The Place Where Ludington Talks
Big Surprise. Another Court Victory for Rotta Over City of Ludington
It's been a pretty good year for a certain Tom Rotta in getting his grievances aired against how the City of Ludington does business in the legal arena.
Secret Meetings/Schemes Brought to Light
In February, following a filing in the previous November, he got the City to admit culpability in willfully violating the Open Meetings Act, as his lawyer, Phillip Ellison said:
"By the judgment, the City rightly acknowledged its legal obligations and admitted its use of group emails between city officials in place of a public meeting violated the Open Meetings Act. While modern technology makes secret communications possible, some things still need to be completed publicly to allow everyone, from councilpersons to community activists, the right to participate in the political process. Governments need to be transparent with their decision to spend public dollars, it's not the bureaucrats’ money, it belongs to the taxpayers." The judgment also required the payment of attorney fees and court costs associated with the lawsuit.
It was laughed away by the City (Big surprise) and claimed insignificant by them and (Big Surprise) their allies at the City of Ludington Daily News (COLDNews) as related in this thread: OMA-Ha-Ha
Public officials deliberating and making decisions outside of public meetings isn't trivial or amusing, nor should those that blew the whistle on it be held up to ridicule and attack by our community 'leaders'; our community 'leaders' should be.
Those Who Trespass...
In June, following a Constitutionally-challenged City policy passed in February 2011, that declared public places off-limits to individuals the City Manager deemed unsafe, the City was reduced to settling a federal lawsuit from that same Tom Rotta who had that policy used on him the day after it was passed.
The City and the City Manager (both named in the suit) refused to say exactly why the 'Letter of Trespass' was invoked on Mr. Rotta other than he made a lot of FOIA requests of the City, and by inference this would be a convenient method to intimidate him from coming to the City Hall to inspect records, as he could now be charged with trespassing. The policy led to Rotta being disenfranchised numerous times from elections and public meetings, as well as being terminated from his employment within a week of a spurious press release issued by the COLDNews.
After spending thousands of dollars of my own money on an attorney, being grilled by the City's attorneys for over 6 hours in a deposition, and devoting numerous hours of preparations, Rotta and his attorney reluctantly agreed to settle for $15,000 and a statement by the City to review and change the policy in order to declare victory without going through the vagaries of the court processes.
Instead of being contrite and willing to admit that they gave up defending themselves because they had a losing argument, the City Manager went on attack mode (Big surprise) once again falsifying the record and defaming Rotta with fictitious slander issued in public reprinted (Big surprise) in the COLDNews without challenge to accuracy.
Losers shouldn't be writing the script. The Workplace Safety Policy (WSP) gave an incredible amount of unconstitutional power to the City Manager, City Attorney, and City Police Chief who coincidentally all co-authored the policy. Passed into LAW by the City Council, it opened the City of Ludington to a lot of liability if invoked, but four months after they effectively admit they were in the wrong by passing it, they still haven't repealed or changed it at all.
Finally Prevailing, But Losing a Big Point
The latest: this month, October, the Michigan Court of Appeals came down with a decision on a FOIA appeal that reached their desk. A quick recap: In Sept. 2011, the City failed to reply properly to a FOIA request, it was administratively appealed to the City Council, who declined to do their statutory duty to review it, thereby further denying the request. Rotta (with an additional party who did his FOIA requests footwork due to the WSP denying his right to enter the police station or city hall) appealed to the 51st Circuit Court.
The City filed a counterclaim seeking numerous things, including a request for about $4500 in previously unmentioned debt arising from plaintiffs' requests. Coming forth with the City was Judge Richard Cooper's son, Lake County Prosecutor Craig Richard Cooper, a fact made known about five months into the case to the plaintiffs, after numerous nuisance motions made by the City Attorney, and a perjurous affidavit submitted by the City Manager claiming a set of records already received by plaintiffs fulfilled the request, but a couple of dozen more records (several signed by CM Shay himself) were found after the plaintiffs pointed out specific ones other records pointed to.
The court replaced Judge Cooper with Lake County's Judge Wickens. Wickens is perhaps best known for his leniency on alleged Trooper-shooter Eric Knysz, who found his previous misdemeanors and felonies forgivable, perhaps because Knysz's father was a retired cop and an upstanding member of the community. Wickens was found to be very forgiving with the City and the 51st Circuit Court (of which he is the lead judge) in the court hearing that followed. According to Judge Mark Wickens, our initial claim was moot, and plaintiffs were always silenced by Wickens when we referenced any part of our claim in court or the unprofessional conduct performed by the defendant's attorneys, we were instructed to only address the counterclaims claim for monetary damages.
The defendant had whittled the most ridiculous charges they were looking for, down to around $700 from the $5400 they claimed after a few more FOIAs in the interim. This included nine charges made for FOIA by the plaintiff that were asked for but given fees that the plaintiffs felt were outrageous and not supported by the fee structure of the law. The fees were challenged, ignored by the defendant, and therefore abandoned strictly because of the unreasonableness of the costs. Shay confirmed that the requests were never supplied to the plaintiffs, but the City incurred costs because of the requests. Wickens agreed with this assessment and found for the defendant in this regard for just less than $700, and nothing else, even though we had to file suit and point out perjury to see the records.
