Breighner v. MICH. HIGH SCHOOL ATHLETIC ASS'N, INC.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 29, 2004

MARTIN B. BREIGHNER III and
KATHRYN BREIGHNER,

Plaintiffs-Appellants,

v No. 123529

MICHIGAN HIGH SCHOOL ATHLETIC
ASSOCIATION, INC.,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

At issue in this case is whether defendant Michigan

High School Athletic Association, Inc. (MHSAA), a private,

nonprofit entity that organizes and supervises

interscholastic athletic events for its voluntary members,

is a “public body” as that term is defined at MCL

15.232(d) of the Freedom of Information Act (FOIA), MCL

15.231 et seq. Plaintiffs contend that the MHSAA is a

public body within the meaning of the FOIA because (1) it

is “primarily funded by or through state or local
authority,” MCL 15.232(d)(iv); (2) it is “created by state

or local authority,” MCL 15.232(d)(iv); and (3) it is an

“agency” of a school district, MCL 15.232(d)(iii).

The trial court held that the MHSAA was “primarily

funded by or through state or local authority” and that it

was therefore subject to the FOIA as a public body under §

232(d)(iv). The Court of Appeals reversed, concluding

that neither § 232(d)(iv) nor § 232(d)(iii) applied to the

MHSAA. Because we agree that the MHSAA does not qualify as

a public body under § 232(d)(iii) or (iv), we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. THE MHSAA

The MHSAA was originally founded in 1924 to exercise

control over the interscholastic athletic activities of

all public schools in the state through agreement with the

State Superintendent of Public Instruction. The MHSAA was

housed within the Michigan Department of Education, and

its handbook, rules, and regulations were part of the

Administrative Code of the state of Michigan.

In 1972, the MHSAA became an incorporated, nonprofit

membership organization. In that year, the Legislature

transferred control of interscholastic athletics from the

State Board of Education to the individual school boards,

2

but retained the status of the MHSAA as the official

association of the state. See MCL 340.379 (repealed by

1976 PA 451, § 1851); MCL 380.1289 (before its amendment

by 1995 PA 289, § 1); MCL 380.1521 (repealed by 1995 PA

289, § 2).1 In 1995, the Legislature adopted the Revised

School Code, MCL 380.1 et seq., which repealed and amended

several statutes. Through the Revised School Code, the

MHSAA was removed as the “official” organization overseeing

interscholastic sports. Under MCL 380.11a(4), a school

district’s membership in any athletic organization remains

entirely voluntary (school districts “may . . . join

organizations as part of performing the functions of the

school district” [emphasis supplied]).

1
MCL 380.1289(1) provided, until 1995, that “[a]
board of a school district . . . may join an organization,
association, or league which has as its object the
promotion and regulation of sport and athletic . . .
contests . . . .” Section 1289(2) further provided:

An association established for the purpose
of organizing and conducting athletic events,
contests, or tournaments among schools shall be
the official association of the state. The
association is responsible for the adoption and
enforcement of regulations relative to
eligibility of pupils in schools for
participation in interscholastic athletic events,
contests, or tournaments. [Emphasis supplied.]

3

 The MHSAA is governed by a representative council made

up of nineteen voting members, including fourteen members

elected by member schools, four members appointed by the

council, and one representative of the state

superintendent of education. The council has control of

interscholastic athletic policies, and a five-member

executive committee makes rules necessary for the control

and government of interschool activities.

The MHSAA regulates interscholastic athletic

competition between member schools and sets standards for

school membership and eligibility of students to

participate in interscholastic athletics. Apparently, the

vast majority of high schools in Michigan are members of

the MHSAA. Approximately seven hundred Michigan high

schools are members of the MHSAA and more than eighty

percent of those schools are public. Member schools pay

no membership dues and no tournament entry fees. The only

funds collected from schools are (1) payments for the cost

of publications provided to a school in excess of the

quantity already provided to members and (2) meeting

expenses (for example, the cost of lunch).

The majority——approximately ninety percent——of the

MHSAA’s revenues are gate receipts at post-season athletic

4

tournaments for football and basketball. The gate receipt

revenues come directly from the sale of the MHSAA’s tickets

to members of the public who attend MHSAA-sponsored events.

In some cases, the MHSAA itself does not sell the tickets,

but member schools remit to the MHSAA gate receipts

collected from tickets sold by the schools for the MHSAA-

sponsored events.

Because no revenues are derived either during the

regular season or from most of the tournaments sponsored

by the MHSAA, the positive cash flow from the football and

basketball tournaments is used to fund these other

activities. Services provided by the MHSAA to its members

include the provision of medical insurance for student-

athletes; dissemination of play rule books; organization

of meetings for coaches and officials; provision of

several school and officials publications; provision of

trophies and medals; training; direction and management of

tournaments; and the services of the MHSAA staff.

B. PLAINTIFFS’ FOIA PROCEEDINGS

Plaintiffs are the parents of a high school student

who was prohibited from participating in a ski meet

sponsored by the MHSAA because he had previously

participated in an unsanctioned event in violation of MHSAA

5

rules. Plaintiffs filed a request under the FOIA seeking

information related to that decision. The MHSAA refused to

comply with the request, asserting that it was not a

public body and was therefore not subject to the FOIA.

The trial court granted summary disposition to

plaintiffs, holding that the MHSAA is “primarily funded by

or through state or local authority” within the meaning of

§ 232(d)(iv) because the vast majority of its funding

comes from gate receipts at the athletic events it

sponsors. The trial court held that the gate receipts

that comprised the majority of the MHSAA’s revenue were

received “through” the schools because the MHSAA

essentially “’enjoys the schools’ moneymaking capacity as

its own,’” quoting Brentwood Academy v Tennessee Secondary

School Athletic Ass’n, 531 US 288; 121 S Ct 924; 148 L Ed

2d 807 (2001).

The Court of Appeals reversed, holding that the MHSAA

was not a public body under either § 232(d)(iv) or §

232(d)(iii). 255 Mich App 567, 581-582, 583; 662 NW2d 413

(2003).

