Fighting Local Government Corruption - Part 11 of ?

David was never supposed to win against Goliath. David (a citizen of Dalton Township) is standing in the middle of this field looking at Goliath (the corrupt Dalton Township government officials), and thinking "I'm pretty sure this thing is rigged to be an unfair fight."

The favorite weapon of corrupt government officials is the legal system. They buy lawyers as champion mercenaries and unleash them on you, with the idea of crushing you underfoot.

This morning I woke up with an email from The Curcio Law Firm. They are representing Tony Barnes at the Recall hearing tomorrow. Nick Curcio attached a 7 page document to the email, a "Letter to the Election Commission" stating that there shouldn't be a Recall on Tony Barnes.

The election commission is three people: Muskegon County Clerk Nancy Waters, Chief Probate Judge Gregory Pittman, and Country Treasurer Tony Moulatsiotis. Judge Pittman is the Chair of the Election Commission and responded to the email stating that the decision will be based on proofs presented at the meeting. If you would like to come, here's the info: https://www.facebook.com/events/348063492777812/

Obviously Tony Barnes is seeking to get the Recall denied. And, I think there's a good chance of that. Nancy Waters told me when I talked to her that she hasn't approved one in 3 years, and that she's strict with them, and that she didn't want me to get good at them or I might want to recall her. I thought it was odd that she said that.

If it were to get approved then Tony Barnes will appeal it. He has already planned for that strategy, stretching it out. It's a common tactic of politicians. And it's an excellent way to use the legal system as a weapon. You just make the case so long that the other person goes bankrupt. That's the strategy that the drain commissioner used last year to defeat the recall against her in Muskegon, and it worked.

I can't hire a lawyer, so Goliath should be able to crush me. The law firm working for Tony Barnes specializes in appeals. This is from their website.

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Appellate litigation is not merely a continuation of trial court proceedings, but a specialized area of practice that requires particular knowledge and skill. With nearly a decade of appellate experience, we have the expertise needed to win on appeal.

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Today I should be editing stories for an anthology, but instead I've had to make time to address this. Otherwise evil wins. I almost missed my chiropractic appointment because I was focused on this. And if I don't properly manage my spinal deformities my health suffers greatly. The Goliaths of the world know that David doesn't have the time or money to properly prepare for the fight, so they have the advantage. But today, I've made some time.

Some people in the Concerned Citizens of Dalton Township group on Facebook asked me who is funding Tony's lawyers. I don't know. Is it coming from taxes? Is the Curcio firm associated with Dalton Township? Is Tony paying this himself? Did it come from political donations to Tony? Tony's wife Jennifer is a lawyer and chair of the Democratic party, did it come from the parties funds? I don't have answers to any of these questions. Some people have asked if the lawyer sending this to the commission is illegal. I also don't know that.

Let's go over why my Recall should be approved, and then we'll dig into what Nick Curcio wrote (the hired gun for Tony Barnes who graduated Magna Cum Laude from Notre Dame Law School (Goliath has nice weapons)).

Under the Michigan Election Law Act 116 of 1954, MCL-168-952, part 3 it states that the board of county election commissioners...

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"...shall meet and shall determine whether each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall."

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Now, Tony Barnes has done a lot of bad stuff. He's a bad guy. And I worked with some people to try to figure out what we should put in the Recall. We also had to cut a number of things to fit it into the little area that you have to write in when you submit a Recall.

Tony Barnes didn't hold a meeting to vote on the restraining order or lawsuit against Hidden Creek Farm. Is this clear to Tony and the citizens? You decide. Here's my Recall wording.

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On May 8th, 2019 Dalton Township filed an injunction for a Temporary Restraining Order as well as a lawsuit against Hidden Creek Farm. No vote was taken for either of these actions at any public meeting prior to that. Both of these actions are direct violations of the Michigan Open Meetings Act. It is the job of the Township Supervisor, Tony Barnes, to see to it that the township acts in compliance with applicable laws, which he failed to do.

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I have the meeting minutes to show that these votes did not take place. They did vote on the restraining order After it was already done, not before. The vote was on May 13, five days after. And they Never voted on the lawsuit. It wasn't even discussed.

In the Open Meetings Act, Act 267 of 1976, 15.263, section 3, part 2, it states "All decisions of a public body shall be made at a meeting open to the public."

In the Open Meetings Act Handbook under the section titled "DECISIONS MUST BE MADE IN PUBLIC MEETINGS" it states:

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All decisions must be made at a meeting open to the public - the OMA defines "decision" to mean "a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy." The OMA provides that "[a]ll decisions of a public body shall be made at a meeting open to the public," and that, with limited exceptions, "[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public."

