Irony

i·ro·ny (ī′rə-nē, ī′ər-) Incongruity between what might be expected and what actually occurs. An occurrence, result, or circumstance notable for such incongruity.

Lansing City Hall & Court ComplexMichigan House Speaker Cotter just lost a round in the Courser/Gamrat felony criminal case preliminaries. Ingham County District Court 54-A Judge Hugh B. Clarke Jr. ruled Friday it would be “patently unfair” for Gamrat’s and Courser’s attorneys to not have an opportunity to question Cotter in their defense:Judge Hugh Clarke, Jr.

“Without answers to these questions, the Court cannot adequately balance the rights of the Defendants against the right of the Speaker to be free from being compelled to testify,” the order states.

“To make this decision, the Court believes an in camera hearing with counsel for the Defendants, Speaker Cotter and his attorney is warranted. This procedure would allow the court to properly balance the interests of the Defendants against the privilege sought to be accorded Speaker Cotter.”

Speaker Cotter has been claiming immunity under Public Act 27 of 1984 in Judge Clarke’s courtroom:

“AN ACT to provide immunity from civil action to members of the legislature of this state for acts done pursuant to duty as legislators; to prohibit members of the legislature of this state from being made parties to contested cases or other administrative proceedings for acts done pursuant to duty as legislators; and to provide for certain exemptions from subpoenas.”

Specifically Speaker Cotter is claiming immunity from a subpoena ad testificandum under the third section of PA 27 of 1984

MCL 4.553
Subpoena as to statements made by legislator
Sec. 3.
A member of the legislature shall not be subject to a subpoena for any matter involving statements made by the legislator pursuant to his or her duty as a legislator.

The issue here will be that the legal action against Courser and Gamrat in Ingham County District Court 54-A is a criminal action, specifically a felony action, not a civil action. Speaker Cotter is claiming immunity under a statute which pertains to civil actions, not criminal actions.  Michigan’s legislators have no constitutional or statutory relief from subpoenae in felony matters.

The great irony here is that Speaker Cotter stripped those very same statutory rights from Courser and Gamrat in his House Resolution 0129 of 2015, which created the Representative Ed McBroom chaired House Select Committee:

Resolved, That the House select committee may subpoena witnesses, administer oaths, and examine the books, records, and tapes of any person, partnership, association, or corporation, public or private, involved in the matter properly before the committee; may call upon the services and personnel of any agency of the state and its political subdivisions; and may engage such assistance as it deems necessary;………..

At the point in time of the ‘examination of the qualifications’ of Gamrat and Courser to determine their fitness to continue holding office, this proposed expulsion was not a criminal matter. Rather it would have properly been described as “for acts done pursuant to duty as legislators” under MCL 4.553.  Courser and Gamrat should have been afforded legislative immunity from subpoenae, and thus any consequent oaths.

The most serious charge against Gamrat and Courser is the Count 1 perjury charge against Todd Courser:

COUNT 1: PERJURY – OTHER THAN COURT PROCEEDING

Todd Anthony Courser did, being a person of whom an oath was required by law, wilfully [sp.] swear falsely before Chairman, Representative Ed McBroom and the Michigan House of Representatives Select Committee to examine the qualifications of Representatives Cindy Gamrat and Todd Courser, on a matter for which said oath is required, to-wit: giving false information regarding having his staff affix his signature upon proposed House Bills; contrary to MCL 750.423. [750.423] FELONY: 15 Years

Bill SchuetteYou have to wonder how AG Schuette came to the conclusion that “an oath was required by law”, as stated in his indictment. Here is the statute cited in AG Schuette’s COUNT 1 against Courser:

MCL 750.423
Perjury; penalty; “record” and “signed” defined.
Sec. 423.
(1) Any person authorized by a statute of this state to take an oath, or any person of whom an oath is required by law, who willfully swears falsely in regard to any matter or thing respecting which the oath is authorized or required is guilty of perjury, a felony punishable by imprisonment for not more than 15 years.

MCL 750.423 applies to persons “authorized by a statute of this state to take an oath”, yet in this particular case it is House Resolution 129, not a statute, which is the authorization. An House Resolution is not a statute. Not even when it is passed by both legislative bodies and signed by the chief executive.

MCL 4.553 is immaterial? MCL 750.423 is immaterial? Not to Speaker Cotter…..

Kevin Cotter 3Yet Speaker Cotter is claiming exemption from a subpoena ad testificandum under the very same statute [MCL 4.553] whose protection he denied – by resolution – to Courser and Gamrat. This whole expulsion proceeding reeks of ad hominum expediency, not law.  Punishment for opposing Proposal 2015-01.

HR 129 established a Select Committee and used the House Business Office to enforce Michigan House Rules. However, the House’s Sergeants-At-Arms are exclusively empowered to enforce House Rules under MCL 4.382, Section 2 (2) – which is statutory law. The House Business Office is not even in the same chain of command. MCL 4.382, Section 2 (2) specifically empowers the House Sergeants-At-Arms “to enforce rules adopted by that house”. Not the House Business Office, nor a House Select Committee chaired by Representative McBroom.

You have to wonder how HR 129 – passed by only one legislative body – takes precedence over a Michigan statute which is passed by both the House and Senate, then signed by the Governor. Yes, Article IV, Section 16 of the 1963 Michigan Constitution gives the legislature the authority to expel members:

§ 16 Legislature; officers, rules of procedure, expulsion of members.
Sec. 16.
Each house, except as otherwise provided in this constitution, shall choose its own officers and determine the rules of its proceedings, but shall not adopt any rule that will prevent a majority of the members elected thereto and serving therein from discharging a committee from the further consideration of any measure. Each house shall be the sole judge of the qualifications, elections and returns of its members, and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member. The reasons for such expulsion shall be entered in the journal, with the votes and names of the members voting upon the question. No member shall be expelled a second time for the same cause.

But nowhere in this section is the House given free rein to ignore Michigan statutes in the expulsion proceedings. Those statutes were products of the very same Michigan House.  The House cannot simply override its previous statutes with a resolution just to satisfy the convenience of the moment.  Being the ‘sole judge’ does not admit ad hoc procedural pandemonium. One of the basic concepts in law is the supremacy of statutes over resolutions, particularly resolutions only passed by a single body and not passed by the other legislative body or then signed by a chief executive.

Speaker Cotter is now getting schooled in Michigan law. AG Schuette is about to be. Irony is not an element of Michigan law.

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