Manistee's Intentional Cover-up of the Milks Killing is Official

[XLFD]

A Manistee police officer trespasses on a Manistee citizen's property without having any legitimate reason to be there; rather than leaving when asked, the officer winds up shooting the senior citizen.  It turns out that the officer is the only witness to what happened, he is exonerated of any wrongdoing by his fellow public officials. 

Maybe the worst part: the City of Manistee covered up this fatal killing by not responding to disclosure to the media of any portion of the public records regarding this incident until the court forces them to do so on remand from the Michigan Court of Appeals over 28 months later!  

On March 29, 2017, 73 year old Lee Pat Milks was likely planning on enjoying a quiet evening at his home in a quiet section of Manistee, but a local cop named Doug Vansickle doing some evening code enforcement duties would make sure Milks would enjoy quietness from that night on.  

The official story would eventually come out over three months later, late on a Friday afternoon just before a four day holiday weekend for the Fourth of July so as to duck any kind of media analysis.  But well before that, the City's police chief had released some conflicting statements in the media as to what actually happened, in an apparent attempt to spin it the best way possible.  When it finally came out, the official story still had a lot of gaps in it and never explained a lot of things.

The City of Manistee was hit by at least three FOIA requests for the police report that went along with this senseless killing over the days shortly after the shooting, including one from me.  Thirteen days later I was denied the report and the use-of-force report by City Manager Thad Taylor, other media were also refused records.  I eventually got code enforcement records that suggested that Officer VanSickle was not dispatched to Milks' address that evening for code enforcement, he was trespassing on the property without being assigned to do so.  That seemed odd.

                              City Manager Thad Taylor, City Attorney George Saylor III, and City Clerk Heather Pefley

I went to the Manistee City Council, unlike the other media, to appeal the complete denial in mid-April, for I knew even then that the vast majority, if not all, of the report was non-exempt from disclosure.  Despite a public comment that turned out prescient, the city council followed the advice of the city attorney and denied me the records primarily because the investigation (by another agency) was still underway.

On June 2, 2017 I started a long process by filing a lawsuit in Manistee Circuit Court.  I asked for the judge conducting an in camera review of the records to see whether the City's questionable exemptions had any merit both in the complaint and in the relief requested.  I would later ask for this at a so-called scheduling conference/preliminary hearing which neither the judge nor the City's attorney would attend without sanction.  

The 19th Circuit Court would later throw in another twist by assigning a retired judge to hear the case, without notifying either party of the move.  It was awkward having to go to trial and have to inquire to the judge whether he had jurisdiction to hear the case.  He said that he did, that he didn't need to prove it, and went on to rule totally against me, also refusing to take part in an in camera review to check the records against the claimed exemptions.

That reluctance to follow that protocol, effectively mandated in such cases by the seminal Michigan Supreme Court ruling in Evening News v. City of Troy, turned out to be his undoing when I appealed his ruling in the Michigan Court of Appeals.  I had tons of issues with the administrators of that court, but the panel of judges eventually decided that retired Judge James Batzer erred by not conducting an in camera review of the records to test the validity of the asserted exemptions, rather than thinking the reasons might be proper.  Their ruling sent it back to Judge Batzer so that he could conduct the review and decide the issue.

Yet, even the appeals court ruling was not left unchallenged by the City of Manistee.  They filed a Motion for Reconsideration claiming justice would not be served by this review and the issues were moot.  I submitted an answer, and the appeal's court stood firm on their original decision.  It's always a pleasure winning twice against a prestigious law firm representing a public body when you're just a humble citizen who wants public records and won't accept 'no' when it's improper.

Early this month, I received a notice for an in camera review status conference, I then received my copy of a court order asking the City of Manistee to produce the complete records for in camera review by the court.  In my earlier 'answer' I had made a case for the court having an in camera review with the participation of both parties.  That way, the defendant could have said why one part of the report was exempted by their claimed reasons and I could say why they weren't.  

Because this wasn't explicit in the protocols, I submitted a motion to have the in camera review judged that way and to have multiple punitive damages imposed for each record that was not fully exempt.  The court status conference was on Tuesday, August 20th, and the judge offered to hear our arguments regarding the case.  I stated that both parties should have the opportunity to present their case as being the most fair and equitable way of doing an in-camera review, and that the Evening News case allowed such hearings.

Judge Batzer was adamant that he could conduct such a review fairly by himself and claimed my motion was not sufficient.  After beating my head up against a wall and further generalizing about the non-exempt status of most police incident reports, he wanted to hear from the other side.  They thought the judge was fine by doing it himself, they objected to the damages, saying they depended on capricious behavior (which they don't anymore).  The judge then divulged that he had already looked over the records to review them and paused.

I sat back in my chair expecting the judge to mouth the same nonsense I heard back in early 2018, about the full police and use-of-force report were exempt 13 days after the shooting because it may have affected witnesses and not explain further.  But he didn't.  He went on to say that the full report he had seen should have been made available, that the exemptions claimed were not legitimate, there weren't even any other witnesses to the slaying other than the surviving cop.  He even admonished the defendant a little for not having provided the court with parts of the record that were referenced.  

A bit disconcerted after hearing, I wanted to prove my ears were working properly, and asked if I had then prevailed.  The judge replied that I had partially prevailed.  To which I respectfully submitted that the City had claimed their records were totally exempt from disclosure and gave out zero percent of the records, yet, he had discovered that 100% of the records were not exempt after his review.  You can't have a bigger range of prevailing than that.  Yet, he wanted to claim that the appeals court agreed with him on one irrelevant point. 

