Ludington City Council Meeting Sept. 29, 2015: Go Fourth and Speak

[XLFD]

Just like the last city council meeting the agenda items being considered paled in comparison as to what the variety of public commenters stated about mostly non-agenda items.  In a brief nutshell, here is what the city council achieved as per its agenda.

They unanimously approved the yearly homecoming parade requests by Ludington High School.  They paid the bills for the last two week time period which amounted to $531,000, and accepted the monthly police and zoning enforcement reports.  They legally finished the conveyance of property to a LLC to be used by Floracraft that was begun back in 2011, this being necessitated by vague descriptions of property used in the original quit claim deed.  Two proclamations were made public by the mayor for Fire Prevention Week and Domestic Violence Awareness. 

These were all done without much ado and were not part of what stirred comments from the public.  The underlying threat to the city appeared to be the currently-being-reviewed rental inspection ordinance, along with some parking/sidewalk issues introduced by Jamie Killips (see more in this related article).

Starting the ball rolling was Mary Simmon, a soft-spoken landlord, who has voiced prior concern with the rental inspection program at 2:15 into the meeting (see the video below), apprising the councilors of the dearth of rental housing units currently available and finished with saying that if the RIP was brought before a court of law as to its merits, it would be thrown out, rankling City Attorney Wilson, and quasi-attorney/quasi-councilor, Mike Krauch.

At 4:15, I got up just before Ms. Killips and stated my concerns not only about the rental inspection ordinance, but about the constitutional problems with the tall grass ordinance, and with the Foster case concerning misconduct on the part of the LPD and the prosecutor.  The transcript of my speech is transcribed in full below the video.

At 9:37, Jamie Killips spoke out about Stearn's Beach parking and about the sidewalk situation on Tinkham between Lakeshore and Loomis (later corrected at the end of the meeting as Lewis Street). 

     Tinkham Avenue between Lakeshore and Loomis, circled in red.  Existing sidewalks on this well-walked stretch is highlighted in yellow.

This is definitely not a new topic, it came out a couple times (once by me) in the recent discussions over sidewalk policy in Ludington.  But back in 2010 on the Torch and every year since, the deficiencies of Tinkham Avenue's pedestrian facilities and the unbelievably unsafe routing of traffic on Tinkham during Gus Macker weekend have been pointed out with visual representations of the main problems.  Mayor Cox said that this would be finally looked at on the committee level at the meeting's end-- it's about time-- but don't expect much.

I particularly liked her idea about opening up the water treatment plant for parking on summer weekends.  She related that it took the greater part of an hour to cruise through Stearn's Park, and yet the large lot (seen in the map above at the far left) remains 90%+ unused over 90%+ of the time is a travesty.  Welcome to the discussion, Jamie.

Deb Manikko at 13:40 in served as the anchor on the relay team, delivering another poignant critique about the RIP.  She illustrated one of her rentals nestled between two owner occupied lots that were less than desirable, trying to make the point that her tenant may lose their residence due to the RIP (and likely become vacant), but the two other slummy houses continue on. 

At the end of the meeting, attorney for the city Richard Wilson made some comments about the rental inspection ordinance that had no basis in law or reality.  More interesting is his comments in answer to a question from Chief Barnett asking about the difference between discovery and FOIA.  A question the chief hopefully knew the answer to, but wanted the attorney to perhaps obfuscate the issue to the public in trying to show my FOIA request and Gene Foster's 'discovery' in his criminal case were different.  Which they are-- but the prosecutor has failed the public in both venues.

At the 41:00 mark he claims: "Discovery in a criminal case is the obligation on the part of the prosecution to disclose all evidence in the prosecution's possession, including exculpatory evidence [i.e. evidence that would weaken the prosecutor's case, perhaps by showing innocence] to the defendant in a timely fashion..." 

He then goes into why it is different than the FOIA process, but being that Gene Foster and his court appointed attorney (the ineffective David Glancy) haven't received Officer Kuster's arrest report, the warrant or warrant affidavit used against him 200 days after the arrest, after repeated attempts of the prosecutor to elicit a plea deal and charge Foster with crimes that aren't applicable illustrates the point that Prosecutor Spaniola has erred here for providing the necessary records for Foster, and for withholding the records via FOIA from me.  This is a prosecutor who is out of control.

September 28th 2015 Ludington City Council Meeting from Mason County District Library on Vimeo.

"Earlier this year, I tried to subscribe via FOIA to the tall grass enforcement records of the city, after a month of dutifully supplying the records, the city FOIA Coordinator informed me that my subscription for providing these records was too burdensome for the City to provide.  Earlier this morning, I sent for this summer’s records once again.

This is an important issue to look at, since the city council has listened to the city attorney and wrongly believes that a small notice in the newspaper in March when feet of snow is on the ground, is due process enough for the city to come onto your property later in June to cut your grass because they believe it is too high and charge you premium rates without the need for any notice. 

You will notice in your packets in the monthly enforcement reports that there were several properties in the city sent notice that their grass was too tall, they are called 'courtesy letters', but should be considered a mandatory part of the due process that allows the city to enter on someone's property, do an uncontracted service and then charge for that service.   You will also notice that four properties had such tall grass notice sent immediately to the DPW, without courtesy letters being sent.  Right at the end of the report on p. 79 of your packets. 

