If you want to know why the attorneys’ fees were so high in a Freedom of Information Act (FOIA) case that involved a simple legal question (whether city officials can hide records in an off-site file and claim that they aren’t public records that are subject to FOIA), then you need to understand the nonsense perpetrated on the city’s side of the case.
James Tamm was the attorney assigned to handle my FOIA case by the Michigan Municipal League Liability and Property Pool (MMLLPP). I’m going to describe Tamm’s legal theories as Bullshit Theory #1, Bullshit Theory #2, Bullshit Theory #3, etc. Why do I use that word? Because these excrement-laden “theories” had zero basis in the facts, the FOIA statute, or in case law. I believe that the primary purpose in dreaming them up was to keep the steady flow of cash coming into Tamm’s firms from the MMLLPP and to keep the city council angry enough to continue their support for the lawsuit. Though the money that Tamm pocketed wasn’t directly paid by the city, it did come from taxpayers all across Michigan who live in communities that purchase insurance coverage from the MMLLPP as Clarkston does.
I’m sure you’ve heard the saying when you have the law on your side, argue the law; when you have the facts on your side, argue the facts; and when you have neither the law nor the facts on your side, just argue. And that last part is how lawyers like Tamm create bullshit arguments that generate lots of income for themselves. They may even deliver their arguments very convincingly – but that doesn’t turn a baseless argument into a good one. It is an effective tool to drive costs up for someone like me with the hope that I would just throw in the towel and disappear, and I don’t doubt for a second that many other FOIA requesters have given up under that kind of pressure (which is why the FOIA statute needs to be modified).
In my FOIA case, the combination of bad arguments and unsophisticated city council members meant that the city council swallowed whatever arguments that were put in front of them hook, line, and sinker, all while believing that they were getting excellent legal advice. 🙄 That is, if the city council even knew what arguments Tamm was making. We have no evidence or information that Tamm shared any of his filings with anyone in the city other than Ryan. Or that he discussed the arguments with anyone in the city before filing them. But in my case, while Tamm happily cashed all of the MMLLPP checks, the city council was fully responsible for allowing the City of the Village of Clarkston’s name to be associated with secret government forever because they chose to follow the attorney incarnation of the Pied Piper.
Bullshit Theory #1 – Claiming the Lawsuit Was Dismissed (When It Obviously Wasn’t)
On more than one occasion, Tamm told the city council that we were dragging the litigation out as long as possible, when the opposite was true. At every opportunity, we reminded the court that the FOIA statute explicitly requires that FOIA cases be expedited in every way. (And every court ignored that requirement.) At one point, while the case was still in the circuit court, we even made an appeal to the court of appeals to ask that the case be moved along more quickly. That request was also ignored.
There was only one legal question in the case – whether an officer appointed under the Clarkston Charter – which is the role that City Attorney Tom Ryan fills – could hide Clarkston records in off-site files and claim they are not public records. Knowing that we were only dealing with a legal question, we filed a motion for summary disposition along with the complaint at the beginning of the lawsuit and asked the court to decide the legal question right away. (Of course, it took longer to serve the complaint than normal, because Tamm refused to accept service by mail and made me hire a process server to personally hand the complaint to then-City Manager Carol Eberhardt who told the process server that she was expecting him.)
Tamm didn’t want a quick resolution to the legal question – he whined that he needed discovery. Discovery is for fact-finding, but this case was never about facts. Nonetheless, Tamm was able to convince the judge that he should be entitled to fish for facts that he didn’t need, so our motion for summary disposition was denied. Our motion to strike the defenses that the city raised to the lawsuit was partially denied.
The court’s clerk made an error when creating the order for the judge to sign regarding our motions. At the very end of the order, she inserted this phrase: “This Order is the final order for the case because it resolves the last pending claim and it closes the case.” This language is required by the court rules when there is a final order in a lawsuit, but it was an obvious error because the case wasn’t closed. The docket in the case remained active because the case was active.
