We're moving our reporting of the Howell School e-mail FOIA lawsuit over to OutsideLansing.com, even though it began here 17 months ago, since it fits that topical site better. But for those of you following it - the Livingston Circuit Court ruled in favor of us and the schools over the Michigan Education Association. There's plenty to follow, so stay tuned.

The State News at Michigan State University gets this priceless quote from one of the MSU Trustees:

Joel Ferguson, chairman of the MSU Board of Trustees, said he hopes Proposal 2 is overturned, but isn’t optimistic.

“I don’t necessarily think they can succeed,” he said. “Anybody can file a lawsuit.”

True indeed.

It's too bad he hopes Proposal 2 is overturned, but you know the lawsuits are mighty frivolous when the cheering section says that.

Of slight note is the non-response by Lou Anna Simon (now earning over $420K a year), and the wierd "equality-is-non-equality" argument from former Democratic Party co-chair Melvin Hollowell, now relegated to plaintiffs attorney in frivolous filings:

Melvin Butch Hollowell, counsel to Detroit’s chapter of the National Association for the Advancement of Colored People, is on the plantiffs’ legal team. He said the case will be appealed to the U.S. Supreme Court if necessary.

“We believe that this is the most important civil rights case,” he said. “We are seeking the lawsuit to place students of color on equal footing as all other students in the admissions process.”

MSU President Lou Anna K. Simon said she was unable to comment on the case because the litigation is ongoing and it targets universities.

Orwell would be proud. War is peace. Unequal is equal.

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.

Paul Jacob, one of the principal forces behind the Term Limits movement and an architect of the recent TABOR drives, voluntarily submitted himself to Oklahoma authorities yesterday to be indicted by Oklahoma attorney general Drew Edmondson. Jacob was indicted for helping bring non-Oklahomans into the state to petition for their Stop Overspending drive, which was thrown off the ballot in 2005 because non-Oklahomans allegedly were involved in signature collection and this allegedly violated Oklahoma's residency requirement, which is poorly and unclearly defined.

Jacob's story here.

Speaking from my experience with Michigan signature-gathering and management, its clear that opponents will throw everything they can at you. Don't think for a moment that exercising your rights in this arena isn't risky. This attack on Jacob is a fundamental attack against American liberty and self-government. It's meant to crush Jacob personally using the raw power of government and to scare the rest of us into inaction. Speaking to those forces - I, for one, am invigorated by your threats and the battle is on. In all my endeavors, I will strive to follow the law as it is, but I will not be intimidated by threats of misapplication of vague laws. To my supportive readers - if you can assist Jacob, please do so.

In a lengthy article by Jonathan D. Glater and Alan Finder in today's New York Times entitled, "Schools Diversity Based on Income Segregates Some", we find some interesting statements. The story reads like a news analysis infiltrated with opinion, as is clear from its biased title.

First, in California, we have school attorneys that have forgotten where they live. Check this Bayview school general counsel.

David Campos, the general counsel to the school district, said the resegregation was so disappointing that the school board might try to test whether Justice Anthony M. Kennedy’s opinion in the recent Supreme Court case left open the possibility of using race if other methods of integration fail.

“We stopped using race at some point,” Mr. Campos said. “And then for a number of years we have tried to use a number of race-neutral factors to achieve racial diversity, which methods haven’t worked. Should the board decide to use race, and they may or may not, we are a very good test case.”

Not only did Mr. Campos forget Proposition 209 would prevent his "test case" from even getting to federal court since it wouldn't be legal under state law, he seems to have the idea that he is entitled to experiment with our taxpayer money, and the quality of schooling students in the district receive (for if the school spends big legal bucks on test cases, it is distracting from and taking resources away from education). Indeed, Campos' belief that he is the arbiter of "test cases" is institutional arrogance. Public officials should generally avoid skirting the law or pushing its boundaries - "test cases" should arise from situations where an error or incidental encroachment is made - not where a public official decides to create a test case. Indeed, this is equivalent to a frivolous filing of a lawsuit, just in a less tangible and noticeable way.

