51st Circuit Workout: High Remand Exercises

[XLFD]

Ever since we learned from the Michigan Court of Appeals that we were finally declared the "prevailers" (FOIA Appeal Prevailing) in our FOIA lawsuit against the City of Ludington who tried their darndest (even using perjury) to keep the public records about City Councilor Nick Tykoski unethical and illegal business dealings with the City he was an official with from the public, including a host of invoices and checks that were initialed by his wife, Community Development Director Heather Loney Venzke Tykoski (one even sent to their house, that they obtained through mysterious means), it's been annoying. 

 

First, the public has had to deal with the host of misinformation that our appointed officials tell the public through their loyal local media, debunked in Clarifying Transparency.  Then we have had a couple of other incredible pieces of mail from these same characters (city attorneys rush to settle costs).  Meanwhile, I have waited around for a piece of mail, or at least a phone call, from the 51st Circuit Court, telling me that they have received the record back from the Michigan Court of Appeals.

 

I had expected some notice to come in early December, as I received the Court of Appeals decision dated October 17, 2013.  At that point, I had to apply for a leave to appeal within 42 days of that decision by Court rule 7.302(C), which terminated my right to appeal on November 28.   

 

I was strongly considering appealing to the Michigan Supreme Court over the issue of the FOIA fees we got charged for without ever seeing, and when we had an express clause on our requests which has them get back to us if they believe the costs will be over twenty dollars.  The City of Ludington effectively got $700 without ever showing us the records as per our requests.  The legal advice I received was that I had a good chance to win an appeal to the highest court, but it would likely not be picked up by them, since they only pick a very small percentage (less than five percent) of appeals to them, and it would be hard to dress this one up to interest them.

 

That being the case, I waited and waited for a notice that I was supposed to be receiving from the 51st Circuit Court once the case got remanded back to them.  This is because of Rule 7.311 (B) 

Return of Record. After final adjudication or other disposition of an appeal, the clerk shall return the original record to the ... clerk of the court to which the case has been remanded for further proceedings, and the clerk of the lower court to which the original record has been sent shall promptly notify the attorneys of the receipt of the record.

 

This is reinforced in the State of Michigan's Bar Association publication about what to do when your case is remanded:

 

So when the City Attorney law firm sent me a proffer and then a proffer plus a check, they knew that all jurisdiction still belonged to the Court of Appeals for more than a month. A lower tribunal does not have jurisdiction to conduct proceedings in a remanded case until the record is returned, and it is voidable if they do so (Luscombe, 212 Mich App at 542).

 

So I continued waiting through the rest of the year for this notice I (and the City's attorney) was required to get from the circuit court, so we could start asserting our costs and disbursements to the City and the court.  No notice.  I sent out a letter on January 9th to get to the crux of the problem:

 

 

On January 15, the court sent us and the City's attorney this cover letter, a copy of the above letter (two paragraphs talking about the FOIA case I have pending with the MSP was redacted), and this letter from Honorable Circuit Court Mark Wickens below:

 

 

What Judge Wickens refers to "our standard practice" is against the Michigan Court Rules.  The law requires the Court administration to send a notice, as lightly referred to in my letter, to both parties when the Appeals Court sends the record back to them.  I would have to believe the Appeals Court would have this concept down, so I will presume it is the 51st Circuit Court's oversight, as neither the court or its judge references the rules and they have a long history of going against court rules and protocol that you would presume is known by the court employees.

 

 

Perhaps the interpretation of "our standard practices" according to Honorable Judge Mark Wickens explains why he let the people down by allowing Eric Knysz to more easily turn into a monster capable of cold-blooded murder by showing too much leniency, probably due to Eric's dad being a former cop. 

 

Fortunately, the plaintiffs are not 'familiar' with either of these arbitrary 'type of process' that goes against logic and the court's own rules.  And in that regard, we still have not received notice from the court that they have had the record returned-- but when has our local circuit court been a stickler to the rules?  

[AQUAMAN]

Thanks for the update X. I guess you are now privy to the same methods of court justice that so many other Ludingtonians have had with the Circuit Court in Mason County for prolonged years under the Coop tyranny. The cartoons are great, esp. the last one, where the picture on the wall is that of Capt. Kangaroo, many here may not know that gent. On the horizon though we can only ask why a select judge in another county is now in the mix, that of Wickens, a sad example of following in his father's footsteps, and of course, the Coop himself, all on the same page of justice and permission denied.

[XLFD]

Good Morning, Captain!  Seriously, the district and circuit courts here in Mason County believe in the old adage to be tough on crime, but they often err and are tough on justice instead.  They are plenty tough on common criminals guilty of small infractions, but loathe to give their fellow officials and their kin, judgments fair for their major sin. 

If you recall, we dismissed Cooper from judging for his son being on the City's legal team, and it was four months and several motions and papers filed until he notified us of that fact.  His son has since divorced himself from the Manistee firm, but since we did file a complaint with the Judicial Tenure Commission about Cooper's appearance of impropriety issue, we are okay with him staying away from this case's remand, even though Judge Wickens is probably equally principled at best. 

Don't be surprised if we go back up to the Appeals Court when or if the City and/or Judge Wickens tries to keep proper costs and disbursements from us. 

[Willy]

Thanks for the update. It looks as if the anchors of justice have been thrown overboard and are impeding your Court action. Your efforts must be extremely frustrating.

[XLFD]

Nowadays, I feed on frustration thanks to a beneficial mutation that allows me to adapt to the surrounding environment.  Evolution rules: