20230126_C360706_28_360706.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ADAM A. HOLLAND, individually and on behalf of UNPUBLISHED
those similarly situated, January 26, 2023
Plaintiff-Appellant,
v No. 360706
Clinton Circuit Court
DEWITT PUBLIC SCHOOL DISTRICT, DEWITT LC No. 2021-012099-CZ
PUBLIC SCHOOLS BOARD OF EDUCATION,
and DEWITT PUBLIC SCHOOLS
SUPERINTENDENT,
Defendants-Appellees.
Before: PATEL, P.J., and BORRELLO and SHAPIRO, JJ.
PER CURIAM.
In this action involving plaintiff’s complaints about the adoption of a mask policy by
defendants in light of the COVID-19 (COVID) pandemic, plaintiff appeals as of right the trial
court’s order granting summary disposition in favor of defendants DeWitt Public School District,
DeWitt Public Schools Board of Education (School Board), and DeWitt Public Schools
Superintendent. For the reasons set forth in this opinion, we affirm.
Plaintiff initiated this lawsuit as a purported class action suit challenging the pandemic-
related mask policy implemented at the beginning of the 2021-2022 school year in the DeWitt
Public School District, where plaintiff’s children attend school. Plaintiff, an attorney, acted as
both the named plaintiff and plaintiffs’ counsel. Plaintiff claimed that the mask policy had been
unlawfully implemented by order of the Superintendent without adoption and approval by the
School Board.1
1
We review a trial court’s summary disposition ruling de novo. Citizens For A Better Algonac
Community Sch v Algonac Community Sch, 317 Mich App 171, 176; 894 NW2d 645 (2016).
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As an initial matter, although the parties have spent a great deal of energy throughout this
case debating the wisdom and effectiveness of face masks and policies requiring the use of face
masks for mitigating the spread of COVID-19, this case does not actually involve resolution of
those issues. “It is well settled that the gravamen of an action is determined by reading the
complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature
of the claim.” Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d
399 (2007). The single count of plaintiff’s complaint was labeled “Declaratory Judgment and
Permanent Injunction.” However, “[c]ourts are not bound by a party’s choice of labels because
this would effectively elevate form over substance.” Mich Head & Spine Institute, PC v Mich
Assigned Claims Plan, 331 Mich App 262, 275–76; 951 NW2d 731 (2019) (quotation marks and
citation omitted). Both declaratory relief and injunctive relief are remedies rather than stand-alone
claims. Wiggins v City of Burton, 291 Mich App 532, 558-559, 561; 805 NW2d 517 (2011).
Plaintiff’s complaint alleged that the Superintendent was without lawful authority to
implement the subject mask policy without adoption by the School Board, that the mask policy
was never an agenda item at a School Board meeting, that there was no public notice and comment
provided regarding the mask policy, and that the School Board never voted on the mask policy.
Plaintiff’s complaint specifically alleged that “[t]he School Board effectively delegated its
policymaking authority as a public body subject to the Open Meetings Act, MCL 15.261 et seq.,
and the Superintendent’s deliberations and decision to adopt the Mandatory Mask Policy was made
without a meeting open to the public in violation of the Open Meetings Act.” Plaintiff sought to
invalidate the mask policy and permanently enjoin the Superintendent and School District
employees from enforcing or issuing further mask policies unless approved by the School Board.
Plaintiff also sought exemplary damages, costs, and attorney fees.
“Under the OMA, public bodies must conduct their meetings, make all of their decisions,
and conduct their deliberations (when a quorum is present) at meetings open to the public.”
Speicher v Columbia Twp Bd of Trustees, 497 Mich 125, 134-135; 860 NW2d 51 (2014), citing
MCL 15.263. “Public body” is defined in relevant part to mean “any state or local legislative or
governing body, including a board, commission, committee, subcommittee, authority, or council,
that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise
governmental or proprietary authority or perform a governmental or proprietary function . . . .”
MCL 15.262(a). “A general powers school district is a body corporate and shall be governed by a
school board,” and an “act of a school board is not valid unless approved, at a meeting of the school
board, by a majority vote of the members lawfully serving on the board.” MCL 380.11a(5). “The
business that the board of a school district is authorized to perform shall be conducted at a public
meeting of the board held in compliance with the open meetings act, 1976 PA 267, MCL 15.261
to 15.275.” MCL 380.1201(1). The School Board is thus undisputedly a public body subject to
the OMA.
