STATE OF MICHIGAN CIRCUIT COURT FOR THE 3rd JUDICIAL CIRCUIT WAYNE COUNTY CITIZENS UNITED AGAINST CORRUPT

GOVERNMENT, Plaintiff, v MICHIGAN DEPARTMENT OF TREASURY, and CARLA ROBERT, in her official capacity as FOIA Coordinator for the Michigan Department of Treasury, Defendants, and GOVERNOR RICK SNYDER, Intervening Defendant. ______________________________________________________________________________ Andrew A. Paterson (P18690) Michelle M. Brya (P66861) Attorney for Plaintiff Joshua O. Booth (P53847) 46350 Grand River Ave., Suite C Assistant Attorneys General Novi, MI 48374 State Operations Division (248) 568-9712 Attorneys for Defendants and Intervening Defendant P.O. Box 30754 Lansing, MI 48909 (517) 373-1162 ______________________________________________________________________________ EMERGENCY MOTION TO INTERVENE ON BEHALF OF GOVERNOR RICK SNYDER 1. Governor Rick Snyder moves this Court to allow him to intervene as a 13-008649-AW FILED IN MY OFFICE WAYNE COUNTY CLERK 10/18/2013 3:13:51 PM CATHY M. GARRETT Case No. 13-008649-AW Hon. Maria L. Oxholm

defendant in this matter under MCR 2.209.

2.

MCR 2.209(A)(3) provides, in pertinent part, for intervention as of

right in an action, when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest, unless the applicants interest is adequately represented by existing parties. MCR 2.209(B)(2) provides, in pertinent part, for permissive intervention, when an applicants claim or defense and the main action have a question of law or fact in common. 3. For the reasons discussed more fully in the Governors Brief in

Support, the Governor has an interest in the subject matter of this action and that interest may be impeded by a disposition of this action without the Governors ability to protect that interest. 4. In particular, the documents sought by Plaintiff under the Freedom of

Information Act (FOIA) reveal discussions and deliberations, and the products of those discussions and deliberations, pertaining to the Governors recommended candidate for the position of Emergency Manager for the City of Detroit. 5. The Governor, his Executive Office, and his advisors, are entitled to

certain legal protections and privileges in regard to FOIA that are not available to the Defendants in this case. Those protections and privileges preclude the disclosure of certain documents in response to Plaintiffs FOIA request; specifically,

the names of candidates for the position of Emergency Manager for the City of Detroit must not be disclosed as they are exempt and/or privileged. 6. For these reasons, the Governor should be permitted to intervene

under MCR 2.209(A) or (B). 7. As required by MCR 2.209(C)(2), the Governor has provided a proposed

pleading, i.e., an Answer to Plaintiffs Complaint. WHEREFORE, Governor Rick Snyder respectfully requests that this Honorable Court grant this motion and allow him to intervene. Bill Schuette Attorney General _/s/ Michelle M. Brya ________ Michelle M. Brya (P66861) Joshua O. Booth (P53847) Assistant Attorneys General

Dated: October 18, 2013

BRIEF IN SUPPORT

STATEMENT OF FACTS This FOIA action pertains to a May 15, 2013 request sent by Citizens United Against Corrupt Government (Citizens United) to the Department of Treasurys FOIA coordinator. The request sought documents pertaining to the appointment of an Emergency Manager for the City of Detroit. Some of the responsive documents contain names of candidates for the position of Emergency Manager for the City of Detroit. 3

Prior to the filing of this action, the Governor was a named defendant in Davis v Local Emergency Financial Assistance Loan Board, Ingham Circuit Court No. 13-281-NZ. During the course of discovery in that action, the plaintiff, Robert Davis (who is the director of Citizens United), subpoenaed all documents from the Governors office that pertained to the appointment of an Emergency Manager for the City of Detroit. Although the trial court denied the Governors motion to quash the subpoena, the Michigan Court of Appeals peremptorily reversed, ruling that the subpoenaed documents were protected by the deliberative process privilege and therefore not subject to disclosure. Davis v Local Emergency Financial Assistance Loan Board, unpublished order of the Court of Appeals, June 20, 2013 (docket number 316711). The disclosure of the names of candidates for the position of Emergency Financial Manager for the City of Detroit was also placed in issue in the City of Detroits bankruptcy proceedings. A protective order was issued that prevented those names from being disclosed. See In re City of Detroit, United States Bankruptcy Court, Case No. 13-53846, Doc Number 1111, October 8, 2013. The Governor seeks to intervene in this matter to maintain the integrity of these state and federal court decisions, as well as the exemptions and privileges to which he is entitled under FOIA that may not otherwise be protected.1

1 If allowed to intervene, the Governor would also adopt the exemption and privilege arguments raised by the Defendants.

ARGUMENT Intervention is governed by MCR 2.209. A person may intervene as of right in an action, when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest, unless the applicants interest is adequately represented by existing parties. MCR 2.209(A)(3). The rule also allows for permissive intervention, when an applicants claim or defense and the main action have a question of law or fact in common. MCR 2.209(B)(2). Here, the Governor has an interest in the subject matter of this action that may be impeded by a disposition of this action without the Governors ability to protect that interest. In particular, the documents sought by Plaintiff under FOIA reveal discussions and deliberations, and the products of those discussions and deliberations, pertaining to the Governors recommended candidate for the position of Emergency Manager for the City of Detroit. The Governor, his Executive Office, and his advisors, are entitled to certain legal protections and privileges in regard to FOIA that are not available to the Defendants in this case. In light of the exemptions and privileges specific to the Governor, he must be allowed to intervene in this matter to present the following arguments that preclude disclosure of the names of candidates for the position of Emergency Manager for the City of Detroit.

