The MC: The Mackinac Center Blog

October 2, 2015 MichiganVotes Weekly Roll Call Report

Electronic proof of insurance and criminal justice reform

Now with one click you can approve or disapprove of key votes by your legislators using the VoteSpotter smart phone app. Visit and download VoteSpotter today!

House Bill 4193, Allow electronic "proof of insurance" for drivers: Passed 37 to 0 in the Senate

To revise the state’s no-fault insurance law to allow “proof of insurance” documents that motorists are required to have when driving to be an electronic communication from the insurance company visible on a mobile device. If asked a driver could be required to forward the information to a designated site.

Who Voted “Yes” and Who Voted “No”

House Bill 4102, Appropriate money for State Police lawsuit settlement; Flint water system: Passed 30 to 5

To appropriate $7.725 million to settle a lawsuit over injuries sustained in a crash caused by a State Police car chase. Also, to make a $100 "placeholder" appropriation related to the possibility of changing Flint's municipal water supplier back to the Detroit system (which serves most communities in the metropolitan region).

Who Voted “Yes” and Who Voted “No”

House Bill 4713, Require “culpable mental state” for criminal conviction: Passed 106 to 0 in the House

To establish that (with some significant exceptions) if a law does not indicate whether a “culpable mental state” (“mens rea”) is required to establish guilt, the presumption will be that this is required, meaning that prosecutors must show that the defendant violated the law “purposely, knowingly or recklessly.” This would not be the case if a law explicitly imposes a “strict liability” standard. Under current law, many complex “administrative” offenses authorize criminal penalties for actions that a regular person would not know are illegal.

Who Voted “Yes” and Who Voted “No”

House Bill 4138, Authorize "presumptive parole": Passed 67 to 39 in the House

To require that parole be granted to prisoners who have served their minimum time if the person has a “high probability” under a "validated risk assessment instrument" of not being a risk to public safety, and also meets other criteria specified in the bill and current law, subject to a number of restrictions and exceptions.

Who Voted “Yes” and Who Voted “No”

SOURCE:, a free, non-partisan website created by the Mackinac Center for Public Policy, providing concise, non-partisan, plain-English descriptions of every bill and vote in the Michigan House and Senate. Please visit

September 25, 2015 MichiganVotes Weekly Roll Call Report

Food carts, nursing home over-regulation, voter approval for tax

Now with one click you can approve or disapprove of key votes by your legislators using the VoteSpotter smart phone app. Visit and download VoteSpotter today!

House Bill 4166, Require voter approval of county promotions tax: 35 to 2 in the Senate

To revise a law that allows counties to impose a 0.5 mill property tax without a vote of the people, for trade expositions, tourism promotion or to advertise the county’s “agricultural advantages.” The bill would change the law to require voter approval for such taxes, with a renewal vote required every five years.

Who Voted “Yes” and Who Voted “No”

Senate Bill 65, Repeal ban on for-profit nursing home hiring doctors: Passed 69 to 35 in the House

To allow for-profit nursing homes to employ a physician, dentist or other member of a medical "learned profession." Under current law only nonprofit nursing homes may have a doctor on staff, while for-profits are restricted to engaging doctors on a contract basis.

Who Voted “Yes” and Who Voted “No”

Senate Bill 64, Replace detailed nursing home regulations with "best practices" guidelines: Passed 67 to 37 in the House

To repeal sections of the extensive regulatory regime imposed on nursing homes, and instead establish that patient care policies, compliance procedures, outcome measures and more should be based on nationally recognized, evidence-based guidelines or best-practices (rather than detailed regulations promulgated by government agencies).

Who Voted “Yes” and Who Voted “No”

Senate Bill 144, Repeal inspection requirement for stands selling “low risk foods”: Passed 89 to 16 in the House

To give local health departments the option of requiring an "in-office consultation" rather than a facility inspection of a “temporary food service establishment” that serves only “low risk foods” as defined in the bill (examples include precooked hotdogs, popcorn, or ice cream).

Who Voted “Yes” and Who Voted “No”

SOURCE:, a free, non-partisan website created by the Mackinac Center for Public Policy, providing concise, non-partisan, plain-English descriptions of every bill and vote in the Michigan House and Senate. Please visit

Incentives and the Electricity Industry in Michigan

Gary Wolfram's recommendations for a better power market

Gary Wolfram, an economics professor at Hillsdale College and member of the Mackinac Center’s Board of Scholars, has just released a new report on Michigan’s electricity industry. The study was published by the Michigan Conservative Energy Forum and provides an overview of the history and current organization of this important industry.

