[nfbmi-talk] regarding Mr. King at MCB meeting

[joe harcz Comcast]

In case you never received this this is Michael King's public record 
response to the Terry Eagle suit. Among other things please note the gross 
violations of the Rehab Act here, in stark contradiction to the RSA 
monitoring requirements in that the agency whishes Terry, a person on SSDI 
to pay for his training. That's a definite no-no. But the agency has 
violated this aspect of federal law for years in deed and fact, and here 
King does it again. And that doesn't even cover the gross violations of PA 
260 or of the Randolph-Shepard program. Regardless federal law in this case 
is supposed to trump any state interpretation and arbitrary and capricious 
standards.

Also note that here a State Attorney is acting in defense of individuals 
sued in their official capacity like the State is their personal defense 
attorney. Not very fair in principle, but regardless the taxpayer pays for 
Cannon's and others follies over and over again. And ultimately these abuses 
of power and practice comes out of vital services.

And his role at this meeting goes to what II consider substantial violations 
of the Open Meetings act, and even if not his surreptitious role in advising 
Zanger on the sneak in an audience of blind people is more than bad form.

In fact it is simply outragious!

Here's part of the case:


Table with 2 columns and 6 rowsUNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 TERRY D. EAGLE,

  Plaintiff,

v

 PATRICK D. CANNON, individually and in his

official capacity, JO ANN PILARSKI, individually

and in her official capacity, CONSTANCE

ZANGER, individually and in her official capacity,

JAMES HULL, individually and in his official

capacity CHERYL L. HEIBECK, individually and in

her official capacity AND GARY KOSCH,

individually,

  Defendants.

  No. 1:10-cv-212

 HON. JANET T. NEFF

 MAG. ELLEN S. CARMODY

    Terry D. Eagle

Plaintiff in pro per

2000 Boston Blvd, Apt. C19

Lansing, MI 48910-2448

517-372-7552

   Michael O. King, Jr. (P71345)

Assistant Attorney General

Attorney for Defendants Cannon, Pilarski, Zanger,

Hull and Heibeck

PO Box 30736

Lansing, MI 48909

517-373-6434

    /

Table end  DEFENDANTS CANNON, PILARSKI, ZANGER, HULL, AND HEIBECK'S REPLY TO

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY

JUDGMENT

STATEMENT OF FACTS

Eagle filed his Complaint on March 15, 2010. Defendants1 filed their first 
Motion to

Dismiss on March 29, 2010. Eagle did not respond claiming that he did not 
receive proper

service. Without ruling on the merits of Defendants' Motion to Dismiss, this 
Court denied the

motion and allowed Eagle to file an amended complaint. That Amended 
Complaint was filed on

July 6, 2010. Defendants filed their second Motion to Dismiss on July 22, 
2010. Eagle did not file a

response. At the hearing on November 22, 2010, this Court allowed Eagle an 
opportunity to file

a response to Defendants' Motion to Dismiss.2 The Court gave Eagle 
twenty-eight days to

respond. Eagle's deadline for responding was December 20, 2010. Eagle filed 
his response on

December 22, 2010 - two days late. Considering this Court has allowed Eagle 
to twice ignore the deadlines established by the

court rules with no consequence, Defendants urge this Court to strike 
Eagle's response as

untimely and grant Defendants' Motion.

ARGUMENT

I.

 The affidavits attached to Eagle's Response do not create a genuine issue 
of material

fact.

Should this Court decline to strike Eagle's response as untimely, Defendants 
assert that

the attached affidavits to Eagle's response do not create a genuine issue of 
material fact. In fact,

two of the affidavits do not address the issues surrounding this case or add 
anything new. The

remaining affidavit overlooks the controlling program rule and concentrates 
on rules that are

important, but not dispositive to this issue.

A.

 Fred Wurtzel's affidavit

At first blush, Wurtzel's affidavit appears to create a genuine issue of 
material fact.