The majority first addressed plaintiffs’ argument

that the MHSAA was “created by state or local authority”

under § 232(d)(iv). The majority held that, although it

6

was originally created under such authority, the modern

incarnation of the MHSAA was a unique, private entity that

had ceased being the official athletic association for the

state. This unique entity was not “created” by state or

local authority.

The majority further rejected the trial court’s

conclusion that the MHSAA is primarily funded by or through

state or local authority. The panel noted that the state

provides no financial resources to fund the MHSAA’s

activities, and that the MHSAA actually paid fees for the

use of host facilities. Member schools pay no fees or

dues to the MHSAA. The MHSAA is a private, nonprofit

organization that hires and trains its own officials and

pays its own employees; furthermore, its revenues are

derived from the sale of its own tickets for its own

events. The majority further noted that schools are not

forced to join the MHSAA and that member schools

voluntarily chose to engage the MHSAA’s services. The

individual schools have authority over their own

interscholastic events and have no independent authority

over the MHSAA.

Finally, the majority rejected plaintiffs’ argument

that the MHSAA is an “agent” of the state and therefore

7

subject to the FOIA under § 232(d)(iii). The majority

looked to Black’s Law Dictionary (7th ed), where “agency”

was defined as “[a] fiduciary relationship created by

express or implied contract or by law, in which one party

(the agent) may act on behalf of another party (the

principal) and bind that other party by words or actions.”

The majority further noted that, pursuant to St Clair

Intermediate School Dist v Intermediate Ed Ass’n, 458 Mich

540, 558 n 18; 581 NW2d 707 (1998), “an agency

relationship arises only where the principal ‘has the

right to control the conduct of the agent with respect to

matters entrusted to him.’” (citations omitted). The

majority held that the MHSAA was governed by its board of

directors, not the individual schools who voluntarily

became its members. No one school or district could

control the MHSAA, because it was controlled by its own

board. Therefore, the majority held, the MHSAA was not an

“agent” of its member schools.

Judge Jansen dissented, opining that the public

policy behind the FOIA favored disclosure and that the MHSAA

was primarily funded by or through state or local

authority because its gate receipts came to it only

through or by means of the schools’ authority to regulate

8

sporting events. Judge Jansen opined that the majority’s

holding was contrary to two cases, State Defender Union

Employees v Legal Aid & Defender Ass’n of Detroit, 230

Mich App 426, 432; 584 NW2d 359 (1998), and Kubick v Child

& Family Services, 171 Mich App 304; 429 NW2d 881 (1988),

in which the Court of Appeals had held, respectively, that

(1) “funded” for purposes of the FOIA definition of “public

body” meant the receipt of a governmental grant or subsidy

and (2) funding that amounted to less than half the total

funding of a corporation did not amount to primary

funding. Judge Jansen opined that the gate receipts

remitted to the MHSAA were the functional equivalent of a

grant or subsidy and that virtually the entire budget of

the MHSAA came from gate receipts. Finally, Judge Jansen

opined that the majority’s holding was contrary to the

Supreme Court’s holding in Brentwood that the Tennessee

Secondary School Athletic Association (TSSAA), an

organization that is allegedly analogous to the MHSAA, was

a state actor for Fourteenth Amendment purposes.

We granted plaintiffs’ application for leave to

appeal. 469 Mich 952 (2003).

9

 II. STANDARD OF REVIEW

This case involves questions of statutory

interpretation, which are reviewed de novo. Roberts v

Mecosta, 466 Mich 57, 62; 642 NW2d 663 (2002). We review

the trial court’s grant of summary disposition de novo.

Id.

III. ANALYSIS

A. INTRODUCTION

The FOIA generally requires disclosure, upon written

request, of public records in the possession of a “public

body.” MCL 15.233(1). “Public body” is defined in MCL

15.232(d) as follows:

(i) A state officer, employee, agency,
department, division, bureau, board, commission,
council, authority, or other body in the
executive branch of the state government, but
does not include the governor or lieutenant
governor, the executive office of the governor
or lieutenant governor, or employees thereof.

(ii) An agency, board, commission, or
council in the legislative branch of the state
government.

(iii) A county, city, township, village,
intercounty, intercity, or regional governing
body, council, school district, special
district, or municipal corporation, or a board,
department, commission, council, or agency
thereof.

10

 (iv) Any other body which is created by
state or local authority or which is primarily
funded by or through state or local authority.

(v) The judiciary, including the office of
the county clerk and employees thereof when
acting in the capacity of clerk to the circuit
court, is not included in the definition of
public body. [Emphasis added.]

B. THE MHSAA IS NOT PRIMARILY FUNDED BY OR THROUGH
STATE OR LOCAL AUTHORITY

We agree with and adopt the reasoning of the Court of

Appeals majority in holding that the MHSAA is not a “public

body” as that term is defined by MCL 15.232(d)(iv).

In granting summary disposition for plaintiffs, the

trial court held that the MHSAA was “primarily funded

through state or local authority” and thus qualified as a

public body under § 232(d)(iv). The court, noting that it

was required to give effect to each word and provision of

the statute, held that the use of the terms “by” and

“through” indicated that funds received both directly and

indirectly would be considered in determining whether an

entity was a public body under § 232(d)(iv). The court

concluded that, although the MHSAA did not receive money

directly from the schools, it “’enjoy[ed] the schools’

moneymaking capacity as its own,’” quoting Brentwood,

supra, and was therefore publicly funded.

11

 Although we agree that the statutory terms “by” and

“through” must each be accorded their unique meanings, and

that this terminology suggests that even indirect public

funding might satisfy the requirements of § 232(d)(iv), we

find persuasive the analysis of the Court of Appeals

majority:

We read “by or through” to distinguish
between the different meanings of the word
“authority,” that is, funding “by” a governmental
authority (an entity) and funding “through”
governmental decision-making authority (the power
to regulate). Under our reasoning, the former
refers to an entity that directly distributes its
financial resources to the disputed organization,
while the latter refers to the disputed
organization indirectly receiving funds through
some action or decision of the governmental body.
[255 Mich App 579-580 (emphasis in original).]

