Kenneth J Speicher v. Columbia Township Board of Trustees

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
SPEICHER v COLUMBIA TOWNSHIP BOARD OF TRUSTEES
Docket No. 148617. Argued October 8, 2014. Decided December 22, 2014.
Kenneth J. Speicher brought an action against the Columbia Township Board of Trustees
and the Columbia Township Planning Commission in the Van Buren Circuit Court, seeking
declaratory and injunctive relief on the basis of defendants’ alleged violations of the Open
Meetings Act (OMA), MCL 15.261 et seq. The trial court, Paul E. Hamre, J., granted summary
disposition in favor of defendants. Plaintiff appealed. In an unpublished opinion issued January
22, 2013, the Court of Appeals, WILDER, P.J., and O’CONNELL and K. F. KELLY, JJ., affirmed the
trial court’s denial of injunctive relief but reversed its denial of declaratory relief and remanded
the case for further proceedings, specifying that because the technical nature of the OMA
violation did not warrant injunctive relief, plaintiff was not entitled to attorney fees or costs
under MCL 15.271(4). Plaintiff moved for reconsideration. On December 19, 2013, the Court
of Appeals granted the motion, vacating that part of the opinion that had addressed attorney fees.
On reconsideration, the Court of Appeals held that under binding caselaw interpreting the OMA,
plaintiff was entitled to attorney fees and costs because he had succeeded in obtaining relief.
The Court of Appeals added that absent that caselaw, the panel would have held that attorney
fees and costs are available under MCL 15.271(4) only to plaintiffs who request and obtain
injunctive relief. 303 Mich App 475 (2013). The panel called for the convening of a special
panel under MCR 7.215(J)(3) to address the issue. The Court of Appeals declined to convene
the special panel. Defendants sought leave to appeal. The Supreme Court ordered and heard
oral argument on whether to grant the application for leave to appeal or take other peremptory
action. 496 Mich 852 (2014).
In an opinion by Justice VIVIANO, joined by Chief Justice YOUNG and Justices
MARKMAN, KELLY, ZAHRA, and MCCORMACK, the Supreme Court held:
Prior decisions of the Court of Appeals strayed from the plain language of
MCL 15.271(4). A person may not recover court costs or attorney fees under the plain language
of that statute unless he or she succeeds in obtaining injunctive relief, overruling Ridenour v
Dearborn Bd of Ed, 111 Mich App 798 (1981), and its progeny to the extent that those cases
allowed the recovery of attorney fees and costs under MCL 15.271(4) when injunctive relief was
not obtained.
1. If a public body is not complying with the OMA, and a person commences a civil
action against the public body for injunctive relief to compel compliance or to enjoin further
noncompliance with the act and succeeds in obtaining relief in the action, the person shall
recover court costs and actual attorney fees for the action. The first statutory condition—if a
public body is not complying with the act—contemplates an ongoing violation, precisely the
circumstances in which injunctive relief is appropriate. The second statutory condition—
commencement of a civil action against the public body for injunctive relief to compel
compliance or to enjoin further noncompliance with the act—requires that the person seek
injunctive relief. The third statutory condition—a requirement that a person who files an action
seeking such relief succeeds in obtaining relief in the action—cannot be separated from the
phrase that precedes it. Given that the phrase “relief in the action,” uses a definite article and
immediately follows the phrase “a person commences a civil action against the public body for
injunctive relief,” the phrase “relief in the action” must be construed as referring to injunctive
relief. The Legislature was not required to restate the modifier “injunctive” when again referring
to the noun “relief” because the modifier is implied when the statute is read as a whole. When
read in the context of the statutory scheme, MCL 15.271 limits the award of attorney fees to
cases in which the public body persists in violating the act, a suit is brought to enjoin that
behavior, and that suit is successful in obtaining injunctive relief. There is no allowance in the
statute for obtaining the equivalent of relief; the plaintiff must obtain injunctive relief, as sought
in commencing the action.
2. In this case, the trial court and the Court of Appeals agreed that plaintiff failed to show
that he was entitled to injunctive relief because there was no evidence that the commission had a
history of OMA violations, there was no evidence that this violation was willful, and there was
no evidence that the public or plaintiff was harmed. Therefore, while the Court of Appeals
concluded that plaintiff was entitled to declaratory relief for defendants’ notice violation, he was
not entitled to court costs and attorney fees because he did not succeed in obtaining injunctive
relief.
Court of Appeals opinion and order issued December 19, 2013, reversed; portion of the
Court of Appeals opinion issued January 22, 2013, concerning court costs and attorney fees
reinstated.
Justice CAVANAGH, dissenting, would have held that plaintiff was entitled to costs and
attorney fees. Shortly after the enactment of the OMA, the Court of Appeals effectively held that
declaratory relief granted in lieu of or as the functional equivalent of an injunction supports an
award of costs and attorney fees under MCL 15.271(4). The Court of Appeals has reiterated that
holding in numerous published opinions over a period of more than 30 years. Despite the clear
holdings of the Court of Appeals, the Legislature has not taken any action to signal its
disapproval of that line of cases. The Legislature’s silence is a strong indication that the Court of
Appeals properly effectuated the Legislature’s intent. The Court of Appeals’ interpretation,
moreover, was consistent with the purpose of MCL 15.271(4) in particular and the OMA more
broadly. In the context of public bodies, a judgment for declaratory relief is the functional
equivalent of an injunction in that it restrains the public body from further noncompliance with
the OMA. The majority’s interpretation, in contrast, undermines the OMA’s enforcement
provision and the purpose of the OMA generally, and will curtail the ability of private citizens to
bring OMA complaints.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED DECEMBER 22, 2014
STATE OF MICHIGAN
SUPREME COURT
KENNETH J. SPEICHER,
Plaintiff-Appellee,
v No. 148617
COLUMBIA TOWNSHIP BOARD OF
TRUSTEES and COLUMBIA TOWNSHIP
PLANNING COMMISSION,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
In this Open Meetings Act (OMA)1 case, defendants Columbia Township Board of
Trustees and Columbia Township Planning Commission appeal the Court of Appeals’
decision holding that plaintiff Kenneth Speicher was entitled to an award of court costs
and actual attorney fees based on his entitlement to declaratory relief under the OMA.
The Court of Appeals reached this decision only because it was compelled to do so by
1
MCL 15.261 et seq.
Court of Appeals precedent.2 If not for this binding precedent, the Court of Appeals
would have denied plaintiff’s request for court costs and actual attorney fees on the
ground that the plain language of MCL 15.271(4) does not permit such an award unless
the plaintiff obtains injunctive relief. We agree with the Court of Appeals that prior
decisions of that court have strayed from the plain language of MCL 15.271(4).
Therefore, we reverse the Court of Appeals opinion and order issued December 19, 2013,
and reinstate the portion of its January 22, 2013 decision regarding court costs and actual
attorney fees.
