In my last post, titled “Who Should Pay My FOIA Costs and Fees Part I – The Charter-Appointed City Attorney,” I discussed the charter-appointed city attorney’s role in my lawsuit (whom I refer to as the “city attorney”) and why I believe his involvement significantly contributed to an extraordinarily large amount of costs and fees in my lawsuit. The city attorney clearly had a personal interest in continuing the lawsuit, and I believe that made it impossible for him to provide objective advice to the city council. The city council could have prevented the lawsuit by directing the city attorney to turn the records over as soon as I asked for them, and they could have ended the lawsuit at any time. I have always wondered if things would have turned out differently if the city council had been advised by an attorney without a personal interest of his own in the outcome.
In this post, I’m going to talk about the role that the Michigan Municipal League Liability and Property Pool (MMLLPP) and the attorney they assigned to handle the case played in getting us where we are today. I’ll refer to that primary attorney as the “insurance attorney.” The insurance attorney and the city attorney are friends outside of the lawsuit, and the insurance attorney made sure to keep his friend intimately involved in the lawsuit – even though he would have been aware that the city attorney had a personal interest that counseled against such deep involvement.
As I mentioned in my last post, I obtained the insurance attorney’s firm billing statements for a ten-and-a-half month period from 12/23/15 to 11/7/16 because they were attached to a fee motion that the city filed with the circuit court. During that brief timeframe, the insurance attorney managed to bill $95,970.20 in costs and fees and assigned nine attorneys to work on the file (including himself) at his old law firm. While I don’t know how much the insurance attorney has billed since that time, I can tell you that that there are at least three attorneys working on the case at the insurance attorney’s new firm, including the insurance attorney himself. This case has been a veritable billing bonanza for the insurance attorney and his colleagues.
How was the insurance attorney able to make so much money in such a short period of time? Primarily because he objected to my request to have the judge rule immediately on the legal question in the case – which was whether the 18 records that I’d asked for were public records. The insurance attorney insisted on full-blown discovery that accomplished nothing – except to allow him, other attorneys at his firm, and the city attorney to collect fees for themselves (and raise mine).
Once discovery started, the insurance attorney did everything possible to resist it – for example, he refused to allow city witnesses to testify without a subpoena that had to be hand-served by a process server, and he forced us go to court to compel the city to respond to discovery requests – which is not how attorneys usually conduct themselves. And now, almost five years later, the Michigan Supreme Court finally answered the simple legal question I asked right in the beginning, holding that the 18 records are indeed public records.
This could have been over a long time ago. We didn’t need almost a year of discovery. Nothing was “discovered” that wasn’t already known or on which the parties didn’t agree. I firmly believe that the reason for the insistence on discovery was to delay the resolution of the case, drive my fees and costs up to a point where they thought I would just go away under the pressure, and to enable the attorneys to profit off of the continued litigation. And now I think they want you to pay for my fees directly by adding it to your property tax bill, because the city council would prefer to continue wantonly spending on pet projects and refuse to budget for what they know is coming next.
I should note that the city council and insurance attorney also claimed that one FOIA exemption applied to the records that I requested – an exemption referred to as the “civil action” exemption. This exemption prevents a person from making a FOIA request to a public body if the names of both the person and the public body are contained in the title of the lawsuit AND the FOIA request relates to that lawsuit. Since this is the first lawsuit I’ve ever filed, I obviously wasn’t involved in any other lawsuit with the city at the time I made my FOIA request. Therefore, the civil action exemption did not apply based on the explicit language of the FOIA statute and settled Michigan caselaw. In a bizarre attempt to support this exemption, the insurance attorney claimed that I was nothing more than my husband’s puppet, used male pronouns to describe me, and told the court and city council that the only reason that I made my FOIA request was to “help” my husband with his Open Meetings Act (OMA) case. I honestly thought that “the-husband-and-wife-are-one-person-and-that-person-is-the-husband” nonsense went out of style after the 1950s, but apparently I was wrong. Even though the insurance attorney used this sexist defense as a wedge to claim that he needed discovery so he could bill a lot of hours, I don’t think he ever believed that I was “helping” my husband for two reasons.
First, my husband is a published expert on the court rules that allow parties to get information in civil lawsuits, and he was appointed to a special Michigan State Bar committee that recently rewrote those court rules. Obviously, he understood how to get all the information he might have wanted in his OMA lawsuit without me. The insurance attorney also received discovery requests from my husband at the time I made my FOIA request, so he clearly knew that my husband could make discovery requests without my “help.”
