Michael Busuito v. Bryan C Barnhill ( 2021 )

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
MICHAEL BUSUITO, ANIL KUMAR, SANDRA FOR PUBLICATION
HUGHES O’BRIEN, and DANA THOMPSON, May 27, 2021
9:10 a.m.
Plaintiffs-Appellants,
v No. 353424
Court of Claims
BRYAN C. BARNHILL, II, MARK GAFFNEY, LC No. 19-000111-MZ
MARILYN KELLY, KIM TRENT, M. ROY
WILSON, WAYNE STATE UNIVERSITY, and
WAYNE STATE UNIVERSITY BOARD OF
GOVERNORS,
Defendants-Appellees.
Before: JANSEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.
JANSEN, P.J.
Plaintiffs, Michael Busuito, Anil Kumar, Sandra Hughes O’Brien, and Dana Thompson,
appeal as of right the order of the Court of Claims granting summary disposition in favor of
defendants, Bryan C. Barnhill, II, Mark Gaffney, Marilyn Kelly, Kim Trent, M. Roy Wilson,
Wayne State University, and the Wayne State University Board of Governors, under MCR
2.116(C)(10). On appeal, plaintiffs also challenge a prior order of the Court of Claims denying
plaintiffs’ request for injunctive relief and granting summary disposition in favor of defendants
under MCR 2.116(I)(1). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
All individual plaintiffs and defendants, with the exception of Wilson, Wayne State
University (WSU), and the Wayne State University Board of Governors (the Board) are all elected
members of the Board. The Board has general supervision of WSU, as afforded by the Michigan
Constitution. See Const 1963, Art 8, § 5. The Board is comprised of “8 members who shall be
nominated and elected in accordance with the election laws of this state.” MCL 390.643. Wilson,
the President of WSU, is “the principal executive officer” of WSU: President Wilson is considered
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an “ex-officio member of the [B]oard without the right to vote” and presides over meetings of the
Board. See Const 1963, Art 8, § 5; MCL 390.643.
During a Board meeting on April 5, 2019, the Board considered the purchase of the real
property located at 400 Mack Avenue in Detroit, Michigan (400 Mack Avenue). Plaintiffs voted
“no” to the acquisition of that property. However, on June 19, 2019, the sublease of the 400 Mack
Avenue property, with an option to purchase, was added to the executive meeting agenda for the
upcoming June 21, 2019 meeting. Plaintiffs maintain that this last-minute addition to the agenda
was made because Governor Kumar would not be able to attend the meeting, and therefore
defendants believed that they would be able to outvote plaintiffs 4-3 in favor of entering into the
sublease for the 400 Mack Avenue property. In response, Governors Busuito, O’Brien, and
Thompson boycotted the June 21, 2019 meeting in hopes that the Board would be unable to
establish a quorum and transact business.
The June 21, 2019 meeting went forward with defendant Governors in attendance.
Additionally, President Wilson was counted as a member of the Board to establish a quorum.
During the open session, the Board approved a tuition increase for the upcoming 2019-2020
academic year. President Wilson, despite being counted for a quorum, did not vote. Plaintiffs
maintain that the Board violated the Open Meetings Act (the OMA), specifically MCL 15.267(1),
by then moving into a closed executive session without holding a roll call vote or a 2/3 majority
vote. During the closed executive session, the sublease for the 400 Mack Avenue property was
approved.
Plaintiffs originally filed a three-count complaint in Ingham Circuit Court. The case was
removed to the Court of Claims and subsequently dismissed without prejudice because plaintiffs
failed to strictly comply with the notice-and-verification requirements contained in MCL
600.6431(1). Plaintiffs subsequently re-filed the instant action: a verified three-count complaint
and a motion for a temporary restraining order and a preliminary injunction. In their motion,
plaintiffs argued that “[a]s a result of the individual [d]efendants’ actions in both determining a
quorum where none existed, and in holding a closed session without the necessary board approval,
the entire June 21, 2019, meeting of the Board of Governors of Wayne State University is null,
void, and without effect.” Plaintiffs asked the Court of Claims to enter an order under MCR
3.310(B) temporarily restraining defendants from taking ay action with regard to the decisions
made at the June 21, 2019 meeting.