I. FACTS AND PROCEDURAL HISTORY
In early 2010, the Columbia Township Board of Trustees (the Board) adopted a
resolution that fixed the regular monthly meetings of the Board and the Columbia
Township Planning Commission (the Planning Commission) for the year 2010-2011.
However, during the regularly scheduled October 18, 2010 meeting, the Planning
Commission adopted another resolution that it would conduct quarterly, rather than
monthly, meetings beginning January 2011. According to the Township Clerk, after the
Planning Commission adopted the new schedule, she contacted a local newspaper, the
South Haven Tribune, and requested publication of the new meeting schedule. She stated
that she also posted a revised meeting schedule at the Township Hall entrance with the
February and March 2011 meetings whited out.
2
MCR 7.215(J).
2
Plaintiff is a property owner in the township. According to plaintiff, he had no
notice of the new quarterly meeting schedule, and he appeared for the meetings in
February and March 2011, seeking to raise a number of issues before the Planning
Commission. Plaintiff claimed that the posted schedule did not reflect the change to
quarterly meetings and no notices appeared in the South Haven Tribune prior to those
previously scheduled meetings.
Plaintiff sued defendants, alleging that the decision to change the schedule was not
made at an open meeting3 and that the February and March meetings were canceled
without proper notice in violation of the OMA.4 Plaintiff alleged that, as a result of the
meetings not being held, his right to present certain concerns to the Planning Commission
was impaired.5 Plaintiff sought a declaration that the Planning Commission’s decision to
3
MCL 15.263(2) requires that “[a]ll decisions of a public body shall be made at a
meeting open to the public.”
4
MCL 15.265(3) requires that public notice of changes to regularly scheduled meetings
be “posted within 3 days after the meeting at which the change is made[.]”
5
This allegation appears to refer to MCL 15.270(2), which provides as follows:
A decision made by a public body may be invalidated if the public
body has not complied with the requirements of section 3
[MCL 15.263](1), (2), and (3) in making the decision or if failure to give
notice in accordance with section 5 [MCL 15.265] 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.
However, plaintiff has specifically disclaimed that he sought to invalidate defendants’
decision under that provision, stating that “[t]he damage had been done and invalidation
under MCL 15.270 was simply not available.”
3
cancel the regularly scheduled meetings was made in violation of the OMA, and he
sought to enjoin the Planning Commission and the Board from further noncompliance
with the OMA.6 Plaintiff also cited MCL 15.271(4) and alleged that “if this Court grants
relief as a result of this complaint, [plaintiff] shall recover court costs and actual attorney
fees for this action.”
Finding that defendants’ conduct was not actionable, the trial court denied
plaintiff’s motion for summary disposition and granted summary disposition to
defendants. The trial court also denied plaintiff’s motion for reconsideration. The trial
court ruled that defendants did not violate the OMA because plaintiff was not denied
access to any meetings. To the extent that notice may not have been timely posted, this
was a technical violation not entitling plaintiff to relief. The trial court acknowledged
that the notice cancelling the February and March Planning Commission meetings “may
not have been done in strict compliance with” the OMA, but the court concluded that any
violations were “technical in nature, and did not impair the rights of the public in having
their governmental bodies make decisions in an open meeting.” Plaintiff had, at most,
been inconvenienced by the failure to post timely notice of the meeting changes given
that “[p]laintiff had the option of bringing his concerns to the Planning Commission at its
next regularly scheduled meeting.”
6
Plaintiff clarified in a later pleading that his claim for injunctive relief was premised on
the Board’s prior violation of the OMA during the selection of a new township fire chief.
See Speicher v Columbia Twp Bd of Trustees, unpublished opinion per curiam of the
Court of Appeals, issued February 25, 2014 (Docket No. 313158).
4
Plaintiff appealed in the Court of Appeals, which affirmed in part and reversed in
part in an unpublished opinion.7 The Court of Appeals concluded that while the meeting
schedule change was properly made at an open meeting, defendants plainly violated the
OMA by not timely posting the modified schedule. It therefore held that the trial court
erred by failing to grant declaratory relief to plaintiff on that point. However, the Court
of Appeals also held that the trial court properly denied injunctive relief for defendants’
technical notice violation because “there was no evidence that the Commission had a
history of OMA violations, there was no evidence that this violation was done willfully,”
and there was no evidence that the public or plaintiff was harmed in any manner.8 The
Court of Appeals therefore ruled that “given that the technical nature of this OMA
violation resulted in no injunctive relief being warranted, plaintiff is not entitled to any
attorney fees or costs under MCL 15.271(4) on remand.”9
Plaintiff moved for reconsideration, arguing that because the Court of Appeals had
held that he was entitled to declaratory relief under the OMA, he was entitled to an award
of court costs and actual attorney fees under MCL 15.271(4). The Court of Appeals
granted reconsideration and vacated the portion of its unpublished opinion regarding
attorney fees.10 In a published opinion, the Court of Appeals then held that plaintiff was
7
Speicher v Columbia Twp Bd of Trustees, unpublished opinion per curiam of the Court
of Appeals, issued January 22, 2013 (Docket No. 306684).
8
Id. at 2. The Court of Appeals pointed out that plaintiff was able to present his concerns
to the Commission at the December 2010, January 2011, and April 2011 meetings.
9
Id.
10
Speicher v Columbia Twp Bd of Trustees, unpublished order of the Court of Appeals,
entered December 19, 2013 (Docket No. 306684).
5
entitled to court costs and actual attorney fees under existing case law because he
established entitlement to declaratory relief.11 However, the Court of Appeals reached
this conclusion only because it was bound by court rule to follow prior published Court
of Appeals decisions.12 The Court explained that the rule that court costs and actual
attorney fees were available whenever a plaintiff files a lawsuit seeking injunctive relief
under MCL 15.271 and obtains some form of relief had developed from the
misapplication of a prior Court of Appeals decision issued in 1981, Ridenour v Dearborn
Bd of Ed.13 However, the Court determined that this rule was unsupported by the plain
language of MCL 15.271(4) and that the cases that developed this rule often did not
provide any substantive analysis.14 Were the Court of Appeals free to decide the issue as
11
Speicher v Columbia Twp Bd of Trustees, 303 Mich App 475, 476-477; 843 NW2d 770
(2013). We note that the Court of Appeals also stated that “plaintiff did not request
attorney fees at the trial court or in his claim of appeal.” Id. at 477. But our review of the
record proves that statement to be inaccurate. Plaintiff initiated his request for attorney
fees in his complaint and reiterated that request in briefing on his motion for summary
disposition and claim of appeal. Thus, this issue is preserved.
12
Id. at 476-477, citing MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow
the rule of law established by a prior published decision of the Court of Appeals issued
on or after November 1, 1990, that has not been reversed or modified by the Supreme
Court, or by a special panel of the Court of Appeals as provided in this rule.”).
