HARLAN VERMILYA and ANN ANKLAM, Plaintiffs-Appellees, v. DELTA COLLEGE BOARD OF TRUSTEES, Defendant-Appellant.
No. 341229
STATE OF MICHIGAN COURT OF APPEALS
July 31, 2018
Saginaw Circuit Court LC No. 16-028824-CZ; FOR PUBLICATION 9:00 a.m.
PER CURIAM.
In this action alleging multiple violations of the Open Meetings Act (OMA),
This case arises out of a January 12, 2016 meeting in which defendant passed a motion to enter closed session “for the purpose of discussing specific pending litigation with legal counsel,” pursuant to
We review de novo a trial court’s decision to grant summary disposition. Local Area Watch v Grand Rapids, 262 Mich App 136, 142; 683 NW2d 745 (2004). We also review de novo questions of statutory interpretation. Speicher v Columbia Twp Bd of Trustees, 497 Mich 125, 133; 860 NW2d 51 (2014).
When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent. [Whitman v City of Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013) (citations omitted).]
Additionally, statutory language “cannot be read in a vacuum” and instead “must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute . . . .” GC Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003) (quotation marks and citation omitted; alteration in original).
It is now well established that “the purpose of the OMA is to promote governmental accountability by facilitating public access to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern.” Kitchen v Ferndale City Council, 253 Mich App 115, 125; 654 NW2d 918 (2002), overruled on other grounds by Speicher, 497 Mich 125, citing Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 231; 507 NW2d 422 (1993). See also Manning v East Tawas, 234 Mich App 244, 250; 593 NW2d 649 (1999), overruled on other grounds by Speicher, 497 Mich 125. “To further the OMA’s legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.” Booth Newspapers, Inc, 444 Mich at 223.
“Under the OMA, public bodies must conduct their meetings, make all of their decisions, and conduct their deliberations (when a quorum is present) at meetings open to the public.” Speicher, 497 Mich at 134-135, citing
A ⅔ roll call vote of members elected or appointed and serving is required to call a closed session, except for the closed sessions permitted under section 8(a), (b), (c), (g), (i), and (j). The roll call vote and the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken. [
MCL 15.267(1) .]
Similarly,
Defendant argues, and we agree, that
First, we note that defendant’s argument that the OMA requires only that there be specific pending litigation would render the word “specific” redundant and mere surplusage—a result we must avoid whenever possible. See Whitman, 493 Mich at 311. When a public body meets to discuss pending litigation, it will necessarily discuss specific cases. Therefore, if the Legislature did not intend for the public body to disclose the particular case or cases it would be discussing, there would be no reason for the phrase “specific pending litigation” to contain the word “specific,” as the word has no practical impact on the permissible substance of the public body’s discussion in a closed session.
To avoid that interpretation,
This Court reached a similar conclusion in discussing a different closed-session exemption. Herald Co, Inc, 258 Mich App 78. Herald Co, Inc concerned
the plain language of these statutes instruct that when faced with FOIA exempt material as applied to the OMA, [the public body] must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying the document’s nondisclosure, describe those documents unless description would defeat the purpose of the nondisclosure, and complete this process on the record in open session before conducting the closed hearing. [Herald Co, Inc, 258 Mich App at 86-87 (emphasis added).]
In other words, this Court determined that the public body had to identify the exempt material and applicable statute before entering a closed session, even though such a requirement is not found in the applicable exemption provision alone. This Court impliedly determined that merely reciting the statutory language of the pertinent exemption was insufficient. There is a stronger case for reaching that conclusion with respect to
The Attorney General’s OMA Handbook further supports that conclusion. The Handbook suggests that every motion to enter a closed session should refer to an exempt purpose set forth in
To the extent the OMA is ambiguous on this issue, “[t]he resolution of an ambiguity or vagueness that achieves a statute’s purpose should be favored over the resolution that frustrates its purpose.” City of Fraser v Almeda Univ, 314 Mich App 79, 95; 886 NW2d 730 (2016) (quotation marks and citation omitted). Allowing a public body to call for a closed session by merely reciting
Affirmed.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
/s/ Anica Letica