296 Mich. App. 568 | Mich. Ct. App. | 2012
Lead Opinion
These consolidated appeals involve the relationship between the Open Meetings Act
We further conclude that the trial court abused its discretion by granting injunctive relief through its various rulings and orders in the proceedings below, in two major ways. First, the trial court failed to apply controlling legal principles in determining that the Detroit Financial Review Team was a public body. Second, the trial court erred by finding that there would be per se irreparable harm to the people if it did not grant injunctive relief.
Thus, in Davis v Detroit Financial Review Team (Docket No. 309218), we reverse the trial court’s orders granting declaratory and injunctive relief to Davis and remand the case to the trial court for entry of judgment in favor of defendants regarding the merits of the case. Similarly, in McNeil v Detroit Financial Review Team (Docket No. 309482), we reverse the trial court’s order granting a show-cause hearing concerning McNeil’s claim under the Open Meetings Act and remand for entry of judgment in favor of defendants. However, in
I. BASIC FACTS
A. THE EMERGENCY FINANCIAL MANAGER ACT
The emergency financial manager act became effective March 16, 2011.
If the State Treasurer makes a finding of “probable financial stress,” the Governor must appoint a review team for that municipal government.
Under the emergency financial manager act, the review team has the power to examine the books and records of the local government, utilize the services of other state agencies and employees, and negotiate and
Importantly, the review team must meet with the local government as part of its review.
B. OPEN MEETINGS ACT
The Open Meetings Act
The Open Meetings Act defines the term “public body” for its purposes to include
any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function . .. .[20 ]
The Open Meetings Act defines a “meeting,” in part, as “the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy. . . .”
C. DOCKET NO. 309218
On December 21, 2011, State Treasurer Andy Dillon provided Governor Rick Snyder with a preliminary review, concluding that probable financial stress existed in the city of Detroit. On December 27, 2011, the Governor appointed the Detroit Financial Review Team. The Governor subsequently granted the financial review team a 30-day extension.
In the February 29, 2012 order, the trial court granted Davis’s motion for declaratory judgment, denied defendants’ motion for summary disposition, and granted Davis’s motion for a permanent injunction barring defendants from violating any and all provisions of the Open Meetings Act. The trial court also held that the Detroit Financial Review Team was a public body subject to the provisions of the Open Meetings Act and that the Detroit Financial Review Team had violated the act by (1) failing to hold its January 10, 2012, meeting in public, (2) failing to keep minutes of the January 10, 2012, meeting and failing to provide Davis with a copy of the minutes, (3) failing to post notice of the January 10, 2012, meeting, and (4) meeting in closed session for impermissible purposes on January 10, 2012.
The trial court further held that the Detroit Financial Review Team violated the Open Meetings Act by holding a private meeting with the Detroit Mayor and other city officials and by meeting in closed session on January 17, 2012. The trial court awarded costs and attorney fees to Davis. The trial court dismissed the
On March 21, 2012, defendants filed a claim of appeal from the trial court’s February 29, 2012, order. Defendants have subsequently stated that, although they dispute the correctness of the trial court’s decision, they have conducted subsequent meetings of the Detroit Financial Review Team in conformance with the Open Meetings Act.
D. DOCKET NO. 309250
On March 1, 2012, Davis filed in the trial court an ex parte motion for civil contempt and order to show cause why defendants should not be held in contempt for establishing a subcommittee that would violate the trial court’s February 29, 2012, order. The trial court issued a show-cause order on March 1, 2012, requiring all 10 members of the Detroit Financial Review Team to appear for a show-cause hearing on March 12, 2012. Defendants moved for reconsideration of that order. They asserted that the subcommittee had yet to meet and that advisory committee meetings do not violate the Open Meetings Act. In two orders issued March 8, 2012, the trial court adjourned the show-cause hearing and denied defendants’ motion for reconsideration.
On March 9, 2012, Davis noticed a show-cause hearing in the trial court, supported by affidavits from him and his counsel, indicating that there were additional questions that defendants had not answered. On March 13, 2012, the trial court scheduled the show-cause hearing for March 22, 2012. Defendants assert that the trial court directed Davis’s counsel to provide defendants’ counsel with a list of witnesses that he
Defendants filed an emergency motion in the trial court to quash the subpoenas and to hold Davis’s counsel in contempt for failing to follow the trial court’s direction concerning witnesses. The trial court held a hearing on the motion on March 20, 2012. At the hearing, Davis represented that defendants continued to violate the Open Meetings Act when the State Treasurer allegedly met individually with Detroit City Council members and the Mayor’s staff, allegedly exchanged drafts of documents, and allegedly negotiated for the Detroit Financial Review Team. Davis asserted that the State Treasurer acted as a member of the Detroit Financial Review Team and that he was in contempt of court.
The trial court indicated that, at a prior hearing, it had informed the parties that the appointment of a subcommittee to do the job of the Detroit Financial Review Team would be a violation of the Open Meetings Act. The trial court further stated that it would not allow the Detroit Financial Review Team to approve any agreement until the trial court was satisfied that there was proper adherence to the Open Meetings Act.
After the hearing, the trial court issued its March 20, 2012, order. In that order, the trial court adjourned the show-cause hearing to March 29, 2012, and ordered defendants’ counsel to produce five members of the Detroit Financial Review Team (including the State Treasurer) to provide testimony at the show-cause hearing. The trial court further ordered the Detroit Financial Review Team and the State Treasurer not to
On March 22, 2012, this Court issued its order granting defendants’ motion for immediate consideration, holding the application for leave and the motion for stay in abeyance, and requiring Davis to file responsive pleadings. After Davis filed his responsive pleadings, on March 23, 2012, this Court issued its order, reversing that part of the trial court’s order of March 20, 2012, that precluded defendants from executing a consent agreement. This Court held that § 10 of the Open Meetings Act
On March 27, 2012, this Court issued its order granting defendants’ application for leave to appeal, consolidating Docket No. 309250 with Docket No. 309218, setting an expedited briefing schedule, continuing to retain jurisdiction, and giving the order immediate effect.
On March 29, 2012, Edward McNeil filed a complaint and motion for preliminary injunctive relief against the same defendants as in the Davis litigation (Docket Nos. 309250 and 309218) previously described. The complaint alleged that the Detroit Financial Review Team, specifically the State Treasurer, had been negotiating a consent agreement in violation of the Open Meetings Act and that the Detroit Financial Review Team’s report was based on meetings that were held in violation of the Open Meetings Act. McNeil sought a temporary restraining order prohibiting defendants from taking any further actions under the emergency financial manager act and from acting on the Detroit Financial Review Team’s March 26, 2012, report.
On March 30, 2012, the trial court, without hearing from defendants, issued a temporary restraining order and order to show cause, which found, among other things, that McNeil was likely to succeed on the merits of the claims that defendants had violated the Open Meetings Act. Somewhat confusingly, the trial court also ordered that McNeil’s motion for a temporary restraining order and order to show case be “held in abeyance” because McNeil was entitled to a hearing on that motion. The trial court ordered that a show-cause hearing take place on April 9, 2012, regarding why the trial court should not grant the preliminary injunction enjoining defendants from taking any action regarding the city of Detroit in violation of the Open Meetings Act. As of April 4, 2012, four Detroit Financial Review Team members were served with subpoenas to appear and produce documents at the April 9, 2012, show-cause hearing.
