Joshua Wade v. University of Michigan ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
JOSHUA WADE, FOR PUBLICATION
June 6, 2017
Plaintiff-Appellant, 9:00 a.m.
v No. 330555
Court of Claims
UNIVERSITY OF MICHIGAN, LC No. 15-000129-MZ
Defendant-Appellee.
Before: CAVANAGH, P.J., and SAWYER and SERVITTO, JJ.
CAVANAGH, P.J.
Plaintiff, Joshua Wade, appeals as of right an order granting summary disposition in
favor of defendant, University of Michigan, and dismissing plaintiff’s complaint seeking
declaratory and injunctive relief from a University ordinance which prohibits firearms on any
University property. We affirm.
In February 2001, the University revised the weapons provision, Article X, of its
“Ordinance to Regulate Parking and Traffic and to Regulate the Use and Protection of the
Buildings and Property of the Regents of the University of Michigan,” and made all properties
owned, leased or controlled by the University weapons-free. Article X, titled “Weapons,”
provides:
Section 1. Scope of Article X
Article X applies to all property owned, leased or otherwise controlled by the
Regents of the University of MIchigan [sic] and applies regardless of whether the
Individual has a concealed weapons permit or is otherwise authorized by law to
possess, discharge, or use any device referenced below.
Section 2. Possession of Firearms, Dangerous Weapons and Knives
Except as otherwise provided in Section 4, no person shall, while on any property
owned, leased, or otherwise controlled by the Regents of the University of
Michigan:
(1) possess any firearm or any other dangerous weapon as defined in or
interpreted under Michigan law or
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(2) wear on his or her person or carry in his or her clothing any knife, sword or
machete having a blade longer than four (4) inches, or, in the case of knife with a
mechanism to lock the blade in place when open, longer than three (3) inches.
Section 3. Discharge or Use of Firearms, Dangerous Weapons and Knives
Except as otherwise provided in Section 4, no person shall discharge or otherwise
use any device listed in the preceding section on any property owned, leased, or
otherwise controlled by the Regents of the University of Michigan.
Section 4. Exceptions
(1) Except to the extent regulated under Subparagraph (2), the prohibitions in this
Article X do not apply:
(a) to University employees who are authorized to possess and/or use such
a device . . . ;
(b) to non-University law enforcement officers of legally established law
enforcement agencies . . . ;
(c) when someone possess [sic] or use such a device as part of a military
or similar uniform or costume In [sic] connection with a public ceremony . . . ;
(d) when someone possesses or uses such a device in connection with a
regularly scheduled educational, recreational or training program authorized by
the University;
(e) when someone possess [sic] or uses such a device for recreational
hunting on property . . . ; or
(f) when the Director of the University’s Department of Public Safety has
waived the prohibition based on extraordinary circumstances. Any such waiver
must be in writing and must define its scope and duration.
(2) The Director of the Department of Public Safety may impose restrictions
upon individuals who are otherwise authorized to possess or use such a device
pursuant to Subsection (1) when the Director determines that such restrictions are
appropriate under the circumstances.
Section 5. Violation Penalty
A person who violates this Article X is guilty of a misdemeanor, and upon
conviction, punishable by imprisonment for not less than ten (10) days and no
more than sixty (60) days, or by a fine of not more than fifty dollars ($50.00) or
both.
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Subsequently, plaintiff sought a waiver of the prohibition as set forth in § 4(1)(f) of
Article X. After his request was denied, plaintiff filed this action. In Count I, plaintiff alleged
that the ban on firearms violates his federal and state constitutional rights to keep and bear arms
as set forth in the Second Amendment of the United States Constitution and Article 1, § 6 of the
Michigan Constitution. In Count II, plaintiff alleged that Article X is invalid because MCL
123.1102, which prohibits local units of government from establishing their own limitations on
the purchase, sale, or possession of firearms, preempts the ordinance. Plaintiff requested the
Court of Claims to declare that Article X is unconstitutional and preempted by MCL 123.1102,
and that defendant was enjoined from its enforcement.
