The Michigan Municipal League (MML) and Michigan Townships Association (MTA) filed an amicus brief in the Michigan Supreme Court and in the Michigan Court of Appeals in support of Clarkston’s position the lawsuit. There’s nothing wrong with filing an amicus brief; there are media organizations that have done the same for me. An amicus brief is a “friendly” brief in support of a particular position, but in supporting Clarkston in my case, the MML and MTA are taking a very public stance against the interests of Michigan taxpayers. This is rather odd, considering that MML and MTA could not exist without the money their member cities and townships pay them, and that money originates from taxpayers throughout the state.
The two amicus briefs are linked here:
https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2019-2020/158240/158240_76_AC_Brf-MML.pdf (MML/MTA amicus brief supporting Clarkston)
https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2019-2020/158240/158240_77_AC_Brf-Press.pdf (Media amicus brief supporting me)
Current Mayor Eric Haven speaks of the MML and MTA with a reverence that he’s never shown for his tax-paying constituents, and he’s been very concerned that the city council might do something to offend them. He even went so far as to tell the council members that they should stop conjecturing, hypothesizing, agree, be thankful, and “cease and desist” rather than to ask pointed questions, such as who explicitly authorized the withholding of the remaining 18 documents that I requested and who gave approval to fight the lawsuit and try to keep these documents hidden, forever associating the city’s name with hiding records from the public.
I suspect that current Mayor Haven is enamored with the MML and MTA because they supported the city with an amicus brief in the court of appeals (and have done so again in the supreme court). I’d like to share some insight on the amicus brief filed in the court of appeals and why current Mayor Haven’s star-struck impression of the MML and MTA is probably misplaced. When I refer to the “insurance attorney” in this discussion, I’m referring to the attorney hired by the MML’s Liability and Property Pool. If I refer to the city attorney hired directly by Clarkston, appointed as an officer under the Clarkston charter and serving at the pleasure of the city council, I’ll call him the “city attorney.”
I was fortunate to be supported with an amicus brief from the Michigan Press Association and the Detroit Free Press in the Michigan Court of Appeals. Since the press uses the FOIA as a tool to uncover government misconduct and corruption, they understood the danger presented if city officials, officers, and employees are allowed to keep secret, off-site files containing records of government business. I suspect (but can’t know for sure) that seeing that an amicus brief had been filed by two well-respected media organizations caused the insurance attorney to have an “oh crap” moment. Based on the timing alone, I have always believed that the only reason there was an amicus brief from the MML and MTA is because the insurance attorney desperately wanted to make it to appear to the court of appeals that the city also had outside support.
Let me explain why I believe this to be true. My attorney advised the insurance attorney on October 21, 2016 that I would be filing an appeal in the Michigan Court of Appeals. The Michigan Court Rules establish the filing deadlines, and everyone knows what they are. The city filed its brief on May 10, 2017, which meant that all amicus briefs needed to be filed within 21 days of May 10, 2017. The Michigan Press Association and the Free Press filed their amicus brief in support of me 21 days later and on time – on May 31, 2017. The MML and MTA didn’t get around to filing an amicus brief until five weeks later, on July 7, 2017. The court initially rejected their brief because it was late. For those of you keeping count, 259 days (37 weeks!) elapsed from the time the insurance attorney was advised I would be filing an appeal until the MML and MTA attempted to file a late amicus brief. The timing alone suggests to me that securing this brief was an afterthought by the insurance attorney.
I recall an audience member telling the city council that they would do well to remember that most of the public bodies in Michigan were standing behind Clarkston in my lawsuit (which was likely a reference to the MML’s and MTA’s tardily filed amicus brief). I suppose that’s technically true, because together the MML and MTA represent most of the local governments in the state (the MML claims 521 local government members and the MTA claims 1,230 township members). It’s also very misleading to make such a claim.
Let’s be clear – there was never a state-wide vote of public bodies asking them if they support the notion that they should all be able to hide records pertaining to their local government business by keeping them in secret, off-site files and outside the reach of their constituents. (Not only that, I don’t think local taxpayers would have allowed their city councils to agree to this if they had been asked.)
No, there was no state-wide vote. Instead, a handful of lawyers on the governing boards of the MML’s legal defense fund and the MTA made the decision to file an amicus brief supporting Clarkston – and explicitly opposing the interests of all of the Michigan taxpayers in the 1751 member communities that they proudly boast of.
It’s highly probable that all of the involved attorneys know each other.
If you Google the insurance attorney’s name, and you will see that it appears in connection with the MML and MTA; he’s a frequent speaker for both. Go to the MML’s own website and search on his last name to retrieve results for him, his firm, and other lawyers working for his firm. The firm and its lawyers do all kinds of things for the MML, including speaking engagements, serving as legal advisor for the MML’s Law Enforcement Action Forum, paying for refreshments and activities at MML functions, and they’ve even written amicus briefs for the MML. Look further and find a photograph of the insurance attorney and one of the MML’s former legal defense fund board members (whose name was included in the court of appeals amicus brief). One of the two lawyers whose name is in the signature block of both the MML and MTA amicus briefs is an MML legal defense fund board member who has presented at an MML event. Since everyone knows everyone, I seriously doubt it would have been hard to get an amicus brief authorized in time to meet the filing deadline – that is, if the insurance attorney thought it was important enough to ask for one.
