For those of you who follow my miscellaneous national and topical interests like signature-gathering, and Ward Connerly's SuperTuesday, you'll also know that I follow First Amendment questions of whatever type. The Paul Jacob story hits all three. Connerly is helping a group in Oklahoma collect signatures as I write. Signature-gathering difficulties there are driven largely by politics - and although the people of Oklahoma are quite rational, their Attorney General and special interests seem to have figured out that out and realize they must hamstring the people.

Enter Paul Jacob. Like him or hate him and his efforts, he helped a group in 2005 in Oklahoma collect signatures for a version of TABOR (taxpayer rights initiative). Taxpayer initiatives are serious challenges to government and special interests because when taxpayers can say no and turn the spigot off - special interests and the "governmental class" (the army of people working for the government get to vote, and self-lobby, too) get mad. Mad enough to put people who threaten them in jail.

So, when Democrat Attorney General Drew Edmonson told a grand jury to indict Jacob earlier this year, they jumped. Grand juries would indict cinder block if told to, and even under the best circumstances, a grand jury indictment is under a standard of evidence that there is simply enough evidence to warrant a trial - not that anyone is guilty. Regardless, the indictment was for "conspiracy" to "defraud the state", a stretch of that charge based on the underlying crime of ... coordinating signature-gatherers who did not intend to live in Oklahoma forever. That is, using "out-of-state" signature gatherers invalidates a signature in Oklahoma (nowhere in the Oklahoma code however, could I find a law criminalizing out-of-state gathering, merely the AG interpretation that residency means someone must intend to live in Oklahoma forever). From the non-crime of not knowing exactly where one might live in a few years, and two years following the Oklahoma state court's "referee" refusal to place TABOR on the 2006 ballot, the AG indicted 3 petition drive leaders (with no indictments for any criminal circulator below them, another hard piece of logic to follow). Now clearly this all contrived to make all signature-gathering of any type more difficult, and to plant the fear of criminal prosecution in the hearts of petition-drive leaders.

But the AG made a technical mistake in his grand jury indictment, and misused the multi-county nature of that body, so he had to drop the charges. Yesterday, he reissued the charges under his own office's direct power of prosecution, and is going full-steam ahead.

Whether you are liberal or conservative, or libertarian (I guess if you're authoritarian, you should support the AG), you should take note of this case. It's about control and power. It's about suppressing speech and petitioning. Sure, reasonable rules can invalidate bad or petitions created in error - and although there is probably no compelling interest in state residency requirements even if there were, this case is one of ambiguity in law being used as a blunt hammer to quash dissidents. Even if you are an opponent of Jacob's views, to remain silent when his speech and petition rights are subverted is to invite the same to happen to you when you disagree with the establishment.

In all, this is probably the most important First Amendment case, and clearly the most important petitioning case to arise from the year 2007. Follow it closely. Prevent it from happening in your state. Blog it if you can. Write a letter to the editor if its relevant. And be careful when you travel through Oklahoma.

If it has to do with signature-gathering (particularly if not inside Michigan where one of my sister-sites will pick it up), its a subject ripe for PP&M. And this one is ripe - Ralph Nader has sued the DNC alleging a vast conspiracy (VLWC) by the Demoncratic National Committee to obstruct his ability to get on the 2004 ballot. Frivolous lawsuits, blockers, bogus challenge-phase assertions. The suit itself details some 90 law firms that participated.

This story, from the site "Ballot-pedia", which is a brilliant use of the wiki concept to map out a small universe of specialized knowledge, details it well and provides links to the original source documents and news stories.

Needless to say, while ZR doesn't normally subscribe to conspiracy arguments because they are too complex and usually not the simplest explanation, there is some validity to this one. The DNC didn't make it a secret that it wanted to keep Nader off the ballot - in fact, it admitted it was trying to do so. And various officials admit to using frivolous legal techniques solely to drain Nader. That's abuse of process, and Nader should recover something for it.

Bill Nowling at Lunchbucket Conservative has been pointing out the ties between Norman Hsu and Michigan's Democratic leaders Debbie Stabenow and Jennifer Granholm.

