Question 1): House Speaker Matt Hall (R-Kalamazoo Co.) has unveiled the GOP caucus government reform and transparency package (HEAT). It does not include long overdue Freedom of Information Act (FOIA) coverage for the legislature and the executive office. The centerpiece of this reform package is ending the “revolving door.”
Accordingly, the state House has already sent to the state Senate three bills to prohibit state legislators and state department heads from being eligible to register as lobbyist agents for a two-year period after leaving office. The three bills passed the House with bipartisan majorities of 90+ votes.
The idea of a beckoning, wide-open door tempting legislators to behave differently toward the end of their terms in hopes of landing cushy lobbying jobs has long been discussed in Lansing. House Republicans claim their three bills are aimed at curbing that temptation by instituting a two-year pause between the two jobs. That way, legislators are less likely to be influenced while they are in office by a job opportunity they have lined up, and they wouldn’t be lobbying on an issue they were very recently legislating on.
Former state Rep. Graham Filler (R-DeWitt) chose not to run for the House again last year after only three terms (he could have served six more years in the Legislature if elected). Why did the well-regarded lawmaker do that? To become a lobbyist. But if the three bills now being considered had been enacted a couple of years ago, he couldn’t have done that. Some “wiseguys” in the House today jocularly refer to the current legislation as the “Filler bills.”
However, while the three bills passed in the House on Feb. 20, the House still hasn’t taken up SB 1 and SB 2 , which cleared the Senate last month. These bills would subject legislative and the Governor’s offices to public records requests under FOIA.
That has prompted state Senator Jeremy Moss (D-Southfield), the Legislature’s leading FOIA reform advocate, to opine that “The key and the foremost ethics policy has to lead with FOIA, and anything that they send over here to me has to be tied with the passage of FOIA in the House.”
So, what does all this add up to? Haven’t we seen this charade before? What are chances any or all of these bills — FOIA reform, stopping the revolving door, and the HEAT package — clear BOTH chambers and are signed into law? After all, this sort of ‘reform’ legislation has passed ONE chamber now and in the past only to die in the other chamber. For example, FOIA reform passed the Senate in the 102nd Legislature only to disappear in the House this past December. In previous years, the opposite happened — the House passed FOIA reform and it was killed in the Senate. Will it be any different this time?
Answer 1): The news media and the general public will have to see it to believe it. There is such a thing in the Legislature as a ‘free vote.’ That means a lawmaker can vote for a bill he or she doesn’t like but knows that it will let him or her ‘have his (or her) cake and eat it, too.’ That means it allows the legislator to inoculate himself or herself from accusations that he or she is against ‘reform’ while knowing that it will not pass in the other chamber. The lawmaker can say, “Hey, don’t blame me, I voted for reform but the House (or Senate) killed it.” That’s what has happened numerous times in the past. Moss and majority Senate Democrats can refuse to take up the three House bills on the ‘revolving door’ unless or until the House takes up FOIA reform, and the House can refuse to consider FOIA reform unless the Senate acts on stopping the revolving door. And are the three House bills really all they’re cracked to be? TBR will try to answer that last question in a future issue.
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Question 2): Last week, Court of Claims Judge Sima Patel ruled that the Michigan House of Representatives SHOULD forward to Gov. Gretchen Whitmer the nine bills from the 102nd Legislature that House Speaker Matt Hall in the 103rd Legislature is keeping in the House clerk’s office. However, she declined to ORDER the House to do so.
Patel was acting on a lawsuit filed by Senate Majority Leader Winnie BRINKS (D-Grand Rapids) against HALL “for illegally blocking nine bills” that passed near the end of last year but have not been presented to Whitmer.
So, where does this leave us? Is this the last word from a court on this strange conundrum? Will Hall eventually forward the nine bills to the governor?
Answer 2): It looks like Hall and the House have won Round One, which may prove to be the last round as well. Judge Patel seems to have bowed to historical norms. There is a traditional reluctance of the judicial branch of government to intrude on the internal workings of the legislative branch, which has meant that the court or courts will simply “punt” by saying “Hey, you guys decide this among yourselves. We’re not going to intervene.” By not ordering the House to bow to what Patel thinks would be the RIGHT thing to do, she has given the 103rd House a pass. Unless Patel’s decision is appealed or otherwise vacated by a higher court, this may be the end of it. Even if the state Supreme Court might eventually rule that Hall must acquiesce, Hall could steal a page from Josef Stalin in his reply to the Pope during World War II, or Andrew Jackson to the U.S. Supremes in the 1830s. That would prompt Hall to paraphrase thusly: “The Pope (or court) has made its decision, now let him enforce it.” It didn’t happen with Native American resettlement or during World War II, so why should it be any different now? Stalin and Jackson both “won.” Hall would win, too, all because former House Speaker Joe Tate (D-Detroit) botched the simple job of transmitting the nine bills to the governor before the 102nd Legislature died, allowing the 103rd Legislature to ignore anything done previously.