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I think it's pretty clear that there's a violation here, and that's what the Recall states in a clear and factual way. But, I also understand that the government likes to protect their own, so we'll see if the government will allow the citizens of Dalton Township to hold the government officials accountable. There's that David and Goliath thing again, but now it's more like an army of Goliaths.

There's a lot of other shady stuff too, of course. On May 17th Tony Barnes stated to Fox 17 News that "Dalton Township has not filed any litigation against Hidden Creek Farm..."

A clear lie.

On May 27th Dalton Township Trustee Daniel Hess stated on Facebook that "I have only heard that the Township is not in any litigation to shut down the farming operation of Hidden Creek Farms."

Either he's lying, or he was lied to.

A lot of people called the township and were told these same types of lies. I even recorded the zoning administrator Lorraine Grabinski lying to me about it.

Proposed meeting minutes from the May 13th meeting weren't released to a woman even though it was more than 8 days after the meeting, which is another violation of the Open Meetings Act.

One more line before we dive into what Tony's lawyer sent me.

This is from the Election Officials' Manual, Chapter 18 Recall Process, Clarity/Factual Review, Conduct of Meeting.

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The Commission does not have the authority to rule on the reasons for recall as only the clarity and factual nature of the recall language is subject to the Commission’s review.

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Alright, now I have five pages of stuff from Nick Curcio to go through. The last two pages of the document that he sent were examples of approved and denied recalls. I will do it in parts. If you want to look at the references Tony's lawyer used, here are his 15 citations.

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1 ___ Mich App ___; ___ NW2d ___ (2018) (Case No. 343334).
2 Mr. Barnes reserves the right to argue, in subsequent proceedings, that Hooker v Moore was wrongly decided
and should be overturned. For purposes of this proceeding, however, we assume that Hooker’s interpretation of
the “factuality” requirement is controlling and make our arguments within that framework.
3 MCL 168.952(1)(c).
4 People, ex rel Elliot v O'Hara, 246 Mich 312; 224 NW2d 384 (1929).
5 Noel v Oakland County Clerk, 92 Mich App 181; 284 NW2d 761 (1979).
6 Board of State Canvassers, Reasons for Recall: Examples of Approved and Rejected Recall Petitions (January
2019), available at <https://www.michigan.gov/documents/sos/BSC_Explanation_Recall_Wording_
639174_7.pdf> (attached for ease of reference).
7 2012 PA 417 (codified in MCL 168.952).
8 See, e.g. , Hanselman, Total Recall – Balancing the Right to Recall Elected Officials with the Orderly Operation of
Government, 93 Mich B J 34 (Jan 2014); Adams v Genesee Co Election Comm, unpublished opinion of the Genesee
County Circuit Court, issued Dec 9, 2013 (Docket No. 13-101496-AA); Troost v Kent Co Election Comm,
unpublished opinion of the Kent County Circuit Court, issued Feb 21, 2014 (Docket No. 14-1038-AA).
9 ___ Mich App ___; ___ NW2d ___ (2018) (Case No. 343334).
10 See footnote 6 supra.
11 MCL 15.263(2) and (3).
12 See, e.g., Herald Co v Bay City, 463 Mich 111; 614 NW2d 873 (2000).
13 MCL 41.2(4).
14 MCL 125.3407.
15 Dalton Township Zoning Ordinance, Section 20.1.

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Here we go. The letter begins.

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Dear Commissioners:
As legal counsel for Tony Barnes, I am writing to explain why the recall petition filed against him on July 16 does not satisfy the “clarity” or “factuality” requirements in the Michigan Election Law.
The petition relates to a zoning enforcement action that Dalton Township filed in order to abate unlawful commercial retail activity (namely, a farmer’s market) in a residential zoning district. The petition language states as follows:
On May 8th 2019, Dalton Township filed an injunction for a temporary restraining order, as well as a lawsuit against Hidden Creek Farm. No vote was taken for either of those actions at any public meeting prior to that. Both of these actions are a direct violation of the Michigan Open Meetings Act. It is the job of the Township Supervisor (Tony Barnes) to see to it that the Township acts in compliance with applicable laws, which he failed to do.

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Notice how this lawyer is saying the lawsuit is about zoning enforcement. It's funny because Tony Barnes has lied about that repeatedly, and stated that it was about safety, not zoning. That's in addition to telling people that the township wasn't suing the farm. Not to mention that Tony Barnes coordinated the attack with his friend Ken Wentworth, so that they both sued the farm on the same day in their attempt to destroy the farm. Section 9 of the lawsuit that Dalton Township filed against Hidden Creek Farm says that they can't have any farm animals on the property. And obviously, Tony Barnes and the township just don't care at all about the Michigan Right to Farm Act.

