This is getting ridiculous. Once again, I’m posting another filing from the city council and our response. All of this is increasing fees and costs that I believe will be passed on to you when it’s over – to the tune of tens of thousands of dollars more than has already accumulated.
It all boils down to this. The attorneys assigned to handle the case by the Michigan Municipal League Liability and Property Pool (MMLLPP) – that I refer to as the “insurance attorney(s)” – apparently failed to do their job and address what turned out to be the dispositive argument before the Michigan Supreme Court made its decision. The remedy for that is to hire better lawyers in the future and ask these lawyers about making a claim against their professional liability insurance if the MMLLPP refuses to pay for my attorneys’ fees and costs.
This latest filing is a motion to reply – to our answer – to their motion for rehearing along with our answer – to their motion to reply – to our (previous) answer – to their motion for rehearing. (Read it again slowly if it doesn’t make sense at first.) As my attorney points out, the insurance attorneys are just saying the same things over and over again at this point. I think they believe that if they file enough pages with the Court, the Justices will throw up their hands and rule in their favor on the basis of volume alone. (It doesn’t work that way – the Court’s Commissioners and clerks will be throwing up their hands and getting irritated; the Justices receive summaries and recommendations.)
In the latest filing, the insurance attorneys have continued their crusade to insult the Justices’ collective abilities to interpret a statute. They also falsely state that the media amicus was filed late. An extension of time was requested and granted by the Court, and the media’s amicus brief was filed on the same day that the Michigan Municipal League (MML) and Michigan Townships Association (MTA) filed their amicus brief in support of the City of the Village of Clarkston.
The city council repeatedly claims that it needs to have an opportunity to respond to an argument that was not raised by anyone – that the city attorney is personally a public body. No one has ever said that. No one. The insurance attorneys obviously never said that. And, as the insurance attorneys have pointed out a bazillion times, my attorney and I have never said that. But most importantly, the Court didn’t say that. In fact, the Court went out of its way to distinguish between the office of the city attorney versus the city attorney as an individual. On page 13 of the opinion, at footnote 10, the Court said: “[w]e do not conclude that the city attorney, individually, is himself a ‘public body’ under MCL 15.232(h)(iv). Rather, we conclude that the entity, the ‘office of the city attorney,’ constitutes the pertinent ‘public body’ under MCL 15.232(h)(iv).” So really, everyone agrees – the city attorney is not personally a public body. We could have saved dozens and dozens of pages of argument and hours of attorney time if the insurance attorneys had not skipped over footnote 10. Reading is fundamental – maybe they should try it sometime.
Their reading skills deficit was apparent again with the claim that the Court didn’t define the issue that it ultimately decided on when it granted leave to appeal. The Court’s order granted leave on two grounds, one of which was whether the court of appeals erred in finding that the documents that I requested were not within the definition of public record, which is defined in MCL 15.232 as a writing that is “prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function . . .” The Court held that the office of the city attorney is a public body – therefore, the 18 records were “prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function.” The “official function” is defined by the Clarkston Charter, and the 18 records that I asked for fall squarely within the official function of the office of the city attorney.
The insurance attorneys continue to claim that the statutory interpretation suggested by the media in their amicus brief was never raised, briefed, argued, or decided, and they had no opportunity to say anything at all about it. That is another false statement. Clearly, the issue was raised and briefed in the media amicus brief, and the insurance attorneys were provided a copy of the media amicus brief on January 31st when it was filed.
The insurance attorneys could have briefed and argued that issue to their heart’s content before, during, and even after the hearing. They didn’t. Now they want a do-over to cover up for that failure. They had their notice and opportunity to be heard (that’s what due process is all about). As my attorney points out, the insurance attorneys have filed dozens of pages of objections, motions, and briefs since the Court’s July 24th decision up to September 15th (the date of their most recent filing), which is almost the same period of time between January 31st (the date the amicus was filed) and March 5th (the date of oral arguments). Funny how they were able to do one thing but not the other.
The insurance attorneys try to excuse their professional failing by blaming me, claiming that I “abandoned” the argument made by the media’s amicus brief. My briefs were already filed by the time the amicus briefs were due. We reviewed the argument, just as the insurance attorneys should have. We agreed with the argument, which was different than the arguments that we made. If anyone “abandoned” anything, it was the insurance attorneys – because they made a deliberate decision not to respond (something my attorney definitely would not have done).
The insurance attorneys go on for pages and pages about our motion in the court of appeals where we asked that court to either strike the amicus brief filed by the MML and MTA or be allowed to respond to it. Why did we do that? Because the MML and MTA were attempting to add a new argument in the court of appeals. Apparently, it’s OK to add a new argument – but only if that new argument favors Clarkston. In the end, the court of appeals didn’t strike the MML’s and MTA’s amicus brief, but the court did allow us to respond to it. And now, with the opposite circumstance in the Michigan Supreme Court, the insurance attorneys seek to have their failure to make a similar request excused after a decision was issued. That’s not how it works.
The insurance attorneys continue to claim that the Court’s decision can’t be enforced against the city because the Court held the documents are public records of the office of the city attorney, not public records of the city. That’s odd – one doesn’t usually need to worry about whether a directive can be enforced unless s/he plans to ignore it. The city attorney occupies an office created by the Clarkston Charter. He’s obligated by the Charter and by the ethics rules governing lawyers to turn the 18 records over on the request of the city council, and a court can order the city council to make the request. Refusing to cooperate with a client’s reasonable request subjects the insubordinate lawyer to discipline, as the city attorney well knows (since he sits on the Judicial Tenure Commission that disciplines judges if they violate the rules governing lawyers and judges). The argument that there must be some sort of “enforcement mechanism” is garbage, and the attorneys know it.
How do I know that they know it?
On September 11, 2017, city attorney Tom Ryan was asked a series of written questions from the city council, one of which was how the city would be hurt if council ordered production of the documents. Ryan said he didn’t know why the city council would want to do that, but if the council wanted to discontinue the lawsuit (which would have happened if the documents were produced), that was their right (go to time mark 1:29:51 in the recording below):
So, it was their right to ask for the records then, but it’s not now?
On July 23, 2018, Councilmember Kniesc asked insurance attorney James Tamm if the council voted to have the documents turned over, would the city have to sue James Tamm or Tom Ryan to get them? James Tamm said “no” (go to time mark 1:16:45 in the recording below):
Of course Tamm knew that the city wouldn’t have to sue for their own records – because they are entitled to a copy of them on request.
This is just a cute little game that the insurance attorneys are playing in the Michigan Supreme Court. No lawyer would ever require an “enforcement mechanism” before s/he would give a client copies of records that were created or received in connection with the client’s business. Any lawyer who would try to do that should be disciplined or disbarred – and James Tamm and Tom Ryan both know it.
Here is a copy of the city’s motion:
20200915 – Motion for leave to file reply re rehearing (with reply brief and exhibit)
Here is a copy of our answer:
20200918 – S. Bisio’s Answer to City’s Motion to File Reply Brief on Motion for Rehearing