Democrats have taken a liking to continually beating on the Jack Abramoff scandal that is now a year in the past to point to Republican corruption. But here we have it in spades on the other side, straight from a Ponzi-scheme artist, Norman Hsu. First, Hsu is a bad guy, as the New York Times points out:

According to court records from the case, Mr. Hsu ran a Ponzi scheme that took in cash from dozens of investors and returned profits to some of them before shutting down with more than $1 million missing.

Now Hsu is accused of a political-Ponzi whereby he would act as conduit to evade campaign finance limits.

With RightMichigan also noting the additional money going to Michigan Committees. Stabenow has returned $4200 of the donations to a charity, but apparently hasn't donated remaining $27,000. The Michigan Democratic State Committee apparently accepted $35,000, and Granholm's gubernatorial committee over $13,000.

Obviously, candidates receiving such money aren't necessarily aware of crimes before they become known (bad that our system is such, but reality). But it would be hypocritical to continue railing on 10th degree of separation links to Jack Abramoff, as well.

And its also time to give it all back, ladies, and Mark Brewer.

Most of my Michigan readers are probably aware of former Michigan Lottery Commissioner and Granholm-Appointee Gary Peters and his recent declaration of candidacy to run for 9th District Congressional seat held by Joe Knollenberg. As a matter of full disclosure, I have in the past worked for Marty Knollenberg - Joe's son - but have no current financial relationship with the family. Naturally, as a result of that relationship, I follow the race with a keener interest than ordinary.

An interesting early twist to this race is that Peters initially appeared to do the right thing in the spring when he left his government post in preparation for running for office. But then, almost immediately thereafter, talks of Central Michigan University hiring Peters for a part-time endowed "Griffin Chair", which is an honorary appointment of considerable tradition at CMU, at about $60,000 a year for teaching one class and maintaining a short set of office hours. It's maybe quarter-time work. Peters accepted that position, and as I believe it will become clear over time, he knew he'd be running for US Congress while doing it. So the "right thing" - resigning from a government post to run full-time - became more of the wrong thing for Gary Peters, who actually gets a cush quarter-time appointment to pay his bills while he is still able to devote full-time to his campaign. It's actually a better gig for him than Lottery Commissioner because he'd have had to actually work full-time, and its all on the taxpayer dime. You may agree with Mr. Peters politically, but this whole CMU angle looks trickery and raises taxpayer-funded lobbying/campaigning issues.

Yesterday, I sent this letter to the President, Political Science Chair, and others:

Dear President Rao, Mr. Ringquist, and others:

I write to express serious reserverations over the appointment of Mr. Gary Peters to the Griffin Endowed Chair. While the university has argued the chair is privately endowed, we all certainly know that such appointments are still made by the public body for the equal benefit of students. Once money is given to the university it becomes public money subject to the ethics laws and will of the people of the State. Indeed, the university, like every other university, has an obligation to the taxpayer to seek out private donors to reduce the taxpayer burden. Those donations don't give the university extra flexibility in violating the laws of the State or even stepping outside the bounds of wisdom and fiscal prudence. It is also certain that such money is "fungible," that is, regardless of the source, its existence frees up other money which is most certainly subject to ethical regulations and common-sense.

In this vein, I write to seek your explanation on the appointment of Gary Peters. It is unnecessary for you to reiterate his qualifications. The question is whether the university should knowingly hire someone that it knows will become engaged in a full-time partisan political campaign during the propose tenure of the position. This question has four aspects. First, hiring a person while they are engaged in the campaign constitutes a form of financial support to the candidate, freeing them from the need to engage in additional fundraising (Mr. Peters can legally pay himself a salary from his own campaign, but CMU has now freed him of a large chunk of that burden - indeed, a larger chunk of that burden than anyone would legally be allowed to donate to his opponent). Second, hiring such a person calls into question whether their full-time committment is to their campaign or to students. Third, hiring such a person in the Political Science department, where questions about the campaign are bound to come up, calls into question whether an unbiased presentation, even at the subconscious level, is possible. Fourth, there is a question of whether Mr. Peters was forthright with this department during the hiring process? Most observers believe that Peters made a decision to run shortly after or before leaving his role as Lottery Commissioner. Was the Committee that selected Mr. Peters aware that he was running when it made the decision to hire him?

