We Won Our FOIA Lawsuit Against the City, pt. 2: The Counterclaim

[XLFD]

In the thread we-won-our-foia-lawsuit-against-the-city-pt-1-the-claim it was showed that we had actually prevailed in our claim for injunctive relief, that the defense had not won any of their concessions thereof, and that the primary cause for our appeal on the plaintiffs' claims were that court costs were not given to the prevailors, and indiscretions of the defendant during the process were not adequately addressed.  In this thread, we will look at the counterclaim filed by the defendant, the City of Ludington, represented by the Gockerman, Wilson, Saylor and Hesslin law firm, back in 2011, was also won by us, the plaintiffs.

In a counterclaim, we plaintiffs become counter-defendants and the terminology becomes confusing. So when I refer to 'us' I refer to the public represented by the original plaintiffs; when I refer to them it will be referring to the City of Ludington, the entity that tried to block the revelation of non-exempt information that belongs to the public at large.  I freely admit bias against the latter, as there is no doubt they withheld information and knowingly gave a false set of records in this case, but I will be as objective elsewise as I can be.

Judge Richard Cooper had the option to utilize MCR 2.505(B) to expedite the process so we could get the records timely.  That rule says "when separate trials will be conducive to expedition and economy, the court may order a separate trial of one or more claims, cross-claims, counterclaims".  The plaintiffs urged him to do so, noting that what the defendants asked for in the counterclaim would be totally separate from the injunctive relief we sought.  And noting that the FOIA had language in it for expediting such judgments.  MCL 15.240(5):  " an appeal from an action commenced under this section shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way."

It's kind of hard to misinterpret such language.  Yet he didn't even bother to respond to such a reasonable request, but of course, he never bothered to mention his son was on the other legal team, a fact he would reveal over four months later, just two weeks after we finally received the correct records.

THE COUNTERCLAIM

The City lawfirm actually asked for quite a bit from the judge.  Not too surprising when you consider the judge's son was an associate for the firm.  Seven things were asked for in the counterclaim:

In our reply to the counterclaim, we just addressed their 16 points, and asked the court for no further relief at what we thought was a sad attempt to cloud the issues of our claims, other than a suggestion that any such counterclaim should be treated separately so public viewing of the records would be expedited.  City of Ludington Attorney Craig Richard Cooper's dad, the Honorable Judge Cooper, would have none of that.  But the seven requests were defeated completely or in large part by the final judgment by replacement judge, Mark Wickens.  Here's how they fared with the above requests to the court:

A:  This tactic was found rather redundant.  She had already swore to a notary public that she was indigent, submitted an affidavit of indigency, and volunteered the fact that she was receiving food stamps throughout, and earning an income in the poverty level.  Checking whether someone is receiving public assistance is as easy as making a FOIA request to the proper agency, if you don't believe the sworn statement.  The court never determined this, nonetheless.

B.  Ms. Swiger had been admittedly sending FOIA requests to the City of Ludington on my behalf because of the Workplace safety Policy's Letter of Trespass interfering with my access to public records.  On numerous times, she picked up records and left payment.  To debunk the the City's theory that it was a ploy to avoid costs, I submitted my own affidavit of indigency under sworn oath that I met the definition of indigent.  The court ignored this request.

C.  Limiting the amount of requests was a big sticking point to the defendants in our own conferences with them.  They wanted to restrict us to three or fewer requests per month, we pointed to the lack of precedent for establishing any such limit, and that we averaged only about 4 requests per month since late 2009.  Nothing ever got established as a limit in our negotiations, and the court actually ruled against this as a judicial order in the 5-21-2012 hearing.

D.  Irregardless of whether there was any outstanding debt owed the City, the court never considered this request to halt the City from responding to FOIA requests, as per its duty, because of past debt from us, whether real or not, in court, the judge actually denied this as being against established policy.

F.  Skipping E. temporarily, we note that the court did not allow any costs, expenses or attorney fees to the City of Ludington for the counterclaim.

G.  No further relief was ordered by the court other than the awards noted under E.  This is shown in the Final Judgment page one  and  page two .  Though this judgment does show about an equal amount of debt to both plaintiffs.

E. This is where the City actually did best in the final judgment getting nearly $700 from 'past debts'.   This will be gone into some detail in part three and four of this series, but from the 5-21-2012 hearing's transcript we have the following exchange (Mr. Saylor is a City Attorney representing City of Ludington's interests) starting with the end of a monolog of Mr. Rotta's:

Or so we thought it was a moot point, as the City's representative said that we have paid for everything that we have received.  And this was again brought up on the September 10th hearing, wherein Judge Wickens heard repeatedly that we had never received the records for various requests, and yet decided that since City manager John Shay said the City had incurred these expenses, that they were valid even though we never had a meeting of the minds to receive these records once a prohibitive cost based on illegitimate fees were asked for by the City FOIAC.

