State considering FOIA rules for social media posts

LANSING, Mich. (AP) — The state plans to consider what its employees and agencies post on social media websites as matters of public record and subject to Freedom of Information Act requests.

Michigan is working to finalize a policy that is expected to be completed in August, Kurt Weiss, a spokesman for the state’s Department of Technology, Management and Budget, told the Lansing State Journal for a story published Sunday.

“What the state realizes is like other states, younger generations are getting their messages in other ways, be it Facebook or Twitter,” he said. “So when the state has important information to share, that’s an important avenue we have to look at.”

Lawyer Herschel Fink, who specializes in media law, said it appears the concept is untested in Michigan courts. He said he thinks such activity by government should be considered public record.

“If government and officials are communicating on issues of government policy, using these new means of communication — social media — then the public has to have access to that as well,” he said.

Michigan uses social media websites such as Facebook and Twitter to communicate with the public.

“The whole idea behind FOIA is providing the public with information about all aspects of the people’s business,” Fink said.

How to treat posts by individual officials could stir debate. A Facebook page for a mayor, for example, would be subject to FOIA, Fink said, while that mayor’s personal Facebook page might not. Officials who mix personal and government postings on the same page might be subject to FOIA.

“You cannot blur the line,” he said. “If you use it in any way to communicate as a public official with constituents, you’ve given up any right of privacy.”


Keeping Up With The Candidates, July 23

We’re about a week and a half from the primaries, which means that you won’t get through an episode of “Wheel of Fortune” without seeing an ad supporting/attacking somebody.

As I mentioned last week, the polls this primary season have fluctuated so much throughout the campaign that it’s hard to put much stock into them, even this close to the election. Just last week, House Speaker and Democratic candidate Andy Dillon was sporting a 20 point lead. In a poll done this week by the Detroit News and WDIV-TV, Dillon only leads 34.3 percent to 25.1 percent over Lansing mayor Virg Bernero. Dillon actually lost .7 of a point while Bernero gained 10 points. With 40 percent still undecided, the race could go either way.

On the GOP side, the same poll still shows a close race, but not the three-way 18 percent deadlock we saw last week. The poll shows Attorney General Mike Cox leading Congressman Pete Hoekstra by less than a point (26.4 percent to 25.6 percent) with Ann Arbor businessman Rick Snyder about six points back (20.2 percent). The poll shows Oakland County Sheriff Mike Bouchard with 11 percent. Dr. Tom George’s campaign appears to be on life support with only 1.8 percent. 14.4 percent of those polled are still undecided. While he leads now, Cox’s campaign has to be concerned that 1/4 of the Republicans polled have an unfavorable view of him.

However, there is major variable that could greatly affect the final result: Michigan’s primary election system, which allows any voter to choose which party’s election he wants to vote in, regardless of that voter’s party preference or lack thereof. Dillon may have a 10 point lead among “likely Democratic primary voters” but there’s no guarantee those people will choose between Dillon or Bernero. For whatever reason, a hypothetical moderate Democrat may opt to instead to choose among the Republican candidates, which would preclude them from voting Democratic, opening the door for the more liberal Bernero, who enjoys a plethora of support from unions.

Rick Snyder is actively pursuing the hypothetical voter I described. As the GOP base seems split east and west side by Cox and Hoekstra (they should settle it with a rap battle), who are attacking each other, Snyder sees the independent and Democratic refugees as the key to a victory. He picked up the endorsement of former moderate GOP Congressman Joe Schwarz. He was also endorsed by former Governor Bill Milliken.

The rest of the lead GOP candidates are seemingly in a race to see who can go the furthest right. Last week, we talked about Mike Bouchard’s support of the Arizona immigration law and making Michigan a right-to-work state. This week, Cox, Bouchard and Hoekstra are fighting over who loves the Tea Party more.

Pete Hoekstra took the first step by joining Fox News fixture and GOP Congresswoman Michelle Bachmann’s Tea Party caucus. Cox’s spokesman Nick DeLeeuw responded by saying “First!” …

“Mike Cox has been traveling with the tea party and attending tea party events from the very beginning,” DeLeeuw said. “Mike Cox has been leading that fight, while Pete Hoekstra has been voting against the tea party interests.”

