MICHIGAN MILITARY VETS DEFY UNJUST STATE LAW
September 1, 2010
Baraga American Legion refuses to surrender property rights
The Preamble to the Constitution of the American Legion states: “For God and Country we associate ourselves together for the following purposes: To uphold and defend the Constitution of the United States of America; to maintain law and order; to foster and perpetuate a one hundred percent Americanism; to preserve the memories and incidents of our associations in the Great Wars; to inculcate a sense of individual obligation to the community, state and nation; to combat the autocracy of both the classes and the masses; to make right the master of might; to promote peace and good will on earth; to safeguard and transmit to Posterity the principles of justice, freedom and democracy; to consecrate and sanctify our comradeship by our devotion to mutual helpfulness.”
While one might think that upholding all state laws would fit with the American Legion purposes, that isn’t the case with Foucault-Funke Post 444 in Michigan’s tiny Upper Peninsula (U.P.) community of Baraga.
On May 1, 2010 a new state law went into effect outlawing smoking in all business places that serve food and/or hire help, including bars, restaurants, private clubs and establishments owned by veteran oganizations. It was then that the Baraga American Legion drew a line in the sand and let it be known that Post 444 would allow its patrons to light up indoors until ordered by a court not to do so.
The Western Upper Peninsula Health Department (WUPHD) is charged with enforcing the no-smoking law in a five-county area. Because Post 444 has openly defied the smoking ban, an Order to Cease Food Operation was issued by WUPHD Executive Director Guy St. Germaine on July 20. It cited the Post as creating a substantial hazard to public health.
Post 444 countered by filing a lawsuit in Baraga County Circuit Court on Aug. 6 to strike down as unconstitutional the law banning indoor smoking. Guy St. Germain and WUPHD are named as defendants.
First introduced in the Michigan House as HB 4163 on Jan. 30, 2007 by former Flint area Rep. Brenda Clack (D-Dist. 34), the bill was originally designed to prohibit all private business owners from choosing to allow smoking in their establisments.
Strong-armed by lobbyists, House and Senate members tweaked several substitutes and wrangled for many months over which businesses would be exempt and which wouldn’t. However, attempts by a few military-friendly legislators to exclude veteran organizations were unsucessful.
Finally, after almost three years of wrangling and tweaking, HB 4163 passed muster with both the House and Senate on Dec. 10, 2009 and was signed into law by Gov. Granholm eight days later.
The new “Smoke-Free Air Law” allows a smoker to light up on the gaming floors of Detroit’s three opulent and privately owned casinos. Cigar bars and tobacco shops already in business prior to the ban, home offices and vehicles are also exempt.
However, veterans and active duty military, which were and are willing to put their life on the line to preserve the constitutional rights and personal liberties of American citizens, didn’t fare as well. They no longer have the freedom to light up a smoke-producing tobacco product at any American Legion or other such fraternal military establishment in Michigan. Neither do non-military patrons when such premises are open to the public, as Post 444 is.
The Detroit casinos were purportedly exempted because lawmakers believed those non-tribal businesses would be competively disadvantaged by tribe-owned casinos, which are not subject to the smoking ban. The closest to Detroit, however, is about 130 miles away in Standish. On the other hand, Post 444, located on the L’Anse Federal Indian Reservation, is about a mile away from the Keweenaw Bay Indian Community’s Ojibwa Casino and its Press Box Sports Bar & Grill. Another bar and grill, also exempt from the smoking ban, is about one-tenth of a mile away.
The State of Michigan gets a hefty kick-back from the Detroit casinos in the form of a gaming tax, which in 2009 was a little over $320 million. Had the legislators allowed those casinos to become competively disadvantaged, they’d have been cutting off their collective nose to spite their collective face.
With eleven tribally licensed casinos in the Upper Peninsula’s fifteen counties and because of their location, virtually every veteran organization establishment in the U.P. has been placed at an economic disadvantage. In fact, Bill Hafeman, American Legion State Commander, notes that many legion posts throughout Michigan have reported decreased usage of their bars and restaurants, though he didn’t specifically say it was caused by the smoking ban.
