Fourth Year of FOIA Quest Begins With Pending Decision in Appeals Court

[XLFD]

Brief History

In October of 2011, I and my associate filed a complaint in the 51st Circuit Court regarding a Freedom of Information Act (FOIA) request that the FOIA Coordinator for the City City Manager John Shay) denied me, and that the Ludington City Council that I appealed to initially as an administrative appeal denied even handling it.  This was with good reason-- the records that were eventually received during discovery several months later showed unethical/unlawful dealings between the City of Ludington and Councilor Nick Tykoski's sign business. 

But even those were gotten only after the City Manager gave the plaintiffs a false set of records and was summarily caught lying on his affidavit which said they were all the records being sought.  Shortly after that, plaintiffs learned the Judge handling the case for over four months had his son on the City's defense team.  A replacement judge was gotten from the same court, Judge Mark Wickens of Lake County, who ruled as if his son was on the City's defense team, denying any relief for the plaintiffs by dint that the City eventually released the records, and all the money, time and effort they spent were lost-- he even found them liable for $700 of FOIA requests that they never received from defendant (and still haven't). 

In the end of 2012, the plaintiffs filed in appeals court, and was rewarded about a year later with a decision that declared them as the prevailing party and entitled to costs and disbursements incurred which the trial court would decide on remand.  Defendants immediately tried to settle by paying only the initial court filing fee in Circuit Court. 

Plaintiffs submitted a list of costs and disbursements they should have been entitled to, Judge Wickens intervened without hearing and ordered only the initial filing fees and three motion fees in his court, amounting to $210.  This was $700 less than the plaintiffs had asked for in legal costs and disbursements they made in prosecuting the case through the appeals court.  Plaintiffs reluctantly appealed again, this time to address an abuse of discretion by Judge Wickens.  A more detailed account was in our Facts on Appeal and our case was effectively for getting a proper remand judgment for our costs and disbursements, and to ask for stricter remand instructions or a fair arbiter in our  Arguments.docx 

The Appellee Brief

As usual, when one appeals to the appeals court, the other party gets to respond with their own brief, usually to defend their position and do their best to explain why the original ruling was made fairly and accurately.  It is not required to be filed, but when you as an attorney are getting paid by the City of Ludington for all your costs and disbursements and your up-to-$340 per hour fees to defend why the two indigent appellants are not entitled to get back the money they invested into getting a satisfactory ruling, you definitely have to file it, and have John Shay sign your invoice.

The City's law firm was recently assimilated by a larger firm that operates out of Grand Rapids, http://www.mmbjlaw.com/ , and they utilized one of their new partners, James F. Scales to help with the brief with assistance from George V. Saylor III, a judicial candidate for the 19th Circuit.

I offer the following .pdf files that is the extent of the appeal without comment at this point, since we asserted our right to file a reply brief to the appellee brief to address their points

Intro Facts Appellee.pdf

Arguments Appellee.pdf

Exhibits Appellee pt1.pdf

Exhibits Appellee pt2.pdf

I will showcase the last part of their fifth and last argument from the second .pdf file, just because we will key up on it n our last reply argument:

The Reply Brief

This brief is represented in its entirety as follows:

REPLY TO APPELLEE ARGUMENT

 

This Reply Brief is filed timely within 21 days of the Appellee's Brief by authority of MCR 7.212(G) to address the five arguments issued by appellee in their brief. 

 

A.     Appellee Incorrectly Defines the Abuse of Discretion Standard

 

A perusal of the initial complaint and all subsequent filings of the plaintiffs and then appellants of this case, will never find them asking for attorney fees, however, it continually remains an exercise of the defendants/appellees to bring the denial of these fees up as if appellees have somehow been arguing for them throughout, so much so that the initial Appeals Court judgment repeated that denial. 

Therefore, appellants only seek the other two components of what MCL 15.240(6) offers the prevailing party, which is reasonable costs and disbursements.  However, appellees claim that the applicable standard of review must be a combination of two precedents whose findings have no connection to what should be used for a standard of review in this case. 

The first specifically mentions only the awarding of attorney fees in a FOIA case, implying that costs and disbursements have a different set of standards:  "We review an award of attorney fees to a prevailing party in an action under the FOIA for an abuse of discretion."  Michigan Tax Management Services Co. v. City of Warren, 437 Mich 506, 507; 473 MW 2d 263 (1991).  Attorney fees have never been sought by plaintiffs.