In their three-count complaint, plaintiffs went on to allege that neither President “Wilson,
nor his predecessors, had ever been counted as a member of the Board to determine a quorum
previous to June 21, 2019.” Plaintiffs went on to offer the opinion that it was “nonsensical to count
a non-voting, unelected ex-officio member for that purpose,” and that doing so violated the
Michigan Constitution, the WSU Bylaws, and “longstanding principles of democracy.” Therefore,
in Count I, plaintiffs argued they were entitled to a declaration that the Board did not have a
quorum sufficient to hold the June 21, 2019 meeting, and a declaration that without a quorum, any
decisions made at the June 21, 2019 meeting are null, void, and without effect. In Count II,
plaintiffs sought injunctive relief, specifically an order under MCL 15.271, enjoining defendants
from acting upon any decisions made in the closed session of June 21, 2019. Finally, in Count III,
plaintiffs alleged a violation of the OMA. Specifically, plaintiffs alleged that by entering into a
closed executive session without a 2/3 majority vote or a roll call vote violated MCL 15.267(1),
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and that no exception exists when considering a purchase or lease of real property under MCL
15.267(1) and MCL 15.268(d). The defendant Governors, alleged plaintiff, are thus liable for
actual and exemplary damages of not more than $500 total, plus costs and attorney fees, under
MCL 15.273.
On August 2, 2019, the Court of Claims issued an opinion and order denying plaintiffs’
motion for a temporary restraining order and preliminary injunction, and granting summary
disposition in favor of defendants under MCL 2.116(I)(1), finding that plaintiffs’ OMA claim fails
as a matter of law. With respect to whether plaintiffs were entitled to injunctive relief, the Court
of Claims found:
[a]s it concerns plaintiffs’ ability to prevail on the merits, there are two issues to be
examined: (1) Whether Wilson should have been counted as a member of the Board
of Governors for purposes of establishing a quorum and, if the answer to that
question is “no,” whether any resulting decision of the Board is void for the reason
that no quorum was achieved? (2) Whether any decisions reached in the “closed
session of the June 21, 2019 meeting were reached in violation of the OMA?
First, the Court of Claims found that plaintiffs “cannot demonstrate any likelihood of
success on the merits of the OMA claim [because] [t]he OMA does not apply to meetings of
university boards. Federated Publications, Inc v Mich State Univ Bd of Trustees, 460 Mich 75,
84; 594 NW2d 491 (1999); Detroit Free Press Inc v Univ of Michigan Regents, 315 Mich App
294, 298; 889 NW2d 717 (2016). Although Const 1963, art 8, § 4 requires “[f]ormal sessions of
governing boards of such institutions” to be open to the public, the Court of Claims determined
that this requirement “is not the equivalent of, nor does it invoke the application of, the OMA.”
Citing Federated Publications, the Court of Claims explained that “ ‘[g]iven the constitutional
authority to supervise the institution generally, application of the OMA to the governing boards of
our public universities is [ ] beyond the realm of legislative authority.’ ” Federated Publications,
460 Mich at 89.
The Court of Claims further relied on Detroit Free Press, 315 Mich App at 298, in which
this Court “explained that the holding in Federated Publications defined the ‘scope of the
Legislature’s power to regulate public universities’ in general.” The Court of Claims went on to
conclude that “the scope of that power does not permit the Legislature to apply the OMA to the
boards of public universities, regardless of . . . the circumstances[,]” and that
In Detroit Free Press, the Court of Appeals recognized that “[t]he Constitution
permits defendant to hold informal meetings in private; defendant is only required
to hold its formal meetings in public.” Id. [at 298-299]. But the constitutional
requirement to hold formal meetings in public does not bring about the application
of the OMA. Id.In light of the above, plaintiffs’ OMA claim cannot serve as the basis for
injunctive relief. The OMA claim will be dismissed pursuant to MCR 2.116(I)(1)
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because an OMA claim cannot be asserted against the . . . Board as a matter of
law.[1]
The Court of Claims next addressed the likelihood of plaintiffs’ ability to succeed on the
claim arising out of the defendant Governors’ determination that President Wilson could be
counted to establish a quorum. The Court of Claims found constitutional and statutory support for
and against counting President Wilson when determining a quorum. However, the court ultimately
concluded that it
acknowledges that the plaintiffs’ case on quorum as plead is neither frivolous nor
lacking any support. If the doctrine of expressio unius est exclusion alterius is
deemed inapplicable because of the numerous instances in statute and by-laws
where the board membership and presidential duties are addressed separately there
is an ambiguity best determined on the merits[,] not preliminarily. The burden on
a plaintiff to establish the likelihood of success on the merits is not the burden of
proving the claim before the court. However, the court on the record before it does
not believe that the plaintiff’s likelihood of success for the proposition that the
1
The Court of Claims, in a footnote, noted that
Although not noted by the parties’ briefing, MCL 390.645(2), which discusses the
WSU Board of Governors and its meetings, expressly states that the “business
which the board may perform shall be conducted in compliance with Act No. 267
of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan
Compiled Laws,” i.e., the OMA. This provision of the statute, which does not
appear to have ever been the subject of challenge, is inconsistent with the
constitutional authority of the Board discussed above. In addition, the statute
appears to be in [ ] conflict with the holdings in Federated Publications and Detroit
Free Press. Indeed, the universities at issue in those cases – Michigan State
University and the University of Michigan – were subject to similar statutory
authority purporting to subject Board meetings to the OMA. See MCL 390.20
(applying the OMA to the University of Michigan Board of Regents meetings);
MCL 300.104 (applying the OMA to Michigan State University Board of Trustee
meetings). This apparent conflict between MCL 390.645(2) and the Constitution
can be resolved by recognizing the preeminence of the Constitution over conflicting
legislative enactments. See Mays v Snyder, 323 Mich App 1, 33; 916 NW2d 227
(2018). Moreover, this Court is bound by the Supreme Court’s interpretation of
nearly the same issue and same authorities in Federated Publications and Detroit
Free Press. Thus, the provision in MCL 390.645(2) purporting to subject WSU
Board of Governors meetings to the OMA cannot be enforced and does not change
the analysis of the instant issues.
