Booth Newspapers, Inc. v. University of Michigan Bd. of Regents, Docket Nos. 93246

CourtSupreme Court of Michigan
Writing for the CourtMALLETT; MICHAEL F. CAVANAGH; BOYLE; LEVIN; RILEY; ROBERT P. GRIFFIN
Citation507 N.W.2d 422,444 Mich. 211
Parties, 86 Ed. Law Rep. 987 BOOTH NEWSPAPERS, INC., d/b/a The Ann Arbor News, and The Detroit Free Press, Inc., Plaintiffs-Appellees, v. UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendant-Appellant. Calendar
Docket NumberNo. 5,Docket Nos. 93246,93247
Decision Date28 September 1993

Page 422

507 N.W.2d 422
444 Mich. 211, 86 Ed. Law Rep. 987
BOOTH NEWSPAPERS, INC., d/b/a The Ann Arbor News, and The
Detroit Free Press, Inc., Plaintiffs-Appellees,
v.
UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendant-Appellant.
Docket Nos. 93246, 93247.
Calendar No. 5.
Supreme Court of Michigan.
Argued April 1, 1993.
Decided Sept. 28, 1993.

Page 424

[444 Mich. 214] Jonathan D. Rowe, Kathleen D. Hunt, E. Edward Hood, Jonathan D. Rowe, Dykema Gossett, Ann Arbor, for appellee and cross-appellant Booth Newspapers.

Herschel P. Fink, Michael A. Gruskin, Honigman, Miller, Schwartz & Cohn, Detroit, for appellee and cross-appellant Detroit Free Press.

Roderick K. Daane, Hooper, Hathaway, Price, Beuche & Wallace, Ann Arbor, for appellant and cross-appellee Bd. of Regents of University of MI.

John J. Ronayne, III, Kasiborski, Ronayne & Flaska, Detroit, for amici curiae.

Jane E. Kirtley, Rebecca Daugherty, Eric Robinson, Washington, DC, for Reporters Committee for Freedom of the Press.

Mark Goodman, Washington, DC, for Student Press Law Center.

Charles A. Duerr, Jr., Richard A. Jones, Miller, Canfield, Paddock and Stone, Ann Arbor, for amici curiae Bd. of Control of Northern MI University and by authority of attys., for amici curiae.

Mark Brewer, Detroit, (Paul Denenfeld, Legal Director, ACLU Fund of MI, Detroit, MI, of counsel), for amici curiae Common Cause in MI and ACLU Fund of MI.

[444 Mich. 215] Phillips & Russell, Dawn L. Phillips, Birmingham, for amici curiae MI Press Ass'n.

OPINION

MALLETT, Justice.

The dispositive issues in this case are whether the presidential selection procedure adopted by the University of Michigan Board of Regents violated the Open Meetings Act, M.C.L. § 15.261 et seq.; M.S.A. § 4.1800(11) et seq., or the Freedom of Information Act, M.C.L. § 15.231 et seq.; M.S.A. § 4.1801(1) et seq.

We find that defendant violated the OMA and the FOIA. Therefore, we affirm in part and reverse in part the Court of Appeals decision.

I

On April 28, 1987, Harold Shapiro announced his resignation as President of the University of Michigan, effective January 3, 1988. In May of 1987, the Board of Regents, consisting of eight members, appointed itself as the Presidential Selection Committee and began the process of choosing a new university president. The committee appointed Regent Paul W. Brown as chairman and formed three advisory committees to assist it: a [444 Mich. 216] student committee, a faculty committee, and an alumni committee.

By the fall of 1987, the Presidential Selection Committee had compiled an informal list of 250 potential candidates to replace President Shapiro. No formal applications were submitted by the candidates themselves. Rather, most of the candidates were recommended by third parties, who advised the committee of the candidates' qualifications. The committee's administrative secretary compiled a notebook of information relating to each candidate, and the board members reviewed these materials to evaluate the various individuals. To reduce the field of candidates, the committee made a series of "cuts," narrowing the list from 250 to one.