The MHSAA is funded neither “by” nor “through” a

governmental authority. As our Court of Appeals held in

State Defender Union Employees, "funded," as used in §

232(d)(iv), means “the receipt of a governmental grant or

subsidy.” The MHSAA is not the recipient of any

governmental grant or subsidy. The MHSAA’s member schools

do not distribute their financial resources to the MHSAA;

nor do the schools indirectly fund the MHSAA through

allocations of public monies. Rather, the MHSAA——an

independent, nonprofit corporation——is primarily funded by

the sale of its own tickets to private individuals who

12

have voluntarily paid a fee to observe an MHSAA-sponsored

athletic event. Member schools pay no dues or fees to the

MHSAA, the MHSAA pays fees for the use of host facilities,

and it receives no funds from host concessions; thus, the

state provides absolutely no public resources to the
[2]
MHSAA.

2
The dissent has extracted broad dictionary
definitions of the words “by” and “through” to suggest
that the receipt of any monies “by virtue of” an entity’s
relationship with a state or local governmental body is
sufficient to render that entity “funded by or through
state or local authority.” The dissent’s analysis, aside
from conflating the distinct meanings of the words “by”
and “through,” completely disregards the meaning of the
statutory term “funded.” As we have explained, the word
“funded” does not connote the simple receipt of payment in
return for services or materials provided; it connotes
receipt of an allocation of resources or a subsidization.
See State Defender Union Employees, supra at 432; Random
House Webster’s College Dictionary (1997). Yet the
dissent does not even require that an entity doing
business with the government collect fees for goods or
services in order to qualify as a public body; the
relationship alone seems critical. Such an extreme
position is neither warranted by the language of the
statute nor fathomable within the bounds of common sense.
Taken to its logical conclusion, the dissent’s version of
the statute would place within the ambit of § 232(d)(iv)
any contractor or other business that obtains a majority
of its income from sales made or services rendered to
governmental bodies. See Brentwood, supra at 311 (Thomas,
J., dissenting) (“the [Tennessee Secondary School Athletic
Association’s] ‘fiscal relationship with the State is not
different from that of many contractors performing
services for the government.’”). (citation deleted).
Consider, for example, the non-profit College Board, which
administers the SAT to hundreds of Michigan students in the
Footnotes continued on following page.

13

 Nor, contrary to the holding of the trial court and

the opinion of our dissenting colleague, does the MHSAA

“enjoy[] the schools’ moneymaking capacity as its own.”3

classrooms of participating public schools each year.
Public school students pay the examination fee directly to
the College Board, but under the dissent’s rationale the
Board would be a “public body” subject to FOIA disclosure
requirements simply because it derives income “by virtue”
of the fact that the public schools have facilitated an
opportunity for the Board to administer this test in the
schools.
3
Our holding today is limited to the specific
question whether the MHSAA is a “public body” within the
meaning of the FOIA. We express no opinion concerning the
relevance of Brentwood, supra, insofar as it may apply to
the due process implications of the actions of the MHSAA.
We have before us no constitutional question and decline
to address whether the MHSAA is a “state actor” for
purposes of 42 USC 1983 and the Fourteenth Amendment, as
it would be inappropriate to import the concept of and
analysis relevant to state action into our statutory
analysis. Rather, we are constrained to apply the plain
language of the FOIA’s definitional provisions in
determining whether the MHSAA is subject to the
requirements of the FOIA.

While our dissenting colleague acknowledges this
fact, see post at 9, she nevertheless appears to contend
that the definition of “state actor” under federal law is
“pertinent” in defining “public body” under the FOIA.
This is particularly true of Justice Weaver’s focus on
“entwinement” as a relevant inquiry for defining “public
body.”

There is a rather straightforward answer to the
dissent’s utilization of “state actor” analysis: it is
possible for MHSAA to be a state actor under § 1983 and the
Fourteenth Amendment without being a “public body” under
the FOIA if the Legislature has defined “public body” in a
manner inconsistent with Fourteenth Amendment
Footnotes continued on following page.

14

The MHSAA organizes postseason tournaments, rents the game

venues and sells tickets for those games. Without the

MHSAA's leadership and organizational effort, no revenue

from tournament games would be generated for any entity,

including MHSAA member schools. In short, MHSAA creates its

own "market" and revenue therefrom that would otherwise

not exist without its effort. Finally, it is worth noting

that member schools have voluntarily relinquished to the

MHSAA any interest they may have had in ticket sales for

athletic tournaments sponsored by the MHSAA, and the MHSAA,

jurisprudence in the FOIA. The dissent apparently cannot
accept the possibility that the Legislature has the
discretion to define “public body” in any way it chooses;
yet she offers no support for the proposition that the
Legislature was bound by or had in mind the definition of
“state actor” under federal law when it drafted the FOIA.
And, of course, there is no support for that proposition.
The Legislature was free to define “public body” in the
FOIA as narrowly or broadly as it wished. We give meaning
to the Legislature’s terms while the dissent is in search
of alternate meanings.

The dissent not only conflates the meaning of “state
actor” under § 1983 and the Fourteenth Amendment with the
definition of a “public body” under the FOIA, but she goes
on to extract from Brentwood the concept that the
Tennessee Secondary School Athletic Association (TSSAA)
(and, by analogy, the MHSAA) “enjoys the schools’
moneymaking capacity as its own.” As stated supra in note
2, the MHSAA is not “funded” by participating school
districts but provides services in the activities it
conducts and for which it collects gate receipts.

15

in turn, is fully responsible for the organization and

administration of the tournament.

In this vein, we agree with the reasoning of the

Court of Appeals in State Defender Union, supra at 432-

433, that

an otherwise private organization is not “funded
by or through state or local authority” merely
because public monies paid in exchange for goods
provided or services rendered comprise a certain
percentage of the organization's revenue. Earned
fees are simply not a grant, subsidy, or funding
in any reasonable, common-sense construction of
those synonymous words. Rather, it is clear
that, in the FOIA, funded means something other
than an exchange of services or goods for money,
even if the source of money is a governmental
entity [emphasis in original].

