Federated Publications, Inc v. Michigan State University Board of Trustees

Kelly, J.

(dissenting). This Court granted leave to determine whether the presidential selection procedure utilized by defendant violated the Open Meetings Act (oma), MCL 15.261 et seq.-, MSA 4.1800(11) et seq. Also at issue is whether application of the oma to committees formed by the governing boards of our *96public universities to assist in the selection of university presidents is constitutional.

I respectfully disagree with the majority’s decision to bypass the question whether the OMA was violated. That question must necessarily be answered before addressing whether application of the OMA to defendant is constitutional.1

I would affirm the judgment of the Court of Appeals on both questions and hold (1) that the OMA applied to activities of the presidential search committee because it was a public body exercising a government function, and (2) the state constitution is not violated by applying the OMA to defendant’s search committee.

DEFENDANT’S VIOLATION OF THE OPEN MEETINGS ACT

The Court of Appeals held that the search committee was a “public body” under the OMA and that, therefore, the OMA applied to its activities. I agree.

Under the act, all decisions of a public body must be made at a meeting open to the public. MCL 15.263(2); MSA 4.1800(13)(2). The OMA defines a “decision” as

a detennination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. [MCL 15.262(d); MSA 4.1800(12)(d).]

It defines a public body as

*97any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement. [MCL 15.262(a); MSA 4.1800(12)(a).]

The defendant Board of Trustees empowered the presidential search committee by resolution to exercise portions of the governmental authority of the board to select the university’s president. The committee reviewed and studied candidates and reduced the number to be considered by the board as a whole. The parties are in agreement that the search committee narrowed the original field of candidates from over 150 to 4. I believe that its activity in this winnowing process was more than ministerial in nature, being that it involved review, discussion, and evaluation of the relative merits of the candidates. It was a form of decision making.

Once a committee is determined to be a public body, a meeting of a quorum of that body is subject to the act. In this case, the search committee was composed of four trustees and nine lay members. Thus, seven members constituted a quorum. Alternatively, if only trustees are considered, a quorum would be three. However, even a subquorum committee has been held to be subject to the oma.

For example, in Booth Newspapers, Inc v Univ of Mich Bd of Regents,2 this Court specified that the intent of the Legislature in enacting the oma was to *98remedy the ineffectiveness of the 1968 open meetings statute and “promote a new era in governmental accountability.” Id. at 222. We explained that “[t]he deliberation of public policy in the public forum is an important check and balance on self-government.” Id. at 223. To further this policy, Michigan courts have “historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.” Id.

We held that the Board of Regents of the University of Michigan is a public body under the OMA. Id. at 225. We continued:

The selection of a university president is one of the board’s most important exercises of governmental authority. If it establishes any form of subcommittee and empowers that subcommittee by “resolution or rule” to exercise this particular governmental authority, then that subcommittee is also a “public body” within the meaning of the act. [Id. (citations omitted).]

Booth Newspapers further held that selection of a president, whether by a one-person committee, some other committee, or the whole board, constitutes the exercise of governmental authority. Whatever the composition of the selection body, it is a public body under the OMA. Id. at 226.

The search committee in this case was composed of fully one-half of the members of the Board of Trustees. It was given the same authority as that given the one-person committee in Booth Newspapers. Applying the analysis in Booth Newspapers, I conclude that the search committee in this case was a public body. Moreover, it engaged in decision making *99by determining which candidates would be presented as finalists to the board.

Therefore, both the reasoning in Booth Newspapers and a straightforward reading of the oma indicate that the presidential search committee was a public body. As such, the committee violated the oma when it reduced the number of candidates in private session, when it reviewed applications, and when it interviewed applicants in private. Accordingly, I would affirm the judgment of the Court of Appeals on this issue.

the constitutionality of applying the oma IN THIS CASE

The majority holds that application of the oma to the internal operations of the university in selecting a president infringes on the university’s constitutional power to supervise itself. I disagree.

The Michigan Constitution states in part:

[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. . . . [It] shall have general supervision of its institution . . . [and] shall, as often as necessary, elect a president of the institution under its supervision. [Const 1963, art 8, § 5.]

It also requires that formal sessions of governing bodies of institutions, including Michigan State University, be open to the public. Const 1963, art 8, § 4.3

When reviewing constitutional provisions, our objective is to give effect to the intent of the people *100who adopted the constitution. Livingston Co v Dep’t of Management & Bridget, 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 examine the circumstances surrounding the adoption of the provision and the purpose it sought to accomplish. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971).

However, our primary focus is on the plain meaning of the constitution’s language, as understood by the people who voted for it. Livingston Co, supra. The language must be read according to its natural, common, and most obvious meaning. Macomb Co, supra. Courts may place themselves in the position of the framers of the constitution to ascertain its meaning at the time it was written. 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.” Univ of Mich Regents 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 Supreme Court. McPherson v Secretary of State, 92 Mich 377, 383; 52 NW 469 (1892).