After we served discovery on Tamm, he refused to answer it because he claimed that the case was closed. He knew it wasn’t closed, we knew it wasn’t closed, and the judge’s clerk knew it wasn’t closed when we brought it to her attention. Notwithstanding, Tamm refused to respond to discovery while the case was “closed” and insisted that his time to respond should run from the time the order was corrected, not from the time that the discovery requests were served. The point? To waste time, drag things out, and increase my costs and fees.
Bullshit Theory #2 – The 18 Records Were Covered by the Attorney/Client Privilege and/or the Work Product Doctrine
In various briefs filed in the circuit court, Tamm claimed that the 18 records involved in the FOIA lawsuit were subject to the attorney/client privilege or had attorney work product protection. There are FOIA exemptions that would apply if that were true. (It wasn’t.) A FOIA exemption allows a public body to hold back some or all of the information requested under the FOIA. Unless there is a separate statute that requires that a public body withhold information (such as a social security number), the public body doesn’t have to redact (black out) anything unless it chooses to do so.
The 18 documents that I requested were email communications between Ryan and lawyers opposed to the city and emails between Ryan and Hubbell, Roth & Clark discussing run-of-the mill engineering issues. If a lawyer isn’t giving a client legal advice, there isn’t any attorney/client privilege that applies to the communication. If a lawyer is talking to an attorney representing someone opposed to the city, that doesn’t involve legal advice to the city. And, even if the communication contained legal advice to the city that would be privileged, the privilege would be waived if the communication is shared with someone who is not the client.
The work product doctrine protects the private mental impressions of attorneys when litigation is occurring or expected to occur. Even if work product protection applied to any of the 18 records (it didn’t), if city attorney Tom Ryan had shared any of the records with the city’s engineers or with attorneys who opposed the city in a dispute, the work product protection would be lost.
Ryan testified at his deposition that he didn’t believe that any of the 18 documents that I requested were exempt under the FOIA or subject to the attorney/client privilege. Ryan was correct. When I wrote my FOIA request, I specifically avoided asking for anything that was privileged or exempt under the FOIA (and after 14 years of working with the FOIA as a municipal attorney, I obviously know how to do that). Ryan admitted that he had some arrangement with lawyers that opposed the city and had promised to keep certain discussions secret for a period of time, apparently even from his client. Ryan said that it was just an agreement among “brother counsel.” (FYI, there is no “brother counsel” exemption in the FOIA.)
Tamm’s work product and privilege claims were bullshit, and Tamm knew it. In fact, I suspect that even most law students would know it. Not only does it not make any legal sense in the abstract, Tamm’s legal services bills revealed that he’d reviewed the 18 documents and he would have immediately known that they didn’t contain Ryan’s private thoughts about any litigation matter or involved any legal advice to a client.
I posted the 18 documents here:
https://www.clarkstonsecrets.com/foia-documents-released-updated/
You don’t need to be an attorney to know that there was zero basis for this theory.
Bullshit Theory #3 – I am My Husband (Because Married Women Have No Separate Identity)
When responding to the lawsuit complaint, Tamm claimed that the FOIA’s “civil action exemption” applied to the 18 records that I’d requested. This exemption prevents someone who is suing a public body from making a FOIA request relating to that lawsuit while the lawsuit is ongoing (but anyone else in the world can make that same request). Michigan courts decided years ago that the civil action exemption is limited only to people who are actually suing the public body. As I’ve already told you, I had never filed a personal lawsuit before my FOIA lawsuit, so I obviously wasn’t a party to my husband Richard’s Open Meetings Act (OMA) lawsuit which was filed before mine.
Tamm claimed that I made my FOIA request to “help” Richard with his OMA lawsuit, not because I actually wanted the records. That wasn’t true at all – the records that I requested had nothing to do with the city violating the OMA by unlawfully closing a meeting (a closure that wouldn’t have occurred without Ryan’s request and participation). The only way that Tamm could try to shoehorn the civil action exemption into my FOIA case was to make a sexist argument that essentially resurrected the doctrine of coverture. Coverture is the antiquated practice of subsuming the property of a woman into her husband’s property once she marries. You may remember the old saw that a man and wife are one person, and that person is the husband. (FYI, coverture was abolished by the Michigan Constitution in 1964 but apparently lives on in Tamm’s mind.)