13
Speicher, 303 Mich App at 482, citing Ridenour v Dearborn Bd of Ed, 111 Mich App
798; 314 NW2d 760 (1981). In Ridenour, the trial court did not find it necessary to grant
injunctive relief because of the defense attorney’s promise that the defendant would abide
by the court’s ruling. Ridenour, 111 Mich App at 801. The trial court nevertheless
awarded the plaintiff court costs and actual attorney fees because he obtained “the
equivalent of an injunction,” and the Court of Appeals affirmed. Id. at 801, 806.
14
See Craig v Detroit Pub Schs Chief Executive Officer, 265 Mich App 572; 697 NW2d
529 (2005); Herald Co, Inc v Tax Tribunal, 258 Mich App 78; 669 NW2d 862 (2003);
Morrison v East Lansing, 255 Mich App 505; 660 NW2d 395 (2003); Kitchen v Ferndale
City Council, 253 Mich App 115, 127; 654 NW2d 918 (2002); Nicholas v Meridian
6
it deemed appropriate, it would have denied attorney fees and costs under MCL
15.271(4) because the statute permits such an award only when a plaintiff prevails on a
request for injunctive relief, which did not occur in this case.15
Defendants sought review in this Court, asserting that the Court of Appeals erred
by awarding plaintiff court costs and actual attorney fees but correctly reasoned that such
costs and fees were improper because plaintiff did not obtain injunctive relief as required
by MCL 15.271(4). Plaintiff responded, contending that MCL 15.271(4) expressly
requires an award of court costs and actual attorney fees when a plaintiff obtains any
relief, not just injunctive relief. In lieu of granting leave, we ordered oral argument on
the application, directing the parties to address
whether MCL 15.271(4) authorizes an award of attorney fees and costs to a
plaintiff who obtains declaratory relief regarding claimed violations of the
Open Meetings Act (MCL 15.261 et seq.), or whether the plaintiff must
obtain injunctive relief as a necessary condition of recovering attorney fees
and costs under MCL 15.271(4).[16]
Charter Twp Bd, 239 Mich App 525; 609 NW2d 574 (2000); Manning v East Tawas, 234
Mich App 244; 593 NW2d 649 (1999); Schmiedicke v Clare Sch Bd, 228 Mich App 259,
266-267; 577 NW2d 706 (1998); Menominee Co Taxpayers Alliance, Inc v Menominee
Co Clerk, 139 Mich App 814, 820; 362 NW2d 871 (1984).
15
Speicher, 303 Mich App at 479. The Court of Appeals called for a special panel to
resolve the conflict, see MCR 7.215(J)(3), but the Chief Judge of the Court of Appeals
subsequently ordered that a special panel not be convened.
16
Speicher v Columbia Twp Bd of Trustees, 496 Mich 852 (2014).
7
II. STANDARD OF REVIEW
Issues of statutory interpretation are reviewed de novo.17 In interpreting a statute,
we consider “both the plain meaning of the critical word or phrase as well as its
placement and purpose in the statutory scheme.”18 As with any statutory interpretation,
our goal is to give effect to the intent of the Legislature by focusing on the statute’s plain
language.19
III. ANALYSIS
At issue in this case is the proper interpretation of the phrase “succeeds in
obtaining relief in the action” in MCL 15.271(4). This Court has not yet addressed
whether that phrase refers to injunctive relief, as defendants contend and the Court of
Appeals panel would have held, or to any relief, as plaintiff contends and the Ridenour
line of cases have held.20 Unlike the Court of Appeals below, we are not bound by the
prior Court of Appeals decisions. Therefore, we are able to independently assess the
relevant statutory language to determine whether the Court of Appeals has properly
interpreted MCL 15.271(4). For the reasons stated below, we agree with defendants and
17
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139
(2003).
18
Estate of Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004)
(quotation marks and citations omitted).
19
Malpass v Dep’t of Treasury, 494 Mich 237, 247-248; 833 NW2d 272 (2013).
20
In Omdahl v West Iron Co Bd of Ed, 478 Mich 423; 733 NW2d 380 (2007), this Court
addressed the language of MCL 15.271(4), but the plaintiff there sought and obtained
injunctive relief, and the issue was limited to whether a pro se litigant, who is also an
attorney, may recover court costs and actual attorney fees.
8
the Court of Appeals panel that court costs and actual attorney fees under MCL 15.271
may only be awarded when a plaintiff seeks and obtains injunctive relief.
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.21 The OMA also requires public bodies to give notice of their regular
meetings and changes in their meeting schedule in the manner prescribed by the act.22 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.23 The OMA creates a three-
tiered enforcement scheme for private litigants:
(1) Section 10 of the OMA allows a person to file a civil suit “to challenge the
validity of a decision of a public body made in violation of this act.”24 Subsection (2)
specifies when a decision may be invalidated, and Subsection (5) allows a public body to
cure the alleged defect by reenacting a disputed decision in conformity with the OMA.
Notably, § 10 does not provide for an award of attorney fees or costs.
(2) If a public body is not complying with the OMA, § 11 allows a person to
file a civil suit “to compel compliance or to enjoin further noncompliance with this act.”25
21
MCL 15.263.
22
MCL 15.265.
23
MCL 15.270; MCL 15.271; MCL 15.273.
24
MCL 15.270(1).
25
MCL 15.271(1).
9
Subsection (4) provides for an award of court costs and actual attorney fees when three
conditions are met: (a) a public body is not complying with the act; (b) a person files “a
civil action against the public body for injunctive relief to compel compliance or enjoin
further noncompliance with the act”; and (c) the person “succeeds in obtaining relief in
the action[.]”26 The meaning of this latter phrase is the crux of this case.
(3) Finally, § 13 provides that a public official who intentionally violates the
OMA is “personally liable in a civil action for actual or exemplary damages of not more
than $500.00 total, plus court costs and actual attorney fees . . . .”27
As an initial matter, “these sections, and the distinct kinds of relief that they
provide, stand alone.”28 This is an important point because “[t]o determine whether a
plaintiff may bring a cause of action for a specific remedy, this Court must determine
whether [the Legislature] intended to create such a cause of action.”29 When a statute,
like the OMA, “gives new rights and prescribes new remedies, such remedies must be
strictly pursued; and a party seeking a remedy under the act is confined to the remedy
conferred thereby and to that only.”30
26
MCL 15.271(4).
27
MCL 15.273.
28
Leemreis v Sherman Twp, 273 Mich App 691, 701; 731 NW2d 787 (2007).
29
South Haven v Van Buren Co Bd of Comm’rs, 478 Mich 518, 528-529; 734 NW2d 533
(2007) (quotation marks and citation omitted).
30
Id. at 529 (quotation marks and citations omitted).