As to the rest of this Times article, look at the title. "Schools Diversity Based on Income Segregates Some". At best, the conclusion is that it "Doesn't Desegregate Enough", not that socio-economic measures actually segregate. Their is pre-existing societal segregation - socio-economic solutions produce much more economic diversity, and are estimated to replace the (alleged) need for roughly 75% of racial diversity programs because of the pre-existing socio-economic racial imbalances. The article sort of recognizes that these are different scales and types of diversity, yet it attacks socio-economic programs for not being perfect (although helping) along one of the dimensions. Maybe socio-economic programs aren't perfect, but they are the best, and most moral, of types of governmental response, if there is to even be a governmental response, to such imbalances.

If perfection were the measure of any program, no program would be acceptable. Indeed, any program that seeks "perfection" is philosophically suspect by itself. Here, the Times and racial-criteria proponents equate "perfection" with "proportional representation". For there is only standard against which to measure "racial diversity" - does it match the relative population levels for that group. The idea that society would configure itself such that every region and school would exactly match that obliviates free choice, and as such is a utopian perfection that is philosophically suspect (and in my world view anti-utopian). Indeed, this is the fundamental hidden flaw of preferentialist-reasoning. Without even touching on its vast internal contradictions (for example, that black self-segregation is good or to be encouraged), it presumes a utopian world-view that is anti-freedom.

I am reminded of another sought-after-perfection from science fiction. "Resistance is futile."

WDET Detroit FM Radio is reporting that a "civil rights group" (an odd name for BAMN) has sued the Detroit Public Schools to stop nine school closures.

The group obviously is By Any Means Necessary (BAMN), and they filed yet another frivolous lawsuit.

Guess who they drew as judge. The Honorable Susan Borman. BAMN has a knack for drawing Borman. She was the judge that, in March 2006, ruled against BAMN's request for an injunction against MCRI from even hitting the streets to circulate petitions. Her ruling came the day after an Ingham County judge ruled on the different issue of the legality of MCRI language, which was later overturned by the Court of Appeals, so it is often lost in the melee of history. Then, she ruled against BAMN citing the fact that she couldn't find a single precedent in 200 years of jurisprudence to allow her to overturn the First Amendment so blatantly.

Now, again, BAMN has come in unprepared - using the court as a media platform. Catch WDET's rendition here:

In the end however…the defense argued and the judge agreed ... that the plaintiffs did not offer solid evidence to support their claims.

Lacking the appropriate witnesses and paperwork ... Wayne County Circuit Court Judge Susan Borman has given BAMN until August 10th to provide the evidence needed to continue with the lawsuit.

Ms. Borman, ZR has a recommendation. Slap BAMN attorneys with fines for filing frivolous cases. You're giving them too much leeway. In both cases you've recognized the obvious - BAMN has no evidence and they're their for show.

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

Linked here is last month's Court of Appeals decision by Judge's Brian Zahra and Joel Hoekstra slapping down the University of Michigan's obtuseness in denying a FOIA request to the Michigan Federation of Teachers & School Related Personnel (MFT) for the home addresses of U-M employees.

While ZR can't fully sign-on to the purposes the unions had in mind (recruiting members and increasing their collective bargaining, although we recognize their right to do so), U-M has played this home address card, in conjunction with the "It will cost thousands of dollars of our time to remove them" card, to avoid having to respond to FOIAs even seeking other FOIAs. You see, they're afraid someone might be able to study how people FOIA them, and get even better at it. Or learn something else about the operation of government with a different perspective.

And if you think home addresses might be used for junk mail or the like, that business already has access to property records and other means of blanketing you and a can easily accomplish its ends regardless of FOIA. A home address or phone number on a limited number of FOIA requests though would permit a researcher to quickly call the other FOIA requestor and coordinate activity, interview that person for independent news reports, or otherwise ask them about their experiences with the government agency. It is such a highly useful thing to understanding the government that U-M has tried to devise a slip-out by combining the fee charging provision with its invented home-address privacy.