We agree with the Court of Claims’ analysis recognizing the preeminence of the Constitution over
conflicting legislative enactments, and adopt it herein.
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inclusion of President Wilson in a quorum is erroneous is substantial nor the harm
of such magnitude that the rare remedy of injunctive relief should apply.
Finally, the Court of Claims determined that plaintiffs failed to establish irreparable harm, and
therefore, “[a]s a result, injunctive relief will not issue in this case.” Plaintiffs moved to file an
application for leave to appeal the Court of Claims’ order in this Court, but the application was
denied for “failure to persuade th[is] Court of the need for immediate appellate review.” See
Busuito v Barnhill, unpublished order of the Court of Appeals, entered September 11, 2019
(Docket No. 350111).
On January 30, 2020, defendants moved for summary disposition on the remaining
portions of the complaint under MCR 2.116(C)(8) and (10), MCR 2.116(I)(1), and MCR 2.605(F).
Defendants argued that the only remaining issue in this case was the issue of “whether President
Wilson, as an ex officio member of the board, is counted for a quorum.” Defendants argued that
the Court of Claims had already concluded that “plaintiffs did not have a likelihood of success on
the merits of this issue, and failed to show irreparable harm necessary for an injunction.”
Therefore, the Court of Claims should conclude that “[t]here was a quorum as a matter of Michigan
law; the events which plaintiffs seek to enjoin have already occurred, making the complaint legally
moot; and the elements for an injunction do not exist.”
In support of their position that President Wilson could be counted for purposes of
establishing a quorum, defendants noted that § 1.3 of the WSU Bylaws provide that “[a] quorum
for business shall be five members of the Board.” Similarly, MCL 390.645(2) provides that “[a]
majority of the members of the board shall form a quorum for the transaction of business.”
Defendants explained that under Const 1963, art 8, § 5, the Board is to “elect a president of the
institution under its supervision,” and that the president “shall be the principal executive officer of
the institution, be ex-officio a member of the board without the right to vote and preside at meetings
of the board.” Likewise, MCL 390.643 provides that the “president of the university shall be ex[-
]officio a member of the board without the right to vote and shall preside at meetings of the board.”
The WSU Bylaws, in § 2.2, also classify the president as an ex-officio member of the board.
Thus, defendants argued, “since President Wilson is a member of the board, the plain
language of these authorities compels the conclusion that he is counted to determine a quorum for
business.” No constitutional or statutory authority, and no provision in the WSU Bylaws, conclude
that a quorum for business shall be comprised of five voting members. Nor do they provide that
an ex-officio member of the board cannot count for quorum purposes. If the Legislature or the
university wished to limit a quorum to five voting members of the board, it could have done so.
Further, defendants argued, a quorum existed under Robert’s Rules of Order, which govern
under the WSU Bylaws. Indeed, § 4.1 of the WSU Bylaws provide that “[i]n the absence of
specific provisions to the contrary, the rules of parliamentary procedure which shall be followed
by the Board and its committees shall be the procedure prescribed in Robert’s Rules of Order.”