In Tamm’s view of this exemption, I wasn’t entitled to make a FOIA request if the records “related” to Richard’s OMA case. The theory was that because the city council unlawfully closed a meeting to discuss an issue involving 148 N. Main, and some of the records I requested also related to 148 N. Main, ipso facto, the records I asked for would have helped Richard with his OMA lawsuit. This insane theory overlooked two glaring facts (well, actually three glaring facts since the argument had zero basis in Michigan law, but who’s counting). First, Richard was on the city council when the illegally closed meeting occurred over his “no” vote, so he knew everything that happened during the closed session. Second, Richard could have asked for the same records that I asked for and would have received them within 28 days using the Michigan Court Rules if he wanted or needed them for his OMA case. (Fun facts – among other things, Richard recently helped rewrite the Michigan Court Rules and was also a coauthor on a treatise that explained how the Michigan Court Rules work. He’s an expert in this area and really didn’t need my “help” with anything regarding his lawsuit.)
Tamm’s backward, sexist beliefs about married women bled into papers he filed with the court, within which he suggested I was nothing more than a puppet and that my husband was “pulling my strings.” He also used male pronouns to refer to me, and he put my name between quotation marks to suggest that I was a non-entity in my own lawsuit. (Misogynist, much?) He later tried to characterize the use of male pronouns as a “typographical error.” But, without mischaracterizing me as my husband, his theory would fall apart. And, showing that the “typographical error” excuse for his misogyny is a sham, in the very brief in which Tamm claimed a “typographical error,” he did it again, referring to me once more with a male pronoun.
Tamm managed to parlay his claim that the civil action exemption applied into months and months of discovery that included motions, written questions, requests for documents, and depositions, all of which wasted a lot of city employee time that could have been spent on more productive things. And, after insisting that we go through discovery on a case that never required it, Tamm billed even more time by arguing in court that he shouldn’t be required to participate in the discovery that he’d insisted was necessary (you see, it was OK to demand discovery from us, but Tamm didn’t think that he should have to provide discovery materials to us). All in all, Tamm and the other attorneys working on the file were able to bill almost $100,000 to the MMLLPP for just over six months of their “work” in the circuit court.
When the case was decided in the Michigan Court of Appeals, the court went out of its way to kick Tamm’s sexist theory to the curb, reminding Tamm that the civil action exemption did not apply because established case law clearly holds that the exemption only applies to parties, and duh, I wasn’t a party to my husband’s OMA case. That the Michigan Court of Appeals took the time to write about this – even though I lost in that court – suggests that they weren’t amused by sexist theories.
Bullshit Theory #4 – I Was Supposed to Reimburse the MMLLPP for Tamm’s Bill-O-Rama After I Lost in the Circuit Court
After I lost in the circuit court, Tamm argued that I should reimburse the MMLLPP for all of the time that Tamm and his underlings billed on the unnecessary discovery that he’d demanded (and never used in his final argument in circuit court, court of appeals, or supreme court). He deceptively blocked out the MMLLPP’s address on his firm’s invoices before submitting them to the circuit court to give the impression that Clarkston had been paying his monthly legal fees rather than the MMLLPP.
MCL 15.240(6) of the FOIA statute states: “If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys’ fees, costs, and disbursements. The award shall be assessed against the public body liable for damages under subsection (7).” (Subsection 7 allows a court to assess punitive damages against a public body when it arbitrarily and capriciously violates the FOIA.)
This section isn’t very hard to read. If a plaintiff (the person bringing the FOIA lawsuit) receives all of the records s/he asks for as a result of the FOIA lawsuit, the court is required to award all reasonable attorneys’ fees, costs, and disbursements to him/her. If a person bringing the FOIA lawsuit receives some of the records (which means that the public body was able to convince the court that certain records shouldn’t be provided or that redactions should be applied to the requested records), then the court has the discretion to award all or some attorneys’ fees, costs and disbursements to the plaintiff. If there is any award of attorneys’ fees, costs, and disbursements, the public body has to pay it. There is nothing in the statute that says the person bringing the lawsuit has to pay anything to the public body – even if s/he loses entirely. That makes sense. The purpose of the FOIA is to give the public a way to obtain information about government in court. Allowing unscrupulous attorneys to punish members of the public if they are unsuccessful – as Tamm tried to do to me – goes against the public purpose of the FOIA because it would discourage people from asking for the court’s help to pry public records out of the hands of government officials who’d rather keep them secret.
