TRAVERSE CITY — The entirety of a local transparency lawsuit now awaits a Michigan Court of Appeals decision.
Judge Kevin Elsenheimer in 13th Circuit Court Monday approved a last-minute Traverse City Area Public Schools motion to stay the suit against them until a portion appealed to the higher court is decided — a ruling that could prolong the rest of the case, already delayed by COVID-19 and heavy court dockets, for months to come.
The civil case, filed by the Traverse City Record-Eagle in early 2020 against the TCAPS Board of Education and its president, Sue Kelly, claims “willful and intentional” violations of the Open Meetings and Freedom of Information acts in obscuring the ousting of former Superintendent Ann Cardon. The suit’s counts largely stem from that October 2019 dust-up and several decisions the Record-Eagle claims were made outside open sessions illegally. It also concerns denied FOIA requests seeking information on Cardon’s abrupt departure, which came after less than three months on the job.
TCAPS has repeatedly denied any violation of the law.
A July ruling by Elsenheimer in the Record-Eagle’s favor, paired with TCAPS’ choosing to appeal that decision, effectively fractured the case in two — one portion, concerning the release of a complaint letter about Cardon, went forward to the higher court.
The remaining counts, largely concerning related claims of FOIA and OMA violations, remained under Elsenheimer’s purview in 13th Circuit Court. At that July hearing, he declined to rule on those matters, instead requesting the parties come back with additional information. Case-building and discovery have trudged on since.
Elsenheimer’s Monday decision halts those efforts, said Record-Eagle Attorney Robin Luce Herrmann.
TCAPS Attorney Kailen Piper requested the stay in a written motion filed Oct. 19. In it, she cites costs as a main reason.
“Attorney fees are a major issue in this case, and with all the scheduled depositions to come within the next month here, we’re going to have to do this all again, potentially, after the Court of Appeals has heard this matter,” Piper said in court Monday.
Elsenheimer spoke in support of the motion before his decision, noting the depositions sought and again, attorney fees, were certainly worthy of consideration.
During the hearing Herrmann expressed frustration that TCAPS didn’t request such a stay in August, before discovery got underway when a stay on Elsenheimer’s judgment was granted.
She also questioned whether depositions of two TCAPS board members facing challengers in next week’s election — Jane Klegman and Jeffrey Leonha- rdt — would be available at a later date if neither wins their seat.
“We don’t have any assurances that we will get any documents from those individuals, that have been withheld (to date) on the basis of various objections,” Herrmann said. “(It’s) not just harm to my client — it’s harm to the public.”
Elsenheimer’s ruling Monday came with strings — TCAPS was ordered to retain documents, including text messages and other communications for Klegman and Leonhardt, and make efforts to ensure their availability for future depositions.
He also granted the Record-Eagle’s request to require an expedited briefing schedule for arguments before the Court of Appeals.
That means the case can sooner be ready for formal arguments before the greater court, Herrmann said Monday.
It means, too, that paused discovery efforts will be able to resume sooner.
In his Monday ruling, Elsenheimer noted that, since the letter portion of the case had already been well-briefed and argued in his courtroom in July, it shouldn’t take long to revise those briefings for review by the Court of Appeals.
A hearing before the greater court won’t be scheduled until those briefs are completed, Herrmann said previously.
Further action has yet to be scheduled before the Court of Appeals.
Kelly and TCAPS Attorney Kailen Piper declined to comment after Monday’s hearing.
See updates at www.record-eagle.com.