[nfbmi-talk] important oma case
joe harcz Comcast
joeharcz at comcast.net
Tue Aug 31 21:56:23 UTC 2010
Colleagues. I have been disturbed for months about the closed lunches
durring meetings in which a quorum is present and the commissioners may, or
not be deliberating towards a determination in effective closed session.
This can be remedied by simply allowing the public into their little lunch
gatherings. They don't have to feed we unwashed masses, but I do think that
we need to see that they are not conducting a preplanned illegal closed
session.
"Sincerely,
Joe
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From: "joe harcz Comcast" <joeharcz at comcast.net>
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Sent: Tuesday, August 31, 2010 5:25 PM
Subject: [nfbmi-talk] important oma case
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
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