I told you that Tamm racked up almost $100,000 in legal fees in the circuit court, and that’s what he wanted me to pay. The judge didn’t rule on Tamm’s fee motion because we were in the process of appealing the circuit court’s decision, but the motion remained pending for the entire case. Even after the Michigan Supreme Court ruled against the city, Tamm refused to withdraw his fee motion, continuing to claim that the city was entitled to recover fees even though the city lost the case. Tamm also tried to use this fee motion to make me go away, saying that he would withdraw the motion if I would drop my appeal. Obviously, that didn’t work. 😉
Bullshit Theory #5 – Even Though I Won the Case, I Didn’t Really Win the Case
For years, Ryan and the city council have been sanctimoniously crowing about how right they were. They won in two courts! Four judges agreed with them! No judges agreed with me! It was all about “the principle,” dang it! (Ryan is still saying this.)
Ah, yes. The principle. What exactly was this very important principle? It was nothing more than the city’s claimed “right” to hide Clarkston records in off-site files and keep them away from the public’s view. Honestly, as a taxpayer and constituent, do you think that this is something that they should have been doing at all, much less bragging about?
They also wanted to get even, damnit. Last summer, current mayor Eric Haven was so sure that the city would win the case in the Michigan Supreme Court that he asked if the city could go after me for attorneys’ fees after the court handed down its decision – even though the city itself hadn’t paid any of Tamm’s fees. In other words, Haven wanted to punish me because I challenged Clarkston government. How dare I!
There were exceptions, of course. Sue Wylie, Rick Detkowski, Scott Reynolds, and former mayor Steve Percival tried to end the lawsuit several times and release the 18 records to me and to the public. The last time they tried, Tamm, in a thinly veiled threat, suggested that they could potentially face a loss of insurance coverage and be required to pay legal fees if they released the records.
When the city lost the case in the Michigan Supreme Court, most of the city council members were shocked, angry, and completely butthurt. (At the August 24, 2020 city council meeting, Haven claimed that “everyone’s heads were spinning.”) So of course they were receptive to Bullshit Theory #5 – that I didn’t really win. (And when I say “they,” I’m excluding Sue Wylie who voted against authorizing Tamm to embark on the moronic crusade that came next.)
When I’ve shared Tamm’s I-didn’t-really-win-even-though-I-actually-won theory with other lawyers, I get one of three responses – a “WTF” type of look, laughter, or a combination of both. This is because lawyers know that the Michigan Supreme Court is entitled to decide a case on any grounds it chooses to – it could be based on arguments that were presented by the parties, arguments presented by amicus briefs, or arguments that the justices want to insert into the case on their own because they believe that some other case or statute should decide the matter (even though the parties didn’t bring the other case or statute to their attention in their briefing and arguments). This is the prerogative of the court, and they may even tell the litigants that they are deciding a certain way because “justice so requires.”
In order to understand Bullshit Theory #5, you need to know a little bit about what happened in the Michigan Supreme Court. The arguments that we made in my FOIA case focused on one subsection of the FOIA statute that defined public bodies (the one that relates to cities). We said that cities aren’t living creatures and can only act through their agents, officers, and employees. We all know intuitively know this is true – when you call city hall, the “city” doesn’t answer; instead, you talk to a city employee who represents the city to you. Therefore, we argued, only agents, officers, and employees of a city can hold public records, and they shouldn’t be able to hide them in offsite files and claim that they’re not public records, which is exactly what Ryan – an officer appointed under the Clarkston charter – did. This commonsense application of transparency law has been adopted in some form in every state that has considered the question. In my case, it was referred to as “the agency theory.”
Many well-known media companies, all of whom are in favor of government transparency, submitted an amicus brief on my behalf that suggested a different way to resolve the case. I’m sure that you’ll recognize many of them – Michigan Press Association; Detroit Free Press; 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; and Michigan Coalition on Open Government. (The city had amicus support from the Michigan Municipal League and Michigan Townships Association, both of whom argued in support of secret government.)
