Court Sanctions Emergency Manager Theft of Detroit

(reposted  from Michigan Citizen)

THEY PULLED IT OFF!

By Curt Guyette
Special to The Michigan Citizen

The grins stretched from ear to ear, and the hugs and back-patting were plentiful.

Emergency Manager Kevyn Orr, Gov. Rick Snyder, Mayor Mike Duggan and U.S. Judge Gerald Rosen — all were in a celebratory mode last week as they appeared at a press conference following the announcement by U.S. Bankruptcy Court Judge Steven Rhodes that Detroit’s proposed “plan of adjustment” had been accepted, putting an end to the city’s journey through bankruptcy.

Gov. Rick Snyder and Mayor Mike Duggan celebrated Bankruptcy Judge Steven Rhodes’ acceptance of their Plan of Adjustment that cuts workers’ and retirees’ pensions and healthcare, and takes back earlier annuity payments from the city over the last decade. CURT GUYETTE PHOTO

Newspaper headlines announced the city had been “reborn,” and the final words of the ruling read from the bench by Judge Rhodes echoed triumphantly: “It is now time to restore democracy to the people of the city of Detroit. I urge you to participate in it. And I hope that you will soon realize its full potential.”
The irony, of course, is that it was the hijacking of democracy that brought Detroit to this place.

It began in early 2012, when lawyers from the Jones Day law firm, in conjunction with the investment banking firm Miller Buckfire, began secretly meeting with Gov. Snyder’s office and other state officials to figure out how to thwart the will of Michigan voters.

The concern was that a grassroots-effort to repeal a new state law giving unprecedented powers to appointed emergency managers would succeed. And so they devised their response, and were ready to act when voters went to the polls in November 2012 and rejected the law by a significant margin.
Within a month, the state’s Republican-led Legislature crafted a new law containing many of the same provisions as the one Michigan’s citizens — engaging in the democratic process hailed by Judge Rhodes — had just voted to repeal. Only this time, an appropriation would be attached to the statute, making it “referendum proof.”

So much for a commitment to the democratic process.

As a result, instead of having elected officials deciding Detroit’s fate, Emergency Manager Kevyn Orr and his former partners at Jones Day began calling the shots, as the city was shoved into bankruptcy.
From the outset, the primary target of debt-cutting was clear: The city’s retirees would be the ones facing the most severe sacrifices.

Again, Jones Day, which had some of the city’s biggest creditors as its clients, would play a key role. The firm’s lawyers laid the legal groundwork for using bankruptcy to go after retiree benefits in bankruptcy — even in a state like Michigan, which has the protection of pensions written into its constitution.
Casual observers of this drama will have heard that, as a result of the much-hailed “grand bargain” — an $816 million cash infusion from the state, private foundations and the Detroit Institute of Arts — the cut to general retiree pensions would be just 4.5 percent, and that police and firefighter retirees won’t get nicked at all.

What tends to get lost in the reporting is the true extent of the hit being taken by retirees.




 
 
Kevyn Orr is all smiles at the press conference announcing Judge Rhodes’ acceptance of his Plan of Adjustment. CURT GUYETTE PHOTO



Both civilian and uniformed retirees will absorb massive losses thanks to deep cuts in future cost of living increases. For the general retirees, those yearly raises are being eliminated completely. Taken together, the two groups will give up a total of more than $1.3 billion in the coming years.

Cuts to healthcare benefits only compound the problem. Instead of being on a plan where the city covers 80 percent of healthcare costs, retirees are receiving a monthly stipend. For most, the amount is $125, leaving them to pick up the additional costs of insurance, which can be hundreds of dollars a month.

And then there’s the “clawback” of excessive interest rates the Jones Day attorneys argued was paid to people who participated in an annuity savings program between 2003 and 2013.

As one retiree observed, “I’m getting hit four different ways.”

Add it all up, and at least 75 percent of the estimated $7.3 billion in debt and obligations being shed in bankruptcy comes in the form of cuts to retirees.

Will that be enough to put the city on a sound financial footing?

Despite the media’s focus on Detroit’s supposed rebirth, there is real cause for concern that the fundamental factors that led to the city’s dire straits remain unaddressed. In a recent opinion piece, economist Peter Hammer — who’s also a law professor and director of the Damon J. Keith Center for Civil Rights at Wayne State University — warned:

“The perverse logic of fiscal austerity is creating dozens of second-class ‘minimal cities.’ The move to transition Detroit away from serving as a city, to a slimmed-down version with little to no municipal services, is part of the bankruptcy Plan of Adjustment that the city is pursuing, on a par with what the World Bank and International Monetary Fund pursued with Structural Adjustment Programs in much of the developing world. What we know from these SAPs is that they sucked the life out of countries forced to receive them.

