Despite losing his job, at the December 9, 2019 Ludington City Council meeting City Attorney Richard Wilson noted: "After it was pointed out to us that it was in my words, "the mother of all ironies" that we would violate the Open Meetings Act while trying to settle a case over the violation of the OMA, we did some research."  

We may never know who helped him in his research efforts, but the course he advised the city council to take that night was the "father of all ironies":  for the council to go into another obviously unlawful closed meeting session in order to cure the ills of an unlawfully closed session held the prior meeting.  What were our city officials thinking? 

Wilson would later advise the council that there were no legal precedents (past court cases) that warranted disclosing minutes of an unlawfully closed session which led the council into another lawsuit for egregiously ignoring the OMA and FOIA, so much so that I alleged three councilors did so with intent to do so.  As noted before, I offered multiple opportunities to the city council to avoid spending tens of thousands of dollars by just making the minutes of both closed session added to the minutes of the meetings they were illegitimately held at. 

They were too committed to non-transparency that they banded together as a group to block the release of the minutes of a 23 minute session that was called for discussing trial and settlement strategies of an already settled court case, where they failed to point out any reason why there was any detrimental financial effect to the city avoided by holding their secret congress.

I filed this case early this year and due to some issues we have experienced with the lockdowns, our first hearings were quick status conference affairs on Zoom and in-person back in September.  After the defendant's attorney Allan Vander Laan submitted the typical motion for summary disposition to dismiss the case, I have taken a little bit of time to create a response brief to challenge his assertions.  It was actually very difficult logistically to do research and print out my response, particularly the latter when my printer has given up the ghost and the library is once again off limits to people.  

A response brief looks at the arguments made by the other party and tries to refute them.  The defendants' arguments can be figured out by looking at the headings of the arguments in my brief, and assuming they came to the opposite conclusion.  Their strongest point was perhaps the idea that declarative relief alone would not allow me to prevail in the OMA part of the lawsuit.  They expect the court to forget that they need to decide whether the OMA was violated in the FOIA section of the lawsuit to determine whether the minutes are available or not.  

Confused more than City Attorney Wilson?  Hopefully the mist can be dissipated by reading the response brief below, I have left out a couple sections that have nods to the legalese that needs to be included but tends to confuse the layman.  Of interest are allusions to several recent OMA violations by the City and former violations found in that prior lawsuit, used to lay the groundwork for an injunction.  I also included with the lawsuit my own motion for the judge to review the minutes so he can see what was discussed for 23 minutes on December 9, 2019.  

Ironically enough, this hearing will occur exactly one year later on December 9, 2020.

PLAINTIFF’S RESPONSE BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I.  OVERVIEW/INTRODUCTION:  

The defendants (City of Ludington, et. al, henceforth ‘COL’) propose several legal hypotheses in their brief.  Summarized, they state that there was no violation of the FOIA, that  declaratory relief is not available under the OMA, that injunctive relief is not available because there is no 'ongoing violation' of the OMA, and that intent to violate the OMA cannot be established by plaintiff in any case.  

Plaintiff will illustrate how these conjectures are incorrect in our response brief by showing that the two denials of FOIA requests for the two 'closed sessions' claimed by defendants to be lawful, effectively force this court to make a binary decision as to their lawfulness:  the court must decide whether the sessions were lawful or not to decide the FOIA issues therein.

The first 'closed session' will be shown to have been entered into illegally due to not having enough councilors vote for the session.  The second will be shown to be illegal due to lack of statutory minimums-- the COL lacked an unsettled case to talk settlement strategy about and lacked a rationale showing an open meeting would have had a detrimental financial effect on the COL.  Multiple officials, including the city attorney, have admitted the first was improper, the absence of a statutory-satisfying rationale at the meeting and in the minutes show the second session was improper.

Injunctive relief will be shown to be warranted due to a couple of 'ongoing violations' of the OMA:  the lack of publication of the minutes of the two unlawfully 'closed sessions' along with their inclusion in the meeting minutes along with multiple OMA violations by the COL and its committees/boards since this case was filed showing a dereliction of open government practices continuing for the defendant.  This court has previously seen other practices contrary to OMA among the defendants’ standing committees spanning many years.

As the defendants moved to dismiss before discovery could begin, their arguments claiming that intent cannot be shown is inconclusive at this point.  However, plaintiffs are optimistic that discovery and an in-camera review of the 12-9-19 'closed session' minutes by the court will develop a provocative case for oblique intent by the three councilors.  All three had been present at both unlawful 'closed sessions', they entered the second session after hearing a warning based solely on law immediately beforehand, they knew they had already unanimously settled the agreement at the prior meeting by their votes, they had two weeks to refresh themselves on the law's requirements, etc.

