When it comes to Michigan’s Freedom of Information Act (FOIA), the law is straightforward and clear: If a request for records held by a government entity is wrongly denied and you successfully sue to obtain it, the government is obligated to compensate your attorneys for the time and expense of litigating the case. This rule, known as “fee shifting,” is universally adhered to throughout the country, in both federal and state courts, in cases involving FOIA laws and civil rights. 

So, why is the state of Michigan, in a case being heard by the Michigan Supreme Court on April 4, trying to drastically short-change ACLU cooperating attorneys who joined us in successfully suing the Michigan Department of Corrections (MDOC) on behalf of two independent journalists seeking video of an incident that resulted in the death of an incarcerated person? 

We can’t speak to the state’s motivations. What we can say is that the MDOC’s misguided attempts to reduce by 90% our cooperating attorneys’ fees in the case, totaling nearly $200,000, both lacks any legal justification and, if successful, would severely hamper efforts to use FOIA and civil rights laws to hold government agencies and officials accountable. 

In doing so, the state is attempting to plow new legal ground that is better left untilled, because the resulting harvest will surely be a bitter one. If the state prevails, it will undermine and radically alter legal practice in Michigan, making it much more difficult to hold government officials accountable and stifle attempts to provide the public with information it has a right to. In short, the state is attempting to remove the very incentives necessary to help ensure FOIA is followed. And that’s dangerous for government transparency, accountability, and ultimately democracy itself. 

You’ve probably have heard the old phrase, “No good deed goes unpunished.” In effect, that is what’s happening here. The state is wrongly arguing that, because the ACLU’s cooperating attorneys from the law firm Honigman LLP provided their services on a pro bono basis (meaning for the public good and without asking the clients to pay), those attorneys somehow do not deserve to be fully compensated for going to court and successfully forcing the MDOC to turn over the video footage requested by the journalists—footage that the public is legally entitled to see for themselves. 

We are not alone in making this case. A host of other organizations have filed “friend of the court” briefs supporting our position. The organizations include the State Bar of Michigan, Michigan Association for Justice, Michigan State Planning Body, Legal Services Association of Michigan, Disability Rights Michigan, and the Association of Pro Bono Counsel. 

In its brief, the Michigan Association of Justice (MAJ), an organization made up of attorneys who routinely represent plaintiffs in cases involving civil rights and government misconduct, made it clear why this is such an important case: 

“MAJ is concerned that the decision of the Court of Appeals will also have a chilling affect making it less likely that attorneys will take cases where the illegal act is clear and harmful to society but the economic damages to the individual is minimal, in clear contravention of the … reasons that these statutes include attorney fees to the prevailing plaintiff.” 

MAJ and the other organizations supporting our position in the case have it exactly right. If attorneys who provide services pro bono cannot recover fees in successful FOIA and civil rights cases, fewer such cases will be brought, and the public as a whole will suffer. 

Background 

In 2016, a man incarcerated in a Michigan prison, Dustin Szot, died under what may have been suspicious circumstances. He was allegedly involved in an altercation with another prisoner, and prison guards shocked him with a taser. Spencer Woodman and George Joseph, freelance journalists who report nationally on criminal justice issues, learned that the entire incident was captured on video and requested a copy of the footage under FOIA.  

MDOC refused to release the video, claiming that its disclosure would somehow undermine prison security. In 2017, the ACLU of Michigan and our cooperating attorneys from Honigman filed suit on Woodman and Joseph’s behalf, arguing that the state had no legitimate justification for keeping the video secret.  

MDOC continued to oppose us throughout litigation, dragging the case out for more than two years. During discovery, we learned that MDOC staff has a policy of automatically denying all FOIA requests for videos, without even viewing the video in question to determine whether or how its disclosure would threaten security.  

In 2019, the Michigan Court of Claims ruled that MDOC’s policy was illegal and ordered the state to turn over the video footage, holding that there was no justification for keeping the recordings secret.  

However, when it came time to order MDOC to pay attorneys’ fees because our case had been successful, the court slashed the ACLU cooperating attorneys’ fees because the work was being done pro bono. We appealed, but the Court of Appeals refused to overturn the ruling.   

Consequently, we are taking this case to the Michigan Supreme Court, which will hear oral arguments in Woodman v. Department of Corrections on April 4. 

Dangerous Precedent 

By its own admission, MDOC would not have released the video and audio recordings in response to the FOIA requests from Mr. Woodman and Mr. Joseph, and only did so under court order.  

If MDOC and other government agencies are allowed to violate FOIA going forward without fear of being responsible for the opposing side’s legal fees, the government’s incentive to adhere to the law is greatly diminished. It will also make it much less likely that people without the means to hire an attorney will be able to have their day in court. 

Congress, in enacting the federal FOIA law, highlighted the fact that, too often “the barriers presented by court costs and attorneys’ fees are insurmountable for the average person requesting information, allowing the government to escape compliance with the law.” 

