Posted: June 19, 2023 11:27 PM
The Michigan Department of Civil Rights currently has 283 cases open with a creation date of June 1, 2020, or older, a key factor after the city of Grand Rapids filed a lawsuit a few weeks ago arguing the department is violating the statute of limitations by pursuing cases started three or more years ago.
Should the City of Grand Rapids prevail, it could prompt the end of most of those cases.
Harold Core, director of special projects with the department, told Gongwer News Service that the department currently has 283 cases with a created date of June 1, 2020, or older. Of those cases, four have reached the charge stage and three are in the process of being closed.
"Unfortunately staffing decreases over the years has contributed to the extended length of time to investigate cases," Core said when asked why the cases typically took so long.
Individuals have 180 days from the date of the incident to file a complaint with MDCR to launch an investigation and under civil rights laws, individuals have three years.
In the case City of Grand Rapids v. Michigan Department of Civil Rights, the city is seeking a declaratory judgment in the Court of Claims that the three-year statute of limitations applies to the amount of time MDCR has to issue formal charges for complaints brought under the Elliott-Larsen Civil Rights Act as well as the amount of time a person has to bring a complaint to the MDCR.
The city contends that the statute of limitations in ELCRA applies not just to how much time a person has to file a complaint with the Department of Civil Rights from the date an incident occurred but also to the amount of time the department has to issue formal charges after receiving a complaint.
"This is a purely legal and procedural question and does not address the underlying merits of any complaint," Steve Guitar, media relations manager for the city of Grand Rapids, said in a statement. "Nor does the suit ask for the court to dismiss the complaints, rather, if the statute of limitations applies, then the MDCR should be enjoined from taking further action on any of them."
Both MDCR and the city of Grand Rapids kept their statements brief, saying they would not be providing any more comment as the case is still ongoing.
The case has been assigned to Chief Judge Elizabeth Gleicher.
Posted: June 12, 2023 9:52 AM
Two bodies that oversee the environmental rulemaking and permit application process were created out of years of frustration from the business community, but despite the backlash from environmentalists after they began work in 2018, they have not disrupted state actions in the way supporters hoped and critics feared.
After Governor Rick Snyder signed bills in 2018 creating the Environmental Rules Review Committee and the Environmental Permit Review Commission held their first meetings December 2018 and April 2019, respectively. The ERRC and the EPRC were not warmly welcomed by incoming Governor Gretchen Whitmer, with the governor attempting to abolish them in 2019 but being stopped by the then Republican Legislature.
Speaking with several stakeholders from environmental advocacy groups and business organizations, communication on the front end between the Department of Environment, Great Lakes and Energy is the number one priority. For businesses, there is a general consensus that the ERRC and EPRC have improved that communication between themselves and the Department of Environment, Great Lakes and Energy.
For environmentalists, the ERRC and EPRC are an extra layer to an already functioning system.
Regardless of which side of the conversation one is on, the ERRC and the EPRC seem to be nothing more than oversight boards as opposed to key driving forces.
Jeremy Orr was appointed by Whitmer as vice chair of the Environmental Rules Review Committee in 2019. The attorney with Earthjustice said in his personal opinion, the ERRC is not a necessity.
"The committee should not exist," Orr said in an interview.
Orr said the ERRC was a non-factor, mostly affecting the system by adding another layer of time and commitment. He also said it was a drain on resources that could go to EGLE.
"So not only is it simply a middleman, it's a middleman that holds up the rulemaking process unnecessarily, or can hold up the process unnecessarily," Orr said.
The rulemaking process at EGLE is a lengthy one, starting with EGLE staff conducting meetings with impacted stakeholders about potential rule changes. EGLE then submits a request for rulemaking to the Michigan Office of Administrative Hearings and Rules, and also submits to MOAHR and ERRC the draft rules and regulatory impact statement.