On April 4, 2012, defendants filed an emergency application for leave to appeal and application for stay
After receiving and reviewing briefs from all the parties in these consolidated appeals, this Court heard oral argument on May 4, 2012.
II. THE OPEN MEETINGS ACT AND FINANCIAL REVIEW TEAMS
A. OVERVIEW
The main thrust of the arguments of Davis and McNeil in these consolidated appeals is that the State Treasurer and the Detroit Financial Review Team, acting under the authority of the emergency financial manager act, violated the Open Meetings Act. At the core of this argument is the assertion that the State Treasurer and the Detroit Financial Review Team are “public bodies” subject to the Open Meetings Act.
As we outline later in this opinion, we conclude that the meetings of a financial review team — and therefore the Detroit Financial Review Team — are not covered by the Open Meetings Act. We hold that such a financial review team is not a “governing body” and, therefore, not a “public body” as the Open Meetings Act uses these terms. We reach that decision because we conclude, after examining the authority and functions of a financial review team and analyzing them within the framework of the Open Meetings Act, that the emergency financial manager act does not empower a financial review team (1) as a “governing body” (2) to exercise independent governmental or proprietary authority or (3) to perform an independent governmental or proprietary function, (4) either one of which results in independent decision-making that effectuates or formulates public policy. We also hold that the State Treasurer, whether acting in his executive capacity or as a “one man committee” of the Detroit Financial Review Team, is not a “public body.”
B. STANDARD OF REVIEW
This Court reviews de novo issues of statutory construction.
C. THE STATE TREASURER AS A “PUBLIC BODY”
1. PRELIMINARY MATTERS
Davis and McNeil sued the State Treasurer in his official capacity as the duly appointed Treasurer for the State of Michigan and in his official capacity as a member of the Detroit Financial Review Team. Davis and McNeil have also asserted that the State Treasurer acted as a “one man committee” in this matter. We will consider each allegation in turn.
It is appropriate to note that Davis and McNeil also sued the Governor in somewhat the same fashion. But on appeal, Davis and McNeil have made no further argument regarding the Governor’s role in this case. A party may not leave it to this Court to discover and rationalize the basis for his or her claims,
2. THE STATE TREASURER ACTING IN HIS EXECUTIVE CAPACITY
Turning first to whether an individual acting in an executive capacity can constitute a “public body” as the Open Meetings Act defines that term, the leading case on this subject is Herald Co v Bay City.
[t]he statutory terms used illustratively to define “public body” — “legislative body” and “governing body” — do not encompass individuals. A single individual is not commonly understood to be akin to a “board,” “commission,” “committee,” “subcommittee,” “authority,” or “council” — the bodies specifically listed in the act by the Legislature.[35 ]
The Supreme Court went on to note that other statutes, specifically the Freedom of Information Act,
Perhaps the strongest common-sense basis for concluding that an individual was not contemplated by the Legislature as a “public body” is to consider how odd a concept it would be to require an individual to “deliberate” in an open meeting. Thus, we conclude that an individual executive acting in his executive capacity is not a public body for the purposes of the [Open Meetings Act].[38 ]
It is plain that this analysis applies directly to the State Treasurer as an individual executive acting alone in his executive capacity. It would be beyond “awkward” to envision that the State Treasurer, while acting, for example, in his executive capacity as the “state financial authority” of a local government and conducting a preliminary review to determine the existence of a local governmental financial problem,
Such a tortured, and tortuous, process is clearly outside the framework of the Open Meetings Act. As the Supreme Court stated in Herald Co, “an individual executive acting in his executive capacity is not a public
3. THE STATE TREASURER ACTING AS A "ONE MAN COMMITTEE” OF THE DETROIT FINANCIAL REVIEW TEAM
Davis and McNeil also assert that the State Treasurer met with various Detroit officials and other city leaders, and negotiated part or all of the consent agreement/financial stability agreement that the Detroit Financial Review Team ultimately signed in this matter. The emergency financial manager act clearly authorizes a financial review team to “[negotiate and sign a consent agreement with the chief administrative officer of the local government.”
In Booth Newspapers, the University of Michigan Board of Regents attempted to evade the requirements
The Presidential Selection Committee [consisting of the eight-member Board of Regents] entrusted Regent [Paul W] Brown with sole authority to make the first cut, and he did so after numerous telephone calls and meetings with the advisory committees and informal subquorum groups of regents. The acknowledged purpose of the telephone calls and subquorum meetings was to achieve the same intercommunication that could have been achieved in a full board meeting. During this process, the board avoided quorum meetings because it would have been required to conduct a public meeting under the [Open Meetings Act][47 ]
The board of regents argued that Regent Brown’s actions did not constitute that of a subcommittee. Therefore, the board asserted, his actions fell outside the reach of the Open Meetings Act.
Essentially, the board argues form over substance. The Legislature did not grant any exception to specific types or forms of committees. Therefore, delegating the task of choosing a public university president to a one-man committee, such as Regent Brown, would warrant the finding that this one-man task force was in fact a public body. As the Goode Court observed, “[w]e do not find the question of*590 whether a multi-member panel or a single person presides to be dispositive. Such a distinction carries with it the potential for undermining the Open Meetings Act. .. ,”[50 ]
The majority went on to hold that the “selection of a public university president constitutes the exercise of government authority, regardless of whether such authority was exercised by Regent Brown, the nominating committee, the full board, or even subcommittees.”
But, importantly, in Herald Co the Supreme Court later explained that the individual member of the public body in Booth Newspapers — Regent Brown — was distinguishable from an individual executive. The majority in Herald Co explained that, in Booth Newspapers, there was a public body in the first instance — the board of regents — that impermissibly attempted to delegate its authority to subunits of individual members in an attempt to evade the Open Meetings Act.
D. A FINANCIAL REVIEW TEAM AS A “PUBLIC BODY”
1. THE STATUTORY REQUIREMENTS ACCORDING TO HERALD CO
As outlined in Herald Co, the definition of a “public body” in the Open Meetings Act contains two requirements.
2. THE DETROIT FINANCIAL REVIEW TEAM AS A LEGISLATIVE BODY
It is clear that the Detroit Financial Review Team is a state body. The emergency financial manager act authorized the creation of financial review teams and the Governor appointed the members of the Detroit Financial Review Team pursuant to that act.
Near the time of the enactment of the Open Meetings Act, the American Heritage Dictionary of the English Language, New College Edition defined the word “legislative” as “[hjaving the power to create laws; designed to legislate.”
