A carrot and a stick for Michigan voters

Twelve years to the day after the Michigan Supreme Court ruled unanimously in Massey, et al. v Secretary of State that term limits for state legislators, approved by Michigan voters in 1992, are indeed constitutional, the state house judiciary committee discussed a possible tweak-and-massage of those limits.

It’s not the first time legislators have looked at the idea of tinkering with, but not eliminating, term limits. But yesterday was the first time they’d discussed sweetening the deal in hopes of gaining favor with Michigan voters.

The term-limit adjustment would go like this: it would allow legislators to serve up to 14 years, as they are now. Currently, elected members of the state legislatures can serve three two-year terms in the state House and two four-year terms in the state Senate. But the joint resolution, HJR EEE, proposes that they could serve all 14 years in the House, or 12 years in the Senate and two years in the house, which would slow the turn-over in the state legislature. The upshot would be that more experienced legislators could stay in office, and ideally could gain the experience and build the relationships necessary to sort out Michigan’s numerous and deep challenges.

Here comes the sweetener. Also proposed in the resolution is a provision that if the legislature does not present a balanced budget to the governor by July 1 of every year, each and every representative and senator would pay the price, and would forfeit his or her salary for every day until it’s it’s done. If the governor does receive the budget on time, but refuses to sign it, the governor and lieutenant governor would forfeit their salary until the governor seals the deal.

The resolution, sponsored by Westland Democrat Richard LeBlanc, is a melding of two house bills, sponsored by Tim Bledsoe, D-Grosse Pointe, and Bill Rogers, R-Brighton. LeBlanc said that both ideas are appealing, but attaching the paycheck forfeiture to reforming term limits would provide an attractive selling point to get voters on board.

According to LeBlanc, voters like term limits. But Bledsoe noted that Michigan has the most “draconian” limits in the country. Only California and Arkansas have similar limits.

“At one point in our country, 21 states had term limits,” LeBlanc said. But they’ve had such devastating consequences that as of today, six of those states have repealed.

In 1992, he was in favor of them, he admits. And in fact, he wouldn’t have been elected without them.

People were “astounded” he said, when LeBlanc announced that he liked proposal B in 1992. But he’s had a change of heart, now that he’s seen what widespread inexperience does to the legislative process.

“They were right,” he said of term limit opponents. “I was wrong.”

Next year, if term limits are not tweaked, all of the most experienced representatives will be gone, at a time when Michigan is facing serious issues, said Rogers. He likened electing representatives to choosing a heart surgeon.

“I would rather have someone who’s been doing it for a few years than someone who is doing it for the first time,” Rogers said.

The proposal will come back to the committee, “very soon,” said Chairmain Mark Meadows, D-Lansing. Bill sponsors hope to get a ballot proposal in front of voters for the August primary elections.

House bill would legalize fireworks

Uh oh. My in-laws will be excited. They no longer have to drive to Tennessee to get “the good stuff.”

Ever been awakened in the middle of the night by your neighbors lighting off firecrackers? Get ready. That’s only the beginning.

From the AP.

LANSING, Mich. (AP) — Michigan might put more bang into its Fourth of July holiday if bills approved Wednesday by the state House eventually become law.

Legislation that would legalize higher-grade, more powerful fireworks in the state passed the Democrat-led chamber and is now headed to the Republican-run Senate, which is expected to at least consider the proposal.

The legislation could change the summer routine for state residents who now drive into Indiana and other states to buy fireworks that aren’t legal in Michigan. Bottle rockets, firecrackers and Roman candles are among the fireworks that would become legal if the proposal becomes law. Michigan’s current list of legal fireworks for residents without special permits is limited to sparklers, toy noisemakers and similar devices.

The main bill in the package passed the House by a 79-28 vote, in part because of the state’s financial and economic problems. Supporters of the legislation say the prospects of raising money for the state and possibly creating some fireworks-related jobs are a motivating factor.

Rep. Harold Haugh, a Democrat from Roseville and a key sponsor, said the legislation would raise more than $5 million a year for the state. Much of the revenue would go to state fire safety programs.

The legislation would put a 5 percent fee on sales of the newly legal fireworks. Businesses would pay the state $5,000 for their initial licenses to sell the fireworks. Renewals would cost $2,500. Nonprofit organizations would have significantly lower fees.

The higher-grade fireworks would have to be sold in a building with a retail area of at least 1,000 square feet, one of the safety features contained in the legislation.

Haugh would like to get the package finished in time for this summer’s prime fireworks season, although that seems unlikely given it’s already May.

"We still have a goal of trying to get this done this year," Haugh said. "I know that seems impossible, but I’m not giving up on the goal."

Some lawmakers have received automated phone calls opposing the legislation. Haugh dismissed them as likely coming from out-of-state interests that don’t want to lose the business they now receive from Michigan customers crossing the border.

Matt Marsden, a spokesman for Republican Senate Majority Leader Mike Bishop, said Senate Republicans would be open to considering the legislation.

Hello, neighborhood scuffles and blown off fingers! Goodbye, sleep in June and July!

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AP: State House seeks funding for indigent defense

DETROIT (AP) — Michigan was a 19th century pioneer in providing legal aid to poor criminal suspects.

Now, it has one of the nation’s stingiest and most fragmented systems for representing the 80 percent of defendants who can’t afford a lawyer, a wide range of critics say.

The system often leads to people’s convictions being reversed because of mistakes an adequate legal defense should have caught. And it adds millions of dollars to prison costs for sentences that exceed state guidelines.

