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High Court
Hears Durant IV Arguments
MIRS, October 14, 2003
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In the case of Daniel Adair, et al., vs. State of Michigan, et
al, the Michigan Supreme Court today heard plaintiffs attorneys
argue that: school districts which were parties in the Durant v.
State of Michigan in 1997 [Durant I] should be allowed to bring
a new school funding lawsuit; that school districts not involved
in the original lawsuit but signed resolutions barring further
litigation should not be barred from filing later lawsuits; and
additional record keeping and transmittal requirements mandated
by the Legislature after Durant I should be funded by the state.
The State is arguing that nothing has changed since Durant I
with the exception of changing the transmittal of record keeping
from paper to electronic filing, which is not a new activity
requiring the state to reimburse school districts under the
Headlee Amendment.
Adair, then-president of the Fitzgerald Public Schools Board,
along with more than 400 school districts filed suit against the
state in November 2000. In May 2002, the schools filed an appeal
to the Michigan Supreme Court to reverse an April 2002 Court of
Appeals decision that ruled the state's funding practices were
constitutional.
In Durant I, the plaintiffs alleged the State of Michigan and
various departments disobeyed the constitutional mandate by
reducing the amount of annual increases in school funding. In
the 1997 ruling, the Supreme Court ruled in their favor and
awarded back payments for special education funding.
Today, in arguments before the Court, Ken POLLARD, attorney for
the plaintiffs, argued that Durant 1 decision only dealt with
funding up through 1997 and that the current Adair suit deals
with funding from 2000 forward.
"This lawsuit doesn't look to the declaratory judgment about the
past, it is to the future," Pollard told the court. "If the
situation changes, taxpayers have the right to file a new
lawsuit."
Jane WILENSKY, assistant attorney general, argued that nothing
has changed from the Durant 1 case with the exception of an
executive order (EO) changing the reporting practices.
"You can't re-litigate a claim that existed in Durant 1,"
Wilensky said. "The plaintiffs filed this lawsuit under the
guise of an unfunded mandate clause...and they don't get two
bites of the apple."
Wilensky said the Court of Appeals decision was correct in
ruling the state's funding practices were constitutional. All
the EO was saying was "come into the 21st Century and get rid of
the paper and pencils." The funding and funding formula remained
the same.
Chief Justice Maura CORRIGAN, however, questioned whether the
state shouldn't pay the school districts if there is an
increased cost for transmitting data by electronic rather than
paper method.
Justice Michael CAVANAGH questioned whether an increase in the
number of special education hours would be considered a mandate.
Wilensky contended it would not because school districts were
not required to increase the hours of special education; but
rather state funding would be prorated on the number of special
education hours provided.
Justice Stephen MARKMAN asked Pollard if the state doesn't only
have to show that current funding is being provided at the level
it was obligated to under Durant 1.
"If $1 million in funding was appropriate in 1977-78 and it is
the same now, doesn't that meet Durant 1?" Markman queried.
"The current appropriation doesn't meet the required funding
level," Pollard asserted. "There has never been a ruling
pertaining to the level of state funding."
"Is there no way the Legislature can protect itself from further
lawsuits?" Markman wondered.
The Adair case is one of several lawsuits filed against the
state in the wake of the Headlee Amendment of 1997. The suits
allege the state's failure to pay for the programs it mandates
has cost school districts hundreds of thousands of dollars in
lost programs and services.
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Putting Drunk Kids Behind Bars
MIRS, October 14, 2003
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The Senate Judiciary Committee took testimony today on a bill
that would give judges the option of giving under-age drinkers
30 to 90 days of jail time on second or third minor in
possession offenses.
The bill, SB 637, sponsored by Sen. Tom GEORGE (R-Kalamazoo), is
being labeled as a way to "correct" a Court of Appeals ruling in
Michigan v. Scott Leonard RUTLEDGE (No. 233990). The judges
ruled that minors who legally drink in a jurisdiction in Canada,
Wisconsin or elsewhere and then return to Michigan with the
alcohol in their bodies have not violated the minor in
possession statute.
SB 637 says that a minor with a bodily alcohol content of .02 or
above can be charged with minor in possession even if he or she
doesn't physically have a drink in hand. And the bill takes it a
step further by giving judges the option to use jail time "as a
hammer" to force under-age drinkers into rehab.
