$149,937 sought from MI Attorney General for FOIA violations in lawsuit seeking climate change and environmental litigation records
An August 18 evidentiary hearing has been scheduled in Michigan’s Court of Claims to determine the amount of attorneys’ fees and court costs Michigan Attorney General Dana Nessel’s department will have to pay a prevailing plaintiff in a Freedom of Information Act lawsuit that’s been pending since May of 2020.
The prevailing plaintiff in the case, Energy Policy Advocates, asserted in their FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, which was filed on July 24, 2020, that they are “a nonprofit corporation dedicated to transparency relating to environmental and energy policy and how policymakers use public resources [and they] regularly uses state and federal public records laws to obtain documents from government bodies to educate the public on the interaction between private interests and public office.” (See pages 1 – 49 of the above hyperlink)
The DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT AND AFFIRMATIVE DEFENSES was filed on August 14, 2020, and it contended that the disputed records were properly withheld, citing FOIA exemptions for attorney client privileged information, attorney work product, frank communications “and notes within a public body or between public bodies of an advisory nature [which] covered other than purely factual materials [and] are preliminary to a final agency determination of policy or action.” (See pages 50 – 71 of the above hyperlink)
In a 26-page Opinion and Order issued on February 9, 2023, Court of Claims Judge Thomas C. Cameron summarized the issues in dispute:
Judge Cameron issued another Opinion and Order on April 26, 2023, which held that Energy Policy Advocates: “… made numerous requests for records under FOIA-many of which defendant wholly denied, or denied in part. After plaintiff filed suit in this Court, defendant released 218 records. Plaintiffs lawsuit had a substantive causal effect on the release of these records because defendant released the records after plaintiff filed suit. Thus, plaintiff is entitled to reasonable attorney fees, costs, and disbursements under MCL 15.240(6).”
On May 2, 2023, an Order was issued by MI Court of Claims Chief Judge Elizabeth L. Gleicher, which reassigned this case to Judge James Robert Redford.
On May 8, 2023, Energy Policy Advocates’ attorney filed a DETAILED BILLING STATEMENTS IN SUPPORT OF REQUEST FOR ATTORNEY FEES AND COSTS. That filing requested that the “Court grant its request for attorney fees, costs, and disbursements in the total amount of $149,937.34.”
On May 30, 2023 the defendants filed their OBJECTIONS TO PLAINTIFF’S 05/08/2023 DETAILED BILLING STATEMENTS and argued that: “The starting point in this particular instance is substantially less than the $144,205.90 Plaintiff requests in its bill of costs [and] Plaintiff’s counsel should be limited to a $250 hourly rate.”
Judge Redford has now scheduled an evidentiary hearing regarding the disputed attorney fees and court costs issue on August 18, 2023, at 9:00 AM. Those oral arguments will be held in the Grand Rapids Court of Appeals building.
Attorney Zachary Larsen, of Clark Hill PLC, represents the plaintiff in this case and he has not responded to a phone call seeking comment.
MI Assistant Attorney General Adam R. De Bear represents the defendant. In response to an email asking the MI AG’s press office and De Bear for “comment and to discuss whether you’ve made any offers of settlement to the plaintiffs, pursuant to MRE 408, regarding your fee dispute,” Kimberly Bush, of the MI AG’s Office, indicated that: “We are not going to comment on settlement discussions, which are confidential and protected from disclosure under MRE 408.”
In Mich. Rising Action v. Sec’y of State, № 359355 (Mich. Ct. App. Jul. 21, 2022) the Michigan Court Appeals issued an unpublished Opinion regarding FOIA and MRE 408 and held that:
Below are hyperlinks to a variety of filings from this ENERGY POLICY ADVOCATES v MI AG DANA NESSEL:
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — MI Court of Claims — Register of Actions — Case №20–000098-MZ — as of 08–11–23
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — VARIOUS CASE DOCS PHOTOS TAKEN AT COURT OF CLAIMS IN LANSING
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — EXHIBITS
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — 02–09–23 — OPINION AND ORDER
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — 03–16–23 — DEF. RESPONSE TO PLAINTIFF’S SUPPLEMENTAL BRIEF IN SUPPORT OF REQUEST FOR ATTORNEY FEES
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — 03–20–23 — DEF. UNOPPOSED MOTION TO FILE SUPPLEMENTAL BRIEF
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — 04–26–23 — OPINION AND ORDER
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — 05–08–23 — PLAINTIFF EPA’S DETAILED BILLING STATEMENTS IN SUPPORT OF REQUEST FOR ATTORNEY FEES AND COSTS
ENERGY POLICY ADVOCATES v MI AG DANA NESSEL — 05–08–23 — DEFENDANT’S MOTION FOR RECONSIDERATION AND-OR CLARIFICATION
