Federated Publications, Inc. v. Board of Trustees of Michigan State Univ., Docket No. 109663

CourtSupreme Court of Michigan
Writing for the CourtCORRIGAN; WEAVER, C.J., and BRICKLEY, MICHAEL F. CAVANAGH, TAYLOR, and YOUNG, JJ., concur with CORRIGAN; MICHAEL F. CAVANAGH; MARILYN J. KELLY
Citation594 N.W.2d 491,460 Mich. 75
Docket NumberDocket No. 109663,No. 11
Decision Date15 June 1999
Parties, 135 Ed. Law Rep. 242 FEDERATED PUBLICATIONS, INC., doing business as The Lansing State Journal and The Detroit News, Inc., Plaintiffs-Appellees, v. BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, Defendant-Appellant. Calendar

Page 491

594 N.W.2d 491
460 Mich. 75, 135 Ed. Law Rep. 242
FEDERATED PUBLICATIONS, INC., doing business as The Lansing
State Journal and The Detroit News, Inc.,
Plaintiffs-Appellees,
v.
BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, Defendant-Appellant.
Docket No. 109663.
Calendar No. 11.
Supreme Court of Michigan.
Argued Jan. 22, 1999.
Decided June 15, 1999.

Page 492

Foster, Swift, Collins & Smith, P.C. (by Charles E. Barbieri and Webb A. Smith ), Lansing, MI, for plaintiff-appellee.

Roderick K. Daane, Ann Arbor, MI and Robert A. Noto, East Lansing, MI, for defendant-appellant.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Kelly Keenan, Assistant in Charge, FOI Division, Lansing, MI, amici curiae for Attorney General.

Law Offices of Dawn Phillips Hertz (by Dawn L. Phillips and Lisa Rycus Mikalonis ) Troy, MI, amici curiae for Michigan Press Association and the State News.

Miller, Canfield, Paddock & Stone, P.L.C. (by Charles A. Duerr, Jr.), Ann Arbor, MI, by authority and on behalf of attorneys Elizabeth M. Barry, Louis A. Lessem, Susan Gerrits, Kenneth A.

Page 493

McKanders, Eileen K. Jennings, and Scott HillKennedy and Fredric N. Goldberg, amici curiae for state universities University of Michigan Regents, Wayne State University Board of Governors, Oakland University Board of Trustees, Eastern Michigan University Board of Regents, Central Michigan University, and Ferris State University Board of Trustees.

Honigman, Miller, Schwartz & Cohn (by Herschel P. Fink and Jennifer S. Zbytowski ), Detroit, MI, amici curiae for Detroit Free Press, Inc.

Opinion

CORRIGAN, J.

We granted leave in this case to determine whether the presidential selection procedure utilized by defendant violated the Open Meetings Act (OMA), M.C.L. § 15.261 et seq.; MSA 14.1800(11) et seq., and whether application of the OMA to committees formed by the governing boards of our public universities to assist in the selection of university presidents is constitutional. As an initial matter, while we would customarily begin our analysis with a discussion of whether the OMA was violated by the conduct of the board of trustees, 1 we are bypassing that question and moving directly to the constitutional question because the OMA cannot be a restraint upon the actions of defendant in this circumstance. As explained below, we hold that the Legislature does not have power to regulate open meetings for defendant in the context of presidential searches at all, i.e., the Legislature is institutionally unable to craft an open meetings act that would not, in the context of a presidential selection committee, unconstitutionally infringe the governing board's power to supervise the institution. We therefore reverse the Court of Appeals decision and reinstate the trial court's order granting summary disposition for defendant.

I

John DiBiaggio resigned as president of Michigan State University during the summer of 1992. Defendant appointed Gordon Guyer interim president and thereafter formed a presidential search committee (PSC), consisting of the eight university trustees and nine additional members, to assist it in selecting a new president. The PSC developed a statement of qualifications and proceeded to identify potential candidates to meet its charge of recommending final candidates to defendant by July 1, 1993. 2 The search process, however,

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ground to a halt when the MSU student newspaper, the State News, published a confidential list of over one hundred nominees under consideration for the presidency. In response, defendant reconstituted the PSC to consist of four trustees and the nine nontrustee members. The PSC then continued its search in private.