It would be kind of like going to a flea market and asking how much something costs.  Upon hearing the price, and deciding it is way overpriced, you decide not to buy it and leave it, but the seller insists on having you pay his quoted price, even without you getting the item in question.  Sounds ridiculous doesn't it?  But the judge agree to this system on September 10 as being legitimate for FOIA requests.  The utter illegitimacy will be discussed in later installments.

As it was, the original "unpaid debt" that the City asked for was $4344.97 as seen on this exhibit from their original counterclaim  COL Wishlist, p.5.  Heck, about a month before the final judgment was crafted, Kaye Holman in a city council meeting claimed that debt owed was more in the line of $6500.

But then that same council is basically beside themselves with glee when a judgement for about 10% of what they claim we owe trickles in, without any further mention of those unsubstantiated large amounts they quoted that we owed them.  It is because Mr. Saylor was correct in his testimony: for every request that has been fulfilled in accordance with the FOIA, we have paid for.   There is no debt, our side has always acted in good faith, always paid their debts.

The other side has charged $57 to allow us to inspect 24 pages of non-exempt water tower records, kept 30 pages of records (showing repeated incidents of corruption not only from the Tykoski's but from Shay himself) from the public for over 5 months, showing a fraudulent set of records to cover up the other records with Shay perjuring himself on behalf of the City, wanted to charge us $4345 or $6500 for FOIA requests whose material that we have never seen, and then later are content with a much smaller sum when they reconsider their figures.

It makes you feel comfortable that these are the same people handling millions of dollars of taxpayer money in deciding the City's budget, doesn't it?    And even though the City failed to get any relief in six of its seven claims, and only about 10% of what Kaye Holman claimed we owed them from FOIA, Shay and Castonia triumphantly claimed victory two meetings later.

In our view, the judge dismissed six requests of the City, and granted a small part of the money they bombastically said we owed the taxpayers in a scheme of public extortion meant to dissuade our gumption.  It just further feeds our gumption, because we have no use for a crooked local government.

Next:  The saga continues with a look at the May 21, 2012 court transcript with commentary and analysis in "We Won Our FOIA Lawsuit Against the City, pt. 3:  First Hearing"

[XLFD]

Just so you know, I am not trying to put my own spin on the outcomes of the claim and counterclaim, so as to make it look like I won the day, because I am in no way comfortable with the judge's decision to claim a victory of my own. 

But as I research all the data, precedents, relevant laws, and what transpired (in preparation for the Claim of Appeal's brief), I find it odd that the other side decided to claim a win with what actually transpired and what will likely be negated in Appeals Court.  How can they feel good about claiming that we owed $6500 in a public forum, and then come to court within a month of that statement and surprise everyone with a figure that is one-ninth of that figure.  On public records we never looked at or received.

This is the arbitrary and capricious nature of the City Manager and his fee structures, where 24 pages of publicly available material that should all be in one file costs $57 just to look at.  Is it because it costs $57 to look up, or is it because they don't want to show how big of a waste of money the water tower painting project was.  Such fees for such records is nothing short of criminal public extortion, and the rest of the City Hall of Ludington knows it and permits it, and they are to blame as much as the City Manager.

[Willy]

Has the City ever, in any open meeting, let the public know just  how much money they are foolishly spending on attorney fees to defend their idiotic position? The longer this goes on the more apparent it becomes, just how arrogant this group of Councilors, the Mayor and Shay really are and how superior they must feel to think they have the right to use taxpayers dollars to defend their unconstitutional behavior. They should be ashamed of themselves. Throw the bums out. ALL OF THEM.

[XLFD]

In answer to your question, nope, and if you read the City Attorney Agreement the COL has with the Gockerman law firm, everything they have did in regards to this lawsuit falls outside of their normal duties, and thus they can charge their special project fee of $185 an hour.  Earlier this summer, I FOIAed the billing records between the firm and the City since 2011, and received some bogus line about some of those records being exempt, and was charged an outrageous fee otherwise.  I will have to hunt that down.  But here is another point that I believe I made before, but bears repeating.

Just the time spent in the courtroom on September 10, 2012 by John Shay and George "Greasy" Saylor III, City Attorney more than put the City of Ludington in the red for this suit, if we were eventually found to be liable for just under $700 for FOIA replies we never received:  ($65/hr. + $185/hr.)* 3hr. = $750. 

And if we go back to Shay's original reply, it was all because he was too arrogant to actually fulfill the request or leave a way for us to pay for what we asked for.  It was a pure stalling move, likely done because the records may have sunk the political campaign of now-councilor Nick Tykoski.