blogging by kpwerker

Michigan bloggers and affiliate marketers should take note: the Federal Trade Commission has issued new guidelines under 16 CFR Part 255 concerning the use of advertising, testimonials, and endorsements in blog posts. Starting December 1, 2009, bloggers and affiliate marketers who endorse a product must disclose whether they have a material connection to the product’s provider if that connection would affect the public’s assessment of the weight or credibility of the endorsement. Bloggers and affiliate marketers who receive payment for their endorsement of a product, or any other kind of remuneration—free or otherwise— can be held liable for a violation of these regulations. Failure to comply with the new rules could cost Michigan bloggers and affiliate marketers up to $11,000 per post.

Additional guidelines have also been enacted concerning celebrity endorsements. Prior to the new guidelines, celebrity endorsers could not be held liable for false or misleading advertising that was associated with a product that they endorsed. That has changed, however, as celebrities must now disclose their connection with an advertiser and can be held liable, along with the advertiser, for any false or misleading advertising. Further, celebrities must also disclose their relationship with an advertiser even if they mention the advertiser’s products in non-traditional advertising channels, such as on talk shows or radio shows.

The rules governing consumer testimonials have also changed. Advertisers can no longer hide behind a disclaimer that states that “Results are not typical.” If an advertiser uses a consumer testimonial to make a statement about the efficacy of a product, the advertiser must now disclose what the typical results would be. Advertisers must also disclose the basis for any survey evidence used in their advertisements, as well as their connection to the surveying entity.

In short, if you are a blogger or affiliate marketer who reviews products, uses testimonials to sell products, or relies on celebrity endorsements, it is important that you understand these new rules. Contact an attorney that is familiar with these rules to ensure that you are in compliance, as even blogging attorneys must comply with the rules.

Disclosure: Traverse Legal is a sponsor of Absolute Michigan.

Thursday April 30th at the Magic Bag in Ferndale features Rachael Davis, My Dear Disco, Nervous But Excited, and Chris Bathgate. ACLU of Michigan staff attorney Jay Kaplan will discuss what his organization’s LGBT project is working on to help the cause of LGBT victim rights. Tickets are $10 at the door and the show starts at 8pm.

Friday May 1st in Ann Arbor is Nervous But Excited and Breathe Owl Breathe will play at The Ark. Coalition for Adoption Rights Equality (CARE) President Beverly Davidson will discuss House Bill 4131 that could allow for second-parent adoptions in Michigan. Tickets are $15 at the door and the show starts at 8pm.

Saturday May 2nd at the Insideout Gallery in Traverse City is Kalamazoo-based old time string-bang Who Hit John? (pictured above) will be there along with songwriter Michael Beauchamp and Cmoon, featuring local freestyle artist Cnote, Moon Beam and Adam Reid. Triangle Foundation Victim Service Director Melissa Pope will discuss various legal and political issues. Tickets are $15 at the door, $12 in advance.

Here's their promo video...

Barrel room at Merryvale by star5112

Tom Wark's Fermentation wine blog says:

Michigan Consumers should be smiling. A Federal District Court Judge in that state ruled on Tuesday that the state's law that bars consumers from buying and having wine shipped to them from out-of-state retailers violated the U.S. Constitution and enjoined the State from enforcing laws that prevent such shipments.

The decision was a forceful one. Judge Donna Hood made no bones about it:

"the State’s argument that the Twenty First Amendment gives it the authority to regulate alcohol coming into the state and that the three-tier system it has designed for regulatory purposes is appropriate is flawed. While the Heald court did state that the three-tier system was an appropriate use of state power, it did not approve of a system that discriminates against out-of-state interests. The Supreme Court made clear in Heald that a state’s power under the Twenty First Amendment is not above the Commerce Clause nondiscrimination requirement."

Read the rest of A Forceful Voice for Consumers. Also see NEWS: Judge Orders OK to Shipping by Out-of-State Retailers from MichWine ...and say hello to to the wineries of California, New York, Washington, Texas, North Carolina and so on!

For more on this issue visit Save the Wild UP and also check out Anatomy of a mine: Lansing hearings put U.P. wilderness on trial from the Lansing City Pulse:

The hearings hit hard rock Wednesday, April 30, when a white-haired man in suspenders slowly made his way to the stand, leaning on a cane.

Jack Parker, a geologic engineer and author of “Practical Rock Mechanics for Miners,” told the judge he began evaluating drill cores, or samples from proposed mines, 60 years ago.

“Six-oh,” he said, to avoid confusion.

Parker rang a theme that subsequent witnesses would hammer hard: The Eagle Mine designs, he said, were based on partial data about the rock, optimistically interpreted, often by computer modeling rather than direct inspection.

Parker worked for decades as a miner and later became a consultant at hundreds of mines, most recently at White Pine Mine, 75 miles west of Houghton. He spoke in a whisper — nobody wanted to think about the buildup in his lungs — and his gravitas lent the legal proceedings a rocky heft. Even a witness later called by Kennecott, Idaho’s Wilson Blake, acknowledged that Parker is an industry “icon.”

Capitol, Landing MI by Irina Vasiliu

Below you'll find a news release from Governor Granholm regarding an agreement to add a 21.9% surcharge to the new Michigan Business Tax to replace the 6% Michigan Service Tax.

The Detroit Free Press and Detroit News have details on the agreement as well.

Granholm, State Lawmakers Agree to Replace Service TaxReplacement Helps State's Fiscal Stability

Protects citizens from massive cuts to public safety, health care, education

Governor Jennifer M. Granholm, Lt. Governor John D. Cherry, Jr., Senate Majority Leader Michael D. Bishop, House Speaker Andy Dillon, and Senate Democratic Leader Mark Schauer along with legislative members have agreed to replace the service tax that went into effect at 12:01 a.m. today. Under the agreement, revenue generated by a service tax will be fully replaced by a surcharge on the Michigan Business Tax (MBT).

The State Senate is expected to complete work on the tax package in the early hours of this morning and the State House is expected to approve it later today. Under the agreement businesses will be granted legal protection if they fail to collect the service tax until effective date of the new law.

