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Thread: Constitutional Right to Library Access says Michigan Public Library Trustee Manual

  1. #1
    Regular Member MarineSgt's Avatar
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    Constitutional Right to Library Access says Michigan Public Library Trustee Manual

    http://www.michigan.gov/documents/ha...4_107173_7.pdf
    Michigan Public Library Trustee Manual (2004 Edition) says on page 6:


    Michigan is unique in granting its citizens constitutional right of access to library
    services. Article 8, section 9 of the state constitution states, in part:

    “The legislature shall provide by law for the establishment and support
    of public libraries which shall be available to all residents of the state
    under regulations adopted by the governing bodies thereof ...”

    This provision identifies the library board’s authority to adopt policies or
    regulations. When exercising this power, the board should be aware that there is an
    inherent requirement that the regulations be reasonable. The board initially determines what is reasonable, but it is recommended that the library’s legal counsel review all policies before board approval.


    Under the acknowledgments is this little gem:

    We are especially grateful to Lance Werner for his contributions regarding legal aspects of the library world.


    It seems the judge in the CADL and MOC case is over riding multiple Constitutional rights.
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Regular Member MarineSgt's Avatar
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    Page 15:

    D. Liability and Indemnification

    Although suits brought against library board members are not common, members
    are at risk and need to protect themselves. Even if a lawsuit is without merit, the library
    may still incur costs to defend its board against legal action.

    If advisory, the library board should check with the local governing authority to
    determine if members are shielded from personal liability. Governing boards can protect themselves by purchasing directors and officers liability insurance for members and employees.

    Liability suits against library trustees can arise from:
    • Violations of the Open Meetings Act or the Freedom of Information Act;
    • Acts in excess of authority;
    • Error in acts;
    • Conflict of interest;
    • Nonfeasance;
    • Negligence; and
    • Intentional violations of civil law against a person or their property.
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Campaign Veteran smellslikemichigan's Avatar
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    good find, devil dog
    this, in conjunction with lance's letter regarding mpaa ratings, should pretty much shut them down.
    Last edited by smellslikemichigan; 03-14-2011 at 10:53 AM.
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    Regular Member MarineSgt's Avatar
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    https://www.msu.edu/~perkin41/gpw/ex...FPanalysis.pdf
    In a request for proposals for internet access CADL says:

    3.1.2 Pricing
    The Capital Area District Library is a municipality of the State of Michigan and
    is exempt from Michigan Retail Sales and Use Taxes and Federal
    Manufacturer’s Excise Tax. The price quotations will therefore exclude taxes.
    CADL shall furnish a tax exemption certificate, if required.
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Regular Member MarineSgt's Avatar
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    Another Gem from Mr. Werner

    http://blog.librarylaw.com/librarylaw/2006/04/post.html
    April 21, 2006
    Can public libraries in Michigan charge for Internet Access?

    Hear hear for Michigan libraries. Library of Michigan Library Law Specialist Lance Werner shares his response to this question below:

    Hello, Lance,

    You may remember my inquiry last year on library fees, stemming primarily from a proposed fee on public Internet usage. You replied in part:

    The imposition of fees for computer usage is impermissible as a matter of public policy. The reason for this is that residents in the jurisdictional and contractual boundaries of the library's service area have already paid for library services. The imposition of a fee would in effect constitute a double charge and could be viewed as an unauthorized tax. All governmental entities and subdivisions of state and local government can only act as authorized by law. Since the library and library board is a subdivision of local government, statutory authorization is a prerequisite to action. There is no statutory authorization to impose a fee for use of library materials and services on those that have already paid for library services and materials. Based on these considerations the library would be well advised not to impose a fee for computer usage.

    This fee was one of several scheduled for implementation beginning in January. I shared your reply with City administration, and the question raised was how such a fee would differ from charges paid for video or DVD rental, photocopies, or anything else. There were other implications specific to the public Internet fee; consdquently that fee was shelved for further consideration prior to the start of the City's FY 2006-07, which begins in July. We did begin assessing a minimal charge for special youth programming ($1.00 per resident and $2.00 per non resident) in January. City administration felt that your comments prohibited the charging of user fees for any aspect of library service.

