[nfbmi-talk] important oma case

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STATE OF MICHIGAN

STATE OF MICHIGAN

COURT OF APPEALS

Table with 2 columns and 4 rows

JEAN A. NICHOLAS, DIANNE K. HOLMAN,

DONN L. STORY, JAMES H. RAMEY, and

POLLY KENT,

Plaintiffs-Appellants/Cross-
Appellees,

FOR PUBLICATION

January 28, 2000

9:10 a.m.

v

No. 211956

Ingham Circuit Court

MERIDIAN TOWNSHIP CHARTER BOARD,

BRUCE A. LITTLE, and KIRK K. SQUIRES,

LC No. 97-085559 CL

Defendants-Appellees/Cross-
Appellants.

 
table end

Before: Sawyer, P.J., and Hood and Fitzgerald, JJ.

PER CURIAM.

Plaintiffs appeal by right from an order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10), based on the determination that,
although defendants had violated the Open Meetings Act (OMA), MCL 15.261 et seq.; MSA 4.1800(11) et seq., plaintiffs failed to create any genuine issue
of material fact: (1) that they were entitled to invalidation of the disputed decisions, (2) that they were entitled to injunctive relief, or (3) that
defendants intentionally violated the OMA. We affirm in part and reverse in part.

Defendants have made several pertinent factual admissions in this case; these facts are undisputed by plaintiff. Pursuant to MCL 42.7(5); MSA 5.46(7), four
members of the township board constitute a quorum for purposes of conducting township business. On December 6, 1996, the planning and development committee
met with prior public notice. A quorum of township board members was present at this meeting. Township board member Little participated in the discussion
at this meeting even though he was not a member of the committee.

On January 13, 1997, the personnel committee met with prior public notice. A quorum of township board members was present at this meeting where matters
of public policy were discussed. Although not a member of this committee, Little joined in the discussion but did not vote on any business before the committee.

The public safety committee met on January 15, 1997, with a quorum of the township board being present. Prior notice of this meeting was provided to the
public. Township business and matters of public policy were discussed at this meeting with Little, a non-committee member, participating in the discussions.

On January 31, 1997, a meeting of the planning and development committee was held with a quorum of township board members being present; prior public notice
of this meeting had been provided. Matters of public policy were discussed. At this meeting, Little, a non-committee member participated in the discussions
before the committee.

A meeting of the personnel committee was held on February 18, 1997, with a quorum of the township board being present. Although not members of the committee,
Little and Squiers participated in the discussion of township business.

Defendants have admitted that all of the subject committee meetings constituted meetings of a "public body at which public policy was discussed and in which
deliberations were made" Defendants also admitted that none of the notices regarding these meetings indicated that a quorum of the township board would
be present.

Plaintiffs first argue that the trial court’s grant of summary disposition to defendants was in contradiction to its ruling that defendants violated the
OMA and that plaintiffs were therefore entitled to relief under the statute. We disagree.

MCL 15.262; MSA 4.1800(12) defines certain terms with regard to application of the OMA and states, in pertinent part:

(a) "Public body" means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council,
which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform
a governmental or proprietary function.

(b) "Meeting" means the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public
policy.

* * *

(d) "Decision" means a determination, action, vote or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure
on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.

MCL 15.263; MSA 4.1800(13) provides, in pertinent part:

(1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted
to attend any meeting except as otherwise provided in this act . . . The exercise of this right shall not be dependent upon the prior approval of the public
body. However, a public body may establish reasonable rules and regulations in order to minimize the possibility of disrupting the meeting.

(2) All decisions of a public body shall be made at a meeting open to the public.

(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public.

Decisions of a public body shall be presumed to have been adopted in compliance with the requirements of the OMA. MCL 15.270(1); MSA 4.1800(20)(1).

MCL 15.265; MSA 4.1800(15) states, in pertinent part:

(1) A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body.

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co Marlette
Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The first criterion in determining intent is the specific language of the statute. In re MCI Telecommunications
Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). The Legislature is presumed to have intended the meaning it plainly expressed. Nation v WDE Electric
Co, 454 Mich 489, 494; 563 NW2d 233 (1997). Where the language of a statute is clear and unambiguous, judicial construction in generally neither necessary
nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Courts may not speculate as to the probable intent of the Legislature beyond
the words expressed in the statute. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). Statutory interpretation is a question of law that we review
de novo. Oakland Co Bd of Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998).