“If a public body has failed to comply with the requirements of the act, in addition to
authorizing enforcement actions by the attorney general or local prosecuting attorney, the OMA
also allows for any person to commence a civil action.” Speicher, 497 Mich at 135, citing MCL
15.270; MCL 15.271; and MCL 15.273. The OMA provides private litigants with a “three-tiered
enforcement scheme.” Speicher, 497 Mich at 135. Under the statutory enforcement scheme, a
person may (1) file a civil action challenging the validity of the public body’s decision made in
violation of the act and seeking to invalidate the public body’s decision based on the OMA
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violations; (2) file a civil action to compel compliance or enjoin further noncompliance with the
OMA if the public body is committing ongoing OMA violations, which if successful in obtaining
injunctive relief, will entitle the plaintiff to attorney fees and costs; and (3) file a civil action
seeking to hold a public official who intentionally violates the OMA personally liable for actual
and exemplary damages not exceeding $500.00 total, as well as court costs and actual attorney
fees. MCL 15.270; MCL 15.271; MCL 15.273; Citizens For A Better Algonac Community Sch v
Algonac Community Sch, 317 Mich App 171, 178; 894 NW2d 645 (2016).
Reading the complaint in the instant case as a whole to determine the gravamen of
plaintiff’s claim, see Adams, 276 Mich App at 710-711, we observe that plaintiff included
allegations that the mask policy was implemented in violation of the OMA and further allegations
clearly demonstrating that he sought invalidation of the mask policy and an injunction prohibiting
(1) enforcement of the policy, (2) adoption of such a policy through unilateral action by the
Superintendent without the approval of the School Board, and (3) any further violation of the
OMA. These claims mirror those statutory causes of action available under the OMA to invalidate
a public body’s decision made in violation of the OMA’s requirements and to enjoin further
ongoing OMA violations. See MCL 15.270; MCL 15.271.
Further, plaintiff’s allegations that the Superintendent did not have lawful authority to issue
the mask policy without adoption by the School Board and that the School Board could not
effectively delegate such authority to allow the Superintendent to act unilaterally on this issue
essentially amount to a claim that the requirements of the OMA could not be circumvented in
accomplishing the desired end of instituting the subject mask policy. Although “an individual
executive acting in his [or her] executive capacity is not a public body for the purposes of the
OMA,” Herald Co v Bay City, 463 Mich 111, 130; 614 NW2d 873 (2000), holding mod in part on
other grounds by Mich Federation of Teachers & Sch Related Pers, AFT, AFL-CIO v Univ of
Mich, 481 Mich 657 (2008), our Supreme Court has held that a public body may not attempt to
“evade the OMA (and thus circumvent legislative intent) by delegating its authority” to entities or
individuals that the public body “believed were not subject to the OMA, for the express purpose
of avoiding the requirements of the OMA,” Herald, 463 Mich at 134-135 (discussing the Supreme
Court’s holding in Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211; 507 NW2d
422 (1993)).
Here, on appeal, plaintiff explicitly states in his reply brief that “[i]njunctive relief is not at
issue on appeal . . . .” Plaintiff has therefore waived and abandoned any claim under MCL 15.271
for an injunction based on alleged ongoing OMA violations. As this Court has explained,
“[w]aiver is the intentional relinquishment of a known right. The usual manner of
waiving a right is by acts which indicate an intention to relinquish it, or by so
neglecting and failing to act as to induce a belief that it was the intention and
purpose to waive.” A party who waives a right is precluded from seeking appellate
review based on a denial of that right because waiver eliminates any error. [The
Cadle Co v City of Kentwood, 285 Mich App 240, 254-255; 776 NW2d 145 (2009)
(citation omitted; alteration in original).]
Next, although plaintiff also asserted that he was seeking exemplary damages, such
damages are only available under the OMA in cases of intentional conduct by a member of a public
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body. Under MCL 15.273(1), a “public official who intentionally violates this act shall be
personally liable in a civil action for actual and exemplary damages of not more than $500.00 total,
plus court costs and actual attorney fees to a person or group of persons bringing the action.” The
elements of this claim are: “(1) the defendant is a member of a public body, (2) the defendant
actually violated the OMA in some fashion, and (3) the defendant intended to violate the OMA.”
People v Whitney, 228 Mich App 230, 253; 578 NW2d 329 (1998). The Superintendent is not a
member of the School Board and thus is not a member of a public body. See MCL 380.1229(1)
(providing in relevant part that “the board of a school district . . . shall employ a superintendent of
schools . . . . The superintendent shall not be a member of the board. . .”).
