Plaintiff Eric L. VanDussen's Motion to Disqualify Benzie Transportation Authority's Attorney - 12-13-13

STATE OF MICHIGAN IN THE 19TH CIRCUIT COURT FOR THE COUNTY OF BENZIE

ERIC L. VANDUSSEN

Case No. 13-9810-CZ Plaintiff

Hon. James M. Batzcr vs.

BENZIE TRANSPORTATION AUTHORITY

Defendant,

ERIC L. VANDUSSEN

Christopher K. Cooke (P35034) Plaintiff in pro per

Attorney for the Defendant P.O. Box 692

12935 South West Bayshore Dr. , Ste 305

Beulah, Michigan 49617

Traverse City, MI 49684

(231) 651-9189

(231) 922-7420, fax: (231) 922-7430 [email protected] [email protected]

MOTION TO DISQUALIFY DEFENDANT'S ATTORNEY AND FOR LEAVE TO DEPOSE DEFENDANT'S ATTORNEY

BRIEF IN SUPPORT OF MOTION TO DISQUALIFY DEFENDANT'S ATTORNEY AND FOR LEAVE TO DEPOSE DEFENDANT'S ATTORNEY

NOW COMES Plaintiff, ERIC L. VANDUSSEN, in pro per, and hereby moves to

disqualify Defendant's attorney, Christopher Cooke, from representing Defendant in this case

and for leave to depose Mr. Cooke. In support of this motion, Plaintiff states:

1. Defendant's attorney, Mr. Cooke, is a necessary witness in this case and Plaintiff

has made it known to Mr. Cooke that he absolutely intends to depose him and call him to testify

A TRUE COPY

DEC 1 3 2013

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at trial.

2. Plaintiff has served a notice of Mr. Cooke's deposition on him and he indicated in

a November 18, 2013 communication to Plaintiff that:

I trust you will not be renoticing my deposition. I am the attorney for the

Defendant and there is no basis for taking my deposition. The information I possess relevant to this case is all protected by the Attorney-Client or

Work Product privilege. If you attempt to reset my deposition, I will be obligated to file a Motion for a Protective Order and, once again, request

my fees and costs associated with the motion.

3. Mr. Cooke's representation of Defendant in this case violates Michigan Rule of

Professional Conduct (MRPC) 3.7(a).

4 Mr. Cooke cannot represent Defendant in the matter, according to MRPC 3.7(a),

because he is undoubtedly a necessary witness pertaining to facts that are in controversy in this

Open Meetings Act (OMA) lawsuit filed against the Benzie Transportation Authority (BTA).

5. None of the enumerated exceptions under MRPC 3.7(a) apply to this case, and it

is undisputable that Mr. Cooke is a relevant, material and necessary witness.

WHEREFORE, for these reasons, and those provided below in Plaintiff's accompanying

brief, Plaintiff requests that this Honorable Court issue an order (a) disqualifying Defendant's

attorney, Christopher Cooke, from representing Defendant in this case; and (b) granting Plaintiff

leave to depose Mr. Cooke.

Respectfully submitted,

December 13, 2013

Eric L. VanDussen - Plaintiff in pro per

BRIEF IN SUPPORT OF MOTION TO DISQUALIFY DEFENDANT'S ATTORNEY

AND FOR LEAVE TO DEPOSE DEFENDANT'S ATTORNEY

INTRODUCTION AND STATEMENT OF FACTS

Plaintiff's First Amended Complaint in this matter seeks an order from this Court (a)

declaring that Defendant (PTA) violated the OMA on several, particularized occasions; and (b)

permanently enjoining Defendant from continuously violating the OMA, as alleged by Plaintiff.

Count 3 of Plaintiff's First Amended Complaint alleges that:

20. On April 2, 2012, all three members of Defendant's executive

committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) attended

an in-person meeting that was not open to the public with attorney

Chris Cooke, for approximately 2.4 hours. (See: EXHIBIT 1)

21. Defendant's executive committee did not provide public notice of their

April 2, 2012 meeting with attorney Chris Cooke and Defendant

deliberated and made decisions regarding public business during said

April 2, 2012 executive committee meeting.