Second, the insurance attorney admitted that he was aware that my FOIA request was in fact my request in a September 2015 email about the OMA case, several months before I filed the lawsuit. This email was sent in response to my husband’s complaint amendment to add the city’s treatment of my FOIA request as one more in a string of anti-transparency examples. I think this email proves that the insurance attorney has always understood that my FOIA request belonged to me – even though he later told the court and the city council just the opposite.
The insurance attorney assured the city council that his duty was to the city and that there was a “Chinese wall” between himself and the MMLLPP. This comment was made at the 10/23/17 city council meeting, at 2:26:07, and linked below:
When the city council wanted to produce the records and end the lawsuit, the insurance attorney suggested that, if they released the records, they might compromise their insurance coverage, have to pay my fees and costs, and maybe they would have to pay his fees as well – he just didn’t know. To really strike fear into the council’s collective heart, he told them – without any proof – that he understood my fees and costs were “in excess of” $200,000. These comments were made at the 7/23/18 city council meeting, at 00:42:32 and 00:48:13, and linked below:
The insurance attorney’s legal services bills provide a window into what he was doing, and more importantly, to whom he was talking about the case. I’m going to be discussing the bills in a lot of detail, and in fairness, I would note at the start that the labels and codes that I’ll talk about were not consistently used 100% of the time by any of the attorneys. These attorneys used billing software to enter time; it’s often the last thing they do at the end of the day, week, or month; they wouldn’t have seen a running total to cross-check the labels; and I suspect that none of the attorneys expected that their time entries would ever be seen by anyone other than the MMLLPP. My comments pertain to what happened most often with regard to billing categories, because when you do something 95% of the time, I think it’s fair to say that’s what you intended to do.
The primary insurance attorney’s time entries use the initials “JET.” I believe that except for two minor aberrations (on 7/18/16 and 7/21/16), the insurance attorney coded his interactions with the MMLLPP as communications with his “client,” and he sometimes even included their names (Tom Weed and Diane Winn both work for the MMLLPP). The insurance attorney usually coded his discussions with the city attorney and my attorney as “other outside counsel.” But the insurance attorney reserved the far less important “other external” category for calls to courtroom clerks – and communications with his actual client, Clarkston officials and employees.
That’s right – the insurance attorney views the MMLLPP as his client and Clarkston officials as people who are external to their own lawsuit. Michigan law is crystal clear that Clarkston is the client, not the insurer. (So much for that Chinese wall and the duty he owed to Clarkston.) The insurance attorney has had a relationship with Ms. Winn going back at least twenty years (See, 1/3/2000 correspondence re: a consent judgment in the matter of Gillett v Marion Township, linked here: http://mtwplc.com/DevelopmentDocuments/CrystalWood/CrystalWoodConsentJudgment.pdf). However, a long relationship with an insurer’s employee does not transform that person into a client. That is a role reserved for Clarkston.
Some of the insurance attorney’s billing descriptions for “client” include Ms. Winn’s name. These entries demonstrate that she was consulted on key aspects of the case, such as 1/4/16 (response to FOIA); 1/5/16 (assignment and answer to complaint); 8/2/16 (motion for summary disposition; status going forward); 8/10/16 (pretrial date); 9/28/16 (email regarding my motion for summary disposition and response – sent to both the city attorney and Ms. Winn); and, 10/20/16 (motion for costs). Tom Weed was consulted regarding the lawsuit and the answer to the complaint on 12/23/15.
I know I’ve gone into the weeds a bit with all of this billing detail, but I’m doing it because I want you to understand that this kind of insurance carrier involvement is unusual. Insurers are usually provided with a general litigation plan and expected litigation budget at the beginning of the lawsuit, and they receive updates to the plan and budget every few months. They do not receive copies of all pleadings and discovery requests, and they are not consulted regarding the direction of the case – because they are not the client. If there is an alternate explanation for these billing entries and the MMLLPP was not in fact overinvolved in the litigation, I would love to hear it, because treating (and referring to) an insurer as a client is improper. This is because insurers and insured frequently have competing interests, and the lawyer must devote 100% of his/her efforts to the client – that’s the “duty” that the insurance attorney mentioned.
