Federated Publications, Inc. v. Board of Trustees
Federated Publications, Inc. v. Board of Trustees
Opinion of the Court
Federated Publications, Inc., doing business as The Lansing State Journal and The Detroit News, Inc., brought suit against the Board of
This appeal concerns the actions of the Board of Trustees of Michigan State University in electing M. Peter McPherson as president of the university following the resignation of President John DiBiaggio in the summer of 1992. After DiBiaggio’s resignation, Gordon Guyer was appointed interim president and, in January 1993, the board of trustees created the original presidential search committee (psc) that consisted of all eight trustees and nine lay persons. On April 8, 1993, as a result of a publication of a list of candidates by the State News, the PSC was reconstituted to consist of four trustees and the nine lay persons. The purpose of the reconstituted psc was to preserve the confidentiality of the candidates before their interviews with the entire board and to do so in such a manner as to avoid a violation of the oma.
The board of trustees passed a resolution charging the psc with reviewing candidate applications, interviewing candidates, and arriving at a list of five or so candidates that would be considered by the full board of trustees at a public meeting. The smaller PSC reviewed the applications, discussed candidates, narrowed the list of candidates, and interviewed candidates in private. As a result of these activities, the PSC produced a list of four candidates that were
In May 1993, plaintiff brought this suit and requested a preliminary injunction against private deliberations by the newly reconstituted PSC. The trial court denied the motion for a preliminary injunction and later denied a motion to compel deposition witnesses to identify the persons who were under consideration by the PSC for the position of university president. The parties subsequently brought cross motions for summary disposition. The trial court granted defendant’s motion and found, among other things, that the OMA could not be constitutionally applied to the selection of a president for any university that was established under Const 1963, art 8, §§ 4 and 5. Plaintiff argues that the trial court erred in its constitutional analysis. We agree.
When reviewing constitutional provisions, the objective of such review is to give effect to the intent of the people who adopted the constitution. Livingston Co v Dep’t of Management & Budget, 430 Mich 635, 641-642; 25 NW2d 65 (1988); Macomb Co Taxpayers Ass’n v L'Anse Creuse Public School, 213 Mich App 71, 78; 540 NW2d 684 (1995). In discerning such intent, we look at the circumstances surrounding the
Plaintiff argues that the trial court erred in finding that the language in Const 1963, art 8, §§ 4 and 5 should be interpreted to bar application of the OMA to the selection of a president for .a constitutionally established state university. Section 5, in pertinent part, states:
[T]he trastees of Michigan State University and their successors in office shall constitute a body corporate known as the Board of Trustees of Michigan State University .... Each board shall have general supervision of its institution and the control and direction of all expenditures from the*109 institution’s funds. Each board shall, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex-officio a member of the board without the right to vote and preside at meetings of the board. The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law. The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law.
Section 4, in pertinent part, states, with respect to all state universities established by law:
The legislature shall be given an annual account of all income and expenditures by each of these educational institutions. Formal sessions of governing boards of such institutions shall be open to the public.
Historically, the Supreme Court has found the Regents of the University of Michigan to be a distinct governmental body that is coequal with the Legislature. Sterling v Univ of Michigan Regents, 110 Mich 369; 68 NW 253 (1896); Weinberg v Regents of Univ of Michigan, 97 Mich 246; 56 NW 605 (1893).
