Appellant's Brief for FOIA Appeal: Swiger and Rotta v. City of Ludington,

[XLFD]

In September 2011, when we pushed more than we ever had to see some records that the City of Ludington wanted to keep deep in their archives, we found a diligent opponent to transparency in the person of City Manager John Shay and his stable of City Attorneys from Manistee, all serving the public here in Ludington without swearing an oath to the documents that we all should hold dear, our State and Federal Constitutions.  By hook and by crook they have committed a nefarious scheme to conceal some fairly obvious unethical and illegal acts by that group of business owners and their government bedfellow partners that make up our Downtown Ludington Board, also known as the Downtown Development Authority.

 

The factual background is summarized in three pages in the legal brief below, so I will not reiterate those facts here.  We have dealt with a lot of this in the Ludington Torch, including the trumpeting of victory that was done at the Ludington City Council when they announced they won this lawsuit on the night after Judge Wickens ruled favorably for the City.

But losing the first and second rounds in an unfriendly arena is not what counts if the challenger gets up for the third round.  Late last year we announced that we had initiated an action in the Michigan Court of Appeals to address a miscarriage of justice in:   is-the-third-appeal-time-a-charm.

Since then we have been fairly mum on the topic; we had a bit of a hiatus because we didn't receive a transcript of the 9-10-2012 hearing until 1-14-2013, and our procrastinating natures made us get in the brief on the last day before it would be accepted.  The public records are in our hand, the only thing we need to wait on now is justice and for the tenets and precedents of the FOIA to be upheld.  To be sure, we are up against a law firm dedicated to quashing the release of public records, and a court system that may factor our non-attorney, indigent status against us in their eventual decision.  But we are hopeful our arguments will win the day in spite of their lack of being prepared rigorously by an attorney.

A couple threads put out foreshadowed our general ideas without going into any legal jargon and required a bit less reading:  we-won-our-foia-lawsuit-against-the-city-pt-1-the-claim 

we-won-our-foia-lawsuit-against-the-city-pt-2-the-counterclaim.  But here is the full legal argument that we prepared for the court.  The first .pdf files shows the cover page, an introduction (helpful and allowed, but not required), table of contents, index of authorities, jurisdiction statement, and a statement of questions.  The next .pdf is a statement of facts, followed by the meat of the argument and analysis section, whose last page is the summary and relief requested.   The .pdf of this wouldn't fit. so the original Word document is provided.  The story taken directly from the Facts is provided at the end, with links to pertinent data.  I will do the same with the arguments at a later date.

COA Brief p1.pdf

Facts.pdf

Summary of Argument.docx

                                              STATEMENT OF FACTS

This appeal involves a FOIA appeal case by plaintiffs for production of public records p.1 p 2 p 3.  The defendants countersued  CC Title page claiming six factors for their own relief.  After a protracted court process, the trial court found that plaintiffs case was rendered moot by the eventual revelation of the requested records, and that defendant was given financial relief for part of their claim.  The plaintiffs appeal.  Appellants assert that there are no significant controversies of fact, but that there are only questions of law to decide.

ROTTA has ran a local blog/social networking site called the Ludington Torch since 2009, whose main focus has been on controversial local issues of the Ludington area, writing articles that often focus on the City and the County's governments.  To this end, he along with SWIGER, have made numerous FOIA requests to LUDINGTON for information not readily available to the public, for the sake of keeping the local populace informed about all matters regarding the affairs of government and the official acts of those who represent them as public officials and public employees.  Numerous times ROTTA or SWIGER have administratively appealed denials of records, always being denied the records through this approach.

On February 28, 2011, LUDINGTON through their city council passed a "workplace safety policy" and implemented and served a "letter of trespass" on ROTTA the next day which prohibited him from entering the city hall and police station (separate buildings) of LUDINGTON, with no rationale given as to why such an action was taken.  A news release four days later said an employee of LUDINGTON felt 'intimidated and threatened' by ROTTA, necessitating the policy, but no behavior by ROTTA other than making numerous FOIA requests was given in that release or since.  The police station and city hall of LUDINGTON, it will be noted, were the only places ROTTA could inspect FOIA requests from LUDINGTON, what he almost always asked to do for FOIA requests.  A federal case on the civil liberties infractions involved with such measures, and other ramifications of this policy, is currently pending in the West Michigan District Federal Court.

With this policy in place, SWIGER, who already had an affidavit of indigency on file affidavit, was utilized exclusively by ROTTA as a proxy to make FOIA requests to supplement and corroborate his articles.  On September 7, 2011, she made a request for business records between a contractor and LUDINGTON since 2008 (original request).  The contractor happened to be a highly visible LUDINGTON official/employee who was running for LUDINGTON city council who happened to be engaged with another LUDINGTON official who had the power to approve and pay contractors working for LUDINGTON.

LUDINGTON replied in a way that did not grant the records, nor overtly deny them, but referred back to four prior requests that referred to the same contractor (and others), but asked for different records (original reply).  After a couple of attempts to mediate some way of getting these records, ROTTA and SWIGER called for an administrative appeal to the LUDINGTON city council, arguing that LUDINGTON had not responded in a way recognized by FOIA, left no means of acquiring the records, and hence denied the request (such as).  ROTTA asked the LUDINGTON City Manager/ FOIA Coordinator for written permission to attend the open meeting to discuss the issue, but was passively denied such admittance.  Written permission by him was required for ROTTA to enter the city hall of LUDINGTON to attend these open city council meetings, as per the "letter of trespass".