10
Plaintiff does not seek to invalidate any action by defendants or make a claim for
personal liability against a public official. Therefore, we must train our focus on § 11 of
the OMA to determine if it provides an adequate basis for the Court of Appeals’ award of
court costs and actual attorney fees in this case.31 MCL 15.271 provides as follows:
(1) If a public body is not complying with this act, the attorney
general, prosecuting attorney of the county in which the public body serves,
or a person may commence a civil action to compel compliance or to enjoin
further noncompliance with this act.
(2) An action for injunctive relief against a local public body shall be
commenced in the circuit court, and venue is proper in any county in which
the public body serves. An action for an injunction against a state public
body shall be commenced in the circuit court and venue is proper in any
county in which the public body has its principal office, or in Ingham
county. If a person commences an action for injunctive relief, that person
shall not be required to post security as a condition for obtaining a
preliminary injunction or a temporary restraining order.
(3) An action for mandamus against a public body under this act
shall be commenced in the court of appeals.
(4) If a public body is not complying with this act, and a person
commences a civil action against the public body for injunctive relief to
compel compliance or to enjoin further noncompliance with the act and
31
The Court of Appeals failed to identify the source of its authority to grant plaintiff
declaratory relief in this case. The OMA does not provide for such relief. Nor is it clear
that plaintiff was entitled to declaratory relief under MCR 2.605, the court rule governing
declaratory judgments. See South Haven, 478 Mich at 533-534 (stating that a party does
not have standing to bring a declaratory judgment claim where there is no actual
controversy); id. at 528 (“It is well settled that when a statute provides a remedy, a court
should enforce the legislative remedy rather than one the court prefers.”) (quotation
marks and citation omitted). In any event, since no party raised the issue, we will assume
without deciding that plaintiff was entitled to declaratory relief on its claim that
defendants violated the act by not timely posting the Planning Commission’s modified
meeting schedule, as required by MCL 15.265(3).
11
succeeds in obtaining relief in the action, the person shall recover court
costs and actual attorney fees for the action.
At the outset, we acknowledge that, in isolation, the phrase “relief in the action” in
MCL 15.271(4) could potentially refer to more than one type of relief because “it is well
established that ‘we may not read into the statute what is not within the Legislature’s
intent as derived from the language of a statute.’ ”32 However, “it is equally well
established that to discern the Legislature’s intent, statutory provisions are not to be read
in isolation; rather, context matters, and thus statutory provisions are to be read as a
whole.”33 An attempt to segregate any portion or exclude any portion of a statute from
consideration is almost certain to distort legislative intent.34 Therefore, plaintiff’s
strained reading of an excerpt of one sentence must yield to context. If, when reading the
statute as a whole, it is apparent that “relief in the action” refers to injunctive relief, we
should not circumscribe our analysis to one clause of the sentence.
Looking to the plain language of MCL 15.271(4), we believe it is clear that the
Legislature only intended for a person to recover court costs and actual attorney fees if
the person succeeds in obtaining injunctive relief.35 The first statutory condition, “[i]f a
32
Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010) (citation omitted).
33
Id.34
Id. at 16, citing 2A Singer & Singer, Statutes & Statutory Construction (7th ed), § 47.2,
p 282.
35
As noted above, Subsection (4) provides for an award of court costs and actual attorney
fees when three conditions are met: (1) “a public body is not complying with the act”;
(2) a person files “a civil action against the public body for injunctive relief to compel
compliance or enjoin further noncompliance with the act”; and (3) the person “succeeds
in obtaining relief in the action.” MCL 15.271(4).
12
public body is not complying with this act,” contemplates an ongoing violation, precisely
the circumstances in which injunctive relief is appropriate. The second condition, i.e.,
commencement of “a civil action against the public body for injunctive relief to compel
compliance or enjoin further noncompliance with the act,” directly refers to and
obviously requires that a party seek injunctive relief. And the third condition, i.e., a
requirement that a party who files an action seeking such relief “succeeds in obtaining
relief in the action,” cannot be divorced from the phrases that precede it.36
Plaintiff makes much of the fact that, in this latter phrase, the Legislature did not
specifically modify the word “relief” with the word “injunctive,” and argues that this
means that any relief obtained for a violation of the OMA mandates an award of attorney
fees and costs. However, by its plain language, MCL 15.271(4) requires that the plaintiff
succeed “in obtaining relief in the action.” We find it significant that the phrase “relief in
the action” employs the definite article, “the.”37 Use of that word, which we read as
having a “specifying or particularizing effect,”38 indicates a legislative intent to refer to
an action seeking injunctive relief and subsequently obtaining such relief. That is, given
that the relevant phrase, “relief in the action,” immediately follows the phrase “a person
commences a civil action against the public body for injunctive relief,” the phrase “relief
36
See Sanchick v State Bd of Optometry, 342 Mich 555, 559; 70 NW2d 757 (1955)
(“[W]ords and clauses will not be divorced from those which precede and those which
follow.”).
37
See Robinson, 486 Mich at 14, citing Detroit v Tygard, 381 Mich 271, 275; 161 NW2d
1 (1968) (“We regard the use of the definite article ‘the’ as significant.”).
38
Random House Webster’s College Dictionary (2001).
13
in the action” must also be construed as referring to injunctive relief. Obtaining relief
other than injunctive relief merely because, or as result, of the action is insufficient to
meet the requirement of the statute.39
Moreover, even though the Legislature did not modify the word “relief” with the
word “injunctive” in the particular phrase at issue, use of the word “injunctive” when
again referring to “relief” was unnecessary. This Court was faced with an almost
identical problem in Robinson v City of Lansing: the Legislature modified a noun, but
omitted the modifier from its subsequent use of the noun.40 The defendant City argued
that the Legislature’s failure to qualify “highway” as a “county highway” in
MCL 691.1402a(2) meant that the 2-inch rule applied to all improved portions of
highways designed for vehicular travel.41 Plaintiff, on the other hand, asserted that the
39
See Felice v Cheboygan Co Zoning Comm, 103 Mich App 742, 746; 304 NW2d 1
(1981) (“Some meaning must be attributed to the phrase ‘relief in the action.’ The
Legislature did not use the phrase ‘because of the action,’ nor did they simply require that
a party be successful in obtaining ‘relief.’ In choosing the words ‘in the action,’ the
Legislature intended to restrict the circumstances under which a plaintiff would be
entitled to costs and actual attorney fees.”).
40
Robinson, 486 Mich at 10-11, citing MCL 691.1402a.