You’ve probably heard it said that when you have the law on your side, you should argue the law. When you have the facts on your side, you should argue the facts. When you have neither the facts nor the law on your side, then just argue. And, when you lack the basic decorum required of lawyers in appellate practice, you take snarky (and baseless) swipes at the party on the other side – as the MML and MTA did in both their amicus briefs. Frankly, I’m beginning to wonder if this is just the way attorneys affiliated with the MML conduct themselves generally, given the behavior of the insurance attorney throughout my FOIA lawsuit.
Focusing on an opponent using nasty rhetoric is unworthy of appellate advocacy and frankly surprising given the fine reputation of the firm whose name is also on the MML and MTA amicus briefs. For example, in the amicus brief filed in the court of appeals, the MML and MTA denigrated my lawsuit by referring to it as a “personal feud.” The notion of a “personal feud” originates in a lie that the insurance attorney has been telling for a few years now, stemming from a sexist belief that married women are the property of their husbands and incapable of acting on their own. As you know, repeating a lie over and over doesn’t make it true, but this particular falsehood is further evidence that they all know each other and act in concert.
When we opposed the filing of their late amicus brief, the MML and MTA asked the court to find our opposition to their motion for a late filing – something that was clearly their own fault – to be “vexatious.” A vexatious finding could have subjected my attorney and me to disciplinary action (that could include actual or punitive damages). The court of appeals gave the MML’s and MTA’s asinine request for a vexatious finding all the attention it deserved – by ignoring the request entirely.
The amicus brief filed by the MML and MTA in the Michigan Supreme Court is no different. This time, the MML and MTA claimed that my attorney made a “gross misstatement,” and was “selective,” “misleading,” “more than disingenuous or sloppy,” which practice “should not be tolerated by the court.”
O.M.G.! O.M.G.! O.M.G.! What on earth did my lawyer do that was so terrible that the MML and MTA wasted precious words discussing it in a brief that was supposed to be dedicated to helping the Michigan Supreme Court make a decision involving transparency law for the entire state?
Honestly, I’m not quite sure. The sentence that the MML and MTA found worthy of so many adjectives is at page 12 of my brief, where my attorney made the following statement: “Public record” includes “records of public officials and employees.” He then proceeded to not-so-cleverly hide the source for that statement by not only citing to the case but also providing the exact page number from where the reference was taken. Shocking, right? 
I’m going to reproduce what the MML and MTA said about the case quotation at page 15-16 of their amicus, and please feel free to look it up for yourself. I’m going to capitalize what they have bolded, and I’m going to omit the case/opinion citations because they aren’t relevant to what they seem to think is their oh-so-very-important point:
“Under the FOIA, a public record includes any writing that is owned, used, retained, or possessed by a public body in the performance of an official function, from the time the writing is created. M.C.L. § 15.232(c); WHILE THE TERM “PUBLIC RECORD” DOES NOT INCLUDE RECORDS NEITHER CREATED NOR OBTAINED BY A PUBLIC BODY [I’m excluding their case/opinion citations], IT DOES INCLUDE EXPENSE RECORDS OF PUBLIC OFFICIALS AND EMPLOYEES [I’m excluding their case citation and reference to omitted footnotes].”
Did you catch the grievous error? Don’t feel bad – I didn’t either. Not only was my attorney’s use of quotation marks proper, the statement he made was accurate. The case holds that public records include records of public officials and employees. In this instance, expense records are mentioned because those were the records that the parties were fighting over in the lawsuit. There is nothing that suggests the court was limiting its holding to ONLY expense records, which the court clearly signaled by the use of the word “include” in this part of the opinion. As you can clearly see, my attorney made no misrepresentation whatsoever regarding what the court said in the case.
I think that when you have confidence in the correctness of your position, you don’t need to go to DefCon 5 over some obtuse and unclear point. Either the amicus attorneys for the MML and MTA are trying to distract from a weak position, justify the thousands of indirect taxpayer dollars their firm was paid to write the amicus, or both. This is simply not a rational way for professionals to behave, particularly when appellate lawyers should be fully aware that courts find this type of hyperbole distracting, irritating, toddler-like, and entirely unhelpful to determining an issue of law.
Perhaps if the appellate attorneys had approached the issues in the case in a more objective manner, they would have noticed that their brief contained numerous punctuation mistakes, serving to distract the reader and reflect poorly on their work product. My first job as an attorney was at one of the finest firms in Detroit, and these kinds of errors would have been completely unacceptable in any court filing. Apparently, that’s not the case at all law firms.
To be continued . . .