Rev. Martin Luther King, Jr.
On January 20, the day that the nation set aside to honor Dr. King this year, I learned that the Michigan Supreme Court had added my case to the March docket for oral argument. My stomach filled with butterflies at the thought, but at the same time, this quote from Dr. King immediately came to mind.
It certainly has been a long journey. I made a FOIA request for records from Clarkston City Hall on June 7, 2015. Almost five years later, the Michigan Supreme Court will hear arguments about whether Clarkston – and every other local body in Michigan – will be allowed to keep records relating to government business in off-site files and claim that they can be hidden from the taxpayers who paid for them. To give you some perspective, the Michigan Supreme Court’s website states that the court receives over 2,000(!) applications for leave to appeal every year and takes only those cases “of the greatest complexity and public import, where additional briefing and oral argument are essential to reaching a just outcome.” Last year, the Court granted leave to appeal in 21 of the 1757 cases where someone sought review. The Court heard oral argument in just 13 of the cases where it granted leave to appeal.
My case is scheduled for oral argument on March 5th in Lansing, at the morning session beginning at 9:30. Each side will have 20 minutes total to argue. This time includes 2 short minutes in the beginning that the lawyers can use to outline their case before questions start, but the lawyers can waive that time if they want to. This means that the lawyers will mostly be there to answer the Justices’ questions. Oral arguments are open to the public, but you can also watch them on line. The court even has its own YouTube channel, found here:
https://www.youtube.com/user/MichiganCourts/videos
Even though it will be tempting to make a prediction about the result, it will be very hard to discern how the court will rule based on questions alone, which are designed to push and challenge the lawyers. The Justices will be familiar with everything that has been filed with the court, so they will want the lawyers to respond to hypotheticals and pointed queries. The court will likely issue its decision no later than July 31st, which is the end of the current term.
If you are interested in reading the briefs in the case, I’ve provided the links below. Because I am the one appealing a decision that was not in my favor, my brief was filed first, the city had the opportunity to respond, and I was permitted the opportunity to make a short reply.
https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2019-2020/158240/158240_69_01_AE_Brf.pdf (the city’s brief)
https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2019-2020/158240/158240_73_AT_Reply.pdf (my reply brief)
My attorney prepared an excellent summary of my position versus the city’s position in my reply brief – and he’s footnoted everything so that you can see for yourself that the city is literally staking out a position against our interests as local Clarkston taxpayers – with the blessing of the majority of our city council. You can find this summary on page 5 and 6 at the link to my reply brief in Section 1 titled “Two Starkly Different Worlds,” linked above. (The heading on the second column is “appellant” – that’s me.)
Over the last several years, a handful of current and former Clarkston city council members have questioned why city-related records are being kept in a private office, why the charter-appointed attorney decided on his own to withhold records from me without consulting them, and why Clarkston is involved in a FOIA lawsuit that requires the city council affirm a position against government transparency. Current Mayor Eric Haven doesn’t like those kinds of inquiries. He’s told us that he thinks that asking these kinds of questions puts the city’s credibility in jeopardy with the Michigan Municipal League (MML) and Michigan Townships Association (MTA), presumably because they supported the city with an amicus brief (I’ll discuss the amicus briefs later.) He even went so far as to tell the council members that they should stop conjecturing, hypothesizing, agree, be thankful, and “cease and desist.” Sorry, Clarkston taxpayers – Eric Haven is just not that into you.
Anyway. It’s been a long journey. Along the way, some of you have gone out of your way to tell me that you support me and to stand strong. Thank you; your kind words have meant a lot to me. And for those of you who have not been so kind, let me just say that I believe that your legal position is incorrect – and leave it at that for now. I trust that we won’t have much longer to wait for a determination.