The MHSAA, as noted, provides numerous services for its

member schools, such as medical insurance for students,

publications, training, and many other benefits that

schools would not otherwise be in a position to provide.

Here, even assuming that the private ticket-sale revenue

at issue somehow passes “through” a governmental entity,

these funds are received by the MHSAA in exchange for the

multitude of services it performs for its members, most

significantly the administration of the tournaments for

which the tickets are sold. The MHSAA is therefore not

“funded” by or through a governmental entity within the

meaning of § 232(d)(iv).

16

 C. THE MHSAA IS NOT CREATED BY STATE OR LOCAL AUTHORITY

Plaintiffs contend that the MHSAA is a “creature” of

the schools and that it is therefore “created by state or

local authority” within the meaning of § 232(d)(iv). In

support of this rather tenuous argument, plaintiffs cite

Kirby v MHSAA, 459 Mich 23, 39 n 17; 585 NW2d 290 (1998),

in which this Court stated that the MHSAA “is a creature of

its members, with no independent authority over schools or

students. The schools can and should exercise appropriate

oversight of the MHSAA.” Plaintiffs additionally, and

inconsistently, argue that the MHSAA is a “de facto public

body” because it has retained much of the same authority

that was originally bestowed upon it in 1924: the

authority to exercise control over the interscholastic

athletic activities of all high schools of the state.

Plaintiffs stress that high schools have no practical

choice but to join the MHSAA if they want to participate in

interscholastic sports.

We agree with the Court of Appeals majority that the

MHSAA is no longer the same entity that was arguably

“created” by state authority in 1924. Rather, the modern

incarnation of the MHSAA is a wholly different organization

from the entity that was at one time legislatively

17

designated as the official organization for the regulation

of interscholastic sports in Michigan and that was housed

within the Michigan Department of Education. The MHSAA is

now a private corporation that is wholly self-regulated.

Membership is, by statute, completely voluntary. See MCL

380.11a(4) (providing that “[a] . . . school district may

join organizations as part of performing the functions of

the school district”). In short, the MHSAA in its current

form is not “created by state or local authority.”

We further note that our comment in Kirby—that the

MHSAA “is a creature of its members, with no independent

authority over schools or students”—merely lends further

credence to our conclusion that the MHSAA is not a public

body. Michigan schools are in no way obligated to join

the MHSAA, and they remain free to join other athletic

organizations in lieu of, or in addition to, the MHSAA.

Member schools do not relinquish authority or decision-

making capacity to the MHSAA, nor does the MHSAA have any

independent authority over its members.4 There is simply

4
Justice Weaver’s assertion that the school districts
“have delegated the authority to the MHSAA to make policy
decisions,” post at 19, is flatly incorrect. As noted
above, the school districts have voluntarily assumed the
athletic eligibility conditions set by the MHSAA. Again,
Footnotes continued on following page.

18

no basis for concluding that this private corporation is

“created” by any governmental authority.5

D. THE MHSAA IS NOT AN AGENCY OF THE SCHOOLS

Finally, plaintiffs contend that the MHSAA acts as an

“agent” for its member schools and that it is therefore a

public body as defined by § 232(d)(iii):

A county, city, township, village,
intercounty, intercity, or regional governing
body, council, school district, special
district, or municipal corporation, or a board,
department, commission, council, or agency
thereof. [Emphasis added.]

The Court of Appeals majority and the parties appear

to have assumed that § 232(d)(iii) includes “agents” of

enumerated governmental entities in the definition of

while “entwinement” may be a relevant constitutional
inquiry for defining who might be a state actor, it has no
relevance to our obligation to give meaning to “public
body” as the Legislature has defined it.
5
The dissent’s analysis suffers for placing undue
emphasis on the historical connection between what is now
a private, not-for-profit corporation and its previous
incarnation as a state-controlled entity. See post at 9-
10. This historical connection to the state, however
interesting, is irrelevant to the question currently
before the Court. At issue is not whether the 1924
incarnation of the MHSAA is a “public body,” but whether
today’s private corporation composed of voluntary members
is a “public body” under the FOIA. When one engages in
this inquiry without conflating the present private
corporation with its public ancestor, it is manifest that
the MHSAA is not a “public body” under the FOIA.

19

“public body.” We disagree and believe that there is a

fundamental difference between the terms “agent” and

“agency” as the latter term is used in the statute.

As we have noted on many occasions, a statutory term

cannot be viewed in isolation, but must be construed in

accordance with the surrounding text and the statutory

scheme.

“Contextual understanding of statutes is
generally grounded in the doctrine of noscitur a
sociis: ‘it is known from its associates,’ see
Black's Law Dictionary (6th ed), p 1060. This
doctrine stands for the principle [of
interpretation] that a word or phrase is given
meaning by its context or setting." . . .
Although a phrase or a statement may mean one
thing when read in isolation, it may mean
something substantially different when read in
context. . . . [Sweatt v Dep't of Corrections,
468 Mich 172, 179-180; 661 NW2d 201 (2003)
(citations omitted).]