The reason for making the government pay attorney fees when it is found to have wrongly withheld information the public is legally entitled to also has a basis in common sense: “If the government had to pay legal fees each time it lost a case . . . it would be much more careful to oppose only those areas that it had a strong chance of winning.” 

In this case, Honigman was acting in the highest traditions of the legal profession by 

serving as pro bono counsel, in cooperation with the ACLU, on behalf of independent journalists trying to obtain public records the MDOC was unlawfully keeping secret. The litigation took more than two years. Neither Honigman nor the ACLU expected Mr. Woodman or Mr. Joseph to pay for the legal services provided. But that does not eliminate the expectation that, upon prevailing, both entities would be entitled to reasonable attorneys’ fees under FOIA. 

If that doesn’t happen, organizations like the ACLU will be severely hampered in their ability to litigate public interest cases if, after years of protracted litigation that uncovers serious violations of state law, cooperating counsel could recover only 10% of their reasonable fees because they did their work pro bono. Likewise, public officials and other defendants in fee-shifting cases would have little incentive to resolve cases efficiently when private counsel are providing their services pro bono if, at the end of the case, the amount that they will owe would be only a fraction of what a reasonable fee would otherwise be. 

It is now up to the Michigan Supreme Court to ensure that the shining light that helps keep our government accountable isn’t dangerously dimmed. 

Dan Korobkin is legal director for ACLU of Michigan

UPDATE (10/06/23): This blog, which explains the importance of showing all people respect in court by allowing them to use their preferred pronouns when involved in legal proceedings, was written before the Michigan Supreme Court adopted the recommended changes.

Originally published 03//24/23

Writing on behalf of a coalition of organizations and allies that work to promote fairness and equality for the LGBTQ+ community, we recently sent a letter to the Michigan Supreme Court supporting a proposed rule change that would apply to the use of personal pronouns in all state courts. It may sound like arcane stuff to some, but it is a much-needed change that’s being considered at a critical time. 

The proposed amendment would require judges and their staff to use a person’s chosen pronoun and name when addressing attorneys and other people appearing before them. The same would be true with written communications. It would also allow attorneys to use their, and their clients’ personal pronouns in documents.  

You can help the court make the right decision and change its rules regarding the use of personal pronouns by going to the Michigan court public comment page and making your views known before the comment period ends on May 1, 2023. 

Submit your public comment

Adoption of the proposed amendment will send an important message to Michigan’s transgender and gender non-binary community: you will be accorded the same dignity, courtesy and fairness given to cisgender persons, and you can expect equal access to justice in Michigan courts. At this critical time, when so many of our public institutions (including the Michigan judiciary) are trying to invest in a renewed commitment to equity and inclusion, the proposed amendment should be adopted.   

No one would question the propriety of referring to cisgender litigants with appropriate male or female pronouns. The same should be true for everyone for this reason: A pronoun is not merely a preference, it is a statement of fact for all people, regardless of gender.  

Why It’s Important    

To understand the significance of addressing parties and attorneys in accordance with their chosen pronouns and names, it is important to understand gender identity and the transgender community. “Transgender” is an umbrella term that refers to individuals whose gender identity is different from the sex assigned to them at birth. According to a 2016 Williams Institute study, approximately 33,000 transgender people reside in the state of Michigan.   

The appropriate use of transgender persons’ pronouns in our courts acknowledges the existence of transgender people, aligns with the mainstream medical and scientific consensus regarding the importance of using pronouns that are congruent with the person’s gender identity, and accords them the same dignity afforded to other litigants.   

Making this change will also help assure people subjected to widespread discrimination and abuse that they won’t be facing a court system that is inherently biased against them. It is a message that needs to be sent, especially now.  

A recent national survey found that 63% of the transgender people interviewed have experienced a serious act of discrimination—one that would have a major impact on a person’s quality of life and ability to sustain themselves financially or emotionally. The most recent FBI hate crimes report shows that hate crimes against transgender people (particularly transgender women of color) have increased over the past several years.  

The same community is also under attack by politicians claiming to be the champions of conservative values. But in our courts, everyone is entitled to fair and impartial treatment—regardless of which ways the political winds are blowing.  

Political Attacks on the LGBTQ+ Community Increasing  

According to the Human Rights Campaign, 2022 surpassed 2021 as the worst year yet for anti-LGBTQ legislation in recent history. Lawmakers in state legislatures launched an unprecedented war on the transgender community with bills that included criminalizing providing lifesaving medical care to transgender youth, prohibiting transgender girls from being able to participate in school sports in accordance with their gender identity, and denying trans people the ability to obtain accurate birth certificates.  

The beginning of 2023 already has seen twice as many anti-trans bills introduced, including legislation that prohibits transgender people from being able to use public restrooms in accordance with gender identity. The current state legislative session has seen more than 350 bills introduced in 36 states, according to new data released by the Freedom for All Americans campaign’s open-source site that tracks proposed anti-transgender legislation.  

Discrimination against transgender people also extends to the courts.  In training materials developed by Lambda Legal, 33% of transgender litigants report hearing judges, attorneys, or other court employees making negative comments about their gender identity and or sexual orientation (the number increases to 53% for transgender litigants of color). 

