Let’s talk about the city council’s motion for rehearing. I told you that Mayor Haven and his friends on city council (other than Councilmember Susan Wylie) authorized the attorney provided by the Michigan Municipal League’s Liability and Property Pool (MMLLPP), whom I refer to as the “insurance attorney,” to file a motion for rehearing in the Michigan Supreme Court. Filing such a motion within 21 days of the decision delays the finality of the opinion. Since they’ve spent almost five years trying to delay a final resolution in this matter by using every legal maneuver possible, this isn’t surprising.
The standard for obtaining a rehearing in the Michigan Supreme Court on an opinion they’ve just issued is that a party must show the Court that there was something much more than a small mistake – the moving party must show the court that there is “palpable error.” This is an error that was so severe that the court and the parties were misled and correcting the error means that there would be a different result in the case – so it’s really a big deal. That’s why the Supreme Court almost never grants a motion for rehearing. I don’t believe that the city council has met the palpable error standard.
The city council’s positions in the motion for rehearing can be summarized as follows: 1. It’s not fair; 2. We need a do-over; 3. Due process (or something); 4. It’s Bisio’s fault; 5. Your decision wasn’t unanimous; 6. You don’t know what you’re doing; and, 7. We are going to ignore your opinion anyway so you may as well rip it up. I’ll take these one at a time and try to explain the city council’s arguments to the Court in an easier to understand way (tongue in cheek . . . sort of).
IT’S NOT FAIR!
It’s not fair for you to consider an argument raised by the media in their amicus brief – you may have invited them to file a brief, but you are not allowed to consider it. After all, we didn’t – so you shouldn’t. Besides, the media’s lawyers only used two pages to explain their argument, and everyone knows that if an argument is important, you must use AT LEAST three pages to explain it. And every argument has to be made on the first page of the brief – even if the brief is twenty pages long. Otherwise the rule (that we just made up) is that you can’t read or consider it. (Unless it’s an argument that our amicus makes – then you should consider it.)
The only arguments in the universe that you are allowed to consider are those that we made and that Bisio made because those are the only arguments we like. Since it’s unfair that you didn’t do that, you must eradicate (vacate) your decision to grant leave along with your final decision in the case and allow the more superior court of appeals decision to stand (we won there, so we like that decision better).
Also, you said that we lost, so that means that we are exposed to a FOIA violation. How could we possibly have anticipated something like THAT might happen in a FOIA lawsuit? Totally unfair.
WE NEED A DO-OVER!
If you refuse to dismiss this case and pretend it never happened, then we need a do-over. You absolutely must allow our lawyer the chance to do what he should have done during the six months between the time when the media amicus brief was filed and when you issued your opinion, even though he couldn’t be bothered then to do anything at all. Too bad that you spent all that time reading all those briefs and cases, discussing things among yourselves, and doing all that work to write your well-reasoned opinions. Our lawyer didn’t do his job, and that’s all that counts. And if you do allow us to have a do-over, we have to be given the opportunity for endless briefing because the lawyers have bills to pay, baby.
DUE PROCESS (OR SOMETHING)
Oh, and what you did violates due process, even though we had an opportunity to be heard and voluntarily decided against saying anything. You should realize that was only because we thought we were going to win. Since we lost, now we want an opportunity to argue against the media’s suggested interpretation of the statute, after everything is over. And our Charter-appointed city attorney (the “city attorney”) has personal rights here for some reason even though the case involves public records, not personal files. So yeah, there must be a violation of due process for him too.
IT’S BISIO’S FAULT!
Bisio should have told you that she agreed with the media amicus. We didn’t have to tell you that we disagreed. Or at least we didn’t think we needed to do that until you decided against us. So it must be Bisio’s fault. Besides, even though Bisio agreed with us on one subsection of the FOIA statute, that means that no other parts of the FOIA statute apply and you aren’t allowed to look at them. Because we say so.
YOUR DECISION WASN’T UNANIMOUS
Five of you joined the majority opinion finding that the 18 records are public records; one of you agreed the 18 records are public records but would have issued a more far-reaching decision; but the remaining Justice – the awesome Justice Viviano – thought that the 18 records are not public records. We really like Justice Viviano’s dissenting arguments because he agrees with us. In our view, because the far superior Justice Viviano disagreed with the rest of you, your decision was “splintered.” So either the opinion in the case doesn’t count, or we should get a do-over. All decisions that we don’t agree with should be unanimous, but even if they aren’t, we still should have the opportunity to endlessly argue about them.
YOU DON’T KNOW WHAT YOU’RE DOING
We are going to make Justice Viviano’s dissenting arguments again, but we are going to use more words. We’re not sure that you discussed or even understood his position, and the six of you who agreed with Bisio that the 18 documents are public records couldn’t possibly have read his outstanding dissenting opinion before writing the majority (and concurring) opinions. If you’d considered his arguments, you’d realize that you are all totally wrong and he is totally right. And to prove our point, we are going to insult you by suggesting that you have no idea how to engage in statutory construction. However, we know how to do that, so we’ll explain it to you. Slowly. With many words. And if you still don’t understand, then you should give us a new hearing so we can explain it to you again. Or go back to law school because six of you are hopelessly inept and don’t know what you’re doing.