Although state universities have been held to be distinct governmental bodies coequal with the Legislature, they have not been held constitutionally immune from all regulation by the Legislature. In W T Andrew Co, Inc v Mid-State Surety Corp, 450 Mich 655, 668-669; 545 NW2d 351 (1996), the Court held that, although the University of Michigan was a constitutionally created corporation, the public works bond statute could be applied to it through the Legislature’s police power. It found that statutes that are designed for the benefit of society as a whole can be imposed on a constitutionally created university when those statutes pose no direct threat to the university’s financial autonomy. Id. In W T Andrew, supra at 665-667, the Court cited with approval the lead opinion in Peters v Michigan State College, 320 Mich 243; 30 NW2d 854 (1948), that applied the workmen’s compensation laws to the college. In that opinion, Justice Reid stated that the workmen’s compensation laws were not aimed at the college alone or against any of the activities that were peculiar to it. Id. at 250. He stated that the act was broad in scope and did not attempt to change or disturb the educational activities of the college (which became Michigan State Univer
The Court previously had held the University of Michigan subject to a state law in Regents of Univ of Michigan v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973). In that case, the Court found that the Michigan Public Employees Relations Act could be constitutionally applied to state universities without violating their autonomy. Id. at 108. In so finding, it cited this Court’s opinion in Branum v Univ of Michigan Bd of Regents, 5 Mich App 134; 145 NW2d 860 (1966). In Branum, this Court found that while universities have independence in educational matters, they are still a part of the state government, and, as such, the Legislature could waive their rights to governmental immunity as it did for other sections of state government. Id. at 137-138. In particular, this Court stated:
It is the opinion of this Court that the legislature can validly exercise its police power for the welfare of the people of this State, and a constitutional corporation such as the board of regents of the University of Michigan can lawfully be affected thereby. The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island. Within the confines of the operation and the allocation of the funds of the University, it is supreme. Without these confines, however, there is no reason to allow the regents to use their independence to thwart the clearly established public policy of the people of Michigan. [Id. at 138-139.]
We agree with the argument of the Attorney General in his brief as amicus curiae that the clear public
The longstanding public policy of this state to open the acts of governmental officials to public scrutiny supports the conclusion that the OMA can be constitutionally applied to universities. The OMA is not aimed at any activities peculiar to the university and does not attempt to change or disturb its educational activities. In fact, the effect of the oma with respect to public universities is minimal. Although it requires that much of the process of selecting a university president be done in public, it does not tell the board what the criteria should be for that selection, how to select a candidate, or whom to select as president. It merely requires that, when interviewing candidates and when making a detailed review of applications of candidates who do not request confidentiality, the university function in public meetings. It does not divest the board of its authority to select a president.
Finally, defendant argues that because the Supreme Court found in In re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977), that the OMA could not be constitutionally applied to the Court, it likewise cannot be applied to public universities that have been found to be coequal branches of government. We disagree. In In re 1976 PA 267, the Court noted that the powers of government were divided among three branches of government pursuant to Const 1963, art 3, § 2. It further noted that the separation of powers set forth in the constitution was “designed to preserve the independence of the three branches of government.” Id. at 662. Although various cases have stated that public universities are branches of government coequal with the Legislature, the constitution does not contain any provision that elevates them to a fourth branch of government. See Walker v Wolverine Fabricating Mfg Co, Inc, 425 Mich 586, 607; 391 NW2d 286 (1986).
We, therefore, hold that the OMA may be constitutionally applied to constitutionally established universities in their selection of a president. The trial court’s finding to the contrary is reversed.
Plaintiff next argues that the trial court erred in finding that the PSC was not a “public body” under the OMA and that, therefore, there was no violation of the OMA. We agree. Under a plain reading of the OMA and the decision of the Court in Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211; 507 NW2d 422 (1993), the PSC was a “public body” and, as such, violated the oma when it conducted closed interviews of candidates.
MCL 15.262(a); MSA 4.1800(12)(a) contains the following definition:
“Public body” means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to a lease agreement. [Emphasis supplied.]
MCL 15.262(d); MSA 4.1800(12)(d) defines “decision” as
*114 a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.
In addition to the activities involved in reducing the number of candidates to be considered by the board of trustees, the PSC also conducted private interviews of potential finalists, which is a violation of MCL 15.268(f); MSA 4.1800(18)(f).
Although defendant argues that the psc could not be a “public body” because it could not have a “meeting” as defined under the oma, such argument is unpersuasive. Under the OMA, once a committee is determined to be a “public body,” any meeting of a quorum of that public body would be a meeting under the oma. Therefore, in this instance, the PSC had four trustees and nine lay members, which would make a total of seven persons of either type a quorum of the entire body, or, if only trustees were considered, a quorum would be three trustees. However, as will be discussed below, even a subquorum committee has been found to be subject to this section of the oma.
