997 N.W.2d 755
Mich. Ct. App.2022Background
- Delta College Board of Trustees held a June 9, 2020 board meeting and voted (unanimous roll call) to go into closed session under MCL 15.268(h) to “consider a written legal opinion.”
- The Board’s attorney attended the closed session and the attorney’s written opinion was the stated subject of the discussion.
- Plaintiffs (Sunshine and Andrich) sued under the Open Meetings Act (OMA), alleging the closed session violated OMA disclosure rules, that inviting an attorney made MCL 15.268(h) inapplicable, and that procedural requirements for closing the meeting were not met.
- Defendant moved for summary disposition under MCR 2.116(C)(10), asserting the material was exempt as attorney-client privileged (FOIA exemption) and that the Board complied with OMA procedures; the trial court granted the motion.
- On appeal, the Court of Appeals affirmed, holding (inter alia) that discussing a written legal opinion in closed session under MCL 15.268(h) is permissible, attorney attendance is not per se prohibited, plaintiffs failed to raise evidentiary support showing pretext or procedural noncompliance, and the (C)(10) motion was adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCL 15.268(h) allows an attorney to attend and participate in a closed session called to consider a written legal opinion | Attorney attendance renders subsection (h) inapplicable; attorney only referenced in subsection (e) | Subsection (h) covers material exempt by statute (including privileged written opinions); attorney may attend to discuss legal advice without exceeding (h)’s scope | Allowed: attorney attendance does not invalidate (h); closed session lawful so long as discussion is limited to legal advice in the written opinion |
| Whether the Board used (h) as a pretext to discuss non-exempt matters | Board used privilege as a ruse to hide non-exempt policy/economic matters | Board legitimately went into closed session to consider a privileged written legal opinion; plaintiffs bear burden to provide evidence of pretext | Denied: plaintiffs offered only speculation and no documentary evidence creating a genuine issue of material fact |
| Whether the Board satisfied OMA procedural requirements for closing the meeting (vote, minutes, statement of purpose) | Minutes are incomplete and do not show invitation of attorney or adequate description of exempt material | Minutes show unanimous roll call and state purpose (to consider a written legal opinion); OMA does not require disclosing invitation of attorney or detailed proof of privilege that would defeat confidentiality | Held: procedural requirements met — roll call and purpose recorded; describing the document as a "written legal opinion" sufficed under MCL 15.268(h) and precedent |
| Whether defendant’s MCR 2.116(C)(10) motion properly specified no genuine issue of material fact | Motion contained statements characterized as legal conclusions rather than undisputed facts, so it was deficient | The central factual question was the stated purpose of the closed session (a written legal opinion); the motion adequately identified that no material factual dispute existed | Held: motion complied with (C)(10) because the only material fact at issue was the purpose (exempt written opinion) and defendant adequately presented that ground |
Key Cases Cited
- People v. Whitney, 228 Mich App 230 (Mich. Ct. App. 1998) (attorney’s written legal opinion is protected by attorney-client privilege; closed-session discussion must be limited to legal advice)
- Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich App 459 (Mich. Ct. App. 1988) (closed sessions under (h) authorized for discussion of legally exempt material; scope limited to legal matters)
- Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich 211 (Mich. 1993) (OMA’s exemptions strictly construed and burden rests on public body to prove exemption)
- Herald Co., Inc. v. Tax Tribunal, 258 Mich App 78 (Mich. Ct. App. 2003) (public body should describe exempt material where practicable; disclosure not required if it would defeat nondisclosure)
- Coblentz v. Novi, 475 Mich 558 (Mich. 2006) (nonmoving party must produce evidence to create a genuine issue of material fact in response to a (C)(10) motion)
- Speicher v. Columbia Twp. Bd. of Trustees, 497 Mich 125 (Mich. 2014) (OMA requires meetings, deliberations, and decisions to be open to the public except as provided by statute)
- Vermilya v. Delta College Bd. of Trustees, 325 Mich App 416 (Mich. Ct. App. 2018) (discusses OMA purposes and application of procedural protections)