Federated Publications, Inc. v. Board of Trustees

C. A. Nelson, J.,

(dissenting). The statement of facts by the majority is accepted as framing the issues. The trial court granted defendant’s motion for summary disposition, finding, among other things, that the Open Meetings Act (oma) could not be constitutionally applied to the selection of a president for a university established under Const 1963, art 8, §§ 4 and 5. In particular, the trial court stated that it accepted and adopted the reasoning of Justice Riley, joined by Justice Griffin, in her dissent in Booth Newspapers, Inc v Univ of Michigan Bd of Regents, *121444 Mich 211, 251-267; 507 NW2d 422 (1993), wherein she found that the OMA could not be constitutionally applied to the selection of a state university president. I agree.

When reviewing constitutional provisions, the objective of such review is to give effect to the intent of the people who adopted the constitution. Livingston Co v Dep’t of Management & Budget, 430 Mich 635, 641-642; 425 NW2d 65 (1988); Macomb Co Taxpayers Ass’n v L'Anse Creuse Public Schools, 213 Mich App 71, 78; 540 NW2d 684 (1995). In discerning such intent, we look at the circumstances surrounding the adoption of the provision and the purpose sought to be accomplished by its enactment. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). However, the primary source of understanding the constitution is its plain meaning as understood by the people who voted for it. Livingston Co, supra. Constitutional language is to be read according to its natural, common, and most obvious meaning. Macomb Co, supra. Courts may place themselves in the position of framers of the constitution to ascertain its meaning at that time. Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 342; 389 NW2d 430 (1986). Reliance on the records of the constitutional convention is warranted only if the language of the constitution is unclear or if there is a “recurring thread of explanation binding together the whole of a constitutional concept.” Regents of the Univ of Michigan v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975). Due deference is to be given to contemporaneous or longstanding interpretations of the constitution by the Michigan *122Supreme Court. McPherson v Secretary of State, 92 Mich 377, 383; 52 NW 469 (1892).

At issue in this appeal is whether the language in Const 1963, art 8, §§ 4 and 5 should be interpreted to bar application of the OMA to the selection of a president for a state university. Article 8, § 5, in pertinent part, states:

[T]he trastees 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, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex officio a member of the board without the right to vote and preside at meetings of the board. The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law. The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law.

Article 8, § 4, in pertinent part, states, with respect to all state universities established by law:

The legislature shall be given an annual accounting of all income and expenditures by each of these educational institutions. Formal sessions of governing boards of such institutions shall be open to the public.

Historically, the Court has found the Board of Regents of the University of Michigan to be a distinct governmental body that is coequal with the Legislature. Sterling v Univ of Michigan Regents, 110 Mich 369; 68 NW 253 (1896); Weinberg v Regents of University of Michigan, 97 Mich 246; 56 NW 605 (1893), *123overruled in W T Andrew Co, Inc v Mid-State Surety Corp, 450 Mich 655, 669; 545 NW2d 351 (1996)1 In these cases, the Court refused to apply acts of the Legislature to the University of Michigan because the Constitution of 1850 had given controlling power over the university and its property to the regents. The Court in Sterling stated that the basis of the majority opinion in Weinberg was that “the board of regents is a constitutional body, charged by the Constitution with the entire control of that institution.” Sterling, supra at 381-382. The Court reasoned that, where the constitution directly conferred a power upon one constitutional body (the regents of the university), it necessarily excluded the existence of that power in the other constitutional body (the Legislature) unless the constitution contained language indicating a contrary intent. Id. at 382. Michigan State University has followed a parallel course of constitutional maturity. Regents of the Univ of Michigan v Michigan, 166 Mich App 314; 419 NW2d 773 (1988).

Plaintiff argues that the majority opinion in Booth supports its argument that the OMA can be constitutionally applied to defendant. I disagree. The majority explicitly refused to consider the question of constitutionality in that case because it had not been preserved for appeal. 444 Mich 234-235.

