[nfbmi-talk] open meetings and mcb

Wed Jun 2 11:36:42 UTC 2010

Memo on Violations of Open Meetings Act with Just One Case
(Oh should we have a closed session because this is a legal memo, or actually try to make this public domain case a secret document like MCB has done with the Eagle V. Cannon, Pilarski, et al case?)

June 2, 2010

Colleagues:

Here we have a case where a State Licensing Board was found in violation of the Michigan Open Meetings Act. Yes, it was ruled by the court here that the application hearings for those requesting to get a carry permit for a handgun must be made open to the public. Yet, routinely the Michigan Commission for the Blind holds closed sessions for a variety of specious reasons including the infamous May 3, 2010 meeting in which everything and the kitchen sink were discussed including the very role of the commission based upon a FOIA recoverable scribbling from Barbara Schmidt from the Michigan Attorney general’s office. The height of discrimination is very clear here. For they think they can get away with such abuses because we consumers are blind.

What utter nonsense and gross paternalism let alone inane incompetence was displayed by this action alone!

But, MCB thinks it can get away with denying even RSA monitoring reports which amounts to literally millions in funds, public funds expended. This is a Soviet Style secret governmental activity for it slams the door on the public’s right to know how actions are deliberated by a state agency and it slams the door on public documents related to those operations.

I ask openly to Ms. Barbara Schmidt if she were to go blind tomorrow, God forbid, where would she go to acquire the skills to practice her profession and to actually read cases like this which apparently while sighted she either has not read or chooses to ignore?

Sincerely,

Joe Harcz

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT

In re STEPHEN MARTIN HICKEL,

            Plaintiff,

v                                                                                              Case No. 00 05186 AS

                                                                                                Hon. GEORGE S. BUTH

KENT COUNTY CONCEALED WEAPON

LICENSING BOARD, ITS MEMBERS 

AND DELAGATES,

            Defendant.

Stephen Martin Hickel                                                 

In Pro per                                                                     

8220 Piney Woods                                                      

Caledonia, MI 49316                                                   

616-891-8336                                                              

plaintiff’s Brief in support of his Motion for Summary Disposition Pursuant to MCR 2.116(C)(9)-(10)

I.          Introduction

Count VIII of Plaintiff’s complaint alleges a violation of the Michigan Open Meetings Act (OMA).  Plaintiff claims the meetings of the Kent County Concealed Weapon Licensing Board (Defendant) are subject to the OMA and no exemptions or exceptions apply.  Upon commencement of the July 99 meeting, Plaintiff was not allowed into the meeting room and had to wait in the hallway.  Applicants for concealed weapons permits were called into the room one at a time. Just prior to deliberation the  Defendant asked the Plaintiff to wait in the public lobby while they deliberated. The OMA requires public bodies like the Defendant to hold open meetings and expressly grants all persons the right to be present during deliberation. When the decision was made the representative of the prosecutor, Mark, came into the lobby and started discussing the decision with the Plaintiff. No minutes were taken of this conversation so  what was said rests in the memories of both parties, but the Plaintiff documented the conversation in his complaint. By acting in said manner the Defendant violated the OMA. At the March 2000 meeting the Plaintiff’s attorney and he were asked to leave the room while the Defendant collaborated. They also had to wait in the lobby of the County Clerk’s office while other applicants presented before the Defendant.  The Defendant told the Attorney and the Plaintiff that they would deliberate at the next meeting and need not be present. When the Plaintiff dropped off the Marlinga letter two days before the Defendant met in May, he asked the County Clerk (Bonnie) two times if he could set up an appointment to attend the May 2000 meeting of the board. He was told that he could not do that.  This is three violations of the Open Meetings Act. As a result, Plaintiff is asking for an (injunction) order mandating Defendant’s compliance with the OMA, mandatory costs and attorney fees under the statute for the cost of the Attorney for going before the board in March and May.

II.        Standard of Review 

Domako v. Rowe, 184 Mich App 137 (1990) sets forth the standard for a motion under MCR 2.116(C)(9). 