Wolfram highlights a few troubling facts about Michigan’s electricity market. First, Michigan has the highest retail rates in the Midwest — a fact we’ve highlighted in the past. They are 25 percent higher than Illinois, the surrounding state with the lowest rates. Second, Michigan electricity was the least reliable among the Midwest states in 2013. The average outage per customer was 779 minutes per year, more than double the next highest figure in Minnesota.

The report also makes several recommendations for how to improve Michigan’s electricity market:

  1. Expand retail competition to put pressure on the public utilities (Consumers Energy and DTE) “to improve their production and reduce rates or face the loss of their customer base.”
  2. Structurally separate who owns the means of generation with who owns the means of distribution, creating “incentives for new and existing generators to innovate, in particular those in the renewable energy fields.”
  3. Let customers specifically purchase power produced through renewable energy sources.
  4. Require utilities to purchase power produced through renewable, co-generation and waste-to-energy sources at the “market price.”
  5. Use peak-load and other differential pricing mechanisms to encourage customers to use energy more efficiently.

There is sure to be much debate over the future of Michigan’s electricity market in the coming months. This new report is a solid overview of the main issues and provides recommendations that should be considered by policymakers. Although the industry is heavily regulated, individuals operating within it still respond to incentives, and Dr. Wolfram has given careful thought to how to improve those incentives to benefit Michigan rate payers.

How to Improve Economic Development Transparency

State considers changes to economic development disclosure

The state is looking to improve its transparency and is targeting its economic development reports, according to MIRS, a Lansing-insider newsletter.

The state received suboptimal ratings from the Public Interest Research Group and is seeking to improve its position. It is good that the administration is looking to make these programs more transparent. Under current policies, private companies will receive roughly $800 million in subsidies in the upcoming fiscal year, and taxpayers will not be allowed to know which companies are receiving their money.

The state’s legacy tax credit programs are the least transparent. Michigan is not signing any new tax credit agreements with firms, but nevertheless, is making good on the deals it made in the past. This amounts to hundreds of millions of dollars in foregone tax revenue and comes at a time when the state is trying to find $1.2 billion to improve the roads.

These corporate welfare deals are questionable in their effectiveness, but the lack of transparency about them is outrageous. Although this information used to be made public, the state has changed its mind in recent years, and now the receipt of these tax credits is considered confidential tax information and thus nondisclosable.

This information should be made public again. Taxpayers should also be able to get a project-by-project breakdown of estimated and actual jobs and costs, as we wrote with PIRGIM last year. It is about time that policymakers revisit this issue.

State Media Features Overcriminalization Fight

Mackinac Center partners with ACLU, others

The Mackinac Center is one of several groups hoping to save the state millions and increase the freedom of Michiganders by implementing common sense criminal justice reforms.

Focusing on the problem of overcriminalization (Michigan has over 3,100 crimes on the books), the Mackinac Center has pushed for reforms that would cut the number of crimes and limit the liability of people who unknowingly break them. Executive Vice President Mike Reitz recently discussed the recommendations on a panel in Lansing, covered by MLive:

Michael Reitz, executive vice president of free-market think tank Mackinac Center for Public Policy, said that over the years the legislature has over-criminalized actions that do not actually put the public at risk. He pointed to efforts to repeal old laws and a new focus on criminal justice issues.

The full article is available at MLive's website.

WLNS also covered the event, as did Bridge Magazine.

On Sept. 22, Mackinac Center Director of Research Michael Van Beek joined Frank Beckmann on WJR to discuss overcriminalization. A recording of that segment is available on their website.

Skorup Joins Steve Gruber for Forfeiture Discussion

Bills on forfeiture working through legislature

Civil asset forfeiture — the process of law enforcement confiscating money or possessions from civilians without charging them with a crime — has become an enormous problem in Michigan. The Institute for Justice has ranked Michigan's civil asset forfeiture laws among the worst in the country, but a package of bills in the legislature could help fix them.

Mackinac Center Policy Analyst Jarrett Skorup recently joined radio personality Steve Gruber on WJIM to discuss the process of civil asset forfeiture and how to make the system better for Michiganders.

For more information on civil asset forfeiture, visit

Michigan’s Freedom of Information Act

True freedom, information, and action?

“This is just a modernization of Michigan's FOIA Act — long overdue — to provide some additional standardization and transparency.” – State Sen. Mike Shirkey

Michigan’s Freedom of Information Act, passed in 1976 in the wake of the Watergate scandal, is meant to improve public access to government documents.