While it may be the case that faculty members across the country run for elective office during their tenures, it is far more rare that people running for elective office are hired by public universities to teach political science while they are in the midst of seeking office. I think it is vital that the university clarify to the public what its understanding of the relationship was and Mr. Peter's intent was when it made the decision. My request for this clarification does not necessarily imply that anyone, including Mr. Peters, committed wrongdoing here. My request is so that the public be fully informed so that it may judge the situation for itself.

Truly,
Chetly Zarko

In a time of fiscal crisis, the President of Michigan State University gave herself (or asked and allowed the Board of Trustees to approve) a 25% raise. And the Top 555 employees averaged at least 5.5% raises, while the rest of the school's employees averaged 3% raises. And the school's overall employee based increased, with 2% more total employees hired.

Zarko Research publishes here a listing of the 2005 "Top 555" employees, the 2006 "Top 555" employees, and the entire 11,000 employee database here (WARNING - 2MB in Excel Format), all obtained through the Michigan Freedom of Information Act (FOIA). In our Top 555 listings, we provide a series of statistical analyses to provide context. And the context is shocking when MSU is asking its students and parents to pay 9% more in tuition this year, and blaming it on lack of state legislative appropriation.

But if you think that's rough, wait until we post cross-year analysis of the University of Michigan databases, including its mammoth 38,000 employee structure.

The Lansing State Journal apparently is taking a world of criticism from State of Michigan employees for publishing a database of all 53,000 employees. The employees somehow feel their names should be excluded from the list and that the LSJ has violated their privacy. Here a media law student, Jane Briggs-Bunting, defends the LSJ, the LSJ defends itself, while here and here they are attacked and news story on the criticism, as they are in numerous letters to the editor.

This is just public employee whining, and while, in some cases these employees may be sincere in that they "feel hurt", LSJ has done nothing wrong. Part of democracy sometimes includes people, particularly government employees, accepting the consequences of their choices. Working for government is a choice, and the people are entitled to know who works for them, not just the job titles. Of course, one of the choices is whether to work for government. Many employees say they have "sacrificed" private sector opportunities to do so - perhaps they have, but if its too great a sacrifice then they should go into the private sector where 1) they have less legal right to complain about what their boss does 2) they might or might not make more money or benefits. While LSJ's subscriber base has a large number of government employees who live in Lansing, it is paramount that LSJ stand up for what is right despite the pressure it is facing. If it doesn't, it won't matter - someone else will publish it in their stead.

It has been said that there is no possible use to the public for the names us than "prurient" interest or to create dissent against government employee salaries and neighborhood jealously. So what? Even if the public is morbidly curious, or especially if it creates a concern about overpaid salaries, that is the public's choice and right. The public can decide for itself if the salaries are too high. For example, Zarko Research has been working on publishing a similar list for the 38,000 University of Michigan employees, with names. The top thousand employees salaries are simply offensive. Those officials should be exposed, with names, and how does one "draw the line" between which names should be disclosed and not disclosed, other than simply publishing them all. Sure, the janitors and teaching assistants are unpaid, but they themselves can use the collective and individual information for a strong public purpose - knowing whether they are paid according to relative worth and lobbying for fair pay (note, the public employees of the State also benefit in that way). Such information can be used to guarantee or prove racial or gender discrimination cases, another benefit to the individual employees. Finally, only with name linkages can a researcher or citizen cross-check campaign finance donations to the list and know how his government employees are lobbying his own government for whatever purposes. These linkages would allow one to find "out-of-place" patterns, such as patterns of low-paid employees making large donations to candidates (say a janitor donating the $3400 to the Governor).

Sure, individual government employees may not at first glance like their name and job title being published, but in the long-run its better for both the public and the individuals that we don't literally have a secret government. Who works for government and how much they make is among the most basic facts of government. If we can't know that, we might as well scrap FOIA and OMA and forget about democracy.

The Livingston Argus is reporting through "sources" that the secret deal between the Howell Education Association and the school bargaining team representatives essentially saves the district nothing.

Sometime soon — perhaps next Monday night — the Howell school board will vote to ratify a three-year contract with its teachers.

As with most such contracts, the details won't be revealed to the public until after the labor agreement is approved.

But if there is truth to the rumors that have leaked out about the contract, we have to wonder why the board waited a full year before signing this deal. In the final analysis, it doesn't appear that the district gained much by digging in its heels.

