Ann Arbor officials didn't violate law by having 'secret discussions' about marijuana policy, judge says
An online news organization's lawsuit claiming Ann Arbor City Council members broke the law by having "secret discussions" about medical marijuana policy has been thrown out of court.
Washtenaw County Circuit Judge Melinda Morris dismissed the case brought by the Ann Arbor Chronicle after hearing oral arguments on Wednesday.
“Judge Morris correctly dismissed the lawsuit brought by the Ann Arbor Chronicle because it had no legal merit," City Attorney Stephen Postema said in a statement.
The city of Ann Arbor successfully defended itself in a lawsuit that alleged City Council members held illegal closed-door discussions about regulating medical marijuana dispensaries in the city.
File photo
"The court ruling is not surprising," Postema added, "given that the council did absolutely nothing wrong by attending a properly called closed session on July 19 — as even a most basic reading of the Open Meetings Act and relevant case law demonstrates."
The Chronicle sued the city in September, claiming City Council members violated the state's Open Meetings Act by formulating plans for a moratorium on new medical marijuana dispensaries behind closed doors on July 19. The lawsuit alleged council members privately discussed and possibly gave directive to the city attorney in closed session.
Following that meeting, the City Council voted Aug. 5 on a temporary moratorium to stop any new medical marijuana dispensaries from opening in Ann Arbor. The moratorium remains in effect as city officials continue to craft regulations for marijuana businesses.
Postema said the court recognized the City Council is authorized by statute to go into closed session to discuss attorney-client privileged communications. He said the Chronicle's attorney "was evidently aware of the relevant law in this matter but nonetheless chose to pursue this case for reasons unknown. This is unfortunate."
Chronicle editor Dave Askins and his attorney said on Thursday they're looking forward to exploring opportunities to appeal the court's ruling and establish new case law that will bring the allowable use of closed sessions back in line with the spirit of the Open Meetings Act.
"We respectfully disagree with the court's opinion," said East Lansing attorney Jeffrey Hank, who represented the Chronicle in the lawsuit. "We believe we presented clear evidence of an Open Meetings Act violation. We basically hope at the end of the day to get a rule clearing up the Open Meetings Act and what is allowed (for a closed session)."
Hank said he thinks the city of Ann Arbor is applying the "attorney-client privilege" rule too broadly and undermining the Open Meetings Act.
While preparing the motions in the case, Ann Arbor officials became aware that Hank was looking to open a medical marijuana dispensary in East Lansing but had been stymied by a moratorium there. Hank, a known medical marijuana advocate, doesn't deny that.
He declined to comment on Thursday when asked if he had any business interest in opening a medical marijuana dispensary in Ann Arbor.
Though Hank and the Chronicle filed suit against Ann Arbor shortly after the city passed the moratorium in August, they maintain the lawsuit isn't about medical marijuana — the case is "100 percent" about the Open Meetings Act, Hank said.
Askins said the Chronicle established a working relationship with Hank around the first week of July, and so the timeline refutes any speculation that Hank's involvement with the case was based on anything other than the merits of the Open Meetings Act lawsuit.
He said Hank was suggested by the Michigan Bar Association referral service after the Chronicle inquired about attorneys specializing in Open Meetings Act and Freedom of Information Act issues. He said the referral predates the July 19 closed session.
"I had no idea that Jeffrey was also interested in medical marijuana issues when we obtained the referral," Askins wrote in an e-mail to AnnArbor.com. "We focused on the possibility of retaining him to handle future OMA/FOIA issues — the city of Ann Arbor seems to generate a lot of these type of issues."
At Wednesday's hearing, city staff attorney Abigail Elias represented the city in court. At the close of the one-hour hearing, the judge ruled in favor of the city and dismissed the case.
Hank said it's still uncertain exactly what happened in the July 19 closed session, but he said certain council members have confided in the Chronicle that policy discussions and decisions were made. The Chronicle is not sharing names of those council members.
The Chronicle also claims statements made by council members at the Aug. 5 meeting, when the moratorium was decided, suggest directives or decision-making happened in private.
Council Member Stephen Rapundalo, D-2nd Ward, stated publicly at that meeting in regard to the moratorium: "In fact, this was discussed at our last meeting, and a directive was given to the city attorney at that time to bring this forward to this meeting tonight, and I believe everyone was in the room when that was indicated."
Council Member Tony Derezinski, D-2nd Ward, can be seen on the archived meeting video nodding his head in agreement with Rapundalo.
Rapundalo later issued a public retraction on Sept. 7, claiming he misspoke and that his statement that any directive was given was a "misrepresentation" of what happened.
"He changed his story 100 percent," Hank said. "That's why we're fighting the case."
Ryan J. Stanton covers government and politics for AnnArbor.com. Reach him at ryanstanton@annarbor.com or 734-623-2529.
Comments
Nephilim
Sat, Jan 22, 2011 : 3:41 p.m.
Hey Alan, you don't bite the hand that feeds you. Haven't figured that out yet?
timjbd
Fri, Jan 21, 2011 : 11:30 p.m.