The emergency financial manager act does not give a financial review team the power to make or enact law, to bring something into or out of existence by making law, or to attempt to bring about or control by legislation. Therefore, a financial review team cannot legislate and it has no legislative functions. And while the emergency financial manager act gives the state financial authority (that is, in the case of a municipal government, the State Treasurer) rulemaking authority,
3. THE DETROIT FINANCIAL REVIEW TEAM AS A GOVERNING BODY
The question whether the Detroit Financial Review Team is a “governing body” is more complex. Again, the Open Meetings Act does not define the term “governing body,” but, as defendants point out, The American Heritage Dictionary of the English Language, New College Edition, defines “govern” as “[t]o make and administer public policy” for a political unit and to “exercise sovereign authority in.”
It is also instructive to examine the entire context of the Open Meetings Act to determine the Legislature’s intent when it used the term “governing body.”
[t]he review team shall have the full power in its review to perform all of the following functions-.
(a) Examine the books and records of the local government.
(b) Utilize the services of other state agencies and employees.
(c) Negotiate and sign a consent agreement with the chief administrative officer of the local government.... In order for the consent agreement to go into effect, it shall be approved, by resolution, by the governing body of the local government and shall be approved and executed by the state financial authority....
(2) The review team shall meet with the local government as part of its review At this meeting, the review team shall receive, discuss, and consider information provided by the local government concerning the financial condition of the local government.
(3) The review team shall report its findings to the governor, with a copy to the state financial authority ....
The report given to the Governor must include “the existence, or an indication of the likely occurrence of,” a number of criteria relating to the financial condition of a local government.
In addition, a financial review team is empowered, with the approval of the State Treasurer as the state financial authority, to “appoint an individual or firm to carry out the review and submit a report to the review team for approval.”
In arguing that a financial review team is not a governing body, defendants place considerable emphasis on The American Heritage Dictionary’s use of the words “sovereign authority.” The Attorney General couples these words with the definition in The American Heritage Dictionary of the English Language, New College Edition of the word “sovereign” as meaning “[h]aving supreme rank or power” or “[s] elf-governing; independent[.]”
However, we do accept defendants’ definition to the extent that a governing body should be one that is “[s]elf-governing; independent”;
Davis and McNeil, on the other hand, appear to argue that we should consider any state or local body empowered by law to exercise governmental or proprietary authority or perform a governmental or proprietary function to be a public body under the Open Meetings
But Booth Newspapers actually says no such thing. Rather, Booth Newspapers stated that “a key determination of the [Open Meetings Act’s] applicability is whether the body in question exercises governmental or proprietary authority.”
Treating any state or local body that is empowered by law to exercise governmental or proprietary authority or perform a governmental or proprietary function as a public body under the Open Meetings Act would improperly render nugatory the Legislature’s use of the adjective “governing” to limit the types of bodies that are public bodies subject to the Open Meetings Act. By identifying whether the body in question exercises governmental or proprietary authority as a key determination under the Open Meetings Act, the Supreme Court did not say, nor can it reasonably be inferred, that this was the only
This Court’s opinion in Crowley v Governor
We note that, pointing to the definition of “decision,” plaintiffs argue that the financial review team was involved in decision-making by making recommendations. In other words, plaintiffs contend that the act of making a recommendation alone constitutes a decision within the meaning of the Open Meetings Act’s definition.
We observe that rarely do recommendations coming from a public body originate from the entire public body itself. As an example, when the State Administrative Board meets to approve contracts, the recommendation for approval comes from a committee of the board, not the board itself. Similarly, when a local city council meets to consider a budget, the recommendation for approval of the budget usually comes from the mayor, not the city council itself. In those circumstances, the public body acts “upon” a recommendation made to it by another entity, group, or person. The public body does not usually initiate or make a recommendation to itself.
a. EXAMINING THE BOOKS AND RECORDS
A financial review team’s first function under § 13 is to examine the books and records of the local government.
As defendants point out, perhaps the closest analogue to a financial review team under the emergency financial manager act is the Auditor General. The Auditor General and his or her staff has the authority
b. UTILIZING THE SERVICES OF OTHER STATE AGENCIES AND EMPLOYEES
A financial review team is also empowered under § 13 to utilize the services of other state agencies and employees.
c. NEGOTIATING AND SIGNING A CONSENT AGREEMENT
It is a financial review team’s third function under § 13 — the power to negotiate and sign a consent agreement with the chief administrative officer of the local
As a result, when we consider the entirety of this critical subdivision of the emergency financial manger act, we conclude that a consent agreement that a financial review team negotiates and signs is but the first step in the process of effectuating or formulating public policy. A financial review team is not acting “upon” a “motion, proposal, recommendation, resolution, order, ordinance, bill or measure” that has come before it.
Such a consent agreement is, until the governing body of the local government approves it and the State Treasurer approves and executes it, only a recommendation. And, in our view, a recommendation for action by another entity, group, or individual, by its very nature, cannot constitute “governing” either through the effectuating or the formulating of public policy by the entity that is itself making the recommendation.
Therefore, under the process established by the emergency financial manager act, a financial review team can only, together with the chief administrative officer of a local government, provide a recommended consent agreement to the governing body of the local government and the State Treasurer. The financial review team itself has no capacity to act upon this recommendation and has no power to implement it. The effectuating and formulating of public policy can only occur by and through the actions of the governing body of the local government and the State Treasurer. They, and only they, can act upon the recommended consent agreement after the financial review team forwards that recommended consent agreement for approval.
This differs critically from the acts of individual or subquorum groups of regents in Booth Newspapers. In that case, the individual regents or subquorum groups were not merely making recommendations. Rather, they were effectively exercising the authority of the University of Michigan Board of Regents to narrow the field of candidates and ultimately choose the person to be the university president. In contrast, a financial review team cannot exercise authority to adopt a consent agreement but can merely participate in preparing a recommended consent agreement. And, in our view, the preparation of a recommended consent agreement cannot constitute “governing” either through the effectuating or the formulating of public policy.
And, as defendants point out, the functions that the emergency financial manager act empowers a financial review team to undertake do not include public policy-making with respect to a local governmental unit. While a financial review team performs its functions, local officials still govern the local governmental unit. The emergency financial manager act does not suspend or alter the authority of these officials until the Governor puts the local governmental unit into receivership and appoints an emergency financial manager.
We conclude therefore that the process by which a financial review team negotiates and signs a consent agreement is not “governing” through independent
We further recognize that the rather intricate workings of the emergency financial manager act create a situation whereby a financial review team’s decision not to negotiate and sign a consent agreement might be considered a “determination, action, vote, or disposition,”
Rather clearly, however, the Legislature anticipated such a circumstance. Under § 15(1)
Therefore, a financial review team’s decision not to negotiate and sign a consent agreement would eliminate one option — the approval and execution of a consent agreement — but that decision would leave at least
More broadly, a refusal to negotiate and sign a consent agreement is not an affirmative act of “governing.” Rather, it is a refusal to govern, a negative act. Logically speaking, therefore, a financial review team could not be a “governing body” if it, in fact, refused to govern.
d. MEETING WITH THE LOCAL GOVERNMENT
A financial review team’s fourth function under § 13 is to meet with the local government and receive, discuss, and consider information provided by the local government concerning the financial condition of the local government.
e. REPORTING ITS FINDINGS TO THE GOVERNOR
A financial review team’s fifth function under § 13 is to report its findings to the Governor, with a copy to the State Treasurer acting as the state financial authority.