41
Robinson, 486 Mich at 13. The version of MCL 691.1402a in effect at the time
provided, in pertinent part, as follows:
(1) Except as otherwise provided by this section, a municipal
corporation has no duty to repair or maintain, and is not liable for injuries
arising from, a portion of a county highway outside of the improved portion
of the highway designed for vehicular travel, including a sidewalk, trailway,
crosswalk, or other installation. This subsection does not prevent or limit a
municipal corporation’s liability if both of the following are true:
(a) At least 30 days before the occurrence of the relevant injury,
death, or damage, the municipal corporation knew or, in the exercise of
14
“highway” in Subsection (2) must be a “county highway” as framed by Subsection (1)
(meaning it did not apply to the state highway where she was injured).42 This Court sided
with the plaintiff, stating that “a reasonable person reading this statute would understand
that all three subsections of this provision apply only to county highways.”43
The same analysis applies here. Subsection (4) specifically refers to and is limited
to injunctive relief by use of the word “injunctive” in the preceding phrase, “a civil action
against the public body for injunctive relief[.]” Because the word “relief” appears twice
in the same sentence, only a strained reading of a portion of that sentence prevents the
obvious conclusion that the second mention of “relief” is in direct reference to the first.
The Legislature was not required to restate the modifier, “injunctive,” when again
referring to the noun, “relief,” as the modifier was already sufficiently incorporated into
the statute and, when read in context, was implied when the Legislature subsequently
reasonable diligence, should have known of the existence of a defect in a
sidewalk, trailway, crosswalk, or other installation outside of the improved
portion of the highway designed for vehicular travel.
(b) The defect described in subdivision (a) is a proximate cause of
the injury, death, or damage.
(2) A discontinuity defect of less than 2 inches creates a rebuttable
inference that the municipal corporation maintained the sidewalk, trailway,
crosswalk, or other installation outside of the improved portion of the
highway designed for vehicular travel in reasonable repair [i.e., the “2-inch
rule”]. [Emphasis added.]
42
Robinson, 486 Mich at 13.
43
Id. at 16; see also McCahan v Brennan, 492 Mich 730, 739; 822 NW2d 747 (2012)
(“When undertaking statutory interpretation, the provisions of a statute should be read
reasonably and in context.”).
15
used the word “relief.”44 A reasonable reader of MCL 15.271(4) would understand that
when a plaintiff “commences a civil action . . . for injunctive relief,” the plaintiff is
required to “succeed[] in obtaining [injunctive] relief in the action” to be entitled to court
costs and actual attorney fees.
Our conclusion is reinforced by viewing MCL 15.271 as a whole. The statute
allows a person to seek injunctive relief to compel compliance or to enjoin further
noncompliance with the OMA.45 The statute then provides the proper venue in which to
commence an action for injunctive relief.46 And finally, the statute allows for a person to
recover court costs and actual attorney fees for an action against the public body for
injunctive relief if a person “succeeds in obtaining relief in the action.”47 Thus, as a
whole, MCL 15.271 only speaks in terms of an injunctive relief and contemplates no
other form of relief.48
44
See Robinson, 486 Mich at 16-17 (“[W]e do not believe that the Legislature is under an
obligation to cumbersomely repeat language that is sufficiently incorporated into a
statute . . . .”); Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 533; 697 NW2d
895 (2005) (“ ‘[T]he meaning of statutory language, plain or not, depends on context.’ ”)
(citation omitted).
45
MCL 15.271(1) and (4).
46
MCL 15.271(2).
47
MCL 15.271(4).
48
We note that MCL 15.271(3) discusses an “action for mandamus” instead of an “action
for injunctive relief” like MCL 15.271(1), (2), and (4). However, mandamus operates
like an injunction, as mandamus “may issue to compel a body or an officer to perform a
clear legal duty for one holding a clear legal right to such performance.” Detroit v
Detroit Police Officers Ass’n, 174 Mich App 388, 392; 435 NW2d 799 (1989) (emphasis
added).
16
Plaintiff’s interpretation of the statute does not comport with the statutory scheme.
According to plaintiff’s theory, a party can satisfy the second condition of the statute
simply by requesting injunctive relief—regardless of whether such claim has any legal
merit. And, according to plaintiff, as long as a party receives any type of relief, the party
has satisfied the third condition of the statute—regardless of whether the relief arises
from another section of the OMA or has a separate legal basis altogether. We cannot
conclude that this is what the Legislature intended simply by omitting an implied
modifier. Rather, a party seeking a remedy under the OMA is confined to the remedy
provided under the applicable section of the act—here, MCL 15.271.49 A party cannot
simply assert a meritless claim for injunctive relief under MCL 15.271 in the hope that
one of its other claims will yield some fruit, and then bootstrap its claim for court costs
and actual attorney fees on the other relief provided.
In sum, when considering both the plain meaning of the critical phrase in context
as well as its placement and purpose in the statutory scheme, MCL 15.271 limits the
award of attorney fees to cases in which the public body persists in violating the act, a
suit is brought to enjoin such behavior, and that suit is successful in obtaining injunctive
relief. Accordingly, we conclude that the phrase “succeeds in obtaining relief in the
action” necessarily mandates that the plaintiff succeed in obtaining injunctive relief, not
just any relief, in order to be entitled to court costs and actual attorney fees under
MCL 15.271(4).
49
See South Haven, 478 Mich at 529.
17
In so holding, we acknowledge the line of contrary holdings of the Court of
Appeals. But, for the reasons explained above, the Ridenour court and the cases that
followed it impermissibly strayed from the plain language of MCL 15.271(4).50 There is
no allowance in the statute for obtaining the equivalent of relief—rather the plaintiff must
obtain injunctive relief, as sought in commencing the action.51 The Court of Appeals has
unfortunately perpetuated this error in numerous cases since Ridenour.52 Because these
decisions have incorrectly extended the entitlement to court costs and actual attorney fees
beyond the scope articulated by the Legislature, we overrule Ridenour and its progeny to
the extent that those cases allow for the recovery of attorney fees and costs under
MCL 15.271(4) when injunctive relief was not obtained, equivalent or otherwise.
IV. APPLICATION
Plaintiff commenced a civil action against the Board and Planning Commission
that sought to enjoin the Planning Commission and the Board from further
noncompliance with the OMA under MCL 15.271. However, both the trial court and the
Court of Appeals agreed that plaintiff failed to sustain his burden to show that he was
50
As the dissent acknowledges, this Court does not favor legislative acquiescence as a
proper interpretive tool to construe statutes. See McCahan v Brennan, 492 Mich 730,
749-750; 822 NW2d 747 (2012) (“[S]ound principles of statutory construction require
that Michigan courts determine the Legislature’s intent from its words, not from its
silence.”) (quotation marks and citation omitted).
51
To the extent the dissent invokes the federal presumption that a declaratory judgment is
the functional equivalent of an injunction, that presumption has not been adopted in this
state, nor would it apply in this context given that the Legislature has explicitly provided
injunctive relief as an available remedy under the OMA. MCL 15.271.
52
See footnote 14 of this opinion.
