Esperance v. Chesterfield Township

89 Mich. App. 456 (1979) 280 N.W.2d 559

ESPERANCE
v.
CHESTERFIELD TOWNSHIP

Docket No. 77-3142.

Michigan Court of Appeals.

Decided April 16, 1979.

Robert E. Childs, for plaintiff.

Anthony, Hearsch, Biernat & Bucci, for defendant.

Before: BRONSON, P.J., and M.J. KELLY and D.C. RILEY, JJ.

BRONSON, P.J.

The present case involves the proper interpretation to be given the recently enacted Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., specifically whether the act prohibits a public body from voting by secret ballot.

Due to an increase in population, defendant township became eligible for three additional class C liquor licenses.^[1] Approximately 27 people applied for the licenses and in order to trim the number of applicants to the three that would be granted the licenses, the township board utilized a system of elimination ballots. On the first elimination ballot the board members voted for 12 applicants and passed the ballots to the clerk who tallied the votes and announced the names of the 12 people who received the most votes. The clerk did not, however, announce which board members voted for which applicants nor did she record the votes in the minutes. This same procedure was repeated to reduce the number of applicants from 12 to six and finally from six to three. After the number of applicants had been reduced to three, individual resolutions for each successful applicant were approved by a roll call vote which was recorded in the minutes. Although plaintiff was present at the meeting, he raised no objection to this voting procedure.

Following the meeting, plaintiff commenced the present lawsuit, seeking a declaration pursuant to GCR 1963, 521 that the voting procedure used by the township board was in violation of § 3(2)^[2] of the Open Meetings Act. Plaintiff also sought to have the board's decision granting the liquor licenses invalidated and to enjoin the board from using this method of voting in the future. Defendant township moved for summary judgment claiming plaintiff failed to state a cause of action under the act. The trial court granted the motion and plaintiff now appeals as of right.

In support of its motion for summary judgment defendant first alleged that plaintiff's complaint failed to allege the statutory requirements set forth in MCL 15.270(2); MSA 4.1800(20)(2) which are prerequisities to the invalidation of any decision of a public body under the act.

"A decision made by a public body may be invalidated if the public body has not complied with the requirements of § 3(1), (2) and (3) in making the decision * * *."^[3]

Defendant contends that since the Legislature used the word "and" the requirements are conjunctive, not disjunctive. According to defendant, plaintiff must plead and prove violations of all three sections before a decision can be invalidated, and since plaintiff only alleged a violation of § 3(2) he failed to state a cause of action.

While it is true that the use of the word "and" in a statute usually connotes the conjunctive, this rule is not an absolute.

"The popular use of `or' and `and' is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context." Heckathorn v Heckathorn, 284 Mich. 677, 681; 280 N.W. 79 (1938).

Therefore, when it is clear that the Legislature intended to have the clauses read in the disjunctive, the word "or" can be substituted for the conjunctive "and". See Aikens v Dep't of Conservation, 387 Mich. 495; 198 NW2d 304 (1972). In Aikens, the Department of Conservation seized certain catches of perch on the grounds that the fish were undersized as they failed to meet the "in the round" length requirement of the following statute:

"(d) Perch, of a less length than 8 1/2 inches in the round and filleted perch of a less weight than 1 3/4 ounces; perch with heads and tails off of a less length than 5 1/2 inches; * * *" (Emphasis added.) MCL 308.14(1)(d); MSA 13.1505(1)(d).

The fisherman contended that because the statute used the word "and" the fish were not illegally caught unless they were less than 8-1/2 inches in the round and weighed less than 1-3/4 ounces when filleted, and were less than 5-1/2 inches in length with the heads and tails off. The Supreme Court, however, stated that a careful reading of the statute indicated that the Legislature intended to set up three separate tests, not one, and if the fish failed to meet any of the tests, the fish were illegally possessed.

The Aikens case is applicable to the present case. A careful reading of the statute shows that the Legislature intended that a decision of a public body could be invalidated for a violation of either § 3(1), (2), or (3), as each was an independent objective of the act.

Defendant's interpretation of the statute would render it meaningless. Under such an interpretation, a public body would not be in violation of the statute if it made its decisions in public but deliberated in private or conversely, deliberated in public but made its decisions in private, or if it opened its meetings to the public, but held the meetings in a place which was inaccessible to the public. The Legislature clearly intended to make all three actions illegal, and intended to made any of the three violations an independent basis for invalidating the illegal actions. Plaintiff did not fail to state a cause of action for this reason.