Although the noun “agency” may be used to describe a

business or legal relationship between parties, it is

wholly evident from the context of § 232(d)(iii) that this

is not the sense in which that term is used. Section

232(d)(iii) designates several distinct governmental units

as public bodies, and proceeds to include in this

definition any “agency” of such a governmental unit. In

this specific context, the word “agency” clearly refers to

a unit or division of government and not to the

20

relationship between a principal and an agent. Had the

Legislature intended any “agent” of the enumerated

governmental entities to qualify under § 232(d)(iii), it

would have used that term rather than “agency.”6 Thus, we

reject plaintiffs’ argument that the MHSAA acts as an

“agent” of its member schools and that it thus qualifies

as an “agency” under § 232(d)(iii).7

6
The Department of Labor and Economic Growth, for
example, is a governmental “agency,” but a real estate
office hired to sell governmental property is not a
governmental “agency.” Indeed, it would defy logic (as
well as the plain language of § 232[d][iii]) to conclude
that the Legislature intended that any person or entity
qualifying as an “agent” of one of the enumerated
governmental bodies would be considered a “public body”
for purposes of the FOIA.
7
Moreover, even if we were to conclude that the term
“agency” as used in § 232(d)(iii) includes agents of the
enumerated governmental entities, the MHSAA is an
independent body that is in no way the “agent” of its
members. As noted by the Court of Appeals majority in
this case, “[i]t is a fundamental principle of hornbook
agency law that an agency relationship arises only where
the principal ‘has the right to control the conduct of the
agent with respect to matters entrusted to him.’” St
Clair Intermediate School Dist, supra at 557-558
(citations omitted). The MHSAA is governed by its own
internal board. The individual school members have no
authority over the actions of the MHSAA. Moreover, by
joining the MHSAA, member schools are required to
relinquish to the MHSAA complete authority over the rules
and officiating of MHSAA-sponsored athletics.

21

 V. CONCLUSION

The MHSAA, a private, nonprofit organization having a

wholly voluntary membership of private and public schools,

is not a “public body” within the meaning of the FOIA and

is therefore not subject to the FOIA’s provisions.

Accordingly, we affirm the decision of the Court of

Appeals.

Robert P. Young, Jr.
Maura D. Corrigan
Michael F. Cavanagh
Clifford W. Taylor
Stephen J. Markman

22

 S T A T E O F M I C H I G A N

SUPREME COURT

MARTIN B. BREIGNER III AND
KATHRYN BREIGHNER,

Plaintiffs-Appellants,

v No. 123529

MICHIGAN HIGH SCHOOL ATHLETIC
ASSOCIATION,

Defendant-Appellee.

_______________________________

WEAVER, J. (dissenting)

Plaintiffs in this case seek information pursuant to

the Freedom of Information Act (FOIA), MCL 15.231 et seq.,

regarding how the Michigan High School Athletic

Association, Inc. (MHSAA), determines which alpine ski

races and racers are sanctioned from or for participation.

The MHSAA disqualified plaintiffs’ son from competing with

his public high school ski team during the 2002 season

because he skied in one race that the MHSAA did not

sanction.

The question in this case is whether the MHSAA is a

public body that must comply with the disclosure

requirements of the FOIA. Until the revision of the public

school code by 1995 PA 289, there was no dispute that the
MHSAA was subject to the FOIA. However, the majority holds

that the 1995 revision of the school code insulated the

MHSAA from public scrutiny previously available under the

FOIA. I disagree and would hold that the MSHAA is a public

body subject to the FOIA because it is both created by and

primarily funded by or through public school districts.

I

The FOIA was enacted to continue the common-law right

Michigan citizens have traditionally possessed to access

government documents. See Walen v Dep’t of Corrections, 443

Mich 240, 253; 505 NW2d 519 (1993) (RILEY, J. concurring in

part); Evening News Ass'n v Troy, 417 Mich 481, 494-495;

339 NW2d 421 (1983) (discussing Michigan's established

history of requiring public agency disclosure). As Nowack v

Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928)

explained:

If there be any rule of the English common
law that denies the public the right of access to
public records, it is repugnant to the spirit of
our democratic institutions. Ours is a government
of the people. Every citizen rules. . . .
Undoubtedly, it would be a great surprise to the
citizens and taxpayers of Michigan to learn that
the law denied them access to their own books for
the purpose of seeing how their money was being
expended and how their business was being
conducted. There is no such law and never was
either in this country or in England. Mr. Justice
MORSE was right in saying:
"I do not think that any common law ever
obtained in this free government that would deny

2

 to the people thereof the right of free access
to, and public inspection of, public records."
Burton v. Tuite, 78 Mich 363, 374 (7 LRA 73) [44
NW 282 (1889)].
There is no question as to the common-law
right of the people at large to inspect public
documents and records. The right is based on the
interest which citizens necessarily have in the
matter to which the records relate.

This right to access provides the policy foundation

underlying the FOIA. “The FOIA was enacted to continue

this tradition of openness.” Walen, supra at 254 (Riley,

J.).

The FOIA specifically provides that

all persons . . . are entitled to full and
complete information regarding the affairs of
government and the official acts of those who
represent them as public officials and public
employees, consistent with this act. The people
shall be informed so that they may fully
participate in the democratic process. [MCL
15.231(2).]

The FOIA subjects “public bodies” to its public records

disclosure requirements. MCL 15.235. The FOIA provides

several definitions of “public body,” any one of which

subjects an entity to the FOIA’s public record disclosure

requirements. MCL 15.232(d)(iv) defines one sort of

public body as “[a]ny other body which is created by state

or local authority or which is primarily funded by or

through state or local authority.” I would hold that the

MHSAA is a public body because it is both “created by state

3

or local authority” and “primarily funded by or through

state or local authority.”

Statutory language is to be read according to its

ordinary and generally accepted meaning. Tryc v Michigan

Veterans’ Facility, 451 Mich 135; 545 NW2d 642 (1995). If

the language at issue is plain and unambiguous, we assume

the Legislature intended its plain meaning and enforce the

statute as written. Lorencz v Ford Motor Co, 439 Mich 370,

376; 483 NW2d 844 (1992). It is appropriate to refer to a

dictionary to discern a statute’s plain meaning. State ex

rel Wayne Co Prosecuting Attorney v Levenberg, 406 Mich

455, 465-466; 280 NW2d 810 (1979).

II

Public school districts are expressly listed as public

bodies under the statute. MCL 15.232(d)(iii). Moreover,

the provision of interscholastic athletics has long been

and now remains a proper function of public school

districts, and the MHSAA’s relationship with the public

schools in the provision of interscholastic athletics is

firmly established.

