Detroit Mayor Kwame Kilpatrick, seen here Thursday at a luncheon to honor Tigers legend Willie Horton, and the city will continue to try to keep documents related to the police whistle-blower suits secret by taking the case to the state's highest court. (Velvet S. McNeil / The Detroit News)
The city of Detroit appealed to the Michigan Supreme Court in Lansing Friday in a last-ditch effort to prevent the release of records related to the city's $8.4 million settlement of whistle-blower suits filed by three former Detroit police officers.
The documents, which were accompanied by a request to place the appeal under seal, were brought to the court in a large cardboard box at 2:45 p.m. The exact contents of the appeal were not known, Supreme Court spokeswoman Marcia McBrien said.
There was no immediate word on whether the seven-member Supreme Court would agree to take the appeal, which was filed over the objections of Detroit City Council.
"This is a decision standing on a legal principle, not a political decision," Detroit Corporation Counsel John Johnson said in a prepared statement.
The Detroit News and the Detroit Free Press, which sued under Michigan's Freedom of Information Act for release of the records, are expected to file court papers Tuesday opposing the appeal.
The records relate to a confidential side agreement intended to prevent the release of romantic text messages exchanged between Detroit Mayor Kwame Kilpatrick and his former Chief of Staff, Christine Beatty, in 2002 and 2003 on their city-issued SkyTel pagers.
The records sought are not the text messages themselves but legal documents related to what would happen to the messages as part of the settlement of whistle-blower lawsuits brought by former Detroit police officers Gary Brown, Harold Nelthrope and Walt Harris. Also sought is a sealed transcript of Michael Stefani, the lawyer for the police officers, answering questions under oath about the settlement from lawyers for the newspapers.
Wayne Circuit Judge Robert Colombo Jr. and the Michigan Court of Appeals have both ruled should be made public. The Michigan Supreme Court is the city's last avenue of appeal, lawyers say.
"I regret that the mayor has continued to ignore the clear ruling of Judge Colombo and the Michigan Court of Appeals and the urgings of the City Council that this information should be made available for the public," lawyer James E. Stewart, who represents The News, said today.
Kilpatrick and Beatty testified at the Brown-Nelthrope trial last year, denying they had a romantic affair and denying Brown had been fired. The text messages, first published in the Free Press in January, appear to contradict both assertions.
Wayne County Prosecutor Kym Worthy is investigating possible perjury.
Another concern is whether the city paid more to settle the suits than it should have, because the officers and Stefani promised to keep the messages under wraps in a Nov. 1, 2007, confidentiality agreement signed by Kilpatrick, Beatty and Stefani. The agreement said the officers would have to reimburse the city for almost the entire $8.4 million they received if they released the text messages.
Johnson, the city attorney, rejected complaints the appeals were expensive, saying the cost of the appeal to the Michigan Court of Appeals was $875 and the cost of the Supreme Court appeal was $1,350. He provided no records to back up those figures.
Johnson said the court fight is about protecting the privacy of the lawsuit mediation process. "If the current decision is allowed to stand, the confidentiality protections that are critical to the mediation process will be eliminated," Johnson said.
Colombo rejected that argument, saying the settlement was struck after mediation failed. If it did happen during mediation, an exception to the secrecy rule for cases of crime or fraud would apply, the judge said without elaborating. Colombo did not say he was striking down the secrecy of mediation in general.
Arthur Siegal, a Southfield attorney who has represented corporate clients in public record fights with government agencies, said the secrecy rule only applies to communications made to the mediator. There is no evidence any of the records sought by the newspapers were submitted to the mediator, Siegal said, so no secrecy would apply.
William Goodman, a prominent civil rights attorney hired Thursday to advise the council, said he is confiring with council members this afternoon on their next step.
"We are looking at the implications to city council," Goodman said, but wouldn't elaborate further.
Councilwoman Sheila Cockrel said she was disappointed by news of the appeal. "The city would be better served by bringing this ... to a conclusion," she said. "Putting it off, dragging it out only creates great concern on behalf of residents that there is something to hide."
Brown said he is not surprised the mayor decided to appeal.
"What's he got to lose?" Brown asked. "It buys them some more time before the rest of this stuff comes out," he said. "They've appealed everything to the Supreme Court in this case," he said referring to earlier legal maneuvering in connection with his whistle-blower lawsuit.
Nelthrope said he hasn't been following the appeals or thought about whether the city's latest appeal will succeed.
"I have to move on. I can't pay attention to it," he said today. "I'm still trying to recover," and "I've got to keep my mind focused on other things."
On Feb. 8, the city released the confidentiality agreement while appealing to the Michigan Court of Appeals to suppress other records. The appeals court ruled Wednesday that the records should be made public, but gave the city until today to make an emergency application for a further appeal.
If the Supreme Court refuses to take the case, the earliest the records could be released is next week. If the court does accept the case, legal proceedings could last several more weeks.
The city has portrayed the fight as one to protect the privacy of the lawsuit settlement process, rather than a fight to protect the mayor from embarrassing and potentially incriminating disclosures.
Members of the Detroit City Council, which are on record opposing a further appeal, were unaware of the confidentiality agreement and have demanded to see the records.
Council President Kenneth Cockrel Jr. has said that the council could vote to intervene in the lawsuit to urge the release of all settlement documents if Kilpatrick appealed to the state supreme court. Council members hired a lawyer Thursday to advise them.