The University responded to plaintiff’s complaint with a motion for summary disposition
under MCR 2.116(C)(8). The University argued that the Second Amendment does not reach
“sensitive places,” which includes schools like the University property.1 But even if the Second
Amendment applied, Article X did not violate it because the ordinance was substantially related
to important governmental interests, including maintaining a safe educational environment for its
students, faculty, staff, and visitors, as well as fostering an environment in which ideas—even
controversial ideas—can be freely and openly exchanged without fear of reprisal. The
University further argued that Article X did not violate the Michigan Constitution because it is a
reasonable exercise of the University’s authority under Article VIII, § 5 to control its property,
maintain safety on that property, and to cultivate a learning environment. Moreover, MCL
123.1102 did not apply to the University because it is not a “local unit of government;” rather, it
is a constitutional corporation that is coordinate and equal to that of the Legislature. Thus, the
University has the exclusive authority to manage and control its property, including the day-to-
day operations of the institution with regard to the issue of firearm possession on its property.
Accordingly, the University argued, plaintiff’s complaint failed to state a claim upon which relief
could be granted and should be dismissed.
Plaintiff responded to the University’s motion for summary disposition, arguing that
Article X violates the Second Amendment of the United States Constitution which, as explained
in District of Columbia v Heller, 554 U.S. 570, 592, 595; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008),
guarantees to individuals the right to keep and bear arms for self-defense. And, contrary to the
University’s claim, the University is not a “sensitive place” under Heller because it is “not a
school as that word is commonly understood. It is a community where people live and work, just
as any community.” Further, plaintiff argued, even if Article X is not unconstitutional, the
Michigan Legislature “has closed off the field of firearms to regulation by any other
governmental actor.” That is, the ordinance is preempted by MCL 123.1102 because the same
principles of preemption apply to the University as apply to a municipality or quasi-municipal
corporation. And the University is a “‘lower-level governmental entity’ than the state legislature
when it comes to conflicts of legislative authority.” Accordingly, plaintiff argued, the
University’s motion for summary disposition should be denied.
1
See District of Columbia v Heller, 554 U.S. 570, 626-627; 128 S. Ct. 2783; 171 L. Ed. 2d 637
(2008).
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The Court of Claims agreed with the University. First, the court held that the University
is a public educational institution—a school—and, thus, a “sensitive place” as contemplated by
the Heller Court. Regulations restricting firearms in such places are presumptively legal;
consequently, the University’s “ordinance does not fall within the scope of the right conferred by
the Second Amendment or Const 1963, Art 1, § 6.” Therefore, Count I of plaintiff’s complaint
was dismissed for failure to state a claim. Second, the court held that MCL 123.1102 plainly
applies only to a “local unit of government,” which is defined by MCL 123.1101(b) as “a city,
village, township or county.” Because the University is not a “local unit of government,” the
prohibitions set forth in MCL 123.1102 do not apply to it. However, even if the University was
considered a “local unit of government,” the court held, MCL 123.1102 specifically provides that
such governmental units may enact regulations “as otherwise provided by federal law or a law of
this state.” Because the Michigan Constitution, pursuant to Article VIII, § 5, grants the
University “general supervision of its institution,” the University had the right to promulgate
firearm regulations for the safety of its students, staff, and faculty consistent with its right to
educational autonomy and its mission to educate. Therefore, Count II of plaintiff’s complaint
was also dismissed. Accordingly, the University’s motion for summary disposition was granted.
This appeal followed.
Plaintiff argues that the Court of Claims erred when it ruled that Article X’s complete ban
of firearms on University property did not violate his Second Amendment rights.2 We disagree.
We review de novo a court’s decision on a motion for summary disposition. Kyocera
Corp v Hemlock Semiconductor, LLC, 313 Mich. App. 437, 445; 886 NW2d 445 (2015). A
motion brought under “MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings
alone to determine whether the plaintiff has stated a claim on which relief may be granted.” Id.
(quotation marks and citation omitted). A challenge to the constitutionality of a regulation
presents a question of law that this Court also reviews de novo on appeal. McDougall v Schanz,
461 Mich. 15, 23; 597 NW2d 148 (1999).
The Second Amendment of the United States Constitution provides: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” In Heller, 554 U.S. at 570, the United States Supreme Court
undertook, for the first time, an in-depth examination of the scope of Second Amendment rights,
primarily related to determining whether the amendment guaranteed individual or collective
rights. At issue was the District of Columbia’s handgun ban, which criminalized the registration
of handguns and permitted possession of such guns only upon the chief of police’s approval of a
one-year license. Id. at 574-575. The law also required that lawfully owned guns, such as
registered long-arms, be rendered inoperable while in the home. Id. at 575. In determining that
the Second Amendment guaranteed individual rights, the Heller Court focused on the original
meaning of the Second Amendment, relying on historical materials to discern how the public
2
Plaintiff’s argument on appeal focuses solely on his rights under the Second Amendment; thus,
we consider any claim premised on the Michigan Constitution abandoned. See Mitcham v
Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959).
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understood the amendment at the time of its ratification, id. at 595-600, and noting that
“[c]onstitutional rights are enshrined with the scope they were understood to have when the
people adopted them[.]” Id. at 634-635. Review of these materials led the Heller Court to
conclude that the Second Amendment codified a pre-existing right to bear arms, that the right
was not limited to the militia, and that the central component of this right was self-defense,
primarily in one’s own home. Id. at 595, 599-600.
With regard to the District of Columbia’s handgun ban, the Heller Court held that the
Second Amendment precludes the “absolute prohibition of handguns held and used for self-
defense in the home.” Id. at 636. And with regard to the District’s requirement that firearms in
the home be kept inoperable, the Heller Court stated: “This makes it impossible for citizens to
use them for the core lawful purpose of self-defense and is hence unconstitutional.” Id. at 630.
However, the Heller Court also clarified that “the right secured by the Second Amendment is not
unlimited” and that individuals may not keep and carry any weapon “whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. The Heller Court then identified a non-
exhaustive list of “presumptively lawful regulatory measures,” stating:
Although we do not undertake an exhaustive historical analysis today of the full
scope of the Second Amendment, nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms. [Id. at 626-627, and n 26.3]
In other words, the Court recognized that the scope of the right did not, historically, extend to
certain individuals or to certain places.
The United States Supreme Court considered the Second Amendment again in McDonald
v Chicago, 561 U.S. 742, 750; 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010), where it considered the
validity of a handgun ban, similar to that in Heller, in the cities of Chicago and Oak Park. The
cities argued that the ban was constitutional because the Second Amendment did not apply to the
states. Id. The McDonald Court disagreed, declaring that the Second Amendment applies to the
states by virtue of the Fourteenth Amendment. Id. at 778. The McDonald Court reiterated that
laws forbidding the carrying of firearms in sensitive places are presumptively lawful regulatory
measures. Id. at 786. Further, in analyzing whether the cities’ handgun bans were within the
scope of the Second Amendment’s protected activity, the Court again considered the historical
and traditional understanding of the Second Amendment at the time the Fourteenth Amendment
was adopted. Id. at 768-778. Thus, “McDonald confirms that if the claim concerns a state or
local law, the ‘scope’ question asks how the right was publicly understood when the Fourteenth
Amendment was proposed and ratified.” Ezell v Chicago, 651 F 3d 684, 702 (CA 7, 2011).
3
Plaintiff’s attempt to characterize this passage as dicta is unpersuasive. As defendant points
out, this language is an explanation of what the Court held and did not hold in Heller.
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The holdings in Heller and McDonald have led to the application of a two-part test with
respect to Second Amendment challenges to firearm regulations. The threshold inquiry is
whether the challenged regulation “regulates conduct that falls within the scope of the Second
Amendment right as historically understood.” People v Wilder, 307 Mich. App. 546, 556; 861
NW2d 645 (2014), quoting People v Deroche, 299 Mich. App. 301, 308-309; 829 NW2d 891
(2013) (citation omitted). If the regulated conduct has historically been outside the scope of
Second Amendment protection, the activity is not protected and no further analysis is required.