The people who are happy to see this thrown out are probably also rooting for Julian Assange to be sent to Gitmo. People really seem to NEED to have their politicians lie to them. Very strange.
Roadman
Fri, Jan 21, 2011 : 10:26 p.m.
Good job by the City Attorney to get this stinker of a case dismissed. Seems that Dave Askins has been overreaching. The City Council clearly has a legally defined safe harbor to consult with legal counsel and not worry that these communications cannot be revealed publically. It would be ludicrous for a City Attorney to give a frank opinion to City Council that a lawsuit against the city was meritorious and recommend settlement to avoid large exposure only to have those recommendations go public and damage the City of Ann Arbor's interests.
Joel Batterman
Fri, Jan 21, 2011 : 7:37 p.m.
Government transparency should be everyone's political agenda.
denise1inaa
Fri, Jan 21, 2011 : 5:21 p.m.
I wonder if any other judge would have ruled as Melinda Morris did in this case. I have been disappointed in SO MANY of her rulings over the past years. And I think the city council did violate the Open Meetings Act. If it walks like a duck . . .
Alan Goldsmith
Fri, Jan 21, 2011 : 5:03 p.m.
"Askins is just another hypocrite using the press, the courts and the public interest to serve his own political agenda." Yeah, his 'political agenda' of great journalism, something many of the commenters here probably have very little experience seeing if this is where they hang out. Lol.
mannyredline
Fri, Jan 21, 2011 : 2:42 p.m.
The Ann Arbor City Council approves the costs for the new court building and their furniture. Was this decision any surprise?
bugjuice
Fri, Jan 21, 2011 : 2:26 p.m.
What did we expect? Just in case those in power ever find themselves in a similar position, those who are in control will always defend the status quo.
Atticus F.
Fri, Jan 21, 2011 : 1:52 p.m.
Nice to see proof that our judges are in kahoots with our politicians. Not that we haven't been painfully aware of that already.
rusty shackelford
Fri, Jan 21, 2011 : 1:19 p.m.
What? The city council form a secretive clique, make decisions without due consideration and input from the citizens? Where would anyone get that crazy idea? Oh right, almost every major decision the council has made in 5+ years...
Forever27
Fri, Jan 21, 2011 : 2:06 p.m.
I agree 100%. Exhibit 1 would be the Library Lot debacle.
rusty shackelford
Fri, Jan 21, 2011 : 1:53 p.m.
And I think in the last several years, it has been particularly egregious here, blatantly, even arrogantly ignoring citizen input. It's helped somewhat that Greden is gone.
rusty shackelford
Fri, Jan 21, 2011 : 1:53 p.m.
Agreed it's not unique, but it's still unacceptable for our representatives to engage in this kind of practice
Forever27
Fri, Jan 21, 2011 : 1:39 p.m.
This is as old as politics and isn't just isolated here in Ann Arbor. You get the same cronyism in Detroit as well as Chelsea. It is because of these types of situations that we have laws like the Open Meetings Act.
Deborah
Fri, Jan 21, 2011 : 1:16 p.m.
lying liars and the lies they tell is a really good book. NO closed door meetings. Dayo nailed it. WE are the ones who should be privy to any so called attorney client privilege communication. Vote these arrogant power mongers out
dayo13
Fri, Jan 21, 2011 : 12:57 p.m.
Postema said the court recognized the City Council is authorized by statute to go into closed session to discuss attorney-client privileged communications. While I dont favor marijuana dispensaries or its use, I have to disagree with the court on one very important topic. The attorney-client privilege is an interesting standard to use here. The attorney for the city is indeed Stephen Postema, however the 'client' is the city of Ann Arbor, which means the citizens and tax payers of Ann Arbor. We the people are the client here, we pay the attorney and the council members through our taxes, and we have a right to know what we are paying them for and what they are discussing on our behalf. We vote the council members into office, and they work on our behalf with our best interests and desires as the only goal. We are the employers of the council and the attorney.
Mick52
Fri, Jan 21, 2011 : 5:08 p.m.
I agree. The FOIA exception for client attorney should be scaled to specific details. I see nothing in this issue where the discussion should have been occurred behind closed doors. I think the voters have a right to know what the discussion is about in re to this topic.
A. Green
Fri, Jan 21, 2011 : 12:50 p.m.
Looks like Askins is turning into another Lesko. He accusses some of secrecy and conspiracy while claiming to have SECRET witnesses. Who are these witnesses? Tweedle Dee and Tweedle Dum? Askins is just another hypocrite using the press, the courts and the public interest to serve his own political agenda.
Rod Johnson
Sat, Jan 22, 2011 : 12:19 a.m.
That characterization of Dave Askins is, frankly, insane.
Atticus F.
Fri, Jan 21, 2011 : 4:40 p.m.
This sort of rhetoric is typical of Heiftje's goons, and an integral part of his political strategy...Paint anybody who has an opposing viewpoint, or any political rival as a mentally ill conspiricy nut, who hates government.
bugjuice
Fri, Jan 21, 2011 : 2:50 p.m.
