*1 App 456 89 Mich ESPERANCE v CHESTERFIELD TOWNSHIP 5, 1979, at Docket No. 77-3142. Submitted October Detroit. Decided 16, April 1979. eligible Township, County, became for Chesterfield Macomb three liquor township C licenses. The board utilized a additional class appli- system to determine which of 27 of elimination ballots granted the licenses. The ballots were secret cants would applicants and for each of the three successful resolutions were Following meeting, approved by roll call votes. Wil- then Esperance brought against liam an action for a voting procedure was in declaration that the board’s violation Act, seeking to have the board’s granting decision the licenses invalidated and to have the board voting. enjoined from future use of this method of The Macomb Court, Chrzanowski, J., granted Robert J. the defen- Circuit summary judgment on dant’s motion for the basis appeals. failed to state a cause of action. Plaintiff Held: 1. The section of the Act which allows a public body decision of a be invalidated for violation of three disjunc- enumerated subsections of the act is to be read in the conjunctive. tive rather than the A violation of one of the Therefore, three subdivisions is sufficient allow invalidation. subsection, plaintiff, pled only who violation of one did state a cause of action. interpreted prohibit public body 2. The act is . by secret ballot. necessary merely 3. It is not to invalidate the board’s decision prohibits voting by party because the act A secret ballot. seeking allege only invalidation of a decision must violation of the act but the violation also [2, [3, [1] Validity, 4, 5, 73 Am Jur 6] proceedings open Political Subdivisions Political Subdivisions 161. 56 Am Jur 7] 56 Am Jur construction, 2d, References Statutes 298. 2d, Municipal Corporations, 2d, Municipal Corporaitons, §§ § § public. 168-176. application Points in Headnotes ALR3d of statutes 1070. Counties and Other Counties, making public and Other Chesterfield v rights Because the failed to impairment of the will not be decision invalidated. *2 circumstances, 4. Under the there is no real and imminent danger irreparable injury requiring of the issuance of an in- junction. part, part. Affirmed in reversed in J., go Kelly, M. J. dissented. He would not so far as to every public meeting carry declare that vote taken at a must identity require it not with of the voter. The act does voting prescribed any be carried out in or formal manner. Kelly Judge requirement also would find no that the allege impaired rights must that a violation of the act case, majority Since the has found a violation in this give opportunity prove he would remand to impairment rights. an
Opinion of the Court — Conjunc- — — 1. Construction Words Phrases and Statutes Disjunctive. —tive join usually The use of the word "and” to clauses in a statute however, conjunctive; connotes the where it is clear that the Legislature disjunc- intended to have the clauses read in the tive, may the word "or” be for substituted the word "and”. Open Meetings — — — 2. Statutes Act Public Bodies Invalida- tion of Decision. Act, Open Meetings listing Each of three subsections of the requirements meetings bodies, public independent is an objective act; therefore, any the violation of one of those requirements by public is, body reaching a in a decision under act, independent invalidating basis for the decision (MCL 15.263[1], [2], [3], 15.270[2]; 4.1800[13], [1], [2], [3], MSA 4.1800[20][2]). Open— Meetings Objectives — — 3. Statutes Act Secret Bal- lots. Open Meetings provide openness The Act was enacted to accountability government interpreted and is to be so as accomplish goal; keeping objective, with this because the legislative history supports of the act the contention that the passed voting, act was to combat secret and because of the implicit requirement parts meeting that all of a prohibits voting body by a (MCL seq.; seq.). ballot 15.261 et MSA et 4.1800[11] App 89 Mich op Opinion the Court — —(cid:127) Open Meetings — Invalida- 4. Statutes Act Public Bodies op — Decisions Court’s Discretion. tion in violation of the Invalidation of decisions made (MCL discretionary with the court Act is 4.1800[20][2]). 