Fortunately, he allowed full court costs and disbursements for his court and the appeals court actions.  Yet, despite the total deceit the City of Manistee used for over two years in claiming fully disclosable records were fully exempt, it was not deemed worthy of any punishment meted out by the court.  In the end, I will lose money from showing in two courts that the City of Manistee's denial of public records was unwarranted and corrupt, and the City of Manistee hopefully will finally produce the records to the public.  Over two days later, I still have nothing.

Epilogue

Even though I had not complained, the judge was lamenting as to how the whole process could have been averted if I had taken the Manistee City Attorney's offer up in late June 2017 to resubmit my FOIA request after he told me that it should be available in part.  Gretchen Olsen, the defense attorney for the City, commiserated and wondered the same thing.  Apparently, it was just meant to be a parenthetical aside, because when I stood up and asked his Honor whether I could answer that question they both had, he stated it would not be necessary, that I got what I wanted.  But here is the gist of what I would have said, if given the opportunity:

"Your honor, you found out this last week in your review that the defendant's reasons behind exempting the full police report and use of force report was totally without merit and that they should have been released in their entirety at that point to me.  I knew on April 11, 2017 after reading the absurd claims of exemption made by the city manager that both reports should have been released then, with minor, if any, exemptions.  

I went through the processes that the law allows to get such records, I had an administrative appeal in front of their city council, heard a lot of nonsense of why these reports couldn't be made public.  I filed an appeal in this court.  Only then did I get contacted by the city attorney who told me if I made another request I could get redacted records of a closed investigation.  I had already invested over $175 in my lawsuit along with plenty of time, seeking records that I knew were being unlawfully withheld. 

The exemptions claimed would have made the records available in full at that time, the question to ask, your Honor, is why didn't he just have City Manager Taylor send me the records and pay my legal bills rather than continue this exercise of futility in depriving the public of records which are rightfully theirs and need to be disclosed on request?  It is depressing to see a court officer effectively reprimanding the party with the winning argument all along, the party that was disenfranchised by the defendant and this court in the past.  That's why people in Manistee are losing faith in their institutions, your Honor, I thank you for restoring some sanity and order by your ruling today."

[Freedom Seeker]

Persistence,  you have prevailed on your FOIA.  You lost money and time, but the reward is to freedom of information and knowledge to your readers who don't have the knowledge and courage to fight.  Hopefully Manistee and other municipalities will learn that information is the people's and that taxes pay their salaries.  Thank you.

[XLFD]

Thank you, FS, for appreciating the effort that needs to be taken at times.

[shinblind]

How come the Manistee News Advocate, or Shoreline Media, or the Mason County Press or any other 'news' source  didn't investigate this?

Another embarrassing episode of the local main stream media's not doing their jobs.  

Good job X sticking with this.

Two of my favorite Orwell quotes:

“During times of universal deceit, telling the truth becomes a revolutionary act.”

“Journalism is printing what someone else does not want printed: everything else is public relations.”

[XLFD]

Those news media won't even touch me going up to the Michigan Appeals Court to claim a complete victory against a city that was keeping records away from the public in a manner against the law.  Then coming back and realizing it in the same court which declared the records fully exempt 18 months ago.  They discredit their own profession when they cannot revel in another news outlet winning a FOIA case.  

And there are turning out to be some interesting things in the City's records regarding the shooting of Lee Milks.

[David Gibbs]

Nice work.  This shit happens everywhere.  Lawyers are killing our democracy.  

[Freedom Seeker]

If that ain't true about lawyers!  Liars, liars, and covering up truth.  Our Constitution wasn't prepared for lying lawyers and others who cover-up truth.

[Willy]

Congratulations X. I am very proud of you. Even though you were right all along and proven so, it's  very disturbing how our institutions are being run by people almost as bad as the criminals they are paid to deal with. These foot dragging, anti -Constitutional politicians are what our founding fathers were worried about. Even so, you have done a great thing and deserve everyone's thanks.  

[XLFD]

It continues too.  I still haven't received all that I asked for, and the existence of any use-of-force report seems to be in question, and for some mysterious reason the microphone and video of Milks' killer cop seems to have only started working six minutes after the fatal shots were fired.  

The unprofessional attorney Gretchen Olsen of Petoskey's Plunkett Cooney law firm seems intent on saying my mileage traveling to and from Manistee court hearings is not recoverable as one of my disbursements, without citing any authority.  I have plenty saying they are, and I betcha if you check her records that she charges her clients both mileage and travel time (at lawyer rates, no less) in her billings.  I cannot get the latter, but I surely will get the mileage I would have never had to put on my car except that Manistee City Manager Thad Taylor, his City Attorney George Saylor III, and the rest of Manistee's killing cover-up squad forced me to do in order to hide the facts of this shocking homicide.

[AQUAMAN]

It is truly sad and frustrating that FOIA requests get so emphatically ignored and taxpayer monies are being used to cover up realities and facts in many government agencies. Congrats X, you out-lasted their efforts to hide much of this episode. Willy, you also took many of my thoughts in your great reply, thanks.

[David Gibbs]

It should be criminal!

[Willy]

It's easy to praise someone like X who has selflessly taken on the burden of trying to make local politicians follow the law. It seems to be a never ending theme for most governing bodies.