18
entitled to an injunction. As the Court of Appeals explained in its January 2013 opinion,
“there was no evidence that the Commission had a history of OMA violations,[53] there
was no evidence that this violation was done willfully,” and there was no evidence that
the public or plaintiff was harmed in any manner.54 Although the Court of Appeals
concluded that plaintiff was nevertheless entitled to declaratory relief for defendants’
notice violation, he is not entitled to receive court costs and actual attorney fees because
he did not succeed in obtaining injunctive relief in the action, as MCL 15.271(4) requires.
V. CONCLUSION
We hold that a person cannot recover court costs and actual attorney fees under
MCL 15.271(4) unless he or she succeeds in obtaining injunctive relief in the action.
Accordingly, we reverse the Court of Appeals opinion and order issued December 19,
2013, and reinstate the portion of the Court of Appeals decision issued January 22, 2013,
regarding court costs and actual attorney fees.
David F. Viviano
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
53
To the extent that plaintiff claimed that defendants’ other OMA violations warranted
injunctive relief in this case, the lower courts properly disregarded that claim, as those
other OMA violations were unrelated to the alleged notice violation in this case.
See Wilkins v Gagliardi, 219 Mich App 260, 276; 556 NW2d 171 (1996) (affirming
denial of injunction when there had been no similar incidents since the incident
complained of and the membership of the committee involved was different).
54
Speicher, unpub op at 2. See Wilkins, 219 Mich App at 276 (“Injunctive relief should
be granted only when justice requires it, there is no adequate remedy at law, and there
exists a real and imminent danger of irreparable harm.”).
19
STATE OF MICHIGAN
SUPREME COURT
KENNETH J. SPEICHER,
Plaintiff-Appellee,
v No. 148617
COLUMBIA TOWNSHIP BOARD OF
TRUSTEES and COLUMBIA TOWNSHIP
PLANNING COMMISSION,
Defendants-Appellants.
CAVANAGH, J. (dissenting).
Shortly after the enactment of the Open Meetings Act (OMA), MCL 15.261 et
seq., the Court of Appeals effectively held that declaratory relief granted in lieu of or as
the functional equivalent of an injunction supports an award of costs and actual attorney
fees under MCL 15.271(4). See Ridenour v Dearborn Bd of Ed, 111 Mich App 798; 314
NW2d 760 (1981). Over the past 33 years, the Court of Appeals has reiterated that
holding in numerous published opinions, solidifying the role of declaratory relief as it
relates to costs and attorney fees under MCL 15.271(4). Despite this long line of
precedent, at no time has the Legislature taken steps to amend MCL 15.271(4) in
response. Because I believe that these cases properly interpreted and effectuated the
Legislature’s intent, I respectfully dissent.
In 1968, the Legislature enacted an open meetings law to consolidate a
“patchwork of statutes” that required accountability and openness in governmental
affairs. Booth v Univ of Mich Bd of Regents, 444 Mich 211, 221; 507 NW 2d 422 (1993).
By rendering the decision-making process of most public bodies open and accessible to
the public, the 1968 statute was intended to act as “ ‘an important check and balance on
self-government.’ ” Id. at 223, quoting Osmon, Sunshine or Shadows: One State’s
Decision, 1977 Det C L Rev 613, 617. Specifically, by addressing a longstanding
concern regarding the public’s access to governmental decision-making,1 the statute’s
aim was to “ ‘serve as both a light and disinfectant in exposing potential abuse and
misuse of power.’ ” Booth, 444 Mich at 223, quoting Sunshine or Shadows, 1977 Det C
L Rev at 617. Although the goals of the 1968 statute were laudable, the statute was
flawed: “because the 1968 statute failed to impose an enforcement mechanism and
penalties to deter noncompliance, nothing prevented the wholesale evasion of the act’s
provisions” by public bodies, and the law was often ignored. Booth, 444 Mich at 221.
See, also, Sunshine or Shadows, 1977 Det C L Rev at 619. To remedy this, the statute
was “comprehensively revise[d]” in 1976 to provide for enforcement by way of several
mechanisms, including actions by private citizens to vindicate, not primarily personal
rights, but the rights of the public at large. Booth, 444 Mich at 222. One such
enforcement provision is MCL 15.271(4), which provides that a successful party is
entitled to court costs and actual attorney fees. Specifically, MCL 15.271(4) states:
If a public body is not complying with this act, and a person commences a
civil action against the public body for injunctive relief to compel
compliance or to enjoin further noncompliance with the act and succeeds in
1
See Sunshine or Shadows, 1977 Det C L Rev at 617 (“Concern for public access to
governmental decision-making is not new. . . . [T]he importance of government being
open and accessible was established very early in this country.”).
2
obtaining relief in the action, the person shall recover court costs and actual
attorney fees for the action.
At issue in this case is whether the statutory phrase “succeeds in obtaining relief in
the action” encompasses more than formal injunctive relief. Stated another way, at issue
is whether the Court of Appeals has correctly effectuated the Legislature’s intent by
holding that the absence of formal injunctive relief does not preclude a plaintiff from
recovering statutory attorney fees and costs under MCL 15.271(4). Considering the
purposes behind the OMA, including the Legislature’s conscious choice to enact a citizen
enforcement provision aimed at ensuring compliance with the OMA, I cannot conclude
that the last 33 years of Court of Appeals precedent was in error.
As previously noted, four years after the effective date of MCL 15.271(4), the
Ridenour panel effectively held that declaratory relief granted in lieu of or as the
functional equivalent of an injunction supports an award of costs and actual attorney fees
under the statute. In Ridenour, the plaintiff sought to enjoin the defendant from holding a
closed meeting. Although the trial court determined that the defendant’s proposed
conduct would violate the OMA, it determined that injunctive relief was not necessary in
light of the defendant’s promise that it would comply with the trial court’s decision.
Ridenour, 111 Mich App at 801. Despite the trial court’s decision to deny the plaintiff’s
request for injunctive relief on that basis, it granted the plaintiff’s request for costs and
attorney fees under MCL 15.271(4), reasoning that the relief that the plaintiff obtained
was “the equivalent of an injunction.” Id. at 801. On appeal, the Court of Appeals
affirmed the award of costs and attorney fees explaining, “No matter how it is viewed,
3
plaintiff received the relief he sought. The [trial court] agreed with plaintiff’s position
and gave a judgment in his favor.” Id. at 806.
