Jack Lessenberry: A warning from Frank Kelley

Jack Lessenberry

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Jack Lessenberry

October 23, 2011

BY JACK LESSENBERRY, Columnist ---- The Record Eagle Mon Feb 20, 2012, 02:27 PM EST

LANSING — Frank Kelley is worried about the future. Not his future -- ours. He thinks our constitutional rights are being taken away, and last week, decided to do something about it.

The longest-serving state attorney general in American history sent a lengthy letter to opinion leaders in the state.

"I am writing you today because over the last few years, the courts have eroded many basic protections of our laws and constitution that I fought to uphold," Kelley wrote.

Those include, he continued, essentially weakening the principle of one-man, one-vote through outrageous gerrymandering.

He's even more dismayed at a Michigan Supreme Court ruling upholding a law requiring voters to show photo ID at the polls, something he argues is both unconstitutional and being done only to discourage Democratic-leaning people from voting.

And he thinks the new law taxing pensions is a blatant violation of the Michigan Constitution -- and notes that this has nothing to do with today's partisan politics, or how he feels about Gov. Rick Snyder. Indeed, Kelley issued a formal opinion saying pensions couldn't be taxed back in 1991, and courts then agreed.

Kelley's letter is noteworthy for a number of reasons. When an attorney general issues a legal opinion, it is, as he notes, "binding on the state and its agencies, unless overruled by a court of record." And nobody has ever issued as many official opinions about the constitutionality of both proposed and passed Michigan laws as the "eternal general," Frank Joseph Kelley.

Naturally, that's partly because nobody ever has served as long. Kelley spent 37 years as Michigan attorney general (1962-1999) longer than anyone in any state in U.S. history.

He was elected 10 times, and stepped down voluntarily, though he legally could have served one more term. Now nearly 87, he is still healthy, vigorous, and gradually phasing out of the law and lobbying firm he co-founded after retiring, KelleyCawthorne.

"I don't have any problems; I've been successful enough since leaving office that I can keep voting like a Democrat and like a Republican," he likes to say. But he isn't happy about the way things are going. "During my time in office, I truly tried to serve the people," he writes. "The best report card I could have is that during my time in office, very few of my opinions were ever overturned." They are overturning them now, however. He is especially angry over the Michigan Supreme Court's ruling in 2006 that it was perfectly legal to require citizens to require photo ID before voting.

"I held this to be an unconstitutional interference with the absolute right for citizens to vote," he writes. He issued that ruling back in 1997. Those who wanted the requirement claimed it would prevent fraud. He said that was nonsense.

"I always did my homework," Kelley said, adding that "before I wrote my opinion, the director of Michigan elections informed me on more than one occasion that there never had been a case of voter fraud at a voting place in the history of Michigan." The former attorney general approvingly quoted a recent New York Times editorial, which said "the only reason Republicans are passing these laws is to give themselves a political edge by suppressing Democratic votes."

Studies have shown that poor and less-educated voters, and those who may owe taxes, say, are often reluctant to show picture ID, fearing incorrectly that elections workers may report them.

That train, however, has clearly left the station. The Michigan Supreme Court has yet to rule on the constitutionality of the pension tax passed earlier this year. Kelley doesn't object to the state seeking more revenue. But this is, he feels, an illegal way to do it.

Twenty years ago, "I reviewed this matter and concurred with other legal minds who came before me. I held that the accrued financial benefits of a pension plan were a contract obligation under the State Constitution of 1963 ... and could not be diminished or impaired by the Legislature."

"This law should clearly be struck down," Kelley says. "But it is now before the Michigan Supreme Court, which the University of Chicago law school has called the most partisan in the nation.

"Unfortunately, this threatens to be yet another example of the taking away of a clear constitutional right."

What bothers the former attorney general most, however, is not a state case, but a federal one -- the U.S. Supreme Court's decision last year in the Citizens United case that said corporations could engage in essentially unlimited campaign spending.

"Frankly, I am strongly in favor of private enterprise. (But) I have always held that our country and its Constitution were created for our citizens' freedom and protection, not for the advancement of the interests of private, for-profit corporations," he argued.

Corporations are not people, he argued. "Their charters don't require them to protect the health and welfare of society's citizenry. It is the government's duty to do that," he added.

After I read the letter, I talked with the author. He said he wrote it because, simply put, "I want the future citizens of America to enjoy the same freedoms we knew."

Over the last decade, he thinks the average citizen has suffered "a loss of control (over) his or her destiny and freedom."

Whether you agree or not, that certainly bears thinking about.

Jack Lessenberry's email address is bucca@aol.com.