A

The MHSAA is ”Created By” School Districts

Under 1923 PA 237, the superintendent of public

instruction was delegated the authority to supervise and

4

control interscholastic athletic activities. The MHSAA was

first organized in 1924 for the purpose of coordinating and

regulating interscholastic athletic activities.1 Within the

first year of its creation, the MHSAA presented a

“Suggested Set of Standards and Practices of Athletic

Administration.” Regarding these standards, the

superintendent of public instruction wrote:

Any athletic program to be worth having at
all must contribute something to the educational
value to its board. To do that it must be the
result of the cooperative effort on the part of
the superintendent, principal, althletic
director, and student body. Complete control of
the program must remain in the school itself.
Any set of standards and practices must guide all
these various groups.[2]

Until 1972, the MHSAA was apparently “housed within the

Michigan Department of Education, and its Executive

Director was known as the ‘State Director of Athletics.’”

Communities for Equity v Michigan High School Athletic

Ass’n, 178 F Supp 2d 805, 810-811 (WD Mich, 2001). The

1
Since the founding of the MHSAA the state
superintendent of public instruction has been as an ex-
officio member of the Representative Council that governs
the MHSAA. See, Lewis L. Forsythe, Athletics in Michigan
High Schools—The First Hundred Years, (Prentice-Hall, Inc
1950), which documents the development of high school
athletics and the creation of organizations to coordinate
interscholastic athletics since 1848.
2
Id. at 172.

5

MHSAA’s handbook, rules, and regulations were part of the

Michigan Administrative Code. Id. at 811.

In 1972, the School Code was amended and the authority

over interscholastic athletics was moved from the State

Board of Education to individual school districts. Id.

The Legislature expressly provided that school districts

could join “an organization, association or league which

has as its object the promotion of sport . . . and

regulation of athletic . . . contests . . . .” Former MCL

340.379. Although the statute did not expressly

designate the MHSAA as the official organization for

interscholastic athletics, it did provide that “An

association established for the purpose of organizing and

conducting athletic events, contests, or tournaments among

schools shall be the official association of the state.”

Id. (emphasis added). It has been assumed that the

Legislature was referencing the MHSAA. See Communities for

Equity, supra at 811.

Also in 1972, the MHSAA reorganized as a private not-

for-profit corporation. The MHSAA’s purpose remained

essentially unchanged after 1972. As stated in the 1972

articles of incorporation, the MHSAA was intended

to create, establish and provide for, supervise
and conduct interscholastic athletic programs
throughout the state consistent with the

6

 educational values of the high school curriculums
[sic]. . . .[3]
As under the former law, membership in the MHSAA was

voluntary. Nevertheless, once a school district joins the

MHSAA, it was and is bound by the MHSAA’s rules.4

There is no express mention of athletics in the school

code as revised in 1995. The law now simply authorizes

school districts to “join organizations as part of

performing the functions of the school district.” MCL

380.11a(4) (emphasis added). However, the Revised School

Code further provides that the powers of school districts

are not diminished “[u]nless expressly provided in the

3
This description is from the MHSAA’s April 18, 1972,
articles of incorporation.
4
When a school district joins the MHSAA, it must
annually adopt the MHSAA membership resolution. That
resolution provides that the school district:

Accepts the Constitution and By-Laws of
[MHSAA] and adopts as its own the rules,
regulations and interpretations (as minimum
standards), as published in the current HANDBOOK
and qualifications as published in the BULLETIN
as the governing code under which the said
school(s) shall conduct its program of
interscholastic activities and agrees to primary
enforcement of said rules, regulations,
interpretations and qualifications. In addition,
it is hereby agreed that schools which host or
participate in the association’s meets and
tournaments shall follow and enforce all
tournament policies and procedures.

7

amendatory act . . . .” MCL 380.11a(9). Thus, it can be

concluded that the provision of athletics remains a proper

function of school districts. It is also undisputed that

the MHSAA remains the primary statewide organization that

coordinates the interscholastic athletics for public school

districts in Michigan.5

Given this history, the majority’s suggestion that the

MHSAA is “a wholly different organization from the entity

that was at one time legislatively designated as the

official organization for the regulation of interscholastic

sports in Michigan and that was housed within the Michigan

Department of Education,” ante at 18, is inaccurate. As

noted above, the MHSAA was not expressly named in the

statute as the “official” state interscholastic

organization after 1972. Further, the majority suggests

that the “voluntary” nature of membership in the MHSAA is a

new reality under the 1995 Revised School Code. This is

not true. Membership has always been and remains

voluntary. At any point since 1924, a school district

could decide to not participate in interscholastic

athletics and to not join the MHSAA.

5
The MHSAA’s comprehensive control that it has
retained over interscholastic athletics is reviewed in
Communities for Equity, supra at 810-814.

8

 School districts allow the MHSAA to coordinate sports

events because the MHSAA is the dominant statewide

organization of interscholastic athletics, and failure to

join and comply with the MHSAA rules would effectively

prevent the schools from participating in interscholastic

athletics. Moreover, the MHSAA’s written materials

demonstrate that the MHSAA is intertwined with the school

districts. Specifically included in the MHSAA’s eligibility

guidelines are requirements that the student athlete passes

at least twenty credit hours and not have been enrolled in

more than eight semesters in high school.6 Thus, not only

is the MHSAA involved in the athletic activities of the

students, it also establishes rules concerning the

scholastic performance of the student athletes.

As noted in Communities for Equity, supra at 811, the

1995 amendment of the Revised School Code, “resulted in no

substantive changes in the structure or operation of the

MHSAA or in its relationships with its member schools.”

The MHSAA was created by school districts that came

together in 1924 to organize interscholastic athletics, and

the organization of interscholastic athletics remains the

6

(accessed July 28, 2004).

9

MHSAA’s purpose. When school districts join the MHSAA

through annual resolutions passed by the school boards,

they adopt the MHSAA’s constitution, by-laws, rules and

regulations “as their own.”7 Therefore, under the FOIA the

MHSAA should be treated as a “public body” because it is

“created by state or local authority.”