“The same will happen with Detroit, especially given how out-of-touch managers are with the city’s history and context. The 226-page Expert Report, for example, on the feasibility of the POA and the reasonableness of the city’s revenue forecasts never addresses issues of race, racism, regionalism, segregation or foreclosure (all words that appear nowhere in the report). And poverty is only mentioned once. … We need alternatives to the dictates of fiscal austerity and structural racism.”

As for Judge Rhodes, this is what he told the people of Detroit:

“A large number of you told me that you were angry that your city was taken away from you and put into bankruptcy. You told me in your court papers. You told me in your statements in court. You told me in your blogs, letters and protests. I heard you.

“I urge you now not to forget your anger. Your enduring and collective memory of what happened here, and your memory of your anger about it, will be exactly what will prevent this from ever happening again. It must never happen again.”

Then he urged Detroiters to channel that anger into positive action by engaging in the democratic process.

For the next 13 years, however, the people of Detroit will have elected leaders, but it won’t really be a true democracy. That’s because an appointed, nine-member financial advisory board (containing only two Detroit officials) will have the final say over approval of major contracts and the budget process.
“It is your City,” Judge Rhodes told Detroiters.

But it is others who, though unelected and mostly living elsewhere, will be the ones with the final authority over crucial decisions facing Detroit for the foreseeable future.

Curt Guyette is an investigative reporter for the ACLU of Michigan. His work, which focuses on Michigan’s emergency management law and open government, is funded by a grant from the Ford Foundation. You can find his reporting at aclumich.org/democracywatch. Contact him at 313.578.6834 or cguyette@aclumich.org.

Temporary Restraining Order Filed Against DWSD

For immediate release:

See http://www.aclumich.org/sites/default/files/DetroitWater-TRO.pdf

Residents, Civil Rights Attorneys Urge Judge to Restore Water Services Until Litigation is Resolved

DETROIT – In an effort to preserve a moratorium on water shut-offs, a group of Detroit residents and civil rights attorneys filed court documents over the weekend asking a judge to immediately block the Detroit Water and Sewerage Department (DWSD) from terminating water service to any occupied residence, and to require the restoration of service to occupied residences without water. 

The moratorium is currently scheduled to end today. The ACLU of Michigan and NAACP Legal Defense fund are serving as expert consultants in the ongoing litigation.

“Without a continued moratorium on water shutoffs, thousands more Detroiters, mostly low income children, seniors, and disabled, will immediately be at risk for shutoff,” says Alice Jennings of Edwards & Jennings, P.C., counsel in the lawsuit, “A comprehensive water affordability plan, a viable bill dispute process, specific polices for landlord-tenant bills and a sustainable mechanism for evaluating the number of families in shutoff status or at risk for shutoff, is necessary prior to lifting the DWSD water shutoff moratorium.”

The motion for a temporary restraining order filed yesterday is part of a class action lawsuit, Lyda et.al v. City of Detroit, on behalf of Detroit residents affected by the mass shut-off campaign of DWSD, as well as organizations active in the fight for the restoration of and affordable access to water including Michigan Welfare Rights Organization, People’s Water Board, National Action Network-Michigan Chapter and Moratorium Now!. This suit is currently in bankruptcy court before Judge Stephen Rhodes as part of the city’s bankruptcy proceedings.

The lawsuit argues that the DWSD began water shutoffs without adequate notice and against the most vulnerable residents, while commercial entities with delinquent accounts were left alone. The suit also argues that this violates the plaintiffs’ due process and equal protection rights. 

“More than 17,000 homes have had their water cut off and water bills in Detroit are among the highest in the country and unaffordable to many Detroit residents,” says Kary Moss, ACLU of Michigan executive director. “The rush to resume shut offs when there are serious questions about the affordability plan, accuracy of bills, and issues with the water department's ability to process disputes, means that the City of Detroit should get its house in order before turning off anyone else's water.”

In March, DWSD began dispatching private contractors to begin shutting off water service to residents who are more than 60 days delinquent, or owe more than $150. Despite the fact that 38 percent of the population lives below the poverty line, the shut-offs began without a plan to help those who cannot pay. 

After public outcry and this lawsuit, the city implemented a moratorium and announced a 10-point plan to address the dysfunctions raised by the lawsuit and civil rights groups.

