County Asks Trial Court to Force A2Indy to Unpublish “County Sheriff and Dir. of Engagement Lied, Knew About Deputy’s Background Check Rape Investigations”

by P.D. Lesko

In the space of just a few weeks, the Washtenaw County Trial Court has been asked repeatedly by attorneys to sanction The Ann Arbor Independent for the publication of two investigative articles. In the latest instance, Josh Apel of Miller Johnson, a Detroit law firm hired by Washtenaw County to defend against the newspaper’s June 2024 FOIA suit, on Dec. 17, 2024 filed a Motion to Correct Clerical Error. Apel was hired to represent Washtenaw County in its legal bid to withhold the background check of a Sheriff’s Deputy who was, about a year after being hired, subsequently charged with a dozen felonies, including multiple CSC First Degree charges for rape.

In a Motion submitted to the Honorable Julia B. Owdziej asking her to reconsider her ruling that the background check, in part, had to be redacted and released, Apel attached as an exhibit the Judge’s copy of the records which had directions for redactions, but with the redactions as yet undone. The newspaper published the records on Dec. 10, 2024. The records confirmed that Washtenaw County Sheriff Jerry Clayton, who at a press conference in August 2020 purported to have known nothing about the Deputy’s “crimes,” had a background report which had included two investigations into the as-yet-unhired man’s involvement in two rape investigations.

At the August press conference, the Sheriff’s then Dir. of Community Engagement also purported to have known nothing about the man’s “crimes” prior to his hiring. The Dir. of Community Engagement, Derrick Jackson, impersonated a licensed social worker for a decade, for which he was reported (while running for Sheriff) by a social worker to Michigan officials. Jackson was recently hired to lead Washtenaw County’s DEI Dept. The previous Dir. of the DEI Dept. Alize Asberry Payne resigned in Aug. 2024 admitting to “poor judgement” after the newspaper published a pair of investigative articles.

The United States Supreme Court in Florida Star v. B.J.F., 491 U.S. 524 (1989) ruled that after the government releases public records, even accidentally, if the records are lawfully obtained they may be published. The A2Indy obtained the unredacted pages of the Deputy’s background check from Apel’s public court filing.

The newspaper’s December 18, 2024 Response to the Motion to Correct Clerical Error, includes this:

“In 2021, a Virginia School District accidentally released to two parents public records
which were highly embarrassing to District leaders. One parent published portions of the
records. The Virginia School District, like the Defendant in Patricia Lesko v Washtenaw
County has petitioned this Court, petitioned the Fairfax (VA) County Circuit Court to
punish the parents, censor the parent’s website, and order the records clawed back so that
they could be replaced with heavily redacted copies.
https://www.goldwaterinstitute.org/wp-content/uploads/2022/04/FCPS-Complaint.pdf

“Relying on the Supreme Court’s ruling in Florida Star, the Fairfax County Circuit Court
judge ruled, “This is as much about a prior restraint as there ever could be. No question
about it….What defendants are doing [in publishing the accidentally released records] is
enforcing their rights under the First Amendment.” Florida Star v. B.J.F., 491 U.S. 524
(1989); https://www.goldwaterinstitute.org/wp-content/uploads/2022/04/Hearing-
111621-Full-Size.pdf“

The Miller Johnson attorney in his Dec. 17 filing blamed the accidental release of the pages of the background check on the “County’s attorney.” It’s not clear whether the “attorney” referred to in Apel’s Dec. 17 Motion is Michelle Billard, the Washtenaw County Corporation Counsel.

The accidental release of public records is commonplace, including by a client’s own attorneys. https://www.opb.org/article/2024/10/09/accidental-release-records-deschutes-sheriff-candidate-kent-vander-kamp-la-mesa/).

On Sept. 18, Judge Owdziej ruled against the County’s Motion to dismiss the newspaper’s FOIA Complaint filed in June 2024.

After examining the requested public record in camera, as she is required to do as per rulings of the Supreme Court of Michigan and the Michigan Court of Appeals, the Judge ruled Washtenaw County had to release a portion of the McWilliams’s background check with her redactions. As a deadline for the release, the Judge gave Washtenaw County until Nov. 12, 2024 to turn over the record the newspaper had requested through a Freedom of Information Act request made in Mar. 2024.