15.270[2];MSA — Open — Meetings Impairment op Pleading — 5. Act Statutes op Rights Public. party seeking invalidated a decision of a A to have Meetings Open Act because of a violation act, comply only public body failed to with the but also that the (MCL this failure 15.270[2]; 4.1800[20][2]). Kelly, M. J. J. Dissent Meetings Voting — Open— — Secret Ballot. Act 6. Statutes requirement Act that in the There is no manner; balloting by formal be done requirement, a vote of a without absent such a per identity revealing is not se a violation of of the voter *3 (MCL seq.). seq.; et 15.261 et MSA 4.1800[11] Open Meetings Impairment — Pleading — — of 7. Act Statutes op Rights Public. validity party challenging on the of a decision of A alleged the Act need of an violation of the basis violation the that the action, and where a violation of the in order to state a cause of found, opportu- given the the should be act has been rights by offering proofs nity prove impairment at trial to (MCL15.270[2]; 4.1800[20][2]). plaintiff. Childs, E. Robert Anthony, Bucci, Hearsch, for defen- Biernat & dant. Kelly D. C. Bronson, P.J.,
Before: and M. J. Riley, JJ. present the case involves P.J. The Bronson, recently
proper interpretation given the to be Chesterfield v op Opinion the Court seq.; Meetings Open Act, 15.261 et enacted MSA prohibits 4.1800(11) seq., specifically whether act et voting by ballot. population, defendant increase
Due to an eligible township for three additional class became people applied Approximately liquor licenses.1 C in order to trim number of licenses and for the granted applicants would be to the three that system township utilized a licenses, the the first elimination ballot ballots. On elimination applicants voted for members the board passed tallied to the clerk who the ballots people the 12 the names of and announced votes not, clerk did the most votes. The received who however, which board members voted announce applicants the votes nor did she record for which repeated procedure This same was in the minutes. applicants from 12 to six the number of to reduce and applicants finally to three. After the number from six three, individual reduced to
had been applicant ap- were resolutions for each successful proved by was recorded a roll call vote which Although plaintiff present at the the minutes. meeting, objection he raised no procedure.
Following meeting, plaintiff commenced the seeking pursuant present lawsuit, a declaration voting procedure 1963, used GCR 521 that 3(2)2 §of board was in violation sought Act. Plaintiff also liquor granting li- have the decision board’s *4 1 seq.; liquor pursuant MCL 436.1 et The licenses were issued Michigan seq. applicants applied to the MSA 18.971 et The first sought approval Liquor applicants local Control Commission which in turn 436.17; township pursuant 18.988. to MCL MSA 2 4.1800(13)(2). 15.263(2); MSA meeting open public body "All decisions of a shall be made at a public.” App 89 Mich Opinion op the Court enjoin censes invalidated and to the board from using this method of in the future. Defen- summary judgment dant moved for claiming plaintiff failed to state a cause of action granted under the act. The trial court the motion appeals right. and now as of support summary judgment In of its motion for alleged plaintiff’s complaint defendant first statutory requirements failed to set 4.1800(20X2) 15.270(2); forth in MCL which prerequisities are sion of a to the invalidation of deci-
public body under the act. "A decision made body may be invali if complied dated has not with the (2) (3) 3(1), requirements of in making the decision § [*] [*] *."3 Legislature
Defendant contends that since the requirements used word "and” the are con- junctive, disjunctive. According defendant, plead prove violations of all invalidated, three sections before a decision can be 3(2) plaintiff only alleged and since § a violation of he failed to state a cause of action.