"The mayor's plan only consists of proposals and temporary fixes,” said Rev. Charles Williams of the National Action Network-Michigan Chapter. “Until actual policies are in place to ensure that residents have access to affordable water, the water shut-offs cannot be resumed. The current proposal for residents to enter into non-negotiable payment plans is only a short-term solution."

Last month, the ACLU of Michigan and NAACP LDF wrote a letter to city officials arguing that that the poorly implemented and uneven DWSD shut-off policy violates the civil and human rights, as well as the due process rights of residents because it often fails to provide them with adequate notice and a hearing that takes into account whether they actually have the ability to pay.

“DWSD must immediately restore water to all its customers,” said Sherrilyn Ifill, President of the NAACP Legal Defense and Educational Fund, Inc. “In addition, they should create a reasonable timetable for a hearing and appeals process, pending resolution of these issues." 

Attorneys for residents are calling on Judge Rhodes to order DWSD to extend the moratorium to ensure that the most vulnerable Detroiters are not left without water. The moratorium on shut offs should be extended until DWSD has policies in place to ensure that collections are done in a way that doesn’t violate residents constitutional rights. 

Tawana Petty, an activist with the People’s Water Board Coalition, echoed these sentiments. "We are asking the Governor, Mayor, Emergency Manager and the Detroit Water and Sewerage Department to stop their assault on the citizens of Detroit and restore all water to residents. Water is life and without it, we perish.”

Rev Pinkney House Arrest Appeal Denied

The Michigan Supreme Court has denied a hearing on the house arrest appeal of Benton Harbor preacher and activist, Rev. Edward Pinkney. This legal set back for our comrade (who was released on bond on Christmas eve 2008) comes soon after he was denied the opportunity to attend his Michigan Court of Appeals hearing on June 9, 2009. Rev Pinkney is appealing his prison sentence for quoting the Bible against a judge. The ACLU is representing Rev. Pinkney and his first amendment right.

The Rev. Louis Farrakan was one of several people who spoke on behalf of Rev. Pinkney at the Grand Rapids Court of Appeals hearing. This case has drawn the attention of many who are concerned about the political crackdown on "truth speakers" in Benton Harbor, Michigan--a mostly poor, African American town controlled by stakeholders backed by Whirlpool intent on turning the town into a golf resort destination.

For more information about Rev. Pinkney, BANCO (the grassroots group he represents), and Benton Harbor, go to the BANCO website.

Image courtesy of the Michigan Citizen.

Michigan Citizen Reporter Diane Bukowski’s Conviction Statement

As many of you know, I was convicted Friday, May 1, 2009 on two felony counts of “assaulting/resisting/obstructing” state troopers. The charges related to my coverage last Election Day Nov. 4 of a high-speed state trooper chase down E. Davison which ended with the deaths of Detroiters James Willingham, a father of ten, and Jeffery Frazier, an autistic young man beloved in his community.

I am neither dispirited nor depressed about this unjust outcome, but all the more resolved to continue the struggle against the beast that is the so-called “criminal justice” (read injustice) system in this city, county, state and country. Tens of thousands of poor defendants, who do not have my advantages, are daily railroaded into the prison system using court-appointed attorneys who frequently plead them out whether or not they committed the crime. Many are charged with crimes arising from their poverty.

My defense committee is already planning an extensive fightback. There will be an organizing committee meeting at the offices of The Michigan Citizen, 1055 Trumbull at Howard, Thurs. May 7 at 5 p.m. for those who want to help plan this fightback. We are also of course planning legal appeals from several angles. My sentencing is set for June 1, 2009.

Wayne County Prosecutor Kym Worthy, who knows my extensive coverage of police brutality cases and her failure to prosecute Detroit’s killer cops including Eugene Brown, brought these appalling, trumped up charges against me.

My attorney Emmett Greenwood and I were forced to fight the charges with one arm tied behind our backs, due to the actions of both Assistant Prosecutor Thomas Trzcinski and Wayne County Circuit Court Judge Michael Hathaway. Hathaway is a member of the suburban-based Irish Republican Club (not Army) and supporter of state Attorney General Mike Cox.

On Apr. 17, as a hearing on a motion to withdraw from my case by my previous attorney Arnold Reed was being heard, a motion to “preclude the defense of press privilege” from my trial, penned by Trzcinski and approved by Worthy, was also heard. I had no idea this motion had been presented seven days earlier.

“The People request that this Court preclude argument, the asking of questions, and the introduction of any other evidence purporting to show that defendant was acting in her capacity as a reporter during the events in question,” Trzcinski said in his motion, which was approved by Wayne County Prosecutor Kym Worthy.

