We Won Our FOIA Lawsuit Against the City, pt.1, The Claim

[XLFD]

On the September 10, 2012 Ludington City Council meeting, City Councilor Gary Castonia and City Manager John Shay started a nasty rumor, of which I have been negligently tardy in quelling.  Shortly after the 25 minute mark, Castonia says:  "I'd like to answer a lot of those comments brought up by Mr. Rotta at the beginning of the meeting, but rather than do that, I'd like Mr. Shay to tell us how our court decision came out today and I think that will answer most everything."

Shay stated:  "There was a trial today.  As the council recalls, Mr. Rotta and Ms. Swiger filed a lawsuit against the City, the judge dismissed the lawsuit a couple of months ago.  The City filed a counterclaim against Mr. Rotta and Ms. Swiger and we were seeking reimbursement of the costs that the City incurred to compile the records for their various FOIA requests.  The City was seeking $737 in reimbursement and the judge ruled that they were to repay the City $696... so contrary to his assertion that our fees are illegal or part of public extortion, the court did not find it that way, and did rule in the City's favor."

So did government secrecy win the day, in the court ruling Castonia owns by saying it was our court decision?  The court ruling dealt with a FOIA request sent originally over a year before the court made its ruling, totally ignored when it was administratively appealed to the Ludington City Council, and given to Circuit Judge Cooper, who decided it was okay to have his son on the City's legal team for over 4 months of time, during which time City Manager Shay perjured himself in court documents.  But you should always doubt the assertions of anyone who tries to tell you something without proof, and so I will offer it here today.  That once again, the City Manager is lying:  the plaintiff's won, the City lost.

If this is the case, you may ask why the plaintiffs are taking this to appeals court, and why the City is reluctant to go there, presumably.  The reason for this is the court defied established precedents and laws in the rulings for the plaintiffs' claim that was detrimental to the plaintiffs, and for the defendant's counterclaim that was again detrimental to the plaintiffs.  So even with the main goal achieved in their claim, and the several goals quashed in their opponent's counterclaim, the plaintiffs still suffered in both fiscal and legal terms with the judgments.  A Pyrrhic legal victory, which the defendant looks at as a win, and the plaintiff has to consider as a loss.

But let's look at what makes the plaintiffs the victors in this claim and counterclaim.

THE CLAIM

Like in my most recent case involving the Open Meetings Act, my request was for injunctive relief only, no money awards; this involved:   1) Order the City to allow us access to the requested documents 2) Expedite (speed up) the process as per the act  3) Award us court costs  4) Grant such relief as the court deems proper (top of this page).  In their defense of our claim the City asked the court to:  "dismiss plaintiffs complaint with prejudice [cannot be refiled], grant to defendant its cost and expenses in defending this action including a reasonable amount for attorney fees and grant to defendant such other and further relief which this honorable court finds reasonable."

In the FOIA, section 10(4) provides:

"If a person asserting the right to inspect or to receive a copy of a public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys' fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys' fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body liable for damages under subsection (5).

The key word in this section is the word "prevail". This Court has used the test which is set forth in Bredemeier v Kentwood Board of Education,95 Mich.App. 767, 772; 291 N.W.2d 199 (1980), to determine whether the plaintiff has "prevailed". This test is whether: (1) the action was reasonably necessary to compel the disclosure; and (2) the action had the substantial causative effect on the delivery of the information to the plaintiff.}

As noted, the plaintiffs both wrote the FOIA Coordinator for clarification of his response, appealed to the City Council first, and were totally ignored in the second September meeting in 2011, and never given any judgment from them at all irregardless of several communications between plaintiffs and the defendant's administrative appealing body.  We had no option to get these records without filing in the Circuit Court, and on 2-14-2012, we received records but not records which corresponded to our request.

The FOIAC John Shay knew full well they weren't; lying in his affidavit that these fulfilled the request when he knew they backed his previous lie that they were totally duplicative of records I had already requested.  I have brought up the breach of honesty in the City Council meetings a total of four times, and he has never addressed the issue.  Because he knows he has committed perjury, and cannot reasonably say otherwise.  Unfortunately, he is effectively sheltered by his position from having to answer this question.  If he does, he will find himself in deeper water from lying to the public at large when I show the relevant documents.

