Mr. Sunshine v. Delta Coll. Bd. of Trs.

• Decision Date: 20 October 2022
• Docket Number: 358042
• Parties: MR. SUNSHINE and JASON ANDRICH, Plaintiffs-Appellants, v. DELTA COLLEGE BOARD OF TRUSTEES, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

MR. SUNSHINE and JASON ANDRICH, Plaintiffs-Appellants, v. DELTA COLLEGE BOARD OF TRUSTEES, Defendant-Appellee.

No. 358042

Court of Appeals of Michigan

October 20, 2022

Saginaw Circuit Court LC No. 20-043053-CZ

Before: M. J. KELLY, P.J., and CAMERON and HOOD, JJ.

CAMERON, J.

This lawsuit arises from plaintiffs' allegations that defendant violated the Open Meetings Act (OMA), MCL 15.261 et seq., when defendant improperly discussed board matters in a closed session. Plaintiffs now appeal the trial court's order granting summary disposition in favor of defendant under MCR 2.116(C)(10). We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Defendant is a public body subject to the OMA.^[1] Plaintiffs allege that defendant violated the OMA when defendant held a closed session during a board meeting on June 9, 2020. The minutes from that meeting show that defendant initiated the closed session after: "[A board member] made a motion that the Board go into Closed Session Pursuant to [MCL 15.268(h)] of the [OMA] to Consider Material Exempt from Discussion or Disclosure by State or Federal Statute - a Written Legal Opinion. [Another board member] seconded the motion." The minutes included a roll call vote showing unanimous support for the closed session. Defendant then entered the closed session to discuss the written legal opinion with its attorney.

Plaintiffs filed a complaint alleging the discussions held during closed session violated the OMA's public-disclosure requirements and defendant impermissibly invited an attorney to its closed session. Plaintiffs further argued defendant failed to satisfy the OMA's procedural requirements. Defendant moved for summary disposition, contending that under MCR 2.116(C)(10), there was no genuine dispute of material fact demonstrating defendant failed to comply with the OMA.^[2] Defendant noted that the material discussed at the closed session was a written legal opinion, which is exempt from public disclosure because it is subject to attorneyclient privilege. The trial court granted defendant's motion, and this appeal followed.

II. PRESERVATION AND STANDARD OF REVIEW

An issue is preserved if it is raised in the trial court. Peterman v State Dep't of Natural Resources, 446 Mich. 177, 183; 521 N.W.2d 499 (1994). For the most part, plaintiffs' arguments are preserved for our review because they were presented in the trial court. However, on appeal plaintiffs offer the new argument that defendant failed to offer any proof the material considered during the closed session was a privileged document. Because this argument was not presented to the trial court, the issue is unpreserved. Id.

A trial court's decision to grant or deny summary disposition is reviewed de novo. Henry Ford Health Sys v Everest Nat'l Ins Co, 326 Mich.App. 398, 402; 927 N.W.2d 717 (2018). However, plaintiffs' unpreserved argument is reviewed for plain error affecting substantial rights. Henderson v Dep't of Treasury, 307 Mich.App. 1, 9; 858 N.W.2d 733 (2014). To demonstrate a plain error, a party must show: "(1) that an error occurred, (2) that the error was plain, and (3) that the plain error affected [the party's] substantial rights. The third factor requires [the party] to show [they were] prejudiced by the error such that it affected the outcome of the proceedings ...." Id. (quotation marks and citations omitted).

"Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Henry Ford Health Sys, 326 Mich.App. at 402 (quotation marks and citation omitted). This Court reviews the interpretation of statutes and court rules de novo. Wilcoxon v Wayne Co Neighborhood Legal Servs, 252 Mich.App. 549, 553; 652 N.W.2d 851 (2002). "When interpreting a court rule, we apply the same rules as when we engage in statutory interpretation." Id.

When interpreting statutes, the primary goal of the judiciary is to ascertain and give effect to the intent of the Legislature. When the Legislature has unambiguously conveyed its intent within a statute, judicial interpretation is neither necessary nor permitted. However, if the intent of the Legislature is not clear, courts must interpret statutes in a way that gives effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory. If a word is not defined in a statute, that word should be interpreted according to its plain and ordinary meaning, and in those situations, [this Court] may consult dictionary definitions. Judicial interpretation of statutes should construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature. [Haynes v Village of Beulah, 308 Mich.App. 465, 468; 865 N.W.2d 923 (2014) (quotation marks and citations omitted).]