The ERRC conducts a review and vote. It can either allow the rulemaking to proceed without future ERRC oversight, allow the rulemaking to proceed with ERRC continued oversight or request EGLE make changes to the draft rules. After this vote, EGLE submits a public hearing notice to MOAHR, and the draft rules are available for public comment. EGLE reviews the comments, makes updates and sends a copy of the draft rules and an agency report to the ERRC.
The ERRC then reviews the rules and votes to either approve the draft rules as is, approve the draft rules with modifications or reject the draft rules. If rejected or accepted with modifications, ERRC submits a notice of objection to EGLE. If resolved, then the rules are sent to the Joint Committee on Administrative Rules. If unresolved, the governor must either agree with EGLE moving the process along or disagree with EGLE and ultimately have the rules withdrawn.
At the time the bill creating it was moving, one of the bill sponsors, the late Sen. Tom Casperson, said that the changes were necessary for "creating more balance and fairness" to the permitting process. Casperson was a staunch critic of what was then the DEQ when he led the passage of PA 267 of 2018, PA 268 of 2018 and PA 269 of 2018.
However, opponents of the bills such as Lisa Wozniak, executive director for the Michigan League of Conservation Voters, said at the time the legislation passed it would further weaken the state's ability to ensure families are not put at risk like they were during the Flint water crisis.
Brian Calley, lieutenant governor under Snyder and now president of the Small Business Association of Michigan, said in an interview those within the business community had been struggling with the permitting process, saying it would drag out for years.
"There really wasn't a strong engagement, strong way for the public, but particularly those investors who were looking to create opportunity in Michigan, a way for them to truly engage, to be heard, to identify issues and challenges and barriers and to have them truly heard," Calley said.
Caroline Liethen, director of environmental and regulatory policy with the Michigan Manufacturers Association, said she works "pretty extensively" with EGLE staff on the drafting of rules. She has never interacted with ERRC directly, and for the most part, would never need to.
"I've been working with the Air Quality Division on a number of rule sets that would have to do with ozone attainment of the Clean Air Act, and that has been pretty extensive," Liethen said. "And then on the flip side, there might be rules that are just already in existence and being tweaked and then they'll ask for us to ask our members how that might impact them and provide feedback."
During her time with MMA, Liethen said the earlier the communication starts with EGLE, the better the rulemaking process is for her stakeholders.
"We have been provided opportunities very early and often, and provide feedback," Liethen said, calling the process a "give and take."
"And of course, with that being said, they don't just take all of our feedback and copy and paste it in. I don't think anybody would ever expect that," Liethen said.
Conan Smith, president and CEO of the Michigan Environmental Council, said the EGLE review process in place was "great," and like Orr, he called the ERRC an unnecessary layer of government review.
"We have professional scientists, and we have a review process well established, active functional review process, that has put in place most of our environmental protection standards. Adding this layer of government literally did nothing other than delay a decision and the delay caused us to put more and more human lives at risk," Smith said.
Orr said the ERRC is made up of members who come from different areas of expertise. While this can be good, Orr said many of the members are often trying to make decisions about issues in which they do not have expert knowledge.
"We rely a lot on EGLE for the information to help us make informed decisions," Orr said. "They do an amazing job at that, but the reality is that they can do that amazing job without us being the middleman and holding up the process."
There was one particular instance Orr pointed to regarding PFAS regulation that was substantially held up. Those who held it up, he said, were those who would be directly impacted by the rules and held accountable for "cleaning up the messes that they made."
"In my own opinion, that's why Snyder and the Legislature created that committee," he said.
The Environmental Permit Review Commission is a different beast. Unlike the rules review panel, not all EPRC members are required to be present. Three experts in a specific subject discuss a permit application within their field. An applicant may submit a "petition for permit application review" to the EGLE director. The director then decides if the issue can be resolved with or without the panel. If not, the three-member panel submits a disclosure of interest form and the director provides the petition and any necessary documentation to the commission.
Within 45 days of the petition submittal, the panel hears from representatives of the petitioner and EGLE regarding their positions. Within 45 days of the meeting, the panel makes a final written recommendation to the EGLE director and the petitioner. After receiving the recommendation from the review panel, the EGLE director issues a decision in writing regarding the petition.
