In Parts I and II of “Who Should Pay My Costs and Fees,” I discussed the role of the city council, our charter-appointed city attorney (that I refer to as the “city attorney”), the Michigan Municipal League (MML), the Michigan Municipal League Liability and Property Pool (MMLLPP), and the attorney hired by the MMLLPP to handle my lawsuit (that I refer to as the “insurance attorney”).
The city attorney was certainly correct when he said that my lawsuit was “much bigger than Clarkston,” and I have to ask – exactly whose interests were being pursued in my lawsuit? Was it the city attorney? The insurance attorney? The MMLLPP? The MML? Clarkston? Clarkston taxpayers? (LOL, sorry – the mayor and his friends don’t care about the Clarkston taxpayers, so scratch that last one.)
Let’s examine the two primary drivers of legal fees and costs once more, including some new examples:
The city attorney
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- Caused the lawsuit by deciding to withhold the 18 records without permission from his client and cut the client out of the opportunity to weigh in on that decision when we sent a follow up letter
- Friends with the insurance attorney
- Had a personal interest in vindicating the correctness of his advice
- Charged Clarkston taxpayers for his extensive involvement in the case, even though the insurance attorney and seven other lawyers were working on the lawsuit at no additional cost to Clarkston
- Stopped billing Clarkston only after the city council accused him of having a conflict of interest but refused to stop his involvement in the lawsuit on an unpaid basis
- Has an interest in hiding at least one document from Clarkston (and me) because he’d promised confidentiality to an opposing lawyer
- Billed Clarkston for a discussion with a city manager of another public body concerning a FOIA request that I made to that other public body
- Advised by the MMLLPP that my fees would not be covered shortly after my lawsuit was filed in 2015 but told the city council in 2017 that my fees would be covered
The insurance attorney
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- Communicated extensively with his friend, the city attorney, including a discussion regarding a “plan of action” – even though he knew the city attorney had a personal interest in my lawsuit
- Discussed potential settlement on two occasions with the city attorney, apparently without the involvement of the city council
- Told the city council that there was a “Chinese wall” between himself and the MMLLPP even though he was extensively communicating with the MMLLPP based on a review of his billing entries
- Referred to the MMLLPP as his client in billing statements and categorized Clarkston officials as “other external” persons, a minimal category that he also used for contacts with court clerks
- Told the city council – without evidence – that FOIA requests that I’d made to other public bodies were made by my husband and related in some way to my FOIA lawsuit against Clarkston
- Advised the city council and the court – again without evidence – that I was my husband’s puppet and my Clarkston FOIA request wasn’t really mine
- Insisted that discovery was necessary when there were no facts that were seriously in dispute and then actively resisted discovery, resulting in costs and fees that will now be paid by Clarkston taxpayers
- Assigned nine attorneys to work on the case (including himself) resulting in almost $100,000 in legal fees for his firm over a ten-and-a-half month period
- Used every imaginable tactic to increase costs, such as requiring me to hire process servers to personally serve the lawsuit complaint and subpoenas for depositions to city officials, resulting in costs and fees that will now be paid by Clarkston taxpayers
- Claimed in court that I was barred from making a FOIA request to Clarkston – even though that claim was contrary to the language of the statute, Michigan case law, and the facts – as a wedge to convince the circuit court judge that discovery was necessary (and despite evidence that he didn’t believe it was true)
- Engaged in scorched earth litigation in an apparent effort to delay the resolution of the lawsuit, resulting in costs and fees that will now be paid by Clarkston taxpayers
- Utterly failed to address the prevailing argument made by the media in the Michigan Supreme Court, despite having months to do so, and then significantly increased my attorneys’ fees after convincing the city council that they needed to raise arguments that he should have made months earlier – the city lost again, and these increased costs and fees will now be paid by Clarkston taxpayers
The city council was not blameless in all of this. They allowed a subordinate office – the city attorney – to make decisions independently, which resulted in almost five years of litigation. They were remarkably incurious about the content of the 18 records, even though they involved environmental concerns relating to Curt Catallo’s desire to build a coffee shop and Cara Catallo’s attacks on property owners for cutting down trees on their own property through the use of her authority as the Historic District Commission Chair. They also fully supported the insurance attorney’s conduct, to the extent they bothered to even inquire about it. And, when offered the opportunity to discuss reasonably resolving the lawsuit, the city council authorized more litigation, resulting in tens of thousands of dollars in increased fees and costs that will now be paid by Clarkston taxpayers.
Throughout this time, the city council has continued to spend money on pet projects and refused to budget anything for lawsuit expenses, despite pleas from taxpayers to do so. They’ve borrowed so much from the water and sewer funds to pay for the city hall building costs that they are going to have to assess Clarkston property owners for a sewer expense, something that should have been paid out of the funds they’ve already spent on other things. Given how tight money is in the city due to the spendthrift actions of city council, it’s entirely reasonable to assume that they were counseled by the insurance attorney that they can refuse to pay any judgment out of city funds. This means that every property owner will eventually have to pay the accumulated costs and fees through an addition to their property taxes. In short, the majority of your city council cares more about spending money on pet projects than they do about you.
I suspect that the insurance attorney’s litigation strategy is played out over and over across Michigan, given how many public bodies are involved with the MML and that also purchase insurance though the MMLLPP. You won’t hear about it, because the individual FOIA requester is usually forced to go away due to crushing legal fees. I know this personally, because the insurance attorney tried to use that tactic on me after I lost in the circuit court. If the public body throws a FOIA litigant a bone and pays some of his or her fees, it’s likely accompanied by a gag agreement so the litigant can never talk about what happened (something the insurance attorney tried to foist on my husband after the city admitted that it violated the Open Meetings Act when that case was resolved).
The Freedom of Information Act gives us the right to hold our government accountable by giving us access to information, but that right is meaningless if FOIA requesters are met with the hide-the-records approach and scorched earth litigation policy endorsed by these lawyers and these organizations. Within the last few years, the Michigan Legislature considered the idea of an independent FOIA appeal board to (mostly) cut the lawyers out of the process, and they need to revisit that. My case will give them a perfect opportunity to do so because the conduct of the city and their attorneys has been frankly outrageous. Since Clarkston doesn’t seem to mind being associated with hiding records, perhaps they also won’t mind being instrumental in providing additional rights to FOIA requesters. I hardly think that the MML or the MMLLPP will be in a position to complain, do you?