The bill's jail-time portion is similar to legislation that
passed the House last session (HB 4200), but got held up in the
Senate Judiciary Committee after then-Sen. Thaddeus McCOTTER
(R-Livonia) joined the panel's three Democrats with a battery of
concerns.
This time around, prosecutors and judges came to the same
committee asking for the "jail-time hammer" as part of a broader
request for more legal tools to deal with drinkers under age 21.
Eaton County Prosecutor Jeff Sauter told committee members that
the Rutledge ruling opens a huge loophole for any minor in
possession cases. Basically, any drunk 19-or 20-year-old not
holding a bottle in his or her hand can get around a conviction
by telling the police officer that he or she drank legally in
Canada or Wisconsin.
In Canada, the legal drinking age is 19. In Wisconsin, certain
minors are allowed to drink at home.
District Court Judge Harvey HOFFMAN said he wanted the option of
threatening jail time for under-agers to cut through the
"invincibility" and "rebellion" he sees from these young
violators. He said 18-and 19-year-olds are the toughest age
group to rehab because they "think they're made of steel."
"Even if a person is in contempt of court, they are laughing at
us because they know there's nothing we can do to them. It's the
punch that's not thrown," Hoffman said. "We're fostering a
disrespect for the law."
Hoffman said he doesn't know of any judge "who would be so
cold-hearted" that he or she would lock away somebody's 18-or
19-year-old for minor in possession for a second or third
offense to the 30 or 90 days in jail allowed for under this
bill. At max, the judge would sentence an under drinker to a few
days behind bars to send a message. This prompted Sen. Liz
BRATER (D-Ann Arbor) to ask why the 30-to-90-day hammer was
needed if it wasn't going to be used.
"If we don't mean it, why are we writing the law this way?"
Brater asked.
Brater said she found it ironic that an alleged faulty judicial
decision has created legislation asking for more judicial powers
on under-age drinking. The senator asked Committee Chair Alan
CROPSEY (R-DeWitt) for another week to review the bill when it
looked like Cropsey was ready to move it to the Senate floor.
After Sen. Virg BERNERO (D-Lansing) and Sen. Bruce PATTERSON
(R-Canton) backed up her up, Cropsey granted the request.
Patterson, an attorney by trade, wanted more time to review the
Rutledge decision to determine if the Court of Appeals was
throwing out a bad lower court ruling or if it was making a
statement that could be used later by another defendant.
MADD and the Prosecuting Attorneys Association of Michigan are
supporting the bills. Martin VAN VALKENBURG of the Michigan
Licensed Beverage Association had concerns with the jail-time
provision and the concept of charging a youth with being in
possession of alcohol if the alcohol is in their stomach.
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Consensus: State Has $897.7 Million Deficit
MIRS, October 14, 2003
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After weeks of speculation, Gov. Jennifer GRANHOLM and state
lawmakers now have a figure to go with — $897.7 million.
Three months ago, Granholm and legislative leaders held up their
hands in victory. They had balanced a Fiscal Year (FY) 2004
budget that was $1.8 billion in the red. Now, because the
state's tax revenue isn't coming in as hoped, it appears Gov.
Jennifer GRANHOLM and the Legislature are going back to the
cutting board to find another $897.7 million to cut out of this
bare-bones budget. The early likely candidates appear to be
revenue sharing, higher education, K-12 categoricals and some
health care programs.
According to today's Emergency Consensus Revenue Conference, the
FY 2003 General Fund will have $74 million left after the books
get balanced, but the School Aid Fund (SAF) is in a $104.1
million hole. The balance will be tacked onto this fiscal year's
$221.7 million problem in the SAF. All together, that's a $325.8
million hole in the School Aid Fund.
If Granholm opts to zero out this problem just with SAF cuts, it
will cost roughly $195 per student or the elimination of what is
known as "discretionary categoricals," such as small-class size
initiatives, adult education and early learning, according to
Senate Fiscal Agency Director Gary OLSON.
