The Clarkston City Council has turned spending other people’s money into an art form. I’m not referring to the renovations to city hall that we couldn’t afford and that the community expressly said we didn’t want through a sign and letter writing campaign, or even the outrageously expensive driveway they’re installing as an add-on to the city hall renovations. No, I’m talking about the city spending thousands of dollars in attorneys’ fees – on their side and mine – to fight over whether I’m entitled to $1146 in taxable costs. This is exactly the kind of thing they’ve been doing for the last four and a half years. If you want to know why the fees are so high in this case – on both sides – you need look no further than the city council and their attorneys.
The funding for the city’s motion to contest my request for taxable costs, and the motion for rehearing that I’ll discuss in a separate post, is coming from the Michigan Municipal League’s Liability and Property Pool (MMLLPP). The MMLLPP gets its money from all of the cities, villages, and townships buying into their insurance program (including Clarkston) – and cities, villages and townships get their money from the people who live in those communities who are compelled to pay local taxes or face government punishment – and these people get their money by working hard every day. As always seems to be the case, the people at the top of the food chain don’t seem to appreciate the people at the bottom very much, yet it is they who are funding our city council’s endless legal gymnastics. But I digress.
As I explained below under the heading “More Secrets,” I made a request for what are known as “taxable costs” in the Michigan Supreme Court. These costs are separate from the litigation fees and costs in the FOIA lawsuit, and you can ask for taxable costs if you “prevail.” My request was limited to the cost to file the appeal in the Michigan Supreme Court and a per page copying fee for the pages in my appeal brief, reply brief, and the appendix. The total amount I requested was a modest $1761.
Following their secret, closed meeting on August 4th, Mayor Haven told us that the city council authorized the attorney being paid by the MMLLPP to contest my request for taxable costs, which means fight it as hard as possible, for as long as possible, without regard for costs. (Only Sue Wylie voted against this course of action.) I’m going to refer to the lawyers funded by the MMLLPP as either the “insurance attorney” or the plural “insurance attorneys,” because they’ve paid a LOT of lawyers in this case to oppose my one lawyer and me.
So, what does it mean to “prevail” for taxable costs purposes? The relevant definitions in the Oxford English Dictionary define the word “prevail” as “prov[ing] more powerful than opposing forces; be victorious” or to “persuade (someone) to do something” (https://www.lexico.com/en/definition/prevail). The Court Clerk who reviewed my request for taxable costs defined “prevail” as improving my position on appeal – since I lost in the court of appeals but won in the supreme court that seems obviously true. You can find my request for taxable costs, the city council’s objections, and the Court Clerk’s decision to award me $1146 discussed in the post titled “More Secrets.”
Normally that would be the end of a request to tax costs. The prevailing party files a bill of costs and the clerk of the court reviews it and decides what the amount should be. Rarely, however, a party can ask the court itself to review the clerk’s decision.
That is what the city is doing. The city council is asking all seven of the Michigan Supreme Court Justices to weigh in on what is now a request for $1146. I’m attaching their motion and brief here, so you can see your tax dollars at work. (FYI, they weren’t entitled to file a brief along with the motion without asking the court for permission, but they it did anyway.)
20200811 – Motion to Review Costs
The city council has spun several interesting theories to oppose my request for costs that only a lawyer being paid with endless funds could dream up. For the last four and a half years, the city council and their lawyers have always focused on WHO is a public body. We have always focused on WHAT is a public record, and we’ve always said that the 18 documents (that the city has still refused to turn over) are public records. In ruling in my favor, the Michigan Supreme Court found that the Clarkston Charter creates an office of the city attorney, which is a public body. Therefore, the records created or received by the office of city attorney relating to his work for Clarkston are public records – just as we’ve always claimed they are. The city council thinks that because the Michigan Supreme Court used a different analysis to get to the point of agreement with us – that the 18 documents are public records – this means that I didn’t “prevail.” I guess in the city council’s world, no one won the case.
The city council further claims that because the issue in my case is a matter of public interest and because they made “good faith” arguments, I shouldn’t be awarded taxable costs. This could only be true if you think doing everything possible to try to make me go away by driving up my fees to outrageously high levels and throwing every possible roadblock in the way is acting in good faith. 
They also didn’t cite to any FOIA cases to support this interesting claim.
The insurance attorneys also made an argument on behalf of the city council that I view as nothing more than a CYB (cover your butt) move from the lawyers. Let me explain.
There were two amicus (“friendly”) briefs filed in my case. One supported me and was prepared by the Michigan Press Association, the Free Press, a number of other media owners, and various organizations that support open government (that I’ll refer to as the “media brief”), and the other supported the city and was prepared the Michigan Municipal League and Michigan Townships Association (MML/MTA). Please note that the Michigan Supreme Court specifically INVITED these organizations to file these two amicus briefs, and they were filed on January 31, 2020.
