Ludington City Attorneys Rush to Settle Costs

[XLFD]

In the recent decision by the Michigan Court of Appeals on the Swiger/Rotta v. City of Ludington (a FOIA appeal) case, they effectively advanced the notion that plaintiffs prevailed in their initial FOIA claim, by forcing the City of Ludington to come clean with public records they were withholding from the people of this city. 

 

The concept of prevailing in a FOIA appeal is important, because if the court action did have the result of getting the records disclosed, whether the city voluntarily discloses that information during the discovery process (even when they try to do so after perjuring themselves and offering legal arguments to support that perjury, as they did in this instance) or ordered by the judge, the legislation and the legal precedent is clear, the plaintiff prevails and is entitled to applicable court costs, disbursements, and attorney fees.  If this didn't happen, the public body could ignore requests for months and eventually disclose information being appealed before the court orders them to, after the requester has spent a considerable amount of time and money by retaining an attorney, filing numerous motions and papers, and paying all court costs.

Prevailing also shows that the court action was necessary to have the records disclosed from a defendant who didn't want to follow the Freedom of Information Act, and allow their records to be seen by the public they serve, and who pays their salaries.  Having a judge not address that in an order is a serious breach of judicial understanding by any judge.  We initiated these proceedings because the City of Ludington would not give us any way to get these non-exempt public records that showed the City was acting seriously unethically. 

 

 

So when Judge Wickens, who replaced Judge Cooper (after he withheld his filial relationship to one of the City's Attorneys who came forth for a period of four months) made a decision on our complaint that it was just a "moot point" and moved on to decide on the City's counterclaim which sought a variety of costs that were never before allowable from unfulfilled FOIA requests without a salient fee structure that complies with state law, we balked and appealed further.  How could a fair judge overlook something so basic in FOIA law as to award court costs, etc. to the plaintiffs whose actions impelled the City to give the public access to documents which showed clear corruption among a City Manager, a Community Development Director, and a City Councilor-- a councilor whose business profited greatly from a city contract that had no written contract between parties, and had been given out before the bidding process was even contemplated?

 

So effectively it was our duty to appeal further to a more sane venue, but we had three basic difficulties: 

First, we are just two citizens of little means trying to dispute against the legal minds of a Manistee law firm of extra means, now that they have merged with a Grand Rapids firm.  Legal process is difficult to keep track of for common citizens. 

Second, we had to deal with a court record that felt very prejudicial to our situation, where we were restricted by the replacement judge in presenting our case, the City was allowed to give us paperwork concerning their 'amended' request for fees after the trial started, and the court ignored all lines of inquiry as to whether the way the City computed fees was legal.  The Appeals Court would not look in depth at minutiae just at disputed legal arguments.

Third, the natural prejudice of judges (almost exclusively former attorneys) against those that presume to go to court without an attorney, and the reluctance for them to allow laymen to totally prevail against attorneys, particularly when they represent a corporate client, like the City of Ludington. 

 

A combination of these factors led to the mixed bag that came from the Appeals Court, where they supported my argument of prevailing in my claim, but they affirmed the City's counterclaim for expenses, using an argument which seems to defy parts of the FOIA statute.  That is not just my biased opinion, I have been contacted by a couple of FOIA warriors in Michigan who believe that aspect is rather inconceivable and digs new ground over the FOIA.  That's why they have offered their help, and I have assented, to get leave of appeal with the Michigan Supreme Court to address this discrepancy. 

 

But the City Attorneys that Ludington employs, that are based in Manistee, and are now part of an even bigger firm that operate out of Grand Rapids, are wanting to settle on costs with the plaintiffs in the worst way.  Even before the City Attorney Wilson was Dissembling on the facts of the lawsuit at the October 28 city council meeting, the City Attorneys read the opinion, and sent both of us plaintiffs a letter in the mail suggesting we accept their offer of our filing fee and our prior overpayment of the Circuit Court decision,  $153.15.  As long as we sign off on them owing us any more. 

 

and page two

 

I couldn't help but open this up and laugh at the audacity of such an offer; but these are the weasels that maintained their original arguments in court based on the 'fact' that we had already seen the requested documents, which they gave us a set of records most which didn't satisfy the request so as to prove this claim, along with a sworn affidavit of their completeness by John Shay.  As noted in the above link, there was also the matter of various other costs (transcripts, motions, appellate fees, publication, etc.) that were not even addressed by this letter, but were all equally necessary costs to wage this lawsuit against the City's negligence to act within the law.

 

Because they are conscientious fellows they noted my lapse of reacting to their correspondence in a later dated November 1st, in which they sent me a check for $153.15

 

  

With this cover letter, and the following official order prepared for the court to settle my claim for court costs:

 

 

with this signature page and a self addressed stamped envelope. 

 

Again, this was laughable, we have spent not only the filing fees in 51st Circuit Court, but the $400 filing fees in the Michigan Appeals Court to address the legal malpractice of the circuit court.  We have had to print out our own briefs, pay for our own motions, and pay $.30 a page for the lengthy transcripts (which is a lot less than the City paid).  This overture by them is taken as an insult by us, and should be taken that way by the general public, when they realize that the City has spent over $20,000 on defending their tenuous claims, their perjury-based, perjury-laced defense and for prosecuting FOIA fees that have not been traditionally noticed by the FOIA as legal or valid.  

[FLudington]

So is Cooper no longer a judge or was it just for this case?

[XLFD]

It just so happened that Judge Cooper was our original judge in this case, but over four months after the other sides law firm came forth, and numerous motions were filed, Judge Cooper finally let the plaintiffs in on the fact that his son (current Lake County Prosecutor Craig Richard Cooper) was on the defendant's law team, even at the top of the letterhead initially sent to court.  This appearance of impropriety after so many motions were filed and after his initial letter with a nod to the defendants, had us seeking a different judge.  This was explained in this three part series beginning here:  http://ludingtoncitizen.ning.com/forum/topics/theappearanceofimprop...

You may find it of interest, it shows that Judge Cooper overlooked a couple of significant judicial canons (laws they live by) which was then taken to the Judicial Tenure Commission and considered, but no action was taken at that time.

[FLudington]

I find it very interesting, considering the situation going on, on my end of things too. Very interesting.. 

[Willy]

I wonder who in City Hall gave the order to send this paperwork and check? If it was decided by the Council then when did they meet to discuss it? If Shay ordered the attorney to draft these documents then there must be written communication to him from the Council requesting this be done.

[XLFD]

I hadn't even considered that Willy, but you're right. This check is drawn from the Mika Meyers account, which means that someone has authorized such disbursement, as they are a contractor for the City of Ludington officially.  I have not pursued any course for settling the court costs until I take it through the final level of appeal.  I'm going to check out the paper trail via my long-term partner, the FOIA request.