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Of what value is Patel’s ruling if she doesn’t order it to be enforced? She is jeopardizing separation of powers by letting Hall have his way.
Just the opposite is true: the Separation of Powers Clause adherence required under the United States Constitution and the State of Michigan Constitution results in the application of the Political Question Doctrine, which requires the judiciary to avoid interfering in the internal machinations of the Michigan Legislature.
The United States Supreme Court recognized this principle recently in Rucho vs Common Cause in 2007 when it held the issue of partisan gerrymandering was not justiciable.
As a GOP activist, I commend Judge Patel for having the judicial integrity in not ordering enforcement – as it is not justiciable – and she followed the applicable constitutional jurisprudence rather than the will of the Democrats. It’s the stuff great jurists are made of.
Judge Patel did NOT rely upon the Separation of Powers Clause or the political question doctrine in giving a win to Hall and the GOP, but expressly held that doctrine was not applicable, later in the opinion indicating:
“Mandamus is not a mater of right, but of grace… and of discretion………….”
“Section 33 requires that all bills passed by the Legislature be presented to the Governor, but does not prescribe this duty with sufficient precision and certainty as to leave nothing to the Legislature’s discretion or judgment. While the House Rules support plaintiff’s position on that responsibility for this mandate falls in Clerk Starr, these rules are not law, and prudential concerns counsel against an order from the Court interpreting or enforcing them. Plaintiff’s request for a writ of mandamus is denied………”
Judge Patel also denied Plaintiff injunctive relief on separate grounds cited in another paragraph – but did grant Plaintiff declaratory relief.
I think I said a prayer for you today in the Plymouth First Presbyterian Church.
Frankly, you see through all the tricks of a “free vote”and “inoculation “for a legislator to say that they voted for or against something. Such shallow gamesmanship.
FOIA should apply equally across the board to the executive and legislative branch, the governor and the state reps and state senators. Let the sunshine in-Democracy dies behind closed doors.
Also, I’m glad the 9 Bills got sent over, but it took a Judge to give a Court Order.
Thank you again for your insight and I just wish more people were “ENLIGHTENED “ Gov. Milliken ‘s favorite word.
To Thine own self be true. All we can do is strive for the closest approximation of truth
Michigan Senate Majority Leader Whiny Brinks (D-Grand Rapids) should have filed her complaint with Speaker of the State House Speaker Joe Tate (D-Detroit) before the 2023-24 session ended last December. Judge Patel properly concluded this question is an internal procedural matter to be resolved by the Legislative Branch of State Government. Sen Majority Leader Brinks also has the option to reintroduce and take up the same bills again this session and, if they pass, send them to the House for consideration. Otherwise, it’s time to move on.
I think Rich has correctly described this situation. There was no reason for those bills to languish until the next session under any circumstance. It was always incumbent on legislators to make sure their staff got the Secretary and Clerk to file the bills on time. There were lots of instances where as a staff member we pestered the Clerk and Secretary’s office to make sure their staff delivered a bill on time and got it signed (geez, and so my friends don’t think I’ve gone soft, also a couple of times the bills mysteriously never made it). It was normal for the Great Seal office to be open until 11:59 on sine die to receive and stamp the “onion skin. Frankly I think this may be a blessing in disguise as it might short circuit some of the end of session showboating and have a more orderly conclusion to the end of session.
As for complaints that FOIA somehow presages a ‘free vote” I only have to look toward the recent session when for some unknown reason (except they thought it was the right thing to do) State Senators and Reps voted to extend County Commissioner’s terms to four years. That simply gives the Commissioners a “free shot” at the Senators and Reps without risking their Commission seat, My old boss must have rolled over in his grave at that piece of so-called “enlightenment”.
The Michigan Constitution’s Article IV § 14 clearly defines what the Michigan legislative bodies can do with and without a quorum:
“A majority of the members elected to and serving in each house shall constitute a quorum to do business. A smaller number in each house may adjourn from day to day, and may compel the attendance of absent members in the manner and with penalties as each house may prescribe.”
The House lost quorum on December 19, 2024 and never regained it. Judge Patel’s complete ignorance of the applicable Michigan Constitution provision makes her the ideal Democratic candidate for the Michigan Supreme Court.
Judge Patel’s opinion indicated that the House Rules appeared to require Clerk Starr submit the nine bills to Governor Whitmer for consideration and signature.
Quorum was not relevant to Patel in her holding. She simply in her discretion, did not desire to examine and enforce House Rules.
The very same House rules delimit what can be done without a quorum, and enrolling a bill is not a permissible activity without a quorum.