The United States Supreme Court case of Brentwood

Academy v Tennessee Secondary School Athletic Ass’n, 531 US

288; 121 S Ct 924; 148 L Ed 2d 807 (2001), supports the

conclusion that the MHSAA is a public body that was created

by state or local authority. In Brentwood, the United

States Supreme Court held that the Tennessee Secondary

School Athletic Association (TSSAA) was a state actor

subject to constitutional limitations. While it is

unnecessary to decide whether the MHSAA is a state actor to

determine whether the MHSAA is subject to the FOIA, the

Brentwood Court’s discussion of the TSSAA is of interest

and relevant to this case because of the TSSAA’s

similarities to the MHSAA. In Brentwood, the TSSAA, like

the MHSAA, was a not-for-profit corporation that was formed

7
As we have noted before, the MHSAA is a “creature of
its members”. Kirby v MHSAA, 459 Mich 23, 39 n 17; 585 NW2d
290 (1998).

10

to oversee the interscholastic sports programs among public

and private high schools in the state. The TSSAA imposed

sanctions against plaintiff Brentwood Academy based on

recruiting violations. In finding that the TSSAA was a

state actor, the United States Supreme Court noted that

“the nominally private character of the Association is

overborne by the pervasive entwinement of public

institutions and public officials in its composition and

workings. . .” Id. at 298. Brentwood also noted the

TSSAA’s membership consisted of predominantly public

schools, its revenue came from its membership dues and gate

receipts from tournaments held at member schools, state

officials were given ex officio status on the legislative

council, and TSSAA employees were eligible for the state

employees retirement system. Id. at 298-300.8 It is

8
Interestingly, the United States District Court, in
Communities for Equity, supra subsequently held that, under
the United States Supreme Court decision in Brentwood, the
facts presented in Communities for Equity necessitated a
finding that the MHSSA was a state actor. Id. at 847.

The United States District Court explained:

The purpose of the MHSAA—to create,
establish and provide for, supervise and conduct
interscholastic athletic programs throughout the
state—is virtually the same as its Tennessee
counterpart. The MHSAA has a membership of
predominantly public schools and almost every
eligible public school belongs. Its revenue is
derived from gate receipts from tournaments held
Footnotes continued on following page.

11

notable that before the United States Supreme Court in

Brentwood reversed the Sixth Circuit’s conclusion that the

TSSAA was not a state actor, the MHSAA argued that it was

“very similar in structure” to the TSSAA and “that the

nature and function of the MHSAA is virtually identical to

that of the TSSAA.” See Communities for Equity, supra at

846-847. To suggest that an entity like the MHSAA could be

a state actor, but not also a “public body” under the FOIA

would undercut the stated purpose of the FOIA that “[a]ll

persons . . . are entitled to full and complete information

regarding the affairs of government . . . .” MCL

15.231(2).

at member schools and broadcast fees, among other
items, revenues to which schools would otherwise
be entitled. The membership of the MHSAA’s
Representative Council includes a representative
of the superintendent of education and is
comprised of mostly public school employees
acting as representatives for their schools.
Some MHSAA employees continue to be eligible for
participation in the state employee retirement
system. Moreover, the MHSAA exercises
adjudicative power over the schools with its
ability to investigate and determine rules
violations and resultant sanctions.
Just as the Supreme Court recognized that a
mechanism is required to implement
interscholastic sports schedules and competition
rules governing Tennessee’s schools, that
mechanism in the State of Michigan takes the form
of public school officials acting together under
the auspices of the MHSAA. [Id. at 847.]

12

 B
The MHSAA is Primarily Funded
by or through School Districts

The MHSAA is “primarily funded” as a result of its

relationship with the public school districts. The

majority definition of “funded” as narrowly pertaining only

to “the receipt of a governmental grant or subsidy,” ante

at 9, 12, defies common sense. The majority’s definition

originates in a Court of Appeals decision9 that first cites

a dictionary definition of “fund” (as a verb), and then

skips to a synonym, “subsidize,” that the panel discovered

in a thesaurus. Apparently preferring “subsidize” to

“fund,” even though the term “fund” was used by the

Legislature,10 the panel then turned to a dictionary

definition of “subsidy” (a noun) and discovered that a

“subsidy” is defined as “a direct financial aid furnished

by a government . . . [or] any grant or contribution of

money.” Thus, by mixing verbs and nouns and substituting

words for those employed by the Legislature, the panel

9
For its definition of “funded,” the majority relies
on an interpretation conceived in State Defender Union
Employees v Legal Aid and Defender Ass’n of Detroit, 230
Mich App 426; 584 NW2d 359 (1998), a decision written by
the author of the majority opinion while serving on the
Court of Appeals.
10
Apparently the panel also preferred “subsidize” over
other common synonyms of “fund” such as “endow” or
“finance.” Webster’s Collegiate Thesaurus (1976).

13

creatively narrowed “is . . . funded” under the statute to

mean the “receipt of a government grant or subsidy.” While

it is appropriate to refer to dictionary definitions to

understand the ordinary meaning of words, it is not

appropriate to pick and choose among synonyms that may only

have “nearly the same” or “similar”11 meaning and substitute

those for the words specifically employed by the

Legislature.

I would conclude, that a “fund” can be understood to

be “money available for use” so that when something “is

funded” it is provided for “by a fund,” i.e. by “money

available for use . . .” Webster’s New World Dictionary

(3d ed). Michigan public schools represent eighty percent

of the MHSAA’s membership and approximately ninety to

ninety-five percent of the MHSAA’s funding is from gate

receipts from postseason athletic tournaments for football

and basketball involving public school teams. Without the

voluntary participation of the public school districts in

the MHSAA organized interscholastic athletic season and

postseason tournaments, as well as the school districts’

relinquishment of the gate receipts to MHSAA, it would

11
Webster’s, supra, defining “synonym” and
“synonymous.”

14

cease to exist because its primary source of money

available for its use would disappear.