The first cut reduced the number of candidates from 250 to 70. The Presidential Selection Committee entrusted Regent Brown with sole authority to make the first cut, and he did so after numerous telephone calls and meetings with the advisory committees and

Page 425

informal subquorum groups of regents. 1 The acknowledged purpose of the telephone calls and the subquorum meetings was to achieve the same intercommunication that could have been achieved in a full board meeting. 2 During this process, the board avoided quorum meetings because it would have been required to conduct a public meeting under the OMA. In fact, Regent Roach told an Ann Arbor News reporter on November 15, 1987, that if it had not been for the OMA and the desire not to discuss these matters in public,

"we would [have been] able to sit down with all the regents present, discuss the problems and talk [444 Mich. 217] about all the candidates at a much earlier point. [Instead], it [took] three or four hours to go around the horn on the telephones and find out what everybody is thinking." 3

After gaining thorough input from all the regents, Brown's first decision was largely an arithmetic function rather than a matter of judgment. 4 However, any regent could review Brown's list of seventy candidates and request the retention of a particular candidate, despite his decision to eliminate the candidate from consideration.

The second phase of cuts employed essentially the same procedure as the first. During this phase, the Presidential Selection Committee narrowed the candidate list from seventy to thirty. Again, Regent Brown telephoned individual regents, and all regents participated in the reduction process. Subquorum-sized groups of regents met to discuss the candidates and to reach a consensus regarding the desired individuals. One regent testified that candidates were rated, the ratings were tallied and circulated, and Brown discussed the results privately with each regent to insure that the list of thirty would be acceptable to the entire committee. 5

The candidates themselves made the third cut. [444 Mich. 218] Brown called the thirty remaining candidates and asked if they would be interested in the position. At this point, more than half the candidates removed themselves from consideration, but twelve candidates expressed their desire to remain on the list.

In March and April of 1988, groups of two, three, or four regents conducted private interviews in the candidates' home cities. Although the Presidential Selection Committee referred to these meetings as "visits," at least one regent conceded that, like any interview, these meetings were to assess and possibly recruit candidates. 6

Before these interviews, candidates informed the regents that they desired their candidacy to remain confidential by signing a form letter that the board had prepared in advance. Subsequently, the candidates and the groups of visiting regents met to discuss the position and the candidates' interests and qualifications. After these meetings, some regents submitted written reports of their impressions of the candidates to the other regents, while others telephoned Brown with their impressions.

The fourth cut followed a number of closed meetings held by the board to discuss the remaining twelve candidates, those "most seriously considered" by the Presidential Selection Committee. 7 The board believed that it could now justifiably convene in closed sessions because of the candidates' request

Page 426

for confidentiality. Following these closed sessions, Brown reduced the list of candidates from twelve to five. Although the regents contended that no voting occurred at these closed meetings, they agreed that they reached a general consensus and that Brown's list of five candidates [444 Mich. 219] reflected the views of the entire Presidential Selection Committee. 8

On May 20, 1988, the board resolved to form a "nominating committee" to decide which candidates would be placed in nomination for action by the board. On May 24, 1988, before the nominating committee met, seven of the regents held a closed meeting to discuss the results of the interviews and to reveal their opinions regarding each of the remaining candidates. The board insisted that no voting took place at this time. It conceded, however, that, on the basis of a consensus, two of the candidates were preferred over the other three.

Immediately following this closed meeting, the nominating committee met, considered the entire candidate list, and decided that only two preferred candidates would remain. This was the fifth cut. After this decision and various informal discussions between committee members and the two remaining candidates, the nominating committee unanimously decided to recommend one candidate, Dr. James Duderstadt, to the board. 9 Dr. Duderstadt was interviewed in an open session by the regents and by selected student, faculty, and alumni representatives. Following this open interview,[444 Mich. 220] the nominating committee met in a closed session, and recommended the nomination of Dr. Duderstadt. The board subsequently reconvened in a public session and voted to elect Dr. Duderstadt president of the University of Michigan.

Booth Newspapers, Inc., doing business as the Ann Arbor News, and the Detroit Free Press, Inc., brought an action in Washtenaw Circuit Court, alleging that the Board of Regents had violated the Open Meetings Act and the Freedom of Information Act. Plaintiffs sought declaratory and injunctive relief against the procedures employed by the Presidential Selection Committee. Plaintiff sought to have the court compel the board to make available the information regarding persons considered for the presidency, the discussions among the regents of the respective qualifications of each individual, and the decisions of certain nonquorum committees as they narrowed the candidates. It also sought disclosure under the FOIA of the destinations to which individual regents traveled for the purpose of interviewing candidates.