Defendant next contends that the Open Meetings Act does not expressly prohibit secret ballots, but instead only requires that "[a]ll decisions of a public body shall be made at a meeting open to the public".^[4] Therefore, according to defendant the township board complied with the act because even though it voted by secret ballot,^[5] the balloting was done at a meeting open to the public. We find this contention unconvincing.

Prior to enacting the current Open Meetings Act, the Legislature created a special committee to study the operation of the former open meetings law.^[6] The committee, in its report recommending passage of a new Open Meetings Act, decried the evils of secret voting by public officials.

"Secret voting by elected officials at every level in the government tends to foster an atmosphere of suspicion and mistrust of decision-making by public officials, whether it be real or imagined. Such an atmosphere is an intolerable impediment to respect for our public institutions as well as public officialdom and cannot be allowed to persist.

"As U.S. Senator Adlai E. Stevenson III of Illinois has observed, `Excessive secrecy breeds distrust. It prevents accountability. It does violence to the principle of government based on the informed consent of the governed.'"^[7]

The legislative history of the act thus supports the contention that the act was passed to combat secret voting in all of its forms whether it be by closed meeting or by secret ballot.

In Wexford County Prosecutor v Pranger, 83 Mich. App. 197; 268 NW2d 344 (1978), this Court stated that the Open Meetings Act was enacted to provide openness and accountability in government, and is to be interpreted so as to accomplish this goal. Defendant's interpretation of the act would not be in keeping with this objective. It can hardly be contended that a vote by secret ballot at an open meeting is any more open than a vote at a closed meeting. In either case the public official has shielded his stand from public scrutiny and accountability.

It should also be recognized that because the act requires all meetings to be opened to the public it implicitly requires that all parts of the meeting (unless specifically excluded by the act) also be open to the public. Clearly a public body could not open only the first five minutes of the meeting and then close the rest of the meeting and argue that it complied with the Open Meetings Act. Similarly, a secret ballot effectively closes part of a meeting to the public, since the balloting withdraws from public view an essential part of the meeting.

For these reasons, we hold that the Open Meetings Act prohibits a public body from voting by secret ballot,^[8] and the trial court erred in not granting plaintiff's complaint for declaratory relief on this point.

Merely because secret balloting is prohibited by the Open Meetings Act^[9] does not automatically mean that the board's decision in the present case must be invalidated, and that an injunction must issue restraining defendant from utilizing the procedure in the future.

Invalidation of decisions made in contravention of the act is discretionary with the court. Those seeking to have the decision invalidated must allege not only that the public body failed to comply with the act, but also that this failure impaired the rights of the public. MCL 15.270(2); MSA 4.1800(20)(2). This was not done in the present case. Plaintiff did not allege that the township board willfully or intentionally sought to violate the act. Nor is there any allegation that the board or any of its members were trying to cover up for misdeeds or to hide the identity of the persons for whom they voted.^[10] Since plaintiff failed to allege that the rights of the public were impaired by the secret ballot, he failed to state a cause of action under the act for invalidating the decision of the board.

Finally, the record indicates that the board acted in good faith in utilizing the voting procedure. There was no subterfuge involved, but instead the board adopted the procedure as an expedient, albeit improper, method of narrowing the field of applicants. Under this set of circumstances, there is no real and imminent danger of irreparable injury requiring issuance of an injunction. See Wexford County Prosecutor v Pranger, supra, at 205.

Affirmed in part and reversed in part. No costs, a public question being involved.

D.C. RILEY, J., concurred.

M.J. KELLY, J. (dissenting).

I agree with the majority opinion insofar as it holds that the prerequisites to the invalidation of any decision of a public body listed in MCL 15.263(1)-(3); MSA 4.1800(13)(1)-(3) are disjunctive rather than conjunctive. However, I write to express my reluctance to go so far as to declare that every vote taken at a public meeting must carry with it the identity of the voter. The meeting of the township board was open and accessible, advance notice was given, and there is no claim that appellant or any member of the public was barred or hindered in attendance or in opportunity to address the public body. Had there been any request for a tally, the township board would have been called upon to respond; if it had refused, I believe the spirit of the Open Meetings Act would have been violated, but I would not go that far on this record.

