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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    Last-Minute Union-Friendly Decision

    By Kevin Rex Heine, Section News
    Posted on Sat Jan 01, 2011 at 09:31:03 PM EST
    Tags: Michigan State Supreme Court, Michigan Education Association, Secretary of State, Michigan Campaign Finance Act, rule-of-law, creative interpretation, Mary Beth Kelly, Robert Young, Alton Davis, Terri Lynn Land, stare decisis (all tags)

    On November 2, 2010, the voters of Michigan elected Judge Mary Beth Kelly to the state's highest court.  Combined with the re-election of Justice Robert Young, they turned out Justice Alton Davis and restored a rule-of-law majority to that bench.  That's a good thing.  Unfortunately, that proper refereeing mentality didn't actually exist on SCOMI until noon on New Year's Day . . . when Justice-elect Kelly was sworn in.

    This meant that, for the two months between Election Day and Inauguration Day, a rule-of-empathy majority still existed on Michigan's State Supreme Court.  And just like the legislature, the high priesthood of creative interpretation held a lame-duck session, in which they've managed to come up with a way to screw us all.

    In a 4-3 decision on Wednesday, December 29th, the state Supreme Court ruled in Michigan Education Association v. Secretary of State that Michigan school districts can automatically deduct MEA-PAC contributions, provided that the union pays the administrative costs up front.  Terri Lynn Land, the sitting (until noon today) Secretary of State, argued that the automatic payroll deductions violate Michigan's election laws because they essentially violate government neutrality in the elections process; and in this she has a solid point.

    Public schools are, effectively government agencies.  Think about this: "public" schools are government-owned buildings, sitting on government-owned land, employing people by means of government paychecks to teach a government-approved curriculum (read: "agenda").  Even if the government in question is local, it's still a government entity.  Therefore, if a union which is known to be politically active is using the administrative services (personnel, equipment, and processes) of a government entity for the purpose of collecting PAC contributions, then the plain language of Section 57 of the Michigan Campaign Finance Act would seem to have been violated.

    Justice Steven Markman, writing in dissent, agreed:

    . . . a school district's administration of a payroll deduction plan that remits funds to a partisan political action committee (a) constitutes a "contribution" because public resources are being used to advance the political objectives of the committee and (b) constitutes an "expenditure" because public "services" and "facilities in assistance of" these same political objectives are being provided.  Thus, the school district's payroll deduction plan is prohibited by § 57 of the MCFA, MCL 169.257.  This interpretation is consistent not only with the language of the statute, but also with the evident purpose of § 57, which is to mandate the separation of the government from politics in order to maintain governmental neutrality in elections, preserve fair democratic processes, and prevent taxpayer funds from being used to subsidize partisan political activities.

    There is no question that a school district constitutes a "public body" within the meaning of § 57.  Accordingly, the issue in this case is whether a school district's administration of a payroll deduction plan that remits funds to a political action committee constitutes a "contribution or expenditure" within the meaning of the same provision.  If the plan does, it is expressly prohibited.

    The school district's administration of the payroll deduction plan that facilitates payments to the MEA-PAC constitutes a prohibited "contribution."  First, the school district uses a variety of public resources to administer the plan.

    Second, the school district's administration of the payroll deduction plan constitutes something of "ascertainable monetary value" because there is inherent value to the MEA-PAC in having payroll deductions automatically taken from members' wages as opposed to requiring individual solicitations by the MEA-PAC.  That there is such "ascertainable monetary value" is self-evident from the very fact that the MEA-PAC has affirmatively sought out the assistance of the school district and has litigated to the highest court of this state an appeal asserting its right to enter into the instant agreement with the school district.  Parties do not typically enter into contracts absent a belief that the rights or benefits accorded them under the contract have some "ascertainable monetary value," and the instant contract seems no different.  Such value can almost certainly be identified as the sum of (a) the additional contributions resulting from the ease of the payroll deduction process compared to a political contribution process in which individual solicitations must be undertaken and (b) the reduced administrative and transactional costs of the former process compared to the latter process.  The MEA obviously prefers the payroll deduction process because it is a more efficient, and a more productive, process by which to secure funding for its political activities.  The school district is not incidental to this process, but constitutes an indispensable element.  Without the school district's contracted-for services, some lesser amount of contributions would presumably be raised on behalf of the MEA-PAC, and at a greater cost.

    Third, the services undertaken on behalf of the MEA-PAC are "made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question," MCL 169.204(1), because, as discussed earlier, the purpose of the MEA-PAC is to facilitate and coordinate the involvement of the MEA in partisan politics.

    Thus, the school district's administration of the deduction plan constitutes a "contribution," as that term is defined by MCL 169.204(1).  Because the school district employs public resources to make this "contribution," its administration of the deduction plan is a straightforward violation of § 57 of MCFA.