If the EGLE director accepts the recommendations or makes no decision, then the panel recommendations are incorporated. If the EGLE director rejects the recommendations, then the recommendations are not incorporated.
Sara Cambensy, executive director of the Michigan Chemistry Council, said in an interview that prior to the EPRC, her members said they had difficulty communicating with EGLE during the multi-year permitting process.
"For our members, I think they believe that the rulemaking process should be objective by the department, the language should be clear," Cambensy said. "I think before that this committee was put in place, there were a lot of questions on whether or not that was happening. I think there were some larger permits or permit approvals that were not granted."
Cambensy, who as a member of the House in 2018 voted no on the legislation, said that sometimes her members would undergo the long process to find out that, for example, one of their four permits was inadequate and would essentially prevent them from moving forward.
"It's not that the industry is coming to the table and saying, every single permit for a chemical manufacturer is going to be the same. They recognize that the characteristics of the land, soil, water, location, all of that is different," Cambensy said. "However, the variations and inconsistencies … the inflexibility of the department sometimes when there's various disagreement on a permit or something that permit is requesting to do in order to obtain that, there isn't more flexibility to kind of arrive at that end result."
Cambensy said there was a lot of learning that occurred between industry and the department, and that ultimately the perception of the ERRC and EPRC could be misconstrued.
"There might be a perception that industry is trying to get something from the state officials or get away with something or that the state officials may be doing a special favor for industry. I think that is a very, very rare case," Cambensy said.
Similar to Liethen, Cambensy said the meetings prior to the permitting process that bring the industry and the department together are beneficial.
"Everyone has an understanding going forward on why you're doing what you're doing," Cambensy said.
At its enactment, many in the business community wanted more involvement in the process for the good of Michigan's economy. Liethen said from her perspective, she is always concerned about whether her members have an opportunity to work collaboratively with the department in drafting the rules. Though she could not give a "universal answer" on if the ERRC or the EPRC help with the state becoming more competitive, she said she appreciated the opportunity to have professionals take a step back and review the rules.
"It's definitely useful to have eyes on it to the extent that perhaps there's variation in the process," Liethen said.
Orr said at public meetings, the board hears feedback from environmental groups, saying they would like to get rid of the committees altogether. Moving forward, Orr said he would like to see the committee dissolved and allow EGLE to do their job.
"However, if it will continue to exist, I'd like to see that we continue to appoint people who are pro-environment and pro public health, to continue with stakeholders that really understand to allow EGLE to do their job and do their job effectively without being held up or without some oversight from some kind of arbitrary committee of stakeholders," Orr said.
In December, Whitmer said her administration was examining whether to reissue similar orders abolishing the environmental permitting and rules committees that Republicans rejected in 2019.
Rep. Laurie Pohutsky (D-Livonia) chairs the House Natural Resources, Environment, Tourism and Outdoor Recreation Committee. Pohutsky said she was not personally working on a bill to dissolve the two bodies, but she said she believed there was someone currently working on a bill to address it.
Posted: March 6, 2023 10:12 AM
In the wake of the mass shooting at Michigan State University, the conversation surrounding gun control reform in Michigan has intensified.
The new Democratic legislative majority and Governor Gretchen Whitmer vowed to pass gun control laws, but the implementation of these laws could take years of practice to get it right.
Among the many pieces of legislation suggested by law makers is extreme risk protection orders, also known as red flag laws, which allow a judge to order the temporary removal of a gun from a person's possession for fear they may harm themselves or others.
Lansing resident Anthony McRae, 43, was responsible for the shooting at MSU which killed three students and critically injured 5 others. He was previously arrested in 2019 for carrying a concealed pistol without a license. Mr. McRae was able to plead guilty to a misdemeanor, which allowed him to purchase guns legally a few years later.
It is not uncommon for prosecutors to seek plea deals in first offenses for carrying a concealed weapon without a license when no other crime was committed, but Democrats are seeking ways to prevent certain individuals accessing guns (See Gongwer Michigan Report, February 17, 2023).