Wurtzel spends a great deal of time detailing why Eagle is qualified to run 
a cafeteria under the

BEP3 Administrative Rules. Specifically, Wurtzel explains his understanding 
of the BEP

Administrative Rules and cites to a number of those rules. Wurtzel does not 
comment on the

controlling rule, however. BEP Admin. Rule 393.154 controls license 
revocations and reentry. Rule 15 states that

the Commission may revoke a license if an operator's vision improves so that 
he no longer

qualifies for the program.5 The Commission also may revoke an operator's 
license if the

operator voluntarily leaves the program.6 Moreover, "[t]ermination of 
participation in the

program results in automatic license revocation."7 Furthermore, reentry into 
the program after a

license revocation requires that the operator "shall again complete the full 
vending facility

training program."8 Eagle admits that his vision improved such that he was 
no longer considered eligible for

BEP under the Randolph-Sheppard Act. (Comp. ¶20). Therefore, his license was 
revoked under

Rule 15(2). As cited above, Rule 15 outlines the requirements for reentry 
into the program -

complete the full vending facility training.

The rule does not make exceptions for those who have received the training 
previously or

are otherwise qualified. In fact, all the individuals that this rule applies 
to would have received

the training previously and have been qualified and certified. They were all 
operators who passed the training and became certified and operated 
facilities before having their licenses

revoked. Therefore, there is no genuine issue of material fact - Eagle must 
complete the training

before he reenters the program and is allowed to bid on program facilities.

Defendants have not stopped Eagle from receiving the training. The problem 
is that

Eagle cannot pay for the expense of the training. Vending facility training 
is typically paid for

the Vocational Rehabilitation Division of the Commission. Eagle does not 
qualify for additional

expenditures to receive training. (Wurtzel Affidavit ¶8). Wurtzel stated 
that "[s]uch a large

expenditure would be a waste of limited financial resources available for 
preparing blind persons

to be employment ready." (Wurtzel Affidavit ¶8).

Finally, Wurtzel makes two statements that he is not qualified to make. 
First, he states

that Eagle was due a hearing when his application for a license was denied. 
That is a legal issue

and Wurtzel is not qualified to speak on the legal issues before this Court. 
Second, Wurtzel

states that there is a lack of qualified cafeteria operators within BEP. By 
Wurtzel's own

admission, he has not been with BEP since June 2006, over four and half 
years. He does not

have personal knowledge as to whether there is a lack of qualified cafeteria 
operators in BEP or

not.

1 Here, "Defendants" refers to Defendants Cannon, Pilarski, Zanger, Hull, 
and Heibeck.

2 This Court considered Defendants' Motion to Dismiss as a Motion for 
Summary Judgment

under Fed. R. Civ. P. 56.

3 Business Enterprise Program.

4 Attachment 1.

5 BEP Admin. R. 393.15(1)(a).

6 BEP Admin R, 393.15(1)(b).

7 BEP Admin. R. 393.15(2).

8 BEP Admin R. 393.15(2).

9 Fed. R. Civ. P. 56(e)(1).

10 Lujan v. Defenders of Wildlife, 504 U.S. 555; 124 S. Ct. 2301; 119 L. Ed. 
2d 351 (1992).

11 Lujan, 504 U.S. at 560-561.

12 There also is the issue of whether Eagle has standing to pursue this 
issue for third parties.

Generally, Article III courts do not confer standing in such a situation. 
Sprint Communs. Co.,

L.P. v. APCC Servs., 554 U.S. 269, 290; 128 S. Ct. 2531; 171 L. Ed. 2d 424 
(2008).

 Based on the above, Wurtzel's affidavit does not create a genuine issue of 
material fact.

Therefore, this Court should grant Defendants' Motion and dismiss Eagle's 
suit.

B.

 David Robinson's affidavit

Robinson's affidavit addresses issues not germane to this suit. Robinson 
decries the use

of sighted, temporary operators instead of blind, temporary operators. As 
addressed below,

Eagle lacks standing to bring this issue.

Moreover, Robinson gives vague generalized accusations instead of concrete 
facts to

support his baseless allegations. Robinson also purports to speak for what 
is in the best interest

of the State of Michigan and BEP, neither of which his is qualified to speak 
for. Affidavits are

not the forum for airing opinions and asserting baseless accusations, but 
facts of which the

witness is competent to testify about from personal knowledge.9 C.

 Terry Eagle's affidavit

Eagle's affidavit does not offer any new evidence than what is available in 
his Second

Amended Complaint. The only two new things it offers is Eagle's 
interpretation of two Attorney

General Opinions and his request for more time should the Court not find his 
response and

affidavits persuasive.

First, as admitted by Eagle, the Attorney General Opinions apply to state 
facilities.

Moreover, this is not a suit about whether Defendants are violating state 
and federal law by

allowing sighted operators to work temporarily. Eagle lacks standing to 
challenge that issue.