According to a number of off-the-record sources, there are several key parts of the contract:

# The expensive MESSA-administered health insurance remains.

# Teachers, who up until now have paid nothing toward their premiums, will now be assessed a modest amount: $600 retroactively for the year just ending and $750 for next year.

# Raises are small — a percent or less for the first two years of the contract. But remember that the majority of teachers also receive experience — or step — increments, which means their pay will increase by about 5 percent a year.

If these contract features are true — no board, administration or union spokespeople will comment — then the management in Howell schools has decided not to take a hard line in negotiations. That's too bad. For if there were ever a time to hang tough, this was it.

Zarko Research suspects the Argus is correct, although we have no way of verifying it and it may or may not be a rumor that is being spread for some other reason.

While ZR doesn't advocate a "hard line," it believes fair (obviously that has hugely variant meaning) concessions should have been made on both sides and that the Board should stand on principle, and this appears to be a one-sided deal as the Argus recognizes. If the Board was right in February and there was a budget crisis necessitating its February actions, then reverting to and accepting a pre-February offer by the union proves the Board either lied then or is lying now about the fundamental fiscal position of the school. Either it had the money then to accommodate the union's requests, or it didn't. Either the future fiscal crisis of exploding health care costs is serious, or it isn't.

This is a great reason why all collective bargaining agreements should be public. Indeed, not just the final agreement, but make the meetings open. While FOIA might seem a fruitful way of getting at it, case law on the issue is confusing and FOIA would allow enough of a delay through its normal response time that it wouldn't be productive in most cases anyway. The legislature must act to reform the Open Meetings Act and FOIA to prevent this kind of secrecy. The public has a right to advance consideration of any proposed final contracts - we're not even talking about events pre-dating the final agreement here. Indeed, the entire collective bargaining process should be subject to open meetings. When you negotiate with the taxpayer for money, the taxpayer should be able to watch. Period. It's simple. It's obvious.

Someone blinked - but the School Board can still stand up for what is right.

Is this ever ironic. Especially for regular readers of ZR.

The Michigan Civil Rights Commission issued this odd press release on 5-21. Their releases come straight to ZR's inbox:

Civil Rights Department Affirms Right To File Complaints Without Retaliation

Lansing, MI * The Michigan Department of Civil Rights (MDCR) released the following statement today in response to a report issued last Wednesday by the Judicial Tenure Commission (JTC) recommending the suspension of Lansing Judge Beverly Nettles-Nickerson.

“While neither the Commission nor Department has any current involvement or legal interest in the matter involving Judge Nettles-Nickerson, it is imperative to clarify that the legal right of Michigan residents and visitors to file complaints with the Michigan Department of Civil Rights is protected. Both the Elliott-Larsen and Persons With Disabilities Civil Rights Acts explicitly provide protection from acts of retaliation for civil rights activity, including filing a complaint with MDCR.

It is our sincere hope that the JTC did not intend to imply that Judge Nettles-Nickerson should be disciplined in any way for exercising her right to file a civil rights complaint if she believed that she was being subjected to illegal discrimination. A suspension for filing an allegation of illegal discrimination would violate state and federal civil rights laws designed to protect those who stand up against discrimination from any acts of retaliation. Such a message from a legal authority would have a chilling effect on the state’s ability to protect persons who legitimately believe they may be victims of illegal discrimination.

While we take no position on the veracity of any fact claimed by any party in this matter, we ask the Judicial Tenure Commission to amend its complaint to clarify that they are not seeking to discipline Judge Nettles-Nickerson for the act of filing her complaint with the Michigan Civil Rights Commission and Department.

We further call upon the Supreme Court and any appointed Special Master to clarify that, regardless of what decision they may ultimately reach in this matter, their ruling is in no way predicated upon the protected act of filing a complaint with the Michigan Department of Civil Rights."

I mean, who could be for allowing retaliation against people who file complaints?