"This agreement protects health care, public safety and education while replacing revenue from the service tax," said Governor Granholm. "I applaud the members of the business community and the legislators who worked with us to craft this fair and responsible compromise."

Senator Bishop (R-Rochester) offered the following statement: "I appreciate the spirit of compromise to repeal a tax that would have devastated Michigan business. It is only through continued good faith negotiations, compromise and dialog that we can set Michigan on a track for renewed economic prosperity."

"These negotiations were very difficult due to our challenging economic climate, but I am confident that this agreement is a fair compromise that will allow the state to provide the services necessary to support our businesses and attract new businesses to a state that has a tremendous quality of life," said Speaker Dillon (D-Redford Twp.). "I commend Michigan's business community for their willingness to step up and work towards a solution."

"By working with the business community and each other, we reached a compromise that gets rid of the service tax and keeps our promises to fund schools, public safety, and health care," said Senator Schauer (D-Battle Creek). "This is the type of reasonable approach that will protect our priorities and position us for economic growth."

Under the agreement, the replacement for the service tax will phase out under certain economic conditions.

The MBT, which takes effect January 1, provides tax cuts for more than 60 percent of Michigan businesses and provides tax cuts to both small businesses and Michigan's major manufacturers, while encouraging job creation in Michigan.

The MBT helps stimulate Michigan's economy by relying more on profit, providing tax credits to companies that locate or create new jobs in Michigan and tax credits for entrepreneurial and R&D activities. In addition, a significant cut in the personal property tax will help the state's largest employers and commercial businesses.

"With this agreement in place, we can continue working on the economic plan that will help grow our economy and create jobs," said Lt. Governor Cherry.

# # #

Carousel by jnhkrawczyk

"We've got a shift starting in 36 hours that we've got to charge 6% more on ... and I don't know how to do it."
-John Evans, president of Evans Distribution

Welcome to Michigan, where we somehow seem to be stuck in the Reality TV version of Groundhog Day: Your Government inAction. With just hours remaining before a confusing, unexplained and really random 6% Service Tax goes into effect, everyone who might have to pay the tax is watching the clock and wondering what Lansing will do. Read on for much more...

The Freep's Susan Tompor writes that the new 6% service tax is like one of those bad snowstorms that everybody hoped would skip town. Even the forecasters warned that this thing couldn't last long. This oddly crafted tax on services -- 6% on nails but not hair; 6% on ski lift tickets but not golf -- is so dopey that most expected it ultimately had to be repealed.

Over on Michigan Liberal the editor of a major Michigan web site spars with a long-dead Michigan governor over the much-hatedness of the Service Tax.

An article on the Service Tax Impasse the Detroit News looks at business owners preparing for the tax and also at the state of diplomacy in Lansing:

On Detroit talk radio, House Speaker Andy Dillon, D-Redford Township, and Senate Majority Leader Mike Bishop, R-Rochester, pointed fingers at each other for the negotiations breakdown Wednesday over the service tax. The House passed its own plan and then adjourned until Tuesday.

Bishop called "garbage" a House-passed bill that the Senate rejected Wednesday night and chided: "We don't want to let the facts get in the way of the speaker."

Dillon shot back that the so-called "garbage" is backed by a large share of the business community.

Meanwhile, over at the Michigan Treasury, they have posted a disorganized jumble of information about the tax at the top of their page that includes an explanation of services taxed.

Find much more about this issue at 6% of x? Untangling Michigan's Service Tax on Absolute Michigan.

Half Staff by Apocaplops

UPDATE Oct 25: Carol of ArborLaw.com writes:

I actually have the entire list of services descriptions covered by the law, on my blog at Arborlaw.com. When the law came out, I cross-referenced the NAICS codes (which are incorporated into the new law specifically by reference) with the section numbers from the bill and the expected new numbers for sections in Michigan Compiled Laws. If you want to see this to determine whether your business services are covered, go to http://arborlaw.com/blog/services-tax. (it's a big list!)

Political analyst George Weeks writes that in decades of following how Lansing deals with financial crisis, I have never seen enactment of such a bizarre, crazy quilt, irrational, inexplicable, unfair and — most of all, confusing to taxpayers — tax.

Crain's Detroit Business goes further, calling this The best tax plan lobbyists can buy. Law and accounting services are not taxed, but the broad category of management advice, strategic planning and financial planning and budgeting will be taxed. Hmmm. So a company buying consulting services to help it keep its doors open is making a “discretionary” purchase?

Like many in Michigan, we're wondering which of the services we provide like online publications (probably not), internet consulting (probably so) or graphic design & marketing (who knows??!!) would be subject to the service tax.

Assuming that movements to repeal or change the tax fail, mLive's blog gives some idea of what services might be subject to the tax come December 2007. The nebulous "consulting services" is made a whole lot clearer when you click over to see businesses classified under 5416 Management, Scientific, and Technical Consulting Services. It's surprising to find that in addition the list includes items that are absolutely essential to the development of new businesses in Michigan like site selection, start-up consulting, marketing, and a host of science and technical services.

We invite you to add your thoughts, comments and suggestions for making some sense out of what looks like a fiscal nightmare for Michigan.

An appeal to reason by Apocaplops

StateGate seems like it might be nearing its conclusion with an 13th hour deal reached at 4 AM when legislators were apparently too tired to fight anymore. The LSJ reports:

"This budget agreement is the right solution for Michigan," Gov. Jennifer Granholm said in a news release after the vote. "We prevented massive cuts to public education, health care and public safety while also making extensive government reforms and passing new revenue. With the state back on solid financial footing, we can turn our focus to the critical task of jumpstarting our economy and creating new jobs."

Leaving aside the question (for now) of how much harder it will be to create jobs with a reputation as a state that is financially unstable, let's take a look at what was added to an income tax hike - the "sales tax expansion", a 6% tax on services. The Detroit News lists some of the services that might be taxed in New levy to tax 23 services.

The list appears to make little sense, with ski resorts subject to the tax but not golf course, janitorial service providers but not plumbers, tanning but not haircuts and financial & business consulting but not legal and accounting services. What do you bet that TV ads won't be subject ... and also that we'll be hearing a lot more like this from every industry affected?