Also, Eagle admits that the Attorney General Opinions apply only to state 
law not to the

Randolph-Sheppard Act, the federal law which Eagle is claiming Defendants 
violated.

Therefore, these Opinions are not germane to these proceedings.

Second, Eagle begs for more time if the Court does not find his response 
persuasive. The

Court has been overly patient with Eagle. This Court has allowed Eagle to 
show up to two

hearings without responding to Defendants' Motions and plead for more time, 
which the Court

has twice granted. The Court should require Eagle to stand on his pleadings 
and grant

Defendants' Motion as no genuine issue of material fact exists.

  II.

 Plaintiff lacks standing to bring this action

Eagle lacks standing to bring his claims concerning his individual claims. 
This particular

standing issue is analyzed under the case and controversy standard 
articulated in Lujan v.

Defenders of Wildlife.10 Standing requires three elements: (a) an injury-in 
fact that is actual or

imminent; (b) causal connection between the injury and the complained of 
activity; and (c) likely

that a favorable ruling will address the injury.11 Under this same analysis, 
Eagle lacks standing

to bring the issue of whether the Commission can use sighted, temporary 
operators. A.

 Eagle's individual claims

Eagle's individual claims boil down to one thing: Defendants are not 
allowing him to bid

on BEP facilities. By blocking his access to BEP facilities, Defendants have 
caused Eagle injury

by frustrating his ability to pursue his employment goals. This misses the 
salient point, however. Eagle does not qualify under the rules to reenter

the program without completing the vending facility training. Eagle cannot 
retake the training

because he lacks the funds necessary to pay for the expense of training. 
Defendants have not

kept Eagle from taking the training; his lack of funds has. Therefore, the 
injury is not fairly

traceable to Defendants actions, as required by Lujan. Moroever, the 
Commission remains

willing to pay for Eagle's training if his vocational rehabilitation 
counselor recommends him for

the program. Upon information and belief, Eagle is not a client of the 
Commission's Vocational

Rehabilitation Services ad his last stated career objective was to be a 
paralegal, not a BEP

operator.

Eagle argues that he should not have to complete the training because he has 
a bachelor's

degree in hospitality management and experience in operating cafeterias. 
This is irrelevant as the rules provide for a specific type of training, or 
in this case re-training. An example may be

illustrative. If an individual lives in California, he can enroll in a 
non-ABA law school. Upon

completion of his studies, he may sit for the California Bar Exam. If that 
same individual moves

to Michigan after graduating from a non-ABA law school, he may not sit for 
the Michigan Bar

Exam. The issue is not whether he is "qualified" or has the taken all the 
correct classes. The

issue is whether he has completed the required perquisite training to sit 
for the Michigan Bar

Exam. He could not sue the State Bar of Michigan for refusing to allow him 
to take the exam -

he would lack standing. It was the individual's decision that caused the 
injury (not attending a

qualifying school), not the decision of the State Bar of Michigan.

Likewise, Eagle does not meet the perquisite to bid on a BEP facility. Eagle 
voluntarily

chose to undergo surgery that improved his eyesight. That decision had 
consequences. Eagle's

eyesight improved and he could live without being visually impaired. It also 
meant that he had

to leave the BEP facility and the program altogether. The rules provided for 
and Eagle had his

license revoked. Alas, his vision improvement did not last and he sought 
reentry into the BEP

program. Because of his earlier decision, Eagle faces certain consequences. 
Specifically, Eagle

must complete the vending facility training before reentering BEP.

Like the bar exam example, BEP sets the rules and enforces them. BEP is 
concerned that

all operators have the same type of training. Moreover, BEP is authorized by 
the Randolph-

Sheppard Act to ensure that all operators are qualified. BEP has 
accomplished this goal by

designing and implementing a vending facility training program, which it 
requires all potential

operators to undergo for entry or reentry into the program.

Also, like the bar exam seeker, Eagle must live by the consequences of his 
choices. His

choice to seek improvement for his vision resulted in his license being 
revoked. That revocation

had a consequence - it required him to complete training before reentering 
the program.

Therefore, it is not Defendants who have caused Eagle the injury he claims 
(not allowing to bid

on BEP facilities), but his own earlier choices.

Thus, this Court should find that Eagle has no standing to bring this suit 
and grant

Defendants' Motion.

B.