Again, the financial review team is not acting on these advisory recommendations as it has no power to do so. Rather, the financial review team is making recommendations on which others may, at their discretion, act. And a financial review team has no discretion in the matter. Section 13(3) of the emergency financial manager act states that a financial review team “shall report its findings to the governor” and that the findings “shall include the existence, or an indication of the likely occurrence,” of any of a delineated set of financial conditions.
f. CONCLUSION
We therefore conclude that the authority and functions of a financial review team under § 13 of the emergency financial manager act
The fact that a financial review team can hire outside experts,
In light of our conclusion that a financial review team is not itself a public body, we conclude that the Supreme Court’s holding in Booth Newspapers is inapplicable here. That is, since the Detroit Financial Review Team is not itself a public body, then the State Treasurer could not himself, even if acting as a “one man committee,” be a public body exercising governmental authority.
4. DELEGATION BY A PUBLIC BODY
Additionally, we note that the fact that the Governor— who is clearly not a public body — appoints the financial review team, takes this case out of the realm of cases like Morrison v East Lansing,
But, ultimately this Court in Morrison concluded that the Hannah Building Committee was a public body under the Open Meetings Act, emphasizing that, unlike the advisory committee to the city manager in Herald Co, the Hannah Building Committee was created by the East Lansing City Council — a public body under the Open Meetings Act as a local legislative body — and that the city council “effectively authorized the [Hannah Building Committee] to perform a governmental function.”
We recognize that, under Morrison, an advisory committee to a public body that is created by that public body may itself constitute a derivative public body. But the question of a financial review team under the emergency financial manager act differs markedly from the committee at issue in Morrison. Unlike the Hannah Building Committee, a financial review team is not created by a public body to serve in an advisory role to a public body. Rather, as discussed previously, the emergency financial manager act provides a method for the
III. INJUNCTIVE RELIEF
A. OVERVIEW
We have explained our conclusion that a financial review team under the emergency financial manager act is not a “governing body” as the Open Meetings Act defines that term and, consequently, is not a “public body” subject to that act. The trial court in these consolidated appeals issued various forms of injunctive relief primarily based upon its contrary conclusion that the Detroit Financial Review Team is a “public body.” In examining the analysis in which the trial court engaged to reach that contrary conclusion, we find that analysis to have been, at best, superficial.
The trial court appeared to be concerned mainly with its own view that, in the general scheme of things, the Open Meetings Act ought to cover the Detroit Financial Review Team, not whether a close reading of the text of the Open Meetings Act actually warranted a conclusion that it does cover the Detroit Financial Review Team. In short, the trial court concentrated on what the law should be, not what the law is. More specifically, while the trial court did appear to recognize, at least superficially, the traditional standards for injunctive relief, it essentially
The trial court further found that there would be irreparable harm to the public if it did not issue injunctive relief, apparently without considering whether the declarative relief contained in its various rulings and orders was sufficient under the circumstances then prevailing and under applicable precedent of this Court and the Supreme Court. We therefore conclude that the trial court’s issuance of injunctive relief was contrary to controlling principles of law and an abuse of discretion.
B. STANDARD OF REVIEW
The grant or denial of a preliminary injunction is within the sound discretion of the trial court, and this Court will not reverse that decision absent an abuse of that discretion.
C. LEGAL standards
As this Court has recognized, “[a]n injunction represents an extraordinary and drastic use of judicial power that should be employed sparingly and only with full conviction of its urgent necessity.”
(1) the likelihood that the party seeking the injunction will prevail on the merits, (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued, (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued.[136 ]
Stated another way, injunctive relief “ ‘ “is an extraor
Further, with respect to irreparable harm, we
note that the Supreme Court has recently recognized that declaratory relief normally will suffice to induce the legislative and executive branches, the principal members of which have taken oaths of fealty to the constitution identical to that taken by the judiciary, Const 1963, art 11, § 1, to conform their actions to constitutional requirements or confíne them within constitutional limits. Only when declaratory relief has failed should the courts even begin to consider additional forms of relief in these situations.[138 ]
D. LIKELIHOOD OF SUCCESS ON THE MERITS
1. DOCKET NO. 309218
As previously noted, on February 1, 2012, Davis filed his action in the Ingham Circuit Court seeking both declaratory and injunctive relief based upon his assertions that the Detroit Financial Review Team, the Governor, and the State Treasurer had violated multiple provisions of the Open Meetings Act. On February 6, 2012, the trial court issued its order in this case granting a preliminary injunction and denying defendants’ motion for stay. The trial court granted the prehminary injunction against the Detroit Financial Review Team “for the reasons stated from the bench and incorporated herein” and denied defendants’ motion for stay on the same basis. The trial court made no mention of the standards for injunctive relief in this order.
We observe that the trial court’s orders depend on the rationale that the trial court advanced in its rulings from the bench on February 6 and February 15, 2012. While the February 15 ruling made no reference to the likelihood that Davis would prevail on the merits — a critical element in determining whether to issue an injunction — the trial court did shed some light on the reasoning behind its determination that the Detroit Financial Review Team was subject to the Open Meetings Act. In particular, the trial court mentioned that a financial review team had the “power to enter into a contract,” as well as the power to subpoena witnesses and the power to go to court to compel the production of documents.
In its ruling from the bench on February 6, the trial court articulated much the same rationale. After generally commenting on cases that the trial court had presided over involving advisory committees, the trial court stated that, “[v]ery importantly, [financial review teams] can negotiate and sign ... a consent agreement with the chief administrative office of the local government.” The trial court also mentioned that a financial review team has the right to examine books and records, the right to use other state agencies, the power to issue subpoenas, and the power to apply to courts to require persons to furnish answers to questions under oath. The trial court concluded, “This certainly goes far
It is therefore clear that the trial court did in these two rulings from the bench give some indication that it had examined the functions of a financial review team under the emergency financial manager act. However, the trial court, in its various rulings and orders, never mentioned the requirements of the Open Meetings Act and the cases interpreting it.
Accordingly, the trial court gave no indication — other than to say that its enumeration of a financial review team’s functions went “far beyond” those of an advisory committee — whether it considered a financial review team to be either a “legislative body” or a “governing body” as the Open Meetings Act uses those terms.
This lack of an Open Meetings Act analytical framework is best illustrated by the trial court’s handling of a review team’s power to negotiate and sign a consent agreement.
But a financial review team does not have such authority. As we have said, a consent agreement that a financial review team negotiates and signs is but the first step in the process of effectuating or formulating public policy. It is, until the governing body of the local government approves it and the State Treasurer approves and executes it, only a recommendation. And making a recommendation does not constitute “governing” either through the effectuating or the formulating of public policy. As we have outlined, a review team is not acting upon a recommendation when it negotiates and signs a consent agreement. Rather, it is making such a recommendation to the local governing body and to the State Treasurer.