Judge Patel picked and chose in her interpretation of House rules, to accomplish her political agenda.
This is not justice. This is not democracy. This is tyranny.
Speaker Joe Tate was not able to do very much by the way of official business without achieving a quorum of legislators present to conduct such official business.
The Democratic Party was not united enough to get their majority in the Michigan House to show up.
Winnie Brinks can reintroduce the bills – however the current GOP majority in the Michigan Legislature will most likely oppose such proposed legislation and such reintroduction would be an act in futility.
According to Judge Patel’s ruling, she believed that the House Rules likely mandated the House Clerk to submit the passed bills to the Governor for consideration and signature, irrespective of a “quorum”. But she – as a matter of discretion – declined to order that act as to do so would require her to interpret and enforce House Rules, which she did not want to do.
Why don’t they pass a law that you can’t be a polichicken untile you hold a real job ?
Just as Constitutional as a Two year ban on
Lobbying!
Hear, hear! I concur. All potpies aside . . .
U.S. House and Senate records have always been expressly excluded from FOIA production. The rationale is explained in the Congressional Research Service’s January 9, 2023 monograph:
Congress and the Freedom of Information Act (FOIA)
by Benjamin M. Barczewski and Meghan M. Stuessy
“While some have criticized Congress for exempting itself
from FOIA, applying FOIA to Congress may alter the
functioning of the legislative process and implicate certain
constitutional provisions, including the Journal Clause (art.
I, §5, cl. 3) and the Speech or Debate Clause (art. I, §6, cl.
1). Moreover, extending FOIA to congressional documents
may raise questions about one Congress’s ability to
statutorily compel future lawmakers to publicly disclose
information that is constitutionally privileged.”
The Michigan Constitution’s Article IV § 18 contains a ‘Journal clause’ patterned after the U.S. Constitution’s Article I § 6, so applying FOIA to our state legislature is constitutionally problematical, even if you are willing to accept the distortion of the legislative process which legislative FOIA will entail.
The incumbent U.S. President’s records are not subject to FOIA, but can be accessed under certain circumstances five years after the President leaves office under the Presidential Records Act.
The U.S. Freedom of Information Act (5 U.S.C. § 552) has stood the test of time and should be the pattern for Michigan.
Nice article, Bill. Methinks there’s a bit of cynicism in your answer to first question. Not that it is not the correct response.
The real question is whether Speaker Hall and Majority Leader Brinks want to play “Let’s Make A Deal”. I’m not holding my breath, though, especially given these times. Today, compromise and political horse trading gets you labeled by your party’s faithful, fanatics and others as a traitor, heretic, apostate or some other form of diabolical villain. And this assumes that Governor Whitmer will play along. Film at 11.
QUESTION 2: I concur with most of the comments on Judge Patel’s actions, please Speaker Hall, play nice and fix the Dems screw up for them. Please.
We’re here not only because former Speaker Tate was unable, or unwilling, to do his job, but also what the priorities of the Democratic Party were in Lansing. Politics is about priorities and choices. As a general rule, you get done first the things that are your highest priorities and put off the things that you feel are less important. What we saw in this past legislative session were the Democrats priorities in action. They did first what they felt were most important. Period. Universal school lunches (free school lunches for the children of millionaires), check. Expanding the definitions of those covered under Elliott-Larsen, check. But as for those issues left for the lame duck, not so much. There was NO excuse for these issues to still be unanswered. None. They had more than enough time to get these passed with time to spare. They did not want to. And when they felt they had to try, they screwed it up and that’s why we’re here.
Another opportunity for Speaker Hall and Majority Leader Brinks to play “Let’s Make A Deal”. I don’t know either of these politicians, or whether they are so inclined to do so. Maybe it’s time for “The Quadrant” to sit down and figure out which bills – if any – they will push to a vote. In the old days, they probably would have gone to Kelly’s on S. Washington to iron this out. Not sure where they’d go now. Maybe the Governor’s House on the Island? The conference rooms in the Upper Parking level between the Ottawa and Hannah Bldgs.? A Lugnuts game? Normally I’d say film at 11, but I don’t think there will be film at 11 for this.
Ooooh, there’s that word again! Compromise . . . Arghhhh. Fanatic 1st class Royal here, reporting for compromise duty, sir. Why can’t we let, sometimes, the will of the people rule? Which brings me to a potential reason why Speaker Tate may not have walked the bills over to get them signed. Nobody reads polls like Caesar’s party (ie, Dems), do. And maybe, just maybe, political retribution here in Michigan being such as it is, perhaps Speaker Tate got some cold feet, along with enough Caesar buddies to deny a quorum? Hmmmm?
The referendum probably had an incalculable influence on the election that brought about the Republican resurrection. Rapture of the saints be praised.