Hathaway partially granted this request which blatantly violated the First Amendment.

He refused to adjourn the trial to deal with this new development and provide needed preparation time despite the fact that my new attorney had been on the case for only 10 days.Hathaway also refused to allow Greenwood to appeal the denial of adjournment to the presiding judge of the criminal court, Judge Edward Ewell, which is standard procedure.

My jury venire was not representative of a “fair cross-section of the community” as guaranteed by the Sixth Amendment. Only two Blacks and two Detroiters were on the final jury, with probably 3 more Blacks in the entire venire of over 30 (for selection). Blacks represent 82.8 percent of Detroit’s population and 42 percent of Wayne County’s population according to the most recent estimates from the US Census. Detroiters also represent 42 percent of the county’s population. The judge continued the trial despite the fact that a third Black juror called in the second day and said she had car trouble, although he could easily have sent a court officer to pick her up. She was instead excluded from the jury.

Recent figures compiled by the Wayne County Jury Commission show that Blacks are still averaging only about 24 percent of the total jury pools, with Detroiters at around the same rate. Those are the same figures that were in effect when Judge Deborah Thomas first began her campaign regarding the disparate racial and ethnic composition of Wayne County juries in 2004.

Hathaway allowed extensive direct testimony from the two state troopers, John Hetfield and James Wojton (both white and not from Detroit), who conducted the chase but were gone two hours before I got there. However, he did not allow my attorney to cross-examine them on the legality of the chase, which violated numerous MSP pursuit regulations. They had no siren on, and conducted the chase in a densely populated area for a traffic violation (speeding). Several nearby schools were letting out at the time of the chase, 3:32 p.m.

The judge even cut off most of my attorney’s direct exam of me, the defendant. Trzcinski viciously attacked Willingham’s grieving sister when she took the stand to testify that I did not cross any yellow caution tapes and did not assault, resist or obstruct the officers.

The jury watched the raw footage from Fox 2 news videotape of my entire arrest three times. But as I warned my lawyers all along, these suburban juries believe the police, and not “their lying eyes.” That happened when a mostly suburban jury acquitted Trooper Jay Morningstar of murdering homeless Eric Williams in Greektown several years ago. That jury also viewed a Detroit police dashcam videotape which showed Morningstar shooting Williams, who had his pants around his ankles and was clearly disturbed, only 4 seconds after Morningstar exited his car. This was despite the presence of Detroit officers who knew Williams and how to handle him.

The judge informed the prosecutor and my attorney both in chambers and on the record that Trooper Eric Byerly, who erased two photos from my camera, had committed a crime and should take the Fifth Amendment. However, after Byerly nonetheless testified in detail regarding this destruction of evidence, neither the judge nor the prosecutor took the appropriate actions against him.

There were numerous other gross irregularities which my attorneys will deal with in their appellate actions.

But I ask all of you not to lose heart. My determination to continue the struggle against the monster that is this injustice system has been greatly increased by this outcome, and I look forward to victory in the end. If anyone has questions, they can reach me at 313-205-6718. THANK YOU ALL AND LOVE YOU ALL. DIANE.

(Image courtesy of Workers World)

Wild Man Wiley on Berrien County Bench

Read this extraordinary report about Berrien County Judge Wiley's bond hearing for BANCO's Rev. Edward Pinkney. Although we don't have a photo to share of Judge Wiley, this is what we imagine him to look like!

[Reposted from Benton Harbor BANCO]

Rev. Pinkney's Bond Hearing, Thursday Dec. 18, 2008

The hearing was to set bond and allow for Rev. Pinkney's release as he appeals a 3-10 year prison sentence for violating his probation for writing an article which was published in the Peoples Tribune. peoplestribune.org

Obviously furious and out of control emotionally, Judge Dennis Wiley was like a crazy man with hair standing up. Literally. For people who had traveled from afar, it was a rude shock to hear Judge W announce that the 10am hearing was being postponed until 3pm.

This judge, true to reputation, was anything but objective, and openly displayed a lot of anger. The ACLU's win in court, resulting in the release of Pinkney, is the last thing Berrien County power players want. Judge W didn't want to hear the case, said he didn't have time for rebuttal, and tried to persuade prosecutor Vigansky who he seemed at odds with to postpone the hearing. He eventually decided to hear the case. Vigansky appeared to care about how he conducted himself, Wiley did not and behaved like a drunken sailor. He threw two people out of the courtroom for slight chuckles, shouting to "get out!"