*124Plaintiff argues that the oma is merely an implementation of the requirement of Const 1963, art 8, § 4 that the board hold “formal” sessions in public. As Justice Riley opines, “the exclusionary language of ‘formal’ reveals the decision whether informal meetings shall be held publicly is vested in the regents.” Booth, supra at 265. In so stating, Justice Riley reviewed the record of the constitutional convention of 1961 in which it was stated that, at that time, the public and the news media were only present at board meetings as a matter of sufferance. Id. Neither plaintiff in the present suit nor the plaintiffs in Booth suggest that the then-existing practice was to allow the press to accompany regents on interviews for possible presidential candidates, nor do they suggest that such practice was even considered at the adoption of the constitution.” Id., n 26. I agree with Justice Riley’s conclusion that the mandate in Const 1963, art 8, § 4 that “formal” sessions be held in public suggests that “informal” sessions do not need to be held in public.

The question then becomes who defines “formal.” Because the constitution does not define the term, the argument that the oma could provide the definition has some credence. However, given the history behind the constitutional provision and given what the public was used to as “formal” sessions at that time, Justice Riley’s formulation is more in line with constitutional construction. In other words, the people who enacted the constitution would expect the same “formal” sessions to be open to the public as were open at that time. At that time, the governing boards of the universities determined which meetings were to be open to the public. Using the rules of constitutional construction, we will not interfere with the *125board’s determination regarding which sessions are to be “formal.”

Plaintiff and the Attorney General argue that the public policy underlying the OMA can provide a means of limiting the autonomy granted defendant under the constitution. They argue that, even in matters of autonomy such as educational and fiscal matters, limitations can be imposed to implement or protect public policy. They further argue that the OMA is not an impermissible intrusion on an independent branch of government. Although I find their arguments to have some persuasive weight, I ultimately disagree.

In support of their argument, plaintiff cites Glass v Dudley Paper Co, 365 Mich 227; 112 NW2d 489 (1961), which held that the Court of Claims Act could be applied to claims against public universities because universities were not given the constitutional power to set the jurisdiction of the various courts of the state. The Court found that the Court of Claims Act did not invade the power of the university to control the affairs and property of the university. Id. at 229. This result is obvious, because the Court of Claims Act simply sets forth the court in which this constitutional corporation could be sued. It did not in any way control any of the affairs of the university.

Plaintiff also cites Regents of Univ of Michigan v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973). In that case, the Court found that the Michigan Public Employees Relations Act (pera) could be constitutionally applied to state universities without violating their autonomy. Id. at 108. However, because the boards of the universities were given control over educational matters by the constitution, the employees of the university would not be able to *126negotiate on all aspects of their employment. Id. at 109. As an example, the Court stated that if interns at the University of Michigan wanted to bargain to discontinue an aspect of their job, they could not do so if the administrators of the school felt that that aspect was a necessary part of the education of interns. Id. Therefore, the pera was applied to public universities, but limited in its scope.

Plaintiff also cites Branum v Univ of Michigan Bd of Regents, 5 Mich App 134; 145 NW2d 860 (1966). In Branum, this Court found that historically the Board of Regents of the University of Michigan has “not been held subject to the control of the legislature,” id. at 137, and that the board of regents must have the same freedom from control “in educational matters in order to provide the highest quality education.” Id. at 138. This Court stated that, outside the confines of the operation and allocation of funds, the regents were subject to the “clearly established public policy of the people of Michigan.” Id. at 139. That case involved the waiver of the defense of governmental immunity in a tort action. As a result, it is distinguishable because that case did not involve the actual operation of the university, unlike the present case that does involve an operation of the university that goes to the heart of providing “the highest quality education.”

