For Immediate Release
Thursday, Oct. 29, 2009
Contact: Patrick J. Wright
Senior Legal Analyst
MIDLAND - The Mackinac Center Legal
Foundation late yesterday filed a document explaining why its lawsuit
against the Michigan Department of Human Services and its director, Ishmael
Ahmed, should proceed to the merits and not be stopped due to purported
procedural issues. Legal Foundation Director Patrick Wright filed the brief
with the Court of Appeals in the case of Loar v. DHS.
they simply chose to throw up a lot of procedural flak," said Wright. "They
tried to argue that we needed to more carefully enumerate each element of our
complaint; that in effect, the Court of Appeals does not have the ability to
stop this illegal government action without first requiring costly and
prolonged hearings in the lower courts; and that the Court of Appeals should
drop the case because we should have also sued other people who aren't in the
"They had a final objection that was particularly puzzling: The DHS argued the
case should actually be tried by a government employee agency. But this is
essentially assuming what the DHS is supposed to prove - that is, that my
client is somehow a government employee belonging to a public-employee union,
even though she is in fact a private businesswoman serving private clients. If
DHS is right, why doesn't it just cite the law that shows my client to be a
government worker? It wouldn't be hard if it were true."
Communications Director Michael Jahr observed: "It has been six weeks since
this case was filed, and DHS and its director still have not defended either in
the courts or to the public the decision to shanghai home-based day care
providers into government-employee unions and divert child care subsidies into
so-called 'union dues.' If their actions were proper and lawful, why haven't
they defended them?"
confidence that the DHS' procedural objections would not prevent the Court of
Appeals from hearing the case. "The defendants' arguments, taken to their
logical ends, would prevent the Court of Appeals from stopping even the most
egregious government actions, and we expect the court will reject that."
The lawsuit was
originally filed on behalf of two Petoskey home-based day care providers:
Sherry Loar and Dawn Ives. Their claim is that the DHS should stop taking
"union dues" from state subsidy checks that provide day care assistance to
low-income families. Due to the tough economy, Ives had to close her day care
and now works for Loar. Wright noted that the fact that this change in
employment required Ives to dismiss her claim against the DHS highlights the
capricious nature of the employment relationship at issue in this case.
"DHS in effect
claims that to be an employee eligible to participate in an employees' union,
you have to be an employer, like Sherry," said Wright. "If you're a home day
care employee, like Dawn now is, you won't be considered an employee by the
union. Does this make sense to anyone? This would be too ridiculous for
even '1984' or 'Catch-22.'
"We think it's
clear that our client and other private child care providers are not government
employees," Wright added. "But if government officials think otherwise, they
still need to obey the law and make these private workers into government
employees through an act of the Legislature. An executive agency like the DHS
can't simply write an agreement with a community college that sweeps my client
into a union and then pretend it's got the force of law."
When this case was originally filed, the
Mackinac Center Legal Foundation received a number of calls from other
interested day care providers. Wright has filed a motion with the Court of
Appeals to replace Ives with two of them: Paulette Silverson from Brighton and
Michelle Berry from Flint.
Their stories are captured in this brief video.