Sadly, the law has fallen behind the times and needs to be revised to better suit today’s new technologies and societal practices. The law still operates as if the communication and storage methods of 1976 were still widely used. For example, public agencies do not fully take advantage of online databases or e-filing methods.

While FOIA law has been revised roughly a dozen times since its inception, a reform enacted in 2014, Public Act 563 of that year, brought significant changes including clearer standards on the fees that public agencies may charge in response to FOIA requests. Previously, there were only weak limits on how much Michigan public agencies were allowed to charge to fulfill a FOIA request. This left the door open for abuse; public agencies could overcharge on shipping, handling, and research fees.

For instance, the Mackinac Center’s Michael LaFaive submitted a FOIA request in March 2015 to the Michigan Liquor Control Commission. The commission’s response to LaFaive was that he would have to pay approximately $1,500 – in other words, 25 cents per page – for processing and copying fees for pages of a report that did not exist in a hard copy format.

The commission eventually relented when the Mackinac Center Legal Foundation sued. Senior Attorney Derk Wilcox of the Mackinac Center Legal Foundation said, “Taxpayers have a right to this public information. They should not be charged exorbitant amounts of money for documents that are rightfully theirs, nor should they be charged for virtual copies of public documents.”

Revisions to the law, which went into effect on July 1, 2015, reduce the likelihood of government agencies levying excessive fees, as they are now not allowed to charge more than 10 cents per sheet of paper.

Additionally, the Legislature mandated new fines on agencies that willingly and intentionally withhold information from requesting parties. Penalties range from $2,500 to $7,500 and are paid to the state.

People who believe they were overcharged for information can file a petition with a court. If the court decides that the public agency overcharged the inquiring party, the agency must pay up to $1,000 in punitive damages.

Finally, PA 563 limits the labor charges that a government office may impose, as it cannot “charge more than the hourly wage of its lowest-paid employee capable of searching for, locating, and examining the public records.”

This act clarifies the fee structure of FOIA requests, as well as addresses fee-related procedures of the law that have been long abused or ignored. This is a great start to modernizing the Freedom of Information Act to ensure transparency within the government and lower costs for the governed.

Frank Beckmann Features VoteSpotter

App reaches 50,000 downloads

VoteSpotter, an app created by the Mackinac Center, is making it easier for voters to hold their representatives accountable every day. Project Director Andrew Koehlinger recently joined Frank Beckmann to discuss the app's capabilities and growth. A recording of that discussion is available here.

To keep tabs on your elected representatives at the state and national level, download VoteSpotter free for iOS or Android at

September 18, 2015 MichiganVotes Weekly Roll Call Report

Balanced budget amendment, government “jobs for life,” preschool spending

Now with one click you can approve or disapprove of key votes by your legislators using the VoteSpotter smart phone app. Visit and download VoteSpotter today!

Senate Bill 306, Authorize joining Balanced Budget Compact: Passed 26 to 11 in the Senate

To authorize Michigan’s membership in a “Compact for a Balanced Budget.” This would use the device of a multistate compact to submit an application to Congress calling for an Article V "convention to propose amendments to the U.S. Constitution," limited to proposing an amendment prohibiting Congress from increasing the national debt unless a majority of state legislatures approve.

Who Voted “Yes” and Who Voted “No”

Senate Bill 281, Repeal 36th district court bailiff's "job for life" law: Passed 67 to 36 in the House

To allow a bailiff of the 36th district court to be dismissed for inability to do the job. This is the former Detroit “Recorders Court,” and the law that replaced it with the 36th district court permitted the current bailiffs to keep their jobs for life and not be replaced except for malfeasance, even if the individual is no longer capable of doing the job.

Who Voted “Yes” and Who Voted “No”

Senate Bill 134, Spend more on government preschool programs: Passed 99 to 2 in the House

To authorize spending an additional $4.35 million on government preschool programs in the fiscal year that begins Oct. 1.

Who Voted “Yes” and Who Voted “No”

SOURCE:, a free, non-partisan website created by the Mackinac Center for Public Policy, providing concise, non-partisan, plain-English descriptions of every bill and vote in the Michigan House and Senate. Please visit

Reitz Testifies on Overcriminalization, Mens Rea

Prepared Testimony Regarding House Bill 4713, House Oversight and Ethics

Editor's Note: the following is a transcript of testimony on House Bill 4713 given by Mackinac Center Executive Vice President Michael Reitz before the House Oversight and Ethics Committee on Sept. 17, 2015. Video of his testimony is available via House TV; Reitz's testimony begins at 18:00.