In this respect, as well as with respect to the other powers of a financial review team that the trial court enumerated — all of which, in our view, are in furtherance of a financial review team’s investigative function and do not constitute governing — the trial court’s conclusion that Davis would prevail on the merits was contrary to controlling legal principles. Consequently, there was no likelihood, much less a substantial likelihood, that Davis would prevail on the merits. We conclude that to the extent that the trial court issued declaratory and injunctive relief in Docket No. 309218, that relief was unwarranted and inappropriate.
2. DOCKET NO. 309250
As described earlier in this opinion, the trial court held a hearing on defendant’s motions at issue in Docket No. 309250 on March 20, 2012. At the hearing,
And that was, of course, what I viewed to be a very potential and serious effort to undermine my ruling by appointing a subcommittee of members of this board to do the exact job that the board was supposed to do and then report back to the board, which if anyone had followed the Supreme Court rulings on these points it would have been clear that that would be, if true, a violation of the act.
So now I understand, and maybe I’m all wrong, but what I’ve picked up from the papers is that now has been discarded and they are not doing any subcommittee, and Mr. Dillon himself, who is the chair of this committee, is going around creating his own plan or having someone under his control create his own plan, submit that to the City of Detroit, submit it to various people without anybody knowing what is going on.
And then Dave Bing — I read the paper. I get the Detroit News. I get the Detroit News/Free Press combo, and I get all these editorials on both sides of things. But the reality is, is that none of us have been told anything. I issued an order that they have to meet properly under the Open Meetings Act. And I am very concerned and uncomfortable with the concept of creating your own plan and submitting it to someone for their approval without having an open meeting and a fair, frank discussion under the Open Meetings Act policy of these things.
The trial court went on to comment:
I am happy to have anybody appeal. But my orders are in place until the court of appeals overturns them. And if anybody says that the Open Meetings Act doesn’t apply here it certainly won’t be the court of appeals.
The trial court concluded by stating:
All I said was, all I said was is there can be no agreement executed with the City of Detroit under this plan until such*619 time as I see that the act has been complied with in an open and fair and frank manner. And that may well happen in minutes and they’ll explain it to us and we’ll all go home happy. I’ll sign an order to that effect....
After the hearing, the trial court issued its March 20, 2012, order. In that order, the trial court adjourned the show-cause hearing to March 29, 2012, and ordered defendants’ counsel to produce five members of the Detroit Financial Review Team to provide testimony at the show-cause hearing. The trial court further ordered the Detroit Financial Review Team and the State Treasurer not to execute or sign a consent agreement or its equivalent with the City of Detroit, the Detroit City Council, or the Mayor of Detroit until further order of the trial court.
We presume, from the context of this case, that the trial court relied on its previous finding that Davis was likely to prevail on the merits as one of the underlying reasons for issuing its March 20, 2012, order, although that is not clear from the record. While the trial court did, for the first time, make some brief references to the provisions of the Open Meetings Act, its ruling from the bench and its subsequent order simply contain no analysis of the functions of a financial review team through the lens of the requirements of that act.
Accordingly, we conclude that the trial court’s analysis was contrary to controlling legal principles. And, thus, there was no basis for the trial court to conclude that Davis was likely to prevail on the merits.
3. DOCKET NO. 309482
After McNeil filed his complaint on March 29, 2012, the trial court, without hearing from defendants, on March 30, 2012, issued a temporary restraining order and order to show cause that, among other things,
In that order, the trial court was making distinctly factual findings. Presumably, these findings were based on McNeil’s complaint because there was no other record before the trial court at the time of its order. Indeed, the trial court apparently issued its order without hearing from defendants, which is of itself distressing given the accessibility of defendants’ attorneys in the Lansing area. We decline to review these factual findings because they are irrelevant in light of our conclusion that the State Treasurer and the Detroit Financial Review Team are not public bodies under the Open Meetings Act. Therefore, the trial court’s finding that McNeil was likely to succeed on the merits is contrary to controlling legal principles.
E. IRREPARABLE HARM
The trial court twice referred to the irreparable-harm standard in its various rulings and orders in these consolidated appeals. The first reference was contained in its ruling concerning the preliminary injunction on February 6, 2012, when it stated:
But I do think that when you have a statute that requires open meetings and where the agency on its own authority is refusing to comply or that board is not com*621 plying with the requirements under that statute, that that is, per se, irreparable harm to the people of this state who have a right, who have a right to know what their boards and commissions who have this kind of power are actually doing. [143 ]
The second reference was in the trial court’s order of March 30, 2012, concerning McNeil’s request for a temporary restraining order, in which the trial court stated:
It is further ordered that [McNeil] may be entitled to [the injunctive relief described in the preceding paragraph of the order] in order to prevent irreparable harm, because [McNeil] will suffer more harm without an injunction than the Defendants will with an injunction, and the public interest weighs in favor of the issuance of the injunction. [144 ]
Thus, the trial court was aware of the requirement for a showing of irreparable harm before the issuance of injunctive relief. Further, the idea that there is per se irreparable harm to the public when a violation of the Open Meetings Act occurs has some support in case-law.
In this case, in its February 15, 2012, ruling from the bench concerning Davis’s motion for a declaratory
Our conclusion here is further supported by Nicholas v Meridian Charter Township Board,
Thus, we conclude that the trial court’s issuance of injunctive relief in Davis’s case on the basis of a finding of irreparable harm was an abuse of discretion. The trial court explicitly found that there was no bad faith on the part of defendants. And there had been no
We are, of course, cognizant of the fact that, after the trial court made its decisions on the merits of Davis’s Open Meetings Act claim, Davis sought civil contempt relief against the State Treasurer and the Detroit Financial Review Team. However, Davis’s allegation of contemptuous conduct was made after the trial court had issued its injunctive orders on February 6 and February 29, 2012. Rather obviously, events occurring subsequent to the grant of injunctive relief cannot retroactively justify the grant of such relief. But equally obviously, parties to litigation must follow rulings and orders of a trial court acting within its jurisdiction unless and until those rulings and orders are stayed or reversed. It is well established that a person may not disregard a court order simply on the basis of a subjective view that the order is wrong or will be declared invalid on appeal.
IV CONTEMPT OF COURT
We review for an abuse of discretion a trial court’s issuance of a contempt order, but we review for clear error its underlying factual findings, and we review de novo questions of law.
In his motion for civil contempt, Davis alleged that the Detroit Financial Review Team, including the State Treasurer, voted by resolution at a public meeting to create a five-member subcommittee and to delegate to that subcommittee authority to consider the risks and benefits of appointment of an emergency manager or institution of a consent agreement as well as to utilize staff of the Department of Treasury, conduct interviews, and hire professional consultants if necessary and that this subcommittee convened in private, with Davis being denied entry to the subcommittee meeting. Davis supported these allegations with affidavits from himself and another person.