III. EXCEPTIONS TO PUBLIC DISCLOSURE

Plaintiffs argue that the open meetings exception set forth in MCL 15.268(h) is inapplicable to this case because defendant invited an attorney to the closed session. Plaintiffs also contend defendant's use of MCL 15.268(h) was a ruse used to discuss matters it did not want publicly disclosed. Plaintiffs' arguments lack merit.

"The purpose of the OMA is to promote governmental accountability by facilitating public access to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern." Vermilya v Delta College Bd of Trustees, 325 Mich.App. 416, 419; 925 N.W.2d 897 (2018) (quotation marks and citation omitted). "Under the OMA, public bodies must conduct their meetings, make all of their decisions, and conduct their deliberations (when a quorum is present) at meetings open to the public." Speicher v Columbia Twp Bd of Trustees, 497 Mich. 125, 134-135; 860 N.W.2d 51 (2014). "All persons must be permitted to attend any meeting except as otherwise provided in this act." MCL 15.263(1). Absent an exception, a public body must ensure "[a]ll deliberations . . . constituting a quorum of its members . . . take[s] place at a meeting open to the public ...." MCL 15.263(3). "To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists." Booth Newspapers, Inc v Univ of Mich. Bd of Regents, 444 Mich. 211, 223; 507 N.W.2d 422 (1993).

However, a public body may go into a closed session for certain limited purposes. MCL 15.268. Relevant to this appeal, these purposes include:

(e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.

* * *

(h) To consider material exempt from discussion or disclosure by state or federal statute. [MCL 15.268(e) and (h).]

In this case, defendant's minutes reflect that it initiated a closed session under MCL 15.268(h) to consider "a [w]ritten [l]egal [o]pinion." Under Michigan's Freedom of Information Act (FOIA), a public body may exempt from disclosure "[i]nformation or records subject to the attorney-client privilege." MCL 15.243(1)(g). And an attorney's written legal opinion is subject to the attorney-client privilege. People v Whitney, 228 Mich.App. 230, 246; 578 N.W.2d 329 (1998), citing Booth Newspapers, Inc v Wyoming City Council, 168 Mich.App. 459, 468; 425 N.W.2d 695 (1988). Thus, defendant's decision to initiate a closed session to discuss a written legal opinion falls within MCL 15.268(h) because material and discussions subject to the attorney-client privilege are statutorily exempt from public disclosure under the FOIA.

A. INVITATION TO ATTORNEY

Plaintiffs nevertheless argue that an attorney's attendance at a closed session renders MCL 15.268(h) inapplicable and, therefore, defendant's stated authority for initiating a closed session was flawed. But plaintiffs overlook similar situations where an attorney has participated in a closed session under MCL 15.268(h).

For example, in Whitney, 228 Mich.App. at 246-247, this Court analyzed whether a city council's closed session violated the OMA. While the council voted to enter closed session under MCL 15.268(h) to consider letters written by its attorney, its discussions during the closed session went beyond the content of the letters. Id. at 247. This Court stated that a public body may not "evade the open meeting requirements of the OMA merely by involving a written opinion from an attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA would allow a closed meeting." Id. at 246-247. Importantly, the Court noted that MCL 15.268(h) does permit the public body to consult with an attorney during a closed session, so long as the discussion is "limited to the meaning of any strictly legal advice presented in the written opinion." Whitney, 228 Mich.App. at 247.

In Wyoming City Council, 168 Mich.App. at 470-471, this Court considered whether a city council violated the OMA when it held several closed sessions to consider an attorney's written legal opinion under MCL 15.268(h). Like Whitney, the attorney attended each of the closed sessions at issue. Wyoming City Council, 168 Mich.App. at 463-465. This Court determined the city council violated the OMA to the extent its discussions during the closed sessions exceeded the scope of the written opinion, stating:

We conclude that the attorney-client privilege which may be asserted regarding the consideration and discussion of a written legal opinion under [MCL 15.268(h)] is

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