    I appreciate that you can't offer me a legal opinion, and that decisions for the ********* Public Library need to be made in consultation with our City Attorney. As we discussed at the time though, I'd be interested in your thoughts especially with regard to how a proposed Internet fee would differ from other fees that the library does and might charge.

    Thank you.
    ---------

    Click continuation for Lance's response:

    RESPONSE: Hello ****, I hope all is well. Previously, you asked about any legal authority that makes it impermissible to charge residents fees for library services. You now ask if I could distinguish between different types of proposed fees.

    While I am unable to give you legal advice or act as your library's legal counsel in any capacity, I can furnish information that may shed some light on your question.

    Before discussing the issue of how to distinguish different types of fees it is first useful to consider how Michigan law governs resident fees for library services.

    The imposition of fees for library services has been addressed numerous times under Michigan law. As it happens there is a great deal of legal authority against the imposition of resident fees for library services.

    Michigan jurisprudence concerning the establishment and funding of free public libraries predates statehood. Since the beginning of the State, Michigan laws have not only authorized the creation of public libraries but have also authorized state subsidization of free public library services for Michigan residents. Article X, Section 4 of the Michigan Constitution of 1835 states:

    As soon as the circumstances of the state will permit, the legislature shall provide for the establishment of Libraries, one at least in each township*the clear proceeds of all fines assessed in the several counties for any breach of the penal laws, shall be exclusively applied for the support of said libraries.

    The above language was also included in the Constitution of 1850, in Article XIII, Section 12.

    The intent of the Legislature that there shall be free library service for the people is evidenced by language found in the City, Village and Township Libraries Act, 1877 PA 164, MCL 397.201 et seq. The title of this law provides that it is an act to:

    *authorize cities, incorporated villages, and townships to establish and maintain, or contract for the use of, free public libraries and reading rooms*

    Moreover, section 6 of 1877 PA 164, MCL 397.206, states:

    Every library and reading room established under this act shall be forever free to the use of the inhabitants where located...

    In addition, section 13 of 1877 PA 164, MCL 397.213, provides:

    Notwithstanding a contrary city, village, or township charter provision, a township, village, or city adjacent to a township, village, or city that supports a free public circulating library and reading room under this act may contract for the use of library services with that adjacent township, village, or city.

    This section provides that even if a library is established via city charter, it still must maintain its status as a free public circulating library.

    These sections are still good law today.

    Over the years the language concerning the provision and funding of library services for Michigan residents has changed somewhat from what was articulated the 1835 Constitution; however, the original intent has endured.

    The current constitutional underpinnings for library services is currently found in Article VIII, Section 9 of the 1963 Constitution, which states in relevant part:

    The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state under regulations adopted by the governing bodies thereof.

    As with every Michigan constitution and law since 1835, contemporary law provides mechanisms not only for the creation of public libraries, but also for the State subsidization of free public library services.

    The Legislature enacted specific laws to give effect to the "support"language of Article VIII, Section 9 of the Michigan Constitution of 1963. These laws include the Distribution of Penal Fines to Public Libraries Act (Penal Fines Act), 1964 PA 59, MCL 397.31 et seq., and the State Aid to Public Libraries Act (State Aid Act), 1977 PA 89, MCL 397.551 et seq.

    Section 1 of the Penal Fines Act, MCL 397.31, indicates:

    "Public library" means a library, the whole interests of which belong to the general public, lawfully established for free public purposes*

    Section 6 of the Penal Fines Act, MCL 397.36, provides:

    The penal fine moneys when received by the proper authorities shall be applied exclusively to the support of public libraries and to no other purpose*

    Legislative intent demonstrating a preference for "free" public libraries is also evidenced by section 2 of the State Aid Act, MCL 397.552, which states:

    "Public library" means a library that is lawfully established for free public purposes by 1 or more counties, cities, townships, villages, school districts, or other local governments or a combination thereof, or by a public or local act, the entire interests of which belong to the general public.