In thwacking U-M, the Court stated:

Further, a home address and telephone number are personal in the sense that they identify a person’s residence and telephone number. However, by themselves, they ordinarily do not reveal “intimate or embarrassing details of an individual’s private life.” Even when a person’s home address and telephone number are considered in relation to “customs, mores, or ordinary views of the community,” the information cannot fairly be characterized as “intimate or embarrassing.” Thus, under Bradley, the home addresses and home telephone numbers of defendant’s employees are not items of personal information for purposes of FOIA because they do not reveal intimate or embarrassing details of an individual’s private life.

Further, based on our review of the relevant case law, we also conclude that there is no authority holding that public employees’ home addresses and telephone numbers are items of personal information for purposes of FOIA. See Tobin v Civil Service Comm, 416 Mich 661, 671; 331 NW2d 184 (1982) and State Employees Ass’n v Dep’t of Management & Budget, 428 Mich 104, 124; 404 NW2d 606 (1987). Although defendant identified several cases that applied the privacy exemption to home addresses, in those cases the plaintiffs sought disclosure of addresses to access other information our Courts deemed personal. See Mager v State, Dept of State Police, 460 Mich 134; 595 NW2d 142 (1999) (registered gun owners); Detroit Free Press, Inc v Department of State Police, 243 Mich App 218; 622 NW2d 313 (2000) (concealed weapon permits); Clerical-Technical Union of Michigan State University v Board of Trustees, 190 Mich App 300; 475 NW2d 373 (1991) (philanthropic donors).

In a ridiculous court order that borders on the absurd, an Ottawa County judge has ruled in favor of the Michigan Education Association's (MEA) recent crusade to protect a corrupt former member of its Zeeland Schools union, Brian Beckham. Beckham resigned abruptly in January apparently without obvious cause. Here's his terse letter:

January 8, 2007

TO: Superintendent Feenstra
Board Secretary of Zeeland Public Schools

In order to pursue other career opportunities, I hereby irrevocably resign from any and all further employment with Zeeland Public Schools and its Board of Education, effective January 8,2007. I have enjoyed my association with the Zeeland Public Schools.

Sincerely,
Brian Beckham

The following day, the school wrote this cryptic message to parents:

January 9,2007

Dear Students and Parents:

Today I have to inform you that Mr. Beckham has resigned as a teacher from Zeeland Public Schools for personal reasons. He will not be returning to class. Mr. Beckham regrets he will not be able to work with you any more this year. I know many of you really liked Mr. Beckham, as a teacher and as a person and I am sure this news is a real shock to you.

Ms. Sandy Brewer is the substitute in all of Mr. Beckham's classes. Ms. Brewer has subbed often at Cityside and she knows our kids, our staff, our policies and our curriculum. Ms. Landes is already working closely with her to try to maintain the high quality education the Eagle Team has been known for.

Sincerely,
Jon Voss
Principal

That prompted the Grand Rapids Press to inquire through FOIA in February by requesting Beckham's personnel file. Before the school's record officer could release the records, the MEA sued the school under what is called a "reverse FOIA", citing a little known provision of the Bullard-Plawecki Right to Know Act (a personnel records act) requiring certain "investigatory files" to be destroyed if "no disciplinary action is taken". That provision apparently applies to "criminal" investigations, but the MEA and Beckham's attorney somehow convinced the judge this qualified, and that since the school hadn't taken "disciplinary" action because Beckham resigned before they could fire him, the files must be destroyed. The judge issued his outrageous order on April 9th, and we had already had a FOIA request similar to (but different in some ways) the Grand Rapids Press FOIA by Kym Reinstadler. If indeed the law is such - that a public employee can evade FOIA by resigning - then the law should be changed. A careful reading of the law suggests that might not be so, but the Grand Rapids Press will probably lack the courage to pursue. The judge's order was so ridiculous that he ordered the school shred the material within 14 days, hardly giving anyone a chance to appeal with the normal appeals time frames.