"Michigan’s neglect of many years generates large downstream costs," said Dawn Van Hoek, chief deputy director of the State Appellate Defender Office. "We need to connect the dots and adequately fund the system."

The office estimates Michigan would save $132 million a year in prison costs if it eliminated the excessive penalties judges impose because of improper application of state sentencing guidelines.

Of all the filings the State Appellate Defender Office made in 2008, 48 percent cited ineffective assistance of counsel, up from 14 percent in 1981.

With a class-action challenge to the system set for oral arguments next month before the Michigan Supreme Court, the state House Judiciary Committee is drafting a bipartisan proposal to overhaul Michigan’s 153-year-old indigent defense system.

The U.S. Supreme Court established the right to a free public defense in 1963, when it ruled for Florida convict Clarence Gideon that the Sixth Amendment required states to appoint lawyers for felony defendants who can’t afford them.

Michigan was ahead of the game then, having created its own county-level indigent defense system in 1857. Michigan even filed a brief in support of Gideon’s successful plea to the U.S. Supreme Court.

Today, Michigan’s indigent defense system is "failing in nearly every way," former Michigan Supreme Court Justice Dennis Archer told a U.S. House Justice Committee hearing last year. Archer, a former president of the American Bar Association and two-term Detroit mayor, said the state now has "a patchwork of underfunded, unaccountable systems."

Michigan’s annual indigent defense spending of $74.4 million, or $7.35 per capita, is 38 percent below the national average and less than all but six states, the National Legal Aid & Defender Association said in "A Race to the Bottom," a report commissioned by Michigan lawmakers.

Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems, deciding what portion of their state-set budgets to spend on indigent defense.

"The level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed," the 115-page report said.

Lawmakers from both parties in the state Legislature recognize the need to act, said Kent County Republican state Rep. Justin Amash, a member of the House Judiciary Committee.

However, bill sponsor Bob Constan, D-Dearborn Heights, acknowledged the measure will be a tough sell at a time when Michigan faces hundreds of millions of dollars of cuts to K-12 schools, universities and health care.

"It’s just the lowest thing people want to fund," Constan said Thursday. He said implementation may have to be spread out over four years.

In place of the current system, House Bill 5675 would create a statewide public defense system to fund and supervise the work of lawyers who represent the poor.

An appointed Public Defense Commission would oversee separate offices for trial and appellate defenders. Appointments would have to be based on experience and skill, case loads would be limited and pay brought in line with that of prosecutors.

The bill also would create statewide standards for deciding who is poor enough to need legal aid and allow for some defendants to pay part of the cost. Regional offices would manage services, which would use a mix of private lawyers and salaried public defenders.

Speaking for the Michigan District Judges Association, Ingham County Judge Tom Boyd acknowledged problems with today’s system but told a Judiciary Committee hearing Tuesday he fears "unintended consequences" from a wasteful bureaucracy.

Should the Michigan Legislature fail to act on its own, the courts may force a change.

In 2007, the American Civil Liberties Union filed a class action lawsuit against the state on behalf of poor defendants in Berrien, Genesee and Muskegon counties. The complaint said court-appointed lawyers in those counties were either too rushed or fear they won’t get more work if they slow down the docket with motions or requests for expert assistance.

National ACLU staff lawyer Robin Dahlberg told the Michigan House committee the passage of House Bill 5676 would go a long way toward fixing the problems.

"Until and unless the state does act, Michigan’s citizens will continue to be wrongfully deprived of their liberty," she testified.

A surprise objection

Last week, the Michigan House of Representatives judiciary committee took up for the first in what certainly will be many discussions on a statewide funding and oversight structure for indigent defense.

Among the supporters were a host of nonprofit advocacy groups, the NAACP, Ruth Lloyd-Harlin who is the sister of Michigan’s first DNA exoneree Eddie Joe Lloyd. Retired judges and law school deans supported the proposed bill.

The sole objection was a surprise — William J. Winters III, president of the Wayne County Criminal Defense Bar Association, who wrote a letter to the committee expressing his views (not those of the association) and concerns over the possible politicization of indigent defense. Thinking that the state-funded system would be free of undue political preference is a “hopeless illusion,” Winters wrote, adding that no legislation can eliminate the distinctly human traits of nepotism, cronyism and favoritism.

Though he doesn’t claim that the system is adequately funded as it is now, Winters wrote that he doesn’t see how statewide funding will make the situation any better.

The proposal could be taken far more seriously if its proponents summoned the political courage to fund this new system with an increased tax on legal products and services which directly and disproportionately contribute to crime: the beer, wine and spirits industry and casino ‘gaming’ interests. These purveyors of misery and despair have enjoyed a tax haven in our state for far too long. A fair and reasonable tax is overdue, but these competing interest groups are apparently off-limits because they are too powerful to take on. Instead, proponents take the easy way out: they want defendants, most of whom are desperately poor, to fund the system.

Winters addresses the pink elephant in the room, a simple reality that few want to discuss: Michigan’s pool of money is shrinking. Within those limits, what legislator would put an unpopular population — those charged with crimes, some of whom are (gasp) guilty — over the interests of populations to which we pay plenty of lip service — in particular, school children? We can’t, or won’t, even adequately fund our schools if it means paying higher taxes. Is it possible that we’ll have the political stones to adequately fund indigent defense?

Read Winters’s entire letter here.