The Shanafelt v. Allstate Ins. Co, 217 Mich App 625, 634; 552 NW2d 671 (1996) also is discussing attorney fees alone before they make the statement about abuse of discretion quoted by appellees, saying immediately before the appellee-quoted precedent Id., p. 217:  "A circuit court’s decision to award attorney fees is, in general, discretionary. Wojas v Rosati, 182 Mich App 477, 480; 452 NW2d 864 (1990). 

In FOIA cases, attorney fees are rarely discretionary by the mandatory dictum of the statute MCL 15.240(6), in fact if plaintiffs prevail: "... the court shall award reasonable attorney fees...".  Shanafelt was effectively a dispute over an insurance claim, where the court has much more discretionary powers. 

The standard of review used by this court should be interpreted based on the legal definition of what comprises an "abuse of discretion", which by West's Encyclopedia of American Law (2008) is defined as:

 "A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom."  

The facts and our arguments in our original brief will hopefully show that Judge Wickens decision to deny anything beyond court costs when the original appellate decision and statute mandated costs and disbursements was an abuse of discretion. 

 

B.     Appellant Sought Costs and Disbursements in a Manner Afforded by Michigan Court Rules

 

As stated in appellant's brief, by MCR 7.210(I), "The trial court shall promptly notify all parties of the return of the record [from Appeals Court] in order that they may take the appropriate action in the trial court under the Court of Appeals mandate."   The trial court failed to 'promptly' do that, in fact the docketing statement clearly shows the trial court received the record on December 12, 2013 and withheld that information from appellants until two months later on February 11, 2014. 

This appeared to be due to the appellants demanding such notice and telling the court they had been waiting patiently for three months in a January 9, 2014 letter, and follow-up phone calls to the court asking for notice of the return of record (Appellee Exhibit A). 

The appellants were aware that until the record was returned, the trial court would have no jurisdiction to hold proceedings legitimately.   Although a lower tribunal does not have jurisdiction to conduct proceedings in a remanded case until the record is returned, a lower tribunal’s error in conducting proceedings prematurely is voidable, not void, Luscombe v Shedd’s Food Products Corp, 212 Mich App 542 (1995).  This is why we asked both formally and informally (by phone) for the court administrator to give us this notice for months. 

It will be noted appellants did try to negotiate costs and disbursements with their informal 'bill of costs' six business days at a scheduled Ludington City Council meeting after they received the required notice of return, whereas defendants tried to settle the bill four months before the court notification by offering appellants $150, the original filing fee only, and contrary to the judgment of this court.

Appellants aren't lawyers, and rely on their general knowledge and research to interpret Michigan Court Rules when it came to this remand.  Past experience in the district court, and vague court rules on the subject, had us believe that we would collect any remanded judgment from the defendants who helped write the original order declaring by omission that the plaintiffs did not prevail and not to be awarded costs and disbursements, not from the courts. 

MCR 7.115 deals with costs determination in civil cases in the circuit court.  Disbursements are not equal to costs, otherwise MCL 15.340(6) would not mention both separately, nor would they have alternate legal definitions.  Disbursements cover a wider range of potential reimbursements not necessarily applicable in a bill of costs alone, since MCR 7.115(A) restricts such lists for court-related costs alone, just like the defendants and Judge Wickens were trying to restrict them to. 

Therefore, appellants reasoned a simple 'bill of costs' would be insufficient for getting both lawful costs and disbursements from the defendant/appellee; the initial list was a proffer to city officers offered at the council meeting after we received notice that the records were back in the trial court.  Appellants effectively ignored the judge's E-mail (Appellee Exhibit A) because he specifically restricts the damages to only 'court costs' twice, which was not the finding of this court in their unpublished opinion of Swiger and Rotta v. City of Ludington.  

So effectively, appellants contend there was no requirement in the court rules that had a specific timetable for submitting a 'bill' in this remand, as this court found the plaintiffs in the original court prevailed and were entitled to both costs and disbursements from defendants. 

Furthermore, the trial court vacated its duty to inform both parties that the court had the return of the records, to make such negotiations non-voidable, until well after the MCR 7.115(B) deadline had passed and well after they had the records returned.  The court then made a judgment without any input from plaintiffs arbitrarily and unilaterally neglecting anything but court filing costs.

 

C.     Appellate Costs and Disbursements and Other Disbursements are Warranted and Reasonable

 

The appellee in their brief (p. 10) argues that appellants did not appeal Judge Wickens' 2012 summary dismissal of their original FOIA suit, which is in error, as the prime point of the original appeal was that the judge had erroneously claimed the plaintiff's complaint was moot after the defendants failed to disclose the records until four months after the case was initiated and after they had tried to pass a false set of records as compliant, just before that. 