At the meeting, LUDINGTON took the appeal off the agenda, never addressing the issue.  By their right, ROTTA and SWIGER filed an appeal in the 51st Circuit Court to be tried under Judge Richard COOPER after waiting the statutory amount of time.  Their complaint sought the relief of timely disclosure of the documents in the September 7 request, and to be reimbursed court cost.  LUDINGTON's City Attorney, the law firm of Gockerman, Wilson, Saylor and Hesslin, came forth to represent LUDINGTON on November 8, 2011, (after the contractor mentioned in the FOIA had been elected to LUDINGTON's city council) making note that they would be filing a counterclaim.   Unbeknownst to SWIGER and ROTTA until 121 days later, Judge COOPER's son, Craig Cooper, was also a partner in the firm representing LUDINGTON, although this was known by the court and the opposing attorneys at this time.

On November 15, Judge COOPER notified SWIGER/ROTTA that the court process would entail a countersuit and a more drawn out process.  On November 17, 2011, the counterclaim and answers were filed, LUDINGTON was seeking: 1) to determine whether SWIGER was indigent, 2) prohibit SWIGER from making FOIA requests for others in order to avoid fees 3) limit SWIGER/ROTTA on the amount of FOIA requests per month  4) to have LUDINGTON refuse to respond to further FOIA requests until all previous FOIA requests have been paid 5) to pay money owed for those past FOIA responses  6) attorney fees and costs.  The costs followed a timeline of FOIA requests and totalled $4344.97. (relief1, relief2, timeline)

After some discovery, including deposing ROTTA and trying to depose SWIGER (which was procedurally quashed), and their own request for summary disposition, LUDINGTON submitted a brief to the court asking for summary disposition on their behalf and included what they said amounted to the records sought by plaintiffs, presumably making the point of disclosure moot.  The records given totally matched what LUDINGTON had previously disclosed on two of the prior FOIA requests, the brief noting this fact in detail in order to show this was a duplicative ..., and including an affidavit (p 1, p 2) by LUDINGTON's FOIA Coordinator that certified all itemizations of exhibits attached to the brief were accurate.   Over 70% of the records received did not comply with the September 7 request in question.

Being that discovery was finished, ROTTA sent a FOIA request asking for specific invoices for contractor work that other records in his possession indicate were done by the aforementioned contractor, and not part of the records given to him by LUDINGTON.  Alerted to the mistake they made, LUDINGTON supplied these 9 records, and several more (many of the invoices for significant purchases initialed by LUDINGTON's FOIA Coordinator) adding up to 26 other records previously undisclosed records, reclaiming that the point was once again moot.  In their supplementary brief issued before their scheduled March 7, 2012 hearing, SWIGER/ROTTA noted what they saw as a blatant deception on LUDINGTON's part and several other ethical/civil/criminal actions on the part of LUDINGTON's operatives over the course of the previous year in blocking disclosures.

At the March 7, 2012 hearing, Judge COOPER admitted he was the father of one of the attorney who was representing LUDINGTON. LUDINGTON's counsel argued that they had went through pains to make sure that there would be no impropriety involved by having their attorney Craig Cooper not involved in any way in this case. ROTTA/SWIGER decided to disqualify the judge on these grounds. When the Circuit Court did not act on this disqualification move after several weeks, SWIGER/ROTTA filed the motion and filed a complaint with the Judicial Tenure Commission for the Judge's and court administrator's negligence in disclosing this appearance of impropriety for over four months among other perceived canonical transgressions.

The 51st Circuit Court still retained jurisdiction as Judge Mark WICKENS resided over the next scheduled hearing on May 21, 2012.  After arguments were heard, including LUDINGTON's counsel noting to his knowledge that SWIGER/ROTTA had paid for all the FOIA responses they received, the judge ordered that SWIGER/ROTTA's complaint was moot with no other consideration, and that a further hearing was needed to establish what considerations may be due for LUDINGTON.

In the interim of that hearing and the September 10, 2012 hearing, SWIGER/ROTTA received no further documents from LUDINGTON regarding their countersuit or its claims.  After the hearing was scheduled to start, SWIGER/ROTTA were given a revised list asking for over $700 for past FOIA requests compilation.  According to testimony by LUDINGTON's FOIA Coordinator, all but one of these requests were never delivered to ROTTA or SWIGER, but LUDINGTON still charged for the compilation of the requests.  Trial court Judge WICKENS in his judgment ruled that all were permissible, except for some charges to SWIGER where her affidavit was ignored by LUDINGTON.

[Willy]

I sure admire the fact that your not caving in to the pressures of a high paid attorneys. It's unbelievable that the City is going to all this expense just to keep information out of the public's hands. They are wasting tax dollars that should be spent for common sense projects. I think the Council, Mayor and Shay need to have mental examinations before they can hold office.

[XLFD]

Speaking of "wasting tax dollars that should be spent for common sense projects", look at part of City Manager Shay's budget amendments he had to make from last year.  "Look Ma, I've become a line-item!" 

 

 

Here's the context:  our City Council and de facto City Manager Shay spent nearly $17,000 over budget for attorney's fees (our contracted City Attorney law firm working against the interests of the people) dealing with trying to justify their non-disclosure of 29 pages of non-exempt public records that detailed Nick Tykoski had unethically received around $50,000 doing work for the City while he was serving on the DDA's Sign Committee, having checks wrote to him by his loving wife, Community Development Director Heather (Venzke) Tykoski.  All this without a contract between the two parties, all this with an obviously rigged bidding process, all this in full knowledge of all City Hallers.