The trial court denied all requested relief and granted defendant summary disposition. The Court of Appeals reversed in part and affirmed in part, finding that defendant had violated the OMA, but not the FOIA. 192 Mich.App. 574, 481 N.W.2d 778 (1992). Further, the panel enjoined defendant from further use of the procedure that had been utilized in selecting the university president and awarded plaintiff attorney fees and costs to be determined by the trial court on remand. Defendant filed an application for leave to appeal and plaintiffs filed an application for leave to appeal as cross-appellant. This Court granted both applications. 441 Mich. 881, 491 N.W.2d 825 (1992).

444 Mich. 221] II

A. Open Meetings Act

1. The Legislative Intent

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279 practice notes
  • Wells Fargo Bank v. Null, Docket No. 312485.
    • United States
    • Court of Appeal of Michigan (US)
    • March 6, 2014
    ...raised for the first time on appeal are not ordinarily subject to review.” Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993). “This Court has repeatedly declined to consider arguments not presented at a lower level.... We have only deviated f......
  • In re RFF, Docket No. 221581.
    • United States
    • Court of Appeal of Michigan (US)
    • October 18, 2000
    ...ordinarily will not consider issues raised for the first time on appeal. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993). However, we will consider appellant's unpreserved constitutional claims in this case because no questions of fact e......
  • Federation of Personnel v. University, Docket No. 133819.
    • United States
    • Supreme Court of Michigan
    • July 16, 2008
    ...Legislature has provided little statutory guidance on the notion of privacy contained in the FOIA."). 37. Id. at 547, 475 N.W.2d 304. 38. 444 Mich. 211, 507 N.W.2d 422 39. Id. at 233, 507 N.W.2d 422. Justices Boyle and Riley dissented separately from the majority on the FOIA issue. Justice ......
  • People v. Swilley, Docket No. 154684
    • United States
    • Supreme Court of Michigan
    • July 17, 2019
    ...error.8 People v. Riley , 465 Mich. 442, 447, 636 N.W.2d 514 (2001) ; see Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents , 444 Mich. 211, 234, 507 N.W.2d 422 (1993).9 Ante at 797 ( Markman , J., concurring).10 See, e.g., United States v. Roach , 502 F.3d 425, 441-442 (C.A. 6, 2007)......
  • Request a trial to view additional results
275 cases
  • Wells Fargo Bank v. Null, Docket No. 312485.
    • United States
    • Court of Appeal of Michigan (US)
    • March 6, 2014
    ...raised for the first time on appeal are not ordinarily subject to review.” Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993). “This Court has repeatedly declined to consider arguments not presented at a lower level.... We have only deviated f......
  • In re RFF, Docket No. 221581.
    • United States
    • Court of Appeal of Michigan (US)
    • October 18, 2000
    ...ordinarily will not consider issues raised for the first time on appeal. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993). However, we will consider appellant's unpreserved constitutional claims in this case because no questions of fact e......
  • Federation of Personnel v. University, Docket No. 133819.
    • United States
    • Supreme Court of Michigan
    • July 16, 2008
    ...Legislature has provided little statutory guidance on the notion of privacy contained in the FOIA."). 37. Id. at 547, 475 N.W.2d 304. 38. 444 Mich. 211, 507 N.W.2d 422 39. Id. at 233, 507 N.W.2d 422. Justices Boyle and Riley dissented separately from the majority on the FOIA issue. Justice ......
  • People v. Swilley, Docket No. 154684
    • United States
    • Supreme Court of Michigan
    • July 17, 2019
    ...error.8 People v. Riley , 465 Mich. 442, 447, 636 N.W.2d 514 (2001) ; see Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents , 444 Mich. 211, 234, 507 N.W.2d 422 (1993).9 Ante at 797 ( Markman , J., concurring).10 See, e.g., United States v. Roach , 502 F.3d 425, 441-442 (C.A. 6, 2007)......
  • Request a trial to view additional results

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