[nfbmi-talk] important oma case

[joe harcz Comcast]

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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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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