 Eagle lacks standing to bring claims concerning the Commission's use of

sighted, temporary operators.

Again, the standing analysis is conducted under Lujan. As to this issue, 
there is no injury

to Eagle. Eagle claims that he is injured (as well as other blind 
operators).12 Yet, Eagle's alleged

injury is that he was not chosen to operate BEP facilities on a temporary 
basis. The rules do not

address temporary operators. The Commission (even under Wurtzel's tenure) 
used sighted and

blind temporary operators. Moreover, temporary operators do not have a BEP 
license; there are

merely placeholders until a qualified blind individual takes over the 
facility. Furthermore, the temporary operators are drawn from the 
"marketplace." Eagle belongs

to the marketplace and has the same rights and expectations of other 
temporary service providers

- none as to the issue of being chosen to fill a facility on a temporary 
basis. The Commission is

allowed to use their business judgment to determine which operators (sighted 
or blind) to fill

those positions based on a host of legal considerations. Because he was not 
chosen does not

mean that he was injured by Defendants. Therefore, this Court should find 
that eagle lacks

standing and grant Defendants' Motion.

CONCLUSION AND RELIEF SOUGHT

For the above cited reasons as well as those articulated in Defendants' 
Motion,

Defendants request that this Court dismiss Counts I, III, &VI with prejudice 
as Defendants have

either Eleventh Amendment immunity or qualified immunity as to those claims 
and Eagle has

failed to state a claim upon which this Court can grant relief. Since Counts 
I, III, &VI are the

only federal claims espoused by Eagle, Defendants request this Court 
declines to exercise

supplemental jurisdiction as to Counts II & IV-V.

Respectfully submitted,

 Bill Schuette

Attorney General

  /s/ Michael O. King, Jr.

Michael O. King, Jr. (P71345)

Assistant Attorney General

Attorneys for Defendants Cannon, Pilarski,

Zanger, Hull and Heibeck

Public Employment, Elections, and Tort

P.O. Box 30736

Lansing, MI 48909

(517) 373-6434

KingM5 at michigan.gov

P71345

Dated: January 5, 2011

 CERTIFICATE OF SERVICE

I hereby certify that on January 5, 2011, I electronically filed the 
foregoing paper with the Clerk

of the Court using the ECF system which will send notification of such 
filing of the foregoing.

  s/Michael O. King, Jr. (P71345)

 Michael O. King, Jr. (P71345)

 Assistant Attorney General

Attorneys for Defendants Cannon, Pilarski,

Zanger, Hull and Heibeck

 Public Employment, Elections & Tort Div.

 P.O. Box 30736

 Lansing, MI 48909

 (517) 373-6434

----- Original Message ----- 
From: "Lydia Schuck" <laschuck at juno.com>
To: <nfbmi-talk at nfbnet.org>; <accesstherapy at gmail.com>; 
<jcscot at sbcglobal.net>; <president.nfb.mi at gmail.com>; <laschuck at JUNO.COM>; 
<pilarskij at charter.net>
Sent: Saturday, March 19, 2011 7:28 PM
Subject: [nfbmi-talk] regarding Mr. King at MCB meeting


> Hello NFB list and fellow commissioners,
>
> Hi this is Lydia writing to tell you about the "man in the doorway" at
> the meeting.  I do not know why Mr. King was there,  because I am still
> kind of naive about all this.  He was giving messages to Connie Zanger
> and several times she stepped out of the room to talk with him.  He
> handed her a note which she read and then covered with a paper, because I
> might have seen it, I suppose.
>
> Anyway it reminded me of when I lived in Chicago.  I had a reason to
> attend one Chicago City Council meeting and one of the most powerful
> aldermen, Ed Burke, stood in a doorway and conferred with someone, left
> and returned, got messages....who knows what was up.  I like to think we
> in Lansing are much more transparent than the Chicago machine.  But you
> gotta wonder.
>
> Thanks for the great public comments at the meeting.  And I would like
> you to know that the woman who said she was not getting any help getting
> her case started, Gloria Tatum, I think, was connected with Leamon at the
> break.  But as Joann mentioned at the meeting, this way of hearing
> problems and sending folks straight to Leamon or Pat is not a good thing
> in the long run.  For now, though, it is good for us as the commissioners
> to know who is not being served.  If you know a parent or teen who needs
> help, send them to me....If this is the way to get people into the
> system, then we will keep it going.  Lydia
>
> _______________________________________________
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