    Now I'm not the Wizard of Laws, but that seems pretty self-explanatory to me.

    And if this had been Monday, January 3, 2011, then that'd be that . . . no taxpayer dollars going to fund union political activities.  The MEA would have to talk their members into writing checks from their net pay.  Of course, as Justice Markman observed, that might result in fewer (and lesser) contributions collected, and at an increased cost to the union for collecting them.  (Not that anyone truly interested in the greater good of Michigan would complain much about that.)

    Unfortunately, this case was heard during 2010, when we still had a creative interpretation majority sitting on Michigan's highest bench.  And, in writing for that majority, Justice Diane Hathaway opined:

    We conclude that the Court of Appeals clearly erred by holding that administration of a payroll deduction system is not allowed under Michigan law.  We reverse the Court of Appeals' judgment because a public school's administration of a payroll deduction system (the system) that remits funds to a segregated fund is not precluded by any prohibition in MCL 169.257(1) and is therefore permitted.

    MCL 169.257(1), commonly referred to as § 57 of the Michigan Campaign Finance Act (MCFA), specifically prohibits a public body from using public resources to do three things: (1) make an expenditure, (2) make a contribution, and (3) "provide volunteer personal services that are excluded from the definition of contribution under section 4(3)(a)" of the MCFA, MCL 169.204(3)(a).

    First, the administration of such a system is not an "expenditure" under the MCFA because the cost of administration is an "expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee," which is an enumerated exception to the statutory definition of "expenditure."

    Second, administration of the system is not a "contribution" as defined by the MCFA because there is no net conveyance of anything of monetary value made for the purpose of influencing the nomination or election of a candidate or for the qualification, passage, or defeat of a ballot question.

    Last, a public school's administration of a payroll deduction system does not "provide volunteer personal services that are excluded from the definition of contribution under section 4(3)(a)" as defined by the MCFA because the MEA-PAC fully anticipates prepayment for any administration costs.  Thus, the administration of a payroll deduction system by a public school is permitted under the MCFA.

    Thus, the administration of a payroll deduction system by a public school is permitted under the MCFA, and the Court of Appeals erred by concluding that it is not.  We reverse the judgment of the Court of Appeals.

    Thus, by a fantastic arrangement of words (such as one might use to make a horse chestnut appear to be a chestnut horse), the plain language of the law doesn't mean what it says.  (Shades of Betty Weaver, anyone?)  Not only that, but the majority decision didn't even address the SoS arguments explaining how the school district's administration of the deduction plan amounts to a contribution in support of partisan political activity.  Rather, by pre-paying the administrative costs of the payroll deduction to the MEA-PAC, the MEA somehow - apparently through PFM - negates the fact that the administrative services of a government entity are now being used to further a clearly partisan political agenda . . . in plain violation of the neutrality requirement of the MFCA!!!

    And so, through the binding statewide legal precedent of a published SCOMI decision, the MEA can now legally use taxpayer dollars to fund political activism in support of union-friendly candidates (typically Democrats) . . . and there is nothing that we can do about that.

    A bad legal precedent is much tougher to overturn than a bad law.  The latter can be undone by a later legislature passing a repeal (which is then signed by the appropriate chief executive).  The former is - by design - problematic.  A key element of a legal system's stability is the concept of stare decisis, essentially not disturbing settled legal matters.  This way, later judicial decisions can build on previous ones, rather than having to make every ruling from scratch.  Overturning a binding precedent requires a preponderance of evidence that the precedent is either wrong or outmoded . . . and that takes time to develop.

    Even rewriting the MFCA to close this loophole may not work, though making Michigan a right-to-work state might accomplish it indirectly.  In the meantime, we'll have to figure out how to deal with the reality that our tax dollars may now be rerouted to finance socialistic political activity that most certainly does not have our children's best interests in mind.

    < Happy New Year!! | We have a government.. But >

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    And Bang.. (none / 0) (#1)
    by JGillman on Sun Jan 02, 2011 at 12:36:06 AM EST
    This last week was a cluster foxtrot.

    BTW thank you for the use of iconography.

    I will be certain to have some more available soon.

    Don't hold your breath. (none / 0) (#2)
    by KG One on Sun Jan 02, 2011 at 09:02:03 PM EST
    Beck rights? (none / 0) (#5)
    by jgillmanjr on Mon Jan 03, 2011 at 07:39:19 AM EST
    Umm, I just quickly skimmed over this (as it turns out, ye padre and I start our new jobs the same day, only him an hour before me), but wouldn't this be in violation of Beck rights, assuming people opted out of the union?

    If Paul Kersey is lurking, maybe he can chime in?

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