These three councilors, who had already made deliberations in an unlawful 'closed session' on the prior case at the 11-25-19 meeting and voted to settle the case immediately thereafter, remained and deliberated in a 'closed session' on 12-9-19 for 23 minutes when there was no statutory reason for them to do so.  The court should be as intrigued as plaintiff on why they chose to do this without any reservations.

IV. ARGUMENT AND ANALYSIS:

  I.  Defendants are not entitled to summary disposition on Plaintiff's OMA claims.

    A.  Declaratory relief is available in this case.

MCR 2.605(A)(1) states:  "In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted."  Plaintiff deferred to this declaratory relief option in his complaint In citing their sole authority for this case, defendants claim that declaratory relief is never appropriate in OMA cases:  "The OMA does not provide for [declaratory] relief." Citizens for a Better Algonac Community School v Algonac Community Schools. 317 Mich. App. 171 (Sept. 8, 2016) citing Speicher v. Columbia Twp. Bd. of Trustees, 497 Mich. 125; 860 NW2d 51 (2014).  

Yet, due to the nature of this case, the court is effectively compelled to figure out whether the COL violated the OMA in regards to closed sessions, simply because the COL has blocked FOIA disclosure of the minutes of those sessions by claiming the sessions were properly closed and could not be provided because of section 7(2) of the OMA. 

Ergo, in deciding whether the minutes were exempt from FOIA , the court would be dodgy if they did not decide the underlying OMA issues the COL is using to block the records' disclosure-- for FOIA exemptions to hold, they must have a strong foundation behind them.  "We keep in mind that the FOIA is intended primarily as a pro-disclosure statute and the exemptions to disclosure are to be narrowly construed." Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991).

The underlying FOIA issue in this case is dependent on the court's decision as to whether the closed sessions were legitimate-- the court can only deny disclosure if they find the closed sessions held satisfied OMA rules, which also require strict interpretation.  "A strict construction must be given to closed-door exceptions in order to limit the situations in which meetings are not opened to the public." Booth Newspapers, Inc v Wyoming City Council, 168 Mich. App. 459, 467; 425 N.W.2d 695 (1988).
It should also be noted that the Citizens for a Better Algonac and Speicher cases dealt strictly with a complaint involving OMA, neither requesting declaratory relief from a court on a public body claiming they couldn't release minutes of what they considered a closed session via the FOIA.  Defendant hasn't shown why this isn't the case.  "Once a request has been made under the FOIA and denied by defendant, the burden falls upon defendant to show a viable defense." Pennington v Washtenaw Co Sheriff, 125 Mich. App. 556, 564-565; 336 N.W.2d 828 (1983).  This will necessitate stronger arguments from the defendants as to why either closed session was lawfully held.

In Ridenour v Dearborn Bd of Ed, 111 Mich App 798; 314 NW2d 760 (1981), the court opined  that declaratory relief granted in lieu of or as the functional equivalent of an injunction supports an award of costs and actual attorney fees under MCL 15.271(4).  Courts used this precedent for 33 years without legislative interference until a divided Speicher court decided that the 'relief' mentioned in that statute had to be 'injunctive' and not just declaratory in nature.  This interpretation weakens the law substantially, yet doesn’t disallow declarative relief to be awarded, sans the automatic award of court costs; fortunately there is injunctive remedies in this case to also count on.

B.  Injunctive relief is available in this case

MCL 15.271(4) notes that a person may seek injunctive relief through OMA to compel compliance or to enjoin further noncompliance with the act.  In their brief, the defendants still deny the facts in the claim saying the first session had too few votes and the second had too few reasons to go into closed sessions. 

An odd remedy was played by the COL to try and cure the first violation, reenacting the vote made to go into closed session and going into another closed session without a statutory reason.  MCL 15.270(5) is clear that reenactments of decisions only cures a case where the plaintiff is seeking to invalidate a decision, which is not the case here:  it was just unlawful to call a closed session with less than 2/3 of the council (MCL 15.267(1)).  Even had plaintiff sought to invalidate the decision, the reenactment would not have cured going into closed session without a proper quorum on 11-25-19, as reenactments are effective from the date of reenactment (MCL 15.270(5))-- or two weeks later.

Continuing to resist release of the minutes and failure to amend the minutes of the two 2019 council meetings to include the deliberations held in unlawful closed sessions is itself 'ongoing violations' worthy of immediate injunctive relief by the court recognizing these sessions as unlawful and ordering disclosure of the minutes withheld from the plaintiff and the public.

Defendants quote Citizens for a Better Algonac:  "if there has been a pattern, within a relevant timeframe, reflecting that a public body has been regularly engaging in activity that violates the OMA, an action for injunctive relief under MCL 15.271 would be proper."

