Despite an opinion from Attorney General Dana Nessel earlier in May, the Michigan State Capitol Commission (MSCC) voted Friday to hire external legal counsel to decide whether the panel has the authority to ban firearms at the state Capitol.
“The attorney general’s opinion notwithstanding, we felt that we needed to further clarify, really what kind of authority the Commission has — and also look at the ancillary implications if we were to ban firearms,” Chair Gary Randall said. “… So it’s not just a simple, ‘Do we ban firearms?’
“It’s, ‘Do we ban firearms, and at what cost?’”
The MSCC originally took up the issue after right-wing protests at the Capitol featured militia members and others armed with automatic-style rifles. On April 30, about 200 people, many armed, entered the building, with some trying to force their way on the House floor. A couple dozen protesters loomed over senators in the gallery during votes to restrict Gov. Gretchen Whitmer’s powers to respond to the COVID-19 pandemic.
The panel’s Special Committee on Powers and Authority of the MSCC, which the commissioners had established during their last meeting on May 11, met first and voted 4-1 to send a legal engagement letter to the full panel. The rest of the MSCC then met and passed a motion to approve and sign the legal engagement letter.
That letter served as the basis for hiring attorney Gary Gordon of the Lansing-based Dykema Gossett PLLC, from whom the committee is looking for a “second opinion” on whether they have the authority to ban guns in the Capitol’s public spaces.
Before starting work as a member attorney at Dykema in 2006, Gordon was the assistant attorney general and chief deputy attorney general in Michigan for 30 years. He served under Democratic former AGs Frank Kelley and Jennifer Granholm, as well as Republican former AG Mike Cox.
In-house legal counsel Amy Shaw had been brought on for the May 11 meeting to guide the panel, but some members complained then that her remarks were more akin to a partisan speech than objective legal recommendations.
Shaw works in the office of Senate Majority Floor Leader Peter MacGregor (R-Rockford).
The first vote out of the committee was carried with one lone dissenting voice, commissioner Joan Bauer, a Democratic former lawmaker who spoke up passionately about the panel’s responsibility to move swiftly and ban firearms before anyone at the Capitol is hurt.
She echoed this argument after the motion had passed to the full panel, which also voted in favor of signing the legal engagement letter with the only “no” vote coming from Bauer.
“I hope I made it very clear that I felt then and I still feel that the Michigan [State] Capital Commission has the authority to ensure the safety of the public as well as those who carry out the work of the people by prohibiting firearms,” Bauer said.
Nessel “is the top legal official in the state of Michigan, the top law enforcement official, duly elected by the people of Michigan, and I do not see that we need a second legal opinion,” Bauer continued.
She also said the panel should stop “shopping around” for opinions when their authority has already been clarified, and that the public is rightfully frustrated that the committee appears to be “afraid to make some tough decisions.”
Commissioner Kerry Chartkoff, who also is the Capitol historian emeritus, raised concerns about what it would mean for the panel’s usual affairs if the outside legal counsel were to decide that the MSCC does not have the authority to ban firearms.
“If we found that we cannot pass restrictions of some kind, what does it do to our authority to actually continue to have the right to enforce procedures for the public areas of the building and grounds?” Chartkoff posited, suggesting that undermining the panel’s authority on firearm rules “would undermine all of them.”
Chartkoff, however, voted yes on the motion to sign the engagement letter.
Randall, who also is clerk of the House, stressed several times during both meetings that the MSCC was never established with the intent of making such a significant and politically-charged decision. He also brought up — as did Vice-Chair John Truscott and commissioner Bill Kandler — that the commission must look at all possible implications of putting such a ban in place.
Those implications could involve additional spending, as there would likely be a need for magnetometers to be installed in the building to detect firearms. as well as litigation that could tie the MSCC up in the coming years.
The special commission agreed to take on Gordon’s legal help at the cost of no more than $5,000.
The MSCC plans to meet next at 11 a.m. June 19 to discuss Gordon’s findings.