While it is true that the use of the word "and” usually conjunctive, in a statute rule is not an absolute. connotes the popular "The use of 'or’ and 'and’ is so loose and so frequently inaccurate statutory it has infected (1) meetings "Sec. 3. All of a shall be to the place general public. and shall held in a available to the All persons permitted any meeting except shall be to attend as otherwise provided in this act. "(2) meeting open All decisions of a shall be made at a to the "(3) public body constituting quorum All deliberations of a of its place meeting open public except members shall take at a as provided otherwise in sections 7 and 8.” *5 461 v Chesterfield op Opinion the Court interchange- as they are not treated While enactments. able, accurate read- followed when their and should be dubious, their strict the sense ing does not render meaning is more of readily departed from than that words, place of the other and one read in other meaning Heckathorn v of the context.” deference (1938). 677, Heckathorn, 681; 79 284 Mich 280 NW Legislature Therefore, it clear that when is disjunc- in the the clauses read intended to have tive, for the the word "or” can be substituted Dep’t conjunctive Aikens v of Conserva- "and”. See (1972). In tion, 495; 304 387 Mich 198 NW2d Department Aikens, seized of Conservation grounds perch on the certain catches of they meet the "in undersized as failed to fish were following length requirement of the the round” statute:
"(d) Perch, length in the than 8 1/2 inches less perch weight than 13/4 round and filleted ounces; perch a less length of a with heads and tails off less * * *” added.) inches; (Emphasis than 1/2 13.1505(1)(d). 308.14(1)(d); MSA The fisherman contended the statute that because illegally used the word not "and” fish were caught they inches in unless were less than 8-1/2 weighed the round and than ounces less 1-3/4 filleted, when and were less than inches in 5-1/2 length Supreme with the heads and off. The tails reading Court, however, stated that a careful Legislature the statute indicated that the intended up separate tests, one, to set three not and if the tests, fish failed to meet illegally possessed. the fish were applicable present The Aikens case is reading case. A careful shows that of the statute Legislature a decision of a intended that App 89 Mich Opinion the Court of either a violation invalidated could be independent (3), was an 3(1), (2), or as each § act. objective would of the statute interpretation
Defendant’s interpreta- such an Under meaningless. it render in violation tion, would but delib- *6 public its decisions if it made statute in deliberated conversely, or private in erated if it or private, its decisions but made public the but held the meetings to its opened the to inaccessible which was place in a meetings make intended to clearly Legislature The to made intended illegal, and three actions all for basis independent the three violations did not Plaintiff illegal actions. invalidating the this reason. of action for a cause fail to state Meet Open the next contends Defendant ballots, secret prohibit expressly ings Act does aof decisions requires only instead but "[a]ll to the meeting open made at a shall be public Therefore, according to defendant public”.4 act because complied with ballot,5 balloting by it voted secret though even find public. We meeting open at a was done unconvincing. this contention Open current enacting to Prior Act, special committee Legislature created meetings of the former study operation recommending committee, report The its law.6 Act, decried a new passage of officials. voting by evils of secret in the every level at voting by elected officials "Secret 4 4.1800(13)(2). 15.263(2); MSA MCL 5 though final three each of the even The vote was secret ballot granted liquor vote. This final applicants a roll call license was already had merely perfunctory, real decisions since the vote was balloting. preliminary been made in the secret 4.1800(1) seq. seq.; 15.251 et et v Chesterfield Opinion op the Court government atmosphere suspicion tends to foster an decision-making by public officials, mistrust of imagined. it atmosphere be real or Such an whether is impediment respect intolerable an institutions as well as our officialdom and cannot be persist. allowed "As U.S. Senator Adlai E. III Stevenson of Illinois has
observed, secrecy 'Excessive prevents breeds distrust. It accountability. It principle gov- does violence to the ernment governed.’ based on the informed consent of ”7 legislative
The history the act thus supports the contention that passed to combat in all of its it forms whether be by meeting closed or by secret ballot.
In Wexford County
Pranger,
Prosecutor v
197;
Mich App
(1978),
It should also be recognized that because the act requires meetings all to be it opened public implicitly requires that all parts meeting (unless act) specifically excluded by the also be open to the public. Clearly could not open only the first five meeting minutes of the and then close the rest of the meeting argue that it complied with the Open Meetings Act. Similarly, 7 Special Study Ethics, Report Senate Committee on Political Final (1973), at 10. App 456 Mich
464 89 Opinion the Court meeting effectively part of a closes a secret ballot balloting from withdraws the the to since meeting. part the view essential Open reasons, the Meet- hold that For we these voting by ings prohibits from Act ballot,8 trial erred in not and the court secret granting plaintiff’s declaratory
complaint relief point. this on balloting prohibited
Merely is secret because automatically Open Meetings Act9 does not the present the case decision in mean that the board’s injunction must invalidated, that an must be pro- utilizing restraining the issue defendant in the future. cedure in contravention made
Invalidation decisions discretionary the court. Those the with of seeking act is invalidated must have decision to the allege only to the failed not that comply act, the also that this failure but with 15.270(2); public. the 4.1800(20)(2). pres- in This was not done the ent Plaintiff did not case. sought willfully intentionally violate or
board
definitely
interpreting the
Act
We
not
are
alone
Meetings
interpreting
Open
in this
In
its own
Act which
manner.
required
public proceed
Michigan’s
only
"all
similar to
in that it
* *”
*
(Burns Indiana
ings
state
shall
citizen
be
Supreme
Edition, 5-14-1-4),
Annotated,
Indiana
Code
Statutes
prohibited
balloting.