"Any service tax should be across the board on all services and not single out specific areas of the economy," Stephen Kircher, president of Boyne USA Resorts' eastern operations, said in a statement.

In Kiters Defend Access, IPR News Radio notes that although the Michigan Supreme Court says anyone can walk along the beaches of the Great Lakes below the ordinary high water mark, landowners often take issue with kiteboarders setting up.

Photo: Smile as big as the kite by Andy McFarlane

Down by the Big Sauble River by simply, Diann

The Grand Rapids Press quotes former Michigan Governor William Milliken as saying that Michigan's Environmental Protection Act included the word "anyone" to give anyone the right to sue over damage to the state's water, air or land.

"It was clearly the intent of the Legislature and clearly my intent when I signed that bill that any citizen would have the right to sue," he said last week at his home on Grand Traverse Bay. "They (the Supreme Court) have so narrowed down the ability of a person to bring a lawsuit, it has negated the intent of the Legislature."

Chief Justice Clifford Taylor said in an interview last week "We prefer the ruling that says, 'If you haven't been damaged, you can't sue.'" Taylor and three other justices concluded that the "anyone" provision violated the U.S. Constitution, but Joseph Sax (author of the 1970 law) said the section of the Constitution they refer to applies only to federal court cases and never was intended to limit a state's right to grant standing to a broader group and "They're just wrong. This doesn't have anything to do with federal law. If a state wants to grant someone a legal right to protect the quality of the environment, it can do that."

Apparently not.

Flow by rckrawczykjr

In the wake of yesterday's 4-3 decision by the Michigan Supreme Court in Michigan Citizens for Water Conservation vs. Nestle Waters North America, Inc, Dave Dempsey write:

Michigan's future is much more at risk today because of the court’s attack on Michigan’s constitutionally protected natural resources.”

Justices Taylor, Young, Corrigan and Markman—the Court’s right-wing ideological activists —were in the majority in striking down the Michigan Environmental Protection Act’s (MEPA) provisions allowing citizens to sue to enforce environmental laws, or so-called “standing”. Three dissenting opinions by Justices Weaver, Kelley and Cavanaugh all concurred that the majority’s decision was at odds with the Michigan Constitution, which places a duty on the Michigan Legislature to protect natural resources*.

Read more of "brazen power grab" threatens Michigan's air, water by Dave Dempsey.

The Freep weighs in with an opinion that begins:

By limiting who can sue over environmental issues, the Michigan Supreme Court has done what it often claims not to: ignored the plain language of a law and replaced the Legislature's view with its own philosophy.

A section of the 1970 Michigan Environmental Protection Act allows virtually anyone in Michigan to take an environmental claim to court. It is, in fact, not a stretch to argue that a poor environmental decision, whether about a sand dune, wetland or smokestack permit, diminishes the character of the entire state. In fact, sometimes the people closest to environmental damage, but more desirous of the economic development that caused it, may not have the necessary will, or the means, to contest it. It was thus, under the law, left open for those farther afield to bring the case.

*Michigan Constitution, Sec. 52. Natural resources; conservation, pollution, impairment, destruction.

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.

History: Const. 1963, Art. IV, § 52, Eff. Jan. 1, 1964

Sometimes by Andy McFarlane

Well, this is a little weighty for a Friday, but in light of that fact that "environment" is a synonym for "the place we'll go to have fun this weekend" I think it's necessary.

In a case before the Michigan Supreme Court, attorneys for Nestle Waters North America contend that a Michigan law that allows citizens who are not "directly affected" by an environmental action to go to court over it is unconstitutional. In a Detroit Free Press editorial, Joan Wolfe (a former member of the Michigan Natural Resources Commission and founder of the West Michigan Environmental Action Council) warns that the Michigan Environmental Protection Act (MEPA) is in grave danger:

Michigan citizens need to be aware that a 37-year-old landmark environmental protection law is at grave risk in a decision pending from the state Supreme Court. As one of many who fought for passage in 1970 of the Michigan Environmental Protection Act, I urge Michigan citizens to take notice that their rights to go to court on behalf of our air, water and other natural resources could be overruled.

The internationally known MEPA was written by Dr. Joseph Sax, an environmental law expert at the University of Michigan Law School. The act fulfills the promise of Michigan's 1963 Constitution, which says: "The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The Legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."

Wolfe notes that it was not just environmental groups behind the act, but a broad coalition of PTAs, churches, Jaycees, garden and sports clubs who were able to push for the nearly unanimous passage of the act over the objections of business groups. The Michigan Chamber of Commerce and Michigan Manufacturers' Association have filed a brief supporting Nestle, and points out that according to the nonpartisan Michigan Campaign Finance Network, the state Chamber put millions of dollars into an advertising campaign that aided the election of three of the Supreme Court Justices who will vote on the case.

Dave Dempsey writes that if the Court does strike down that right, they will effectively be ignoring precedent and logic to help out powerful special interests that benefit from pollution, impairment and destruction of the environment.

So, where does the additional money go?

The Ann Arbor News has an excellent article that looks at how the current school funding crisis might pit school districts against one another as schools on the lower end of the funding spectrum (many at the state's minimum foundation grant of $7,085 per student) say it's unfair that some districtsreceive $11,000 and $12,000 per student. Citizens for Equity is composed of about 50 lower-funded districts who are lobbying for funding changes. Rick Terres of Howell Public Schools says "If there are extra dollars available, I believe the lower-funded districts need further consideration at the first wave."

Rep. Kevin Elsenheimer, R-Bellaire, (who has introduced a resolution that would put a constitutional amendment on the ballot asking to close the equity gap by 2018) took offense at a recent call by Oakland County Executive Brooks Patterson for Chinese language classes to be added to all Oakland County schools, saying "Why is it that schools in some part of the state are adding things like Mandarin Chinese, when schools in rural parts of the state are having to cut, cut, cut, and are worried about even being able to offer athletics?"

Or (in the words of Grand Rapids Public Schools lobbyist Mike Pumford): "Every school district now must meet the same standards, and is held to the same level of accountability. They have to do the exact same thing, but the state is giving some districts $12,000 to $13,000 per pupil."