Plaintiff also points to Regents of Univ of Michigan v Labor Mediation Bd, 18 Mich App 485; 171 NW2d 477 (1969), wherein this Court found that the university was subject to the general laws of the state. However, that case did not involve a power that was specifically enumerated in the constitution. Further, in Sprik v Regents of Univ of Michigan, 43 Mich App *127178; 204 NW2d 62 (1972), this Court concluded that, once the state appropriated funds to the university, only the regents can direct how the funds will be spent. However, this Court also stated that the state may place conditions on state appropriations that, if the university accepts the money, are binding on the university as long as the conditions do not interfere with the regents’ management of the university. Id. at 187. Any conditions imposed can only be applied to state-appropriated money. Id. Thus, Sprik is distinguishable because it leaves the decision of whether to accept the conditions with the board, i.e., it has the ultimate power.

While raising many of the same arguments as plaintiff, the Attorney General also sets forth the argument that the courts have long recognized the importance of the underlying, clear public policy promoted by the OMA. He argues that it is the clear public policy of this state to promote openness in government. The Attorney General concludes that, because the OMA does not interfere with the board’s decision in selecting a president, it does not interfere with the constitutional autonomy of the board. Therefore, a review of the purpose behind the OMA is in order.

The title of the OMA, 1976 PA 267, sets forth its purpose, providing:

An act to require certain meetings of certain public bodies to be open to the public; to require notice and the keeping of minutes of meetings, to provide for enforcement; to provide for invalidation of governmental decisions under certain circumstances; to provide penalties; and to repeal certain acts and parts of acts.

*128This Court has previously found that the purpose of the oma is to “provide the public with fuller disclosure of the acts of government officials.” Rochester Community Schools Bd of Ed v State Bd of Ed, 104 Mich App 569, 582; 305 NW2d 541 (1981). Because the purpose of the OMA is to promote openness in government, it is given a broad interpretation. Detroit News, Inc v Detroit, 185 Mich App 296; 460 NW2d 312 (1990). “Sunshine laws” were adopted as early as 1895 in Michigan. Wexford Co Prosecutor v Pranger, 83 Mich App 197, 201, n 5; 268 NW2d 344 (1978). The purpose behind sunshine laws such as the oma is to prevent the real and imminent danger of irreparable injury when governmental bodies act in secret. Id.

The longstanding public policy of this state to open the act of governmental officials to public scrutiny would seem to support the conclusion that the oma can be constitutionally applied to universities as public policy because it does not tell the boards whom to select as president, does not tell them what the criteria should be for that selection, and does not tell them how to select a president. However, defendant argues that such public meetings interfere with the constitutional grant of the power to select a president because it results in good candidates withdrawing their names from consideration. Defendant also argues that because the Supreme Court found that the oma could not be constitutionally applied to the Court in In Re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977), it likewise could not be applied to public universities, which have been found to be coequal branches of government.

As discussed at the beginning of this opinion, the Michigan Supreme Court has consistently found pub-*129lie universities to be independent constitutional corporations coequal with the Legislature. Defendant is explicitly given the power to choose a president by the constitution, and the constitution only mandates that “formal” sessions of the boards be open to the public. Because the Michigan Supreme Court found that the OMA could not be applied to it with regard to its constitutionally derived powers, because the authority to select a president is a constitutionally enumerated power (“Each board shall . . . elect a president of the institution . . . .” Const 1963, art 8, § 5), and because public universities have been found to be coequal to the other branches of government, I conclude that the trial court correctly found that the OMA cannot be constitutionally applied to defendant’s presidential selection process. Any public policy of the OMA must give way to this constitutional mandate that has as a part of its purpose to select a person who will enable the institution to provide “the highest quality education.” This can best be obtained by allowing all possible candidates to be reviewed, including those who would be adversely affected by publicity.

Because the constitutional issue is dispositive, it is unnecessary to review the remaining issues raised by the parties. Thus, I respectfully dissent from the majority opinion.

Although the Court overruled Weinberg in W T Andrews Co, it did so on the basis that the bond statute minimally affected the university and that the statute was a proper exercise of the police power of the Legislature in order to protect the general welfare of society. However, it did so while affirming that the “University of Michigan is constitutionally created and its board of regents possesses complete power over financial decisions affecting the university.” 450 Mich 662. Therefore, the basic underpinnings of Weinberg were affirmed even though the ultimate result was overruled.