Although state universities are unquestionably distinct governmental bodies, coequal with the Legislature, they have not been held constitutionally immune from all regulation by the Legislature. In W T Andrew *101Co v Mid-State Surety Corp,4 we held that, although the University of Michigan was a constitutionally created corporation, the public works bond statute could be applied to it through the Legislature’s police power. Statutes designed for the benefit of society as a whole can be imposed on a constitutionally created university when they pose no direct threat to the university’s financial autonomy. Id.

We also held that the University of Michigan was subject to a state law in Univ of Mich Regents v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973). We found that the public employees relations act could be applied to state universities without violating their constitutional autonomy. Id. at 108. We referred to Branum v Univ of Mich Regents,5 holding that, whereas universities have independence in educational matters, they are still a part of the state government. Therefore, the Legislature can waive the universities’ rights to governmental immunity, as it did for other bodies in the state government. Id. at 137-138. In particular, we stated:

It is the opinion of this Court that the legislature can validly exercise its police power for the welfare of the people of this State, and a constitutional corporation such as the board of regents of the University of Michigan can lawfully be affected thereby. The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island. Within the confines of the operation and the allocation of funds of the University, it is supreme. Without these confines, however, there is no reason to allow the regents to use their independence to thwart the *102clearly established public policy of the people of Michigan. [Id. at 138-139.][6]

While I agree with the majority that “the Legislature may not interfere with the management and control of” universities,7 I disagree with its conclusion that the oma infringes defendant’s constitutional power to supervise the institution. The oma is not aimed at any activities peculiar to the university and does not attempt to change or disturb its educational activities. Although it requires that the process of selecting a university president be done in public, it does not tell the board what the criteria should be for selection. It does not dictate the process or the person to be selected. What it does require is, when interviewing candidates and when making a detailed review of applications, that the university function in public meetings.

I cannot conclude that this requirement divests the board of its authority to select a president. The majority holds that application of the oma to the presidential selection process infringes defendant’s constitutional power to supervise the university. However, it makes no attempt to explain what constitutes the infringement. I submit there is none.

*103The majority’s reliance on In re 1976 PA 267,8 is misplaced. In that case, this Court noted that the powers of government were divided among three branches of government pursuant to Const 1963, art 3, § 2. It further noted that the separation of powers set forth in the constitution was “designed to preserve the independence of the three branches of government.” Id. at 662. Incontestably, the judiciary is one branch. Although various cases have stated that public universities are government branches coequal with the Legislature, the constitution contains no provision that elevates them to a separate branch, like the judiciary.9 Since autonomous state universities have not achieved that status under the constitution, and In re 1976 PA 267 dealt with a separate branch, it is inapplicable to this case.

Also, the majority states that “application of the OMA to the governing boards of our public universities is . . . beyond the realm of legislative authority.” Ante at 89. The issue here is whether the OMA applies to only one function of the boards, the selection of the universities’ presidents. The majority provides no basis for concluding that the oma has no application to the remaining functions of the boards. Its statement in this regard could well be misleading to the public.

“Sunshine laws,” such as the OMA, were adopted in Michigan as early as 1895. Wexford Co Prosecutor v *104Pranger, 83 Mich App 197, 201, n 5; 268 NW2d 344 (1978). Their purpose is to prevent real and imminent danger of irreparable injury, triggered when government bodies act in secret. Id. In that regard, the purpose of the oma is to “provide the public with fuller disclosure of the acts of government officials.” Rochester Bd of Ed v State Bd of Ed, 104 Mich App 569, 582; 305 NW2d 541 (1981).

The courts and the Legislature have sought to maintain the autonomy of the constitutional universities. However, we have held repeatedly that our state-financed universities are public institutions that must function, also, within the confines of state laws. While “these two functions can touch or overlap each other, . . . understanding and goodwill is necessary that the people whom both elements represent be best served.” Regents at 395 Mich 76.

Open government best serves the people of Michigan. I would affirm the judgment of the Court of Appeals and hold that the oma may be constitutionally applied to constitutionally established universities in their selection of a president.

See Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972).

444 Mich 211; 507 NW2d 422 (1993).

I disagree with the majority’s analysis of this provision. The presidential screening committee was not a “governing body” contemplated by § 4. It was, however, a public body. Because of that, it was subject to the requirements of the oma.

450 Mich 655, 668-669; 545 NW2d 351 (1996).

5 Mich App 134; 145 NW2d 860 (1966).

See, e.g., MCL 390.101 et seq. MSA 15.1121 et seq., in which the Legislature provided for the powers, privileges, and duties of Michigan State University and its governing board:

The board shall meet quarterly at stated times at Michigan state university and may meet at other times and places as the board determines. . . . The business which the board may perform shall be conducted in compliance with [the oma]. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976. [MCL 390.104; MSA 15.1124.]

Univ of Mich Regents v Michigan, supra at 65.

400 Mich 660; 255 NW2d 635 (1977).

See Walker v Wolverine Fabricating & Mfg Co, Inc, 425 Mich 586, 607; 391 NW2d 296 (1986). The framers of Michigan’s Constitution have eschewed creating a fourth branch of government, as it would be “ ‘contrary to the genius of republican government.'" Civil Service Comm v Auditor General, 302 Mich 673, 682; 5 NW2d 536 (1942), quoting Colbert v State, 86 Miss 769, 775; 39 So 65 (1905).