La
State v
Court also held that the statute
secret
(1967).
#2,
152;
Superior
Porte
Court
Finally, the record indicates that the board good utilizing voting proce- acted in faith in subterfuge dure. involved, There was no but in- adopted procedure expe- stead the board as an improper, narrowing dient, albeit method of applicants. field of Under this circumstances, set of danger irrepara- there is no real and imminent injury requiring injunction. ble issuance of an See County Pranger, supra, Wexford Prosecutor v at 205. part part.
Affirmed costs, reversed in No public question being involved. Riley, J., D. C. concurred. (dissenting). agree M. J. J. with the Kelly, I
majority opinion prere insofar itas holds that the quisites any to the invalidation of decision of a public 15.263(1)-(3); listed in 4.1800(13)(1)-(3) disjunctive are rather than con junctive. express my However, I write to reluc go every tance so far as to declare that vote public meeting carry taken at a identity with it the meeting of the voter. The of board was accessible, advance notice given, appellant and there is no claim that or merely examples These are of some of the situations which could impairment examples These are show_ not mandatory allegations. intended to constitute either an all-inclusive list or a list of *9 App 456 89 Mich by Kelly, J. Dissent in or hindered was barred public
member to address the in opportunity or attendance request tally, for a any there been Had body. called to upon have been township board would refused, spirit I believe the if it had respond; violated, but Act would have been that far on this record. go I would not for the procedures prescribed The act has not in Nothing bodies. voting by conduct of balloting, if conducted that requires act conducted publicly, be announced vote, formal accomplished or or "no” "yes” Section 9 of the act does contends. as way all roll call minutes "shall include require the act does not meeting”, at the but votes taken a roll call vote to dictate when purport and cannot the formalities for conduct- or describe required is that, if there had say a vote. Are we ing such would be vio- applicants, 100 such been taken, 66, or 100 roll call votes were lated unless or 33? a far more detailed chronicle prefer
I would the act before legislative processess underlying on these facts. There finding per a se violation public bodies must be countless situations before if that is of elimination calling process for a the same formal- accomplished to be with required of a final deci- required adoption is for the ity as sion, vote), might (e.g., a roll call the ramifications incalculable, be, unduly burden- certainly if not some. find a violation
Apart my reluctance facts, from the I dissent the act on these must also case after ultimate of this majority’s disposition that, al- holds finding majority a violation. The of the act there was a violation though v Chesterfield by Kelly, Dissent J. present case, "since failed impaired by were ballot, he failed to state cause of action invalidating under the act for the decision of the disagree. respectfully I board”. 4.1800(20)(2) 15.270(2); states:
"(2) A decision made may be invali- complied if dated has not with the *10 (3) 3(1), (2), requirements making of section give if decision or failure to notice accordance with compliance section 5 has interfered with substantial (3) 3(1), (2), with section and the court finds that noncompliance impaired rights has or failure under this act.” perceive requirement I no in the statute plaintiffs complaint that the violation impaired rights for it states that body may "[a] decision made be invali- * * * non-compli- dated if court finds that the ance or failure has
public”. Because this case was decided on a motion summary judgment, the facts have not been fully explored. Although unlikely it seems presented already the facts can dem- onstrate sufficient reason to invalidate deci- given opportu- sion, he should nevertheless be nity prove especially facts, such view parties fact that the trial court and the addressed exclusively themselves almost to the issue of balloting prohibited whether and did not enter into a contest over the other Therefore, facts of the I case. would hold that as a here, violation of the act is found should given opportunity prove impairment an rights by adducing proofs thereof.