The purpose of an amicus brief is to assist the court in deciding issues in the case, and they aren’t supposed to repeat the arguments that the parties have already made. The media brief filed in the Michigan Supreme Court didn’t add new facts to the case; it simply suggested another way to view the words that are in the FOIA statute – which is exactly the kind of thing that an amicus brief is supposed to do.
If either side wants to respond to an argument made in an amicus brief, there are many ways to do it. The most common way is to file a motion asking the court for permission to respond. It’s something that’s easily done, the court almost always agrees, and it happens all the time. In fact, WE asked for permission to respond to the MML/MTA’s amicus brief in the court of appeals (which was filed really, really late), and the court promptly granted us permission to file a response. A party can also file a motion asking that all or part of an amicus brief be “stricken” (removed from the court’s consideration in the case) if that party thinks an argument made in the amicus brief is improper. A party can even wait until the oral argument in the case to address an issue raised in an amicus brief.
Guess what the insurance attorneys did after reading the media brief on January 31st?
Nothing!
They did not file a motion to ask the court for permission to respond to the media brief. They did not file a motion to strike any part of the media brief. And, they didn’t even bother to mention the media brief at oral argument. They had from January 31st until the court issued its opinion to do something, almost six months. This isn’t to say that, had they done any of these things, the result would have changed, because the Court could have decided the way it did anyway. I’m just pointing out that the insurance attorneys didn’t care enough to address the arguments in the media brief when they had the chance to do so.
After completely blowing the opportunity to provide any input whatsoever, the city council and the insurance attorneys are now angry that a majority of the Justices believe that the media brief suggested the correct way to look at the FOIA statute. If you read through the city council’s motion and brief that I posted above, you’ll see that they actually say that it’s just not “fair to tax costs against a party that never had an opportunity to address the unpreserved but winning argument of the amicus.”
Say what? As I explained above, the insurance attorneys had ample opportunity to address the argument and made a deliberate choice not to do so. That doesn’t make the result unfair.
So why do they think it’s worth it to spend so much (of other people’s) money to argue over $1146 rather than saving the whiny “it’s just not fair!” argument for their motion for rehearing? Since the city council apparently has zero interest in settling the case for a reasonable amount, we think they are hoping that if the Justices make a technical determination that I didn’t “prevail” under the court rules on the taxable cost issue that such a finding can be used as leverage when we go back to the circuit court to fight over FOIA fees and costs. The problem with this approach is that the standard for awarding taxable costs (that you must “prevail”), and the standard for awarding FOIA costs and fees (that the lawsuit was necessary to bring about the production of the documents), are entirely different.
We obviously don’t know if that’s the plan, but it wouldn’t be surprising. It would also explain why the city council thinks it’s appropriate to expend so much time and taxpayer money to fight over something that litigants rarely argue about – because the cost of fighting over such a small amount of money far exceeds any benefit achieved. I suspect if the attorneys’ fees were coming directly out of the city’s budget, the city council would act quite differently.
Here is our response to the city’s motion opposing my request for taxable costs. The way to read this is to match the numbered paragraphs in the city council’s motion with the numbered paragraphs in our motion – for example, our paragraph 1 answers the city council’s paragraph 1 and so on.
20200817 – Plaintiff-Appellant’s Answer to Defendant’s Motion to Review Taxation of Costs
I’ve already discussed most of what we said, but I want to draw your attention to an overview of the kinds of things that the city council and their insurance attorneys have done in my case (discussed in footnote 5 on page 9 of our response): “The city has . . . litigat[ed] the matter for more than four-and-a-half years, fighting every inch of the way [by] refusing to accept service of the summons and complaint; opposing summary disposition when the facts needed to decide the case were uncontested; insisting on discovery and then resisting discovery, requiring a motion for discovery sanctions and subpoenas to city witnesses who refused to voluntarily appear for deposition; refusing to stipulate to producing just the relevant transcripts for appeal; now opposing a modest request for costs and escalating the matter to consideration by the full Court; and filing a motion for rehearing of the Court’s 6-1 decision in plaintiff’s favor . . . ”
Does ANY of this sound like “good faith” to you? That is why we’ve repeatedly said the city council and the insurance attorneys are to blame for the unbelievably high fees and costs that have accumulated in this case.
Let’s also not forget the city council’s arguments in the lower courts, or the manner in which they were delivered. Among other things, they accused me of fraud. (Still not sure why.) The insurance attorney claimed – over and over – that my FOIA request was sent only to help my husband in his Open Meetings Act (OMA) lawsuit (a lawsuit that forced the city council to admit that they’d broken the law). The insurance attorney had no evidence on which to base his claim that I was acting on behalf of my husband, yet he repeated that falsehood to the city council, many of whom apparently believed it. The insurance attorney regularly used male pronouns to refer to me in papers filed in the court, so I guess he just believes that married women can’t think for themselves. (Since when is sexism and misogyny OK?)
Does ANY of that sound like “good faith” to you? Of course it doesn’t! The city council and their lawyers cannot seriously claim that they’ve EVER acted in good faith – unless they erase and rewrite the last four and a half years of history.