We have determined that the Detroit Financial Review Team was not a public body and that the trial court abused its discretion by issuing injunctive relief. Therefore, we have determined that various rulings and orders of the trial court in these consolidated appeals were incorrect. But, of course, that is immaterial to the fact that defendants were obligated to obey those orders while they were in effect. And we cannot conclude that the trial court abused its discretion by scheduling a show-cause hearing based upon Davis’s motion for civil contempt.
It is well established in Michigan caselaw, particularly by the Supreme Court’s opinion in Booth Newspapers and this Court’s opinion in Morrison, that a public body cannot evade its duty to comply with the Open Meetings Act by delegating its powers to a subcommittee.
We emphasize that our holding that a review team is not actually a public body subject to the Open Meetings Act is immaterial to this conclusion. Again, a party may not disregard a court order on the basis of a subjective view that the order is wrong or will be declared invalid
Accordingly, we remand Davis v Detroit Financial Review Team (Docket No. 309250) to the trial court for further appropriate proceedings regarding Davis’s motion for civil contempt. We note that, generally, coercion to force compliance with a court order and compensatory relief for a complainant are both appropriate potential sanctions for civil contempt.
Nevertheless, Davis could potentially be entitled to a civil contempt sanction in the form of a compensatory award of attorney fees, other costs, or both that he incurred on the basis of any proven civil contempt by the Detroit Financial Review Team, the State Treasurer, or both. For example, Davis may be entitled to an award for attorney fees incurred in bringing his motion for civil contempt relief in the event that he proves such civil contempt.
We hold that a financial review team, and therefore the Detroit Financial Review Team, is not a “governing body” and therefore is not a “public body” under the Open Meetings Act and is not statutorily required to comply with the Open Meetings Act. We also conclude that the State Treasurer, whether acting in his executive capacity or as a “one man committee” of the Detroit Financial Review Team, is not a “public body.”
We further conclude that the trial court’s various rulings and orders in these consolidated appeals on their face constituted injunctive relief, and we hold that the trial court abused its discretion when it issued such injunctive relief. We therefore reverse and vacate these rulings and orders in their entirety. Accordingly, with regard to Docket Nos. 309218 and 309482, we remand to the trial court for entry of judgment in favor of defendants on the merits of the Open Meetings Act claims brought by Davis and McNeil, respectively. However, in Docket No. 309250, we remand for an evidentiary hearing on Davis’s allegations that various state officials and members of the Detroit Financial Review Team were in contempt of court.
No costs, a public question being involved. Pursuant to MCR 7.215(F)(2), this opinion shall be given immediate effect. We do not retain jurisdiction.
MCL 15.261 et seq.
MCL 141.1501 et seq.
MCL 141.1512(3).
MCL 15.262(a).
MCL 141.1501 et seq. This act is also sometimes referred to as “Act 4" because of its public act number, that is, 2011 PA 4.
MCL 141.1505(k)(¿); MCL 141.1512(1).
MCL 141.1512(3).
Id.
Id.
MCL 141.1513(1).
MCL 141.1513(l)(c).
MCL 141.1513(2).
Id.
MCL 141.1513(3).
MCL 141.1515.
Id.
MCL 15.261 et seq.
MCL 15.262; MCL 15.263.
MCL 15.271.
MCL 15.262(a).
MCL 15.262(b).
MCL 15.262(d).
MCL 15.270.
MCL 15.262(a).
Tyler v Livonia Pub Schs, 459 Mich 382, 393 n 10; 590 NW2d 560 (1999) (“Our role as members of the judiciary is not to determine whether there is a ‘more proper way,’ that is, to engage in judicial legislation, but is rather to determine the way that was in fact chosen by the Legislature. It is the Legislature, not we, who are the people’s representatives and authorized to decide public policy matters such as this.”).
Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011).
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007) (quotation marks and citation omitted).
Fluor Enterprises, Inc v Dep’t of Treasury, 477 Mich 170, 174; 730 NW2d 72 (2007).
Tull v WTF, Inc, 268 Mich App 24, 31; 706 NW2d 439 (2005).
Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998).
In re Application of Indiana Mich Power Co, 275 Mich App 369, 376; 738 NW2d 289 (2007).
Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
Herald Co v Bay City, 463 Mich 111; 614 NW2d 873 (2000), modified on other grounds in Mich Federation of Teachers & Sch Related Personnel, AFT, AFL-CIO v Univ of Mich, 481 Mich 657 (2008).
Id. at 115.
Id. at 129-130.
MCL 15.231 et seq.
Herald Co, 463 Mich at 130, citing MCL 15.232(d).
Herald Co, 463 Mich at 130-131 (citations omitted).
MCL 141.1512(1).
MCL 15.262(a).
MCL 15.262(b).
MCL 15.262(d).
Herald Co, 463 Mich App at 131. See also A&E Parking v Detroit Metro Wayne Co Airport Auth, 271 Mich App 641, 651; 723 NW2d 223 (2006) (stating that the chief executive officer of an airport authority was not a public body under the Open Meetings Act); Craig v Detroit Pub Sch Chief Executive Officer, 265 Mich App 572, 579-580; 697 NW2d 529 (2005) (stating that the chief executive officer of the Detroit Public Schools was not a public body because he was an individual acting in his official capacity).
MCL 141.1513(l)(c).
Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211; 507 NW2d 422 (1993).
Id. at 216.
Id.
Id. at 225-226.
Id. at 226.
Id., quoting Goode v Dep’t of Social Servs, 143 Mich App 756, 759; 373 NW2d 210 (1985) (alteration in original).
Booth Newspapers, 444 Mich at 226.
Id.
Herald Co, 463 Mich at 135 n 18.
For the sake of clarity, we note that in its final order granting declaratory and injunctive relief to Davis, the trial court only held the Detroit Financial Review Team to constitute a public body under the Open Meetings Act. However, McNeil asserted in his complaint that all defendants are public bodies under the Open Meetings Act. Thus, the question of whether the State Treasurer is a public body under the Open Meetings Act is within the scope of issues in controversy in McNeil’s case.
Id. at 129.
Id., quoting MCL 15.262(a).
MCL 15.262(a); see also Herald Co, 463 Mich at 129.
See MCL 141.1512(3).
MCL 8.3a.
People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006); Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 522; 676 NW2d 207 (2004).
People v Redden, 290 Mich App 65, 76-77; 799 NW2d 184 (2010) (dealing with initiated laws) (citation omitted; alteration in original).
American Heritage Dictionary of the English Language, New College Edition (1978) (emphasis added).
Id.
Random House Webster’s College Dictionary (1997).
Id. "
Garner, A Dictionary of Modern Legal Usage (2d ed) (New York: Oxford University Press, 1995).
MCL 141.1529.
American Heritage Dictionary of the English Language, New College Edition (1978).
Random, House Webster’s College Dictionary (1997).
Garner, A Dictionary of Modern American Usage (New York: Oxford University Press, 1998).