Therefore the ruling on Adamski v. Addison Twp, 259 Mich App 219 (2003) has applicability:  "Only after obtaining a favorable disposition by this Court on her first appeal could plaintiff then legitimately seek an award for... costs to which she was statutorily entitled.  Consequently, we conclude that the trial court erred as a matter of law to the extent that it refused to allow plaintiff to collect... costs that were incurred after October 22, 2001.” 

Plaintiffs realized that “The disclosure of the records after plaintiff commenced the circuit court action rendering the FOIA claim moot as to the late-disclosed items does not void plaintiff’s entitlement to fees and costs under § 10(6).”Local Area Watch v City of Grand Rapids, 262 Mich App 136, 150; 683 NW2d 745 (2004).  Plaintiffs were denied firmly and repeatedly by the judge to argue any points of his ruling on ‘mootness’, which necessitated the original appeal because of its stark contrariness to appellate precedent.  

The appellees do have it right that the plaintiff in Hartzell v Mayville Community School Dist, 183 Mich App 782, 788-789; 455 NW2d 411 (1990) were the appellees in Appeals Court; however, because plaintiffs in this case were not deemed to have prevailed, they should be compensated for having to go through the legal processes to earn that result, which was received only by an appeal to this court.  "An otherwise successful claimant should not assume the expenses of the litigation solely because it has been rendered moot by the unilateral actions of the public body."  Walloon Lake Water System, Inc v Melrose Twp, 163 Mich.App. pp 733-4; 415 N.W.2d 292 (1987)

Thus, plaintiffs had to become appellants to get the result of prevailing, which they did, and bettered their position; yet appellants suffered 'expenses of the litigation' amounting to about $500 in costs and disbursements in this appeals court to do so, which actually eclipses the amount the appellants would receive from Judge Wickens' orders after remand for costs and disbursements, and effectively has appellants become much poorer from prevailing rather than by losing and not deemed as prevailing by the trial court. 

The expanded facts of this case in the appellant's brief show that appellants have had difficulties with fairness shown to them by the circuit court, its administrators, and defendant's attorneys, that should have not existed in our simple claim's conclusion.  

Appellants informal 'bill of costs' (Appellee Exhibit D) were reasonable expenses for legitimate disbursements, that were more detailed than corresponding city attorney bills to the City of Ludington, and could have been detailed further on request.  A motion fee was actually left off, but all appellant costs and disbursements were included covering filing, necessary transcripts, etc., because appellants were on the understanding from MCL 600.2445(2) and similar precedent such as from Hartzell, and Adamski  that they would likely receive such disbursements and costs for bettering their position on appeal or at least an explanation of why they weren't entitled to the expenses of further litigation to get a favorable legal result which was "'a continuation of the process started which had a causative effect on the disclosure of the… requested documents" Hartzell, supra p. 790. 

As the defendant's attorney drafted the judge's eventual order and claimed that the city's release of the records made plaintiffs' claims moot-- after four months into the trial and with the sitting judge at the time being one of the defendant's attorney's father-- the argument that the defendant bears no culpability for the eventual trial judge's error on awards of costs and disbursements seems specious.   

 

D.  Collusion is Wholly Supported by the Facts and Warrants a Fair Arbiter or Strict Rules on Remand

 

Appellees claim that appellants make 'numerous untrue and unsubstantiated allegations' in their brief's statement of facts about the trial court, the City of Ludington and its attorneys in this case, who double as the city's City Attorney.  Yet, they do not substantiate what any of the untruths are in our brief as regards our facts. 

We agree with them, and presumably this court, that it is beyond the purview of this court to substantiate and deliberate on what has already been put in the court record from the previous hearings and appeal prior, particularly since we are not seeking sanctions or declarative relief against anyone at this point.  The substantiation is in the record already, and not part of the arguments in this appeal other than as facts of the case used to support appellants’ second argument. 

But we disagree that it is not relevant into understanding why the appellants have little faith in the trial court and wish to have the costs and disbursements findings handled by another agency or under strict remand rules.  

How does a seasoned jurist like Judge Wickens and the appellee's attorneys come to the same conclusion to simply award 'court costs' and not even address any other costs or disbursements in violation of this appeals court opinion, Swiger and Rotta v. City of Ludington, supra p.3 ?  It seems a rather daring exercise on their behalf to go against such decision by this appeals court on an already remanded issue. 