But what if the complaint is provably fraud? Whoa. Isn't this the same Commission that chastised the Michigan Civil Rights Initiative (MCRI) for alleged-signature-gathering "fraud" (even as it agreed in March 2007 with the premise of MCRI arguments about the limitations of Proposal 2, thereby contradicting the substance of its previous fraud allegations) and declared that it had the right to investigate such fraud. And if a sitting Judge corruptly abuses the Commission by filing a fraudulent complaint against her cohorts, shouldn't she be disciplined as a result? The Commission "takes no position on the veracity of any fact" claimed by anyone ... yet it takes a position that the complaint is entitled to unlimited deference? If I file a frivolous lawsuit - or commit perjury, I'm going to face a serious set of consequences. So too should someone who abuses the Commission's process, if it is provably the case that it was knowingly abused.

Read more »

The Michigan Education Association (MEA) has filed a so-called "reverse FOIA" lawsuit in Livingston County Circuity Court, Case # 07-22850-CK, against Howell Public Schools in an effort to keep e-mails requests by Zarko Research secret.

A limited selection of these e-mails were published on Friday days after we received a partial response from Howell schools complying with the FOIA request. The court has issued a temporary restraining order while it considers arguments, and the first hearing is expected on Thursday.

ZR opines that the MEA has no basis in FOIA for such a move and that this is a transparent attempt to keep secret public records that are embarrassing to local MEA officials. MEA's very action here - coupled with the incriminating e-mails already released - proves it has much to hide.

Press may contact ZR at 248-930-7766 or by email firstname at first-lastname.com

Links to ZR Howell FOIA work

Howell School FOIA Exposes Union Leaders Use of Taxpayer Resources for Lobbying.

FOIA of E-mails Expose Taxpayer-Funded Lobbying
http://chetlyzarko.com/b2evolution/index.php?p=677&more=1&c=1&tb=1&pb=1
More Howell Emails
http://chetlyzarko.com/b2evolution/index.php?p=680&more=1&c=1&tb=1&pb=1

In this investigative piece, the Flint Journal takes to task a group of school board candidates in the upcoming May 8, 2007 elections for having missed personal opportunities to vote in the past. By simply checking the qualified voter file maintained by the state, or a city or county clerk's files for local elections, one can come up with this fairly rapidly. Here's the upshot:

They're asking for your vote May 8, but five of 21 candidates for the Board of Education haven't voted in the past five Flint school elections, and five others have cast ballots in only one of them, according to city of Flint records.

None of the candidates voted in all five of the elections; five of them voted in four.

Some candidates with spotty records downplayed their significance; others said voters should take note.

"It's hypocritical to ask someone to vote for you when you don't participate in the democratic process," said candidate A.C. Dumas, among those who voted in four of the five elections.

ZR has a bit of a different take. While there is validity to the criticism that a candidate didn't previously vote, I'll bet many of you didn't even know there were school board elections on May 8, or if you knew, the elections may have been uncontested and it wouldn't be productive to spend your time casting a ballot in a non-competitive election. We suspect the lower voter turnout even among people now running for school board is that they didn't know about - or races weren't competitive enough - for them to vote in previous elections. That's a problem.

These elections are so-called "stealth elections," designed to have maximally low voter turnouts so schools or municipalities can more easily pass their millages and bonds by turning out teacher's unions members. A local election typically costs $10-50K to administer, so multiplied across the state, this would be a superb low-hanging fruit (low hanging in how it would impact government) to work on for consolidation. In 2004, Republicans lead by state Sen. Ruth Johhson thought they had a solution when they limited elections to 4 dates and encouraged localities to move elections to match larger even-year primaries or generals, but only two districts in Oakland County opted for the change. The law did have an effect on ensuring that all spring elections occur on one date (previously not the case), but the real savings haven't been realized. Politically though, this is a high-hanging fruit because unions, municipalities, and school administrators all agree on stealth elections because it increases their power in the lower turnout elections. It's corruption at its best. They have proffered two fake arguments to suggest that we need these unknown, low-turnout elections.

