Harlan Vermilya v. Delta College Board of Trustees , 325 Mich. App. 416 ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
HARLAN VERMILYA and ANN ANKLAM, FOR PUBLICATION
July 31, 2018
Plaintiffs-Appellees, 9:00 a.m.
v No. 341229
Saginaw Circuit Court
DELTA COLLEGE BOARD OF TRUSTEES, LC No. 16-028824-CZ
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.
PER CURIAM.
In this action alleging multiple violations of the Open Meetings Act (OMA), MCL
15.261 et seq., the trial court issued an opinion and order granting in part and denying in part
defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a
claim) and (C)(10) (no genuine issue of material fact). Relevant to this appeal, the court also
granted plaintiffs summary disposition in part under MCR 2.116(I)(2) (nonmoving party entitled
to judgment), ruling that defendant’s failure to identify the “specific pending litigation” it would
be discussing in closed session violated MCL 15.267(1) and MCL 15.269(1). Defendant appeals
by right. We affirm.
This case arises out of a January 12, 2016 meeting in which defendant passed a motion to
enter closed session “for the purpose of discussing specific pending litigation with legal
counsel,” pursuant to MCL 15.268(e). Plaintiffs brought suit, alleging in part that defendant
violated the OMA by failing to name the pending litigation it planned to discuss. Defendant
moved the trial court for summary disposition, arguing that MCL 15.268(e) had no such
requirement. Plaintiffs’ position was that defendant’s meeting minutes failed to show the
“purpose” for holding a closed session meeting, as required by MCL 15.267(1) and MCL
16.269(1). The trial court agreed with plaintiffs.
We review de novo a trial court’s decision to grant summary disposition. Local Area
Watch v Grand Rapids, 262 Mich. App. 136, 142; 683 NW2d 745 (2004). We also review de
novo questions of statutory interpretation. Speicher v Columbia Twp Bd of Trustees, 497 Mich.
125, 133; 860 NW2d 51 (2014).
-1-
The foundational principles of statutory interpretation are well established:
When interpreting a statute, we follow the established rules of statutory
construction, the foremost of which is to discern and give effect to the intent of
the Legislature. To do so, we begin by examining the most reliable evidence of
that intent, the language of the statute itself. If the language of a statute is clear
and unambiguous, the statute must be enforced as written and no further judicial
construction is permitted. Effect should be given to every phrase, clause, and
word in the statute and, whenever possible, no word should be treated as
surplusage or rendered nugatory. Only when an ambiguity exists in the language
of the statute is it proper for a court to go beyond the statutory text to ascertain
legislative intent. [Whitman v City of Burton, 493 Mich. 303, 311-312; 831 NW2d
223 (2013) (citations omitted).]
Additionally, statutory language “cannot be read in a vacuum” and instead “must be read in
context with the entire act, and the words and phrases used there must be assigned such
meanings as are in harmony with the whole of the statute . . . .” GC Timmis & Co v Guardian
Alarm Co, 468 Mich. 416, 421; 662 NW2d 710 (2003) (quotation marks and citation omitted;
alteration in original).
It is now well established that “the purpose of the OMA is to promote governmental
accountability by facilitating public access to official decision making and to provide a means
through which the general public may better understand issues and decisions of public concern.”
Kitchen v Ferndale City Council, 253 Mich. App. 115, 125; 654 NW2d 918 (2002), overruled on
other grounds by Speicher, 497 Mich. 125, citing Booth Newspapers, Inc v Univ of Mich Bd of
Regents, 444 Mich. 211, 231; 507 NW2d 422 (1993). See also Manning v East Tawas, 234 Mich
App 244, 250; 593 NW2d 649 (1999), overruled on other grounds by Speicher, 497 Mich. 125.
“To further the OMA’s legislative purposes, the Court of Appeals has historically interpreted the
statute broadly, while strictly construing its exemptions and imposing on public bodies the
burden of proving that an exemption exists.” Booth Newspapers, Inc, 444 Mich. at 223.
“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, 497 Mich. at 134-135, citing MCL 15.263. However, a public body may meet in a
closed session1 for certain enumerated purposes. MCL 15.268. Pertinent to this case, a public
body may meet in a closed session “[t]o consult with its attorney regarding trial or settlement
strategy in connection with specific pending litigation, but only if an open meeting would have a
detrimental financial effect on the litigating or settlement position of the public body.” MCL
15.268(e). This Court has concluded “that subsection 8(e) exists for the obvious purpose of
allowing a public body to prepare for litigation without having to broadcast its trial or settlement
strategy to the opposition along with the rest of the general public.” Manning, 234 Mich. App. at
251.
1
“ ‘Closed session’ means a meeting or part of a meeting of a public body that is closed to the
public.” MCL 15.262(c).
-2-
Certain procedural requirements must be met for a public body to commence a closed
session.
A ⅔ roll call vote of members elected or appointed and serving is required
to call a closed session, except for the closed sessions permitted under section
8(a), (b), (c), (g), (i), and (j). The roll call vote and the purpose or purposes for
calling the closed session shall be entered into the minutes of the meeting at
which the vote is taken. [MCL 15.267(1).]
Similarly, MCL 15.269 requires in part that “[e]ach public body shall keep minutes of each
meeting showing . . . the purpose or purposes for which a closed session is held.” MCL
15.269(1). Accordingly, a public body must “state on the record the purpose of the closed
session before initiating the closed session.” Herald Co, Inc v Tax Tribunal, 258 Mich. App. 78,
86; 669 NW2d 862 (2003), overruled on other grounds by Speicher, 497 Mich. 125.
