Detroit Free Press Inc. v. Univ. of Mich. Regents, Docket No. 328182.

• Decision Date: 26 April 2016
• Docket Number: Docket No. 328182.
• Parties: DETROIT FREE PRESS INC. v. UNIVERSITY OF MICHIGAN REGENTS.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 294

889 N.W.2d 717

DETROIT FREE PRESS INC.

v.UNIVERSITY OF MICHIGAN REGENTS.

Docket No. 328182.

Court of Appeals of Michigan.

Submitted April 13, 2016, at Lansing.

Decided April 26, 2016, at 9:10 a.m.

Herschel P. Fink and Aaron Sanders PLLC (by Paul R. McAdoo ) for plaintiffs.

Dickinson Wright PLLC, Lansing (by Peter H. Ellsworth, Jeffery V. Stuckey, and Phillip J. DeRosier ) and Timothy G. Lynch, for defendant.

Before: SAWYER, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J.

Plaintiffs, Detroit Free Press, Inc., and Federated Publications, Inc., appeal by right the order of the Court of Claims, which denied plaintiffs' motion for summary disposition and request for injunctive relief and granted summary disposition in favor of defendant, the University of Michigan Regents. Plaintiffs publish or operate two major newspapers in this state; defendant is a constitutional corporation and public body responsible for governing the University of Michigan pursuant to Article 8, §§ 4and 5 of the Michigan Constitution. Plaintiffs contend that all " closed informal sessions" held by defendant violate the Open Meetings Act (OMA), MCL 15.261 et seq., and Article 8, § 4 of the Michigan Constitution. The Court of Claims disagreed. We affirm.

There is no dispute that defendant holds meetings that are both open to the public and closed to the public. It appears that the parties at least tacitly agree that defendant held its formal meetings publicly, in compliance with the OMA. At issue is defendant's practice of conducting informal meetings, which plaintiffs alternatively call "closed door meetings," privately. Defendant describes these informal meetings as being more informational than decisional, and although agendas were prepared for them and a quorum was present, voting did not take place and was not discussed at the informal meetings. Plaintiffs contend, very generally, that all such meetings are required by law to be open to the public.

The Court of Claims concluded that pursuant to Federated Publications, Inc. v. Mich. State Univ. Bd. of Trustees, 460 Mich. 75, 594 N.W.2d 491 (1999), Michigan's Constitution insulates defendant from being required by the OMA to open its informal meetings to the public and that, in addition, defendant is empowered to define what constitutes a formal session. The court reasoned further as follows:

This Court declines plaintiffs' invitation to judicially impose the limitations that the Legislature imposed in the OMA on governing boards of public universities. The Supreme Court has already explained, "[T]he Legislature is not delegated the task of defining the phrase ‘formal sessions' for purposes of Const. 1963, art. 8, § 4." Federated Publications, 460 Mich. at 75 . Neither is this Court. Although the Court suggested judicial review would be available to examine whether a university's definition fails to "bear any relation to the purpose of § 4," id. at 91 n. 14 , plaintiffs do not advance an argument that is directed at meeting that "most deferential standard." Id. This Court will not construct it for them.

The Court of Claims further determined that plaintiffs' claims would have the OMA " ‘dictate[ ] the manner in which the university operates on a day-to[-]day basis,’ " which would be contrary to Article 8, § 5. Therefore, "application of the OMA to defendant's informal sessions runs afoul of defendant's constitutionally-based power to supervise the university." Plaintiffs were not entitled to injunctive relief because they did not succeed on at least one count. Ultimately, it is not relevant in this case whether the sessions were formal or informal as neither side has argued this point. The question being raised is whether all the sessions had to be public, regardless of whether they were designated as informal.

We review de novo a trial court's decision on a motion for summary disposition. Mich. Head & Spine Institute, P.C. v. State Farm Mut. Auto. Ins. Co., 299 Mich.App. 442, 446, 830 N.W.2d 781 (2013). Summary disposition is proper if there is "no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). In interpreting a statute, a court seeks to ascertain and implement the intent of the Legislature. Huron Mountain Club v. Marquette Co. Rd. Comm., 303 Mich.App. 312, 323, 845 N.W.2d 523 (2013). We do so first by examining the language employed, and if it is unambiguous when afforded its plain and ordinary meaning, we enforce it as written. Id. at 324, 845 N.W.2d 523.

Plaintiffs' claims on appeal are dependent on their assertions that the facts of this case are distinguishable from the facts in Federated Publications and that the Court of Claims erroneously relied on dicta from that case when granting summary disposition in favor of defendant. The latter argument simply fails as a matter of well-established precedent that if our Supreme Court "intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum, but is a judicial act of the court which it will thereafter recognize as a binding decision." Detroit v. Mich. Pub. Utilities Comm., 288 Mich. 267, 299–300, 286 N.W. 368 (1939) (quotation marks and citation omitted). It is clear that nothing in Federated Publications was in the nature of a gratuitous and irrelevant remark with no bearing on the case. See Johnson v. White, 430 Mich. 47, 55, n. 2, 420 N.W.2d 87 (1988) (noting a distinction between "obiter dicta" and "judicial dicta"). To the extent any discussion in Federated Publications is relevant to the instant matter, the Court of Claims was obligated, as are we, to treat it as binding.

The former argument—that the facts in Federated Publications are distinguishable from those in this case—also fails. Plaintiffs are of course correct in pointing out that Federated Publications entailed the rather special circumstance of a university searching for a replacement president, which, to the best of our knowledge, is not at issue in the case at bar. However, our Supreme Court did not restrict its reasoning to that context and indeed noted that under discussion was "the question of the scope of the Legislature's power to regulate public universities." Federated Publications, 460 Mich....