See, for example, MCL 45.582(d); MCL 120.102(c) and (d); MCL 123.731(k); MCL 124.112(b); MCL 124.301(f); MCL 124.531(a); MCL 125.651(d); and MCL 125.1603(c). See Louis A Demute, Inc v Employment Security Comm, 339 Mich 713, 721-722; 64 NW2d 545 (1954) (indicating that, although not determinative, the terms of one statute may he taken as a factor in determining the interpretation of another statute).
Macomb Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001) (“We construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature.”).
MCL 15.262(a).
Schmiedicke v Clare Sch Bd, 228 Mich App 259, 264; 577 NW2d 706 (1998).
MCL 141.1512(3).
MCL 141.1513.
MCL 141.1513(3).
MCL 141.1513(4).
MCL 141.1513(4)(b).
MCL 141.1513(5).
MCL 141.1526(1).
Id.
The American Heritage Dictionary of the English Language, New College Edition (1978).
The American Heritage Dictionary of the English Language, New College Edition (1978).
MCL 15.262(d) (emphasis added).
Booth Newspapers, 444 Mich at 225 (emphasis added), citing Goode, 143 Mich App at 759 (“The dispositive question is whether the performance of necessary governmental functions is open to the public.”).
Apsey v Mem Hosp, 477 Mich 120, 131; 730 NW2d 695 (2007) (“[A] reviewing court should not interpret a statute in such a manner as to render it nugatory.”).
MCL 15.262(a).
Herald Co, 463 Mich App at 132, n 15 (stating that establishing the second requirement — governmental authority — does not establish the first requirement — that the entity is a legislative or governing body).
Crowley v Governor, 167 Mich App 539; 423 NW2d 258 (1988).
Id. at 541-542.
Id. at 545-546.
See also Herald Co, 463 Mich at 136 n 19 (concluding that a purely advisory body that did not derive its power from state constitution, statute, charter, ordinance, resolution, or rule was not subject to the Open Meetings Act).
MCL 15.262(d).
MCL 141.1513.
MCL 15.262.
MCL 141.1513(l)(a).
See Herald Co, 463 Mich at 136 n 19 (stating that a city manager’s committee’s duties — to aid in establishing hiring criteria, soliciting and screening applicants, interviewing applicants, and to advise on the selection of the most qualified candidate — were “purely advisory in nature”); House Speaker v Governor, 443 Mich 560, 594 n 40; 506 NW2d 190 (1993) (stating that the Open Meetings Act does not apply to advisory boards created by executive order to advise governmental departments).
MCL 13.101(2).
MCL 13.101(3).
MCL 13.101(4).
MCL 141.1513(l)(b).
MCL 141.1513(l)(c).
Id. (emphasis added).
MCL 15.262(d).
See Herald Co, 463 Mich at 136 n 19; Booth Newspapers, 444 Mich at 240 n 8 (Boyle, J., concurring in part and dissenting in part).
See Minock v Shortridge, 21 Mich 304, 315 (1870) (stating that an executory contract “has no binding force until it is confirmed”).
MCL 141.1519(2).
See MCL 15.262(d).
MCL 141.1515(1).
MCL 141.1513(3).
MCL 141.1515(l)(a).
MCL 141.1515(l)(c).
MCL 141.1513(2).
MCL 141.1513(3).
MCL 141.1513(3) (emphasis added).
MCL 141.1513.
MCL 15.262(a).
MCL 141.1513(5).
MCL 141.1526(1).
Id.
Morrison v East Lansing, 255 Mich App 505, 520; 660 NW2d 395 (2003).
Id. at 507-508.
Id. at 520.
Id.
Id. at 518-520.
MCL 141.1512(3).
Tyler, 459 Mich at 393 n 10.
Mich Coalition of State Employee Unions v Civil Serv Comm, 465 Mich 212, 217; 634 NW2d 692 (2001).
Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit, 482 Mich 18, 28; 753 NW2d 579 (2008).
Jeffrey v Clinton Twp, 195 Mich App 260, 263; 489 NW2d 211 (1992).
East Lansing v Dep’t of State Police, 269 Mich App 333, 335; 712 NW2d 519 (2005).
Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 408; 716 NW2d 236 (2006).
Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America, UAW v Michigan, 231 Mich App 549, 551; 587 NW2d 821 (1998).
Senior Accountants, Analysts & Appraisers’ Ass’n v Detroit, 218 Mich App 263, 269; 553 NW2d 679 (1996).
Alliance for the Mentally Ill of Mich v Dep’t of Community Health, 231 Mich App 647, 660-661; 588 NW2d 133 (1998); see also Mich State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984), and Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 10-11; 753 NW2d 595 (2008) (discussing the irreparable harm portion of the analysis).
Pontiac Fire Fighters Union, 482 Mich at 8, quoting Kernen v Homestead Dev Co, 232 Mich App 503, 509; 591 NW2d 369 (1998), quoting Jeffrey, 195 Mich App at 263-264.
Straus v Governor, 459 Mich 526, 532; 592 NW2d 53 (1999) (quotation marks and citations omitted).
See MCL 15.262(a).
Id.
Id.
MCL 141.1513(l)(c).
Emphasis added.
Emphasis added.
See, for example, The Detroit News, Inc v Detroit, 185 Mich App 296, 301; 460 NW2d 312 (1990) (“We believe it is implicit in the purpose of ‘sunshine laws’ such as the [Open Meetings Act] that there is real and imminent danger of irreparable injury when governmental bodies act in secret.”).
See Esperance v Chesterfield Twp, 89 Mich App 456, 464-465; 280 NW2d 559 (1979), citing Wexford Co Prosecutor v Pranger, 83 Mich App 197, 205; 268 NW2d 344 (1978).
Nichols v Meridian Charter Twp Bd, 239 Mich App 525, 533-534; 609 NW2d 574 (2000). See also MCL 15.270(2) (“A decision made by a public body may be invalidated if the public body has not complied with the [Open Meetings Act] requirements ... in making the decision . .. and the court finds that the noncompliance or failure has impaired the rights of the public under [the Open Meetings Act].”) (emphasis added).
Straus, 459 Mich at 532.
Porter v Porter, 285 Mich App 450, 465; 776 NW2d 377 (2009).
Id. at 454-455.
See MCL 600.611; MCL 600.1715.
Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23, 40; 585 NW2d 290 (1998), citing In re Hague, 412 Mich 532, 544-545; 315 NW2d 524 (1982).
State Bar of Mich v Cramer, 399 Mich 116, 125-126; 249 NW2d 1 (1976), overruled on other grounds by Dressel v Ameribank, 468 Mich 557, 562 (2003).
In re Contempt of Steingold (In re Smith), 244 Mich App 153, 158; 624 NW2d 504 (2000), quoting In re Contempt of Calcutt, 184 Mich App 749, 757; 458 NW2d 919 (1990).
In re Contempt of United Stationers Supply Co, 239 Mich App 496, 501; 608 NW2d 105 (2000).
See Booth Newspapers, 444 Mich at 225-226; Morrison, 255 Mich App at 519-520.
Porter, 285 Mich App at 465.
In re Contempt of Dudzinski, 257 Mich App 96, 110; 667 NW2d 68 (2003), quoting Kirby, 459 Mich at 40.