Michigan legislators, however, were apparently more concerned with their own coffer than with the cash registers of veteran organizations all over the state now forced to compete with tribe-owned casinos.
Historically, the Baraga Legion, which organized in 1946, has allowed smoking on its premises ever since building its post “home” in 1950. Named for Baraga area resident Howard N. Foucault, who was killed in WWI and buried at a cemetary in France, and Albert Funke, the first Baraga Township casualty of WWII, Post 444 has a long history of community service.
Legion members, approximately a third of which are Native Americans and not subject to state law, were instrumental in the formation of the Baraga National Guard unit. In 1954, when it was short $7 thousand to build an amory, Post 444 mortgaged its new building and loaned the money to the local unit, interest free. Only a few years ago, the Post donated $3,400 toward an armory kitchen.
In 1958, when Pettibone Corporation’s Baraga-based Carry-Lift Division burned to the ground, the company considered moving the operation to New York. Post 444 came to the rescue by mortgaging its building again and giving $20 thousand to help the village build a new plant for Pettibone and its 225 local employees. Many more thousands of dollars were also given to the Village of Baraga after it fell on hard economic times in the early 60s.
When the Legion’s own building was destroyed by fire in 2001 and a new one was being built, Post 444 still donated $2 thousand to the local Little League Team. The Post has also given $10 thousand to the Baraga Fire Department for the purchase of new equipment.
But it doesn’t stop there. Post 444 also generously contributes annually to the U.S. Marine Corps’ Christmas Toys for Tots Program and to yearly efforts to bring the Shrine Circus to the local area. In fact, the Post just received another annual American Legion national award for outstanding achievement in its programs for children and youth.
Last year the National Headquarters of the American Legion presented Post 444 with the 2008-2009 Certificate of Distinguished Service award.
It was given to the Baraga Legion because it had been determined that the Post had conducted the most outstanding Americanism program in Michigan.
Over the years, Post 444 has mailed thousands of care packages to servicemen and women overseas and has even sent welding equipment to the military when needed. All these good deeds have been accomplished through money raised at monthly pancake breakfasts, other food sales, banquet hall rentals, bar revenue and outright donations.
Post 444 members are, however, perhaps most proud of their American Legion Honor Guard, which has performed special military services at many hundreds of veteran funerals over the years. The most taxing time for the voluntary Honor Guard is on Memorial Day weekend when two days are spent performing services at nine local area cemetaries.
The Post is the only Michigan veterans’ organization certified by the U.S. Department of Defense to conduct a military funeral. It is also the only one authorized to train Honor Guard members in the U.P., Northern Lower Peninsula and Northern Wisconsin.
It’s truly unfortunate that things have come to be such in Michigan that a veteran organization feels compelled to initiate a lawsuit against a government agency to preserve its property rights and freedom of choice. It’s also unfortunate that any profit made by Post 444 must now be put toward a legal defense fund instead of toward worthy causes the Post supports, particularly since it’s located in an extremely economically depressed county that leads Michigan with about a 25 percent unemployment rate.
According to, Joseph O’Leary, who is acting as the local Legion spokesman, the lawsuit isn’t about smoking, but about the right to choose to allow the use of a legal substance on private property owned by Post 444.
A press release issued by Post Commander Rick Geroux on Aug. 6 states in part: “For 200 years the American veteran has fought and died to protect the freedom and liberty we enjoy and that many Americans take for granted. We at Post 444 filed this lawsuit because we intend to oppose anyone who threatens the basic principles on which this great nation was founded, foreign enemy or domestic politicians alike.”
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Those who find tobacco smoke objectionable aren’t forced to work at the Baraga American Legion, nor are customers dragged in the door. Unless Americans are willing to replace the stars on Old Glory with a sickle, perhaps non-smokers and smokers alike should all stand united and defend their personal liberties and constitutional rights before they’re taken away altogether.
� 2010 Carole "C.J." Williams - All Rights Reserved