The media amici didn’t urge a change in the statute; the statute says what it says. They merely directed the court’s attention to a different subsection in the same section of the statute that we were focusing on, which was a catchall provision to define a public body. Tamm received a copy of the media amicus brief right after it was filed. If he thought their argument shouldn’t have been considered, he had months to submit a brief on that issue to the supreme court (from January when the amicus brief was filed until July when the decision was issued). Instead, Tamm did nothing at all! He didn’t even bother to discuss this issue at oral argument. I wonder if the city council ever addressed Tamm’s abject failure to protect the city’s interests in the supreme court. If they did, it was in a closed session outside of our view.
When issuing the opinion in my case, five of the seven justices adopted the media’s amicus argument that Tamm lazily ignored. Specifically, the justices held that the Clarkston Charter created the office of the city attorney within Clarkston government. Because the office of the city attorney is a public body under the catchall provision of the FOIA statute, that means that Clarkston records kept by the city attorney are public records. The Chief Justice agreed that the records were public records (which is why it was a 6-1 decision), but she would have decided the case using our agency theory and would have held that Clarkston can only act through its officers, agents, and employees. The seventh and last justice agreed with the Michigan Court of Appeals and would have upheld the ability of public officers, agents, and employees to hide records in offsite files.
You might think that the Michigan Supreme Court’s decision would be something that Tamm could explain to the city council. I know that it’s disappointing to lose a case – after all, I lost in the circuit court and the court of appeals. Instead of trying to settle the case and move on in a rational way, Tamm energized a brokenhearted city council into believing that they should fight super hard to overturn this 6-1 decision using the bizarre and novel theory that I didn’t really win because the court accepted an amicus argument.
Was he covering up for failing to act when he should have? Only Tamm can answer that question. What is clear is that Tamm profited handsomely as a result of the additional arguments the council authorized him to make on their behalf. (Sue Wylie was the lone dissenting vote against this.)
Bullshit Theory #6 – The City Had No Control Over City Attorney Ryan and Couldn’t Order Him to Provide Clarkston Records – to Clarkston!
For five years, we argued that the 18 records were public records. The Michigan Supreme Court agreed that they were public records. In asking the Michigan Supreme Court to reverse its opinion before the ink was dry, this Tamm theory suggested that Ryan was some sort of an independent entity who was entitled to keep Clarkston records in his private law office and refuse to turn them over on request – and there was nothing that I, the city council, or even the circuit court could do about it.
Even if Ryan’s role was just a hired outside lawyer, the rules governing lawyer conduct require that lawyers give clients copies of information from the client’s file on request (unless the materials are subject to work product protection, which I discussed earlier). Tamm claimed that even though Ryan is an officer under the Clarkston charter (just as the city manager is), he was some sort of a special snowflake who doesn’t answer to anyone at all, not even the city council. In addition, I didn’t sue him personally so Ryan couldn’t be bound by anything the Michigan Supreme Court had to say. (This was so dumb – if it were necessary, the office of the city attorney could have easily been added to the lawsuit by filing a motion and asking the court to add it.)
The Michigan Supreme Court rejected Tamm’s Bullshit Theories #5 and #6 with a one sentence denial. The justice who dissented from the original decision continued to dissent and would have granted the city’s motion for rehearing, but none of the justices agreed that the city won the case – because the city lost the case.
No matter how these silly arguments turned out, Tamm made out like a bandit because he and all of the lawyers that he assigned to work on the case were able to bill more hours to the MMLLPP. Cha-ching!
Bullshit Theory #7 – Even Though I Won the Case, I Didn’t Really Win the Case, But This Time in the Circuit Court
As I pointed out earlier, whenever a person bringing a FOIA lawsuit (the plaintiff) “prevails” (wins), that person is entitled to an award of all of his/her reasonable attorneys’ fees, costs, and disbursements. The only two factors that a court can consider in deciding whether a plaintiff is entitled to attorneys’ fees, costs, and disbursements is whether it was necessary to file the lawsuit to obtain the records (definitely yes in my case) and whether the lawsuit was a causative factor in receiving the records (yes again, because the city only released the records after they lost for the second time in the Michigan Supreme Court).