The above analysis of this situation is amply supported by the Court’s interpretation of the oma in Booth Newspapers. In Booth Newspapers, the Court found that the intent of the Legislature in enacting the OMA was to remedy the ineffectiveness of the 1968 legislation and to “promote a new era in governmental accountability.” 444 Mich 222. The Court noted that in order to further the OMA’s legislative purposes, this Court had historically construed the OMA broadly, “while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.” Id. at 223.
The Court found that the Board of Regents of the University of Michigan was a public body under the oma. Id. at 225. It further found:
The selection of a university president is one of the board’s most important exercises of governmental authority. If it establishes any form of subcommittee and empowers that subcommittee by “resolution or rule” to exercise this*117 particular governmental authority, then that subcommittee is also a “public body” within the meaning' of the act. [Id,.]
The board in Booth Newspapers argued that the appointment of a one-person committee would not fall under the OMA. The Court disagreed, stating:
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. [Id. at 226.]
The Court, therefore, held that selection of a president, whether by a one-man committee, another committee, or the whole board, constituted the exercise of governmental authority and that, whatever the composition of that body, it was a public body under the OMA. Id.
Defendant argues that the PSC is not a “public body” under the reasoning in Booth Newspapers because in that case the PSC consisted of the entire board, whose members communicated with one another throughout the entire procedure, rather than being established as a separate body as in the case at bar. Defendant’s arguments ignore the plain statements by the Court in Booth Newspapers that even a one-man committee given the responsibility of reviewing applicants and limiting the number to be finally interviewed by the entire board is a “public body” exercising governmental authority. The PSC in this case presents an even stronger argument for finding that it is a “public body” because it was composed of fully one-half of the members of the board of trustees and was given
Defendant argues, as did the board in Booth Newspapers, that, because none of the decisions of the subquorum group bound the board, they were not “decisions” as defined in the OMA. The Court found that “any alleged distinction between the committee’s consensus building and a determination or action, as advanced in the oma’s definition of ‘decision,’ is a distinction without a difference.” Id. at 229. Again, the instant case presents a stronger showing of “decisions” being made because the discussions of the PSC went beyond consensus building to an actual reduction in the number of candidates and the presentation of finalists to the board.
In Booth Newspapers, the board argued that the exemption in § 8(f) of the OMA, MCL 15.268(f); MSA 4.1800(18)(f), allowing closed sessions to review specific contents of applications for employment, permitted it to hold closed sessions for discussion of the candidates’ qualifications and for reducing the list of candidates. 444 Mich 230. The Court found that the selection committee was required to make any reduction decisions in public and that there was no statutory exception that would permit a subcommittee to conduct closed interviews. Id. at 230-231. It stated that the Legislature, in mandating open interviews, must have known that, at that point, candidates’ identities would become known and that it was in the public’s interest for their identities to become known at that point. Id. at 231.
Under the reasoning of the majority in Booth Newspapers and under a straightforward reading of the OMA, the PSC was a public body that violated the OMA
In view of the above discussion, it is unnecessary to address plaintiff’s argument that the individual conversations that occurred between the various trustees amounted to a constructive quorum in violation of the oma. However, this Court notes that the record does not show the kind of consensus-building conversations in this case that were present in Booth Newspapers. Although one of the trustees was clearly lobbying for McPherson and one other candidate, there is no evidence in the record that any trustee committed to voting for any specific candidate before the holding of the public meeting.
Plaintiff’s argument that defendant violated the notice requirements of the oma is not preserved for appeal because it was not addressed by the trial court. Richmond Twp v Erbes, 195 Mich App 210, 219; 489 NW2d 504 (1992). However, we find that defendant substantially complied with the notice requirements when the notice was posted more than the required eighteen hours before the meeting even if it was actually accessible for only eleven hours. Arnold Transit Co v Mackinac Island, 99 Mich App 266, 274; 297 NW2d 904 (1980). In particular, defendant did not deliberately try to hold its meeting in secret, plaintiff was not in fact denied notice of the meeting, and the media were in attendance at the meeting.
Finally, plaintiff argues that the delegation of discretionary authority to the PSC constituted an unlaw
Reversed in part; affirmed in part.