According to the enforcement reports for previous months these were not repeat tall grass offenders, so why are they not sent 'courtesy letters'?  And why does our ordinance allow such unequal application, in clear violation of the Fourteenth Amendment of the Constitution?  Perhaps it’s because the new ordinance is already in clear violation of the due process protections afforded in the Fourth Amendment.  Our city attorneys can make the big bucks by eventually defending their unconstitutional policies, so it's great for them but terrible for the taxpayers who have to financially support attacks against their constitutional rights.

A disregard by this council for the Fourth Amendment is evident in most actions they have been taking on.  Witness the lack of any language in the proposed rental inspection ordinance allowing the right of a tenant or landlord to contest an inspection, otherwise known as a search, of their property.  I have witnessed this council talking for hours in regular, special, and committee meetings, about rental inspections, but never has there been any considerations voiced by them about this issue that should be at the forefront of discussions.

The peripheral issue in my FOIA lawsuit concerns our local police and their violations of the Fourth Amendment in their pursuit of Gene Foster.  Fourth Amendment violations were the main crux of three recent successful lawsuits against this city and its police department initiated by Joe McAdams, Shelly Burns, and Travis Malone.  This panel deemed the suits had enough basis behind them to settle out of court at the expense of the taxpayers, without any meaningful explanation given, but with plenty of support voiced for the police who violated their own policies in depriving these three innocent individuals of their basic rights.

Last Tuesday, I received the police arrest report [show report] made by Officer Tony Kuster for that March arrest, as part of their defense to the lawsuit's charges.  This was the primary part of my request, which was denied on the basis it was an investigative record.  It detailed only the arrest of an individual, and says at the end that the status was closed as of that day, cleared by the arrest.  Such arrest reports are furnished everyday by the police to the public and media immediately without any attempt to exempt the records, simply because other agencies actually can tell the difference between an investigation and a simple arrest.

What is alarming is that the note I received said the county prosecutor has determined that the exemption is no longer applicable, as the investigation has been completed.  This prosecutor has denied defendant Gene Foster with this record or other non-exempt records nearly seven months after his arrest so that he can properly provide for his defense at the trial he has requested.  Such actions to provide a defendant with access to such records is clearly misconduct.

What the report clarifies is that the two Ludington officers never showed an arrest or search warrant to Mrs. Foster, never asked for consent to search her apartment or the occupied apartment below hers, nor do they admit to doing an illegal cell phone search actively protested by Mrs. Foster.  All of this to catch a medical marihuana card holder with Krohn's Disease that they tricked into providing marijuana to an undercover cop whom was falsely represented as having a card.  Who are the criminals here?

Councilors, mayor, you've all sworn an oath of office to defend the Constitution of the United States, but at every turn you have proven yourself poor defenders.  [Here's where I was stopped, just short of completion by two small sentences, I continue here...] If you continue down this path of apathy to the rule of law and the rights of your countrymen, your legacies will be forever linked with tyranny and corruption.  Thank you."

[Jasper]

A defendant accused of a crime by the prosecutor's office (Spaniola) is prohibited from receiving a copy of the police report?  How, can this even be within the law???

Irregardless of FOIA, the accused has the right to receive what they are being accused of whether via an attorney or for their own personal use, to obtain an attorney in their self defense.  

Where the hell do we live??  This is not some third world country.  Surely, this cannot be the USA?  

But, it appears this practice is of the norm these days by Spaniola, along with Mason County's Assistant Prosecutor.

[XLFD]

Last week, Foster went into court and asked Glancy whether he received a copy of Kuster's report, the arrest or any search warrant, and the affidavits for any such warrant.  Glancy said he hadn't; this points to utter incompetence of our public defender and utter malevolence of a prosecutor who shirks his duty to provide that information. 

Here's an overview by the trusted legal site Nolo over the process of discovery in criminal proceedings.  Foster has went to a preliminary hearing, has went to two 'final' conferences and other legal exercises over the 200 day period, and has yet to see Kuster's report (except when I left him a copy last week), the warrant, or the warrant's affidavit.  A good defense lawyer would have demanded this back in March, a good prosecutor would have given these up voluntarily back in March. 

[AQUAMAN]

Not only that X, but any reasonable defense attorney would have asked for an immediate hearing to have the entire case dismissed without prejudice, due to willfully blocking the accused of his basic rights of discovery and due process. He would have also filed a certified complaint about Spaniola to the State of Michigan bar association, as well as the ACLU, and the other agency that oversees attorney conduct. It's not only illegal, it's immoral, unethical, and gastly unconstitutional, at all levels. Why doesn't Foster immediately seek help in another qualified attorney that knows the law and asserts common sense for his client? Given what has been revealed just here recently, I'm surprised that several attorneys haven't been knocking Foster's phone and door down to represent him pro-bono!!! Foster himself should also make like complaints against Glancy, he's a co-conspirator in all this now, for not acting professionally all along for 7 months. I know this is Mason County, land of the deprived, the unjust legal system, the crooked officials, and where no one gets a fair shake, but, this particular episode in legal maneuvers is at best criminal, and at worst, punishable by disbarment of both the defense and prosecuting attorneys. This can't go on like this longer, can it? Someone needs to get the word out to the national media on this travesty, so some legal eagles come forward and rescue the accused asap. Unbelievable!!!

[XLFD]

Steps are being taken to address such oversights.  Great points, Aquaman.