"All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of .......... according to the best of my ability." MI Con art XI sec 1
BACKGROUND: Richard Wilson and/or others in his law firm created the Wokplace Safety Policy in February on behest of the Ludington City Manager John Shay and the City Council's Public Safety Committee, chaired by Gary Castonia, and then Shay used it the next day on me by issuing me a Letter of Trespass restricting me from entering the City Hall, the Ludington Police Department, and a residence that I had only commented on in a February thread right here on the Torch and never set foot on.
They have yet to release any reason for barring me from any of those places, though they had an excellent opportunity when they released a less-than-flattering piece about me in the Ludington Daily News on March 5 that talked only of FOIA requests and erroneously on a 3 year old traffic stop I had the audacity to dispute in court.
I pleaded in a March 2 E-mail to five City Councilors to "... Please state for the record at the next meeting whether or not you believe the City Manager is within his power to do this under the circumstances, and vote to grant me this most basic of privileges: to enter a public place by a peaceful private citizen."
We even asked in a FOIA equest for the information that led to the Letter, but was given an illegal fee for that bit of data that effectively put it out of reach.
Yet the Ludington WSP violates so many rights that I choose to include only the ones that clearly go against the Michigan Constitution here. The message was clearly sent from the City Manager: Ask too many questions, get slapped down. I was disciplined and eventually fired a week later from a job I loved as a direct result of the meddling of City Officials and their violations of my rights.
Every City Official is required to take the Oath of Office in which they swear they will support the MI Constitution. In a June E-mail follow-up after requesting the Oaths of Office for the current City Attorneys, Dick Wilson replied "For the reasons stated herein, it is my opinion that the City Attorney is not an elected or appointed “officer” of the City and therefore is not required to take or file the oath..." Before making some outrageous statements of law, he claims the status of an independent contractor even though his agreement with the City gives him the powers and duties of the statutory and municipal "City Attorney", not to mention past legal decisions have found City Attorneys to fall under the 'official' term when they have the duties and powers that our City Code grants.
Wilson wrote up this policy, and yet there are several legal gaffes in the policy which contradict this claim of not being an official but enjoying the rights and respecting the duties of the City Attorney office which are codified in his law firm's agreement with the City.
1) First off, he gives the 'City Attorney' judicial fiat, something which a City Attorney is not given in the MI Constitution, by deciding someone's appeal of this process. WSP CA Duties Nowhere in State Law or City Law do we find them having any duties like this. The State says, and the City mimics:
"The attorney shall be the legal adviser of the council and of all officers of the city, shall act as the attorney and solicitor for the corporation in all legal proceedings in which the corporation is interested, and, except as otherwise provided by law, shall prosecute violations of the ordinances of the city."
He has no legal judicial oversight for a bill of attainder (see 4)
2) "No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights." MI Con art I sec 2
We expect those accused of crimes to undergo the due process before they lose any of their rights. A law-abiding citizen who happens to run a local watchblog who is not alleged or accused of any misdeed (other than a 3 y.o. bicycle moving violation, LOL) should not lose their right to enter a public place everyone else is allowed to without due process. Perceived threats with no basis in fact do not cut it. To do so otherwise is violating this law.
3) "Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press." MI Con art I sec 5
Whereas, one could say Shay's revision of the City's FOIA Policy was to restrict access to public records, the WSP restricted access of public facilities to a local e-journalist who has maintained his blog since 2009. This not only prevents me from going there to inspect public records from FOIA requests, but from also talking with public officials during work hours, and participating at the wide variety of events that take place at the City Hall, including many private events, county meetings, DDA meetings, et. al. This has restrained and abridged the liberty of speech and the press.
4) "No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted." MI Con art I sec 10
A bill of attainder may be new to you. They are legislative actions that declare a person or group guilty of a crime and then punishing them without benefit of a trial. What is a Bill of Attainder? LPD Sergeant Schultz gave this Letter to me before I was even aware of the WSP or my offense. Still clueless as to my offense. John Shay may be guilty of two misdemeanors otherwise, but he has the Ludington City Council as a willing accomplice in this high crime of making a bill of attainder.
5) "Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law." MI Con art VII sec 22
Italicized emphasis added. The resolution to adopt the WSP, an illegal bill of attainder stripping an individual of his political and speech rights, is not within the power of a city or village or any of its members as it goes against conclusions 2-4 above, and hence this law.
"All political power is inherent in the people. Government is instituted for their equal benefit, security and protection." MI Con art I sec 1
And all else follows
Why is the City Council sitting on their hands? They haven't been sitting on their hands, they've passed a bunch of prohibitive city park rules, raised taxes for the fourth recessionary summer in a row through truth-in-taxation hearings, and is in their third month of navel-gazing over how to prevent people in the confines of this city to feed birds or cats.
As for this illegal policy they passed and their illegal salaries that they didn't pass, they could care less. No public or private comment from anyone from City Hall admitting either are wrong.
The Workplace Safety Policy and its attendant Letter of Trespass was 'lawfully created' by being drawn up by City officials and our city's attorney Richard Wilson. Then given to a Ludington city council committee where it was passed on to the main council at the February 28, 2011 meeting, and voted for unanimously as a policy.
This lawful creation does not mean the 'policy' was constitutional or had any raison d'etre, as many laws have been passed by our national legislator only to be found wanting by the courts, and necessarily changed because of that. It only means that it was legislatively passed-- which is more an indictment of that part of our local government rather than some legal justification for why it should continue.
The settlement (the non-monetary part) that was agreed to in Rotta v. Shay and City of Ludington (2013) was that the defendants rework the Workplace Safety Policy-- to reflect the realities of how it flies in the face of Constitutional rights of individuals.
Not to mention the monetary part which came to over $30,000 for the City when you factor in the $15,000 to me and the over $16,000 of legal fees the City incurred. If I was a citizen of Ludington I would wonder why the City unrepentantly went through all that in its vindictive efforts to get back at someone who was pointing out their unethical and unlawful behavior-- in particular with Signgate. But it doesn't get reported to most of them or affect them personally, so it has apparently little effect.
To me that is a good question. If a law is passed which is against the Constitution is it really "legal" and therfore passed legally? There are many laws passed that are knowingly contrary to the Constitution with their creators hopes that nobody will invest the time to challenge them.
Or is a law considered legal and passed legally unless or until somebody has challenged it in court. That would mean there are thousands and thousands of laws that are on the books and being enforced without merit of Constitutional review. We are taking our entire legal system on good faith that it is following the Constitution.