*1 ALLIANCE, MENOMINEE COUNTY TAXPAYERS INC v MENOMINEE COUNTY CLERK 15, 1984, Marquette. Docket No. 76251. Submitted October —De- cided December 1984. Defendants, clerk, County prosecutor the Menominee and convened, judge, pursuant purpose ap- for the pointing a new Menominee treasurer when that office resignation. became vaсant reason of the former treasurer’s occasion, They single open met on a which was not to the public, appointed and an individual was to the office of trea- Plaintiffs, Alliance, County Taxpayers surer. the Menominee Inc., Hagen Anderson, Gary Jerome and tо have the reappointed treasurer require- at a forum Open Meetings ments of the Act. When defendants refused to so, plaintiffs brought declaratory judgment do an action for a seeking appoint- Menominee Circuit Court nullification of the injunctive plaintiffs stipulated ment and relief. The person selected as treasurer was a suitable choice and that the they required defendants held a faith belief that were court, Hoehn, J., with the act. The Clair J. held that the issues involved were moot and dismissed the case. Plaintiffs appealed. Held: сounty prosecutor, probate judge 1. The constitute "public body” meaning within the meet to statute to fill a in a county office. moot, plaintiffs 2. The case was not since the Further, public hearing real relief. the denial of a in that were denied their present their views on the selection of a treasurer. intervening composi- Because an election has altered the [2] [1, Validity, 20 Am Jur 56 Am Jur 3-5] 1 Am Jur cal Subdivisions 161. proceedings open 2 Am Jur construction, 2d, 2d, 2d, Municipal Corporations, Counties, References Actions 56.§ Courts 81.§ 2d, Administrative Law for Points in Headnotes aрplication 38 ALR3d 1070. § of statutes making public Other Politi- committee, tion of the injunction denial is not However, reversed. because should have been they sought, plaintiffs the relief are entitled to fees and costs. part. Reversed in *2 Allen, P.J., agreed "public that the defendants a constituted hold,
body” however, under the statute. He would that there irreparable showing injury danger was no of was, therefore, and that the trial court correct in sought. Accordingly, plaintiffs relief should not attorney fees and He costs. would affirm.
Opinion of the Court Meetings Open— — 1. Act Stаtutes Bodies. Public panel composed county prosecutor, county A of a clerk and senior probate judge, purpose convened to statute for the appointing office, a treasurer to fill a in that is (MCL Open "public body” purposes Meetings a for of the Act 6.1209). 168.209; 15.262[a], 4.1800[12][a], MSA — Moot Case. Actions party get A moot case is one in which a seeks a on a pretended controversy reality none, when in there is or a decision, advance, right about actually before it has been tested, judgment upon or a asserted somе matter rendered, practical legal for reason cannot have upon existing controversy. effect then Open Meetings Attorney — — 3. Statutes Act Fees. plaintiff prevails against A body who in an action alleging Open Meetings may a violation of the Act recovеr though intervening actual fees costs even circum- superfluous injunctive stances made award of relief (MCL originally sought by 15.271[4]; 4.1800[21][4]). Open Meetings — — — 4. Statutes Act Public Bodies Invalida- tion of Decisions. public body public meeting Decisions arrived at without a be, be, may but need not invalidated thе discretion of the court; seeking party to have must the decision invalidated allege public body Open both that the failed Act and such failure (MCL 15.270[2]; 4.1800[2][2]). Opinion of the Court Open Meetings Attorney — — Fees. 5. Statutes under the Act should not be Parties relief rightfully attorney fees where the reliеf is awarded denied. plaintiffs. Dyke Justin, for
William Rosemurgy, Butch, Valkanoff, Jardis & Quinn, Butch), (by Thomas L. for defendants. P.C. Allen, P.J., R. B. and R. M.