Wilder, 307 Mich. App. at 556 (citation omitted). If, however, the challenged conduct falls within
the scope of the Second Amendment, an intermediate level of constitutional scrutiny is
applicable and requires the showing of “a reasonable fit between the asserted interest or objective
and the burden placed on an individual’s Second Amendment right.” Id. at 556-557.
Here, plaintiff’s complaint alleged that Article X’s complete ban of firearms on
University property violates his Second Amendment rights. The relevant question in light of
plaintiff’s complaint and the applicable analytical framework is whether Article X regulates
conduct that was historically understood to be protected by the Second Amendment at the time
of the Fourteenth Amendment’s ratification, i.e., 1868. See Ezell, 651 F 3d at 702-703. While
the Supreme Court in Heller indicated that certain “sensitive places,” including schools, are
categorically unprotected, we must consider whether a “university” was considered a “school” in
1868.4 And it appears to have been so. That is, Webster’s 1828 Dictionary defines “university”
as:
An assemblage of colleges established in any place, with professors for
instructing students in the sciences and other branches of learning, and where
degrees are conferred. A university is properly a universal school, in which are
taught all branches of learning, or the four faculties of theology, medicine, law
and the sciences and arts. [Webster’s 1828 Dictionary online,
495 Mich. 1, 8; 846 NW2d 531 (2014).
Article VIII, Section 5 of the 1963 Constitution provides, in relevant part:
The regents of the University of Michigan and their successors in office shall
constitute a body corporate known as the Regents of the University of Michigan
. . . . [The Regents] shall have general supervision of its institution and the
control and direction of all expenditures from the institution’s funds.
The Board of Regents of the University of Michigan has a unique legal character as a
constitutional corporation possessing broad institutional powers. It has long been recognized
that the University Board of Regents “is a separate entity, independent of the State as to the
management and control of the university and its property, [while at the same time] a department
of the State government, created by the Constitution . . . .” Regents of Univ of Mich v Brooks,
224 Mich. 45, 48; 194 N.W. 602 (1923). Although the University Board of Regents have at
various times been referred to as part of the executive branch that may be affected by the
Legislature’s plenary powers, it has also been recognized that the Board is “ ‘the highest form of
juristic person known to the law, a constitutional corporation of independent authority, which,
within the scope of its functions, is co-ordinate with and equal to that of the legislature.’ ”
Federated Publications, Inc v Mich State Univ Bd of Trustees, 460 Mich. 75, 84 n 8; 594 NW2d
491 (1999), quoting Regents of Univ of Mich v Auditor General, 167 Mich. 444, 450; 132 N.W.
1037 (1911); see also Brooks, 224 Mich. at 48 (recognizing that the University is a state agency
within the executive branch of state government).
Given the unique character of the University Board of Regents and its exclusive authority
over the management and control of its institution, we generally first consider whether the
conduct being regulated is within the exclusive power of the University or whether it is properly
the province of the Legislature. As this Court held in Branum v Regents of Univ of Mich, 5 Mich
App 134; 145 NW2d 860 (1966):
[T]he Legislature can validly exercise its police power for the welfare of the
people of the State, and a constitutional corporation such as the Board of Regents
of the University of Michigan can lawfully be affected thereby. The University of
Michigan is an independent branch of the government of the State of Michigan,
but it is not an island. [Id. at 138-139.]
Thus, for example, matters involving the University’s management and control of its institution
or property are properly within the Board of Regent’s exclusive authority and the Legislature
may not interfere; its promulgated laws must yield to the University’s authority. See, e.g.,
Federated Publications, Inc, 460 Mich. at 88 (holding that Michigan’s Open Meetings Act is
inapplicable to the internal operations of the University in selecting a president because it
infringes on the University’s constitutional power to supervise the institution). Conversely,
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matters outside the confines of the University’s exclusive authority to manage and control its
property are the province of the Legislature and the University may be affected thereby. See,
e.g., Regents of Univ of Mich v Mich Employment Relations Comm, 389 Mich. 96, 108-110; 204
NW2d 218 (1973) (holding that the Michigan Public Employment Relations Act applies to the
University and does not infringe on its constitutional autonomy so long as the scope of public
employee bargaining under the Act does not infringe on the University’s autonomy in the
educational sphere); see also WT Andrew Co Inc v Mid-State Surety Corp, 450 Mich. 655, 662,
668; 545 NW2d 351 (1996) (holding that the public works bond statute applied to the University
as a valid “exercise of the Legislature’s police power to protect interests of contractors and
materialmen in the public sector” and promoted the state’s general welfare).