    Conversely, on the matter of non-residents, of note is section 11a of the State Aid Act, MCL 397.561a, which indicates:

    A library may charge nonresident borrowing fees to a person residing outside of the library's service area...

    The relationship between library services and fees was recently considered by the Legislature in 2005, during passage of Public Act 60 of 2005. During legislative deliberations, a decision was made to omit a provision, the so-called section 12(g), which may have limited access to library services.

    Based on these laws and the history of public libraries in Michigan, it is clear that people residing within a public library's jurisdictional service area (residents) and those residing in contractual service area (persons served by library service contract) are entitled to free library services.

    It would therefore be impermissible in Michigan for free public libraries to impose a fee for library services both on residents and on those persons residing in any contractual service areas served by the library.

    On a related note, it is useful to highlight that the Michigan Attorney General has addressed the issue of non-resident fees for library services.

    Attorney General Frank J. Kelley discussed this issue in two opinions.

    In opinion no. 5739 dated July 15, 1980, Attorney General Kelley opined:

    ***In particular, the framers intended that local libraries may adopt reasonable rules regarding accessibility and availability. . . in cases where the applicant for a book or periodical was not an immediate resident of the locality.***

    Attorney General Kelley had occasion to revisit this issue on October 17, 1983, in opinion no. 6188, wherein he posited:

    The governing body of a public library may, pursuant to Const 1963, art 8, Sec. 9, adopt reasonably regulations imposing fees for borrowing privileges upon nonresident users who are not entitled to the services of the library pursuant to a contract entered into with the governmental unit of the borrower's residence, provided that fees imposed reasonably relate to the costs incurred by the library in making borrowing privileges available to such nonresidents and provided that the fees are not disproportionate to the cost, direct or indirect, of issuing a library card, facilitating the return of loaned books, and the attendant cost of administration.

    and also:

    It is demonstrable that local library boards are not expressly authorized by Const 1963, art 8, Sec. 9 to promulgate rules imposing fees for the general support of public libraries.

    The opinions of Attorney General Kelley show that while it is impermissible to impose a fee for basic library services on either residents or on people residing within a contractual service area, it is legal to require a fee for library use from non-residents. Also, any non-resident fee required by a library for the provision of library service must bear some relation to the cost of providing the requested service.

    With respect to your query as to how I suggest you distinguish between fees, I have the following comments. This question is an offshoot of another question, which is what constitutes library service. Of course library service is interpreted in the broadest sense and includes the traditional notion that library service means the circulation of materials. It is also true that library service has been interpreted historically to mean all service rather than ala carte offerings.

    To discuss what constitutes library service, it is also necessary to determine what "materials" are. Materials include traditional library offerings such as books and the like. However, a strong case can be made that materials also include more modern offerings such as cassette tapes, CD's, videocassettes, DVD's, and possibly software. It can be further posited that among Michigan's public libraries and possibly the public, which they serve, the notion of materials includes all library informational offerings, including the Internet.

    The determination of what constitutes library service at your library is something that I cannot decide. It is a decision that must be made by the library's governing body in accordance with the applicable laws.

    Additionally, it is important to consider the implication of imposing fees by government. Quite often a fee is considered a tax by another name when imposed or required by government. Limitations on the power to tax by units of local government is provided by Article IX, Section 31 of the 1963 Constitution, which states:

    Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter*without the approval of a majority of the qualified electors of that unit of Local Government voting thereon.

    Hence, a library board may not be able to adopt a policy to charge residents a fee for library services in the absence of express legal authority to do so. Hanselman v Kileen, 419 Mich 168; 351 NW2d 544 (1984).