22. Defendant's executive committee did not keep minutes of their April 2,

2012 meeting showing the date, time, place, members present, members

absent and any decisions they made at said meeting.

23. The allegations described in the above paragraphs demonstrate that

an actual controversy exists, there is a real and imminent danger of

irreparable injury and that Defendant has impaired the rights of the

public and Plaintiff.

Exhibit 1 to Plaintiff's First Amended Complaint, which is an invoice submitted by Mr.

Cooke to Defendant, indicates the following:

04/02/12 CKC Travel to Beulah for meeting with 0.8 hrs

Mr. Johansson, Ms. Kitely and Mr. Thayer

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04/02/12 CKC Attendance at conference with Executive

Committee members, Mr. Johansson, Ms. Kitely

and Mr. Thayer re: various issues regarding the

departure of an employee and general procedural

issues

2.4 hrs

04/02/12 CKC Return travel from Beulah after conference with 0.8 hrs Executive Committee

Mr. Cooke's above referenced invoice clearly shows - beyond any doubt - that all three

members of Defendant's executive committee violated the OMA by conducting an illegal, secret

meeting with Mr. Cooke on April 2, 2012. It's undisputable that (a) the executive committee's

meeting on April 2, 2012 was not properly noticed and no minutes were taken; (b) the executive

committee was deliberating public business and making decisions during their covert meeting

with Mr. Cooke on April 2, 2012; (c) in order to insure that their activities would remain secret,

Mr. Cooke and Defendant's executive committee purposefully did not conduct their April 2,

2012 meeting at Defendant's principal place of business; and (d) Mr. Cooke participated in

Defendant's illegal meeting on April 2, 2012 and he is a necessary witness regarding that matter.

Count 5 of Plaintiff's First Amended Complaint alleges that:

34. On November 19, 2012, all three members of Defendant's executive

committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) again attended a virtual meeting that was not open to the public with attorney Chris Cooke.

35. On November 19, 2012, at 9:24 AM, attorney Chris Cooke sent an email (EXHIBIT 3) to all three members of Defendant's executive committee (Mr.

Johansson, Ms. Kitely and Mr. Thayer) indicating, in pertinent part, that:

... Big news for me. I have left CMDA to start my own law practice, Cooke Law, PLLC... I, of course, would very much like to continue our

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relationship under the same terms and conditions as with my former firm. If that is your desire as well, I would need authorization to remove the Benzie Bus files from CMDA. I have placed some cut and

paste language below that should be sent to "[email protected]" with a cc to "[email protected]". Looking forward to a long and productive relationship with Benzie Bus. Can't wait for you to see my new digs! thanks. Chris [emphasis added]

36. Also on November 19, 2012, at 5:58 PM, Defendant's executive committee

member Kelly Thayer sent a responsive email (EXHIBIT 4) indicating, in

pertinent part, that:

... Chris Cooke informed us today that he has left CDMA to start his own firm in Traverse City.

I contacted Kristin and Ingemar, and we agreed to continue the BTA's legal relationship with Chris Cooke. Please see the attached

message that I just emailed to CMDA authorizing the transfer of the BTA's legal files to Cooke Law PLLC. This will allow the BTA,

including the Executive Committee, to continue to seek uninterrupted

legal guidance from Chris Cooke —"under the same terms and conditions" as with his former firm — regarding development of the executive director

contract and any other matters, as needed. I will inform the Board at the December 12 monthly meeting of our decision. [emphasis added]

37. All three members of Defendant's executive committee (Mr. Johansson, Ms.

Kitely and Mr. Thayer) attended the virtual November 19, 2012 with attorney

Chris Cooke.

38. Defendant's executive committee's November 19, 2012 virtual meeting with attorney Chris Cooke was not open to the public.

39. Defendant's executive committee did not provide public notice of their November 19, 2012 meeting with attorney Chris Cooke and Defendant

deliberated and made decisions regarding public business during said November 19, 2012 executive committee meeting.

40. Defendant's executive committee did not keep minutes of their November 19, 2012 meeting showing the date, time, place, members present, members absent

and any decisions they made at said meeting.

