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Commentary: The courts and right to work

One thing was clear from the moment right to work was rammed through the legislature in a single day. Lawsuits were inevitable. Not just because of the controversial nature of the law, but the way in which it happened. And yesterday, opponents won their first small, but potentially significant victory.

The ACLU, joined by a number of Democratic legislators and others, sued the state, saying the right to work law should be declared null and void because the way in which the law was passed violated the state Open Meetings Act.

Legally, in fact, the courts can throw out any action taken by a public body, from a county commission to the legislature, if it is found that the Open Meeting Act was violated.

The whole point of the act is to assure that the people’s business is done in public, and that representatives don’t meet secretly in dark rooms and cut deals, instead of arguing in public and before the citizens. Right to Work was in fact adopted by both houses of the legislature on a single day in January, during open and televised proceedings.

But the ACLU and three Democratic legislators are arguing that the Open Meeting Act was violated in two ways. First, they complain that the state police shut down the Capitol Building that day to prevent the public from gaining access to the debate. Second, they say that members of Republican lawmakers’ staffs filled up the galleries in the House chamber to prevent opponents from getting in and, presumably, booing and jeering.

Well, packing the galleries is a political technique that goes back to the days of Abraham Lincoln, when his supporters printed counterfeit tickets and filled up the seats at the Republican National Convention of 1860.

But does either that or the police closing the Capitol really violate the Open Meetings Act? The state attorney general’s office claims the police shut the doors out of security concerns. After all, the proceedings were televised for those who cared to see them.

Well, Round One went to the ACLU. The state made a tactical error in claiming the court didn’t have jurisdiction and the defendants didn’t have standing to bring the case. Ingham County Circuit Judge William Collette swiftly shot that down and ordered that depositions could continue and the case could proceed.

Now, the odds against it being successful are long indeed. Judge Collette himself said that. And even if he were to rule that right to work was null and void, the case would eventually land in a state supreme court that is now overwhelmingly Republican.

But the argument could certainly be made that even if the letter of the Open Meetings Act wasn’t violated, the spirit certainly was. Not by packing the galleries so much as by ramming this law through on a single day, during a lame duck session without a single committee hearing.

Republicans did it that way because it never would have passed, otherwise. But there may be a price. In the end, Right to Work may not be overturned by the courts. But the court of public opinion is something else again. And the more this is in court, the bigger price the Republicans may well pay when it comes to statewide elections next year.  

Jack Lessenberry is Michigan Radio’s political analyst. Views expressed in the essays by Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.

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