Esperance v. Chesterfield Tp. of Macomb County, Docket No. 77-3142

• Decision Date: 16 April 1979
• Docket Number: Docket No. 77-3142
• Citation: 89 Mich.App. 456,280 N.W.2d 559
• Parties: William ESPERANCE, Plaintiff-Appellant, v. CHESTERFIELD TOWNSHIP OF MACOMB COUNTY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 559

280 N.W.2d 559

89 Mich.App. 456

William ESPERANCE, Plaintiff-Appellant, v. CHESTERFIELD TOWNSHIP OF MACOMB COUNTY, Defendant-Appellee.

Docket No. 77-3142.

Court of Appeals of Michigan.

April 16, 1979.

Rehearing Denied June 6, 1979.

Released for Publication July 12, 1979.

Robert E. Childs, Dearborn, for plaintiff-appellant.

Anthony, Hearsch & Biernat by Gary S. Anthony, Mount Clemens, for defendant-appellee.

Before BRONSON, P. J., and KELLY and RILEY, JJ.

BRONSON, Presiding Judge.

The present case involves the proper interpretation to be given the recently enacted Open Meetings Act, M.C.L. § 15.261 Et seq.; M.S.A. § 4.1800(11) Et seq., specifically whether the act prohibits a public body from voting by secret ballot.

Due to an increase in population, defendant township became eligible for three additional class C liquor licenses. ¹ Approximately 27 people applied for the licenses and in order to trim the number of applicants to the three that would be granted the licenses, the township board utilized a system of elimination ballots. On the first elimination ballot the board members voted for 12 applicants and passed the ballots to the clerk who tallied the votes and announced the names of the 12 people who received the most votes. The clerk did not, however, announce which board members voted for which applicants nor did she record the votes in the minutes. This same procedure was repeated to reduce the number of applicants from 12 to six and finally from six to three. After the number of applicants had been reduced to three, individual resolutions for each successful applicant were approved by a roll call vote which was recorded in the minutes. Although plaintiff was present at the meeting, he raised no objection to this voting procedure.

Following the meeting, plaintiff commenced the present lawsuit, seeking a declaration pursuant to GCR 1963, 521 that the voting procedure used by the township board was in violation of section 3(2) ² of the Open Meetings Act. Plaintiff also sought to have the board's decision granting the liquor licenses invalidated and to enjoin the board from using this method of voting in the future. Defendant township moved for summary judgment claiming plaintiff failed to state a cause of action under the act. The trial court granted the motion and plaintiff now appeals as of right.

In support of its motion for summary judgment defendant first alleged that plaintiff's complaint failed to allege the statutory requirements set forth in M.C.L. § 15.270(2); M.S.A. § 4.1800(20)(2) which are prerequisites to the invalidation of any decision of a public body under the act.

"A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision * * *." ³

Defendant contends that since the Legislature used the word "and" the requirements are conjunctive, not disjunctive. According to defendant, plaintiff must plead and prove violations of all three sections before a decision can be invalidated, and since plaintiff only alleged a violation of section 3(2) he failed to state a cause of action.

While it is true that the use of the word "and" in a statute usually connotes the conjunctive, this rule is not an absolute.

"The popular use of 'or' and 'and' is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context." Heckathorn v. Heckathorn, 284 Mich. 677, 681, 280 N.W. 79, 81 (1938).

Therefore, when it is clear that the Legislature intended to have the clauses read in the disjunctive, the word "or" can be substituted for the conjunctive "and". See Aikens v. Dep't of Conservation, 387 Mich. 495, 198 N.W.2d 304 (1972). In Aikens, the Department of Conservation seized certain catches of perch on the grounds that the fish were undersized as they failed to meet the "in the round" length requirement of the following statute:

"(d) Perch, of a less length than 81/2 inches in the round And filleted perch of a less weight than 13/4 ounces; perch with heads and tails off of a less length than 51/2 inches; * * * " (Emphasis added.) M.C.L. § 308.14(1)(d); M.S.A. § 13.1505(1)(d).

