Busuito v. Barnhill

• Decision Date: 27 May 2021
• Docket Number: 353424
• Citation: 337 Mich.App. 434,976 N.W.2d 60
• Parties: Michael BUSUITO, Anil Kumar, Sandra Hughes O'Brien, and Dana Thompson, Plaintiffs-Appellants, v. Bryan C. BARNHILL, II, Mark Gaffney, Marilyn Kelly, Kim Trent, M. Roy Wilson, Wayne State University, and Wayne State University Board of Governors, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 434

976 N.W.2d 60

Michael BUSUITO, Anil Kumar, Sandra Hughes O'Brien, and Dana Thompson, Plaintiffs-Appellants,

v.Bryan C. BARNHILL, II, Mark Gaffney, Marilyn Kelly, Kim Trent, M. Roy Wilson, Wayne State University, and Wayne State University Board of Governors, Defendants-Appellees.

No. 353424

Court of Appeals of Michigan.

Submitted April 13, 2021, at Lansing.

Decided May 27, 2021, 9:10 a.m.

Howard & Howard Attorneys PLLC (by H. William Burdett, Jr., and Jon R. Steiger, Royal Oak) for Michael Busuito, Anil Kumar, Sandra Hughes O'Brien, and Dana Thompson.

Barris, Sott, Denn & Driker, PLLC, Detroit (by Todd R. Mendel, Eugene Driker, and Dennis M. Barnes ) for Bryan C. Barnhill, II, Mark Gaffney, Marilyn Kelly, Kim Trent, M. Roy Wilson, Wayne State University, and the Wayne State University Board of Governors.

Before: Jansen, P.J., and Ronayne Krause and Gadola, JJ.

Jansen, P.J. Plaintiffs, Michael Busuito, Anil Kumar, Sandra Hughes O'Brien, and Dana Thompson, appeal as of right the order of the Court of Claims granting summary disposition in favor of defendants, Bryan C. Barnhill, II, Mark Gaffney, Marilyn Kelly, Kim Trent, M. Roy Wilson, Wayne State University, and the Wayne State University Board of Governors, under MCR 2.116(C)(10). On appeal, plaintiffs also challenge a prior order of the Court of Claims denying plaintiffs’ request for injunctive relief and granting summary disposition in favor of defendants under MCR 2.116(I)(1). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

All individual plaintiffs and defendants, with the exceptions of Wilson, Wayne State University (WSU), and the Wayne State University Board of Governors (the Board), are elected members of the Board. The Board has general supervision of WSU, as afforded by the Michigan Constitution. See Const. 1963, art. 8, § 5. The Board is comprised of "8 members who shall be nominated and elected in accordance with the election laws of this state." MCL 390.643. Wilson, the President of WSU, is "the principal executive officer" of WSU; President Wilson is considered an "ex officio member of the [B]oard without the right to vote," and he presides over meetings of the Board. See Const. 1963, art. 8, § 5 ; MCL 390.643.

During a Board meeting on April 5, 2019, the Board considered the purchase of real property located at 400 Mack Avenue in Detroit, Michigan (400 Mack Avenue). Plaintiffs voted "no" to the acquisition of that property. However, on June 19, 2019, the sublease of the 400 Mack Avenue property, with an option to purchase, was added to the Board's executive meeting agenda for its upcoming June 21, 2019 meeting. Plaintiffs maintain that this last-minute addition to the agenda was made because Governor Kumar would not be able to attend the meeting and, therefore, defendants believed that they would be able to outvote plaintiffs 4-3 in favor of entering into the sublease for the 400 Mack Avenue property. In response, Governors Busuito, O'Brien, and Thompson boycotted the June 21, 2019 meeting in hopes that the Board would be unable to establish a quorum to transact business.

The June 21, 2019 meeting went forward with defendant Board members in attendance. Additionally, President Wilson was counted as a member of the Board to establish a quorum. During the open session, the Board approved a tuition increase for the upcoming 2019-2020 academic year. President Wilson, despite being counted for a quorum, did not vote. Plaintiffs maintain that the Board violated the Open Meetings Act (OMA), MCL 15.261 et seq. , specifically MCL 15.267(1), by then moving into a closed executive session without holding a roll-call vote or a ²/₃ majority vote. During the closed executive session, the sublease for the 400 Mack Avenue property was approved.

Plaintiffs originally filed a three-count complaint in Ingham Circuit Court. The case was removed to the Court of Claims and subsequently dismissed without prejudice because plaintiffs had failed to strictly comply with the notice and verification requirements contained in MCL 600.6431. Plaintiffs subsequently refiled the instant action: a verified three-count complaint and a motion for a temporary restraining order and a preliminary injunction. In their motion, plaintiffs argued that "[a]s a result of the individual [d]efendants’ actions in both determining [a] quorum where none existed, and in holding a closed session without the necessary Board approval, the entire June 21, 2019, meeting of the Board of Governors of Wayne State University is null, void, and without effect." Plaintiffs asked the Court of Claims to enter an order under MCR 3.310(B) temporarily restraining defendants from taking any action with regard to the decisions made at the June 21, 2019 meeting.