Read Spending per student in public schools was supposed to even out under Proposal A. Why is it still unequal? (vanishes into the mists of the interweb in a week or so) and/or learn more from Citizens for Equity.

Michigan Theater by meanmustard1982

Create Detroit pulled together all the links surrounding this NPR feature on state lawmakers cutting funding for the Ann Arbor Film Festival for three years (at least), claiming it showed material they considered pornographic. It sounds as if there will be court battles over this. You should click over and check out all the links (including the Mackinac Center article that touched it off and the Festival's position), but this excerpt from the Film Festival's economic benefits page was especially thought-provoking:

The festival programming features a wide variety of viewpoints. Included are those from the far left or right political standpoints and avant-garde or mainstream themes, and documentaries which provide insights to other cultures and countercultures from around the world. In addition to accessible arts and cultures, the AAFF brings valued dollars to the local and state economy as well as recognition to Michigan on an international level.

Unfortunately, Michigan's reputation in the wider world seems to be more and more as a place of narrow tolerances. What's worse, at a time when we should be reading articles about how cool Michigan's film festivals are, we're getting coverage on the politics of it all.

Since we can't leave you on a down note like that, here's a nice article in the Hub on the opening of the East Lansing Film Festival that also explores how film festivals allow a "less corporate" and more dynamic presentation of films.

Since that's not enough cheer, how about some dueling YouTube featuring a feature on the Ann Arbor Film Fest with Todd Mundt and the merits of short film from the East Lansing Film Festival.

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Resting on the River Bottom by simply, Diann

The Northern Michigan Environmental Action Council (NMEAC) is the first group to officially campaign to protect the 37-year-old Michigan Environmental Protection Act from a potentially devastating Michigan Supreme Court ruling due later this year. According to the NMEAC release:

An attorney for Nestle argued on January 11 before the Supreme Court that Michigan Citizens for Water Conservation "has no standing over what happens on [Nestle's] leased land. It's of no concern to nearby land owners if 'organisms in the wetlands live or die,' or if a rare flower is endangered." But MCWC is not fighting for just "any" wetland or rare flower, but for an important area at the headwaters of a stream that flows to Lake Michigan.

The people of the state said they wanted all citizens to be able to go to court to protect the environment and the Legislature listened when it passed MEPA in 1970. Decades of reluctance by government agencies to take action against powerful polluters, and growing public concern about serious air and water pollution, helped craft this important law, which deputizes all citizens to guard Michigan's environment.

NMEAC has voiced concern that prior rulings and public statements by members suggest that the Michigan Supreme Court could agree with Nestle's position and rewind Michigan's legal code to require that citizens prove that they are directly affected by a particular pollution problem to get access to the courts to stop it. NMEAC holds that all Michigan citizens are automatically affected by what happens to our air, water, and other natural resources and should be able to stand up for them in court and is asking citizens and organizations to write letters to the editor and seek other creative ways to ensure that the Supreme Court knows citizens care.

If you have any ideas for creative ways to send a message to the court, post a comment here. We at Absolute Michigan feel that Michigan's environment is worth protecting on moral, aesthetic and economic grounds.

More about this issue at the Northern Michigan Environmental Action Council and Michigan Citizens for Water Conservation web sites.

Also last week, the Freep had a feature on an ongoing video blogging effort by Shannan McNarney to chronicle the process of opening McNarney's Public House, an Irish pub that will be located one block east of the Renaissance Center in Detroit. You can get more episodes at the McNarney's web site and watch the first episode below.

Click here to view the embedded video.

The current version of Introduce Your Michigan Business or Organization is right there.

Words by Patrick T Power

On our fourth and final stop on our tour through Michigan's Government, we visit Michigan's Court System.

Whether it's the state's highest court - the Supreme Court - the Court of Appeals, or any of the various Trial Courts, you'll be sure to find what you're looking for in this easy to navigate website.

The Courts' website is teeming with activities and helpful links. You can visit the Supreme Court Learning Center, and while you're there, check out the new kids game, Kid Justice Conquers Chaos.

If you've got a legal issue you need some help with, be sure to visit the Self-Help Center, which answer some of those commonly asked questions we all have, such as how each court functions, how to look up a Michigan law, how to resolve a dispute, and how to find a job with the courts.

Did you know that our judges and court employees never stop learning? The Michigan Judicial Institute provides comprehensive, continuing education programs for employees of the judicial branch. The primary functions of MJI are to:

Develop and conduct live educational seminars for judicial branch employees using recognized subject-matter experts as faculty;

Develop and conduct educational seminars using distance learning methods, such as webcasting and web-based training;

Research, write, and update legal reference publications; and

Operate the Michigan Supreme Court Learning Center, housed in the Michigan Hall of Justice and designed to introduce children and adults to Michigan's judicial system.

One of the services that is most frequently accessed by the public is the Friend of the Court division. If you are involved in a legal issue, be sure you've studied up on the Fines, Fees, and Costs Schedules. Likewise, the Grants and Other Funding page may be more up your alley.

Regardless, keeping Michigan great starts with you, and your involvement in your government. Get involved and make your government work for you!

Country Schoolhouse by nomm de photo

The Detroit News reports that some Democrats, Republicans and public policy experts are saying Michigan needs to take a look at extending the sales tax to cover more services and (perhaps) lowering the sales tax overall by a penny (6¢ to 5¢) to help offset a projected half billion dollar budget deficit. While a tax on all services would generate close to $9 billion, business-to-business services (engineering, legal services, accounting) would likely be exempt due to the adverse impact that could have on economic development. Likewise, medical services would probably be off limits as well reducing the overall revenue to just under $3 billion.

Michigan taxes 26 of 168 services (ranking 39th in the US) and increasing taxes on services is opposed by most business groups including the Michigan Chamber of Commerce who say it's a "very bad idea" and that a service tax could lead to reduced competitiveness with neighboring states. Thomas Clay of the Citizens Research Council of Michigan says:

Our tax structure is archaic, obsolete. All that economic activity in the service area is not connected to the tax system. If you had a tax on personal services, you could reduce the rate and have sales tax revenue that would grow in the future.

Read Michigan may tax services in the Detroit News and tell us what you think about such a measure in the comments.