The lawsuit they were trying to settle on 11-25-19 was ironically a case where plaintiff and another Ludington citizen had established a pattern that COL standing committees had been blatantly violating OMA since at least 2012.  Presented before this court, we had found three ways the OMA had been violated on multiple occasions in these supposedly advisory committees, at times with the same three individuals named in this lawsuit:  1) Killing a matter of public policy before it reached city council  2) Holding 'committee' meetings with a quorum of the city council present and participating  3)  Staffing committees with revolving casts of councilors so that a quorum of the council, and perhaps all, would visit a matter of public policy. 

If this pattern of 'ongoing violations' is not compelling for this court, we would advise that there has been multiple violations of OMA by the COL since 11-25-19.  These include, chronologically going backwards:

1)  MCL 15.263(5):  A person (plaintiff) was not allowed to address a meeting of a public body under rules established and recorded by the city council at a public hearing on the Haskell Building at the 11-23-20 meeting. 
2) MCL 15.263(2):  The council went into closed session near the end of the 11-9-20 virtual meeting, the public was not able to see any decisions made by the council after getting back into open session.  
3) MCL 15.265(1):  The Downtown Development Authority (DDA), a COL board with defendant Brandy Miller as a member, held special virtual meetings on May 26 and June 26 and August 27.  None were noticed to the general public at their website or at city hall.  Several virtual regular meetings of the DDA also took place without notice to the public of how to join.  
4) MCL 15.265(1):  On 7-3-20, all city councilors were invited to an exclusive grand opening of the splash pad.  The three councilors named in this suit attended along with two others making a quorum present, yet no public notice was generated, the only way the rest of the public knew was that the five were photographed on the COL's social media page standing proudly together on the splash pad.
5) MCL 15.265(1), MCL 15.263(5):  A quorum of city councilors attended a 'strategic planning retreat' at a local bar and talked for hours over matters of strategic planning and how it could be applied to the Ludington area.  An interested citizen present was reportedly unable to address the council.

Before the 11-23-20 council meeting, plaintiff was also apprised of a seemingly unlawful round-robin scheme where six councilors used the mayor as a hub in deciding public policy.  If these problems do not establish a "pattern within a relevant time frame reflecting that the public body has been regularly engaging in activity that violates the OMA" (Citizens for a Better Algonac) then what does?

C.  Plaintiff may be able to establish intent at 12-9-20 meeting.

Defendant offers a three step process from People v Whitney to assess intent to violate the OMA, the first of which is obvious from the individual defendants' profession.  These officials also violated the OMA on 11-25-20 by calling a closed session without 2/3 of their members present-- they cannot cure that problem by reenactment at the next meeting since that becomes the new time of the decision.  For example, the council cannot have a secret meeting early Monday, and reenact a decision to go into that secret meeting at their regular meeting later.  Their decision to settle the prior lawsuit in open session afterwards has not been shown to be illegitimate using any metric.

Thus when the city attorney (who was replaced the next month) advised they reenact the decision to go into closed session (to discuss an already settled lawsuit) without any possible detrimental financial effect on the litigating or settlement position of the public body, there should have been resistance to follow the directive.  If a cop stops your car and tells you that he will not cite you for speeding 10 miles over the speed limit, provided you resume your travels at 30 miles over the limit, while at the same time another citizen is telling you that you should drive at or below the speed limit, who should you listen to in order to avoid problems? 

Same thing here.  City councilors should have at least a working knowledge of the OMA and ideally should be trained regularly and comprehensively on the subject; you wouldn't expect a brain surgeon to not know the difference between a cerebrum and a cerebellum.  The OMA is not nearly as complex, and they should have followed the law rather than the lawyer.  Going into the second closed session without a lawsuit to settle or a 'detrimental financial effect' to worry about when the strictly-interpreted statute is clear both are needed, is more than reckless.  The councilors can't blame their lawbreaking on the cop that told them to drive 30 miles over the speed limit when they should have known that it was the wrong thing to do.

Satisfying the first two points in the test, the court needs to figure out whether the trio of councilors intended to violate the OMA.  The absence of any type of affidavits from the trio in the defendant's motion claiming ignorance or recklessness should be interpreted by this court as a lack of faith on their part that they had no intent, and as a weakness in their claim that such intent cannot be established. 

"As an essential element of the crime of intentionally violating the OMA, an offender must have a subjective desire to violate the OMA or knowledge that the offender is committing an act violative of the OMA." People v. Whitney (emphasis added).  Plaintiff described to each councilor precisely why going into closed session on 12-9-19 was contrary to the law, just before they ignored his advice.  Each councilor had I-Pads that could easily confirm that they needed an unsettled lawsuit and a detrimental financial effect to go into that session and had two weeks to gain other information.  The three other councilors present had not been in the earlier meeting and may have been totally aware of the circumstances that made this action unlawful.  The trio that were in both closed sessions cannot claim that ignorance.  

