Even at Michigan Supreme Court, State Continues to Duck Central Question of Whether Home-Based Day Care Providers Are Government Employees

In Loar v. DHS, state’s meager 12-page Supreme Court brief concedes the main issue by never addressing it, notes Mackinac Center attorney

For Immediate Release
Tuesday, May 11, 2010
Contact: Patrick J. Wright
Director
Mackinac Center Legal Foundation

MIDLAND — In a filing yesterday with the Michigan Supreme Court in the lawsuit Loar v. DHS, Mackinac Center attorney Patrick J. Wright lodged a response to a Department of Human Services brief that he later described as a "thin hodge-podge of technicalities." The filing by Wright, director of the Mackinac Center Legal Foundation, called on the Supreme Court to immediately rule in favor of the home day care business owners the Mackinac Center represents in the case.

The Center's lawsuit seeks to end the DHS' illegal diversion of so-called "union dues" from state subsidy checks that home-based day care providers receive for watching children from low-income families. The supposed "dues" are funneled to a government employee union that purports to represent more than 40,000 of Michigan's home-based day care providers, even though they are private business owners and independent contractors.

"Shockingly, the DHS has once again failed to discuss the central question in this case, namely, Are home day care providers government employees?" said Wright. "By repeatedly refusing to address the issue in its pleadings, the state has effectively waived the right to argue it any longer. We have therefore asked the Michigan Supreme Court to peremptorily reverse the Court of Appeals' decision and rule for our clients.

 "In fairness," added Wright, "courts are very hesitant to rule summarily in a case that the defendants have never properly argued. Recognizing this, we've also suggested that the Supreme Court either remand the case to the Court of Appeals for a full hearing or require the DHS to write a brief that answers the central question. Either way, the DHS faces an uphill battle if it eventually claims home day care providers are public employees. On its own website, the DHS clearly tells them several times in separate places that they are not public employees."

Wright also points out that home-based day care providers were described as "independent contractors" by a lobbyist for the American Federation of State, County and Municipal Employees in a remarkably candid e-mail recently obtained through the Freedom of Information Act. The lobbyist, who is apparently familiar with the unionization and the surrounding negotiations, also stated that the unionization effort was undertaken with the approval of the "Executive Office" — i.e., the office of Gov. Jennifer Granholm.

The DHS' filing, which never discusses the merits of the suit, calls on the Supreme Court not to hear the case. In response, Wright notes that the length of the DHS' filing — a meager 12 pages, despite an allotment of 50 — suggests the DHS has no argument to make on the merits. 

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