Michigan Supreme Court Chief Justice Clifford Taylor
(AP Photo/Al Goldis)

Last week's 4-3 re-election of Michigan Supreme Court Chief Justice Clifford Taylor also saw an escalation of tension on the court in the form of a dissent by Justice Elizabeth A. Weaver that begins:

It is necessary that I dissent from the election of Chief Justice Clifford Taylor as Chief Justice of the Michigan Supreme Court. Chief Justice Taylor has proven that he cannot properly lead the Michigan Supreme Court at this time. The people of Michigan deserve to have a Chief Justice who will conduct the people's business in an orderly, professional, and fair manner.

We have published Justice Weaver's dissent in its entirety as we think it is worthy of your consideration and since we can't find it anywhere else (including places where we would expect to find it such as the Michigan Supreme Court web site) Read Weaver rips fellow justices in scathing dissent in the Record-Eagle.

Also, in Odor in the Court, Detroit Free Press editorial page editor Ron Dzwonkowski writes:

...the Michigan Judicial Tenure Commission, which is charged with protecting public confidence in the courts by holding judges accountable for misconduct, certainly has enough reason in Weaver's dissents to begin an inquiry. ... Weaver has laid out some serious issues. If these charges were made about any other court in the state, there would be at least an investigation. Either some justices of the Supreme Court have problems or Weaver does. Either way, something doesn't smell right.

UPDATE (January 10)
The Detroit Free Press has an article regarding Chief Justice Taylor's response to Justice Weaver's accusations. In the article, Chief Justice Taylor says that if Justice Weaver has evidence of actual impropriety, she should present it to the State Police, FBI or Judicial Tenure Commission, which investigates charges of improper conduct by judges. According to the article:

...Weaver said in a telephone interview she has not taken her complaints to law enforcement authorities because she has not alleged the conduct involved criminal activity. Similarly, she said the Judicial Tenure Commission would be powerless to deal with complaints against members of the Supreme Court because the court renders final judgment on its recommendations.

M E M O R A N D U M

TO: Corbin Davis
cc: The Justices, Mike Schmedlen, Anne Boomer and Danilo Anselmo
FROM: Justice Elizabeth A. Weaver
SUBJECT: Dissent to Election of Chief Justice Clifford Taylor as Chief Justice
DATE: Friday afternoon, January 5, 2007

Weaver, J. (dissenting)

It is necessary that I dissent from the election of Chief Justice Clifford Taylor as Chief Justice of the Michigan Supreme Court. Chief Justice Taylor has proven that he cannot properly lead the Michigan Supreme Court at this time. The people of Michigan deserve to have a Chief Justice who will conduct the people's business in an orderly, professional, and fair manner.

Let it be clear, my dissent is not motivated by ill will or resentment—I have none for any of my colleagues. Nor do I have any desire to serve again as Chief Justice myself.¹ I strive to base in fact and truth my opinions—dissents and concurrences—and to state only what I believe is necessary that the public know. Facts and truth, and dissents and concurrences based on them, are not always pleasant information.

I dissent because the majority of four of this Court has misused and abused the judicial power by suppressing, or attempting to suppress, dissent and has engaged in repeated disorderly, unprofessional and unfair conduct in the performance of the judicial business of the Court.

Not one member of the majority of four has demonstrated an ability to lead this Court at this time. Thus, it is in the best interest of the State of Michigan and the Michigan Supreme Court for either Justice Michael Cavanagh or Justice Marilyn Kelly to serve as this Court's Chief Justice. ²

There are many reasons for my position that not one member of the majority of four should serve as Chief Justice or lead this Court at this time. The following is an enumeration of reasons, some previously published³ and some revealed here for the first time, for my position regarding the selection of this Court's Chief Justice.

I. Suppression of dissent by the majority of four

Chief Justice Taylor, and Justices Corrigan, Young and Markman, are unworthy to be Chief Justice of the Michigan Supreme Court because they have demonstrated their willingness and desire to suppress and/or censor divergent opinions by fellow justices.⁴ It is wrong for any majority of the Michigan Supreme Court to decide what they deem worthy or unworthy of publication, and to use their majority votes to silence, or attempt to silence, opinions with which they do not approve, as authorized by the majority of four's hastily adopted Administrative Order 2006-08 (AO 2006-08).⁵ The majority of four used AO 2006-08 to order the suppression of my dissent in Grievance Administrator v Fieger, motion for stay. Such censorship is undemocratic and interferes with the censored justice's constitutional duties. For the majority of four to adopt and use a "gag order," over the dissenting voices of the remaining three justices on the Court, is wrong. The majority of four's willingness to suppress or attempt to suppress dissension shows that no member of the majority of four is fit to lead as Chief Justice of the Michigan Supreme Court.

The majority of four's last-minute reversal of the suppression order to the Clerk of the Court⁶, and the decision to let my dissent to the order on the motion for stay in Grievance Administrator v Fieger be published in the order on December 21, 2006 was the wise and correct decision. However, this action was conducted in an unprofessional and haphazard manner, unworthy of the Michigan Supreme Court. On Thursday, December 21, 2006, Chief Justice Taylor sent a memorandum to the justices and relevant Court staff claiming that the majority of four no longer supported the "preliminary directive" to suppress my dissent.

Ordering the suppression of my dissent by using AO 2006-08, the "gag order," cannot truthfully be characterized as a "preliminary directive." The truth is that fifteen (15) days earlier, on December 6, 2006, the majority had implemented the hastily adopted "gag order," and directed the Clerk of the Court in the presence of the entire court to refrain from publishing my dissent. Thereafter, Justices Cavanagh, Kelly, and I formally voted against the majority's decision to use the "gag order" to suppress my dissent. Given the formality of the votes on the question of whether to use AO 2006-08 to suppress my dissent, rescinding prior votes should also have been done within the formal setting of the Court's conference.

Failing to properly rescind their formal votes and attempting to recharacterize the nature of their prior formal votes as a "preliminary directive" attempts to change the history of what actually occurred regarding the majority's use of AO 2006-08. This manner of conduct is at a minimum, disorderly, unprofessional, and unfair, and is not an acceptable manner by which to conduct the people's judicial business.