“A concise summary of the appropriate standard of review was set forth by a panel of this Court in City of Hazel Park v. Potter, 169 Mich App 714, 718, (1988): A motion for summary disposition pursuant to MCR 2.116(C)(9), . . . , for failure to state a valid defense tests the legal sufficiency of the pleaded defense.  Such motion is tested by reference to the pleadings alone, with all well-pled allegations accepted as true.  The proper test is whether defendant's defenses are "so clearly untenable as a matter of law that no factual development could possibly deny plaintiff's right to recovery."  Hanon v. Barber, 99 Mich App 851, 854-855; 298 NW2d 866 (1980). 

The standard of review for a (C)(10) motion is as follows:

MCR 2.116(C)(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law."   Therefore, a court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other admissible evidence in favor of the party opposing the motion, grant the nonmoving party the benefit of any reasonable doubt, and determine whether there is a genuine issue of disputed material fact. Skinner v. Square D Co., 445 Mich. 153, 161 (1994); Radtke v. Everett, 442 Mich. 368, 374 (1993).

III.       Argument

A.        The Open Meetings Act applies to Defendant and contains no exception for County Concealed Weapon Licensing Boards; they are not allowed to hold closed sessions

            The Open Meetings Act (OMA), MCLA § 15.261 et seq., states, “[a]ll 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 in this act.” MCLA § 15.263(1).   It further states, “[a]ll decisions of a public body shall be made at a meeting open to the public” and “[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as provided in this section and sections 7 and 8.” MCLA § 15.263(2)-(3).

            There are several express exceptions to the OMA in the statute.  They are:

1.      A workers compensation appeal board when deliberating the merits of a case;

2.      The employment security board of review when deliberating the merits of a case;

3.      The state tenure commission when acting as a board of review;

4.      An arbitrator or arbitration panel appointed by the employment relations commission;

5.      An arbitration panel selected under chapter 50A of the revised judicature act; and

6.      The Michigan public service commission.

MCLA § 15.263(7)(a)-(f).

The OMA also does not apply to; 1) an association of insurers; 2) a committee of a public body which adopts a non-policymaking resolution of tribute or memorial which resolution is not adopted at a meeting; 3) a meeting which is a social or chance gathering or conference not designed to avoid the act; and 4) the Michigan veteran’s trust fund. MCLA § 15.263(8)-(11).  In MCLA § 15.268, there are nine purposes listed when a public body may meet in a closed session.  None of these purposes include the activity of the Defendant.

            Defendant is a public body under the OMA. Defendant neither admitted nor denied that the it falls under an exception to the OMA. Defendant claims that these questions have yet to be “proved” by a Michigan court. (See Defendant’s Answer) Defendant is, in essence, claiming that the plain language of the OMA statute is not the law unless it is proven.  This statement is incorrect and contrary to the law.  The statute applies as written until it is found unlawful by a court of competent jurisdiction or repealed by the state legislature.

            As a technical, legal matter, an exemption or exception to the OMA is an affirmative defense to a claim such as Plaintiff’s.  Defendant has plead no such affirmative defense.  Under MCR 2.11(F)(3), affirmative defenses must be raised in the first responsive pleading (here the Defendant’s answer) or the defense is waived.  See Campbell v. St. John Hosp., 434 Mich 608, 615 (1990); Chmielewski v. Xermac, Inc., 216 Mich App 707, 800 (1996); Grand Blanc Landfill, Inc. v. Swanson Environmental, Inc., 200 Mich App 642, 645 (1993).  Since Defendant did not raise an exemption or exception to the OMA’s requirments of an open meeting, Defendant has waived this defense.

            As another point of law, the burden of establishing that a meeting is exempt from the OMA is on the Defendant.  Schmiedicke v. Clare School Board, 1998 WL 80405 (Mich.App.); Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 192 Mich App 574, 581 (1992); Detroit News, Inc. v. City of Detroit, 185 Mich App 296, 300 (1990).  Without some authority to support its’ positions that the meetings of the Defendant are not subject to the OMA and are not open, Defendant cannot meet his burden under this motion to dismiss.  No such authority exists.

            Michigan exempts from disclosure under the FOIA, written records that contain, “[I]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy.” MCLA §15.243(1)(a).  Even if FOIA exemptions apply to the OMA, it would be irrelevant in this case, because none of the records or information discussed by the Defendant are exempt under the FOIA.