The PSC gathered and reviewed information regarding the candidates, eventually selecting fifteen to interview. After completing the interviews, the PSC recommended four candidates to defendant. Defendant released the names of these candidates to the public. One candidate eventually withdrew, and defendant publicly interviewed the others. Two candidates withdrew after their interviews. Defendant considered the remaining candidate at a July 27, 1993, meeting, but the trustees were evenly divided regarding her candidacy.

Unable to reach a decision to elect the sole remaining candidate, defendant requested that the PSC reconvene and recommend additional candidates. The PSC declined to recommend other candidates. Defendant's chairman then contacted M. Peter McPherson, a candidate who had withdrawn his name from consideration after his interview with the PSC, and urged him to reinstate his candidacy. McPherson agreed. Defendant publicly interviewed him on August 17, 1993, and subsequently elected him president.

Plaintiffs commenced this action shortly after defendant reconstituted the PSC, but the trial court denied their motion for a preliminary injunction. 3 The parties continued discovery after the conclusion of the search and eventually filed cross-motions for summary disposition. The trial court granted defendant's motion and denied plaintiffs' motion, concluding that the PSC was not a public body subject to the OMA, that application of the OMA to the presidential search is unconstitutional, and that defendant did not unlawfully delegate its constitutional authority. The Court of Appeals reversed. 4

The Court of Appeals reasoned that, although courts have held that Michigan public universities are distinct governmental bodies, coequal with the Legislature, they are not constitutionally immune from all regulation by the Legislature. The Court then concluded that the policy of promoting openness in government that underlies the OMA supported application of the act to state universities:

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

Page 495

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. [221 Mich.App. 103, 112, 561 N.W.2d 433 (1997).]

The Court of Appeals also determined that the PSC violated the OMA during its search process. The Court reasoned that the PSC was a "public body" for purposes of the OMA because defendant empowered it by resolution to exercise portions of defendant's governmental authority in selecting a president. The Court determined that the PSC violated the OMA "when it took steps to reduce the number of candidates in private session, when it reviewed applications of persons not requesting confidentiality, and when it interviewed applicants in private." Id. at 119, 561 N.W.2d 433. Finally, the Court rejected plaintiffs' argument that defendant unlawfully delegated its constitutional authority to select a president because defendant, while giving the PSC more than ministerial duties, retained its ultimate authority. 5

This Court granted defendant's application for leave to appeal. 6

II

We address today the constitutional question left open by Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 235-236, 507 N.W.2d 422 (1993), 7 and conclude that application of the OMA to committees formed by governing boards of public universities to assist in the selection of university presidents is unconstitutional.

A

The Michigan Constitution is a limitation on the Legislature's power, not a grant of power to it. Advisory Opinion on Constitutionality of 1976 Pa. 240, 400 Mich. 311, 317-318, 254 N.W.2d 544 (1977). As this Court explained in In re Brewster St. Housing Site, 291 Mich. 313, 332-333, 289 N.W. 493 (1939):

By the Declaration of Independence, all political connection between the colonies and the State of Great Britain was declared to be dissolved and the colonies asserted to be free and independent States. The several States, when organized, succeeded to all of the legislative powers within their respective territorial jurisdictions possessed by the Parliament of England, and as such free and independent States they still possess those powers, except insofar as they have been delegated by the States to the Federal government by the Constitution of the United States or voluntarily restrained by the people through the Constitution of the State.

Thus, absent a constitutional limitation, the Legislature has the power to legislate within a particular field. See Advisory Opinion 1976 PA 240, supra at 318, 254 N.W.2d 544; Oakland Co. Taxpayers' League v. Oakland Co. Supervisors, 355 Mich. 305, 323, 94 N.W.2d 875 (1959); Brewster St, supra at 333, 289 N.W. 493. In this case, we revisit the question of the scope of the Legislature's power to regulate public universities.