Under Robert’s Rules, there are two classes of ex-officio board members, and defendants argued
that because President Wilson is an employee of WSU, was elected by the Board, and has an
obligation to preside over board meetings, he qualifies as an ex-officio board member “under the
authority of” WSU. Therefore, defendants argued, there is no distinction between President
Wilson and the other elected board members when determining a quorum. Accordingly, President
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Wilson was properly considered in determining whether a quorum existed to hold the June 21,
2019 board meetings, and where all actions at such meetings required only a majority vote of the
board members in attendance, under § 1.3 of the WSU Bylaws, all “requisites were met for valid
board and executive committee meetings and valid actions were taken at such meetings.”
On January 30, 2020, plaintiffs filed a cross-motion for summary disposition under MCR
2.116(C)(10), asking the Court of Claims to enter a judgment declaring that the decisions made by
the Board during the June 21, 2019 meeting were without a quorum, and therefore null, void, and
without effect. Plaintiffs argued that the Board is a public body authorized by Const 1963, art 8,
§ 5 to have eight members, determined by the electorate. The Board is further authorized to “elect
a president of the institution” who shall be “the principal executive officer of the institution, be ex-
officio a member of the board without the right to vote and preside at meetings of the board.”
Const 1963, art 8, § 5. However, the Michigan Constitution does not then count the total number
of board members at nine, but maintains that the Board is made up of “eight members . . . elected
as provided by law.” Thus, plaintiffs argued, the Michigan Constitution is clear that the president
of the university is “not elected, and does not have any voting rights.”
Plaintiffs went on to argue that § 1.3 of the WSU Bylaws requires that five members of the
Board be present to establish a quorum for business, and although the quorum provision “does not
differentiate between elected or ex-officio members of the Board, other areas of the Bylaws clearly
differentiate between the President and the elected members of the Board.” In support of their
position, plaintiffs cited to § 2.2 of the WSU Bylaws, which provides that the Executive
Committee of the Board is comprised of all Board members then in office and the President.
Similarly, § 3.4 provides that membership of special committees is to be determined by the Board
and the President. Plaintiffs argued that the WSU Bylaws would not make a distinction between
the Board, its members, and the President “unless there was a meaningful distinction.”
Accordingly, President Wilson, an unelected, ex-officio member of the Board, should not be
counted for the purposes of establishing a quorum. With only four voting members of the Board
present at the June 21, 2019 meeting, the Board did not have a sufficient quorum to transact
business and any decisions made at that meeting are rendered null and void, according to plaintiffs.
The Court of Claims considered the cross-motions, and in an opinion and order dated
March 25, 2020, granted defendants’ motion for summary disposition pursuant to MCR
2.116(C)(10). Looking to constitutional and statutory authority, as well as the WSU Bylaws, the
Court of Claims found that President Wilson was a member of the board, in an ex-officio capacity,
who is counted for the purposes of establishing a quorum. The Court of Claims reiterated that
under MCL 390.645(2), “[a] majority of the members of the board shall form a quorum for the
transaction of business.” The Court of Claims went on to find that
[a] plain reading of MCL 390.645(2) does not exclude [President Wilson] from
being counted for purposes of establishing a quorum. Indeed, the phrase “members
of the board” is not subject to additional qualification or explanation. To that end,
the Court finds significant that the phrase “members of the board” is not expressly
limited to voting members, nor is the phrase expressly limited to only the eight
elected members of the board.
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The Court of Claims further explained that because “the Legislature did not state that the phrase
‘members of the board’ was to be limited to only voting members or that it was to exclude ex
officio members, this [c]ourt should be cautious about reading such a restriction into the statute[,]”
particularly where the Legislature has enacted other limitations. Indeed, the Court of Claims
explained, “the Legislature is aware of how to exclude ex officio members from being counted for
purposes of establishing a quorum, but it did not take those steps to expressly exclude ex officio
members in the instant statutory scheme.”
Similarly, the WSU Bylaws mirror the language found in the statutory scheme by
“declaring that the President of the University is ‘an ex officio member of the Board without vote’
who ‘shall preside at the meetings of the Board.’ ” The Court of Claims noted that while the WSU
Bylaws are silent as to who exactly makes up the five-member quorum, they also do not restrict
the members who can be counted for purposes of establishing a quorum to only voting members.
The WSU Bylaws, in § 4.1, expressly incorporate that in the “absence of specific provisions of the
contrary,” the procedure found in Robert’s Rules of Order should be followed. The Court of
Claims then relied on Robert’s Rules of Order when finding that
The only ex officio board members who should not . . . be counted for purposes of
establishing a quorum are those who have no obligation to participate in board
matters. By contrast, and by implication, ex officio board members who are under
authority and who have obligations are to be counted for purposes of establishing a
quorum. In the instant case, President Wilson possesses two attributes of the class
of ex-officio members who are deductively entitled to be counted in the quorum:
(1) he is under the authority of the Board by virtue of being hired by the Board; and
(2) he is obligated to preside at meetings.
