If you read the Clarkston News, attended or watched the October 14, 2019 city council meeting, or if you follow Cory Johnston’s Village of Clarkston Facebook page, you know by now that the Michigan Supreme Court granted my application for leave to appeal in my Freedom of Information Act (FOIA) case on September 25th. The court’s order is here:
The Michigan Supreme Court’s 2018 Quantitative report, linked below, shows that there were 1749 cases where an application for leave was filed (mine was one of them, because I filed in 2018). 28% of the cases (494 cases) filed in 2018 were civil cases, like mine. The court granted leave to appeal in only 10 cases in 2018, though I’m not sure how many were criminal and how many were civil cases:
October 2019 year to date statistics, linked below, show that there have been 1504 new cases filed so far this year, but they haven’t provided a breakdown of the percentage of civil cases versus other cases in the report. Leave has been granted in only 19 cases (including mine, because my grant happened in September 2019), and again, the report doesn’t specify how many of these were civil cases:
As you can see, the Michigan Supreme Court didn’t have to take my case – they don’t take most cases. When they do take a case, it’s because they want to explore an issue of state-wide significance. I’m honored and delighted that they believe my case falls into that category. While I don’t know how the court will decide my case (no one does), I think that it’s extremely unfortunate that Clarkston will forever be known as the city that fought for the ability to hide records from the public in off-site files, a position that no one in our city government should be particularly proud of.
I’m grateful for the Kemp Klein Law Firm (and for my attorney/husband, Richard, who is of counsel at Kemp Klein) for doing an excellent job convincing the Michigan Supreme Court that my case is worthy of their consideration. Contrary to what you may have heard, Richard works for an honest-to-goodness law firm. He’s not furiously typing court papers from a desk in our basement while using me as a pawn to engage in some sort of a “vendetta” against the city – something that has been suggested by our Clarkston spinmeisters who are either really gullible . . . or think that you are.
In addition to the local story tellers, we have had a lot of newly minted FOIA specialists popping up around town for almost four years now, especially our local “expert on everything” who has never quite managed to grasp the import of the holding of either of the lower courts. Unlike them, I specialize in this area of the law. And to everyone who claimed to know so much about the issues in my case, I guess it’s not quite as simple as you have led others to believe, is it?
If you want to know more about my case and what happened in the trial court and the court of appeals from my perspective, click on the post titled “Freedom of Information Act.” I posted that as a fair reply to some of the public statements made at city council meetings. Under that heading, you will be able to see a copy of the city attorney’s bills that he submitted to the city for payment, and I’ve highlighted the entries describing the 18 pieces of correspondence that the city is fighting to keep from me in yellow. I’ve even included links to the circuit court and court of appeals opinions if you’d like to read them for yourself. Please note that the fact that an attorney is involved in my request for records is NOT an issue in the case (and the city didn’t claim that the attorney/client privilege applied to any of the records when they answered the complaint in my lawsuit).
Now let me go right ahead and touch the third rail of Clarkston politics because I think that the conduct of our city officials and officers in connection with my lawsuit raises some legitimate questions.
We have less than a thousand residents, but we are taxed at almost the highest possible rate. Most of our government services are performed by part-time employees, volunteers, or contractors because we can’t afford to have them work for us full-time. We are forced to engage in agreements to obtain these services on a piecemeal, hourly, or monthly basis. But if the people that we are contracting with and paying to perform city services – to include our administrative officers – are going to claim that the physical location of the work that they perform or the manner in which they are paid by the city determines whether the work that we’ve paid for “becomes” a public record in their sole discretion, then perhaps we need to reconsider if we want to keep our city government in its present form or adopt another that better serves our needs. I think that is a fair question to ask given the conduct of the city attorney in my case and the abject failure of the majority of city council to address it.
I think that one of the things that has been lost in all the local noise surrounding my case is that Clarkston’s “insurance carrier” – the Michigan Municipal League Liability and Property Pool, or MMLLPP for short – is funded with taxpayer dollars derived from over 400 public bodies and entities (including Clarkston taxpayer dollars). The MMLLPP link on the Michigan Municipal League’s website explains that the MMLLPP is a “non-profit self-insurance pool owned and governed by its members.” The Michigan Municipal League also has a Legal Defense Fund for members who additionally pay “a modest annual fee.” The Legal Defense Fund section of the Michigan Municipal League website explains that the assistance that they typically offer to public bodies consists of filing an amicus (“friendly”) brief, which is what they did for Clarkston in my FOIA case along with the Michigan Townships Association (they joined together on the same amicus brief). Because of the broad reach of these municipal organizations, I think that it’s fair to say that most of the taxpaying public in Michigan have unwittingly contributed to the legal fight against me and against disclosure of public records generally. To put that a different way, their hard-earned money is being used against them by the very public bodies that exist to serve them. If they knew (and they will know someday), what would they think about that?
I made my request for records in June of 2015, almost four and a half years ago. After giving the city months to reconsider its decision to withhold the 18 pieces of correspondence, I filed a lawsuit – the very first lawsuit I’ve ever filed – that December. Yet, even after everything that has happened, I still can’t believe that I’m a plaintiff in a FOIA case that has made its way to the Michigan Supreme Court. I am a municipal attorney, working for one of the largest public bodies in the State, and I spend most of my time working with the Michigan FOIA. Until I became involved in this lawsuit, I wasn’t aware of anyone who believed that public officials, officers, and employees could hide records from the public merely based on where those persons are sitting when they created or reviewed the records, and I don’t know anyone who would give this advice.
To be continued . . .