Lambda reports hearing from trans and non-binary litigants “who have been treated disrespectfully by judicial officers -- including experiences of being misgendered, turned away, mocked, denied appropriate legal representation or criminalized disproportionately. We know of judges …. who have laughed out loud in open court because a transgender person asked for the respect of being addressed with their correct pronouns.”  

Given the mistreatment of transgender people by the courts, it should not come as a surprise that Lambda’s report also shows that only 28% of transgender and gender non-conforming people surveyed trust the courts to provide fair treatment. Overall trust in the courts was found to be lower than trust in the police, where significant harassment and mistreatment also occurs. 

Code of Conduct 

Michigan’s Code of Judicial Conduct requires both judges and court staff to treat litigants with courtesy and respect: 

“Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. To the extent possible, a judge should require staff, court officials, and others who are subject to the judge’s direction and control to provide such fair, courteous, and respectful treatment to persons who have contact with the court.” 

It is the responsibility of Michigan judges to ensure access to our courts and equal treatment under the law for all people, including transgender people. When people participating in our legal system feel unsafe or uncomfortable because of their gender identity, access to justice and full participation in our democracy are undermined.  

It is so much more than a symbolic issue.  

Pronouns and Identity 

A person’s identity, including their name and pronouns, is a powerful, central element of someone’s dignity and humanity. When a judicial officer refuses to acknowledge someone’s pronouns, they are asserting a power to deny their identity and effectively erase them from our society. Using the articulated pronouns of litigants and their attorneys, by contrast, is a positive start towards equity and inclusion in Michigan’s courts.   

We’re not the only ones drawing attention to this important issue. 

A number of organizations have developed educational materials for the purpose of training both judges and court staff regarding cultural competency, which include the importance of the use of pronouns as a form of access to justice. Similarly, advocates in states such as New York have concluded that courts are duty-bound to acknowledge the requested pronouns of all litigants and parties before them, in both pleadings as well as inside the courtroom, as a vital component of equal access to justice.  

Adopting a rule on pronoun usage would align with consensus in the scientific and medical community regarding transgender identity and gender dysphoria, would expand access to our courts and public confidence in the fairness of our justice system, and would ensure that persons who come before a court can do so with an expectation that they will be treated with courtesy and respect. 

Jay Kaplan is staff attorney for the ACLU of Michigan’s Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project. 

This op-ed originally appeared in Between the Lines on 03/17/23

With Gov. Whitmer holding a signing ceremony in Lansing this week, members of Michigan’s LGBTQ+ community were given a major milestone to celebrate while also being emphatically shown that they remain a prime target for those hoping to score political points by fueling bigotry and sowing hate.

The reason for celebration came after an overwhelming majority in the Michigan House voted to amend our state’s Elliott-Larsen Civil Rights Act (ELCRA) on March 8 to explicitly include LGBTQ+ people. With the Senate already passing the same legislation, Gov. Whitmer quickly signed the bill into law on March 16. This culminates nearly 50 years of effort to explicitly add sexual orientation, gender identity and gender expression to ELCRA, making Michigan the 22nd state to have civil rights laws that are LGBTQ+ inclusive.  

It is a tremendous victory that deserves to be hailed. But, one day after the House vote, an exclamation point was put on the undeniable fact that the work to protect the rights of LGBTQ+ people in Michigan is far from done.

My euphoria over the passing of this historic legislation was quickly dampened the next day when I saw a posting on social media from the Oakland County Republican Party, which was encouraging people to attend a protest outside the Sidetrack Bookshop in downtown Royal Oak for hosting a “Drag Queen Story Hour” for children. In the eyes of the Oakland GOP, a drag performer reading a children’s story to kids is somehow a massive threat to society.

The protest was scheduled for Saturday afternoon, taking place when story hour was scheduled to occur. Along with providing insight to a right-wing political agenda that includes the continued demonization of LGBTQ+ people, it also showed how out of step with the mainstream that despicable tactic is, and how it can be overcome.

The ACLU of Michigan, along with many LGBTQ+ and allied social justice organizations, immediately began mobilizing their membership and constituents to show support for both the story hour and the bookstore. Those mobilization efforts paid off in a big way.  

While there were about a dozen protesters, hundreds of people showed in support of drag performers, story hours and the bookstore with signs that read “Protect Kids from Guns, Not Drag,” “Teach Literacy Not Intolerance” and “Reading Is Fundamental — Bigotry Is Not.” The counter-demonstration was a resounding display of support for diversity, inclusion and tolerance.   

I think both events reflect the current state of LGBTQ+ equality in Michigan

Right now, we are fortunate to have a governor, attorney general and secretary of state — along with majorities in both houses of the Legislature and on the state Supreme Court — who are supportive of LGBTQ+ rights. This provides an unprecedented opportunity to make great public policy strides for our community in our state.

Yet, at the same time, we cannot ignore the growing number of attacks we are seeing in other state legislatures, where LGBTQ+ youth and transgender adults are being targeted. 

Read the full blog on pridesource.com