Defendant argues, and we agree, that MCL 15.268(e) does not in and of itself require the
public body to name the pending litigation it will be discussing in closed session. But statutory
language cannot be read in isolation and must be construed in a way that harmonizes the entire
act. GC Timmis, 468 Mich. at 421. Indeed, plaintiffs argued, and the trial court agreed, that
defendant violated MCL 15.267(1) and MCL 15.269(1), not MCL 15.268(e), when it failed to
identify the “specific pending litigation” it would be discussing. When examining MCL
15.267(1), MCL 15.268(e), and MCL 15.269(1) together, it is clear that the Legislature intended
for public bodies to name the pending litigation before entering a closed session.
First, we note that defendant’s argument that the OMA requires only that there be
specific pending litigation would render the word “specific” redundant and mere surplusage—a
result we must avoid whenever possible. See Whitman, 493 Mich. at 311. When a public body
meets to discuss pending litigation, it will necessarily discuss specific cases. Therefore, if the
Legislature did not intend for the public body to disclose the particular case or cases it would be
discussing, there would be no reason for the phrase “specific pending litigation” to contain the
word “specific,” as the word has no practical impact on the permissible substance of the public
body’s discussion in a closed session.
To avoid that interpretation, MCL 15.268(e) must be read in light of the statutory
provisions providing that the public body must indicate the “purpose” for calling a closed
session. MCL 15.267(1) and MCL 15.269(1). Those provisions contemplate that a public body
will inform the public of the reason for entering a closed session, which would require the public
body to point to the applicable closed session exemption in MCL 15.268. Under MCL
15.268(e), the public body may only meet to discuss “specific pending litigation.” Reading the
OMA broadly to further the purpose of government accountability, Booth Newspapers, Inc, 444
Mich. at 223, we conclude that the Legislature intended for the public body to identify the
specific litigation it would be discussing in justifying its decision to close its meeting to the
public.
This Court reached a similar conclusion in discussing a different closed-session
exemption. Herald Co, Inc, 258 Mich. App. 78. Herald Co, Inc concerned MCL 15.268(h),
which allows a public body to meet in a closed session “[t]o consider material exempt from
-3-
discussion or disclosure by state or federal statute.” Id. at 84. The corresponding state statute
was the provision of the Freedom of Information Act (FOIA), MCL 15.231 et seq., that exempts
from disclosure “[t]rade secrets or commercial or financial information” if certain requirements
are met. Id. at 84-85, quoting MCL 15.243(1)(f). After reviewing the requirements of MCL
15.267(1) and MCL 15.269(1) concerning closed sessions, this Court determined that:
the plain language of these statutes instruct that when faced with FOIA exempt
material as applied to the OMA, [the public body] must state on the record those
documents it deems exempt under the FOIA together with the associated FOIA
exemption justifying the document’s nondisclosure, describe those documents
unless description would defeat the purpose of the nondisclosure, and complete
this process on the record in open session before conducting the closed hearing.
[Herald Co, Inc, 258 Mich. App. at 86-87 (emphasis added).]
In other words, this Court determined that the public body had to identify the exempt material
and applicable statute before entering a closed session, even though such a requirement is not
found in the applicable exemption provision alone. This Court impliedly determined that merely
reciting the statutory language of the pertinent exemption was insufficient. There is a stronger
case for reaching that conclusion with respect to MCL 15.268(e), given that the Legislature only
exempted closed session discussion of “specific pending litigation.” (Emphasis added).
The Attorney General’s OMA Handbook further supports that conclusion. The
Handbook suggests that every motion to enter a closed session should refer to an exempt purpose
set forth in MCL 15.268 and provides the following example of an appropriate motion: “I move
that the Board meet in closed session under section 8(e) of the Open Meetings Act, to consult
with our attorney regarding trial or settlement strategy in connection with [the name of the
specific lawsuit].” Office of the Attorney General, Open Meetings Act Handbook, p 11
(accessed July 27,
2018) (emphasis added; brackets in original). We acknowledge that the Handbook is not binding
authority. Still, as the trial court reasoned, it is telling that the Attorney General naturally read
the OMA as requiring the public body to name the specific lawsuit it would be discussing in a
closed session.
To the extent the OMA is ambiguous on this issue, “[t]he resolution of an ambiguity or
vagueness that achieves a statute’s purpose should be favored over the resolution that frustrates
its purpose.” City of Fraser v Almeda Univ, 314 Mich. App. 79, 95; 886 NW2d 730 (2016)
(quotation marks and citation omitted). Allowing a public body to call for a closed session by
merely reciting MCL 15.268(e)’s language does not further the purpose of government
accountability because the public is given no indication of the “issues and decisions of public
concern” that will be addressed in the closed session. See Kitchen, 253 Mich. App. at 125. While
a case name may not provide much information, in and of itself, it alerts the public to the
existence of litigation and allows for further inquiry. For those reasons, defendant violated MCL
15.267(1) and 15.269(1) by not articulating the purpose for calling a closed session in
-4-
accordance with MCL 15.268(e).2 The trial court correctly granted plaintiffs summary
disposition under MCR 2.116(I)(2) on this issue.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
/s/ Anica Letica
2
Given our resolution of this issue, we decline to examine the caselaw from sister states
identified by the parties addressing similar, but distinct, statutory exceptions to holding open
meetings.
-5-