            Should the Defendant draws attention to the bills pending in the Michigan legislature addressing concealed weapons licensing boards and the Open Meeting Act,  the proposed legislation, House Bill 5557, would allow an applicant to request a closed meeting of the gun board to hear his case.  Although not always a conclusive deduction, it does logically follow that if the legislature feels it must amend the OMA to allow the gun board to hold closed sessions, that, under current law, closed sessions are not allowed.  Stated, another way, if closed sessions were currently allowed, amendment of the statute would be irrelevant and totally unnecessary.  Also, under the proposed bill language, it is the applicant, not the gun board, who can request the closed meeting.

            Were the Defendant to claim that it has no legal obligation to assert the privacy rights of its applicants, it admit it was for public safety reasons.  It is hard to see how this is a public safety issue or even a privacy issue.  An average day in District or Probate Court reveals more personal, private, and embarrassing information about a people than an application for any license ever could.  (e.g. incest, CSC, shoplifting, drunk driving)  Yet, nearly all court proceedings are public record. 

            Defendant’s public safety rational would not hold up to scrutiny either.  Their argument might be that a criminal may be informed or “clued in” to applicants that carry cash or other valuables by attending gun board meetings.  Plaintiff argues that such a criminal can obtain similar information though simple observation.  For example, retail businesses at some point have to make cash deposits in banks.  Jewelry stores must be resupplied with gems and precious metals from time to time.  Mercedes dealerships have expensive automobiles on their sales lot.  All of this information is self-evident and not secret.  Nothing an applicant tells the Defendant can “clue in” a criminal any more than his everyday observances of an applicant.

            Anyone who desires a license from the state, and applies to a public body, must recognize that the processing of their application becomes open to public scrutiny.  All the cards must be on the table to ensure fair, uniform, and equal treatment of applicants.  How can it be otherwise in a free society?  We do not and can not allow or tolerate our elected officials and public servants to operate or make public decisions in secret, except in the most extreme cases such as national security.  This is why we have an Open Meetings Act. 

B.        Purpose of the Open Meetings Act 

            Plaintiff attempted twice to attend one meeting, he was denied access to three deliberations, and witnessed the Defendant not taking minutes of the delivery of results on one occasion.  The fundamental purpose of the OMA is very informative in evaluating application of the Act.   The Michigan Supreme Court has stated that the purpose of the OMA is to promote government accountability, open the process to public scrutiny, and serve as both a light and disinfectant in exposing potential abuse and misuse of power.  It is no wonder that the Defendant is subject to seven other counts stemming from a lack of openness and adherence to civil rights and constitutional standards. It all ties together. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich 211, 222-223 (1993). Other Michigan courts have stated its purpose similarly: 

“Because the purpose of the act is to promote openness in government, it is given a broad interpretation. . . . It is implicit in the purpose of sunshine laws such as the OMA that there is a real and imminent danger of irreparable injury when governmental bodies act in secret.”  Detroit News, Inc. v. City of Detroit, 185 Mich App 296, 300-301 (1990);

“The purpose of the OMA is promote openness and accountability in government.” Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 192 Mich App 574, 581 (1992);

“[T]he fundamental purpose of the OMA [is] to extend to the public the opportunity to observe public business . . ..” Regents of Univ. of Michigan v. Washtenaw County Coalition Against Apartheid, 97 Mich App 532, 537 (1980);

“[T]he purpose of the OMA is to provide the public with fuller disclosure of the acts of government officials.”  Federated Publications, Inc. v. Bd. of Trustees of Michigan State Univ., 221 Mich App 103, 112 (1997);

Plaintiff was a victim to an abuse of an administrative board for all of the above reasons.  Plaintiff believes that the Defendant acts contrary to the laws of this state, violates due process due to bias, ignores a constitutional protected right of self-defense as a reason, violates the Civil Rights law of 1983 through a violation of the 14th Amendment and the RKBA as passed to the State via the 9th Amendment -- which leads to disparate impact -- sets an extreme standard for one group and a lower standard for another, all while issuing or denying licenses.  He attended the meetings in order to confirm or deny those beliefs.  Without an open meeting, Plaintiff could not observe the proper or improper function of this government body.  As such, the fundamental purpose of the OMA was defeated.