* * *
Like the Legislature, the Board could have chosen to enact bylaws containing this
exclusion, but it did not do so. Instead, the Board adopted bylaws that expressly
incorporate authority which declares that President Wilson is to be counted for
purposes of establishing a quorum. Giving effect to the plain meaning of the bylaws
and to the authorities incorporated therein, it is apparent to the Court that President
Wilson, by virtue of his ex officio membership, is to be included for purposes of
establishing a quorum of the Board.
Thus, the Court of Claims affirmatively concluded that the President of the University can
be counted for purposes of establishing a quorum, and therefore, plaintiffs’ arguments for
invalidating the Board’s actions at the June 21, 2019 meeting are without merit, and defendants
were entitled to summary disposition in their favor, as well as dismissal of plaintiffs’ complaint.
This appeal followed.
II. STANDARD OF REVIEW
“We review a trial court’s decision concerning a preliminary injunction for an abuse of
discretion. Dep’t of Environmental Quality v Gomez, 318 Mich App 1, 32; 896 NW2d 39 (2016).
A trial court abuses its discretion when its decision falls outside the range of reasonable and
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principled outcomes. Id. at 33-34.” Sandstone Creek Solar, LLC v Township of Benton, ___ Mich
App ___, ___; ___ NW2d ___ (2021) (Dkt. No. 352910); slip op at 10.
Summary disposition is appropriate under MCR 2.116(I)(1) “[i]f the pleadings show that a
party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there
is no genuine issue of material fact.” “Under this rule, a trial court has the authority to grant
summary disposition sua sponte, as long as one of the two conditions of the rule is satisfied.” Al-
Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009). “A genuine issue of material
fact exists when the record leaves open an issue upon which reasonable minds could differ.” El-
Khalil v Oakwood Healtcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) (quotation marks
and citation omitted).
Similarly,
A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of a complaint and is reviewed de novo. Joseph v Auto Club Ins Ass’n,
491 Mich 200, 205-206; 815 NW2d 412 (2012). This Court reviews a motion
brought under MCR 2.116(C)(10) “by considering the pleadings, admissions, and
other evidence submitted by the parties in the light most favorable to the nonmoving
party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018). “The
trial court is not permitted to assess credibility, weigh the evidence, or resolve
factual disputes, and if material evidence conflicts, it is not appropriate to grant a
motion for summary disposition under MCR 2.116(C)(10).” Barnes v 21st Century
Premier Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No.
347120); slip op at 4. Summary disposition “is appropriate if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Patrick, 322 Mich App at 605.
* * *
“Only the substantively admissible evidence actually proffered may be
considered.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App at 522, 525;
773 NW2d 57 (2009) (quotation marks and citation omitted). [Ahmed v Tokio
Marine America Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket
No. 352418); slip op at 3.]
This Court reviews de novo questions of statutory interpretation. Id.III. ANALYSIS
A. AUGUST 1, 2019 OPINION AND ORDER
On appeal, plaintiffs first challenge the Court of Claims August 1, 2019 order denying their
motion for a preliminary injunction and granting summary disposition under MCR 2.116(I)(1) in
favor of defendants regarding plaintiffs’ OMA claims. With respect to the August 1, 2019 opinion
and order, plaintiffs argue that the June 21, 2019 meeting of the Board violated the OMA because
that meeting was a “formal session” where decisions were made that required public scrutiny.
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Plaintiffs maintain that a preliminary injunction should have been granted in order to prevent the
decisions made at that meeting from taking effect. We disagree.
Under MCR 3.310(A)(4), the party requesting injunctive relief bears the burden of
establishing that a preliminary injunction is warranted. This Court recently articulated:
A preliminary injunction is generally considered a form of equitable relief intended
to maintain the status quo pending a final hearing and determining the rights of the
parties, and is considered an extraordinary remedy. When determining whether to
grant the extraordinary remedy of a preliminary injunction, the trial court must
consider:
(1) whether the applicant has demonstrated that irreparable harm will occur
without the issuance of an injunction; (2) whether the applicant is likely to
prevail on the merits; (3) whether the harm to the applicant absent an
injunction outweighs the harm an injunction would cause to the adverse
party; and (4) whether the public interest will be harmed if a preliminary
injunction is issued.