Contempt of United Stationers, 239 Mich App at 499.
Concurrence Opinion
(concurring in part and dissenting in part). I concur with the majority opinion that the City of Detroit Financial Review Team is not subject to the Open Meetings Act (OMA), MCL 15.261 et seq. I also concur that the Governor and the State Treasurer, being individual executive branch officeholders, are not
I also write separately to remind all public servants that our governmental system turns on a respectful balance of power among the three branches of government. As Thomas Jefferson aptly explained, “the constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs.” Ford, ed, Letter from Thomas Jefferson to William Charles Jarvis (September 28, 1820), in The Writings of Thomas Jefferson, (New York: G. E Putnam’s Sons, The Knickerbocker Press, 1899), vol X, p 161. The judicial branch’s responsibility is to interpret the law impartially, free from the political process reserved for the other two branches of government. In my view, these tenets preclude any remand in this case. I would reverse all of the trial court’s rulings.
All judges, including me, are at risk of overstepping boundaries during an intense, frenetic legal battle, and, for that reason, all judges must rely on the federal and state constitutions, each other, and the appellate system to recognize and respect boundaries.
At the heart of the cases now before the Court is the political question doctrine.
With these considerations in mind, the critical legal question for the trial court to consider was whether the Detroit Financial Review Team is a “public body” within the meaning of the OMA — not whether a review team should (in the trial court’s opinion) be subject to the OMA or whether it is desirable (again, in the trial court’s opinion) for some or all of the meetings of the Detroit Financial Review Team to be open to the public. Unfortunately, the trial court missed this critical question. Rather, as reflected in the trial court’s emphasis at the February 15, 2012, hearing in this matter on its belief that “[t]he first caveat of this society is that we have an open government,” it appears that the trial
Further, a trial court’s most comfortable function is to review historical facts, apply the law to those facts, and to reach a conclusion as to the lawfulness of the actions of the parties. In the present cases, the trial court preempted the parties’ political actions by first assuming that the OMA applied to the Detroit Financial Review Team and then by issuing injunctions to stop the political process, particularly with regard to the Detroit Financial Review Team being able to negotiate a consent agreement with the city of Detroit. As set
Indeed, as referred to by the majority, in Straus v Governor, 459 Mich 526, 530; 592 NW2d 53 (1999), the Michigan Supreme Court adopted as its own this Court’s opinion in that case. Straus includes the following discussion of the propriety of injunctive relief against the Governor or other executive branch actors:
It is clear that separation of powers principles, Const 1963, art 3, § 2, preclude mandatory injunctive relief, mandamus, against the Governor. People ex rel Sutherland v Governor, 29 Mich 320; 18 Am Rep 89 (1874). Whether similar reasoning also puts prohibitory injunctive relief beyond the competence of the judiciary appears to be an open question that need not be resolved in this case. We do note that the Supreme Court has recently recognized that declaratory relief normally will suffice to induce the legislative and executive branches, the principal members of which have taken oaths of fealty to the constitution identical to that taken by the judiciary, Const 1963, art 11, § 1, to conform their actions to constitutional requirements or confine them within constitutional limits. Durant v Michigan, 456 Mich 175, 205; 566 NW2d 272 (1997). Only when declaratory relief has failed should the courts even begin to consider additional forms of relief in these situations. Id. at 206. [Straus, 459 Mich at 532 (quotation marks and citation omitted).]
Thus, even if the trial court had been correct in its determination that a financial review team constitutes a public body subject to the OMA, it abused its discretion by granting permanent injunctive relief against the
Accordingly, in future circumstances involving questions of the legality of conduct by state government officials or entities within the executive or legislative branches, a trial court should issue a declaratory judgment regarding those questions and presume that the other branches will follow the court’s decision. This measured approach avoids a court immersing itself in the political process reserved for the political branches of government and thereby reduces the risk of stigmatizing the judiciary as being merely another political actor.
Moreover, even apart from the special consideration due to state level executive and legislative branch actors, injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent
The trial court’s interference in the activities of the Detroit Financial Review Team, even going so far as to enter an injunctive order to preclude that review team from entering into a consent agreement with the city of Detroit, markedly disrupted the political process, particularly with sensitive matters involving financial reforms of city government that by their very nature are beyond judicial competence and lack judicially discoverable and manageable standards for resolution. See Zivotofsky, 566 US at _; 132 S Ct at 1427.
Courts should not allow themselves to be used as vehicles to interfere with the political process. Except in highly unusual circumstances, it is sufficient for a trial court to issue a declaratory judgment regarding an allegedly improper action by an executive or legislative branch actor. While the trial court’s actions were presumably done with no political agenda and with a view to the best interests of the parties (and the city of Detroit), the results were inappropriate injunctions issued against another branch of government, when a simple declaratory judgment would have sufficed.
I would reverse all of the trial court’s rulings in their entirety.
In my opinion, neither the Governor nor the State Treasurer acting in the scope of official duties is subject to the OMA, even if acting as a one-person subcommittee of a public body that is subject to the OMA.
These cases involve the relationship between the OMA and the Local Government and School District Fiscal Accountability Act, MCL 141.1501 et seq., commonly known as the emergency financial manager act. The central issue presented to us in these cases is whether a review team that the Governor appoints under § 12(3) of the emergency financial manager act, MCL 141.1512(3), is a “public body,” as defined in § 2(a) of the OMA, MCL 15.262(a). The entire panel agrees that a review team — and therefore the Detroit Financial Review Team — is not a public body under the OMA. Because the trial court erred by concluding that a
In this regard, we as judges are susceptible to what is commonly known as “judicial robe disease.” We reduce our susceptibility by adhering to the constitutional separation-of-powers principles.
For an extensive discussion of the concept of separation of powers and the political question doctrine, see Bendix Safety Restraints Group, Allied Signal, Inc v City of Troy, 215 Mich App 289, 294-300; 544 NW2d 481
Of course, such “manipulation” could occur subconsciously rather than intentionally.
A trial court’s grant of injunctive relief is reviewed for an abuse of discretion. Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 8; 753 NW2d 595 (2008).
There was a more egregious lack of respect for the proper separation of powers by the trial court that presided over Muma v Flint Financial Review Team, unpublished opinion per curiam of the Court of Appeals, issued May 21,2012 (Docket No. 309260), with regard to which this panel is releasing a separate opinion. In Muma, the plaintiff sought a declaratory judgment concerning the applicability of the OMA to the City of Flint Financial Review Team and an injunction to prevent further alleged violations of the OMA. Rather than issuing a simple declaratory judgment and then allowing the state actors to take further appropriate actions, the trial court in Muma used its power to intrude into spheres of government reserved for the political branches. With a figurative swipe of the pen, the trial court permanently enjoined the defendants in that case (the City of Flint Emergency Financial Manager, the Governor, the State Treasurer, and the City of Flint Financial Review Team) “from taking any action reserved to the mayor and city council to govern and administer Flint under its charter and ordinances.” Id. at 3. Thus, rather