Now, that Pub Walk idea sounds really good to me . . . wonder how I can get a ticket? But the outcome had better not look anything like what that disastrous referendum looked like, nor what the result Bill-wanna-be currently looks like. Speaker Hall, SIT on those bills. Get a Reagan-esque deal.
God bless Judge Patel. She apparently can read polls as well. Good.
Ontario Premier Doug Ford will impose 25 percent tariffs on electricity sent to Michigan and other upper U.S. states, starting tomorrow (Monday). MISO and NYISO expect the shortfall to destabilize our electricity grid.
The giggle here is it may well boomerang on Ontario and destabilize their grid. Premier Ford evidently does not remember August 14th, 2003 vey well.
President Trump noticed Premier Ford’s electricity tariff:
“Based on Ontario, Canada, placing a 25% Tariff on “Electricity” coming into the United States, I have instructed my Secretary of Commerce to add an ADDITIONAL 25% Tariff, to 50%, on all STEEL and ALUMINUM COMING INTO THE UNITED STATES FROM CANADA, ONE OF THE HIGHEST TARIFFING NATIONS ANYWHERE IN THE WORLD.
This will go into effect TOMORROW MORNING, March 12th.
Also, Canada must immediately drop their Anti-American Farmer Tariff of 250% to 390% on various U.S. dairy products, which has long been considered outrageous. I will shortly be declaring a National Emergency on Electricity within the threatened area. This will allow the U.S to quickly do what has to be done to alleviate this abusive threat from Canada.
If other egregious, long time Tariffs are not likewise dropped by Canada, I will substantially increase, on April 2nd, the Tariffs on Cars coming into the U.S. which will, essentially, permanently shut down the automobile manufacturing business in Canada.
Those cars can easily be made in the USA!
Also, Canada pays very little for National Security, relying on the United States for military protection.
We are subsidizing Canada to the tune of more than 200 Billion Dollars a year. WHY??? This cannot continue.
The only thing that makes sense is for Canada to become our cherished Fifty First State.
This would make all Tariffs, and everything else, totally disappear.
Canadians taxes will be very substantially reduced, they will be more secure, militarily and otherwise, than ever before, there would no longer be a Northern Border problem, and the greatest and most powerful nation in the World will be bigger, better and stronger than ever — And Canada will be a big part of that.
The artificial line of separation drawn many years ago will finally disappear, and we will have the safest and most beautiful Nation anywhere in the World — And your brilliant anthem, “O Canada,” will continue to play, but now representing a GREAT and POWERFUL STATE within the greatest Nation that the World has ever seen!”
The Canadian dollar immediately dropped 0.7%
A question is what should the U.S. do about Quebec? Maybe let it become its own nation.
Nunavut Territory has an Inuit population which would, in substantial part. would like to see their independence from Canada. It has vast oil, natural gas, and mineral reserves – including copper.
About 85% of Greenlanders polled oppose U.S, annexation – but many want to declare an independent state from Denmark.The U.S. once offered $100 million to Denmark for the purchase of Greenland – but they declined.
There’s a guy who did a really great job podcasting about this case between the House and the Senate and did so without getting political about it. It’s his two most recent podcasts that he’s posted…
https://tonysnyder.com/blog/
I found it significant Michigan Attorney General Dana Nessel did NOT file any legal action against any of the legislators involved with the “fake elector” scandal.
Also significant she did not take up the Winnie Brinks case – or pipe in on it as an amicus curia brief filer.
President Donald Trump signed an executive order Tuesday to stop the growing abuse of America’s federal judicial system by radical activist judges acting in concert with far-left organizations. The order is entitled: “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c).”
Judges have become super executives, usurping the powers of federal and state executives, agencies, and legislatures through bogus civil processes. It is well past time to subject all federal and state judicial civil process records to FOIA. Sauce for the goose is sauce for the gander.
Michigan judges also skate on financial disclosure. Will they enforce the proposed amendments of Canons 4 and 6 of the Michigan Code of Judicial Conduct published by SCoMI on July 10th of last year? The silence has been deafening.
One thing that IS DISCLOSED is campaign committee donations to judicial candidates and it is amazing how much cash is accepted by sitting judges through these committees from insurance industry PACs and by lawyers and litigants having business before those very same judges.
As a lawyer, one is often trained early in their career to learn the identity of a judicial campaign committee treasurer of each judge the lawyer regularly practices before and to make campaign donations through that treasurer even if there is no contest judicial election.
All perfectly legal but smells of a pay-to-play situation.
Federal judges are appointed for life and need no campaign donations. A clean system.
Look at the same situation with county prosecutor campaign committees.
The key donors are usually criminal defense attorneys. Who gets the sweet plea deals – you guessed it.