The Michigan Education Association and the AFL-CIO have filed a lawsuit challenging the new right-to-work legislation that passed in December. The suit alleges that the legislature violated Michigan's Open Meetings Act, its Constitution, and First Amendment principles by blocking access to the capitol for four hours during the debate on the legislation. The focus of the lawsuit is the Open Meetings Act violation.
Like many other states, Michigan law requires that meetings of public bodies be held at a public place and be open so that members of the public may attend. If an open meeting is not held, the decisions made while closed can be invalidated if this has impaired the rights of the public. According to the complaint, although the actual vote on the legislation took place after the capitol was reopened, many significant changes to the bills were made during the building closure that essentially transformed the legislation into a right-to-work law. The plaintiffs allege that their rights to participate in the governement by listening to the debate, lobbying legislators while it was ongoing, and to report out the facts of what was taking place were impaired. The state police claim that the building was closed for structural safety concerns. The plaintiffs question this claim because this was, from their vantage point, one of the most significant pieces of legislation addressed by the legislature in the past 50 years and the building had never been closed before.
Here's my initial impression of this lawsuit:
While the closing of the Capitol was unprecedented and a very bad idea unless there really were safety concerns, I think that the plaintiffs are unlikely to prevail in this lawsuit because the actual vote took place after the building was reopened. Michigan's law only invalidates decisions made while in closed session. In addition, when interpreting this law, Michigan courts have looked for an intentional closing of a public meeting to cover up for misdeeds or to hide information about how public officials voted as proof of impairing the public's rights. This situation appears to be about limiting public access to protest or talk about the law before it passed. Moreover, even if plaintiffs could convince the courts that the votes should be invalidated, in the past Michigan courts have allowed public bodies to reenact votes that were not in compliance with the Open Meetings Act. So, even if the vote was improper, public bodies have been allowed to re-hold the vote in a public forum and reach the same result.
Despite my initial analysis, I am very concerned about the closing of the building during this legislative debate. Unless it really was for safety concerns, excluding hundreds of citizens who wanted to participate and observe the debate on important state legislation flies in the face of our democratic traditions. Public bodies in other states have taken steps to keep their meetings open by moving locations to accommodate more people and/or televising the debate so many more individuals can watch it. These changes were found to be consistent with open meeting act principles. Michigan did not take these steps in anticipation of a heated debate; instead it closed the capitol building. It does have a government access tv channel that could have broadcast the legislative proceedings on December 6th. I don't know if that actually occurred.
This issue promises to continue to be a contentious one in Michigan. I'll keep you updated.
Here's a link to the complaint: