I want you to know that Mayor Haven and the city council have it within their power to end my lawsuit today. They could choose agree to let the public see the 18 records, authorize their attorney to talk to mine about reasonably settling this case, and decide to bring some peace to Clarkston. But that’s not what they’ve planned.
Nope. They want another round of briefing over $1146, even though the legal fees long ago exceeded the amount in question. Following secret subcommittee meetings to explore “options,” as well as a secret, closed session to consult with the attorney assigned by the Michigan Municipal League Liability and Property Pool (MMLLPP) whom I’ll call the “insurance attorney,” Mayor Haven and the city council authorized extensive legal battles over this small amount of taxable costs, further battles over a request for rehearing, and they apparently plan endless arguments in the circuit court once the case goes back there. (Only Councilmember Sue Wylie voted against this course of action.)
Mayor Haven and the city council do not care about their legal fees and costs. The insurance attorney (and the two additional attorneys that he’s now assigned to work on the case with him at his new firm) are all paid by the MMLLPP (which is indirectly funded by Michigan taxpayers, but Mayor Haven and the city council don’t much care about that either).
Mayor Haven and the city council also don’t seem to care about MY legal fees and costs. I believe that’s because they don’t intend to pay them out of the city funds that are available to them.
I believe that the city council’s expectation is that my costs and fees will be paid through a direct assessment on your property tax bill. More on that little trick in a later post, but I’m bringing it to your attention now because I think that every Clarkston taxpayer has a serious financial interest in all of the additional litigation envisioned by the city council.
To briefly recap, I filed a request for what are known as taxable costs in the Michigan Supreme Court. Taxable costs are different than the attorneys fees and costs that are available under the Freedom of Information Act (FOIA). My request was simply to be reimbursed for allowable per page copying fees and the cost to file the appeal in the Michigan Supreme Court. I posted my request, the city council’s objections, the Court Clerk’s award of taxable costs to me, the city council’s request that all seven Michigan Supreme Court Justices weigh in on the matter, and our answer to that request under the posts titled “More Secrets” and “Spending Other People’s Money.”
Now you might think that would be enough paper and attorney time to address this ridiculously small issue. You would be wrong. The city council has now filed a motion asking for permission to reply to my answer because they have even more to say, apparently. The Court was required to accept the request for the entire panel of Justices to review the request, but they aren’t required to grant the city council’s latest motion.
What more can possibly be said at this point? Let’s talk about that.
The city council is apparently greatly offended that we advised the Court that the city council and the insurance attorney (along with a plethora of his colleagues at his old firm) have conducted an unnecessary, over the top, scorched earth litigation campaign on a simple FOIA case that could have been resolved for one-third of the cost. The fact that there are six court filings over what is now $1146 in taxable costs – something that parties don’t usually fight about – actually proves our point, don’t you think?
The city council repeats its claim that I should not receive taxable costs because the Court adopted a more narrow argument than the one I proposed – even though six Justices agreed with me that the 18 documents are public records. According to the city council, the Court was only allowed to focus on my argument and one paragraph under one subsection of the FOIA statute – but nothing else – something that would have defeated the purpose of the Court granting leave to hear arguments in my case.
The city council apparently believes that the Court was barred from considering a different paragraph in the same subsection of the statute, something that was suggested by an amicus brief filed by a large number of media groups (who were invited by the Court to make additional arguments). Because the Court preferred the media’s more narrow approach to resolve the question raised in my case, the city council claims that I apparently didn’t “prevail” and should not receive taxable costs – even though I won the case.
In the court of appeals, we didn’t agree with arguments suggested by the Michigan Municipal League and Michigan Townships Association in their amicus brief. So, my lawyer asked for permission to respond, permission was granted, and we responded. It’s not hard, and it’s something that lawyers do – if they want to fully protect their client’s interests. Yet, the city council continues to claim that it was unfair that the Court relied on a construction of the FOIA statute suggested by the media’s amicus brief.
It wasn’t unfair at all.
Everyone received a copy of the media’s amicus brief the instant it was electronically filed on January 31st. We read it and agreed with the media’s statutory construction suggestion. The insurance attorney also should have read it. He had every right at that point to ask for permission to file a reply to the media amicus brief, and his motion would have been granted – just as mine was in the court of appeals. If the insurance attorney had asked and been denied an opportunity to respond to an argument the Court ultimately accepted, THAT would have been unfair.
But that’s not what happened.
What actually happened is that the insurance attorney chose to do nothing and now the city council regrets that choice. The insurance attorney had from January 31st until the Court issued its decision on July 24th to do something. For those of you counting, that amounted to six months to get off his duff and ask to respond – yet he didn’t do it. He also could have addressed this issue at oral argument on March 5th – but he didn’t do that either. In short, the insurance attorney did not do what he should done in the Michigan Supreme Court. The city council will never know if it would have made a difference, because the Court could have decided the way it did anyway. But failing to do what you are supposed to do when you are supposed to do it doesn’t make a result unfair. It simply means that you didn’t do your job.
Now the insurance attorney is trying to parlay his abject failure to protect his client’s interest into something that is my fault. According to the insurance attorney, I was supposed to file a motion to SUPPORT the media’s amicus brief. Why? I allowed the argument to stand because I agreed with it.
The only thing that the city council argues in their latest motion to reply that has any merit is that taxable costs can’t be awarded until the Court’s opinion becomes final. Decisions become final 21 days after they are issued. The decision in my case has not become final – but that’s because the city council waited until the 21st day to file a motion requesting a rehearing that stays the final effect, something they did after my attorney made the request for taxable costs.
The city council also floats the idea that they might not ever produce the 18 records. What they are suggesting is that the city council will say, “gosh, the city attorney has those 18 records, not us, and he won’t give them to us so that we can give them you.” And the Charter-appointed city attorney (whom I refer to as the “city attorney”) will say, “gosh, you sued the city, not me, and since I wasn’t a party to the lawsuit, no court can order me to turn the 18 records over to the city council.”
If something like that happened in the real world, most clients would fire the attorney and file a grievance with the Attorney Grievance Commission, because lawyers are required to cooperate with their clients. Cooperation here would be providing copies of the 18 records that were created or received in the conduct of city business – for which the attorney was paid with taxpayer dollars – to the city council on request. It’s also a rather odd position to take, since the city attorney suggested he would turn the documents over if the city council asked – he told them that even though he didn’t understand why the city council would want to release the documents, if they wanted to discontinue defending the lawsuit, that’s their right (9/11/17 city council meeting at 1:29:51). So, in the city attorney’s view, the city council had the right to receive the documents from him on request back then, but now they don’t?
I also doubt that most attorneys would have the chutzpah to stand in front of a circuit court judge and make such an argument, since judges understand the ethical requirements of attorneys – because judges are also attorneys. (Seriously – what in the hell is in those 18 records that they don’t want anyone to see?)
Finally, the city council suggests that there is “still much to be addressed in the trial court.” That’s lawyerspeak for “if we lose here, we are going to continue to fight everything there for as long and as hard as possible.” Since I think Mayor Haven and the city council anticipate that YOU will pay my attorneys’ fees and costs directly, they don’t care how much these battles cost.
The city council apparently wants to argue that the 18 records are exempt under the FOIA, even though the only exemption that they raised in their answer to my complaint was the civil action exemption. That exemption does not apply because I wasn’t a party to a civil action with the city when I made my FOIA request (a fact that the court of appeals reminded the city of when it issued its opinion).
I would also note that the city attorney never suggested that ANY FOIA exemption would apply in both of his answers to my FOIA request – his position was always that he is not a public body and therefore these are not public records. Unfortunately for him, the Michigan Supreme Court determined that as an officer, he occupies the office of city attorney, and everything that he does that relates to official city business is a public record.
The city council’s motion and brief are posted below.
20200824 – Motion for Leave to File Reply Regarding Plaintiff’s Answer re Costs
I’m also posting our response. I’ve covered most of what we said when discussing the city council’s arguments and I won’t repeat that here. As for the city’s conduct in this case, my attorney succinctly summarizes it by saying: “We have simply pointed out that the city is inflexible and unreasonable, unwilling to discuss any resolution of this matter, and invoking every procedural obstacle to a final resolution. The city’s conduct here is consistent with these observations.”
That is absolutely true. The conduct of the city council and their attorneys has been reprehensible, and I’ll have more to say on that in later posts.