I.

Citizens Uniteds FOIA request is an improper attempt to avoid the legal exemption from FOIA provided to the Governor and his Executive Office, as well as the state and federal court rulings protecting the information from disclosure. The requirements of FOIA pertain to any public body, as defined by the Act.

But the Act defines public body so as to specifically exclude, the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof. MCL 15.232(d)(i). Here, the requested information pertains to deliberations and discussions between and amongst the Governors highest level advisors regarding the Governors recommendation of a candidate for the position of Emergency Manager for the City of Detroit. The fact that those advisors included, in this particular instance, high level members in the Department of Treasury, should not overshadow the fact this was a deliberative search process for the benefit of the Governor, to assist him in making his own recommendation for the appointment of an emergency manager. For all intents and purposes, those involved in the process were acting for the benefit of the Governor and the executive office. Citizens Uniteds FOIA request is simply an attempt to avoid the exemption for the Governor and the executive office, as well as the court order that, at the Governors request, protected the names of candidates from disclosure. This Court must honor the Governors FOIA exemption and the integrity of the state and federal court orders.

II.

Documents containing the names of candidates for the position of Emergency Manager are privileged and therefore exempt from disclosure under FOIA. Exemptions to FOIA include privileges recognized by statute or court rule.

MCL 15.243(1)(h). The Michigan Court Rules, specifically MCR 2.302(B)(1), recognize that materials protected by a common law privilege need not be disclosed. In addition, Rule 501 of the Michigan Rules of Evidence states: Privilege is governed by common law except as modified by statute or court rule. In this case, the documents at issue are protected by the common law Executive Privilege and the deliberative process privilege and are therefore exempt from disclosure under 13(1)(h) of FOIA.

A.

The executive privilege.

Under federal law, executive privilege is a broad term that encompasses numerous justifications for nondisclosure by the executive branch. See Republican Party of New Mexico v New Mexico Taxation and Revenue Department, 283 P3d 853, 860 (NM, 2012). One recognized justification within the realm of executive privilege pertains to presidential communications. The presidential communications privilege was established by the United States Supreme Court in United States v Nixon, 418 US 683, 705; 94 S Ct 3090; 41 L Ed 2d 1039 (1974); see also New Mexico, 283 P3d at 861. In Nixon, the Supreme Court recognized the need for protection of communications between high Government officials and those who advise and assist them in the performance of

their manifold duties. Id. at 705. In fact, the Supreme Court acknowledged that the importance of this confidentiality is too plain to require further discussion. Id. To that end, the Supreme Court specifically adopted an executive privilege for such high-level communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. Id. at 708. The privilege protects not only privacy interests of those involved in the communications, but also protects the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. Id. In other words, [a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. Id. To ensure such freedom, the presidential communications privilege applies to all communications authored or solicited and received by White House staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on the particular matter to which the communications relate. In re Sealed Case, 121 F3d 729, 752 (DC Cir 1997). This interest in preserving confidentiality and freedom of communication is weighty indeed and entitled to great respect. Nixon at 712. As a result, the need for complete candor and objectivity from advisers calls for great deference from the courts. Id. at 706. The privilege must only yield to a demonstrated, specific, need. Id. at 713.

Significantly, Nixon was a criminal case, and the Supreme Court has since recognized that the privilege is entitled to even more deference in civil cases. Cheney v United States District Court of the District of Columbia, 542 US 367; 124 S Ct 2576; 159 L Ed 2d 459 (2004). This is because the need for information for use in civil cases, while far from negligible, does not share the urgency or significance, or have the same constitutional dimensions of a criminal case. Id. at 384. Further, there are inherent safeguards in the criminal system, such as the discretion and ethical obligations of a publicly accountable prosecutor, that are not present in civil proceedings to discourage the filing of meritless claims against the Executive Branch. Id. at 386. Although the federal presidential communications privilege obviously pertains to the President, other states have adopted an analogous gubernatorial communications privilege. See e.g., New Mexico, 283 P3d at 864. The rationale being that, the Governor bears the same relation to this State as does the President to the United States, and that generally the Governor is entitled to the same privileges and exemptions in the discharge of his duties as is the President. Id., quoting Hamilton v Verdow, 414 A2d 914, 921 (MD 1980). As previously noted and as will be discussed, Michigan appellate courts have adopted other aspects of privilege falling within the realm of federal executive privilege. Specifically, Michigan courts have adopted the federal executive privilege in the context of a common law deliberative process privilege. See e.g., Michigan Council of Trout Unlimited v Department of Military Affairs, 213 Mich App 203,

217; 539 NW2d 745 (1995); see also Truel v City of Dearborn, 291 Mich App 125, 135; 804 NW2d 744 (2010). In light of the willingness of the Michigan appellate courts to look to, and adopt, federal law regarding executive privilege, this Court should apply the presidential/gubernatorial communications executive privilege to the case at bar. Here, in light of the confidential, consultive, advisory nature of the communications and documents, and the high-level officials involved, such communications and documents are entitled to the protection of the executive privilege. The Governors verbal and written communications with those high level officials who advise him must be afforded protection and deference, to assure that such communications can be candid and confidential.

