, we may be able to get up the stairs to the gallery entrance and in the front line before the public is allowed to enter the building.”

Michael J. Steinberg, legal director of the ACLU of Michigan, one of the plaintiffs in the case, said "never in the history of Michigan has there been such a calculated effort to deny the public access to the democratic process. The lockdown of the Capitol and the stacking of the gallery during the enactment of a controversial law make a mockery of the principles of open government and transparency.”

Judge Servitto disagreed in her ruling, while acknowledging that "not all members of the public who wanted to have in-person observation of the legislative proceedings were able to." She added: "But just as a road is open to public travel even though its capacity is finite, a meeting may be open to the public even where physical access to all members of the public is not available."

Security concerns about overcrowding led State Police Capt. Kevin McGaffigan to order the Capitol building closed to additional visitors on Dec. 6, with doors reopening in the late afternoon after a court order. It was the first closure of the Capitol doors during business hours in state history.

The judge "agreed that there was evidence of a deliberate plan to have staffers stack the gallery so there was no room for the public," Canzano said. "But since the plan wasn't entirely successful - there's conflicting evidence of how full the gallery was - she said it's not a violation of the Open Meetings Act. Basically the judge didn't think it was a big deal to lock out the public. The whole process of the passage of the right-to-work law, the lack of public comment, doing it in a rush behind closed gallery doors - it was all done without any accountability."