The FY 2004 General Fund isn't looking much better, with the
agreed-upon deficit being pegged at $571.9 million. Those giving
today's numbers called today's estimates "conservative." They
pinned their projections on the hopes of a modest .6 percent job
growth, which is optimistic considering 25 percent of the
nation's job losses since Oct. 2001 came from Michigan.
The state saw a small increase in jobs in September, but the
bottom line is that economic forecasters belief in May that
Michigan's economy was on the upswing was too optimistic. Sales
tax revenues declined last year for the first time since 1981.
Unemployment continues to creep up.
The state's economy is not turning around. And for the first
time in the last two years of revenue estimating conferences,
the forecasters are coming to terms with that. They are
predicting flat-to-modest growth, hoping that the state's
economy can stay stagnant for the rest of the fiscal year until
possibly some sunny days in FY 2005.
"It's a painful reality we heard today and a more unsettling
future," said state Treasurer Jay RISING. "I'm unwilling to
predict a quick turnaround for Michigan. I'm concerned about the
job level. I'm not sure the job recovery in Michigan is as quick
as the rest of the United States."
Asked if this means Michigan has finally hit the bottom of this
economic downturn, Olson said, "Hopefully. I don't think you can
go any lower."
So Granholm and the Legislature are back to the thankless task
of taking more money out of a bare-bones budget. Even the most
conservative lawmakers wouldn't rule out freezing the scheduled
income tax rollback, which saves the state about $115 million.
But the question quickly becomes whether solving about 13
percent of the budget problem is worth the political hit. For
Republicans voting for an income tax freeze could mean a primary
opponent in the next election. For Democrats, it's campaign
fodder for a Republican challenger.
"The people of the state have to make it abundantly clear that
they're willing to accept (a freeze in the income tax rollback)
as a partial solution," said Sen. Michael PRUSI (D-Ispheming),
ranking member of the Senate Appropriations Committee.
Among lawmakers, there was a lot of talk about "everything being
on the table" except raising taxes and cutting the $6,700 per
pupil foundation allowance in K-12.
"The foundation allowance is sacred," said House Speaker Rick
Johnson (R-LeRoy). "And I'm not looking to raise taxes. I still
believe that people can spend their money better than we can. As
far as the computers (Freedom to Learn), I just don't think we
should be preventing education from moving to the next level."
The Michigan Chamber of Commerce had two words, "cut spending."
Some lawmakers believe that's still doable. Rep. Jack
BRANDENBURG (R-Harrison Twp.) pointed to the Department of
Corrections budget, where he said there's one staff member for
every 2.5 inmates.
"These departments do not want to take a cut. That's the bottom
line. They have their own little fiefdoms," he said. "What needs
to be done is for people to stand up and say, ‘Look, you're
going to take a cut. We've got declining revenues.' If my
business has declining revenues, what do I have to do? I have to
lay off people. That's the way it works."
Some lawmakers don't believe that's doable. Rep. Chris KOLB
(D-Ann Arbor) said he's willing to sponsor a tax increase bill
if that's what Republican and Democratic leaders agree to do.
But he's stressing that the $897.7 million hole needs to be
filled with a blend of cuts and revenue enhancements.
Relying on cuts along to balance the FY 2004 budget would
devastate state government and be traumatic to the people of
Michigan, Kolb said. The cuts the state has already taken are
starting to effect people more and more. More telephone calls
coming into Rep. Jerry KOOIMAN's (R-Grand Rapids) are from those
upset about the Medicaid cuts in senior dental care and home
help service.
"I think the public is moving in that direction. We've done our
work this year. We've dramatically reduced the size of state
government in this budget," Kooiman said. "Now we're looking at
cutting deeply into more programs."
Where are those cuts coming from? Talk today centered around the
usual suspects — a little more from revenue sharing. There
likely will be a little more from higher education. K-12
categoricals could be in trouble. There's always that next rung
of services from the Department of Community Health (DCH) budget
that can be looked at.
Then there's the other problem. After the governor and the
Legislature come to an agreement on what's going on the chopping
block this time around, there's still more budget problems that
likely will need to be solved down the line.
"This is just the beginning of what's going to be a long
process," said House Minority Leader Dianne BYRUM (D-Onondaga).
"We didn't get into this overnight and we're not going to handle
it overnight."
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