B.

The deliberative process privilege.

The deliberative process privilege, adopted from federal law, protects the consultive functions of government and attaches to communications that are part of the deliberative process by which governmental decisions are formulated. Trout Unlimited, 213 Mich App at 217, quoting Jordan v Dept of Justice, 591 F2d 753 (DC Cir 1978) (internal quotation marks omitted). There are several policy bases for the privilege. First is that discussed by the Supreme Court in Nixon; the protection of creative debate and candid consideration to improve the quality of government policy. Second is the protection of the public from premature, unsettled, discussions. Third is that protection of the decisionmaking process itself by confirming that officials should only be judged by what 10

they decided, not for what they considered before the ultimate decision was made. Trout Unlimited, 213 Mich App at 217-218. In light of these policy bases, two elements must be satisfied in order for the privilege to apply: (1) the communication must be pre-decisional; and (2) the communication must be part of the deliberative process in that it makes recommendations or expresses opinions. Id. at 218. That said, the privilege is qualified and can be overcome by a sufficient showing of need. Truel, 291 Mich App at 136. In Truel v City of Dearborn, 291 Mich App 125, 135; 804NW2d 744 (2010), the Court recognized a common law deliberative process privilege allowing the government to withhold documents and other materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Here, clearly, the documents and names of the candidates for the position precede, and are part of the deliberative process that led to, the ultimate recommendation of Kevyn Orr for the position of emergency manager. In fact, as this Court is aware, the Court of Appeals in Davis specifically recognized that the documents pertaining to the selection and appointment process for the position of Emergency Manager for the City of Detroit were predecisional and deliberative, and that, therefore, the common law deliberative process privilege of Truel applied. See Davis v Local Emergency Financial Assistance Loan Board, unpublished order of the Court of Appeals, June 20, 2013 (docket number 316711).

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C.

The balance of factors in determining whether these privileges apply weighs in favor of nondisclosure.

In this particular case, the balance of factors relevant to determining whether the gubernatorial communications executive privilege and deliberative process privilege should prevail weighs heavily in favor of nondisclosure. Disclosing the names of candidates for such a high level position, and the Governors documents regarding the selection process, will have a chilling effect on future personnel recruitment, and ultimately future personnel decisions, recommendations, and appointments. For example, a qualified person may wish to only inquire into, or be considered for, a position in confidence, out of concern for negative personal or professional repercussions that may arise from being even tangentially associated with a particular position or official. Knowing that such confidentiality cannot be guaranteed would preclude such person from even wanting to be considered as a candidate and thereby reduce the candidate pool for high level positions. Upholding the privilege in this instance will protect the privacy interests of those that were involved in, and the subject of, the preliminary interview and recommendation process, and thereby protect the decision-making process itself. Further, if the names of the candidates and the Governors documents are provided to Citizens United, then not only will the parties and all those involved in the decision making process be subjected to harassment, but those candidates, and others mentioned in the documents, may themselves be unnecessarily pulled into the fray.

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In light of these bases for withholding the documents, and the absence of any articulated, legitimate justification for the names of the candidates or the documents to be disclosed, Citizens United has failed to rebut the assertion of privilege. As a result, in order to maintain the integrity of the gubernatorial communications executive privilege and deliberative process privilege, to protect the executive decision-making process in this instance and others, to protect the other candidates for the emergency manager position from being unnecessarily burdened and harassed, and to preclude Davis from furthering his fishing expedition and quest for media attention, disclosure of the withheld and redacted documents must not be allowed. In summary, the Governor, his Executive Office, and his advisors, are entitled to legal protections and privileges in regard to FOIA that are not available to the Defendants in this case. Those protections and privileges preclude the disclosure of documents withheld and redacted in this case in response to Plaintiffs FOIA request; specifically, the names of candidates for the position of Emergency Manager for the City of Detroit must not be disclosed as they are exempt and/or privileged. As a result, the Governor must be allowed to intervene and present the preceding arguments to this Court for consideration before the Court orders the disclosure of the documents at issue.

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RELIEF REQUESTED Governor Rick Snyder respectfully requests that he be allowed to intervene as a defendant in this matter and present these arguments for the Courts consideration in determining whether documents containing the names of candidates for the position of Emergency Manager for the City of Detroit must be disclosed under FOIA.

Bill Schuette Attorney General __/s/ Michelle M. Brya Michelle M. Brya (P66861) Joshua O. Booth (P53847) Assistant Attorneys General ______

Dated: October 18, 2013

2013-0048663-A Citizens United v Dept. of Treasury/ Mtn Intervene Gov

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