A preliminary injunction should not be issued if an adequate legal remedy is
available. Economic injuries are generally not sufficient to demonstrate irreparable
injury because such injuries typically can be remedied by damages at law. In
addition, the mere apprehension of future injury or damage cannot be the basis for
injunctive relief. [Sandstone Creek Solar, LLC, ___ Mich App at __; slip op at 10-
11 (citations omitted).]
Moreover, a preliminary injunction should only issue to preserve the status quo, not to change it.
Pharm Research & Mfg of America v Dep’t of Comm Health, 254 Mich App 397, 402; 657 NW2d
162 (2002). Only after the matter has been resolved on the merits is it appropriate to alter the
status quo, being the “last actual, peaceable noncontested status which preceded the pending
controversy.” Buck v Thomas M Cooley Law Sch, 272 Mich App 93, 98 n 4; 725 NW2d 485
(2006) (citation and quotation marks omitted).
The Court of Claims found that with respect to plaintiffs’ ability to prevail on the merits of
their claims, there were two issues:
(1) Whether Wilson should have been counted as a member of the Board of
Governors for purposes of establishing a quorum, and if the answer to that question
is “no,” whether any resulting decision of the Board is void for the reason that no
quorum was achieved? (2) Whether any decisions reached in the “closed session”
of the June 21, 2019 meeting were reached in violation of the OMA?
The Court of Claims first concluded that plaintiffs did not have a likelihood of success on
the merits of their OMA claim. In Federated Publications, Inc v Board of Trustees of Michigan
State University, 460 Mich 75, 83-84; 594 NW2d 491 (1999), our Supreme Court addressed “the
question of the scope of the Legislature’s power to regulate public universities.” Our Supreme
Court concluded that Const 1963, art 8, §§ 5 and 6 confer “a unique constitutional status on our
public universities and their governing boards[,]” and that because the governing boards have the
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“constitutional authority to supervise the institution generally, application of the OMA to the
governing boards of our public universities is . . . beyond the realm of legislative authority.”
Federated Publications, 460 Mich at 84, 89, citing Const 1963, art 8, § 5.
Indeed, a public university’s board is given “exclusive authority over the management and
control of its institution[.]” Wade v Univ of Michigan, 320 Mich App 1, 16; 905 NW2d 439 (2017).
Although Const 1963, art 8, § 4 provides “[f]ormal sessions of governing boards of such
institutions shall be open to the public,” what constitutes a “formal session” is not defined by the
Michigan Constitution, and the “application of the OMA [cannot] rest on the absence of a
definition of ‘formal sessions’ in the Constitution. Unlike other provisions of the constitution, the
Legislature is not delegated the task of defining the phrase ‘formal sessions’ for purposes of Const
1963, art 8, § 4.” Federated Publications, 460 Mich at 90 (footnote omitted). See also Detroit
Free Press, Inc v Univ of Michigan Regents, 315 Mich App 294, 298-299; 880 NW2d 717 (2016),
where this Court reiterated our Supreme Court’s holding in Federated Publications, concluded
that our Supreme Court’s holding in Federated Publications broadly defined the scope of the
Legislature’s power to regulate public universities generally, and further concluded that public
universities do not have “completely unfettered discretion” because a “governing boards’
determination of what constitutes formal and informal is not wholly insulated from judicial
review.”
In the Court of Claims, and again here on appeal, plaintiffs argue that the June 21, 2019
meeting should have been considered a “formal session” that was required to be publicly held
because the decisions made during that meeting related to the transaction of university business.
Therefore, plaintiffs argue, the fact that the June 21, 2019 meeting was not publicly held
constituted a violation of the OMA. However, in light of our Supreme Court’s holding in
Federated Publications, and this Court’s conclusions in Detroit Free Press, Inc, we conclude that
the Court of Claims did not abuse its discretion by finding that plaintiffs’ OMA claim could not
serve as the basis for injunctive relief, and further finding that defendants were entitled to summary
disposition of the OMA claim because the OMA claim could not be asserted against the Board as
a matter of law.
In the August 1, 2019 opinion and order, the Court of Claims also engaged in an extensive
discussion regarding whether plaintiffs had any likelihood of success on the merits on the quorum
issue, specifically whether President Wilson could be counted to establish a quorum. The Court
of Claims found legal support for and against counting President Wilson to establish a quorum,
and ultimately concluded that plaintiffs’ “case on quorum as plead is neither frivolous nor lacking
any support[,]” and that this issue should be decided on the merits, not preliminarily. Plaintiffs do
not challenge this finding as it relates to the August 1, 2019 opinion and order, and therefore we
do not address it. Rather, we address the quorum issue infra as it relates to the Court of Claims’
March 25, 2020 opinion and order.