Mr. Chair and Members of the Committee, thank you for the opportunity to appear before you to comment on House Bill 4713.

The Mackinac Center has published a number of studies and commentaries on the problem of overcriminalization in Michigan. That is, the ever-increasing number of criminal laws and the trend of using severe criminal sanctions for regulatory purposes.

HB 4713 addresses an aspect of overcriminalization: criminal statutes that fail to specify a culpable mental state for the conviction of the crime. Traditionally, for a person to be convicted of a crime, it must be shown that the accused committed an unlawful act and did so with a guilty state of mind. The culpable state of mind is often indicated in statute as “intentionally,” “knowingly,” or “recklessly.”

This combination of the guilty act and the guilty mind helps differentiate a person’s culpability. As Oliver Wendell Holmes Jr. observed, “Even a dog distinguishes between being stumbled over and being kicked.” U.S. Supreme Court Justice Robert Jackson described blameworthiness in this manner: “Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.” (Morissette v. U.S., 342 U.S. 246 (1952)).

Legal scholars have noted a disturbing trend, however, of crimes that are silent on the defendant’s state of mind. This has resulted in a proliferation of strict-liability crimes, where a person could be convicted of a crime even if he were unaware that the conduct is illegal. Strict-liability crimes are frequently used to regulate behavior that falls outside of the common understanding of what constitutes criminal behavior.

HB 4713 is a needed reform in Michigan. The state has more than 3,100 criminal offenses in statute, with an average of 45 new crimes enacted every year. Our analysis indicates that 26 percent of felonies and 59 percent of misdemeanors lack an explicit description of the mental state necessary for a conviction.

The Michigan Supreme Court has wrestled with the problem of interpreting vague criminal statutes. In a 2014 opinion, Justice Stephen Markman recommended that the Legislature adopt the reforms that HB 4713 contemplates. Justice Markman wrote:

It is the responsibility of our Legislature to determine the state of mind required to satisfy the criminal statutes of our state, and the judiciary is ill-quipped when reviewing increasingly broad and complex criminal statutes to discern whether some mens rea is intended, for which elements of an offense it is intended, and what exactly that mens rea should be.

(Order, People of Michigan v. Taylor, No. 145491 (Jan. 31, 2014) (Markman, J., concurring).)

I respectfully suggest the following improvements to HB 4713:

  1. Sec. 3 indicates that when a criminal offense neither specifies culpability nor imposes strict liability, the offense is established “only if a person acts with intent, knowledge, or recklessness.” Sec. 3 should specify a default culpable mental state – either “intent,” “knowledge,” or “recklessness” – in order to avoid asking the courts to determine the appropriate standard in a criminal offense that is silent on intent. The default mens rea standard should be fixed at a level higher than mere negligence.
  2. Sec. 2 ensures that the Legislature may create strict-liability crimes, so long as the Legislature plainly expresses its intent to do so. This is appropriate; I would suggest the language be strengthened by amending Sec. 2, lines 2-3 to read: “…not specify any degree of culpability and plainly indicates a purpose to impose strict criminal liability…”
  3. Sec. 2 could also be improved by adding: “The mere absence of a specified state of mind for an element of a covered offense shall not be construed to mean that the Legislature affirmatively intended not to require the prosecution to prove any state of mind with respect to that element.”
  4. HB 4713 addresses criminal offenses that have already been enacted into law. It should also address the appropriate mens reaprovisions prospectively in the enactment of new criminal offenses. As the bill is currently written, the Legislature could conclude that it is unnecessary to specify the appropriate criminal intent standard in new crimes, especially if those crimes are codified in the chapters that are exempted by Sec. 7. The Ohio Legislature recently adopted the reforms contemplated in HB 4713. Relevant language stated:
    • (A) Every act enacted on or after the effective date of this section that creates a new criminal offense shall specify the degree of mental culpability required for commission of the offense. A criminal offense for which no degree of mental culpability is specified that is enacted in an act in violation of this division is void.
    • (B) Division (A) of this section does not apply to the amendment of a criminal offense that existed on the effective date of this section, but it does apply to a new criminal offense added to a statute that existed on the effective date of this section.
      ORC Sec. 2901.20.
  5. In order to avoid confusion that could lead to litigation, HB 4713 should state explicitly that the Legislature intends that the bill apply to criminal statutes that were enacted before the effective date of the act (with the exception of chapters listed in Sec. 7).

Thank you for the opportunity to submit these remarks.