When a quorum of the members of a public body meet to consider and discuss public business, it is a "meeting" under MCL 15.262(23)(a); MSA 4.1800(12)(2)(a).
See OAG, 1989-90, No. 6636, p 878. Meetings with a quorum present held to deliberate a public question must be held at a public meeting. Thus, if members
of a public body gather, a quorum being present, for the purpose of deliberating, the meeting is subject to the provisions of the OMA even if there is
no intention that the deliberations will lead to the rendering of a decision on that occasion. Id.

In the present case, the parties do not dispute that the subject committee meetings, at which a quorum of the township board was present, were meetings
of a "public body" and involved deliberations regarding public policy. These meetings were therefore subject to the OMA. MCL 15.262; MSA 4.1800(12). It
was incumbent that proper notice be provided with regard to these meetings. MCL 15.263; MSA 4.1800(13); MCL 15.265; MSA 4.1800(15).

OAG, 1989-90, No. 6636, supra at 878, concerned a meeting of a county planning commission committee that consisted of more than fifty members, two of whom
were members of the county board of commissioners. The question presented was whether, if additional members of the board attended a public meeting of
the planning commission committee so as to constitute a quorum of the board, must the meeting be posted as a meeting of the board. Id. at 878. The attorney
general opined that so long as the non-member commissioners did not engage in deliberations or render decisions, the meeting need not be posted as a meeting
of the board of commissioners. Id.

While OAG, 1989-90, No. 6636 is not controlling, we are persuaded by its reasoning. We, therefore, conclude that defendants were obliged to inform the public
that the business to be undertaken would actually be considered by the township board rather than the particular committee actually specified on the notice.
In that the notices failed to do so, the trial court properly found that defendants had violated the OMA. However, our review of the record shows that,
despite defendants’ failure to provide proper notice, there was substantial compliance with the OMA notice requirements. Everything that was the subject
of plaintiff’s complaint occurred during the course of a meeting properly noticed and open to the public. Nothing that took place was secreted or otherwise
unknown to the public. Thus, the purpose of the OMA was essentially and realistically fulfilled. Arnold Transit Co v Mackinac Island, 99 Mich App 266,
275; 297 NW2d 904 (1980).

A party seeking an invalidation of a decision by a public body, pursuant to MCR 15.270(2); MSA 4.1800(20)(2), must allege both a violation of the act and
that this violation impaired the rights of the public. Esperance v Chesterfield Twp, 89 Mich App 456, 464; 280 NW2d 559 (1979). The mere recital of the
language that the rights of the public were impaired is insufficient to support a request for invalidation. Cape v Howell Bd of Ed, 145 Mich App 459, 467;
378 NW2d 506 (1985). We review a trial court’s decision whether to invalidate a decision made in violation of the OMA for abuse of discretion. Esperence,
supra at 464.

Plaintiffs’ complaint contained bare allegations that the "rights of the public" were impaired by defendants’ actions. Plaintiffs’ mere recital that the
rights of the public were impaired is insufficient. Cape, supra at 467. Our review of the record fails to reveal how those rights were impaired. There
is no dispute that the committee meetings were noticed to the public. Moreover, the record demonstrates that members of the public were present at all
but one of the committee meetings. Thus, we conclude that the trial court did not abuse its discretion in refusing to invalidate the decisions made by
defendants in violation of the OMA.

The OMA further provides for injunctive relief:

(1) If a public body is not complying with this act, . . . a person may commence a civil action to compel compliance or to enjoin further noncompliance
with this act.

* * *

(4) If a public body is not complying with this act, and a person commences a civil action and succeeds in obtaining relief in the action, the person shall
recover court costs and actual attorney fees for the action. [MCL 15.271(1), (4); MSA 4.1800(21)(1), (4).]