Finally, the Court of Claims evaluated whether plaintiffs would suffer irreparable harm if
a preliminary injunction did not issue. Michigan jurisprudence adheres to the
longstanding principle that a particularized showing of irreparable harm . . . is . . .
an indispensable requirement to obtain a preliminary injunction. The mere
apprehension of further injury or damage cannot be the basis for injunctive relief.
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Equally important is that a preliminary injunction should not issue where an
adequate legal remedy is available. [Pontiac Fire Fighters Union Local 376 v City
of Pontiac, 482 Mich 1, 9; 753 NW2d 595 (2008) (quotation marks and footnotes
omitted).]
The Court of Claims found plaintiffs’ argument, that the “public will be harmed by the Board’s
decision to operate in secret, in violation of the OMA, lacked merit because the OMA does not
apply.” Therefore, plaintiffs could not establish any harm, “let alone irreparable harm.” The Court
of Claims further found that plaintiffs had failed to demonstrate that a legal remedy was
unavailable or inadequate.
Indeed, following our review of the record, we conclude that plaintiffs failed to meet their
burden of a particularized showing of irreparable harm. Plaintiffs failed to address why, should
they succeed on the merits of their quorum claim, cancelling the sublease or issuing a tuition refund
would constitute inadequate legal remedies. Thus, we conclude that the Court of Claims did not
abuse its discretion by denying plaintiffs the requested injunctive relief.
B. MARCH 25, 2020 OPINION AND ORDER
Next, plaintiffs challenge the Court of Claims’ March 25, 2020 opinion and order granting
summary disposition in favor of defendants under MCR 2.116(C)(10). Plaintiffs argue that the
Court of Claims erred by finding President Wilson could be counted for purposes of establishing
a quorum. Plaintiffs maintain that they are entitled to a declaration that the decisions made by the
Board during the June 21, 2019 meeting were made without a quorum, and therefore are null, void,
and without effect. While we are troubled by the behavior of all parties involved, particularly as
it relates to their responsibilities to the electorate and institution that they have been elected to
manage and protect as fiduciaries, we cannot agree that declaratory relief is appropriate in this
case.
The resolution of this issue involves the interpretation of various statutory and
constitutional provisions. In examining the relevant constitutional provisions, this Court’s
objective is to “determine the text’s original meaning to the ratifiers, the people, at the time of
ratification. The primary rule is that of common understanding[,]” which requires this Court to
examine the intent of the ratifiers. Citizens Protecting Michigan’s Constitution v Secretary of
State, 503 Mich 42, 61; 921 NW2d 247 (2018) (citations and quotation marks omitted). Moreover,
[w]hen interpreting statutory language, we begin with the plan language of the
statute. Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011). “We must
give effect to the Legislature’s intent, and the best indicator of the Legislature’s
intent is the words used.” Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279
(2012). Additionally, when determining this intent we “must give effect to every
word, phrase, and clause in a statute and avoid an interpretation that renders
nugatory or surplusage any part of a statute.” Hannay v Dep’t of Transp, 497 Mich
45, 57; 860 NW2d 67 (2014) (quotation marks and citation omitted). [Jesperson v
Auto Club Ins Ass’n, 499 Mich 29, 34; 878 NW2d 799 (2016).]
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The Michigan constitution grants to the Board the power and responsibility of “general
supervision of its institution and the control and direction of all expenditures of the institution’s
funds.” Const 1963, art 8, § 5. Article 8, § 5 goes on to provide, in relevant part:
Each board shall, as often as necessary, elect a president of the institution under its
supervision. He shall be the principal executive officer of the institution, be ex-
officio a member of the board without the right to vote and preside at meetings of
the board. The board of each institution shall consist of eight members who shall
hold office for terms of eight years and who shall be elected as provided by law.
Likewise, MCL 390.641 establishes WSU as a “state institution of higher education” that is to be
“maintained by the state of Michigan[.]” Further, “[t]he conduct of its affairs and control of its
property shall be vested in a board of governors, the members of which shall constitute a body
corporate known as the ‘board of governors of Wayne state university,’ hereinafter referred to as
‘the board[.]’ ” MCL 390.643 provides that the Board is to be comprised of “8 members who shall
be nominated and elected in accordance with the election laws of this state. The president of the
university shall be ex officio a member of the board without the right to vote and shall preside at
meetings of the board.”