Subsequent panels of the Court of Appeals have followed Ridenour, reasoning
that, under MCL 15.271(4), “neither proof of injury nor issuance of an injunction is a
prerequisite for the recovery of attorney fees under the OMA”; rather, under the language
of MCL 15.271(4), a “plaintiff need only ‘succeed in obtaining relief in the action,’ ”
and, therefore, declaratory relief, as a form of relief, is necessarily sufficient. Herald Co,
Inc v Tax Tribunal, 258 Mich App 78, 92; 669 NW2d 862 (2003), quoting
MCL 15.271(4) (emphasis added).2 Accordingly, for more than three decades, the Court
2
See, also, Menominee Co Taxpayers Alliance, Inc v Menominee Co Clerk, 139 Mich
App 814; 362 NW2d 871 (1984) (holding that the absence of a formal injunction does not
preclude the plaintiff from recovering costs and attorney fees under MCL 15.271(4));
Schmiedicke v Clare Sch Bd, 228 Mich App 259, 267; 577 NW2d 706 (1998) (holding
that the “legal remedy of declaratory relief is adequate” to trigger an award of attorney
fees and costs under MCL 15.271(4)); Manning v East Tawas, 234 Mich App 244, 253-
254; 593 NW2d 649 (1999) (expressly rejecting the notion that a failure to either grant
injunctive relief or order future compliance with the OMA precludes an award of costs
and attorney fees, reasoning that a finding that the OMA was violated constitutes
declaratory relief, which is sufficient to entitle the plaintiff to an award of costs and
attorney fees under MCL 15.271(4)); Nicholas v Meridian Charter Twp Bd, 239 Mich
App 525, 535; 609 NW2d 574 (2000) (holding that a declaratory judgment entitles a
plaintiff to actual attorney fees and costs under MCL 15.271(4), “despite the fact that the
trial court found it unnecessary to grant an injunction given defendants’ decision to
amend the notice provision after plaintiffs filed the present suit”); Kitchen v Ferndale
City Council, 253 Mich App 115, 127-128; 654 NW2d 918 (2002) (“Costs and fees are
mandatory under the OMA when the plaintiff obtains relief in an action brought under the
Act” because “[t]he plain language of [MCL 15.271(4)] simply states that plaintiffs need
only ‘succeed[] in obtaining relief in the action’ in order to recover court costs and
attorney fees”) (citation omitted); Morrison v East Lansing, 255 Mich App 505, 521 n 11;
660 NW2d 395 (2003) (noting that the trial court properly granted the plaintiffs’ attorney
fees and other costs because, “[w]here a trial court declares that the defendants violated
the OMA, but finds it unnecessary to grant injunctive relief, the plaintiffs are entitled to
actual attorney fees and costs”); Craig v Detroit Pub Sch Chief Executive Officer, 265
4
of Appeals has repeatedly held that declaratory relief granted in lieu of an injunction or
that is the functional equivalent of an injunction is sufficient to trigger an award of
attorney fees and costs because, in such cases, the plaintiff has “succeeded in obtaining
relief in the action,” which is all that MCL 15.271(4) requires.
Despite the clear holdings of the Court of Appeals, the Legislature has not
amended MCL 15.271(4) or otherwise taken any action to signal its disapproval of
Ridenour and its progeny, even though the Legislature has made numerous amendments
to other provisions of the OMA. I continue to find relevant the well-established
presumption that the Legislature is aware of statutory interpretations by this Court and
the Court of Appeals. See Ford Motor Co v City of Woodhaven, 475 Mich 425, 439-440;
716 NW2d 247 (2006); Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506;
475 NW2d 704 (1991).3 Consequently, in my view, the Legislature’s silence on this
topic since 1981 is a strong indication that the Court of Appeals has properly effectuated
the Legislature’s intent, in accordance with that primary goal of statutory interpretation.
In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); Craig v
Larson, 432 Mich 346, 353; 439 NW2d 899 (1989). While the Legislature may not be
required to “cumbersomely repeat language that is sufficiently incorporated into a
statute,” Robinson v Lansing, 486 Mich 1, 16-17; 782 NW2d 171 (2010), the Legislature
Mich App 572, 580; 697 NW2d 529 (2005) (stating that “[t]he imposition of attorney
fees is mandatory upon a finding of a violation of the OMA”).
3
See, also, Autio v Proksch Constr Co, 377 Mich 517, 546; 141 NW2d 81 (1966)
(BLACK, J., dissenting) (noting the “constantly employed axiom” that “the legislature
enacts with the Court’s interpretational decisions in one hand as it writes and votes with
the other”).
5
also unquestionably has the ability to correct judicial interpretations that it believes are
contrary to its intent. The fact that the Legislature has long acquiesced to Ridenour and
its progeny, despite numerous intervening amendments to the OMA, is, in my opinion,
compelling.4
Indeed, the interpretation of the statutory language in Ridenour and its progeny is
consistent with the purpose of MCL 15.271(4) and the history of the OMA, both of which
are relevant considerations in discerning the Legislature’s intent. In re Certified
Question, 433 Mich 710, 722; 449 NW2d 660 (1989); Booth, 444 Mich at 223-224. To
begin, it is entirely reasonable to presume that public bodies will adhere to the law as
declared by a court. Cf. Straus v Governor, 459 Mich 526, 532; 592 NW2d 53 (1999)
(noting that declaratory relief is generally sufficient to induce the legislative and
executive branches to comply with the law); Florida v US Dep’t of Health & Human
Servs, 780 F Supp 2d 1307, 1314, 1316 (ND Fla, 2011) (noting the longstanding
presumption that federal officials will follow the law as declared by a court). In fact, a
judgment for declaratory relief constitutes a binding and conclusive adjudication of the
rights and status of the litigants. Black’s Law Dictionary (6th ed). Thus, a declaratory
judgment has the force and effect of a final judgment. MCR 2.605(E). It is a “real
judgment, not just a bit of friendly advice,” and, as one court has noted, those who try to
4
While some members of this Court undoubtedly disagree with the doctrine of legislative
acquiescence, I continue to believe that the doctrine, which has a deep-rooted history in
Michigan, remains a valid interpretive aid. See McCahan v Brennan, 492 Mich 730,
757 n 22; 822 NW2d 747 (2012) (MARILYN KELLY, J., dissenting); Karaczewski v
Farbman Stein & Co, 478 Mich 28, 53-54; 732 NW2d 56 (2007) (MARILYN KELLY, J.,
dissenting).
6
evade it will likely “come to regret it.” US Dep’t of Health & Human Servs, 780 F Supp
2d at 1316, quoting Badger Catholic, Inc v Walsh, 620 F3d 775, 782 (CA 7, 2010).5 “If it
were otherwise, a . . . declaratory judgment would serve no useful purpose as a final
determination of rights.” Id. (quotation marks omitted). See, also, MCR 2.605(F)
(“Further necessary or proper relief based on a declaratory judgment may be
granted . . . .”). Consequently, in the context of public bodies, a judgment for declaratory
relief is the “functional equivalent of an injunction.” US Dep’t of Health & Human
Servs, 780 F Supp 2d at 1314 (citations and quotation marks omitted).6 As a final order,
a declaratory judgment acts to restrain public bodies from further noncompliance with the
OMA, consistent with the overall purpose of MCL 15.271. Accordingly, as Ridenour
explained, although a plaintiff might not receive relief in the form of an injunction, the
receipt of a declaratory judgment upon the finding of an OMA violation is the functional
equivalent of one. Ridenour, 111 Mich App at 806. Although that might not be the case
in a context other than the OMA, considering the purpose of MCL 15.271 and the OMA
5
Indeed, the evasion of a court’s judgment might trigger other enforcement provisions of
the OMA, further supporting the conclusion that declaratory relief, in the context of the
OMA, acts to restrain noncompliance with the OMA. See MCL 15.272(1) (“A public
official who intentionally violates this act is guilty of a misdemeanor punishable by a fine
of not more than $1,000.00.”); 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.”).