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As explained in detail below, this language:
1. Does not “clearly” state a reason for recall “based on the officer’s conduct,” because the first three sentences pertain to actions taken by the Township as a whole rather than the officer in question. Only the fourth sentence mentions Mr. Barnes, but it fails to identify his role in the events described.
2. Is not “factual” — as that term was recently interpreted by the Court of Appeals in Hooker v Moore — because the assertion that the Township violated the Open Meetings Act is a legal conclusion rather than a statement made “in terms of a factual occurrence.”

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This is a genius way to get around any government accountability. Since the government is multiple people, then no single person is responsible for anything, so you can't Recall anyone. Genius. I'm sure government officials would agree, as it protects them from any accountability. And, it's a fact that no meeting was held before the restraining order, and that no meeting was held about the lawsuit.

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Further, it is worth noting that the legal assertion in the petition is false, because no violation of the Open Meetings Act occurred. Unfortunately, in light of the Court of Appeals’s decision in Hooker v Moore,1 false statements are no longer a valid basis for rejecting a recall petition.2 Nevertheless, the petition against Mr. Barnes suffers from other defects that require this Board to reject it.

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Notice how Tony's lawyer is even implying that the Court of Appeal's decision on the Hooker v Moore case is wrong. Smart. And, I showed information before about the Open Meetings Act violations.

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Clarity Requirement
The Michigan Election Law provides that a recall petition must “clearly” state each proposed reason for recall, which “must be based upon the officer’s conduct during his or her current term of office.”3 This requirement is designed to ensure that both voters and the elected official are able to understand the charges asserted. Accordingly, the language in a petition must identify the “specific character and instance of official misconduct.”4

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This did occur during Tony's term of office. I noted above that it's easy to understand. And, I pointed out the misconduct.

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Applying these principles, a seminal case from the Court of Appeals rejected a petition alleging that an official acted with “incompetence in administering his/her duties as an elected official and in a manner not conducive to the better interests of the residents of the City of South Lyon.”5 In a more recent example, the State Board of Election Commissioners rejected a petition against former Governor Snyder that alleged “mishandling of the Flint water crisis.”6 The Board found the word “mishandling” to be unclear because it did not specifically communicate what Governor Snyder did or failed to do.

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Yes, we the not-very-powerful citizens are aware that it is almost impossible to get the government to allow the citizens to hold the government accountable.

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The petition at issue here similarly fails to identify the specific conduct for which Mr. Barnes is being targeted for recall. The first three sentences of the four- sentence petition do not even mention Mr. Barnes, but instead refer to actions taken by the “Township” as a whole. According to the petitioner, the Open Meetings Act was somehow violated when the Township filed a lawsuit without an official vote by the Township Board to authorize the suit. The fourth sentence of the petition then seeks to link Mr. Barnes with the purported violation by stating: “It is the job of the Township Supervisor (Tony Barnes) to see to it that the Township acts in compliance with applicable laws, which he failed to do.”

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I think the lawyer is actually making a pretty strong case here that the township officials really don't have to follow any laws, or at least can't be held accountable for breaking them. The township officials in Dalton Township obviously agree, and also agree that tyranny is good. I disagree.

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The petition’s vague reference to Mr. Barnes’s purported “failure” is similar to the rejected petition against Governor Snyder. The petition does not give any indication of what Mr. Barnes actually did or failed to do. Is the petition suggesting that Mr. Barnes unlawfully met with other Township Board members outside of an open meeting and collectively decided to file the lawsuit? Or is it alleging that other Board members conducted an illegal meeting, and that Mr. Barnes became aware of the meeting after the fact and failed to take corrective action? Or is it alleging that Mr. Barnes filed the lawsuit on his own without a vote of the full Township Board, and that doing so somehow violated the Open Meetings Act? These possibilities are all quite different from one another, yet they are all plausible based on the language in the petition. Accordingly, the petition fails to “clearly” state the reason for recall, and it should be rejected on that basis.

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This is the most interesting section so far. The lawyer is actually giving us options of what the illegal activity on the part of Dalton Township and Tony Barnes might have been. How exactly would we know if secret meetings occurred? Does the lawyer think that I should have planted a spy on the township board so I could have information like this available? That's probably normal in his world, but in my world that just happens on tv shows. I would love to know what evil things are happening in secret with the Dalton Township Board. I would like to have such a good lawyer as Nick Curcio on the side of good instead of evil. But in this case the side of evil has more money, so Nick works for them.