Legislative Democrats are pursuing bills that would require universal background checks, secure storage laws and establish extreme risk protection orders. In a statement, House Speaker Joe Tate (D-Detroit) said he personally lost family members to gun violence, calling gun violence a "public health emergency," (See Gongwer Michigan Report, February 21, 2023).
Currently, 19 states and the District of Columbia have laws around extreme risk protection orders, including Connecticut, California, Colorado, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington.
An Associated Press analysis late last year found that the states that have authorized extreme risk protection orders rarely used them. The report highlighted Chicago, which has some of the strictest gun control statutes in the nation. Since 202, the city has had 8,500 shootings resulting in 1,800 deaths, but the state's red flag law was only used four times.
Other studies have suggested the orders have had some success at preventing suicide.
The extreme risk protection orders vary. Some states only allow police to petition a judge to order someone to surrender their firearms. Other states also allow family members of gun owners, school employees, co-workers or those in health care to do so, but the AP found in these states, few people outside of police made requests because they didn't know about the law.
Indiana was one of the first states to pass a red flag law. Enacted in 2005, the law is known as the Jake Laird law and was named after an officer who lost his life when responding to a shooting at an Indiana home. The shooter, Kenneth Anderson, killed his mother and shot several officers including Mr. Laird. In January 2004, Indiana State Police discovered Mr. Anderson had been taken to a hospital for emergency detention, and officers removed the weapons from his home. When Mr. Anderson was released from the hospital, he was able to retrieve his weapons because Indiana did not have the legal authority to retain them.
Jerry King, president of Hoosiers Concerned About Gun Violence, said in an interview with Gongwer that the law was enacted despite Indiana's pro-gun culture because the police community fully supported the law.
Hoosiers Concerned About Gun Violence was formed in 1992 and is one of the oldest gun violence prevention organizations in Indiana. The organization, like many, was formed in the wake of a shooting tragedy. During the past 30 years, the organization has held community forums to educate people on gun safety and has provided input on legislation relate to accessing guns.
"In Indiana, very sorry to say, we're more often objecting to bills that we think are foolish than we are in support of," Mr. King said.
The Indiana law has come under some criticism from gun control advocates for not going far enough. Mr. King spoke of the recent mass shooting in 2021, when Indiana resident Brandon Hole, 19, killed eight individuals at a FedEx facility in Indianapolis.
"I think it's a lack of police officer enforcement and also a matter of county prosecutors not doing a very reliable job of enforcing this," Mr. King said.
Mr. Hole showed many signs that he should not have a gun in his possession, and his mother made several attempts to get the police to confiscate the gun, Mr. King said, recalling the investigation. In 2020, the shotgun in Mr. Hole's possession was removed, but he was able to purchase a new weapon a year later. That is a key omission, and critics have said that extreme risk protection orders should prohibit the subject from being able to purchase a new weapon.
The Michigan Senate introduced bills this month to both create the extreme risk protection order process and prohibit persons who are under an order from purchasing a firearm. Those are SB 83 and SB84, respectively.
"The county prosecutor's office didn't bring it to court, there was no extreme risk protecting process," Mr. King said about the Indianapolis shooting. "The community … frankly blamed the county prosecutor for how it played out and what was so interesting to us was that other county prosecutors in Indiana came to his defense."
Mr. King also said Indiana's Marion County prosecutor said law enforcement gets "way more risk protection calls than they can deal with." Very few are taken to court, Mr. King said.
"That was a real eye opener," he said.
Under Indiana law, an individual who is "an imminent risk of personal injury" to themselves or others; or an individual who may be a harm to themselves or others in the future due to lack of properly medicated their mental illness or due to documented evidence that would "give reasonable belief" the individual can be violent can have their weapon temporarily seized.
The weapons can be seized with or without a warrant, and courts must hold a hearing within 14 days of the weapon seizure. Law enforcement keeps the firearm until further order of the court and an individual can petition to have their firearm returned after at least 180 days.