Regardless of the majority of four's reversal of the suppression order it appears that the majority has no intention of abandoning its reliance on bully tactics⁷ and suppression when faced with dissent or concurrence. One need look no further for proof of this than the majority of four's December 20, 2006 order placing on the January 17, 2007 public hearing agenda the majority's hastily adopted "gag order." The majority of four's "gag order," AO 2006-48, states that the majority is "particularly interested" in witness testimony regarding the following question:

Where a Justice violates or threatens to violate Administrative Order 2006-8, what means of enforcement and/or sanctions, if any, are properly adopted by the Court?⁸

The majority is looking for punishments for justices who violate, now and in the future, the "gag order," and is apparently uninterested in first considering the constitutionality of AO 2006-08, regardless of the fact that no Michigan case law, statute, court rule, or constitutional provision supports its position, as explained in my dissent to AO 2006-08⁹.

Other examples of suppression by the majority of four, in addition to AO 2006-08, the "gag order," are:

1) The majority of four continues to effectively suppress my dissent to the majority's March 1, 2006 vote to adopt an Internal Operating Procedure (IOP). The majority intended for the still unpublished, secret IOP to govern justice disqualification decisions. Because the majority's March 1, 2006 vote was a final vote, and not a straw vote, my dissent to the adoption of the IOP by the majority of four should have been made publicly available attached to the minutes for the March 1, 2006 administrative conference. However, the March 1, 2006 minutes have never been approved, now over ten (10) months later. Thus, what occurred on March 1, 2006 during the Court's conduct of the people's business remains a secret from the public as it has yet, as of this writing, to be made available to the public in the Clerk of the Court's office.

2) The majority of four has effectively suppressed my dissent filed September 28, 2006 to the action taken at the September 7, 2006 conference by the majority of four's closing of the Justice Disqualification administrative file, ADM 2003-26. There have never been any proposed minutes for recording of the action taken on September 7, 2006, now nearly four (4) months later. (See Weaver dissent to denial to motion for stay in Grievance Administrator v Fieger for discussion and history (over three (3) years) of the Justice Disqualification administrative file, ADM 2003-26.)

II. Disorderly, unprofessional and unfair conduct in the performance of the Court's judicial business by the majority of four

Chief Justice Taylor, with the support of Justices Corrigan, Young, and Markman, illustrated his capacity to act unprofessionally during this Court's consideration of the administrative docket concerning the appointment of the Chief Judge of Probate for Kent County in July 2006.¹⁰ I articulated substantial grounds for my disagreement with the appointment made by the majority. In response to my dissent, which was my duty to provide, I became the target of personal attack. Chief Justice Taylor prepared and circulated to the justices and court staff a draft concurrence to the appointment, which stated:

This Court, by a vote of 4 to 3, has appointed Judge Paul J. Sullivan as Chief Judge of the Kent County Probate Court. Justice Weaver, having unsuccessfully urged we appoint Judge Patricia Gardner, has filed a dissenting statement.

Behaving like a petulant "only child" Justice Weaver is, more or less, "holding her breath" until she gets her way: Judge Gardner as Chief Judge of the Kent County Probate Court. She hopes, as a child engaging in a tantrum, that one of the adults will given [sic] in and allow her to dictate their chief judge vote to save Judge Gardner's reputation. While I would like to spare Judge Gardner from this (in fact, ever the conciliator, I even suggested Justice Weaver use a hunger strike as a vehicle as it seemed to have the potential for everyone to be a winner) we cannot give Justice Weaver this power to bludgeon her colleagues by threat of outrageous statements needlessly embarrassing to third parties.

It is a sad situation Justice Weaver has made here, but with apologies to Judge Gardner, our decision to approve Judge Sullivan will go forward.

Chief Justice Taylor's response to my difference of opinion in my dissent regarding the appointment in Kent County is unworthy of a Chief Justice. Such discourse in the conduct of the people's judicial business is unprofessional and unfair and illustrates bias and prejudice.¹¹

Other examples of disorderly, unprofessional, and unfair conduct that make it impossible for me to support either Chief Justice Taylor or any other member of the majority of four (Justices Corrigan, Young and Markman) for Chief Justice include:

1) Only after I informed Chief Justice Taylor, all other justices, and appropriate staff by memo on December 14, 2006 that Administrative Order 1997-11 required that the "gag order," AO 2006-08, be placed on the January 17, 2006, public hearing agenda by no later than December 20, 2006, was the matter so placed. The justices and relevant court staff received a memorandum from the court administrative counsel on December 15, 2006, advising that Chief Justice Taylor did not believe that AO 1997-11 required that AO 2006-08 be placed on the January 17, 2007 public hearing agenda, but that he was willing to add it to the agenda if a majority of the Court believed it was necessary. On December 20, 2006 all justices voted to place AO 2006-08 on the public hearing agenda and it was added as administrative file, ADM 2006-48.¹²

On December 20, 2006, after placing AO 2006-08 on the January 17, 2007 public hearing agenda, Chief Justice Taylor, at the conclusion of the Court's conference, suddenly announced that Grievance Administrator v Fieger would be discussed by telephone conference the next day, December 21, 2006.¹³

On December 21, 2006, speaking for the majority of four, Chief Justice Taylor announced that the majority would not suppress my dissent, but would instead publish Grievance Administrator v Fieger that same day. This was an abrupt and disorderly departure from the usual Court procedure regarding the disposition and publication of cases.

Grievance Administrator v Fieger was not on the December 20, 2006, Court conference agenda for discussion. The next day, on December 21, 2006, Justices Cavanagh, Kelly, and Weaver were given just a few hours, until 4:00 p.m., December 21, 2006, to prepare their dissenting statements for publication. Grievance Administrator v Fieger, motion for stay, had been in this court for months.¹⁴ To suddenly announce that all justices had less than a day to prepare the case for publication was disorderly, unprofessional, and unfair.

2) On October 23, 2006, Chief Justice Taylor directly proposed an improper trade for votes. He stated that he might change his vote and grant the stay in Grievance Administrator v Fieger if I would not release my dissenting statement and "never again" attempt such a dissent. While legislators are known to trade positions for votes, justices are supposed to judge each case on its merits and not "deal."