Appellees further stress in response to a motion (Appellee Exhibit F) paragraph 7 "The Court of Appeals affirmed this court's decision and remanded the case on the sole issue of what costs plaintiffs were entitled to... In any case, costs related to this appeal if they were appropriate, are awarded by the Court of Appeals, not the trial court and then only to the prevailing party, which was not the Plaintiffs."  

This court obviously did not affirm the full decision of the trial court on plaintiffs' complaint, nor does the Court of Appeals have sole propriety to award appeal costs and disbursements, as seen in Hartzell and Adamski and numerous other precedents.

 

E.  The Appeal Seeks Remuneration for Costs and Disbursements Denied to the Appellants By the Trial Court on Remand

 

Appellees try to make the case that this appeal is vexatious and frivolous because Appellants sought to collect costs and disbursements from the defendant rather than from the courts in what they say is a violation of court rules, and failed to obey a judicial E-mail that limited appellants to only seeking 'court costs', not the costs and disbursements this court ordered in the original appeal's opinion.  

They further state we have violated court rules by having a statement of facts that fails to be 'clear, concise, chronological and presented without argument and bias'.  This argument is incorrect; we have included in order the full story of the effort to get the records and a favorable result from the trial court because it is relevant and instructive to see the extent of the problems that appellants have had to get 30 non-exempt documents in order to forward our second argument: that the trial court abused their discretion for this appeal and had a bad track record of fairness throughout, before it was remanded back to them.  

The appellee bulleted what they felt were problems in our statement of facts, but they don't point out with any specificity why they were not factual or grossly unfair other than that they were unsupported for sake of this appeal.   They would have this court believe that the original judge being the father of one of the defendant's attorneys and not disclosing this fact for four months is not supported by the record.  

It is indisputable by the record that the judge, the law firm and the court administrator knew this fact and decided not to share it with plaintiffs while the law firm threw numerous vexatious and frivolous motions and maneuvers against plaintiff including the submission of a false affidavit by the City Manager to support the attorney's original bogus defense that the plaintiffs already had seen and paid for all compliant records. 

The appellee ends its presentation by saying "The taxpayers of the City of Ludington should not be forced to bear the cost of defending this appeal; their tax dollars should be spent on roads, police and fire protection and other worthwhile purposes."  I agree, and I believe that responding to FOIA requests in a complete and lawful manner is one of those worthwhile purposes.  The City of Ludington could have saved its citizenry a lot of money in this case if their FOIA Coordinator granted the request and sent the 30 responsive and non-exempt records to plaintiffs as requested.  

The Ludington City Council could have actually held an administrative appeal as they told the plaintiffs they would.  Instead the City of Ludington had it go to court and defended themselves with their own city attorneys, rather than their risk management attorneys, who would have cost nothing extra to the taxpayers, and would have no conflict of interest involved. 

No vote was made by the council to do this attorney assignment, it is strictly the City Manager and the city's contracted law firm (complete with the judge's son) making the assignment.  The attorney billing records were made available by a subsequent FOIA request and they show over $20,000 being billed to the taxpayer over the course of this litigation, as a special project for this litigation, to pay the law firm that doubles as the office of city attorney for Ludington. 

The "City Attorney Agreement' (Appellant Exhibit 1, attached, 2 pages) between the City of Ludington and their defense attorneys in this case shows that the fee the attorneys charge for special projects per hour was $185 in 2013, this was the same amount back when this case began in 2011.   Appellant Exhibit 2 (also 2 pages) shows a representative bill that was sent to City Manager John Shay, signed, and then assigned to be paid by the Treasurer with taxpayer funds.  

Attorneys Richard Wilson (RMW) drew up this bill and George Saylor (GVS) was the provider of services in October 2013, where Mr. Saylor reviewed this court's original decision in Swiger, Id. and sent appellants two letters offering $150 to settle the costs issue after talking with Shay.  You will note that he is billing the city for $330 per hour for these tasks, instead of the agreed, contracted amount of $185 per hour.  

Attorney Wilson prepared the invoice, City Manager Shay signed it, and Attorney Saylor received the money, all knowing fully well that the City’s attorneys are limited to $185 per hour for special projects.  This happened throughout the case, the two attorneys always billed their work above the $185 rate in their monthly invoices, Shay signed his approval, and the attorneys received the money, in a public extortion scheme that was very profitable for them, very costly to the taxpayers of Ludington, who also pay their yearly retainer.  