Several other states have similar guidelines to Indiana. In Florida, the state Legislature passed their risk protection orders shortly after the Parkland shooting in 2018. The court issues a risk protection order that cannot exceed 12 months. In Illinois, the firearm restraining order act enables the temporarily seizure of the weapons for six months, and the petitioner can request a renewal of the restraining order within three months before the expiration date.
Those opposed to risk protection orders cite a lack of due process or infringement on their Second Amendment rights as a reason for not enacting the laws.
Christopher Smith, a criminal justice professor at Michigan State University, is also the chairperson for the Michigan Coalition to Prevent Gun Violence. He said the organization was formed after the Sandy Hook school shooting in 2012 by retirees who were concerned about their grandchildren going to school. Like Mr. King's organization, the Michigan Coalition to Prevent Gun Violence educates people through interviews, speaking engagements and conversations with lawmakers.
Mr. Smith said opponents to risk protection orders worry the law would be used in a vindicative way. He also mentioned a study from Washington that found people of color were more likely to have their weapons seized than their white counterparts.
"This is not seamless and risk free," he said. "But I think it's necessary and valuable."
Risk protection orders, he said, are beneficial for suicide prevention, those in domestically violent situations and even could intervene in circumstance where an individual might carry out a mass shooting.
"My main concern about the implementation (of risk protection orders) is the risk that there are people within law enforcement or prosecutors, certainly in some counties in the state, whose view of the Second Amendment is premised on their own wishful thinking of what they want the Second Amendment to mean, and not what the Supreme Court has actually set," Mr. Smith said. "And therefore, they will be influenced by their own ideology to be reluctant to enforce this law."
If enacted, implementation would most likely vary county by county, Mr. Smith said.
As far as racial discrimination and risk protection orders, Mr. Smith said having a more diverse law enforcement agency by race and gender is one place to start. He also said making the job more appealing, by having more education requirements and greater selectively, would also help.
"The problem is not just the police, prosecutors, judges– the biases in society will be reflected in the decisions of people who make discretionary decisions," he said.
Colorado also has a risk protection order law. Colorado Public Radio examined more than 300 risk protection cases from 2020 to 2022. It found that 168 people in total were required to give up their firearm for one year or longer.
CPR also found the law was unevenly applied throughout different law enforcement agencies. Black Colorado residents made up 9 percent of the respondents or subjects of the petitions. In Denver specifically, CPR found Black residents made up 18 percent of risk protection cases in a city where they only account for 10 percent of the population.
More conservative counties were also less likely to file petitions. CPR said only two petitions were filed in El Paso County, which declared itself a "Second Amendment sanctuary."
In addition to fully enforcing red flag laws, Mr. King said his organization is in support of universal background checks and gun storage safety laws. Indiana recently passed a law allowing a permitless carry option for those who meet certain criteria.
Mr. King said every year in Indiana, a representative from Gary introduces a bill to require the courts to immediately confiscate weapons from the homes of an individual who has been found guilty of domestic violence. Another representative, Mr. King said, introduces legislation to prohibit firearms at polling places. Both of those bills fail to gain traction.
Gun safety laws are not just for people who shouldn't have guns, but also for those who are allowed to have guns, Mr. King said.
Mr. King said often many people die due to accidental injuries, including children who either injure themselves or others around them. Additionally, 60 percent of gun fatalities are suicides.
Everytown for Gun Safety, the largest gun violence prevention organization in the U.S., said on its website that despite Indiana having extreme risk protection orders, it still "has some of the weakest gun laws in the country."
The organization rate Indiana as 30th in the country for gun laws. On average, 1,021 people die by guns in the state annually. By comparison, Michigan is rated 24th, and on average, 1,270 people die by guns yearly. Everytown still called Michigan's gun law weak, citing the lack of background checks at shotgun sales, no extreme risk protections orders and no laws prohibiting domestic abusers from possessing guns.
Mr. Smith teaches in one of the buildings where shots were fired on the MSU campus. He said he was somewhat numb what happened.