I’ve coded the insurance attorney’s entries involving his “client” in blue. For those of you who are wondering about whether or not he has the 18 records, please see the entries that I’ve commented on in red on 5/23/16 (18 documents personally reviewed and analyzed by the primary insurance attorney JET), 6/15/16 (18 documents reviewed and analyzed by PTO), 7/25/16 (PTO prepared an index of the 18 documents), and 9/29/16 (18 documents reviewed by JMO). These 18 documents were apparently broadly distributed for use and review throughout the firm – so yes, the insurance attorney has them, and he took the files with him when he went to his new firm.
Blue – communication with MMLLPP
I’ve highlighted the contacts with city officials and employees in purple, most of which concerned depositions (which wouldn’t have been necessary if the insurance attorney hadn’t insisted on discovery after we asked for the judge to rule immediately on the legal issue). You can see that the insurance attorney sure didn’t think it was very important to talk to the people in Clarkston, did he? He also didn’t perceive them to be his client – even though they are. No, the insurance attorney viewed the people from Clarkston as merely “other external” contacts on par with court clerks but clearly not as important as his purported client, the MMLLPP.
Purple – communication with Clarkston
This discussion wouldn’t be complete if I didn’t include the Michigan Municipal League (MML) itself. The MMLLPP is nothing more than a self-insurance plan created by the MML and administered by Meadowbrook Insurance. The Director of Risk Management is an MML employee, Michael Forster. Mr. Forster is also listed on the MMLLPP’s “claim staff contacts” page. You’ll note that Mr. Forster was copied on the 1/3/2000 letter that I linked to above, indicating that Mr. Forster’s relationship with the insurance attorney goes back at least as long as Ms. Winn’s. If you want to email the MMLLPP generally, you are directed to an MML email address. The insurance attorney has been very involved in MML activities, and if you search the MML website for his last name, you will see a lot of entries for the insurance attorney’s old firm, and his biography page at his new firm notes that he is a frequent speaker for the MML and Michigan Townships Association (MTA).
Given the extensive contacts between the insurance attorney and the MMLLPP, and the insurance attorney’s relationship with the MML, I believe that the MML was keenly aware of what was going on in my lawsuit. Recall that the city attorney told us that a lot of people were interested in my lawsuit, it was bigger than Clarkston, the case involved a critical issue for the whole legal community, Clarkston was at “the tip of the spear,” and Clarkston was carrying the flag on the issue. I think the city attorney was telling the truth.
The MML and MTA, along with the Michigan Press Association and Detroit Free Press, were invited to file amicus briefs by the Michigan Supreme Court before oral argument. The Michigan Press Association and Detroit Free Press were joined by many other organizations with a stake in open government. Their brief (that I’ll call the “media brief”) suggested that the Court review a different section of the FOIA statute in determining whether the 18 records that I asked for were public records.
Both amicus briefs were filed on January 31st. Everyone received a copy. We agreed with the media brief. If the MML, the MTA, or the insurance attorney and his colleagues disagreed with the media brief, it was their obligation to ask the court for permission to file an answer. They had from January 31st until the court issued its decision on July 24th. They did absolutely nothing to protect the city’s interests. The insurance attorney didn’t even bother to address the argument raised in the media brief at oral argument.
After a majority of the Michigan Supreme Court adopted the argument made in the media brief to agree with me – that the 18 records were public records – the insurance attorney met in secret with the city council and convinced them that was the time to argue about the media brief. I have to wonder, though . . . did the insurance attorney tell the city council that he’d neglected to say anything when he was supposed to? It may not have changed the result, but I estimate that he’s managed to rack up $50-$60,000 in attorneys’ fees on both sides together making arguments that he had months to make. And, in the end, his additional arguments were not successful.
The insurance attorneys have also suggested that the city attorney might not produce the 18 records if the city council asked for them – even though attorneys are ethically obligated to cooperate with their clients’ reasonable requests. In other words, they are teeing up the opportunity to rack up more costs and fees once the case goes back to the circuit court. It’s not clear if the city council has consented to this, since they only authorized the insurance attorney to contest my request for taxable costs and to file a motion for rehearing in the Michigan Supreme Court. I guess we’ll see if the city council will decide to stop fighting over the 18 records voluntarily or not.
I’ll give some final thoughts in Part 3.