In their complaint, plaintiffs alleged that neither President "Wilson, nor any of his predecessors, had ever been counted as a member of the Board to determine [a] quorum previous to June 21, 2019." Plaintiffs went on to offer the opinion that it was "nonsensical to count a non-voting, unelected ex-officio member for that purpose" and that doing so violated the Michigan Constitution, the WSU Bylaws, and "longstanding principles of democracy." Therefore, in Count I, plaintiffs argued they were entitled to a declaration that the Board did not have a quorum sufficient to hold the June 21, 2019 meeting and that without a quorum, any decisions made at the June 21, 2019 meeting are null, void, and without effect. In Count II, plaintiffs sought injunctive relief, specifically an order under MCL 15.271, enjoining defendants from acting upon any decisions made in the closed session of June 21, 2019. Finally, in Count III, plaintiffs alleged a violation of the OMA. Specifically, plaintiffs alleged that by entering into a closed executive session without a ²/₃ majority vote or a roll-call vote, defendants had violated MCL 15.267(1) and that no exception exists when considering a purchase or lease of real property under MCL 15.267(1) and MCL 15.268(d). Defendant Board members alleged plaintiffs were therefore liable for actual and exemplary damages of not more than $500 total, plus costs and attorney fees, under MCL 15.273.

On August 2, 2019, the Court of Claims issued an opinion and order denying plaintiffs’ motion for a temporary restraining order and preliminary injunction and granting summary disposition in favor of defendants under MCR 2.116(I)(1), finding that plaintiffs’ OMA claim fails as a matter of law. With respect to whether plaintiffs were entitled to injunctive relief, the Court of Claims explained:

As it concerns plaintiffs’ ability to prevail on the merits, there are two issues to be examined: (1) Whether Wilson should have been counted as a member of the Board of Governors for purposes of establishing a quorum and, if the answer to that question is "no," whether any resulting decision of the Board is void for the reason that no quorum was achieved? (2) Whether any decisions reached in the "closed session" of the June 21, 2019 meeting were reached in violation of the OMA?

First, the Court of Claims found that plaintiffs "cannot demonstrate any likelihood of success on the merits of the OMA claim" because "[t]he OMA does not apply to meetings of university boards," citing Federated Publications, Inc. v. Mich. State Univ. Bd. of Trustees , 460 Mich. 75, 84, 594 N.W.2d 491 (1999) ; Detroit Free Press, Inc. v. Univ. of Mich. Regents , 315 Mich. App. 294, 298, 889 N.W.2d 717 (2016). Although Const. 1963, art. 8, § 4, requires "[f]ormal sessions of governing boards of [public] institutions" of higher education to be open to the public, the Court of Claims determined that this requirement "is not the equivalent of, nor does it invoke the application of, the OMA." Quoting Federated Publications , the Court of Claims explained that " ‘[g]iven the constitutional authority to supervise the institution generally, application of the OMA to the governing boards of our public universities is ... beyond the realm of legislative authority.’ " Federated Publications , 460 Mich. at 89, 594 N.W.2d 491.

The Court of Claims further relied on Detroit Free Press , 315 Mich. App. at 298, 889 N.W.2d 717, in which this Court "explained that the holding in Federated Publications defined the ‘scope of the Legislature's power to regulate public universities’ in general." The Court of Claims concluded that "the scope of that power does not permit the Legislature to apply the OMA to the boards of public universities, regardless of ... the circumstances...." Additionally, the court noted that

[i]n Detroit Free Press , the Court of Appeals recognized that "[t]he Constitution permits defendant to hold informal meetings in private; defendant is only required to hold its formal meetings in public." Id . [at 298-299], 315 Mich.App. 294. But the constitutional requirement to hold formal meetings in public does not bring about application of the OMA. Id.

In light of the above, plaintiffs’ OMA claim cannot serve as the basis for injunctive relief. The OMA claim will be dismissed pursuant to MCR 2.116(I)(1) because an OMA claim cannot be asserted against the ... Board as a matter of law.^[1]

The Court of Claims next addressed the likelihood of plaintiffs’ ability to succeed on the claim arising out of defendant Board members’ determination that President Wilson could be counted to establish a quorum. The Court of Claims found constitutional and statutory support for and against counting President Wilson when determining a quorum. The court

acknowledge[d] that the plaintiffs’ case on quorum as plead[ed] is neither frivolous nor lacking any support. If the doctrine of expressio unius est exclusio alterius^{[2 ]} is deemed inapplicable because of the numerous instances in statute and by-laws where the board membership and presidential duties are addressed separately[,] there is an ambiguity best determined on the merits[,] not preliminarily. The burden on a plaintiff to establish the

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