Additionally, Defendant's Answer to Plaintiff's First Request for Admissions, which was

filed with this Court on November 18, 2013, indicates in paragraphs 14, 15 and 16 that:

... it is admitted that the quoted portions of the [November 19, 2012] email

transmission[s] are accurate.

In the instance cited above, as to Count 5, not only did Mr. Cooke participate in a blatant

violation of the OMA with Defendant's executive committee, he actually instigated the violation.

Count 6 of Plaintiff's First Amended Complaint alleges that:

43. On and around September 9, 2013, a quorum of Defendant's governing board and/or a quorum of one of its committees conducted a virtual and/or actual meeting with attorney Chris Cooke.

44. On and around September 9, 2013, a quorum of Defendant's governing

board or a quorum of one of its committees deliberated and made a

decision to cause attorney Chris Cooke to draft and send a threatening letter (EXHIBIT 5) to Defendant's former executive director in

an attempt to coerce Defendant's executive director into immediately

resigning her position.

45. Defendant's deliberations and decision to cause attorney Chris Cooke to draft a threating letter to Defendant's executive director did not occur at a meeting open to the public.

46. Defendant's did not keep minutes showing the date, time, place, members

present, members absent and any decisions they made at their virtual and/or actual meeting that occurred on and around September 9, 2013.

47. Defendant's executive director refused agree to the ridiculous terms

contained in attorney Chris Cooke's threat[cning] letter, which was written in an attempt to force her resignation.

48. Certain members of Defendant's governing board became very agitated when their executive director refused to agree to forced resignation and gag order requirement.

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49. On and around September 9, 2013, a quorum of Defendant's governing

hoard deliberated and made the decision to terminate Defendant's

executive director without their deliberations and termination decision

being conducted at a meeting open to the public.

50. On September 10, 2013, during an open meeting, a quorum of Defendant's

governing board rubbcrstamped their previous decision to terminate their

executive director.

51. The allegations described in the above paragraphs demonstrate that an

actual controversy exists, there is a real and imminent danger of

irreparable injury and that Defendant has impaired the rights of the public

and Plaintiff.

Mr. Cooke has already specifically acknowledged that he was "asked" to draft ,a proposed

separation agreement between Ms. Miller and the BTA Board, which was encapsulated in his

above referenced letter of September 9, 2013. Again, Mr. Cooke clearly participated in the

illegal meeting conducted by Defendant on or around September 9, 2013 and he is a necessary

witness regarding that matter.

LAW AND ARGUMENT

MRPC 3.7(a) mandates that:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a

necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services

rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship

on the client.

The purpose of MRPC 3.7 "is to prevent any problems that would arise from a lawyer's

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having to argue the credibility and the effect of his or her own testimony, to prevent prejudice to

the opposing party that might arise therefrom, and to prevent prejudice to the client if the lawyer

is called as an adverse witness, not to permit the opposing party to seek disqualification as a

tactical device to gain an advantage." People v Tesen, 276 Mich App 134, 141; 739 NW2d 689

(2007). The party seeking disqualification of a lawyer bears the burden of showing that the

attorney is a necessary witness. Id. at 144.

Also, the comment to MRPC 3.7 provides, in relevant part:

The opposing party may properly object where the combination of roles may prejudice that party's rights in the litigation. A witness is

required to testify on the basis of personal knowledge, while an advocate

is expected to explain and comment on evidence given by others. It may

not be clear whether a statement by an advocate-witness should be taken

as proof or as an analysis of the proof. [emphasis added]

The timing of a motion for disqualification is a relevant inquiry. People v Petri, 279

Mich App 407, 419; 760 NW2d 882 (2008). "[T]he timeliness of the motion may be considered

in determining the likelihood that the ... motion is made in good faith and not just for the

purpose of gaining a tactical advantage." Id. (citation omitted).

In this case, Plaintiff timely filed this motion as the initial scheduling conference has not

even been conducted. Plaintiff's motion to disqualify Mr. Cooke was filed in good faith and

Plaintiff did not file this motion for the purpose of gaining a tactical advantage.

As previously stated in the above motion, Plaintiff noticed Mr. Cooke's deposition and he

threatened to file a motion for a protective order and attempt to have Plaintiff sanctioned.