Neither the constitution, nor the applicable statutes, define the term “ex officio” as it relates
to President Wilson’s status as an ex officio member of the Board. This fact does not make the
term “ex officio” ambiguous, simply because it is undefined. Diallo v LaRochelle, 310 Mich App
411, 418; 871 NW2d 724 (2015). With the term “ex officio” being a legal term of art, it is therefore
appropriate for us to construe the term “in accordance with its peculiar and appropriate legal
meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008). We refrain,
however, from reading anything “into a statute that is not within the intent of the Legislature
apparent from the language of the statute itself.” Detroit Pub Schs v Conn, 308 Mich App 234,
248; 863 NW2d 373 (2014). “In other words, we must not judicially legislate by adding into a
statute provisions that the Legislature did not include.” Comerica, Inc v Dept of Treasury, 332
Mich App 155, ___; 955 NW2d 593, 600 (2020). Black’s Law Dictionary (10th ed) defines “ex
officio” as “[b]y virtue or because of an office” or “by virtue of the authority implied by office.”
See also Henry M. Robert, Robert’s Rules of Order Newly Revised, § 49, art 66 (10th ed 2000),
explaining that “[f]requently boards include ex-officio members–that is, persons who are members
of the board by virtue of an office….” On the basis of the foregoing, we conclude that President
Wilson, while not one of the eight elected board members, is a member of the Board by virtue of
his office.
The next question becomes whether as an ex officio member of the Board, President
Wilson can be counted for purposes of establishing a quorum to transact business. Looking to the
plain language of MCL 390.645(2), we answer that question in the affirmative. Indeed, MCL
390.645(2) requires that “[a] majority of the members of the board shall form a quorum for the
transaction of business.” Likewise, § 1.3 of the WSU Bylaws requires a majority or “five members
of the Board” to establish a quorum. President Wilson is a member of the Board, and MCL
390.645(2) and the WSU Bylaws do not limit a quorum to a majority of the voting or elected
members of the Board. To be clear, that President Wilson is not a voting member of the Board is
of no consequence under a plain reading of the applicable statute and the WSU Bylaws, and should
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WSU wish to limit which type of members qualify for purposes of establishing a quorum, they are
free to amend their bylaws.
Like the Court of Claims, we find persuasive that § 4.1 of the WSU Bylaws incorporate
“the procedure prescribed in Robert’s Rules of Order” “in the absence of specific provisions to the
contrary[.]” Robert’s Rules of Order does discuss ex officio board members, and provides the
following guidance:
In the executive board of a society, if the ex-officio member of the board is under
the authority of the society (that is, if he is a member, an employee, or an elected
or appointed officer of the society), there is no distinction between him and the
other board members. If the ex-officio member is not under the authority of the
society, he has all the privileges of board membership, including the right to make
motions and to vote, but none of the obligations. . . . The latter class of ex-officio
board members, who has no obligation to participate, should not be counted in
determining the number required for a quorum or whether a quorum is present at a
meeting. [Henry M. Robert, Robert’s Rules of Order Newly Revised, pp 456-457
(11th ed).]
The Court of Claims found, and we agree, that President Wilson falls into the first category of ex
officio board members because he is under the authority of the Board by virtue of being hired by
the Board, and he is constitutionally required to preside over Board meetings.
On the basis of the foregoing, we conclude that President Wilson is an ex officio member
of the WSU Board of Governors who, despite being constitutionally divested of the right to vote,
does count as a member of the board for purposes of establishing a quorum. Pertinent statutory
authority, as well as the WSU Bylaws, provide further support for our conclusion. It follows that
the June 21, 2019 meeting of the Board was conducted with a quorum present, and therefore the
actions taken by the Board during that meeting are to have full effect. Therefore, the Court of
Claims did not err by granting summary disposition in favor of defendants on this issue; plaintiffs
are not entitled to declaratory relief.2
2
We again note, however, that the conduct of the Board and President Wilson leave much to be
desired. Plaintiffs admit in their pleadings that they purposefully boycotted the June 21, 2019
meeting to avoid establishing a quorum so that the sublease and the tuition increase could not be
voted on after those items were added to the meeting agenda at the last minute. Additionally, the
Board approved a sublease of significant real estate behind closed doors. It is the nature of the
beast, so-to-speak, that board members will disagree on university business. Disagreements, or
differing viewpoints, regarding the management and control of the institution should not be an
excuse to conduct business the way the parties have in this case. The Board, and President Wilson,
as elected officials and fiduciaries of WSU, owe the institution, the students, the university alumni,
and the electorate a greater duty to maintain decorum than has been displayed.
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Affirmed.
/s/ Kathleen Jansen
/s/ Michael F. Gadola
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