This money, sadly, never got spent on streets, fire and police protection or other worthwhile purposes, just to frustrate citizens from public information who believe their public officers are engaged in other corrupt schemes. 

 

 

                                                       CONCLUSION

 

Undoubtedly, both sides of this litigation and the trial court have not fully obeyed procedural rules along the way, and the only excuse appellants have for any of their own errors of process-- real or imagined by the other party-- is a lack of legal training and competence.  Appellants only wanted to see the records they requested lawfully by FOIA, and they were unlawfully denied by the City of Ludington. 

They were denied the right to an administrative appeal by the same agency.  They had to go to court to get the records, had to contend with all the irregularities related in their brief’s Statement of Facts, and eventually got the records, but were denied any remuneration for their efforts to get those records, while the opposing side received remuneration for nine FOIA responses that plaintiffs never received, and still haven’t. 

Plaintiffs were denied justice until they spent more money and effort to become appellants and get a favorable ruling in this court so as to be approved for costs and disbursements for getting their records and the money they spent in the process of doing that on remand.  But then, once again the trial court denied this right granted by the FOIA in the plainly worded language of that law.   

 REPLY TO APPELLEE ARGUMENT.docx

Judge Wickens' Mistake

What the defendant's attorneys and their friendly local court judges seem not to realize is that the court is not responsible for giving us the judgment in this case, the defendant's are.  Judge Wickens authorized the county clerk to pay us $210, which they did, when they actually owe us nothing for this.  The proof is in the statute, the oft mentioned MCL 15.340(6) (aka section 10(6) of the FOIA) which in its entirety says:

So not only does Judge Wickens not assess anything above 'court costs' he only assesses it against his court, in glaring error from the highlighted final sentence.  The defense attorneys for the city mistakenly try to assert we must get paid by the circuit and appeals court because the City would not release incriminating and non-exempt public records, but there is only one entity that must pay us here:  the City of Ludington.  That is why the "Bill of Costs" both Judge Wickens and the attorneys ask for is a red herring, and I erred myself by not figuring this out until my reply brief had been sent.  Hopefully, the judges will notice this part of the law even though I didn't in my briefs.

Unfortunately, the negligence of John Shay in not doing his job, perjuring himself in court records, covering up his fellow officials' misdeeds, and assigning these attorneys costing well over $20,000 of City funds to defend his negligence, perjury and malfeasance has cost him nothing.  But it has cost everyone of us who live here an awful lot.

[Willy]

When will the City just release information without making people jump through hoops. Probably when the current Council and Manager have vacated their positions. I think the entire catalyst for the idiot manner in which the city has conducted itself lies with Shay and I have figured out how he has gained so much power. The fact is, most people do not understand the workings of local government and when new Councilors are elected they remain ignorant until educated as to how things run. What seems to be the problems is that Councilors and the Mayor have relied to heavily on Shay's opinions and beliefs instead of doing their own research and educating themselves. Shay's bias and Interpretations have spilled over onto the Council and Mayor because he does their work for them. The Council and Mayor are just to lazy to do their own work. The new ordinances that would make the treasurer and clerk appointees only make sense from the Managers point of view not from the Council, Mayor or citizenry. The proposed ordinance to allow the City Manager to live outside the City could also have come only from Shay. That particular ordinance is extremely offensive because the person who has most of the influence in the City wants to live outside the City. Shay wants as much control as he can get and having a lazy council who refuse to do the right thing only makes things worse.

[AQUAMAN]

Very well said Willy. Add to that the fact that when Shay feels the least bit undermined or challenged, he cries for CA WIlson's advice, which he could do without many times if he wanted to help and be honest with the citizenry. That alone has cost the public tens of thousands of dollars yrly., at the rate of over $200-$330/hr.. Shay is the real big drain on COL needless expenses. Laziness, narcissism, defensive mannerisms, & inept conduct is all too rampant in those chambers of late. 

[Willy]

Good point Aquaman. I would love to know whose idea it was to have an attorney  administer the FOIA requests, at great cost to the City. That alone is mismanagement on a grand scale. 

[XLFD]

Our city council is so obtuse that they probably consider it a victory for them to show that needlessly using an attorney at attorney rates contacting city clerical workers for information (instead of a city clerical worker on salary retrieving records directly) makes FOIA requesters the enemy of the people.  Anybody who has half of a brain wonders just how they justify the added expense otherwise. 

I have yet to find another municipality that has such an arrangement, but the culture of corruption in Ludington is so embedded that they almost need an attorney to try to censor out all the potentially harmful disclosures and invent bogus exemptions to protect officials.