In his complaint, plaintiff did not name any individuals other than the Superintendent and
thus did not raise a proper claim under MCL 15.273(1) for an intentional violation of the OMA by
a public official. Whitney, 228 Mich App at 253; see also Ritchie v Coldwater Community Sch,
unpublished opinion of the United States District Court for the Western District of Michigan,
issued July 11, 2012 (Case No. 1:11–CV–530), pp 37-38 (applying the elements stated in Whitney
to a civil action under MCL 15.273(1) to conclude that dismissal of the claims against the
defendant school superintendents was warranted).2
This leaves a potential claim under MCL 15.270 to invalidate a decision based on an
alleged violation of the OMA.3 Plaintiff’s complaint clearly sought to invalidate the mask policy.
2
In Ritchie, the court stated:
Although Whitney involved the criminal provision of the OMA, both
Section 12 and its civil counterpart, Section 13, use the same “public official”
language. Moreover, the Whitney court’s conclusion that a defendant must be “a
member of a public” body is consistent with the purpose the OMA, which is to
ensure public access to official decision-making of public bodies. In this regard,
Section 11, M.C.L. § 15.271, authorizes a person to sue a public body for
noncompliance, while Sections 12 and 13 authorize criminal and civil actions
against the individual public body members for intentional violations. Accordingly,
the Court concludes that Section 13, like Section 12, applies only to members of
public bodies. [Ritchie, unpub op at 37-38.]
“[A]lthough this Court is not bound by a federal court decision construing Michigan law,
it may follow the decision if the reasoning is persuasive.” Wormsbacher v Seaver Title Co, 284
Mich App 1, 5; 772 NW2d 827 (2009) (quotation marks and citation omitted).
3
MCL 15.270 provides in relevant part as follows:
(1) Decisions of a public body shall be presumed to have been adopted in
compliance with the requirements of this act. The attorney general, the prosecuting
attorney of the county in which the public body serves, or any person may
commence a civil action in the circuit court to challenge the validity of a decision
of a public body made in violation of this act.
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Moreover, on appeal, plaintiff states his requested relief as follows: “The lower court’s
Opinion and Order should be reversed, and judgment should be entered in my favor declaring: (1)
that the Policy is invalid; and (2) that the Superintendent does not have authority to issue District
Covid policy, communicable disease policy, or any policy, specifically including but not limited
to any mask mandates or quarantines of uninfected pupils.”
To the extent plaintiff merely seeks a declaratory judgment, such relief is not available
under the OMA. Citizens For A Better Algonac Community Sch, 317 Mich App at 179-180.
However, this conclusion makes no difference to our analysis. Whether plaintiff’s claim is
understood as one for declaratory relief or to invalidate the mask policy, we would nonetheless
reach the same determination based on the legal analysis set forth below that plaintiff did not
establish a violation of the OMA.
MCL 380.11a generally outlines the power and governance structure applicable to the
School District, stating in relevant part as follows:
(3) A general powers school district has all of the rights, powers, and duties
expressly stated in this act; may exercise a power implied or incident to a power
expressly stated in this act; and, except as otherwise provided by law, may exercise
a power incidental or appropriate to the performance of a function related to
operation of a public school and the provision of public education services in the
interests of public elementary and secondary education in the school district,
including, but not limited to, all of the following:
* * *
(b) Providing for the safety and welfare of pupils while at school or a school
sponsored activity or while en route to or from school or a school sponsored
activity.
* * *
(5) A general powers school district is a body corporate and shall be
governed by a school board. An act of a school board is not valid unless approved,
at a meeting of the school board, by a majority vote of the members lawfully serving
on the board.
(6) The board of a general powers school district shall adopt bylaws. These
bylaws may establish or change board procedures, the number of board officers,
(2) A decision made by a public body may be invalidated if the public body
has not complied with the requirements of section 3(1), (2), and (3)1 in making the
decision or if failure to give notice in accordance with section 5 has interfered with
substantial compliance with section 3(1), (2), and (3) and the court finds that the
noncompliance or failure has impaired the rights of the public under this act.
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titles and duties of board officers, and any other matter related to effective and
efficient functioning of the board. . . .