"The gun situation in the United States puts us all at risk all the time," he said. "With 400 million guns on the loose, there's a limit to what we can do to try to reduce risk and harm," he said.
Posted: February 13, 2023 9:43 AM
Implementing tolling on 545 miles of highway by 2032 may be feasible according to a recent study, but the Senate Transportation and Infrastructure Committee had questions at a meeting last week about toll rates and diversion away from roads that would no longer be free of charge.
HNTB, a Missouri based company, conducted the Michigan Statewide Tolling Feasibility Study and Implementation Plan released in December 2022. The study was done at the request of the Legislature.
Before the committee was Eric Morris, HNTB senior vice president and project manager, Ron Davis, deputy project manager, and Kari Martin, Department of Transportation statewide systems management section manager and project manager for the feasibility study.
"The bottom line is a total of 6 and 6.5 cents per mile indexed for inflation will cover all the lifecycle costs for about 545 miles of highway at or above standard performance measures," Mr. Morris said. "By 2032, if implemented, this program would support $8.5 billion in capital investments on these 545 miles."
Commercial vehicles would be charged more, approximately 18 cents per mile, similar to other states like Indiana or Ohio. Sen. Joe Bellino (R-Monroe) voiced some concerns about charging truck drivers more than everyone else.
"They already pay a lot more tax on fuel and they pay a lot more tax on registration," Mr. Bellino said.
Mr. Morris said there is quite a bit of freight traffic flowing from Canada into Michigan. He agreed that Michigan is a peninsula state and does not have the pass-through traffic like Indiana or Ohio, hence why the researchers suggest 18 cents rather than the 50 cents those states are charging.
The state would have to implement electronic tolling, meaning no toll booths or waiting in line. The electronic tolls would either pick up on the transponder like iPass or E-ZPass, or would take a photo of the individual's license plate and mail the toll to their home.
Looking only at limited access highways for tolling, Mr. Morris said the research team was able to narrow the options down to 14 corridors. One factor in the selection process was to avoid placing the tolls in "environmental justice communities," or disadvantaged communities.
Breaking it down to three tiers, Mr. Morris said Tier 1 would be ready in five to seven years. Tier 2 would take approximately 14 to 15 years and Tier 3 would take more than 15 years. Tier 1 corridors centered largely on I-275 and I-696. The revenue from the entire Tier 1 system, Mr. Morris said, would represent about $1.3 billion yearly in gross collections.
Unlike other states, the report suggests an new approach to converting non-toll roads to toll road, Mr. Morris said.
Sen. Veronica Klinefelt (D-Eastpointe) asked about diversion away from the toll roads, saying many residents take 8 mile in Detroit to get to one side of the city to the other during rush hour.
Mr. Morris said he was expecting as high as a 13 percent diversion rate for 696. He also said that when looking at the diversion rate for 8 cents per mile, it reached as high as 20 percent, and when charging 4 cents per mile, the revenue was not enough to fund the roads.
Mr. Davis discussed the costs of implementing the tolls, saying bond financing would allow them to take out financing and pay for the initial roadwork to bring the roads and bridges up to "asset performance standards."
Between 2026 and 2031, Mr. Davis said he estimated the costs of installing the toll collection system would be $500 million. Beyond 2031, all the costs would be covered by toll revenues, he added.
The legislation necessary to get the tolling implemented on the researchers' timeline would need to be approved by the end of 2024. When speaking with reporters after the committee, Committee Chair Sen. Erika Geiss (D-Taylor) said she did not predict any legislation on tolling to be introduced this year.
When asked how she thought constituents would react to tolls, Ms. Geiss said she had a feeling they would react similarly to those in her household, firmly asserting that they do not want tolls in Michigan.
"The concept part of it, it's a little scary because a lot of us think you know person in the booth, traffic slows to a grinding halt and … all that time that you've made up going fast has just been completely wiped out by having to sit there, like that's the mentality," Ms. Geiss said.
However, Ms. Geiss added that if tolling is implemented, she thinks the state will do it "intelligently and equitably and in a way that doesn't make it regressive but that does improve our roads."