After being hit with two FOIA requests for specific records that existed according to previously FOIAed financial records, Shay revised his original response, and once again gave me an incomplete set of records, and a false affidavit, though it may have not been willful, as it was in the first try.  The City Attorney, as he did in the first brief, claimed my suit was now a moot point as I received the records.

My first request was finally moot, the second was lost by disqualified Judge Cooper allowing a long court process including what turned into useless depositioning of the plaintiffs, and the third and fourth was in the replacement judge's hands. As we had prevailed by the above court test, we presumed we would receive court costs and probably punitive fees, because of the defendant's willful perjury on Valentine's Day, and this was asked for in a supplemental brief. The court, as the transcripts acknowledge, never verbally considered any award to the plaintiffs, even when it was brought up in court. This is one of the aspects we are looking to correct in the MI Appeals Court

As for the defendant's requests to the court, the judge did not dismiss our lawsuit, just rendered it as being moot due to the release of the records, eventually.  This also shows that John Shay was at the least dishonest when he said "the judge dismissed the lawsuit".  The court never invoked prejudice.  The court never granted the defense its own court costs or attorney fees, and never granted any other relief-- on behalf of the plaintiff's claim.

In summary, for our FOIA appeal claim, we got our injunctive relief's main goal-- to see the records.  We failed in our goal to get back our court costs even though there is little doubt we did prevail, as per the above tests, and deserved our fees involving our initial filing fees ($150), and two motion fees ($20 each), and smaller fees for service and errata.  The defendant did not prevail in their defense to the claim under any yardstick, as otherwise without the court filing they would have never compiled the documents for the plaintiffs to fulfill the initial FOIA request, and because none of their claim requests were granted.

The only victory the City can point to from the claim is that the court ignored the proper awarding of fees, and invoking the proper sanctions John Shay should have received from willfully lying in court documents, and other sanctions regarding serious offenses like public extortion and not providing proper access to public records.  Nothing to gloat about in a public forum.

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

[Willy]

At first I thought your appeal had been heard and you won the lawsuit in court. So let me understand this. Your topic heading "We won our FOIA lawsuit againts the CIty" means  that your lawsuit was not completely denied by the judge. What your doing is pointing out victories within the lawsuit that were accomplished. At least that's what I think your saying.

[XLFD]

Sorry for the confusion, Willy, the Appeals Court has yet to deal with my appeal to them. 

I am effectively pointing out that upon retrospection of the facts of the case, we did prevail in our claim, because the filing of the claim resulted in the City letting us see these documents.  To prevail in common terminology is to achieve the victory, and is defined in terms of FOIA in the thread head. 

The judge said as much in our first hearing, and said the point of our lawsuit became moot at the point the correct and complete records reached us, after the discovery phase of our lawsuit.  He then erred, however, in not awarding us the court costs and fees, as he should have.  That lack was judicial oversight, not that we failed to prevail, in the legal sense.

Contrary to Shay's lingo, our suit was not dismissed by the judge.  Dismissal occurs when the judge becomes convinced that the plaintiff has not and cannot prove his/her case.

In Judge Wickens' order he stated:  "On the date of the hearing (5-21-2012) the court determined that the documents requested in plaintiffs' original FOIA request had been provided to the plaintiffs.  As a result, any further proceedings by the court will be unnecessary and moot.  The court so orders."   This is not a dismissal-- to the contrary it is an acknowledgment that the defendant's actions, since the case was filed, negated any further action on our relief, since the City did give the records to us without being forced directly by the court to do so. 

So John Shay stated an actual falsehood about the dismissal of our lawsuit at the 9-10-12 meeting.  No big surprise there, he's been making a habit of that through his career here in Ludington.

[XLFD]

I must also add that the usual 110% loyal COLDNews reporters did not forget to add the reality of the situation as seen in the  last paragraph of this article, they mildly correct the dismissal assertion made by the City Manager, probably at the behest of the City Attorney who realized Shay's mistake.

[Marty Redman]

At any rate the City spun the story so that they won it.  They must feel if they don't settle a lawsuit for a quarter million, their the winners.  I agree, the city of lud didn't win, they just had witchcraft on there side (Wickens magic, get it).  I see you getting court costs and punitive costs in the MI AC.