Before: Burns Maher, JJ. appeal as of from Per Curiam. January 12, 1984, trial court dated
an order dismissing grounds plaintiffs’ of mootness on ac- tion to set aside defendants’ County treasurer. The matter comes Menominee to us on a tions of which are as follows. por-
stipulation facts, the relevant resigned The Menominee treasurer from *3 as of 1983. Pursu- that office effective November 6.1209, defendants, 168.209; MSA ant to MCL prosecutor, County clerk, Menominee together appoint person judge, came to a suitable replace County Menominee trea- to the former single surer. Defendants met on a occasion to qualifications required discuss the nee individuals were for the Menomi- gathering, treasurer. At this various concerning their suita-
discussed bility position. for the treasurer In the context of suitability, poten- discussion of various individuals’ regard tial conflicts of interest discussed potential appointees. to of various No notice public meeting posted was defendants came before together appointment. to discuss and make their private The discussion was held in open and was not discussion, As a result of that empowered Krause, defendant Opinion op the Court Jurmu, Rolfs, by prosecutor, pro- defendants bate contact Bernard judge, Lang, to an individual residing in the county. Defendants unanimously appointed Lang the Treasurer of Menominee County. stipluate Lang
Plaintiffs is a suitable per- son to fill the office of to Subsequent treasurer. Lang, contacted defen- dants appoint- letter open forum, ment be re-enacted an requirements Michigan Open seq.; seq. Act, MCL 15.261 et et publicly reappoint Defendants declined to the trea- surer. Plaintiffs also stipulate defendants all relevant times held a faith belief required were not with the Michi- gan Open Meetings filling Act in the vacancy. filed an for a declaratory judg- action ment circuit court for Menominee County. Hearings were held on the facts stipulated by the parties, 4, 1984, and on the trial court January opinion issued a written after quoting Esperance from this extensively opinion Court’s Twp, v Chesterfield 456, 464; 89 Mich (1979), NW2d 559 the court concluded: holding "It is the of this Court that the issues hеre moot, involved are that no actual controversy case or within meaning MGCR exists and this Court does not jurisdiction Declaratory Judg- issue a ment in the matter. is, therefore,
"The case dismissed.” appeal raised, On two the first of issues (I) *4 which is impression: an issue of first whether the county prosecutor and senior county judge 168.209(2); MCL denominated MSA to fill in the vacancy a App Opinion of the Court subject a body office constitute treasurer’s meetings deliberating on open act to the (II) court’s decision; whether the trial and, were moot presented the issues ruling that were not entitled accordingly, trial did not reach erroneous. The relief was the first issue.
I 3(1) Open Meetings Act Michigan’s Section "of a meetings public body” all mandates 4.1800(13). 15.263; MCL MSA to the open 2(a) as follows: body Section defines " legislative body’ any state or local or 'Publiс means board, commission, including commit- governing body, tee, subcommittee, council, authority, em- or which is charter, constitution, ordi- powered by state nance, resolution, governmental to exercise or or rule governmental authority perform or proprietary function, performing an or a lessee thereof proprietary essential purpose and function 4.1800(12)(a). 15.262(a); agreement.” MCL lease nothing more than they Defendants claim that are pro hoc, tem an ad neither group which is and thus are "legislative governing body”, 3(1). agree that We mandates are not a capacity defendants in their collective However, disagree they we "legislative body”. the statute are not "a Under governing body”. fact creating empowered, them function. perform governmental required, than governmental Whаt be more obviously could 168.209; of a treasurer? 6.1209 provides: occur an elective "Sec. When a shall *5 Opinion op the Court office, appointive county or it shall be filled in the following manner: "(1) vacancy If be in shall of county office attorney, prosecuting
clеrk or pointment it by ap- shall be filled judge by judges judicial or that circuit. "(2) vacancy any office, If shall county other appointive, either or presiding elective or senior probate, clerk county prosecuting and the appoint person shall some suitable to fill such vacancy.”
Accordingly, on this issue of first impression, we hold prosecutor, the county probate judge senior a "public constitute body” for purposes of the Open Meetings Act when those . come together individuals to MCL 168.209(2); MSA for the purpose of filling ain county office. argue the trial findings court’s which led the court to conclude that the matter was "moot” were in error. The court’s statements did want not appointment changed did an injunction not seek or other remedy supported is not by the record. While the plaintiffs’ counsel at hearing, response questions court, by did at one point say that his clients were relief’, "basically seeking any counsel in concluding argument stated that clearly plaintiffs wanted the court to rule that the closed session awas violation of the and to declare nullity.