However, the question remains whether the MHSAA’s gate

receipt funding is derived “by or through” public school

districts. There are many inapplicable definitions of the

terms “by” and “through.” But in the context of MCL

15.232(d)(iv), the most applicable definition of “by” in

Webster’s addresses the term as used to express permission

or sanction. In that sense, “by” is defined as “with the

authority or sanction of [by your leave].”12 The applicable

definitions of “through” in Webster’s are “by means of

[through her help]” and “as a result of; because of [done

through error].”13 Id.

Thus, the plain meaning approach to “by” or “through”

in the context of the statute at issue is whether the gate

receipts amount to funding that the MHSAA receives with the

authority or sanction of the school districts or by means

12
In Black’s Law Dictionary (6th ed), “by” is
similarly defined as “[t]hrough the means, act, agency or
instrumentality of.”
13
In Black’s, supra, “through” is defined similarly as
“[b]y means of, in consequence of, by reason of [and] [b]y
the intermediary of; in the name or as the agent of; by the
agency of; because of.”

15

of, as a result of, or because of the school districts.14 I

would hold that because the MHSAA receives its primary

funding as with the authority of (by) and as a result of

(through) the voluntary membership of public school

districts in the MHSAA and the school districts’ voluntary

participation in the interscholastic athletic seasons and

postseason tournaments organized by the MHSAA, the MHSAA is

primarily funded “by or through” the schools and is a

public body under MCL 15.232(d)(iii) of the FOIA.

Rather than look at the plain meaning of the words at

issue, the majority suggests that the terms “by” and

“through” must refer to different kinds of governmental

authority. The majority adopts the analysis of the Court

of Appeals and concludes that “by” refers to an entity that

directly distributes its financial resources to the

disputed organization. The majority then says “through”

refers to the disputed organization indirectly receiving

funds through some action or decision of the governmental

14
The terms “by” and “through” are often combined in
the phrase “by and through.” Garner, A Dictionary of
Modern Legal Usage (2d ed), described “by and through” as
“typical LEGALESE” that “can be replaced with either by or
through.” MCL 8.3a (emphasis added) provides that “[a]ll
words and phrases shall be construed and understood
according to the common and approved usage of the language
. . . .” Thus, the majority’s assertion that these words
in this context must each be accorded “its unique meaning,”
ante at 11, is incorrect.

16

body. Ante at 11-12. However, to understand the statute,

it is not necessary to engraft concepts of direct and

indirect funding or to conclude that the Legislature

intended to reference different kinds of governmental

authority when it only used the term authority once. The

majority’s approach defies the plain language of the

statute and unduly constricts the definitions of “public

body” and of “funded.”

In Brentwood, the Unite States Supreme Court addressed

the nature of gate receipts received by a similar state

school athletic organization for its organization and

sponsorship of public school athletic tournaments and

stated:

Unlike mere public buyers of contract
services, whose payments for services rendered do
not convert the service providers into public
actors, . . . the schools here obtain membership
in the service organization and give up sources
of their own income to their collective
association. The Association . . . exercises
the authority of the predominantly public schools
to charge admission to their games; the
Association does not receive this money from the
schools, but enjoys the moneymaking capacity as
its own. [Brentwood, supra at 299.]

Like the TSSAA, the MHSAA is more than a public contractor

exchanging payments for services. By collecting gate

17

receipts at tournaments, the MHSAA enjoys the schools’

moneymaking capacity as its own.15

This underscores the conclusion that the MHSAA

receives its primary funding “by or through” the schools’

authority. The majority argues that the MHSAA “creates its

own ‘market,’” and stresses that without the MHSAA’s effort

“no revenue from tournament games would be generated for

any entity, including MHSAA member schools.” Ante at 12-

13, 15. The majority thus concludes that the MHSAA is

merely a service provider and that the gate receipts are

simply fees paid for services.

However, as noted above, the MHSAA is not simply in a

situation where the organization provides a fee for a

particular service. True, the MHSAA does organize

interscholastic seasons and postseason tournaments. It

also provides medical insurance, publications, and training

to its members. However, schools do not join the MHSAA or

allow it to sell tickets to events featuring student

athletes simply because the MHSAA provides medical

insurance, publications, or training. As already

explained, school districts allow the MHSAA to coordinate

15
Justice Thomas’s dissenting perspective regarding
the relationship of the association to the schools in
Brentwood did not prevail. The majority’s citation of it,
ante at 13 n 2, is not persuasive.

18

events and relinquish related gate receipts to the MHSAA

because the MHSAA is the dominant statewide organization of

interscholastic athletics, and failure to join and comply

with MHSAA rules would effectively prevent the schools from

participating in interscholastic athletics.

It should be noted that the MHSAA is distinguishable

from ordinary service providers to the schools. The school

districts have delegated the authority to the MHSAA to make

policy decisions. These decisions are within the proper

function of school districts to regulate athletics, MCL

380.11a(4); MCL 380.11a(9), such as athletic eligibility

and training, participation in outside sports activities

and required scholastic achievement for participating

athletes. This intertwinement between the MHSAA and the

school districts makes the MHSAA subject to the FOIA where

an ordinary service provider would not be.

II
Conclusion

It has been and remains the submission of public

school districts to the rules and regulations of the MHSAA

that allows the MHSAA to exist. It can thus be concluded

that the MHSAA was created by the school districts. MCL

15.232(d)(iv). It is similarly by and through the MHSAA’s

relationship with the schools that it may sell tickets for

19

tournaments featuring public school athletes. It follows

that the gate receipts the MHSAA receives for those events

are received “by or through” the authority of the schools

as those words are used in MCL 15.232(d)(iv). The purpose

of the FOIA is to allow citizens to fully participate in

the democratic process regarding the affairs of government

and the official acts of those who represent them. MCL

15.231(2). The school districts have effectively delegated

the responsibility for those official acts, as they pertain

to school athletics, to the MHSAA by repeatedly adopting

its rules as their own.

Thus, both to follow the language of the FOIA and

remain true to the purpose behind its enactment, I would

hold that the MHSAA is a public body that must comply with

the disclosure requirements of the FOIA.

Elizabeth A. Weaver
Marilyn Kelly

20