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Factuality Requirement
In 2012, the Legislature amended the Election Law by adding a requirement that the reasons for recall must be “factual” in addition to being “clear.”7 Many initially interpreted this requirement to mean that the allegations in a recall petition must be truthful and factually accurate, as opposed to being false.8 In Hooker v Moore, the Court of Appeals rejected that interpretation and opted for one more favorable to petition sponsors. According to the Court, a reason for recall satisfies the “factuality” requirement so long as it is “stated in terms of a factual occurrence.”9

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No meeting being held on these matters is a factual occurrence. You can check the meeting minutes. Notice that the Legislature passed a law that made it harder to recall... the Legislature. Luckily the Court of Appeals was just and on the side of the people and did what it could for the citizens of Michigan. Good job Court of Appeals.

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While there have so far been few occasions to apply the Court’s new interpretation, the State Bureau of Elections has released a guidance document suggesting how it might work in practice.10 In particular, the guidance document includes several examples of petitions that were rejected because they contain subjective, opinionated commentary rather than pure facts. In one example, the Board of State Canvassers rejected a petition because it “purported to reflect the motivation and state of mind of certain individuals,” stating that they had taken action “by reason of their intimate professional relationship and knowledge of” the elected official who was being recalled. In another example, the Board rejected a petition because the it prefaced a quote from an elected official with an opinionated comment that the quote constituted an admission of failure. In both cases, the petitions were later approved once the sponsor removed the subjective commentary and focused solely on factual occurrences.
Here, the third sentence of the petition is not “factual” because it states the opinion of the petition sponsor on an issue of law (i.e., whether the Township violated the Open Meetings Act), rather than describing factual occurrences. This type of subjective commentary violates the factuality requirement, even as narrowly interpreted in Hooker v Moore.

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(The type in there is Nick's.) Notice how the lawyers and politicians play the delay game, just like I mentioned before. And, I already showed the quotes from the Open Meetings Act.

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Inaccuracy of Purported Open Meetings Act Violation
As a final matter, although inaccuracies are no longer a valid basis for rejecting a recall petition, it is worth explaining why there is no plausible argument that the events described in the petition constitute a violation of the Open Meetings Act.
The Open Meetings Act generally requires that “all decisions of a public body shall be made at a meeting open to the public,” and that “all deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public.”11 The term “public body” refers to collective entities — like the Township Board — and does not include individual government officials or employees.12

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The lawyer is literally making the case that the township board can violate laws and no one can be held accountable. And, here's the scary part, maybe he's right. Maybe there is no actual way to stop the township from breaking laws and violating people's rights. Because it's a group, no individual is responsible, which means they can do anything they want to you and you can't do anything about it. It's like a bully on steroids. Of course, maybe there will be some just judges on the side of the people. Maybe.

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Here, the petition sponsor appears to be under the mistaken impression that filing a zoning enforcement action requires the approval of the Township Board, and that the Township Board therefore must have voted to approve the action outside a public meeting. This is simply not the case. State and local law authorize various Township officials and employees to file enforcement actions on behalf of the Township without any need for a vote of the Township Board. For example, state law provides that the supervisor of a township is “the agent for his or her township for the transaction of legal business, by whom a suit may be brought or defended.”13 With respect to zoning violations, it further provides that the “legislative body shall in the zoning ordinance Enacted under this act designate the proper official or officials who shall administer and enforce the zoning ordinance.”14 In turn, the Dalton Township Zoning Ordinance designates the zoning administrator to “administer the zoning ordinance and to enforce the provisions contained herein.”15 Accordingly, both the supervisor and the zoning administrator have the authority to file zoning enforcement actions without any need for a vote taken in a public meeting.

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And there it is folks. The nail in the coffin of freedom and liberty. The township can destroy you, and according to this lawyer there is nothing you can do about it. While you're driving into work tomorrow you could get a phone call that says you have a court appointment in a half hour because Dalton Township is suing you for whatever they want. No need for a meeting. No need to let you know, just like Tony did with the farm. No ability to hold them accountable. That's pure power. The type of power that a corrupt government official like Tony Barnes wants, and maybe the type of power that he has. Hidden Creek Farm isn't the only place that he has been harassing like this, more and more people keep coming forward. And if he's allowed to have that power, then you truly have no property rights. Just like Dalton Township acts now.

Also notice how Tony's lawyer is trying to set Grabinski up as a scapegoat. I think I predicted that in one of my early articles. Good move Tony Barnes, very devious. And of course Grabinski isn't elected, she was appointed by Tony. And she could be fired by Tony, so he has power over her. The threat of losing her job if she doesn't do what he says.

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Conclusion
To conclude, we respectfully request that this Board reject the proposed recall petition because it violates both the “clarity” and “factuality” requirements in the Michigan Election Law. Mr. Barnes and I will be in attendance during the hearing on July 30 and can answer any questions you may have.
Sincerely,
Nick Curcio

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Can David win against such a Goliath?

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Read more of what Jeff deems worthy of attention at: http://www.JeffreyAlexanderMartin.com