The fisherman contended that because the statute used the word "and" the fish were not illegally caught unless they were less than 81/2 inches in the round And weighed less than 13/4 ounces when filleted, And were less than 51/2 inches in length with the heads and tails off. The Supreme Court, however, stated that a careful reading of the statute indicated that the Legislature intended to set up three separate tests, not one, and if the fish failed to meet any of the tests, the fish were illegally possessed.

The Aikens case is applicable to the present case. A careful reading of the statute shows that the Legislature intended that a decision of a public body could be invalidated for a violation of either section 3(1), (2), or (3), as each was an independent objective of the act.

Defendant's interpretation of the statute would render it meaningless. Under such an interpretation, a public body would not be in violation of the statute if it made its decisions in public but deliberated in private or conversely, deliberated in public but made its decisions in private, or if it opened its meetings to the public, but held the meetings in a place which was inaccessible to the public. The Legislature clearly intended to make all three actions illegal, and intended to make any of the three violations an independent basis for invalidating the illegal actions. Plaintiff did not fail to state a cause of action for this reason.

Defendant next contends that the Open Meetings Act does not expressly prohibit secret ballots, but instead only requires that "(a)ll decisions of a public body shall be made at a meeting open to the public". ⁴ Therefore, according to defendant the township board complied with the act because even though it voted by secret ballot, ⁵ the balloting was done at a meeting open to the public. We find this contention unconvincing.

Prior to enacting the current Open Meetings Act, the Legislature created a special committee to study the operation of the former open meetings law. ⁶ The committee, in its report recommending passage of a new Open Meetings Act, decried the evils of secret voting by public officials.

"Secret voting by elected officials at every level in the government tends to foster an atmosphere of suspicion and mistrust of decision-making by public officials, whether it be real or imagined. Such an atmosphere is an intolerable impediment to respect for our public institutions as well as public officialdom and cannot be allowed to persist.

"As U. S. Senator Adlai E. Stevenson III of Illinois has observed, 'Excessive secrecy breeds distrust. It prevents accountability. It does violence to the principle of government based on the informed consent of the governed.' " ⁷

The legislative history of the act thus supports the contention that the act was passed to combat secret voting in all of its forms whether it be by closed meeting or by secret ballot.

In Wexford County Prosecutor v. Pranger, 83 Mich.App. 197, 268 N.W.2d 344 (1978), this Court stated that the Open Meetings Act was enacted to provide openness and accountability in government, and is to be interpreted so as to accomplish this goal. Defendant's interpretation of the act would not be in keeping with this objective. It can hardly be contended that a vote by secret ballot at an open meeting is any more open than a vote at a closed meeting. In either case the public official has shielded his stand from public scrutiny and accountability.

It should also be recognized that because the act requires all meetings to be opened to the public it implicitly requires that all parts of the meeting (unless specifically excluded by the act) also be open to the public. Clearly a public body could not open only the first five minutes of the meeting and then close the rest of the meeting and argue that it complied with the Open Meetings Act. Similarly, a secret ballot effectively closes part of a meeting to the public, since the balloting withdraws from public view an essential part of the meeting.

For these reasons, we hold that the Open Meetings Act prohibits a public body from voting by secret ballot, ⁸ and the trial court erred in not granting plaintiff's complaint for declaratory relief on this point.

Merely because secret balloting is prohibited by the Open Meetings Act ⁹ does not automatically mean that the board's decision in the present case must be invalidated, and that an injunction must issue restraining defendant from utilizing the procedure in the future.

Invalidation of decisions made in contravention of the act is discretionary with the court. Those seeking to have the decision invalidated must allege not only that the public body failed to comply with the act, but also that this failure impaired the rights of the public. M.C.L. § 15.270(2); M.S.A. § 4.1800(20)(2). This was not done in the present case. Plaintiff did not allege that the township board willfully or intentionally sought to violate the act. Nor is there any allegation that the board or any of its members were trying to cover up for misdeeds or to hide the identity of the persons for whom they voted. ¹⁰ Since plaintiff failed to allege that the rights of the public were impaired by the secret ballot, he failed to state a cause of action under the act for invalidating the decision of the board.

Finally, the record indicates that the board acted in good faith in utilizing the voting procedure. There was no subterfuge involved, but instead the board adopted the...