First, is that school board members "need the time to learn the complexity of the school board operations" and electing them in May is the only way to ensure that they come into office in June or July and have a couple months on a board before the school season starts during summer break. The variations on this are that this would "break existing law," (change it, although existing law allows Nov. elections, so school boards can choose it now) require charters to be amended (so what - do it - save the money), or allow current members to serve longer than they were elected for (shorten current terms by 7 months rather than lengthening them by 5). This is so easily solved and even flipped on its head that its laughable - ZR believes it is the first to recommend that schools vote in November for trustee positions and have an extended "Trustee-Elect" term where the members are required to actually sit in the 7 following meetings until June, when they take office. They would actually have more experience under this system. The second type of argument is that schools may need elections for bonds and millages or for unforeseen circumstances. Again, easily solved - aside from the fact that school boards are supposed to plan well-ahead for such things. ZR proposes that all school (and municipalities) elections be held in November of odd years OR August or November of even years, AND schools be given an option to hold their own special elections for millages once per year by special vote anytime they want leasing equipment from their counties (which often resides on school property anyway as they manage local precincts). The real truth of why this hasn't happened yet is that low-turnout elections are more easily controlled by a mobilized force with a vested interest in your tax money. In the meantime, ZR proposes to close the budget delay in school aid payments and make it uniform with the rest of the budget so that schools don't have to take out short-term (weeks sometimes) loans to cover gaps caused by state delays, which itself would save the state money in the long-run. If that happened, schools might actually warm up slightly to such a deal.

We need further consolidation. This legislation could easily be passed - and the time is ripe with the current budget crisis.

This apalling but insightful Grand Rapids Press story details the inner-workings - at least as much as we're allowed to see - of Grand Rapids Mayor Heartwell's legal shenanigans to oppose implementation of Proposal 2. The city can't afford it, but its not the Mayor's personal stash of money so who cares?

Jim Harger writes:

Suing the state to overturn a voter-approved constitutional amendment is not going to be easy -- or cheap.

That's the news Mayor George Heartwell and City Attorney Philip Balkema delivered to the City Commission today.

Two weeks ago, Heartwell told commissioners he wanted to sue in federal court to overturn the Michigan Civil Rights Initiative. State voters adopted the constitutional ban on government and university affirmative action programs by a 58 to 42 percent margin in the Nov. 7 election.

So what has Heartwell done? It seems there has been some behind-the-scenes work. Stuff Heartwell doesn't really want to identify - he's concealing the identity of law firms that have done "free" legal research.

Since then, Heartwell said two law firms have offered some free legal work to help the city overturn the amendment. He declined to identify the firms, except to say one is based in Grand Rapids and the other is a Detroit-area firm with a local office.

But even with the free legal help, Balkema told him a challenge could cost the city between $250,000 and $500,000, Heartwell said. Expert witness fees, depositions and lengthy discovery proceedings could run up the city's bill quickly.

Still, Heartwell wants to explore whether other cities, universities or national legal foundations want to step into the legal ring with the city.

Heartwell said he wants to hear from other commissioners today, but is not looking for a decision.

"I'm not looking for a vote right now," he said. "There's a lot more information we need to get."

Why conceal the firms? And Wow - the city (no, taxpayers) could chunk up a quarter to half million? I see - the law firms are getting what I'd call an unethical leg-up in a process that should be open to bidding on the contract. Indeed, a ZR FOIA request might be piping along on this one.

But the mayor sees an uphill fight on the money part. And it gets better. Commissioners believe it "is the will of the people" (of the City of Grand Rapids who voted no generally).

Among commissioners, opinions vary on pursuing the lawsuit. Third Ward Commissioners James White and Elias Lumpkins sounded cautious support when the idea first surfaced. Today, Lumpkins remained supportive but was concerned about the cost.

"I think we have to be cognizant of the struggles we had last year in trying to balance the budget," Lumpkins said.

But Lumpkins also believes filing the lawsuit would be representing of the will of the citizens of the city. No votes on Proposal 2 exceeded yes votes in the city 54 to 46 percent.

I'd suggest to Mr. Lumpkins that if he wants to use "will of the people," he should hold a special election to see if those no voters also want to fork over a special millage to pay for the likely losing lawsuit. That'd be interesting!

But other commissioners seem to have more wisdom.

Some city commissioners said they are leery of challenging a decision by voters even if they opposed the constitutional amendment.

"I got a lot of calls from residents and a lot of them were upset," said 1st Ward Commissioner Roy Schmidt. "The voters have spoken and even though it didn't pass in the city, we shouldn't be messing with that."

"The voters made a decision and we need to respect that," he said. "We might not like the outcome, but we have to live with it."

Second Ward Commissioner Rosalynn Bliss said she, too, is worried about the cost of litigation. "I was strongly against Proposal 2," she said. "But the people did vote, and that's the essence of democracy."