Rev. Pinkney, appearing on closed circuit TV from Jackson prison, was represented by two ACLU attorneys, both present in the courtroom. It was obvious from their astonished expressions that they may never have been subjected to this type of "legal proceeding" in their careers. Berrien County refused to bring Pinkney to the courtroom citing bad weather.

Judge W granted Pinkney a ten-thousand dollar cash surety bond -- more than had been sought by either Pinkney or the prosecutor. "I could have set $150,000.00!," threatened Judge W.

Despite last week's one and only order by the Court of Appeals for Judge W to set the bail amount, he set a long list of (outrageous) conditions to Pinkney's bond release:

no cell phone, no pager, no speaking engagements, no preaching in church, may engage in no defamatory or harassing behavior - including through the use of print or electronic media, no election activity, must wear a GPS tether and be under 24-hour curfew, may not go near Judge Butzbaugh, may not use a credit card ("you may as well cut up your credit card"). Also, Pinkney must keep away from the Berrien County Courthouse until his day in court on the appeal. Pinkney is known for his court observer activism. Attorney Michael Steinberg said the restrictions are excessive, and some are unconstitutional.

Get the feeling they are just a little afraid of this reverend?

Read more at WSJM. (Image from Sultan Knish Blog)

MI Appeals Court Grants Bond Motion for Rev. Pinkney!

MWRO applauds the Michigan Court of Appeals for its decision to grant Rev. Pinkney a release on bond! This is great news for the Pinkney family and the hard fought efforts of Rev. Pinkney's attorneys and friends. See the MI ACLU press release below and this pre-incarceration video of Rev. Pinkney discussing charges against him and conditions in Benton Harbor.


See more videos
ACLU Praises Court Decision to Release Minister from Prison Pending Appeal

IMMEDIATE RELEASE:
December 11, 2008

CONTACT: Michael J. Steinberg, ACLU of Michigan Legal Director at 313.578.6814

DETROIT– The American Civil Liberties Union of Michigan applauded a Court of Appeals decision today granting its motion for bond on behalf of a Benton Harbor minister who is serving a 3-10 year prison sentence for writing a newspaper article that harshly criticized the judge who presided over his trial.

"We are thrilled that Rev. Edward Pinkney will be home with his family celebrating Christmas instead of sitting in prison for criticizing a judge," said Michigan ACLU Legal Director Michael J. Steinberg. "The court properly recognized that serious constitutional questions are raised when a minister is thrown in prison for predicting what God might do."

Rev. Pinkney is a Baptist minister in Benton Harbor, a predominantly African American community with a troubled relationship with its predominantly white sister city, St. Joseph. Rev. Pinkney has long been an outspoken community activist and advocate, frequently denouncing injustice and racial inequality in Benton Harbor, its local government, and the Berrien County criminal justice system in particular.

In 2007, Rev. Pinkney was sentenced to probation for violating Michigan election law. But his probation was revoked and he was resentenced to 3-10 years in prison solely because of an article he wrote for a small Chicago newspaper. Quoting a passage from the Bible, Rev. Pinkney predicted that God would "curse" the judge unless he "hearken[ed] unto the voice of the Lord thy God to observe [and] to do all that is right." Rev. Pinkney also expressed his opinion in the article that the judge was racist, dumb, and corrupt.

The ACLU argued in its motion for bond pending appeal that the statements Rev. Pinkney made in his newspaper editorial, while offensive to many, are clearly protected speech under the First Amendment. The ACLU further urged the Court of Appeals to release Rev. Pinkney on bond while it considers the appeal of his sentence.

In an order issued yesterday, the Court of Appeals granted the ACLU motion and has asked the Berrien County Circuit Court to set the amount of bond. A date has not been set yet for a hearing to determine the bond amount, however, the ACLU will ask for the earliest date possible. The Court of Appeals is expected to decide the merits of Rev. Pinkney's appeal in 2009.

In addition to Steinberg, Rev. Pinkney is represented by ACLU Cooperating Attorneys James J. Walsh and Rebecca O'Reilly of the respected corporate law firm Bodman LLP.

To read the Court of Appeals order, go to: http://www.aclumich.org/pdf/pinkneybondbrief.pdf.
To read the ACLU Brief in Support of Bond Pending Appeal, go to http://www.aclumich.org/pdf/pinkneybondbrief.pdf
To read Rev. Pinkney's article, go to http://www.peoplestribune.org/PT.2007.11/PT.2007.11.18.html