Plaintiff contends that Article X has nothing to do with the management or control of
university property or the promotion of the University’s objectives, but instead “pick[s] away” at
individual’s constitutional rights “as they walk down the street.” Plaintiff cites no authority in
support of this claim and his complaint makes no allegation in this regard. That is, plaintiff did
not claim that the University exceeded its constitutional authority in promulgating Article X.
Instead, plaintiff’s complaint makes a claim based on preemption pursuant to MCL 123.1102;
thus, we turn to that matter.
Chapter 123 of the Michigan Complied Laws relates to local government affairs and
“governs everything from the power of municipalities to operate a system of public recreation
and playgrounds to their authority to establish and maintain garbage systems and waste plants.”
Capital Area Dist Library (CADL) v Mich Open Carry, Inc, 298 Mich. App. 220, 230; 826 NW2d
736 (2012). Beginning in 1990, chapter 123 was amended to also govern the regulation of
firearms. Specifically, MCL 123.1102 provides:
A local unit of government shall not impose special taxation on, enact or enforce
any ordinance or regulation pertaining to, or regulate in any other manner the
ownership, registration, purchase, sale, transfer, transportation, or possession of
pistols, other firearms, or pneumatic guns, ammunition for pistols or other
firearms, or components of pistols or other firearms, except as otherwise provided
by federal law or a law of this state.
MCL 123.1101(b) defines “local unit of government” as “a city, village, township, or county.”
When a statute defines a term, that definition controls. Haynes v Neshewat, 477 Mich. 29, 35;
729 NW2d 488 (2007). Plainly, a “university,” as that term is commonly understood, is not a
city, village, township, or county. The Legislature’s intent is clearly expressed and, thus, must
be enforced as written. Koontz v Ameritech Servs, Inc, 466 Mich. 304, 312; 645 NW2d 34
(2002). Therefore, as the Court of Claims held, the statute is not applicable to the University
and, thus, does not preempt Article X.
But, plaintiff argues, the Court of Claims erred by failing to follow caselaw holding that
the Legislature fully occupied the field of firearms regulation under MCL 123.1102. For
example, plaintiff notes, in Mich Coalition for Responsible Gun Owners v City of Ferndale, 256
Mich. App. 401, 403; 662 NW2d 864 (2003), this Court considered the City of Ferndale’s
ordinance which prohibited “the possession or concealment of weapons in all buildings located
in Ferndale that are owned or controlled by the city.” This Court held that MCL 123.1102
“stripped local units of government of all authority to regulate firearms by ordinance or
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otherwise . . . except as particularly provided in other provisions of the act and unless federal or
state law provided otherwise.” Id. at 413. But clearly that case involved an ordinance of the
City of Ferndale that regulated firearms—a local governmental unit encompassed by the plain
terms of MCL 123.1101(b); it did not involve an ordinance of a constitutional corporate body
that is co-equal with the Legislature and an agency of the State.
The same analysis applies to plaintiff’s reliance on CADL, 298 Mich. App. at 220. There,
the Capital Area District Library was jointly established by the City of Lansing and Ingham
County, and its operating board enacted a weapons policy banning all weapons from the library
premises. Id. at 224-225. This Court held that “field preemption bars CADL’s regulation of
firearms.” Id. at 230. In doing so, this Court acknowledged that the library did not fit within the
definition of “local unit of government.” Id. at 231. However, because the CADL was a quasi-
municipal corporation created by two local units of government, this Court concluded that the
library is a lower-level governmental entity subject to the principles of preemption with regard to
the regulation of firearms. Id. at 231-233, 241. Plaintiff argues that the definition of “a local
unit of government” should similarly be expanded to include the University. This argument
ignores that the University was not created by two local units of government, but finds its origins
in the Constitution as a corporate body that is co-equal with the Legislature and an agency of the
State.5
Further, in Mich Gun Owners, Inc v Ann Arbor Pub Sch, ___ Mich App ___; ___ NW2d
___ (2016) (Docket No. 329632), this Court recently rejected a similar claim that MCL 123.1102
applied to the Ann Arbor Public Schools and prevented their policies banning the possession of
firearms on school property as set forth in CADL, 298 Mich. App. at 220. See id.; slip op at 1-2.