Without discovery and a hearing to present evidence, plaintiff cannot establish intent at this point, but fails to accept the conclusion of the defendants' brief claiming it as impossible.  The Ludington city council's organizational disdain for the OMA since at least 2012 at both the committee level and council level leading to that prior lawsuit and their contempt for following OMA since this lawsuit has been filed enhances that observation.  Their reluctance to admit their unlawful acts by refusing to permit the disclosure of the minutes of these illegal closed sessions affirms at least an oblique intention to defy the rules.

D. Plaintiff is entitled to court costs by prevailing through two routes.

Plaintiff agrees with defendant that attorney fees are not recoverable by the plaintiff, noting that pro se plaintiffs could prevail 110% and still not qualify for such relief.  Should this court properly find that the COL has violated the OMA by going into closed session unlawfully at the 11-25-19 and 12-9-19 meetings, however, plaintiff should be entitled to court costs/disbursements by either receiving the injunctive relief sought in the complaint and argued for in this brief, or as relief through the FOIA as described in MCL 15.240(6).  

The first method is proper by MCL 15.271(4), allowing plaintiff court costs when getting injunctive relief.  The second method comes from a short sequence of logical conclusions.  The two closed sessions “were held in violation of the OMA and that the minutes of those meetings were public records subject to disclosure.” Detroit News v. Detroit, 185 Mich. App. 296, 303-4 (Mich. Ct. App. 1990).  Unlawfully closed sessions suggests improperly undisclosed minutes, thus MCL 15.240(6) grants the victory: 'If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in a [FOIA disclosure lawsuit], the court shall award reasonable attorneys' fees, costs, and disbursements.’

Therefore, even if this court does not find injunctive relief is warranted for the closed session violations, award of costs is still available if the closed sessions are found to be unlawful and the minutes duly become public records available, giving plaintiff full prevalence on the FOIA portion of this lawsuit.

II. Defendants aren’t entitled to summary disposition on FOIA claim.

Defendants misrepresent the Local Area Watch precedent along with MCL 15.267(2) which said a public body is "strictly forbidden from releasing such minutes unless required by a judgment in a civil action filed under § 10, 11, or 13 of the OMA."  Defendants did so by replacing 'unless' with 'when' which suggests public bodies violate court orders.  Plaintiff hopes they will disclose those records when ordered.

In trying to negotiate disclosure of the closed session minutes, defendants offered many legal theories about why they weren't available.  They chose to claim they were unavailable because of the closed session exemption MCL 15.243(1)(d) which references MCL 15.267(2) making them available only through a civil action, which necessarily requires a OMA/FOIA lawsuit in order to inspect the records if the public body maintains their closed session was lawful rather than admit they weren't and voluntarily release the public records.  
It is inarguable that the council unlawfully called for a closed session without enough votes on 11-25-19, it is logically consistent that a reenactment of this vote at the 12-9-19 meeting did not cure the problem, as the vote to go into closed session at the 11-25-19 meeting was officially made two weeks too late to make that session legal.

It is inarguable that the reenactment vote at the second meeting did not reflect the reality that the prior lawsuit was already settled two weeks previously, and there was no reason to go in another closed session.  Section 8(e) of OMA “Strictly construed, only exempts from open meetings discussions of those matters in which a judgment has not yet been reached or in which a settlement agreement has not been accepted.” Detroit News v. Detroit.  

The two closed sessions were illegitimate, the two minutes of those sessions become public records on that conclusion.  MCR 2.116(I)(2) provides that "[i]f it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.  The issues of non-intentional behavior in this lawsuit point to a partial summary disposition in favor of the plaintiff on those issues.

CONCLUSION AND RELIEF REQUESTED

Objectively reviewed, the facts and laws behind this complaint do not point to a summary dismissal of the plaintiff's complaint in any part.  To the contrary, they suggest a finding by this court that the two closed sessions were held in violation of the OMA and therefore the two sets of minutes from those meetings merit disclosure to the plaintiff along with the awards available through the FOIA and OMA, mentioned in the relief requested in the original complaint. 

Intentional violations and other unresolved issues (should the court offer partial judgment after this hearing) should be further explored by the court by allowing a scheduling conference to permit discovery and an eventual dispute resolution process.

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What ever this topic is about, I agree, because I have faith in the fact that you know what you are talking about even tho, to me, reading all this legaleeze is like running in the sand while wearing flippers. Even tho I do enjoy some excursions into the legal world, my brain doesn't so it tries to maneuver me into a coma like condition.

 

Another funny, Willy!  I agree, thanks X for putting these fancy terms into understandable language!

  It's all about law. All the mumble jumble talk really makes no cense  to the average person. That's why Lawyers are said to be  " PRACTICING LAW "  Is it who can confuse the other with the best terms ?  I guess in the end the Judge has to sort through all the big words to make the correct decision.  After reading the whole FOIA dispute  presented , I think X did a good job in his briefs or did he have on long pants.

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