[nfbmi-talk] regarding Mr. King at MCB meeting
joe harcz Comcast
joeharcz at comcast.net
Sun Mar 20 00:43:29 UTC 2011
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
>
> _______________________________________________
> nfbmi-talk mailing list
> nfbmi-talk at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org
> To unsubscribe, change your list options or get your account info for
> nfbmi-talk:
> http://www.nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/joeharcz%40comcast.net
More information about the NFBMI-Talk
mailing list