Like the other Tamm arguments, this argument – that I didn’t really “prevail” in a case that I actually won – has zero support in the FOIA statute or in case law. ZERO support. Trial courts don’t pick through decisions made by the Michigan Supreme Court to try to assess which arguments carried more weight in that court – because the Michigan Supreme Court has the discretion to decide any way it wishes, and, as I explained in the paragraph above, the choice of argument that the supreme court used to decide the case isn’t one of the two factors that a court can consider when deciding an award for fees, costs, and disbursements under the FOIA.
We’ll never know how this would have turned out. But, as I told our facilitator, even though I would have preferred to settle the case at that point, if Tamm were somehow able to successfully convince the circuit court judge that his baseless argument should be used to reduce the attorneys’ fees, costs and disbursements that I was entitled to because I didn’t win a FOIA lawsuit that I actually won, I was fully committed to another five years of litigation on that moronic issue. Bring it, pal.
Bullshit Argument #8 – Kemp Klein Didn’t Really Represent Me (And Richard Was Apparently Typing Pleadings in Our Basement)
I’ve mentioned Tamm’s sexist worldview earlier. Though it’s 2021, Tamm has not accepted the idea that a woman is entitled to hire any law firm – and any lawyer – she chooses. I hired the Kemp Klein Law Firm, which is where my husband works. Kemp Klein got that business because I wanted to hire one of their lawyers – my husband Richard – to handle my case. That’s how things work in law firms. There is an originating attorney (here, it was Richard) and other attorneys may work on the file provided that the client consents.
Even though all correspondence in the case was written on Kemp Klein letterhead, all the papers filed with the court clearly indicated that Kemp Klein was my law firm, and everything filed in court came from Kemp Klein, Tamm baselessly believed that Kemp Klein didn’t really represent me. He asked us to answer discovery requests a few months ago – years after discovery closed – explaining my relationship with the firm. We answered, even though we weren’t required to and could have forced Tamm to get the judge to order it (and the judge may not have done so because discovery was closed and Tamm could have asked these questions five years ago). The first draft of the city’s proposed “settlement agreement,” drafted by Tamm or someone at his firm, called for a check to be made out to “Susan Bisio and her attorney Richard Bisio,” rather than to me and Kemp Klein, as would normally be the case when a check is made payable to someone who is represented by a law firm. The city paid Mark Peyser, the attorney hired to represent the city at facilitation, to research the “right to recover attorney fees in absence of attorney client relationship for possible absolute defense to S. Bisio’s claim for fees.” Tamm’s fees were paid by the MMLLPP, but Peyer’s fees were directly paid for by your tax dollars. You can thank Tamm for asking Peyser to spend your money researching this really, really stupid issue.
There was no basis for anyone to believe that Kemp Klein was not my law firm, other than the fact that I’m married to a Kemp Klein attorney. Once again, Tamm’s sexist beliefs about women continued to permeate through the case. (Oh, and FYI, Peyser wisely never brought up the insane theory to us during settlement discussions; we learned of it by seeing Peyser’s bills in the council packet.)
The truth is that if Tamm had litigated the case based on what existing law actually is or asked for a good faith extension of the existing law (with the operative phrase being “good faith”), he wouldn’t have received as many of those monthly MMLLPP payments. Even though the MMLLPP gets its money from member communities, who in turn receive their money from their local taxpayers, the MMLLPP is still answerable to those member communities for the cost of claims it pays out because the “insurance” they provide is actually self-insurance.
When I worked for a law firm that had insurance business and we were paid by the insurer to defend an insured, it would have been entirely unacceptable for my firm to bill the hell out of the file with unsupportable theories and not expect to lose that insurer’s business. There’s a difference between protecting the interests of the insured person and screwing the insurance company by dreaming up baseless arguments. I honestly wonder if the MMLLPP will find a new lawyer to handle its future cases because the one they had this time appeared to be more interested in serving his own financial interests than Clarkston’s or the MMLLPP’s.
(To be continued . . . )