This Court noted that MCL 123.1102 only applies to a “local unit of government,” which is
defined under MCL 123.1101(b) as “a city, village, township, or county.” Id.; slip op at 5. And,
unlike the district library that was established by “two local units of government” in the CADL
case, school districts, like the Ann Arbor Public Schools, “are not formed, organized or operated
by cities, villages, townships or counties, but exist independently of those bodies.” Id.; slip op at
5-6. Likewise, the University of Michigan is not formed, organized or operated by a city,
village, township or county, but exists independently of those bodies.
5
We note and reject our dissenting colleague’s mischaracterization of the holding in CADL as
“binding precedent” that we have “ignored” in violation of MCR 7.215(J)(1). The district library
at issue in that case was considered an “inferior level of government” and a “quasi-municipal
corporation” which could only exercise powers “expressly conferred by the Legislature.” See
CADL, 298 Mich. App. at 231-233. But, as discussed in our opinion, the University is not
remotely similar to a district library created by two municipalities that specifically come within
the ambit of MCL 123.1102. Moreover, contrary to the dissent’s position, we do not consider
the University’s autonomy with regard to its regulation of dangerous weapons as tantamount to
having the “authority to enact criminal laws.” Rather, like numerous other regulations the
University enacts pursuant to its constitutional mandate of “general supervision,” the objective of
Article X is to create a safe environment for its students in furtherance of its educational mission.
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We conclude, again, that the Legislature clearly limited the reach of MCL 123.1102 to
firearm regulations enacted by cities, villages, townships, and counties. MCL 123.1101(b). The
University is not similarly situated to these entities; rather, it is a state-level, not a lower level or
inferior level, governmental entity. More specifically, it is “a constitutional corporation of
independent authority.” Federated Publications, Inc, 460 Mich. at 84 n 8. Plaintiff has failed to
cite to a single case which held that the Board of Regents of the University of Michigan is a
“lower-level governmental entity” or an “inferior level of government” subject to state law
preemption. See CADL, 298 Mich. App. at 233. Thus, contrary to plaintiff’s argument on appeal,
this case is not “an ideal target” for the preemption analysis set forth in People v Llewellyn, 401
Mich. 314; 257 NW2d 902 (1977)—that test presupposes that a “lower-level governmental
entity” has enacted or seeks to enact a regulation in an area of law that the Legislature has
regulated. See CADL, 298 Mich. App. at 233. But even if the University Board of Regents was
subject to state law preemption, in Mich Gun Owners, Inc, ___ Mich App at ___; slip op at 6-9,
this Court considered the Llewellyn factors and rejected the claim “that MCL 123.1102 impliedly
preempts any school-district-generated firearm policy because the statute fully occupies the
regulatory field.” While in that case the regulations were promulgated by a public school district
and in this case the regulations were promulgated by the University Board of Regents, the
analysis of the Llewellyn factors would be sufficiently similar to reach the same result—the
Legislature did not intend to completely preempt the field of firearm regulation.
In summary, MCL 123.1102 does not prohibit the University from regulating the
possession of firearms on University property through the enactment of Article X; thus, Count II
of plaintiff’s complaint was properly dismissed for failure to state a cognizable claim for relief.
Accordingly, the Court of Claims properly granted defendant’s motion for summary disposition
under MCR 2.116(C)(8) and dismissed plaintiff’s entire complaint.
Affirmed. In light of the public question involved, defendant may not tax costs although
the prevailing party. See MCR 7.219(A).
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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