And Now a Word About the Amicus Briefs (Many, Many Words, Actually) – Part 2

Did the Michigan Municipal League (MML) and Michigan Townships Association (MTA) deliberately misstate MY arguments in the amicus brief? Why, yes, that’s exactly what they did. In fact, I would go so far to say that the MML and MTA brief contained “gross misstatement[s],” and was “selective,” “misleading,” “more than disingenuous or sloppy” – and what they did “should not be tolerated by the court.” Yes, I would say that, and it would be accurate.

Some examples:

• • The MML and MTA claim the case doesn’t “involve any document that was prepared, owned, used, or ever in the possession of, a public body.” That’s a legal conclusion, and if the Michigan Supreme Court thought that was clear, there would be no need to hear my case.
  • The MML and MTA state that I’ve never claimed that anyone has tried to hide documents, even though my reply brief literally refers to “separate, secret files.”
  • The MML and MTA say that I never claimed that the records I asked for were “written for, or by, a public body.” I guess that’s technically true, since the city doesn’t have hands or fingers to hold a pen or to type, but a major issue in the lawsuit is that the records I sought were written or reviewed by a charter-appointed officer/attorney FOR a public body (Clarkston).
  • The MML and MTA also assert that I never said the records were used by a public body, but I’ve repeatedly argued the records were used by the city attorney as part of his job as an officer under the charter, which is in fact use by a public body.
  • The MML and MTA claim that a specific case that they believe was on point was specifically omitted from my brief – except that case was referenced, distinguished, and discarded in footnote 19 of my reply brief.

Indeed, the MML’s and MTA’s entire brief depends on mischaracterizing and exaggerating my arguments, creating straw men based on these mischaracterizations and exaggerations, and then knocking the straw men down. Frankly, I think they are trying to deflect from their illogical arguments that:

• • The charter-appointed city attorney, an officer on the same level as the city manager, doesn’t really act for the city when he’s conducting city business (a claim that would likely shock the attorneys who believed they were communicating with Clarkston’s attorney when he represented himself as Clarkston’s attorney);
  • Clarkston public officials conducting Clarkston business and creating records outside of City Hall can avoid all public scrutiny, because these records are not prepared, owned, used, retained, or possessed by Clarkston (so Clarkston should be able to deny you the ability to review these records); or,
  • Our state legislature intended to keep most local government records out of reach of local taxpayers and didn’t really mean it when they explicitly declared in the beginning of the FOIA statute that you and I are entitled to FULL AND COMPLETE information regarding both the affairs of our government and the official acts of those who represent us as public officials and employees.

If you want to see what professional, well-written appellate advocacy ought to look like, then I would encourage you to take the time to read the amicus filed on my behalf by the media groups, which I’ve also linked to above. The media’s lawyers manage to make their points without insulting anyone. They also forthrightly address the city’s arguments without twisting them into some new argument that no one made, attacking that new argument, and then claiming victory. This is the kind of professionalism an appellate court expects to see, and it stands in stark contrast to the work product submitted by the MML and MTA.

I’m proud to share with you the fact that the Michigan Press Association’s and Detroit Free Press’ amicus has been joined by many, many others, most of whom I’m sure you’ve heard of:

• • Michigan Association of Broadcasters
  • Reporters Committee for Freedom of the Press
  • Detroit Chapter of the Society of Professional Journalists
  • The New York Times Company
  • The Detroit News
  • E.W. Scripps Company
  • New World Communications of Detroit, Inc. (on behalf of WJBK-FOX 2 Detroit)
  • Nexstar Media Group
  • Zillow Group, Inc.
  • Better Business Bureau of Eastern Michigan
  • Meredith Corporation
  • Michigan Coalition on Open Government