As will be discussed later, Weinberg was overruled by W T Andrew Co, Inc v Mid-State Surety Corp, 450 Mich 655; 545 NW2d 351 (1996). However, the Court overruled Weinberg while affirming the basic underpinnings of the case regarding the independent nature of the universities.
We note that the Legislature recently passed a bill permitting universities to conduct presidential searches in more secrecy. 1996 PA 464.
The framers of Michigan’s constitution have eschewed creating a fourth branch of government, which would be “contrary to the genius of republican government.” Civil Service Comm v Auditor General, 302 Mich 673, 682; 5 NW2d 536 (1942), quoting Colbert v State, 86 Miss 769, 775; 39 So 65 (1905).
But see footnote 2, supra.
Dissenting Opinion
(dissenting). The statement of facts by the majority is accepted as framing the issues. The trial court granted defendant’s motion for summary disposition, finding, among other things, that the Open Meetings Act (oma) could not be constitutionally applied to the selection of a president for a university established under Const 1963, art 8, §§ 4 and 5. In particular, the trial court stated that it accepted and adopted the reasoning of Justice Riley, joined by Justice Griffin, in her dissent in Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
When reviewing constitutional provisions, the objective of such review is to give effect to the intent of the people who adopted the constitution. Livingston Co v Dep’t of Management & Budget, 430 Mich 635, 641-642; 425 NW2d 65 (1988); Macomb Co Taxpayers Ass’n v L'Anse Creuse Public Schools, 213 Mich App 71, 78; 540 NW2d 684 (1995). In discerning such intent, we look at the circumstances surrounding the adoption of the provision and the purpose sought to be accomplished by its enactment. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). However, the primary source of understanding the constitution is its plain meaning as understood by the people who voted for it. Livingston Co, supra. Constitutional language is to be read according to its natural, common, and most obvious meaning. Macomb Co, supra. Courts may place themselves in the position of framers of the constitution to ascertain its meaning at that time. Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 342; 389 NW2d 430 (1986). Reliance on the records of the constitutional convention is warranted only if the language of the constitution is unclear or if there is a “recurring thread of explanation binding together the whole of a constitutional concept.” Regents of the Univ of Michigan v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975). Due deference is to be given to contemporaneous or longstanding interpretations of the constitution by the Michigan
At issue in this appeal is whether the language in Const 1963, art 8, §§ 4 and 5 should be interpreted to bar application of the OMA to the selection of a president for a state university. Article 8, § 5, in pertinent part, states:
[T]he trastees of Michigan State University and their successors in office shall constitute a body corporate known as the Board of Trustees of Michigan State University .... Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution’s funds. Each Board shall, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex officio a member of the board without the right to vote and preside at meetings of the board. The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law. The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law.
Article 8, § 4, in pertinent part, states, with respect to all state universities established by law:
The legislature shall be given an annual accounting of all income and expenditures by each of these educational institutions. Formal sessions of governing boards of such institutions shall be open to the public.
Historically, the Court has found the Board of Regents of the University of Michigan to be a distinct governmental body that is coequal with the Legislature. Sterling v Univ of Michigan Regents, 110 Mich 369; 68 NW 253 (1896); Weinberg v Regents of University of Michigan, 97 Mich 246; 56 NW 605 (1893),
Plaintiff argues that the majority opinion in Booth supports its argument that the OMA can be constitutionally applied to defendant. I disagree. The majority explicitly refused to consider the question of constitutionality in that case because it had not been preserved for appeal. 444 Mich 234-235.
The question then becomes who defines “formal.” Because the constitution does not define the term, the argument that the oma could provide the definition has some credence. However, given the history behind the constitutional provision and given what the public was used to as “formal” sessions at that time, Justice Riley’s formulation is more in line with constitutional construction. In other words, the people who enacted the constitution would expect the same “formal” sessions to be open to the public as were open at that time. At that time, the governing boards of the universities determined which meetings were to be open to the public. Using the rules of constitutional construction, we will not interfere with the
Plaintiff and the Attorney General argue that the public policy underlying the OMA can provide a means of limiting the autonomy granted defendant under the constitution. They argue that, even in matters of autonomy such as educational and fiscal matters, limitations can be imposed to implement or protect public policy. They further argue that the OMA is not an impermissible intrusion on an independent branch of government. Although I find their arguments to have some persuasive weight, I ultimately disagree.
