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ACLU Lawsuit On Right-To-Work To Go Forward

The lawsuit, brought by the American Civil Liberties Union of Michigan, considers most notably two allegations, from the plaintiff perspective: the Department of State Police shut down the Capitol building in early December when right-to-work legislation was being floated and staffers of Republican legislators filled up the galleries in the House to prevent opponents of the legislation from watching the proceedings.

Michelle Byra, assistant attorney general speaking on behalf of the state, first questioned the jurisdiction of the court and whether there was standing to take up the case at all. But Mr. Collette said he was not interested in that position and rather sought to focus on whether the actions taken by the State Police and the Legislature constituted a violation of the Open Meetings Act.

Ms. Byra said State Police Captain Kevin McGaffigan made the decision to close the doors on his own after individuals attempted to rush the Senate floor. She said Mr. McGaffigan and others acted not only in the interest of safety of those who were inside the Capitol, but also to prevent exceeding capacity limitations of the building.

Under the Open Meetings Act, a court can invalidate an action taken by a public body while violating the act.
"The purpose of the Open Meetings Act is to provide full access and if the Legislature moves forward with the process but it's flawed, there's a violation," Michael Pitt, an attorney for the ACLU, told reporters after the court adjourned. "That legislation is flawed. It was flawed on December 6 and what they did on December 11 could not fix the errors and the flaws that were embodied in the December 6 decisions."

Mr. Pitt did little more than state the undisputed facts before the judge cut him off to ask if he felt he needed to "flesh out the facts of the case for discovery," to which Mr. Pitt answered affirmatively.

Ms. Byra countered some of what Mr. Pitt had to say, arguing the chamber galleries were not 100 percent full and that the public had been let in by the time final votes were taken on the right-to-work legislation.

But Mr. Collette pressed her about when people were let in to fill the chambers, citing a news report he had read that staffers were let into the chambers as early as 8 a.m. and asking if there was "a concerted effort to avoid having a lot of public people, like myself, come by putting the people in the stands."

She responded: "I don't think that's correct. There may have been staffers in the gallery, but even if there were, there aren't allegations that all of the seats were taken up."

She further noted that the legislative process for right-to-work "was not a secretive proceeding" since it is televised.
Before Ms. Byra got much further, Mr. Collette ruled to keep the case moving. He directed the state to respond to the points raised in the complaint by Monday and set a scheduling conference for April 11 to set up depositions. Mr. Collette also said while he thought the case merited proceeding with depositions, overall it has an uphill battle to prevail.

"But there are some little haystacks of fire around the field here, so to speak," he said of the uphill battle.

Mr. Pitt, however, said he was not concerned about the commentary from the judge.

"I've heard that from judges for 39 years as a lawyer and somehow I've been able to climb uphill and win the cases. I think the court was very interested in the answer to the question he posed to the AG about the packing of the gallery," he said. "The judge was very aggressive with the state AG on that point. And although he's signaling that he thinks we have an uphill battle, we know how to tie our horses to the case and get this thing done."

Asked if he would depose House Speaker Jase Bolger (R-Marshall), Mr. Pitt said he was not sure who plaintiffs would start with but likely would begin with Mr. McGaffigan to find out who he spoke to on December 6, who authorized the decision he made and how much knowledge the governor's office had about what was going on.

"Their argument initially was there was overcrowding. That's completely false. There's documentary photographic evidence to prove that was false," Mr. Pitt said. "And the court's going to see that and I think the State Police are going to have to explain themselves on why they closed those doors when they didn't have to."

State Police have said the issue was not that the entire building was full, but that certain portions of the building were full.
Responses to the lawsuit and eventually the judge's ruling came from both supporters and opponents of the right-to-work law. Michigan Freedom Fund President Greg McNeilly called the lawsuit "a blatant and disgusting attempt" for union bosses to "line their own pockets by oppressing working class Michigan families."

He continued, in a statement: "Working moms and dads are understandably tired of being fleeced by one-percenter union bosses so they can live high on the hog while spending millions of their members' hard-earned dollars buying extremist politicians."

The Michigan Laborers District Council praised the decision.

"It's heartening that Judge Collette decided to throw out Attorney General Bill Schuette's absurd arguments to block this lawsuit from moving forward," said Geno Alessandrini with the Michigan Laborers District Council, in a statement. "...It's encouraging that the public will finally get our day in court. Hopefully Lansing Republicans will get the message that it's time to start protecting middle class families, instead of corporate special interests."

Sen. Hoon-Yung Hopgood (D-Taylor), whose right-to-work repeal legislation has been unsuccessful in the Senate, applauded Mr. Collette's decision.

"I applaud Judge William Collette's decision to give this case a fair trial, despite the attorney general's attempts to skirt the legal process and allow his Republican colleagues to dodge repercussions on the issue," he said in a statement. "In ordering staff aides to take up seats in the House gallery and locking the public out of the Capitol, Republican legislators spat in the face of the state's Open Meetings Act."

Sen. Rebekah Warren (D-Ann Arbor), who is among others joining the ACLU in the lawsuit, was also pleased with the action taken by the court.

"I commend Judge Collette for his decision to move forward with our lawsuit against the manner in which 'Right to Work' was enacted," she said in a statement. "The people of Michigan deserve to have their say in the legislative process, and that right was denied them in the passing of 'Right to Work.' The Open Meetings Act was created to ensure transparent and accountable governing, and this violation warrants swift and strong repercussions."