Swiger-Rotta v. City of Ludington 3: Affirmative Defenses of Both Parties

[XLFD]

On Tuesday, December 13, 2011, two plaintiffs will enter the 51st Circuit Court, continuing their quest for public records that have been denied them for three months.  Out of respect for the area's taxpayers, they have decided to approach this pro se, without any attorneys, and hope for the Hon. Judge Richard I. Cooper to forgive their lack of lawyerly skills and rule strictly on the merits of their case. 

 

Also present that day will be at the least, one of our six Manistee-based Ludington City Attorneys who have shown they want to stall the release of public information, personally attack those who wish to do so lawfully, and none of which who have taken the state-required and city-required Oath of Office that all Ludington City officials and employees are supposed to take. 

If you want to see how competent this lawfirm is just go to their website and go to where it says:  "Click here to learn more about our firm". 

As a reply to a simple appeal of an obvious denial by the FOIA Coordinator followed by an outright refusal of the City Council to be bothered with its consideration, the lawfirm finally responded to the Circuit Court appeal by working, at $200 per hour, on a verbose answer to my claim, six insulting affirmative defenses ( which grew to nine after CA Wilson met with the City Council in closed session for a half hour) and a vicious counterclaim with 16 assertions that must have took hours of time to compile.  And if you live in Ludington, you paid for this time even if you are not on the defendant's side, and even if they win. 

 

This is the third of a trilogy started in pt. 1 and  pt 2.  The first dealt with the Plaintiffs' claim and the corresponding answers the defendants supplied.  The second dealt with the Defendant's counterclaim and the Plaintiffs' reply.  I present this trifecta of legal posturings to illustrate what efforts the City is putting forth to obstruct the free flow of information, particularly when it has the potential of making them look bad.  And, in the past, the public records have made them look bad on many fronts. 

We want Ludington's government to be open and accountable.  We want more answers not more questions.  We want transparency, not secrecy.  Our originally out-of-towner City Manager, Police Chief, six City Attorneys, and City Community Development Director want to be covert and clandestine in their activities.  And our elected officials seem okay with it all, and let them do what they may in the name of moving forward. 

Moving forward apparently means rolling over citizens who get in the way of their 'progress' by wanting answers through looking at their public records.  And it is totally legal to do so through FOIA, which gives every citizen that right.

 

In the previous two parts, I spliced the claims and their replies together of the plaintiffs and the defendants.  Since the 'Affirmative Defenses' both fit on a page, I offer them as they were presented to the court on this thread, beginning with the original "Affirmative Defenses" of the defendant (City of Lud), then the amended "Affirmative Defenses" of the defendant, then the Plaintiffs' "Affirmative Defense Reply" to the amended AD of the Defendant followed by the Plaintiffs' own "Affirmative Defenses to the Counterclaim".  Confused yet, I sure was; but if you've read the other two they are just showing the parties' rationale for defending against the other sides arguments.

 

 

 

 

 

 

 

 

 

 

And although the City Attorney had some far-reaching claims in his defenses, he really didn't point to any evidence beyond his own list, any court precedent, or any laws.  You will also notice the reply to them was fairly consistent.   But here are the various laws and court precedents, and the exhibits I presented in our affirmative defenses:

 

In 3 and 4-   Cashel v Smith, 117 Mich App 405; 324 NW2d 336 (1982)

Depositions may sometimes be appropriate in FOIA cases, but they must be justified. The Legislature intended that the flow of information from public bodies and persons should not be impeded by long court process.  (From AG MI)

 

In 5-  Here is that request and the attached reply. 

 

In 7- Here is MCL 14.240(b).

 

In 8- Here is that affidavit request and the reply p.1, p.2, and p.3.  Here is the court precedent: 

CMU Supervisory-Technical Ass'n MEA/NEA v CMU Board of Trustees, 223 Mich App 727; 567 NW2d 696 (1997).

A party to a lawsuit does not lose his right under the FOIA simply because the party may be able to obtain the records from a public body through the discovery phase of pending civil litigation.

This is from the MI AG as well.  Note that I covered either/or in the letter as regards discovery and FOIA.  Now I can't bring out that document when Defendant brings up his non-sequiturs in court and say that the City has a notarized affidavit on file for Plaintiff Swiger and read what it says, because John Shay decided not to appropriate reply to this FOIA, which he sent back after the City's counterclaim was sent to me!

 

In 9- Here is the parts of Exhibit C that apply section 3, section 4 & 5.  Here is MCL 15.233, as for Hubka, his cases vs. Pennfield Twp. happened in 1992, 1993 and 1996.  The 1993 case,

Hubka v. Pennfield Twp., 504 N.W.2d 183 (1993)
(plaintiff under FOIA not required to demonstrate that he was prejudiced by being provided with
copies of documents as opposed to being provided with opportunity to inspect original)