In support of their argument, plaintiff cites Glass v Dudley Paper Co, 365 Mich 227; 112 NW2d 489 (1961), which held that the Court of Claims Act could be applied to claims against public universities because universities were not given the constitutional power to set the jurisdiction of the various courts of the state. The Court found that the Court of Claims Act did not invade the power of the university to control the affairs and property of the university. Id. at 229. This result is obvious, because the Court of Claims Act simply sets forth the court in which this constitutional corporation could be sued. It did not in any way control any of the affairs of the university.
Plaintiff also cites Regents of Univ of Michigan v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973). In that case, the Court found that the Michigan Public Employees Relations Act (pera) could be constitutionally applied to state universities without violating their autonomy. Id. at 108. However, because the boards of the universities were given control over educational matters by the constitution, the employees of the university would not be able to
Plaintiff also cites Branum v Univ of Michigan Bd of Regents, 5 Mich App 134; 145 NW2d 860 (1966). In Branum, this Court found that historically the Board of Regents of the University of Michigan has “not been held subject to the control of the legislature,” id. at 137, and that the board of regents must have the same freedom from control “in educational matters in order to provide the highest quality education.” Id. at 138. This Court stated that, outside the confines of the operation and allocation of funds, the regents were subject to the “clearly established public policy of the people of Michigan.” Id. at 139. That case involved the waiver of the defense of governmental immunity in a tort action. As a result, it is distinguishable because that case did not involve the actual operation of the university, unlike the present case that does involve an operation of the university that goes to the heart of providing “the highest quality education.”
Plaintiff also points to Regents of Univ of Michigan v Labor Mediation Bd, 18 Mich App 485; 171 NW2d 477 (1969), wherein this Court found that the university was subject to the general laws of the state. However, that case did not involve a power that was specifically enumerated in the constitution. Further, in Sprik v Regents of Univ of Michigan, 43 Mich App
While raising many of the same arguments as plaintiff, the Attorney General also sets forth the argument that the courts have long recognized the importance of the underlying, clear public policy promoted by the OMA. He argues that it is the clear public policy of this state to promote openness in government. The Attorney General concludes that, because the OMA does not interfere with the board’s decision in selecting a president, it does not interfere with the constitutional autonomy of the board. Therefore, a review of the purpose behind the OMA is in order.
The title of the OMA, 1976 PA 267, sets forth its purpose, providing:
An act to require certain meetings of certain public bodies to be open to the public; to require notice and the keeping of minutes of meetings, to provide for enforcement; to provide for invalidation of governmental decisions under certain circumstances; to provide penalties; and to repeal certain acts and parts of acts.
The longstanding public policy of this state to open the act of governmental officials to public scrutiny would seem to support the conclusion that the oma can be constitutionally applied to universities as public policy because it does not tell the boards whom to select as president, does not tell them what the criteria should be for that selection, and does not tell them how to select a president. However, defendant argues that such public meetings interfere with the constitutional grant of the power to select a president because it results in good candidates withdrawing their names from consideration. Defendant also argues that because the Supreme Court found that the oma could not be constitutionally applied to the Court in In Re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977), it likewise could not be applied to public universities, which have been found to be coequal branches of government.
As discussed at the beginning of this opinion, the Michigan Supreme Court has consistently found pub-
Because the constitutional issue is dispositive, it is unnecessary to review the remaining issues raised by the parties. Thus, I respectfully dissent from the majority opinion.
Although the Court overruled Weinberg in W T Andrews Co, it did so on the basis that the bond statute minimally affected the university and that the statute was a proper exercise of the police power of the Legislature in order to protect the general welfare of society. However, it did so while affirming that the “University of Michigan is constitutionally created and its board of regents possesses complete power over financial decisions affecting the university.” 450 Mich 662. Therefore, the basic underpinnings of Weinberg were affirmed even though the ultimate result was overruled.
Reference
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