Menominee County Taxpayers Alliance, Inc v. Menominee County Clerk

*821Allen, P.J.

(dissenting). While I agree with my colleagues on Issue I, I respectfully disagree that the trial court erred on Issue II. Under § 10(2), decisions arrived at without a public meeting may (not must) be invalidated. The statute clearly so provides. MCL 15.270(2); MSA 4.1800(20X2). Further, our Court specifically so held in Esperance v Chesterfield Twp, 89 Mich App 456; 280 NW2d 559 (1979).

In Esperance the township board awarded a liquor license without revealing at the public meeting how each board member voted. As in the case before us, it was agreed that the township board had not intentionally sought to evade the Open Meetings Act and had not engaged in subterfuge. Our Court refused to find error, saying:

"Merely because secret balloting is prohibited by the Open Meetings Act 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. MCL 15.270(2); MSA 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. 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 procedure as an expedient, albeit improper, method *822of narrowing the field of applicants. Under this set of circumstances, there is no real and imminent danger of irreparable injury requiring issuance of an injunction.” (Emphasis supplied.) (Footnotes omitted.) 89 Mich App 464-465.1

In the instant case the parties have stipulated that the three-man committee acted in good faith, that there was no intention to circumvent the statute, and that the person appointed treasurer was ."suitable”. This being so, obviously no irreparable injury or danger to the public existed. Therefore, I must conclude that under the statute the respected trial judge was correct in denying the relief then sought by plaintiffs, viz.: nullification of the appointment and an injunction. Under the stipulated facts, the issue was indeed "moot”. When the relief sought at the hearing is rightfully denied, those seeking the relief should not be awarded actual attorney fees.

The Legislature did not intend to saddle the taxpayers with attorney fees and costs when the public interest was not in fact impaired. Charging such costs to defendant’s treasury now turns the statute upside down. I would affirm.

For further discussion of Esperance, see 26 Wayne L Rev, pp 397 and 757 (1980). See also, Guthrie, Validity, Construction, and Application of Statutes Making Public Proceedings Open to the Public, 38 ALR3d 1070.