The plaintiffs appealed to the Michigan Appeals Court, looking for four things as summarized in their relief requested:
1) To verify that plaintiffs did prevail in their claim, and award them court costs, fees and disbursements ignored by the trial court. 2) To award plaintiffs punitive fees of $500, for the arbitrary and capricious withholding of the public records, as described herein. 3) To determine that no lawful debt is owed to LUDINGTON from either plaintiff for the reasons described herein. 4) To declaratively sanction the actions of LUDINGTON for: a) covering up the unlawful actions of their officials by not immediately disclosing these records as per FOIA. b) repeatedly and purposefully violating professional standards of conduct by their counsel/City Attorney. c) willfully swearing falsely the facts contained in their Feb. 13, 2012 brief. d) engaging in public extortion by knowingly charging unlawful fees for FOIA responses.
The Appeals Court came back with a ruling that presented a mixed bag of tricks. (PDF file here)
They did what Judge Wickens was unable to do, permit us to be the prevailer, which was truly a moot point given the circumstances, yet he was blinded to this fact by his inherent bias against those who challenge public officials and his own court. Before Judge Wickens was assigned our case, we had filed a grievance against the 51st Circuit Court in the State's Judicial Tenure Commission, which likely affected his perception of us. But here's what these judges said:
We never sought attorney's fees, since no attorneys were employed, however the Appeals Court spends a lot of wasted ink telling us why we were not entitled to them (p. 2, 3). Our request for punitive fees were dismissed, as we thought it might. A loophole in the statute makes such fees applicable only if the City had refused to give them to us only through judicial compulsion.
Our request for declarative sanctions at the end of the suit were also summarily dismissed. Regretfully, a lot of the material Judge Wickens prohibited us from bringing up at his court, could not be reviewed by this court whose purview is restricted, as stated on p. 7):
The only real permanent setback to justice noted in this decision was based on what they call defendant's fees (p 4, 5). A legal argument is put forth by the court setting an unheard-of-before precedent that says that once a public body states a cost for a FOIA request, the fee is a legal debt even if the requestor challenges the fee and declines to pay it (thereby not getting the records).
But the court left off some serious parts of the FOIA. As a gentleman who contacted me the same day I received this in the mail, they cut off the parts that they wanted in subsection 3. MCL 15.234(3) provides that “a fee shall not be charged for the cost of search, examination, review and the deletion and separation … unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs”. MCL 15.234(3).
Clearly, then, the Legislature intended that only hugely burdensome requests could ever be assessed any labor charge. Significantly, the Legislature intended merely “high costs” alone to be insufficient. They must also be found to be “unreasonable”. When this reasoning is applied, the costs levied against the plaintiffs negate all charges, and even suggest that refunds may be in order.
Unfortunately, that wasn't the decision of this court, and so with some help from my legal friends, we'll pursue it further so this unfortunate precedent doesn't poison the FOIA wells.
As per the old tried and true formula, the City Manager and the newspaper took the offensive by offensively portraying this decision as something it isn't (Big surprise). In a piece inaptly titled "Court affirms city’s FOIA response to Rotta, Swiger" written by the City's reliable stooge, Kevin Braciszeski the reader is told to believe several things that are factually wrong (Big surprise):
"Two area residents lost most points in their appeal of a court decision on a FOIA complaint against the City of Ludington."
"Tom Rotta and Toni Swiger had filed a complaint (in Appeals Court) requesting the court to rule the city must produce records Rotta and Swiger requested on Sept. 7, 2011."
"... the court granted the city summary disposition regarding the complaint after Rotta and Swiger acknowledged they had received all of the records they requested."
"...Rotta and Swiger had filed FOIA requests but declined to pay the costs associated with searching for the records and producing them."
"Rotta and Swiger then appealed the decisions, arguing that the trial court erred in declining to award them reasonable attorney fees..."
"affirmed the trial court’s summary disposition of the FOIA complaint in favor of the city."
"Court of Appeals also ordered Rotta and Swiger to pay their FOIA fees to the city."
"The Court of Appeals did, however, remand the issue of court costs back to the trial court."
The last statement was factually correct, but incomplete, as they fail to add that the decision said the plaintiffs prevailed in their initial claim and deserving of court costs-- and clearly demonstrated how the first statements in his article were off-kilter. The COLDNews in their usual fashion, fails to say how far into the court process John Shay gave us the documents (four months), and that he supplied records he fully knew were not in compliance with the request, so as to save Councilor Tykoski, Community Development Director Heather Venzke Tykoski, and himself what should have been an embarrassing disclosure of their unethical conduct (Big surprise).
But of course, John Shay looked at the bright side, now that the other side has been declared the prevailing party: ""We’re pleased the court concluded most of the plaintiff’s accusations were without merit,” Shay said." More like 'refused to rule on them' since we weren't able to argue our points in the Wickens and Cooper Show known as the 51st Circuit Court.
It sounds kind of like what he said earlier about it, when the circuit court forgot to rule completely on our original claim, forgetting we did prevail in our original claim, even if Judge Wickens didn't want to acknowledge it. Big surprise, indeed.
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