3) During the September 7, 2006 conference, Justice Young resorted to a personal attack on my character to support the closing of an administrative file, and with the concurrence of the other members of the majority of four, said that he would "never publish the proposals" on justice disqualification and would "not give [me] any more power." The majority of four then voted 4 to 3 to close the file on justice disqualification. Further, the fact that the file was closed and that I dissented has not been recorded in the Court's publicly available minutes. I filed my dissent on September 28, 2006, over three (3) months ago.

4) Chief Justice Taylor led and held, with the support of Justices Corrigan, Young and Markman, two (2) conferences on the Court's business while excluding three (3) justices who would not agree to the majority's "gag rule."¹⁵ The two (2) conferences excluding Justices Cavanagh, Kelly and Weaver, who would not agree to the "gag rule," were held on November 13 and November 29, 2006.

On the first occasion (November 13, 2006), Chief Justice Taylor said the conference was moving to his office, and the majority of four left the room. On the second occasion, again, Chief Justice Taylor, and Justices Young and Markman left the conference room, and Justice Corrigan, who was conferencing by telephone, hung up. Justices Cavanagh, Kelly and Weaver remained in the conference room and continued to meet with the Clerk of the Court and cast their votes on cases. Apparently, after Justices Cavanagh, Kelly and Weaver had left the room, three of the majority of four (Chief Justice Taylor, and Justices Young, and Markman) met later that day in the conference room (Justice Corrigan perhaps joined by telephone or later sent in her votes). Court staff had the extra work of two different sets of justices meeting at two separate times on the same business. The Clerk of the Court sent out later that day his collation of the votes for the minutes to which I sent my additions and corrections by memo dated November 30, 2006.

III. Conclusion

I cannot support Chief Justice Taylor or any member of the majority of four to serve as Chief Justice at this time. I would support either Justice Michael Cavanagh or Justice Marilyn Kelly.

This dissent to the election of Chief Justice Taylor as Chief Justice reveals only the "tip of the iceberg" of the misuse and abuse of power and the repeated disorderly, unprofessional and unfair performance and conduct of the people's judicial business by the majority of four, Chief Justice Taylor, and Justices Corrigan, Young, and Markman.

I believe it is my duty and right to inform the public of repeated abuses and/or misconduct.¹⁶ The majority of four's suppression of dissent, and attempts to suppress dissent, mishandling of administrative duties, and repeated disorderly, unprofessional, and unfair conduct are matters of legitimate public concern.

Over the past year and longer, the majority of four has advanced a policy toward greater secrecy and less accountability. I strongly believe that it is past time to let sunlight into the Michigan Supreme Court. An efficient and impartial judiciary is "ill served by casting a cloak of secrecy around the operations of the courts."¹⁷

I urge the majority of four, Chief Justice Taylor, and Justices Corrigan, Young, and Markman, to reconsider the election of Chief Justice Taylor as Chief Justice and cast their majority votes for either Justice Michael Cavanagh or Justice Marilyn Kelly. The election of either Justice Cavanagh or Justice Kelly to the Chief Justice position would be a beginning step toward putting the Michigan Supreme Court on a path of earning back the public's trust and confidence that this Court presently does not deserve.

Jack Lessenberry says that even though he voted against Proposal 2 last month, and would vote against it again and is a a proud member of the American Civil Liberties Union, he thinks that the suits filed by the ACLU and the NAACP are flat-out wrong.

Find out why over at Jack's blog.

Photo: Thirds Rule by docksidepress

Attorney General Mike Cox stated:

"The agreement is a reasonable compromise that serves the public interest by allowing the current admissions and financial aid cycles to be completed under existing policies, while confirming the constitutionality of Proposal 2 in light of the legal challenges launched against it by the universities."

Capitol Reflected by Apocaplops

An article in yesterday's Freep reported the latest on the recommendations by Citizens for Michigan regarding our state's Constitution. Citizens for Michigan is a self-appointed, volunteer group includes the likes of former AG Frank Kelley, former publisher Phil Power, Oakland County CEO L. Brooks Patterson and other former legislators, legal experts, business people and lobbyists who have been meeting for three years with the goal of promoting sound public policy in Michigan.

Citizens for Michigan has established a blog/website and have their recommendations available for viewing and comment. Among the changes they recommend are a revision (or end) to Michigan's system of constitutional proposals by petition, longer term limits, changes in selection of Supreme Court Justices and Court of Appeals Judges, a statewide millage for school infrastructure and end of the Headlee rollback. There are 62 recommendations in all and the group recommends a state constitutional convention in 2010 rather than a piece-meal approach.

Republican Michigander takes a pretty detailed look at the recommendations and concludes:

Overall, I see a lot of pro-tax measures in this plan, as well as safeguards for incumbents who raise taxes as protection. I think it's a shot at getting rid of Headlee and the other safeguards against runaway spending and tax increases.

You might also want to tune into Jack Lessenberry's interview with Wayne State legal expert Susan Fino regarding Michigan's much-ammended constitution and Jack's accompanying essay, Strong Constitutions where he writes:

The governmental process in Michigan is breaking down, partly because of a series of amendments that are crippling the legislature’s ability to respond to changing events and sudden crises. Even worse, term limits have largely destroyed the power and effectiveness of the legislature. Last week the Democrats chose a Speaker of the House. The candidate who won has been in the legislature for only two years, and has to be gone in four more.

He defeated a man who has been there four years and will be gone forever in two more. There is no institutional memory and little experiential knowledge. The people who run the place are bureaucrats and lobbyists. Face it: When we need a statewide vote on whether to spend park funds on the parks, the system isn’t working.

UPDATE: Grow Detroit has posted Hey Michigan: Looking for a new Constitution?:

in 2010 the citizens get to decide of a constitutional convention should be convened, and then latter either approve or disregard the constitution that convention writes. The idea of further mucking up our currently labyrinthine constitution (which is already several times the length of the United States Constitution, and choked with earmarks and electoral minutiae) used to strike terror into the hearts of most pundits on either side of the aisle.