The act has not prescribed procedures for the conduct of voting by public bodies. Nothing in the act requires that voting and balloting, if conducted in public, be announced publicly, conducted by "yes" or "no" vote, or accomplished in any formal way as plaintiff contends. Section 9 of the act does require that the minutes "shall include all roll call votes taken at the meeting", but the act does not and cannot purport to dictate when a roll call vote is required or describe the formalities for conducting such a vote. Are we to say that, if there had been 100 such applicants, the act would be violated unless 100 roll call votes were taken, or 66, or 33?

I would prefer a far more detailed chronicle of the legislative processess underlying the act before finding a per se violation on these facts. There must be countless situations before public bodies calling for a process of elimination and if that is required to be accomplished with the same formality as is required for the adoption of a final decision, (e.g., a roll call vote), the ramifications might be, if not incalculable, certainly unduly burdensome.

Apart from my reluctance to find a violation of the act on these facts, I must also dissent from the majority's ultimate disposition of this case after finding a violation. The majority holds that, although there was a violation of the act in the present case, "since plaintiff failed to allege that the rights of the public were impaired by the secret ballot, he failed to state a cause of action under the act for invalidating the decision of the board". I respectfully disagree.

MCL 15.270(2); MSA 4.1800(20)(2) states:

"(2) A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision or if failure to give notice in accordance with section 5 has interfered with substantial compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or failure has impaired the rights of the public under this act."

I perceive no requirement in the statute that the plaintiff's complaint must allege that the violation impaired the rights of the public, for it states that "[a] decision made by a public body may be invalidated if * * * the court finds that the non-compliance or failure has impaired the rights of the public". Because this case was decided on a motion for summary judgment, the facts have not been fully explored. Although it seems unlikely from the facts already presented that plaintiff can demonstrate sufficient reason to invalidate this decision, he should nevertheless be given the opportunity to prove such facts, especially in view of the fact that the trial court and the parties addressed themselves almost exclusively to the issue of whether secret balloting was prohibited by the act and did not enter into a contest over the other facts of the case. Therefore, I would hold that as a violation of the act is found here, plaintiff should be given an opportunity to prove an impairment of rights by adducing proofs thereof.

NOTES

[1] The liquor licenses were issued pursuant to MCL 436.1 et seq.; MSA 18.971 et seq. The applicants first applied to the Michigan Liquor Control Commission which in turn sought local approval of the applicants by the township pursuant to MCL 436.17; MSA 18.988.

[2] MCL 15.263(2); MSA 4.1800(13)(2).

"All decisions of a public body shall be made at a meeting open to the public."

[3] "Sec. 3. (1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.

"(2) All decisions of a public body shall be made at a meeting open to the public.

"(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as otherwise provided in sections 7 and 8."

[4] MCL 15.263(2); MSA 4.1800(13)(2).

[5] The vote was by secret ballot even though each of the final three applicants was granted a liquor license by a roll call vote. This final vote was merely perfunctory, since the real decisions had already been made in the preliminary secret balloting.

[6] MCL 15.251 et seq.; MSA 4.1800(1) et seq.

[7] Special Senate Study Committee on Political Ethics, Final Report (1973), at 10.

[8] We are definitely not alone in interpreting the Open Meetings Act in this manner. In interpreting its own Open Meetings Act which was similar to Michigan's in that it only required that "all public proceedings shall be open to any citizen of this state * * *" (Burns Indiana Statutes Annotated, Code Edition, 5-14-1-4), the Indiana Supreme Court also held that the statute prohibited secret balloting. State v La Porte Superior Court #2, 249 Ind 152; 230 NE2d 92 (1967).

[9] The fact that the Open Meetings Act prohibits secret balloting does not mean that all votes must be roll call votes. The act's requirements are met when the vote is by roll call, show of hands, or any other method whereby the way the public official voted is made known to the public. For instance, in the present case if the board members' names had been inscribed on the elimination ballots, so that in recording the votes in the official minutes the clerk could determine which board member voted for which candidates, the Open Meetings Act would be satisfied. This is so because even though the way the members voted would not be proclaimed aloud at the meeting, any interested person could determine how the board members voted by merely checking the official minutes.

[10] These are merely examples of some of the situations which could show an impairment of the rights of the public. These examples are not intended to constitute either an all-inclusive list or a list of mandatory allegations.