A moot case is one judg- which seeks to get ment on a pretended when controversy, reality none, decision, advance, there is about a it before has been asserted actually tested, judgment upon some matter op Opinion the Court practi- any rendered, reason cаnnot have for existing controversy. legal upon the then effect
cal Bank, Co v Chase Manhattan Parsons Investment 1972). (CA description The 466 F2d 869 correct if moot would have been issue as remedy offered no had indeed case, the could not have In that statute. upon existing рractical legal effect had *6 plead- controversy. However, it is clear from the arguments plaintiffs sought ings and oral pleadings and the nullification plaintiffs sought enjoin to further clear that made violating Michigan Open the the committee from Thus, the trial court erred whеn it Act. declared the matter moot. public hearing
The denial of a in itself that, at the time We find treasurer, the committee selected present their views. We were denied their trial court’s further find that we would reverse the except injunction order for the fact intervening drаstically election altered composition of the committee. Therefore, enti we conclude that provided attorney tled to actual fees and costs as 11(4) (MCL § 15.271[4]; under of the statute 4.1800[21][4]). regard in this Precedent for our decision Ed, Dearborn Bd of is found Ridenour v (1981). App 798, 806; 314 760 NW2d Thеre, similar, identical, under circum but attorney stances, even fees and costs were allowed though precise relief not ordered.
Accordingly, is of the trial court reversed. Plaintiffs should have been requested. Judgment relief plaintiffs entered in favor of is
for actual feеs and costs. P. J. (dissenting). Allen, While I agree with my I, colleagues on Issue I respectfully disagree that the trial court erred on II. 10(2), Issue Under at decisions arrived (not without a meeting may must) be invalidated. The statute so clearly 4.1800(20X2). provides. 15.270(2); Fur Esperance ther, our Court specifically so v held Twp, Chesterfield 456; NW2d (1979). Esperance
In the township board awarded liquor revealing license without meeting how each board member voted. As in the us, agreed case before it was township board had not intentionally to evade the Open Meetings Act and had not engaged subter- fuge. error, Our Court refused to find saying: "Merely balloting prohibited because secret is Open Meetings Act automatically does not mean that present the board’s decision in the case must be invali- dated, and injunction restraining that an must issue utilizing procedure defendant from in the future. "Invalidation of decisions made contravention of discretionary the act is with the court. Those *7 have the decision allege only invalidated must that act, the that body failed to comply with the but also impaired rights this failure of the 4.1800(20)(2). 15.270(2); MSA This was not done in the present case. Plаintiff allege township did not willfully board intentionally sought to violate the act. its members were any allegation Nor is there that the board or trying up to cover for misdeeds or to identity hide persons for whom voted. Since allege failed to ballot, by the secret he failed to state a cause of action invalidating under the act for the decision of the board.
"Finally, the record indicates that the board acted in good no the utilizing voting faith in procedure. There was involved, subterfuge adopted but instead the board procedure expedient, improper, as an albeit method App 814 822 139 Mich narrowing applicants. the field of Under this set of circumstances, danger there is no real and imminent irreparable requiring injury injunction.” issuance of an omitted.) (Footnotes (Emphasis supplied.) 464-465.1 parties
In the case the stipulated instant faith, three-man committee acted in there was no intention to circumvent and that the person appointed treasurer so, being irrepa- was ."suitable”. This no obviously danger rable injury public existed. There- fore, I must conclude that under the statute respected trial was correct sought by plaintiffs, relief then viz.: nullification of and an injunction. Under facts, stipulated the issue was indeed "moot”. hearing When the relief at the is rightfully denied, those the relief should not be awarded actual attorney fees. Legislature
The did not intend to saddle the tаxpayers fees and costs when the impaired. interest was not fact Charging such costs to defendant’s treasury now turns statute I upside down. would affirm. Esperance, Rev, Wayne pp For further discussion of L see (1980). also, Guthrie, Construction, Validity, Applica- and 757 See Making Public, Proceedings Open tion of Statutes Public
ALR3d 1070.