6
See, also, id. at 1316 (referring to a declaratory judgment against governmental officials
as a “de facto injunction”); California v Grace Brethren Church, 457 US 393, 408; 102 S
Ct 2498; 73 L Ed 2d 93 (1982) (“[T]here is little practical difference between injunctive
and declaratory relief . . . .”).
7
generally, I believe that Ridenour and its progeny clearly effectuated the intent of the
Legislature by concluding that obtaining a judgment for declaratory relief is
“succeed[ing] in obtaining relief in the action.” See MCL 15.271(4).
In contrast to Ridenour and its progeny, the majority’s interpretation undermines
the OMA’s enforcement provision and the purpose of the OMA, generally. In addition to
mandating formal injunctive relief before costs and attorney fees can be awarded, the
majority now clarifies that an “ongoing violation” is also a prerequisite to obtaining costs
and attorney fees under the OMA. Consequently, the majority opinion effectively gives a
public body at least one free pass at violating the OMA because, without more, the public
body’s violation of the OMA, no matter how substantial, is presumably not “ongoing.”7 I
do not believe that the majority’s apparent interpretation is what the Legislature intended
when it adopted legislation aimed at promoting a “new era” of governmental
7
The majority does not elaborate on the meaning of “ongoing violation.” However, to
the extent that the majority opinion could be read to suggest that a plaintiff cannot bring
suit under MCL 15.271 if the OMA violation is already complete at the time suit is filed,
that result is inconsistent with decades of precedent. See Wexford Co Prosecutor v
Pranger, 83 Mich App 197, 204; 268 NW2d 344 (1978) (“Insofar as the declaratory
judgment finds the closed session of May 9, 1977, in violation of the open meetings
statute, we affirm”); Nicholas, 239 Mich App at 535 (“Here, the trial court declared that
defendants violated the OMA. This constitutes declaratory relief, thus entitling plaintiffs
to actual attorney fees and costs despite the fact that the trial court found it unnecessary to
grant an injunction given defendants’ decision to amend the notice provision after
plaintiffs filed the present suit”). Such a conclusion would also preclude most OMA
actions that are brought under MCL 15.271(4) to challenge the alleged erroneous
procedures used by a public body. Notably, those actions ultimately assist in bringing
clarity to the OMA’s requirements, thereby reducing future violations and furthering the
OMA’s purpose. I imagine that most citizens will not have time to run to the doors of a
courthouse the moment a public body makes an erroneous decision to conduct its meeting
in secret or in violation of the OMA’s notice requirements. But, under the majority’s
apparent interpretation, this may now be required.
8
accountability and public access to governmental decision-making. Booth, 444 Mich at
222-223.
Further, under the majority’s interpretation of MCL 15.271(4), even if a lawsuit
may be brought to enforce the interests of the public at large, there is no incentive for the
public body not to contest the plaintiff’s interpretation of the statutory provisions through
vigorous litigation. After all, upon the trial court’s adverse ruling, the public body need
only concede defeat to preclude injunctive relief. See Wexford Co Prosecutor v Pranger,
83 Mich App 197, 205; 268 NW2d 344 (1978) (affirming declaratory relief based on a
violation of the OMA, but vacating an injunction, reasoning that there was no “real and
imminent danger of irreparable injury” when the defendants acted in good faith);
Nicholas v Meridian Charter Twp Bd, 239 Mich App 525, 534; 609 NW2d 574 (2000)
(“Where there is no reason to believe that a public body will deliberately fail to comply
with the OMA in the future, injunctive relief is unwarranted.”). Under the majority’s
interpretation, such a concession will preclude an award to the plaintiff for his or her
costs of pursuing the litigation even though, as previously explained, a grant of
declaratory relief is generally sufficient to make the violation known to the public body
and restrain it from further violating the OMA, which is consistent with the purpose of
MCL 15.271(4) and the purpose of the OMA generally.
Of particular importance is that, in enacting MCL 15.271(4), the Legislature
granted individual citizens the right to pursue remedies for OMA violations rather than
rely solely on the Attorney General or county prosecutors. By doing so, the Legislature
seems to have implicitly recognized that there would be times when members of the
executive branch could not, or would not, act and that, in those instances, the overriding
9
concern for governmental accountability mandates the availability of causes of action
brought by private citizens. In light of the Legislature’s choice to allow private citizen
suits to pursue remedies for procedural OMA violations,8 which vindicate the rights of
the public at large, I cannot conclude that the Legislature intended to limit this right to the
small portion of the population that is capable of pursuing such actions at their own
personal expense. See Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 47; 576 NW2d 641
(1998) (CAVANAGH, J., concurring in part and dissenting in part). The result of the
majority’s decision is that the ability of private citizens to bring OMA complaints will, in
all likelihood, be severely curtailed. To penalize private citizens and, consequently, the
public at large, simply because relief comes in the form of a declaratory judgment, rather
than injunctive relief, elevates form over substance when, as explained earlier, there is
little practical difference between the two forms of relief in this context. Consequently, I
do not believe that the Legislature intended the majority’s interpretation of MCL
15.271(4), which undermines the OMA’s purpose.
In this case, plaintiff requested both injunctive and declaratory relief and was
ultimately awarded the latter. Because declaratory relief is sufficient to trigger attorney
fees and costs under MCL 15.271(4), I would hold that plaintiff is entitled to costs and
attorney fees, consistent with Ridenour and its progeny.
8
Compare MCL 15.270 (permitting a private citizen to seek the invalidation of a public
body’s decision upon a violation of the OMA) with MCL 15.271 (generally permitting
private citizens to seek compliance with the procedural requirements of the OMA, rather
than the invalidation of a public body’s decision).
10
In light of the language, history, and purpose of the act, I cannot agree with the
majority’s decision to cast aside 33 years of precedent and erroneously write into the
OMA a requirement that the Legislature did not intend—i.e., that a party must obtain
formal injunctive relief as a prerequisite to an award of costs and attorney fees under
MCL 15.271(4). Because I believe that more than three decades of precedent properly
interpreted and effectuated the Legislature’s intent, I respectfully dissent.
Michael F. Cavanagh
11