B

The Michigan Constitution confers a unique constitutional status on our public

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universities and their governing boards. 8 Const 1963, art 8, §§ 5 & 6. Const 1963, art 8, § 5 grants defendant broad authority over Michigan State University, including the power to elect the president of the university:

[T]he trustees 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,...

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34 practice notes
  • Coal. To Defend Affirmative Action v. Regents of The Univ. of Mich., Nos. 08–1387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 9, 2011
    ...status on [its] public universities and their governing boards.” Federated Publ'ns, Inc. v. Bd. of Trustees of Mich. State Univ., 460 Mich. 75, 594 N.W.2d 491, 495–96 (1999) (citing [652 F.3d 638] Mich. Const. art. VIII, §§ 5 and 6). The status of these boards has been described by the Mich......
  • Schuette v. Coal. to Defend Affirmative Action, No. 12–682.
    • United States
    • United States Supreme Court
    • April 22, 2014
    ...admissions policies. Mich. Const., Art. VIII, § 5 ; see also Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594 N.W.2d 491, 497 (1999). Although the members of the boards are elected, some evidence in the record suggests they delegated 572 U.S. ......
  • Wayne County v. Hathcock, Docket No. 124070
    • United States
    • Supreme Court of Michigan
    • July 30, 2004
    ...9. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004). 10. Federated Publication, Inc. v. Michigan State Univ. Bd. of Trustees, 460 Mich. 75, 93, 594 N.W.2d 491 (1999) (CAVANAGH, J., concurring in part and dissenting in part) (noting a "longstanding rule [that] requires us to consider ......
  • People v. Stevens, Docket No. 110866, Calendar No. 4.
    • United States
    • Supreme Court of Michigan
    • July 20, 1999
    ...resolve the case be addressed before constitutional matters are reached. See Federated Publication v. Mich. State Univ. Bd. of Trustees, 460 Mich. 75, 594 N.W.2d 491 (1999) (Cavanagh, J., 10. The prosecutor has conceded the absence of exigent circumstances that might excuse a violation of t......
  • Request a trial to view additional results
34 cases
  • Coal. To Defend Affirmative Action v. Regents of The Univ. of Mich., Nos. 08–1387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 9, 2011
    ...status on [its] public universities and their governing boards.” Federated Publ'ns, Inc. v. Bd. of Trustees of Mich. State Univ., 460 Mich. 75, 594 N.W.2d 491, 495–96 (1999) (citing [652 F.3d 638] Mich. Const. art. VIII, §§ 5 and 6). The status of these boards has been described by the Mich......
  • Schuette v. Coal. to Defend Affirmative Action, No. 12–682.
    • United States
    • United States Supreme Court
    • April 22, 2014
    ...admissions policies. Mich. Const., Art. VIII, § 5 ; see also Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594 N.W.2d 491, 497 (1999). Although the members of the boards are elected, some evidence in the record suggests they delegated 572 U.S. ......
  • Wayne County v. Hathcock, Docket No. 124070
    • United States
    • Supreme Court of Michigan
    • July 30, 2004
    ...9. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004). 10. Federated Publication, Inc. v. Michigan State Univ. Bd. of Trustees, 460 Mich. 75, 93, 594 N.W.2d 491 (1999) (CAVANAGH, J., concurring in part and dissenting in part) (noting a "longstanding rule [that] requires us to consider ......
  • People v. Stevens, Docket No. 110866, Calendar No. 4.
    • United States
    • Supreme Court of Michigan
    • July 20, 1999
    ...resolve the case be addressed before constitutional matters are reached. See Federated Publication v. Mich. State Univ. Bd. of Trustees, 460 Mich. 75, 594 N.W.2d 491 (1999) (Cavanagh, J., 10. The prosecutor has conceded the absence of exigent circumstances that might excuse a violation of t......
  • Request a trial to view additional results

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