ZR is producing the entire FOIA response here (WARNING: 12MB PDF). Here's all we know about Mr. Beckham's problem:

For Personnel Record of Mr. Brian Beckham

At the time of Mr. Brian Beckham's resignation, Zeeland Public Schools was in the process of investigating whether Mr. Beckham had violated its technology use policy and/or engaged in unprofessional conduct. No final determination was made and the investigation ended without any conclusions being reached due to his resignation.

1/8/2007
Mary Colton

But according to our FOIA request, which sought other FOIA's, it appears that there is other craziness happening at Zeeland Schools. Laurie Jordan, a teacher, was terminated on January 11, 2007, just three days later than Beckham, although there is no evidence of a connection. Advance Newspapers Kristin Churchill made this March FOIA request:

In accordance with the Michigan Freedom of Information Act (PA 442 of 1976), I am formally requesting the following information that I believe is under the control of your agency: Any and all records pertaining to the re-hiring of office aide Laurie Jordan, Including any back pay settlement and the date and reason glven for that settlement.

Here's the shocking and deeply concerning response:

Enclosed you will find copies of the payroll documents pertaining to this matter. There is no written documentation regarding a reason for this settlement which was a verbal agreement between Mrs. Jordan and Superintendent Feenstra.

The payroll document clearly indicates termination, and a later rehiring. It is unfathomable that a rehire - or any hire - could be based on an oral agreement. Something strange is afoot at Zeeland.

File this one in the "There is some law" category.

Readers may recall from 2005 a group called "In the Hood Research", with notable individuals Carl Williams, Percy Harris, Jr., and Hassan Aleem, intervened in the case MCRI filed in August 2005 against the Board of Canvasser's to secure access to the ballot.

These undistinguished individuals decided to flood the Court with wierd and odd motions, and finally insulted it on December 5, 2005. Days later they were each slapped with $500 fines. They finally exhausted appeals (unbelievably filing an appeal with the Michigan Supreme Court that must have cost nearly as much as the fine would cost) in July 2006, and the Court issued this really cool order! It's importance is trivial to say the least, if for no other reason than the nature of the people involved, which is why it was lost in reporting of the time, but having just ran across it, it seemed so sweet as to require some attention.

No more Williams, Harris, and Aleem until they pay the Court.

Linked is a PDF version of today's ACLU lawsuit against, tactically chosen to draw the weakest defense, Jennifer Granholm only, seeking to overturn Proposal 2, or the Michigan Civil Rights Initiatve.

It's a pile o dukey.

Laughably, the introductory statement get's it wrong. It asserts that the state Constitution was amended to "[b]an public institutions from using affirmative action programs that give preferential treatment to groups or individuals on the base of their race." It uses quotes around this, and the period after race. First, the passage there is actually from the "ballot summary" that appeared on the ballot and not the actual amendment to the Constitution which only mentions ban "discrimination and preferential treatment" on the basis of race, gender, ethnicity, and national origin. The period after race in the brief is a disgusting twisting of even the ballot summary. Indeed, I propose that it could be sanctionable misconduct on the part of the attorney signing the brief. They have singled out race here, but ironically, the rest of the legal argument criticizes "any construction" of Proposal 2 that singles out "race, sex, ethnicity, etc." and argues that by excluding those factors from the possible choices universities may discriminate on and not excluding every other possible factor by which a university may make a choice, the Proposal is unconstitutional discriminatory against discrimination itself.

I mean we have turned into the Twilight Zone - or maybe ozone.

That is, Proposal 2 violates the Equal Protection Clause because it prohibits only SOME discrimination but fails to prohibit all discrimination (which the Equal Protection Clause, according to the brief, allows). It's such a bad argument I've created an abuse of process category and this entry is the inaugural. The judge, if he has any decency, will find that the ACLU has violated "Rule 11," which prohibits filing frivolous claims.