White River by curlyson

The Muskegon Chronicle is reporting that Nestle (bottlers of Ice Mountain water) is seeking state permission to pump 70 million gallons of spring water annually from the headwaters of two of Michigan's finest trout streams: the White River (a state Natural River) and Pere Marquette River (a federal Wild and Scenic River). The White & Pere Marquette in turn feed the Muskegon River.

Although officials for Nestle (the world's largest water bottler) say their study shows the withdrawals would have no adverse effect on the watershed, there is still legal and social uncertainty surrounding water bottling in Michigan, including a pending case before the Michigan Supreme Court. The article quotes Wayne State University law professor & water expert Noah Hall as saying "The $64,000 question is whether a private company can bottle and sell a public resource for a profit. That's really the heart of the legal, political and emotional debate surrounding bottled water."

The Michigan Department of Environmental Quality plans to render a decision on Nestle's proposal in January and you can read a lot more in Bottler aims to take more from rivers from the Chronicle.

Pere Marquette River by flyfisherman1949

Dave Dempsey points out that (if approved) the increase would bring Nestle's total withdrawals to 340 million gallons per year with some of the water leaving the Great Lakes Basin. He also notes that New Berlin, WI, wants to pump 360 million gallons per year, and says it will return all the water to the Great Lakes Basin and says that Michigan's test is whether, while opposing the New Berlin request, it will cave to Nestle's.

The Freep has an excellent roundup of the New Berlin, Wisconsin water request.

UPDATE (Dec 18): Jack Lessenberry interviews Noah Hall and then offers a thought-provoking analogy in his essay Bottled Policy.

Michigan has laws to regulate development and activity in our geologically unique shoreline dunes. The question for today is: are those laws working?

Beach House by kobukson

WMMT Kalamzoo has an interesting article/video on the dangers that development is posing for West Michigan's Lake Michigan shoreline dunes.

In 1989, then-state representative Lynn Jondahl sponsored and passed Michigan's Sand Dune Protection Act. Some 17 years later, he's still surprised what's being built.

"I'm seeing stuff and I'm thinking boy, I don't know how that can happen. That looks new to me and doesn't look right," Jondahl told News 3.

The Michigan Department of Environmental Quality is charged with overseeing permitting (200 applications each year) and also keeping an eye on the 70,000 acres of critical dunes in Michigan. MDEQ Director Steven Chester says "We have limited staff and that means limited ability to really get people out in the field to inspect these areas." He adds "I think there is some reason to be concerned about the aggregate impacts of development on the dunes."

What do you think? Let us know in the comments!
More about Shoreline Dune Development

• What to sound smart? Pull out "aeolian geomorphology" in a conversation as in "Have a look at Calvin College's excellent web site on the aeolian geomorphology of Lake Michigan coastal dunes". It means landforms shaped by the wind and despite the $10 introduction, the site is an accessible and informative resource about one of Michigan's most striking natural features.
• The Alliance for the Great Lakes says that Lake Michigan houses the largest concentration of freshwater sand dunes in the world, many of which are extremely rare habitats. Tons of dune ecology information.
• Michigan DEQ Sand Dune Protection has information about the laws and programs relating to Michigan's sand dunes and maps of Critical Dune areas. Also see the DNR's Coastal Dunes Page.
• Developing Our Coastlines (PDF) from the Michigan Environmental Council looks at the intricacies of coastal zoning and the challenges posed by Michigan's patchwork planning & zoning laws.
• FOCUS: Freshwater Dunes; Battlelines Form on Michigan's New Rules in the New York Times is a 1998 article from the time of the passage of Michigan regulations of shoreline dunes.
• In Experts plot strategy to save Lake Michigan dunes in the Traverse City Record-Eagle, John Flesher writes that although the Pigeon Hill dune towered 30 stories high above Muskegon and took thousands of years to form, it disappeared in three decades as its sand was mined for industrial use in the mid-20th century.
• Although an end to sand dune mining was envisioned with these laws, sand is still being mined, primarily for parts casting. You can learn more about this by reading Vanishing Lake Michigan Sand Dunes from the Alliance for the Great Lakes. There's also an excerpt from the Ecology Center titled Undermining the Dunes that you may wish to read.
• How about a search for Michigan sand dune photos on Flickr?

It was December 1, 1955. Parks was coming home from a long day as a seamstress in a local department store. Although seated in the first row of "colored" seats, Parks ignored the white bus driver's demand to move to the back of the bus to free up more seats for white patrons. Even after the bus driver threatened, "I'll have you arrested," Parks did not budge. A couple of minutes later, two policemen got on the bus and asked her to move. She asked, "Why do you push us around?" He responded, "I don't know. But the law is the law and you are under arrest."

Active in the local chapter of the National Association for the Advancement of Colored People (NAACP) and an outspoken opponent of segregation, the 42-year-old Parks spent a short time in jail. Her actions, however, changed her life considerably and provided a spark for the fledgling Civil Rights Movement.

The day after Parks' arrest, blacks in Montgomery, the city's primary bus riders, refused to ride the bus. As the 382-day bus boycott dragged on, the U.S. Supreme Court ruled that bus segregation was unconstitutional. Both events played crucial roles in putting the Civil Rights Movement in motion.

During the boycott, Parks and her family received threats and were continually harassed. She later recalled these threats drove her husband to "near-suicidal despair." Shortly after the boycott began, she also lost her job. Blacklisted by Montgomery's white business community, Parks and her husband moved north to Detroit in 1957.

In Michigan, Parks took in sewing and worked as a fundraiser for the NAACP. In 1965, Congressman John Conyers hired her to manage his Detroit office. After the death of her husband in 1987, she founded the Rosa and Raymond Parks Institute for Self-Development. The Institute is designed to motivate and direct young people of either race to achieve their highest potential. In 1996, President William Clinton presented Parks with the Presidential Medal of Freedom, the highest honor an American citizen can receive.

To learn more about Michigan's transportation past, check out the current issues of Michigan History or Michigan History for Kids magazines. For more information or a free trial issue, call (800) 366-3703 or visit http://www.michiganhistorymagazine.com/.

PHOTO CREDIT: Photograph by Associated Press. 1964. Appears in Images of 20th Century African American Activists at the Library of Congress.