… to which Hoekstra rebutted with, essentially, I was tea party before tea party was cool.

“I was the tea party movement before the tea party,” Hoekstra said.

Pete Hoekstra was the Mad Hatter, and don’t forget it.

Not wanting to be left out of the Tea Party party, Bouchard picked up the key Tea Party endorsement of Joe The Plumber. So he’s got that going for him … which is nice.

In other endorsement news this week, Cox and Dillon picked up the endorsement of The Detroit News. Dillon also picked up the endorsement of Detroit mayor Dave Bing. Bernero picked up a new slew of union endorsements. Hoekstra received the Michigan Teamsters endorsement for the GOP primary, anyway (Why wasn’t this one posted on his website?)

Finally, like the Detroit Free Press did last month, The Detroit News has published feature articles on each one of the gubernatorial candidates, with videos. [Bernero, Dillon, Cox, Hoekstra, Snyder, Bouchard, George. Don’t know when/if the Democratic profiles are coming, but I assume the are.] Some are more interesting than others, like Dr. Tom George’s profile, in which he discusses how all of the tax break talk, without more, will bankrupt the state. Dr. George, when has honesty ever won an election?

Lack of defense expert did not taint CSC conviction

The Michigan Supreme Court has reinstated the first-degree CSC conviction of a man who molested his 6-year-old niece.

The Court of Appeals had granted Robert K. Brannon a new trial after determining defense counsel didn’t adequately investigate the possibility that expert testimony may have produced a “not guilty” verdict.

But the MSC vindicated defense counsel’s choice to not use an expert witness who could have helped the prosecution’s case.

Brannon was tried and convicted in 2008 for the 1995 sexual assault of his then-6-year-old-niece. Witness credibility was a key issue: many years had passed and family members had discussed with the niece “other sexual assault allegations” against Brannon before she accused him.

Brannon’s defense attorney decided not to call any experts to challenge the reliability of a delayed sexual assault report that was possibly prompted by family members’ urgings. He did so after determining that using the experts might also produce testimony that could help convict his client.

COA Judges Karen Fort Hood and Deborah Servitto said counsel made a bad choice and granted Brannon a new trial.

After reviewing testimony at Brannon’s Ginther hearing, Hood and Servitto said had counsel probed further, he would have learned that the experts had other ways to challenge the niece’s credibility besides pointing out the long delay between the assault and the accusation.

In his dissent, Judge Alton Davis said the majority’s decision was based on 20-20 hindsight.

See, The Michigan Lawyer, “In their opinions.”

Last week, the MSC, in a 6-1 ruling, said defense counsel made the right move:

The record clearly established that defense counsel discussed issues of delayed reporting of sexual assault by a child witness with a potential expert witness, and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution.

We REMAND this case to the trial court for reinstatement of the defendant’s conviction and for further proceedings not inconsistent with this order.

Justice Michael Cavanagh would have denied leave to appeal.

Granholm signs utility theft bills

Last time I checked, these two things were already illegal.

From the AP:

LANSING, Mich. (AP) — A new state law aims at cracking down on energy theft from utilities in Michigan.

Gov. Jennifer Granholm signed bills Wednesday that make it a felony to illegally sell or transfer utility service. The penalty will be up to five years in prison and a $5,000 fine for a first offense.

The bills also create specific penalties for assaulting utility workers while on the job. The minimum penalty would be a misdemeanor punishable by up to a year in jail and a $1,000 fine. Penalties would stiffen if the assault resulted in injuries requiring medical attention.

Energy theft has become a larger safety and utility cost issue during Michigan’s economic downturn. Illegal hookups have caused fires and resulted in higher costs for those who have legal utility connections.

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State House to pick up the pace on indigent defense issues

In light of last week’s Michigan Supreme Court’s stunning decision to vacate an April 30 order that allowed a class action challenge to the state’s indigent defense system to proceed, the chairman of the State House Judiciary Committee said his committee will “pick up the pace” to address what some say is a broken defense system.