On Nov. 12, rather than release the redacted record, the County’s attorney Josh Apel filed a Motion for Reconsideration or, Alternatively, for a Stay of Proceedings. With this filing, Washtenaw County indicated its intention to appeal Judge Owdziej’s ruling to the Michigan Court of Appeals. The Judge refused the Motion for Reconsideration and ordered a Jan. 22, 2025 hearing on the County’s request for a stay of her November 12 Order. This put off any opportunity for the newspaper to obtain the record, which was ordered released by Nov. 12, 2024, until after Jan. 22, 2025.

The newspaper asked for that Jan. 22 hearing date to be moved up, but the Judge refused.

Court of Appeals records show the appeal of Judge Owdziej’s ruling was initiated on Dec. 13, 2024.

In her Order in response to the County’s Motion for Reconsideration or, Alternatively, for a Stay of Proceedings, the Judge ordered the record withheld from the newspaper, and scheduled a hearing on the request for the stay to a date past the deadline by which the County’s filing with the Michigan Court of Appeals was due.

In effect, this meant the County would be able to withhold the record through the appeal process.

The County released the record sought by the newspaper in its Motion for Reconsideration or, Alternatively, for a Stay of Proceedings. The newspaper published the record. Because the County accidentally released the public record Judge Owdziej ordered released, and the record was published, any County appeal of the judge’s Order to release the record is now moot.

Michigan’s higher courts, including the Supreme Court of Michigan, have repeatedly ruled that once records requested through a Freedom of Information Act have been released, there is no further judicial controversy: “[R]elease of the requested public record by the public body…render the FOIA appeal moot because there would no longer be a controversy requiring judicial resolution.” 

The County’s Motion to Correct Clerical Error asks that: “Pending the January 22, 2025 hearing, Lesko shall be enjoined from disclosing or using the contents of the Background Check, and she shall be ordered to retract/remove any written and oral statements disseminated to third parties
regarding the contents of the Background Check, including, but not limited to, her post located at https://a2independent.com/2024/12/10/county-sheriff-and-dir-of-
engagement-lied-knew-about-deputys-background-check-rape-investigations/.

All of the County’s Dec. 17 requests for judicial relief have been ruled unconstitutional prior restraint by the United States Supreme Court in rulings going back to 1975. In addition the Motion asks the judge to “strike” the already released public records from the County’s Motion for Reconsideration or, Alternatively, for a Stay of Proceedings. This has also been ruled unconstitutional by the U.S. Supreme Court. The Washtenaw County Trial Court judge has no legal authority to censor (after release and publication) records released to the public and published.

In October 2024, Washtenaw County Trial Court records show that Greenhills Head of School Peter B. Fayroian, through his lawyer Andrew Bossory of Joshi Law, filed the first of two Ex Parte Motions on October 28, 2024 at 4 p.m. to ask a judge to issue …”a preliminary injunction barring Defendants from publishing any statement or article, as referenced in the October 25, 2024 email.” On October 29, 2024 at 4 p.m. Bossory filed the same Ex Parte Motion attached to a new case, “requesting the same relief,” according to the Judge’s Denial. The lawyer and his client twice petitioned a Washtenaw County Trial Court judge to stop the publication of “Greenhills Head of School Accused of Sexual Abuse.”

On Nov. 4, 2024, the Ann Arbor Independent reported, “What Fayroian and Bossory were asking was for a judge to exercise what, in legal terms, is called ‘prior restraint.’ In Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), the U.S. Supreme Court ruled prior restraint ‘the most serious and the least tolerable infringement on First Amendment rights.’

Washtenaw County Trial Court judge Julia B. Owdziej denied both of Bossory’s Motions.

The County requested an expedited hearing date on its Dec. 17, 2024 Motion. On Dec. 18, Judge Owdziej’s office sent a scheduling notice that showed the Judge chose to combine the County’s Motions at the Jan. 22, 2025 date of the originally-scheduled hearing on the Motion for Reconsideration or, Alternatively, for a Stay of Proceedings.

County Open Book records show that between July and Nov. 2024, Miller Johnson has been paid $3,530.50 for its legal work by the County’s Office of Corporation Counsel.