    Even if a charter provision were adopted authorizing a fee to be imposed on residents for library service, it would be contrary to Michigan law requiring free library service. Finally, it is long held within Michigan jurisprudence that it is not possible to amend law through implication. An amendment requires change to any other ancillary or related law affected by the amendment.

    Again, the Library of Michigan, Michigan Department of History, Arts and Libraries lacks authority to give legal advice to any person or agency. The Library of Michigan simply furnishes informational and comment services.

    The discussion above is intended as an informational service only.

    I hope that this helps.

    Sincerely,

    Lance

    Lance M. Werner
    Library Law Specialist Library of Michigan
    Michigan Department of History, Arts and Libraries
    702 West Kalamazoo Street Lansing, MI 48909

    Phone: (517) 373 - 1299

    Fax: (517) 373 - 4480

    e-mail: wernerl @michigan.gov
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Regular Member esq_stu's Avatar
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    Quote Originally Posted by MarineSgt View Post
    When exercising this power, the board should be aware that there is an
    inherent requirement that the regulations be reasonable. The board initially determines what is reasonable, but it is recommended that the library’s legal counsel review all policies before board approval.
    This pertains to regulations regarding operating a library (lending books, charging fees and fines, hours of operation, etc.) and not things unrelated to operating a library, such as health, safety, and welfare, which are the province of the state and local governments and not libraries.

    Just saying . . .

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    Regular Member MarineSgt's Avatar
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    HANSELMAN v. WAYNE CO. WEAPON BD. 419 Mich. 168 (1984) 351 N.W.2d 544

    HANSELMAN v. WAYNE CO. WEAPON BD.

    419 Mich. 168 (1984)

    351 N.W.2d 544
    HANSELMAN
    v.
    WAYNE COUNTY CONCEALED WEAPON LICENSING BOARD

    Docket No. 68736, (Calendar No. 10).

    Supreme Court of Michigan.

    Argued March 7, 1984.

    Decided July 19, 1984.
    John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the defendants.
    Amicus Curiae:
    Frank J. Kelley, Attorney General, Louis J.Caruso, Solicitor General, and Michael J. Moquin, Assistant Attorney General, for the Attorney General.

    Excerpt:

    For, as this Court has repeatedly stated, local governments have no inherent powers and possess only those limited powers which are expressly conferred upon them by the state constitution or state statutes or which are necessarily implied therefrom. Alan v Wayne County,388 Mich. 210; 200 N.W.2d 628 (1972); Mason County Civic Research Council v Mason County,343 Mich. 313; 72 N.W.2d 292 (1955). Therefore, all action authorizing any board ultimately garners its justification from an exercise of state power. Consequently, the fact that the board was authorized by a statute does not constitute a characteristic determinative of whether the board is a "state * * * board".
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Regular Member MarineSgt's Avatar
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    AG Opinion No. 7189

    http://www.ag.state.mi.us/opinion/da...0s/op10265.htm

    STATE OF MICHIGAN

    MIKE COX, ATTORNEY GENERAL

    LICENSES AND PERMITS:

    CONCEALED WEAPONS:

    MENTAL HEALTH:
    Authority of concealed weapon licensing boards to diagnose mental illness

    The Concealed Pistol Licensing Act, MCL 28.421 et seq, does not confer on a county concealed weapon licensing board the power to make its own medical diagnosis of mental illness in the course of determining an applicant's eligibility for licensure under that act. However, a county concealed weapon licensing board has the authority to review records and other evidence in the course of fulfilling its responsibility to determine whether an applicant for a concealed pistol license has been diagnosed with a mental illness at the time the application is made.

    Opinion No. 7189

    March 15, 2006

    Honorable Fred Miller
    State Representative
    The Capitol
    Lansing, MI

    You ask whether a county concealed weapon licensing board (Board) has the power to interpret medical and other records in order to make a diagnosis of mental illness when reviewing an application for a license to carry a concealed pistol.