First Ward Commissioner James Jendrasiak said he's not ready to sue, either.

Second Ward Commissioner Rick Tormala said he wants to make sure a legal challenge has a likelihood of success and won't harm the city's cause.

But wait. Heartwell doesn't even have standing yet!:

City officials also must address whether the new amendment will force them to change their equal opportunity programs aimed at recruiting more women and minority-owned contractors for city work.

Heartwell said Balkema's staff and the Equal Opportunity Department still are analyzing the impact of the amendment, which takes effect later this month.

You know it's without basis when a lawsuit is threatened before the party even knows whether it will be affected or has been damaged.

Proving the thesis of this blog, in a story by Forbes magazine yesterday, Justice Stephen Breyer stepped off the diving board and argued that the Constitution sometimes needs a little extra interpretation. He also accused the founders of writing a "vague" First Amendment, one which he apparently knows exactly how to (re)interpret. The story relays comments made by Breyer on Fox News Sunday.

Breyer explains recent decisions with this dangerous tack:

In his interview, Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution because phrases such as "freedom of speech" are vague. Judges must look at the real-world context - not focus solely on framers' intent, as Scalia has argued - because society is constantly evolving, he said.

"Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' - neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.

No, the founders didn't directly tell us how to apply it to the "internet", which didn't exist two hundred years. They simply said Congress shall pass no law abridging freedom of speech. That includes the printing press, the word of mouth, and the occasionally meaningful electron. Stephen, which part of it don't you understand? "... no law ..." or "freedom of speech". I simply haven't heard anyone say free speech was vague. Should it be limitless? Not when it directly causes physical danger. But that's not at issue here.

Here, he admits to knowing the meaning of "freedom of speech," and seemingly ignores the "no law" in favor of some laws that "level the playing field."

Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.

Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn't tied to special interests.

"You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money," he said.

ZR has said it before in analyzing Grutter. The First Amendment will shortly follow the sacrifice at the alter of diversitty we've already made of the Fourteenth Amendment. It appears that leveling that "playing field" in "terms of money" is sufficient grounds to think there should be "some laws" - rather than "no law" - abridging our most cherished amendment. Of course, there's nothing in violation of the principles of racial equality in leveling a monetary playing field, and while I support socio-economic alternatives to in the race preference domain, it is unjustifiable to support government intrusions that abridge speech. Breyer renders McCain-Feingold for what it was - the triumph of power over money. ZR will admit that it is a delicate balance of the three forces that keeps our system going, but we are guided by our reliance on key principles. The single most important driving principle of American democracy and economic success is free expression. If money were the only problem with our political system, we'd be in fine shape. It isn't.

Breyer sets himself up as a more extreme diviner of the meaning of the Constitution than anyone accused of being an "originalist". Rather than use the words and history of the Constitution itself in an academic effort to mine the meaning of the Constitution where it is truly vague (it isn't that often, so that effort should be relegated to the rare), Breyer simply assigns to the Constitution his view of what its purpose should have been. It's an interesting view:

"We're the boundary patrol," Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.

"It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.

Speak about vague. What is the "democratic system," compared to the precision of "pass no law that abridges freedom of speech" (which, I'd say is one specific, central part of the "democratic system", by the way)? What are "basic liberties" (again, one specific one is the First Amendment, along with others)? The "rule of (which and whose) law"? We can certainly agree that the Constitution does all those nebulous good things, but how (of course, one of the specific ways is that "division of powers" he cites to prevent anyone from getting "too powerful," but the separation of powers was a check on government, not a justification for government to check individuals and their speech)? Most telling is Breyer's phrase "a degree of equality." Hmm. Only a degree? The Declaration of Independence, certainly a greater moral authority, and I'd argue of some value legally, on the topic of divining the intent of the Constitution is again clear. "All men [and women] are created equal." Not degrees of equal. The Fourteenth Amendment though is equally clear, a divination of a truth our nation only realized as self-evident 87 years into its existence and during a bloody civil war. But Breyer places himself above that - he's the "boundary patrol". Unfortunately, Breyer is out-of-bounds.

Oral arguments in Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, two cases dealing with racial preferences policies in high schools, were heard today.