WE’RE GOING TO IGNORE YOUR DECISION ANYWAY
If you don’t vaporize your decision and allow the court of appeals decision to stand, then neener-neener – we’re just going to ignore you. We’ll make sure that Bisio doesn’t get these records through the magic of our lawyers. The city doesn’t have the records – the city attorney does. It’s not our stuff; it’s his stuff. You didn’t rule that he was the city’s agent, so he must be independent of us – you know, like some rando lawyer whose name we’ve picked out of a phone book. The lawsuit was against Clarkston (but not the office of the city attorney AND Clarkston). Can’t you see? There’s no way that we can possibly get records from this charter-appointed officer person whom we’re telling you is totally independent of the city but who was hired and paid by us and serves at our pleasure to handle things we ask him to handle. Therefore, your decision is merely abstract and advisory. All the more reason for you to erase everything and just go away. You’re not very good at what you do anyway.
I’ve attached the city council’s motion for rehearing below so you can read it for yourself. Though they are less sarcastic than I am, I think I’ve captured the essence of their arguments.
20200814 – Clarkston Motion for Rehearing, pleading only
Our Response
It’s actually pretty shocking to read that a public body plans to ignore a Michigan Supreme Court decision that it doesn’t agree with, but I guess I shouldn’t be surprised. Overall, Clarkston government has got to be amongst the worst in the State, and we certainly deserve better than the Barnum & Bailey show that we endure on a daily basis. That said, I’ll touch on a few of the arguments in our brief below.
The Court is absolutely entitled to accept an argument proposed by an amicus. I’m sure that the city council would have thought that it was perfectly fine if the Court accepted an argument made by the Michigan Municipal League (MML) and the Michigan Townships Association (MTA). After all, that’s why the insurance attorney asked them to file an amicus brief in the first place.
The city council and the insurance attorney make a lot of noise about “due process,” but what is that? The phrase “due process” is shorthand for the foundational idea that before someone is deprived of life, liberty, or property, they should have notice and an opportunity to be heard. Even if Clarkston had due process rights, they were satisfied. They had notice of the arguments in the media’s amicus brief the instant that it was electronically filed on January 31st. They had an opportunity to be heard from January 31st up to the time that the case was decided on July 24th. The difference between us and the insurance attorney is that my attorney wouldn’t have sat on his butt for six months doing absolutely nothing if the MML and MTA had suggested any argument that we hadn’t already addressed.
I said that “even if Clarkston had due process rights, they were satisfied” because Clarkston has no due process rights here. The Michigan Supreme Court is one of three branches of Michigan government. Clarkston is a municipality that exists through the grace of a different branch of Michigan government (the Legislature). Public bodies such as Clarkston don’t have any due process rights against the State of Michigan. The office of the city attorney doesn’t have due process rights against the State of Michigan either, and that’s even more of a stretch to argue, because that office exists because Clarkston created it in its Charter. The due process rights of the city attorney as an individual aren’t an issue here, because everyone agrees he’s not personally a public body and no one is asking for his private papers.
I was really surprised at the way that the city council insulted and attacked the six Justices that they didn’t agree with. I’m not sure that it helps their position very much to make it clear that they believe only one Justice is competent when they need a majority of Justices to grant their motion for rehearing.
The city council focused on one paragraph in a subsection of the FOIA statute. The Court focused on a different paragraph in the same subsection. Both paragraphs existed before the court even agreed to hear the case. The court was entitled to look at all paragraphs in the subsection and doing that doesn’t mean that the Justices are stupid and uniformed. Making alternative arguments about how to interpret the statute is really too late at this point – the city council should have done that while the case was pending.
Like water running downstream, legal disputes inexorably move toward resolution. The Court heard from the city council and me, invited the MML/MTA and the media to submit an amicus, and anyone else in the world could have also asked to submit an amicus by filing a motion asking for permission of the Court. The Justices read all the briefs and the cases cited within the briefs. They may have asked their clerks to perform additional research. Memos were written and exchanged. They listened to almost an hour of argument, and there were a lot of questions and answers. After that, the case was discussed in conference and the Court considered the issue for over four months. They wrote and exchanged opinions, responding to that which they didn’t agree on. And on July 24th, they decided.
This is a lot of work, and it takes up a lot of the Court’s limited time, given the fact that they only grant leave to appeal in about a dozen cases every year. That’s why the Court uses the “palpable error” standard for granting a rehearing. There has to be something big that no one was aware of, and now that they are aware of it, whatever this thing is affects the outcome of the case. I don’t know what could possibly result in palpable error in this case, but I don’t think rearguing the statute, insulting the Justices, and telling them that you aren’t going to comply with the decision meets that standard.
Our answer to the city’s motion for rehearing is attached below.
20200827 – Plaintiff-Appellant’s Answer to Defendant’s Motion for Rehearing