Mr Green's agenda is to smear Mr Askin's with personal accusations without providing any evidence of his alleged biases. Mr Green makes plenty of claims of Mr Askin's alleged biases and claims to have evidence of that from Mr Askin's writing. Please Mr Green, please provide us with Mr Askin's words that you claim demonstrate his bias.
A. Green
Fri, Jan 21, 2011 : 2:43 p.m.
Mr. Askins is anti council in everything he does, says, and prints. If the council says up, he says down. He uses his website to spin and manipulate facts to turn all actions into some sort of negative conspiracy theory. Yes, he can transcribe all city meetings verbatim by typing along to a taped version of the meeting, but he throws in personal comments randomly in the text that are just not called for. ( I should add that Mary typically never does that) That does not make him a journalist; that makes him a transcriber. His opinion pieces are so far out there that in which he idolizes Sabra Briere and puts her on a pedestal, that his bias and his political agenda shows through repeatedly. Askins is anti-government/ anti-city council to the extreme, a lot like Lesko, but with a little more tact.
bugjuice
Fri, Jan 21, 2011 : 2:28 p.m.
A Green should define exactly what he thinks Mr Askin's political agenda is.
rusty shackelford
Fri, Jan 21, 2011 : 1:54 p.m.
Uh...journalists protect the identities of sources for myriad reasons all the time.
truthspeak
Fri, Jan 21, 2011 : 12:21 p.m.
I am happy to see our justice system work properly and throw out this frivolous lawsuit. The courts are not places for him to serve his own personal political agenda, they are places for aggrieved persons to get justice. Mr. Askins should be ashamed of himself for wasting the taxpayers time and money with this.
bugjuice
Fri, Jan 21, 2011 : 3:40 p.m.
As far as in depth, accurate reporting and professional writing Mr Askin's journalistic webpage, The Chronicle, far surpasses aadotcom for accuracy, in depth reporting and writing skill. If anything could be described as a "blog" aadotcom is it.
Atticus F.
Fri, Jan 21, 2011 : 3:05 p.m.
Excuse me, but this was put on the meeting agenda at 9:00 am, the same day of the city council meeting. I was notified by a member of a compassion group at 10:00 am, and immediately started organizing a group of protesters. If thats not trying to sneak legislation through in the middle of the night, I dont know what is. If you cant aknowledge that, then you are clearly bias.
truthspeak
Fri, Jan 21, 2011 : 2:54 p.m.
There goes the spin...middle of the night...clear cut case...Ha! The lawsuit was thrown out of court because it had no merit and was frivolous. As for local newspaper, I disagree. Askins has a blog that specializes in meeting reports that cover local government meetings, nothing more. He only specializes in conspiracy and nothing more.
Atticus F.
Fri, Jan 21, 2011 : 2:45 p.m.
Also, you should note that it wasn't "some Yahoo who doesn't understand government" who brought this lawsuit. It was a local newspaper and an atourny that specializes in these type of infringements.
Atticus F.
Fri, Jan 21, 2011 : 2:42 p.m.
We specifically have a law against closed door meetings to protect the interest of our citizens. This was a clear case of city council trying to pass legislation in the middle of the night, without community input. One council member even admited it, and then later retracted his admission.
truthspeak
Fri, Jan 21, 2011 : 2:18 p.m.
There is and was input from the community on this subject. Having a closed door session with an attorney is completely justified so that the council knows what they can and cannot do under the law. It is what I EXPECT the council to do. I don't want them going off and making uninformed decisions that can get the city and the taxpayer sued. So instead, because they were being careful they get sued by some yahoo who doesn't understand government.
Atticus F.
Fri, Jan 21, 2011 : 1:57 p.m.
This isn't about serving ones personal agenda...It's about the people who are supposed to be serving us, having secret meetings, and passing legislation without input from the community.
Alan Goldsmith
Fri, Jan 21, 2011 : 11:34 a.m.
It's nice one media outlet in this city is taking its journalist responsibilities seriously. How refreshing! "While preparing the motions in the case, Ann Arbor officials became aware that Hank was looking to open a medical marijuana dispensary in East Lansing but had been stymied by a moratorium there. Hank, a known medical marijuana advocate, doesn't deny that." So what? So AnnArbor.com is more interested in the motives of this attorney and less in open government? Why didn't aa dot com join in this lawsuit? When AnnArbor.com was established nearly 18 months ago, we were assured time and time again we'd get quality reporting and investigative journalism. This story is yet more evidence, that with local political coverage, that promise just wasn't true. "Ann Arbor officials"? Why don't you just let them write your stories for you? In reality, that's pretty much what your 'journalism' has turned into. After months of bringing this up, it's apparent as well that this is never going to change.
Mick52
Fri, Jan 21, 2011 : 5:05 p.m.
I think it is a revelation that this attorney is tied to the MJ business. If the Chronicle had know that as per the story, they should have looked for another atty to make sure his opinion is not slanted by the issue.