“This committee is working very hard on an approach that would meet constitutional muster for Michigan,” said Chairman Mark Meadows, D-Lansing.

The committee’s new-found focus comes after a divided Michigan Supreme Court in an order last week said that Duncan et al v. State of Michigan et al, the state is entitled to summary disposition because the case is not justiciable. The order contrasts with its original April 30 order, which held that the state’s motion for summary disposition was premature, and found in favor of the plaintiffs, who claimed that they received such poor representation in three Michigan counties, that the state had fallen short of its constitutional obligations.

The most recent order, Meadows said, “The court very clearly stated that the ball is in the legislature’s court at this time.”

He said that Michigan’s indigent defense system is recognized, even on a national level as “deficient.” In December, the committee took up House Bill 5676, which would create a statewide system to provide indigent defense, rather than leaving the state’s obligation to Michigan’s counties, which currently provide those legal services. The bill remains in committee.

SCOTUS to hear USERRA discrimination case

With so many reserve service members returning home to a less-than-robust economy (I’m being generous), it shouldn’t be a surprise to find the number of USERRA violations has skyrocketed, according to

Last week, we reported on a Sixth Circuit case in which one such service member was fired because IBM refused to reintegrate him because he had fallen behind the technology while serving in Afghanistan. The Sixth Circuit upheld the firing in that case, in part because of procedural mistakes by the plaintiff, and in part because the veteran accepted a severance buyout.

Other service members have not been so lucky. The U.S. Supreme Court has granted cert to hear a case that veteran’s groups hope will curb the number of discrimination claims filed with the the Department of Defense’s Employer Services for Guard and Reserves unit.

In Staub v Proctor Hospital, Vincent Staub returned from service in Operation Iraqi Freedom, where he trained Army personnel on how to establish a radiology unit in a combat environment.

Before he was recalled, his supervisor had systematically disregarded his military obligations by scheduling him to work on weekends, knowing he needed one weekend a month for his reserve duty. She forced Staub to use his vacation days and posted bulletins asking his co-workers to volunteer to cover his shifts.

The supervisor told him and others his reserve duty was “bull[BLEEP]” and told him to “get the [BLEEP] out” of her office. She even went as far as to call the administrator of his military unit and asked for Staub to be excused. When she was told the weekend drilling was mandatory, she called the administrator an “[BLEEP]hole” and hung up on him.

Another supervisor referred to his military drill weekends as “Army Reserve bull[BLEEP]” and “a bunch of smoking and joking and a waste of taxpayers’ money.” Despite this, Staub had excellent performance reviews as late as four months before he was fired.

He was later fired for two incidents: one, in which he broke a rule that both he and another co-worker testified did not exist at the time he allegedly broke it, and two, for the heinous act of phoning his supervisor to say he was going to lunch with the same co-worker and not having that voicemail received before another supervisor decided to fire him. The other co-worker was not disciplined.

He sued the hospital for discriminating against his veteran/reserve status in violation of USERRA. A jury found the employer’s actions were largely motivated by Staub’s veteran/reserve status. The 7th U.S. Circuit Court of Appeals reversed the verdict, saying that the human resources vice president that delivered the news of his firing was not under the “singular influence” of the allegedly biased supervisors.

SCOTUS will hear the arguments in December.

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If at first you don’t succeed…

… try, try again.

TRAVERSE CITY, Mich. (AP) — Five states are suing the federal government and Chicago’s water department in federal court, demanding stronger action to keep Asian carp out of the Great Lakes.

Michigan, Wisconsin, Ohio, Minnesota and Pennsylvania filed the lawsuit Monday in U.S. District Court in northern Illinois.

It seeks an order to close Chicago shipping locks and gates that could provide a pathway to Lake Michigan for the voracious fish.

The U.S. Supreme Court refused twice this year to order the locks closed.

But state officials say the situation has become more urgent since a live Asian carp was found within a few miles of Lake Michigan last month.

The suit also asks for an expedited study of permanently separating the Great Lakes and Mississippi River basins.