“The board of a school district shall be elected as provided under this act and the Michigan
election law,” MCL 380.11a(7), and “[m]embers of the board of a general powers school district
shall be elected by the school electors for terms of 4 or 6 years, as provided by the school district’s
bylaws,” MCL 380.11a(8). The board must employ a superintendent, who “shall not be a member
of the board.” MCL 380.1229(1).
Here, the School District bylaws provided in relevant part:
0132.1 - SELECTION OF SUPERINTENDENT
The Board of Education shall exercise its executive power in part by the
appointment of a Superintendent who shall enforce the statutes of the State of
Michigan, rules of the State Board of Education, and the policies of this Board.
0132.2 - ADMINISTRATIVE GUIDELINES
The Board shall delegate to the Superintendent the function of specifying
required actions and designing the detailed arrangements under which the school
will be operated. These detailed arrangements shall constitute the administrative
guidelines governing the schools which are not inconsistent with statutes or
regulations of the State Board or the policies of this Board.
A. Such administrative guidelines shall be binding on the employees and
the students of this District when issued.
B. The Superintendent shall be delegated the authority to take necessary
action in circumstances not provided for in Board policy, provided that such action
shall be reported to the Board at the next meeting following such action.
The School District also had the following relevant policy in effect:
8450 - CONTROL OF CASUAL-CONTACT COMMUNICABLE DISEASES
The Board of Education recognizes that control of the spread of
communicable disease spread through casual-contact is essential to the well-being
of the school community and to the efficient District operation.
For purposes of this policy, “casual-contact communicable disease” shall
include diphtheria, scarlet fever and other strep infections, whooping cough,
mumps, measles, rubella, and others designated by the Michigan Department of
Public Health.
In order to protect the health and safety of the students, District personnel,
and the community at large, the Board shall follow all State statutes and Health
Department regulations which pertain to immunization and other means for
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controlling casual-contact communicable disease spread through normal
interaction in the school setting.
If a student exhibits symptoms of a communicable disease, the principal
will isolate the student in the building and contact the parents/guardians. Protocols
established by the County Health Department shall be followed.
The Superintendent shall develop administrative guidelines for the control
of communicable disease which shall include:
A. instruction of professional staff members in the detection of these
common diseases and measures for their prevention and control;
B. removal of students from District property to the care of a responsible
adult;
C. preparation of standards for the readmission of students who have
recovered from casual-contact communicable diseases;
D. filing of reports as required by statute and the State Department of
Health.
Furthermore, under Policy 1230, the Superintendent was authorized to “exercise authority
to make administrative guidelines and procedures for district employees and students as may be
necessary to effectively implement Board policy and the efficient operation of the District.” Policy
1230.01 provided in relevant part:
The Board of Education delegates to the Superintendent the function of
designing and implementing the guidelines, required actions, and detailed
arrangements under which the District will operate. These administrative
guidelines shall not be inconsistent with the policies adopted by the Board.
The Board itself will formulate and adopt administrative guidelines and
rules only when required by law, and when the Superintendent recommends Board
adoption.
The Superintendent may also issue such administrative and student
handbooks as s/he may consider necessary for the effective administration of the
schools and distribute them to employees and students and/or their parents.
As long as the provisions of these administrative guidelines and handbooks
are not inconsistent with Board policies, or with Federal/State law, they will be
considered to be an extension of the policy manual and binding upon all employees
and students.
The language in Policy 8450 is broad enough to provide the Superintendent with the
authority to act as she did in this instance to respond to the evolving circumstances of the pandemic.
In doing so, she was acting in her individual executive capacity to implement policy and was not
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subject to the OMA. Herald, 463 Mich at 130. The mask protocol is not inconsistent with the
School Board policies. There is no language in Policy 8450 limiting the authority of the
Superintendent to implement administrative guidelines regarding the spread of communicable
diseases, contrary to plaintiff’s narrow reading. Accordingly, whether characterized as a request
for declaratory relief or to invalidate the mask policy, plaintiff has failed to demonstrate that the
OMA was violated.
To the extent plaintiff raises other potential issues, plaintiff has not stated any of them in a
sufficiently clear manner for us to be able to discern the precise legal basis on which he believes
this Court could provide him any appellate relief. “It is not sufficient for a party simply to
announce a position or assert an error and then leave it up to this Court to discover and rationalize
the basis for his claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d
100 (1998) (quotation marks and citation omitted).
Affirmed. Defendants having prevailed are entitled to costs. MCR 7.219(A).
/s/ Sima G. Patel
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
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