    The Concealed Pistol Licensing Act (Act), 1927 PA 372, MCL 28.421 et seq, regulates the carrying of concealed pistols. The Act prohibits a person from carrying a concealed pistol unless the person has been licensed in accordance with the requirements of the Act. Among these is the requirement that the applicant "does not have a diagnosed mental illness at the time the application is made regardless of whether he or she is receiving treatment for that illness." MCL 28.425b(7)(l).

    The Board is required by the Act to determine applicant eligibility. MCL 28.425b(7). The Board is an administrative agency created by statute, and as such, it has "no inherent powers and possess[es] only those limited powers which are expressly conferred upon [it] by the state constitution or state statute[ ] or which are necessarily implied therefrom." Hanselman v Killeen, 419 Mich 168, 187; 351 NW2d 544 (1984). The principles that govern the interpretation of an agency's powers are expressed in Pharmaceutical Research & Manufacturers of America v Dep't of Community Health, 254 Mich App 397, 403-404; 657 NW2d 162 (2002). The Court of Appeals stated that, in addition to their express powers, administrative agencies may exercise powers that are granted by necessary or fair implication to fully effectuate the express powers:

    Statutes are the primary source of administrative power; thus, whether an administrative agency has a particular power is typically a matter of statutory construction. Consistent with the goal of effectuating legislative intent, the power conferred includes that which is expressly granted and that which is granted by necessary or fair implication, i.e., "powers necessary to a full effectuation of authority expressly granted." [Citations omitted.]

    Similar statements of this principle have been adopted in other cases, including Dep't of Public Health v Rivergate Manor, 452 Mich 495, 503; 550 NW2d 515 (1996), Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich 728, 736 n 4; 330 NW2d 346 (1982), and Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951).
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Regular Member MarineSgt's Avatar
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    Quote Originally Posted by esq_stu View Post
    This pertains to regulations regarding operating a library (lending books, charging fees and fines, hours of operation, etc.) and not things unrelated to operating a library, such as health, safety, and welfare, which are the province of the state and local governments and not libraries.

    Just saying . . .
    Thanks... I'm just throwing some things out I found that might help. Take or leave them...
    Someone who can't be trusted to walk free in public with a firearm shouldn't be walking around free.

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    Its funny to me, that the same library and lawyer can take opposite sides of an issue when firearms become the subject at hand.

  11. #11
    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by stainless1911 View Post
    Its funny to me, that the same library and lawyer can take opposite sides of an issue when firearms become the subject at hand.
    Doesn't surprise me at all... if the issue "inconveniences" them, even if ONLY in their mind, then it should be fought with everything they've got. If they agree with it, they apply the same attitutude to fight for the issue. They don't see the inconsistency, and never will.
    The judge did the same thing: let's violate the 2nd amendment but if the 1st and 4th are violated, there may be a problem.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

  12. #12
    Michigan Moderator DrTodd's Avatar
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    GREAT find, MarineSgt. There is some "chaff" here, but also some really good "wheat".

    I remembered the issue from the news some time ago, but thought it was Massachusetts or someplace out east. Thanks for finding these items.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Is Dean watching this? This stuff could be very useful to him.

  14. #14
    Michigan Moderator DrTodd's Avatar
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    Yep, I'm sure he is. He sent me a pm with a question within a few hours after I posted some things.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    That's good to know.

  16. #16
    Regular Member eastmeyers's Avatar
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    Quote Originally Posted by stainless1911 View Post
    Its funny to me, that the same library and lawyer can take opposite sides of an issue when firearms become the subject at hand.
    emotions
    "Bam, I like saying bam when I cite something, in fact I think I shall do this from here on out, as long as I remember.
    Bam!" - eastmeyers

    "Then said he to them, But now he that hath a purse, let him take it, and likewise his sack: and he that hath no sword, let him sell his garment, and buy one."
    Luke 22:36
    God Bless

  17. #17
    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by stainless1911 View Post
    That's good to know.
    est_stu is also our attorney and he's here too.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    I wondered who he was, I gathered he was a lawyer, but wasn't quite sure where he stood with us. Welcome stu.

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