BAMN was there and photographed here by an AP photographer, in this report by Voice of America.

Justice Anthony Kennedy is now the swing vote, and most observers expect a modest tightening of rules against preferences.

Democrats rode a national wave of anti-Republicanism this year, in large part due to corruption scandals embroiling individual Republicans across the country. But here in Michigan Democrats are promising to protect a newly elected legislator who committed an armed robbery in 1993, despite a Michigan Constitutional provision that disqualifies felons convicted of crimes "involving a breach of the public trust." Here, the South Bend Tribune reports:

Democrats support Democrat Bert Johnson's intention to take office when the new House convenes in January, said Dan Farough, a spokesman for House Speaker-elect Andy Dillon, D-Redford.

Current House Speaker Craig DeRoche, R-Novi, had promised to block Johnson, of Detroit, from taking office because of a 1993 armed robbery to which he pleaded no contest.

"Bert Johnson will be seated," Farough told the Detroit Free Press for a Wednesday story. "This was a political issue drummed up during campaign season to divide people."

The Michigan constitution bars people from the Legislature who have been convicted of a felony "involving a breach of public trust" within the previous 20 years.
...
DeRoche or another lawmaker still could force a vote to block Johnson, but DeRoche hasn't decided whether to press the matter, a spokesman said.

So its a "political issue drummed up during campaign season" when it would harm Democrats, but its not when admittedly corrupt individuals like Tom Delay and Mark Foley have to withdraw from races. The sad thing is the Democrats could have easily found someone else to replace Bert Johnson in a non-competitive Democratic seat, but they have opted for their own stubborness in interpreting the law to protect their own. It seems to be a pretty plain reading of the law that using a gun to rob someone is a "breach of the public trust." Johnson does not belong in the legislature, but apparently new speaker Andy Dillon doesn't have the courage to admit it.

Power and politics as usual.

Earlier today I received an email from the public relations officer of the Michigan Civil Rights Commission and a statement on its behalf condemning the people's decision in passing Proposal 2 (MCRI, or the Michigan Civil Rights Initiative).

It's rather humorous, if not a bit contrived. Here it is entirely:

State of Michigan
Michigan Department of Civil Rights

For Release: November 08, 2006

Contacts:
Trevor Coleman, Director of Communications
Detroit: 313-456-3790 Lansing: 517-373-8787

Harold Core, Public Information Officer
Lansing: 517-241-3986

Michigan Civil Rights Commission and Department
Statement Regarding Proposal 2

Lansing, MI - Michigan Civil Rights Commission Chair Mark Bernstein and Michigan Department of Civil Rights Director Linda V. Parker today released the below statement regarding the outcome of the Proposal 2006-2 vote creating a Constitutional amendment banning affirmative action in Michigan.

"This is a very sad day for Michigan as our state has delivered a message on race, gender and equality that is deeply disturbing. It is unfortunate that affirmative action was presented to voters within a deliberately racial context that preyed upon the fear of Michiganians as opposed to the hopes created by the rich diversity of our state. The proponents of Prop 2 succeeded only in stoking the fires of racial miscommunication; they have worked to divide rather than unite Michigan.

In the coming weeks and months, we anticipate a variety of lawsuits from parties on both sides of this issue. Through these lawsuits, we will come to better understand the specific impact of this proposal. We can only hope that this impact does not harm our ability to harness the diversity of our human resources to the fullest extent; in preparation for the rich ethnicity of the emerging global economy.

Although deeply disappointed by the passage of Proposal 2, I am encouraged by the re-election of our Governor who remains committed to fairness, equity and diversity in our state. In the days ahead we will work closely with the Governor and legislature to continue to fight diligently for the residents of Michigan.

For more information on the Department of Civil Rights visit the Department's website at http://www.michigan.gov/mdcr."

###

Harold Core
Public Information Officer
Michigan Department of Civil Rights
(517) 241-3986

First, Proposal 2 didn't ban all "affirmative action," at most only "affirmative action" that involves preferential treatment. Second, it seems awfully contrived, as if they want to say we're going to break this law and we have the Governor on our side but weren't quite ready to say it directly. Third, this message itself I believe abuses the public trust and is a partisan (advocating for a particular Governor, and particular position on a ballot issue) misuse of public money.