C.        Plaintiff attempted to exercise his rights under the Open Meetings Act, and he was Illegally denied by Defendant

            Twice in Plaintiff’s presence and once away from it , Defendant violated the OMA in a nine month period. In fact, the Defendant has consistently violated the OMA in this way for many years as part of its “tradition.”  Meetings of the Defendant have never been open to the public, and the applicants attending each meeting are only allowed in the meeting room one at a time.  

            The OMA provides, 

“[a]ll 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 in this act.  The right of a person to attend a meeting of a public body includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting.  The exercise of this right shall not be dependent upon the prior approval of the public body.  . . ..  MCLA § 15.263(1). (Emphasis added)

This law is clear.  It is equally clear that it was violated.  It has been violated for many years in this county and will continue to be violated until this court steps in and corrects the Defendant.  Plaintiff is seeking declaratory judgment that the Defendant violated the OMA, and an injunction ordering the Defendant to comply with the OMA by holding their entire meeting open to the public.

IV.       remedy

            Violations of the OMA have several consequences.  The OMA provides that some decisions of a public body may be invalidated if the requirements of OMA are not followed.  MCLA §15.270.  Intentional violations are misdemeanors carrying a fine of $1,000 and are actionable civil infractions with mandatory damages and costs.  MCLA §15.272-3.  Further, MCLA §15.271(4) states, 

“[i]f a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action.” (Emphais added)

Costs and attorney fees are mandatory for violations of either the FOIA or OMA. House Speaker v. Governor, 195 Mich App 376, 394 (1992), (rev’d on other grounds).  According to another Michigan case, not even reduced costs and attorneys fees may be awarded.   In that case the court said, “. . . we disagree with the trial court's determination that less than actual attorney fees and costs can be awarded.  The OMA provides for "actual" attorney fees and court costs.  We can appreciate the trial court's reluctance to add to the taxpayers' burden, but there is no room for discretion.” Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich App 459, 474 (1988).

Plaintiff has incurred significant costs ($4300 so far) in attempting to persuade the board it was violating the law and his rights. It is only proper that a citizen who must sue to enforce the law and the Constitution of the US and the State of Michigan and not be penalized financially.  As the law and spirit of the OMA dictate, he should be awarded his costs and actual attorney fees.

V.        conclusion

This motion addresses solely the issue of whether Defendant violated the Open Meetings Act.  Plaintiff has shown that all meetings of the Defendant must be open to the public under the act, and they may be tape recorded.  The Defendant is such a public body and falls under no statutory exemption or exception.  The law states that the Defendant has the burden of establishing an exemption or exception.  Defendant waived any such defense by not raising it as an affirmative defense under the court rules.  Even if the Defendant attempted to bootstrap itself into the FOIA exception it would fail under its own weight.  The information submitted from each applicant is not intimate or embarrassing, so the exception would not apply in any event.

The purpose of the OMA is to promote good government, accountability, open the process to public scrutiny, and serve as both a light and disinfectant in exposing potential abuse and misuse of power.  The purpose of Plaintiff’s lawsuit is to promote these exact lofty ideals in the Kent  County Concealed Weapons Board.  Plaintiff has personally significantly burdened himself in his effort to correct the improper actions of the Defendant.  Plaintiff is a concerned citizen, who is in essence fighting city hall.  The OMA contemplates, and in fact mandates, reimbursing such citizens costs and attorney fees when incurred to set things straight.  Plaintiff asks the court to 1) declare the closed meetings held by the Defendant in violation of the OMA, 2) order them to hold open meetings in accordance with the OMA in the future, and 3) award Plaintiff costs and actual attorney fees for his entire experience in bringing the complaint to bear.

                                                            Respectfully submitted,

                                                            Stephen martin hickel

                                                            in pro per

Dated: June 20, 2000.                                  

                                                                        8220 Piney Woods

                                                                        Caledonia, MI 49316

                                                                        616-891-8336