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Further, "Pik party seeking disqualification bears the burden of demonstrating

specifically how and as to what issues in the case the likelihood of prejudice will result" Rvinal

Baergen, 262 Mich App 274, 319; 686 NW2d 241 (2004) (citation omitted).

Plaintiff, throughout this motion and brief, has demonstrated that prejudice will result if

he is not able to depose and call Mr. Cooke - a key, eye-witness - to testify at trial in this case.

In response to this motion, Mr. Cooke will certainly be arguing that he is not a necessary

witness because other witnesses will be called to testify regarding his involvement in the OMA

violations alleged in Counts 3, 5 and 6 of Plaintiff's First Amended Complaint. However, the

indisputable evidence in this case demonstrates that Mr. Cooke instigated and/or participated in

these OMA violations, which makes him a necessary witness pertaining to Defendant's overall

scheme and pattern of covertly conducting illegal meetings, with his assistance.

Although it is true that other witnesses will be called to testify regarding the allegations

contained in Counts 3, 5 and 6, only Mr. Cooke can testify regarding those OMA violations from

his perspective.

And, it is highly likely that Mr. Cooke's testimony will differ from other witnesses'

recollections. Mr. Cooke's testimony is a critical and integral part of this case that is necessary

to illuminate his relationship and interactions with Defendant during their OMA violations.

Mr. Cooke will also definitely assert that any of his conversations with Defendant would

be privileged. However, Mr. Cooke could testify regarding the unprivileged communications

and interactions between him and Defendant and his own, specific actions as they relate to

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Counts 3, 5 and 6 of Plaintiff's First Amended Complaint.

To the extent that Plaintiff would attempt to delve into privileeed matters, during Mr.

Cooke's deposition, he and the Defendant would be entitled to object and seek this Court's

ruling as to the propriety of a specific inquiry.

Mr. Cooke's testimony will create an impermissible conflict for him between his role as

an advocate for Defendant and his role as witness. Additionally, the record is completely devoid

of any evidence that Plaintiff is seeking to disqualify Mr. Cooke to gain a tactical advantage.

CONCLUSION

This Court should find that Mr. Cooke is a necessary witness in this case. Mr. Cooke's

disqualification is wan-anted because he has first-hand knowledge of his communications and

interactions with Defendant, as they relate to the OMA allegations contained in Counts 3.5 and 6

of Plaintiff's First Amended Complaint. The testimony of Mr. Cooke is necessary to establish

essential facts in controversy in this case, i.e. that he and Defendant participated together in a

pattern of blatant OMA violations.

Mr. Cooke's testimony could likely reveal other, additional instances where he and

Defendant violated the OMA together, which would bolster Plaintiff's assertion that an

injunction should issue against Defendant in this case.

None of the three exceptions found within MRPC 3.7(a) apply in this case. Mr. Cooke's

testimony does not relate to uncontested issues. Mr. Cooke's testimony does not relate to the

nature and value of legal services rendered. And, the disqualification of Mr. Cooke would not

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work substantial hardship on Defendant.

From the very beginning of these proceedings, it was clear from the allegations presented

by Plaintiff in this OMA action that Mr. Cooke would be a necessary and relevant witness.

Rather than informing Defendant of his ethical obligation to not serve as their attorney,

when he was obviously a necessary witness in this case, Mr. Cooke instead consciously decided

to file an appearance and serve as Defendant's counsel.

When balancing the interests of Defendant's right to choose their own counsel with the

public's interest in the efficient and fair administration of justice, avoidance of conflicts of

interest, and adherence to ethical standards, this Court should conclude that Mr. Cooke must be

disqualified from serving as Defendant's counsel.

RELIEF

WHEREFORE, for these reasons, and those provided above in Plaintiff's accompanying

motion, Plaintiff requests that this Honorable Court issue an order (a) disqualifying Defendant's

attorney, Christopher Cooke, from representing Defendant in this case; and (b) granting Plaintiff

leave to depose Mr. Cooke.

Respectfully submitted,

December 13, 2013 1

Eric L. VanDussen - Plaintiff in pro per

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