Merely because a violation of the OMA has occurred does not automatically mean that an injunction must issue restraining the public body from using the
violative procedure in the future. Esperence, supra. Injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate
remedy at law, and there exists a real and imminent danger of irreparable injury. Wilkins v Gagliardi, 219 Mich App 260, 276; 556 NW2d 171 (1996). We review
a trial court's decision for an abuse of discretion in granting or denying injunctive relief. Holly Twp v Holly Disposal, Inc, 440 Mich 891; 487 NW2d 753
(1992).

In Wilkins, supra, a panel of this Court concluded that where the OMA problems have been addressed and no similar incidents have occurred, it could be concluded
that no real and imminent danger existed; it was appropriate to refrain from imposing a permanent injunction. Id. at 260. Where there is no reason to believe
that a public body will deliberately fail to comply with the OMA in the future, injunctive relief is unwarranted. Schmiedicke v Clare School Bd, 228 Mich
App 259, 267; 577 NW2d 706 (1998).

We conclude that the amended notice provision employed by defendants adequately informed the public of the potential for deliberations and decision making
by the township board at a noticed committee meeting. Defendants’ amended notice provision substantially complies with the notice requirements of the OMA
and the purpose of the statute is essentially and realistically fulfilled. Arnold Transit Co, supra at 275.

Plaintiffs next argue that they were entitled to their actual costs and attorney fees because

the trial court found that defendants had violated the OMA. We agree.

Pursuant to subsection 11(4) of the Open Meetings Act, MCL 15.271(4); MSA 4.1800(21)(4):

If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance
or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover costs and actual attorney fees
in the action.

Here, the trial court declared that defendants violated the open meetings act. This constitutes declaratory relief, thus entitling plaintiffs to actual
attorney fees and costs despite the fact that the trial court found it unnecessary to grant an injunction given defendants’ decision to amend the notice
provision after plaintiffs filed the present suit. See, e.g., Schmiedeke v Clare School Bd, 228 Mich App 259, 266-267; 577 NW2d 706 (1998) (legal remedy
of declaratory relief is adequate to support award of attorney fees and costs); Ridenour v Dearborn Bd of Ed, 111 Mich App 798; 314 NW2d 760 (1981) (the
plaintiff received the relief sought when the trial judge agreed with plaintiff’s position that defendant violated the OMA but declined to grant an injunction
given defendant’s promise to comply); Menominee County Taxpayers Alliance, Inc v Menominee County Clerk, 139 Mich App 814; 362 NW2d 871 (1984) (a plaintiff
who prevails in an action against a public body alleging a violation of the OMA may recover actual attorney fees and costs even though intervening circumstances
have made superfluous an award of injunctive relief sought by the plaintiff).

Plaintiffs rely on Manning v East Tawas, 234 Mich App 244; 593 NW2d 649 (1999). In Manning, the defendant city council held a closed session to discuss
with the city attorney a prior action by the plaintiffs challenging the council’s refusal to approve the plaintiffs’ proposed site plan for a recreational
vehicle park. Plaintiffs alleged that the closed session violated the OMA, and also alleged that the city clerk violated the Freedom of Information Act
(FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq., by refusing to disclose the minutes of that closed session. The trial court recognized as partially
applicable to the closed session at issue the exemption of subsection 8(e) of the OMA, MCL 15.268(e); MSA 4.1800(18)(e). However, the trial court ordered
partial disclosure of the minutes of the session under the FOIA.

With regard to attorney fees and costs, this Court stated:

The trial court’s order of partial disclosure of the minutes of the closed meeting in question necessarily included a finding of a violation of the OMA,
particularly that not all of the subject matter of the closed session came under the cited statutory ground for closing the session. This constitutes declaratory
relief under the OMA, which is sufficient to entitle plaintiffs to an award of costs and attorney fees. (Emphasis added.)

Thus, Manning is in harmony with the cases cited above that hold that a trial court’s finding that a violation of the OMA has occurred constitutes declaratory
relief that is adequate to justify an award of attorney fees and costs. Accordingly, we reverse that part of the order denying costs and attorney fees
and remand to the trial court for calculation of an award of costs and actual attorney fees under subsection 11(4) of the OMA.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party
having prevailed in full.

/s/ David H. Sawyer
/s/ Harold Hood
/s/ E. Thomas Fitzgerald