STATE OF MICHIGAN
COURT OF APPEALS
HARLAN VERMILYA, HERMAN DESHAW, UNPUBLISHED
LILIAN DESHAW, KELLY BUCZEK, RICK June 15, 2017
BUCZEK, BILL BLANCHARD, DEBBIE
SAWYER, and LAURA ANKLAM
Plaintiffs/Counter-Defendants,
and
KIM A. HIGGS,
Plaintiff/Third-Party Defendant-
Appellant,
and
KEN REINHARDT, VICTOR L. KAIDAN,
FREDERICK C. RIFFELMACHER, RICHARD
SNIECINSKI, JOHN ROBERTS, DARLA
MORRISETTE, HAROLD CHOSAY, GEORGIA
YOUNG, EARL SCHULTE, JUDY SCHULTE,
NORMA KLENDER, LEO KLENDER, MELVIN
ARNOLD, TUJI ARNOLD, GERALD RICKER,
MARY RICKER, BARBARA DEWALD, DOUG
DEWALD, SHIRLEY COGAN, AL
ARMSTRONG, DONNA ARMSTRONG,
WILLIAM RICKER, BARBARA RICKER,
ROBERTA RICHARD, WILLIAM RUSHO,
JULIE RUSHO, JACK HORNER, MARY ANN
TOBIAS, CLARA JEAN, RICAHRD
POMAVILLE, DINAH POMAVILLE, HERB
GEIGER, JEAN GEIGER, MARY K. BLACK,
MARGIE BLACK, KIMBERLY DROPTINY,
BRIAN DROPTINY, and JANET PAULEY,
Plaintiffs,
v No. 331958
Bay Circuit Court
DELTA COLLEGE BOARD OF TRUSTEES, LC No. 09-003024-CZ
DELTA COLLEGE PRESIDENTS
COMPENSATION COMMISSION, JACK R.
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MACKENZIE, DR. THOMAS H. LANE, and
KAREN L. LAWRENCE-WEBSTER,
Defendants/Counter-
Plaintiffs/Third- Party Plaintiffs-
Appellee,
and
DELTA COLLEGE PRESIDENT, MICHIGAN
COMMUNITY COLLEGE RISK
MANAGEMENT AUTHORITY, and
CUMMINGS, MCCLOREY, DAVIS & ACHO,
Defendants-Appellees,
and
MARY JANE GOODNOW,
Counter-Plaintiff.
Before: O’BRIEN, P.J., and HOEKSTRA and BOONSTRA, JJ.
PER CURIAM.
In this action alleging violations of the Open Meetings Act (OMA), MCL 15.231 et seq.,
Kim A. Higgs appeals as of right the trial court’s order granting summary disposition in favor of
Delta College Board of Trustees, Delta College Presidents Compensation Commission, Jack R.
McKenzie, Dr. Thomas H. Lake, Karen L. Lawrence-Webster, Delta College President,
Michigan Community College Risk Management Authority, and Cummings, McClorey, Davis &
Acho. We affirm.
“This Court reviews de novo a trial court’s decision on a motion for summary
disposition[.]” Citizens for a Better Algonac Comm Sch v Algonac Comm Sch, 317 Mich App
171, 176; ___ NW2d ___ (2016). A trial court should grant a party’s motion for summary
disposition pursuant to MCR 2.116(C)(8) if “[t]he opposing party has failed to state a claim on
which relief can be granted.” A trial court should grant a party’s motion for summary
disposition pursuant to MCR 2.116(C)(10) if “there is no genuine issue as to any material fact,
and the moving party is entitled to judgment or partial judgment as a matter of law.” This Court
also reviews de novo a trial court’s interpretation and application of statutes and court rules.
Citizens for a Better Algonac Comm Sch, 317 Mich App at 176-177. In doing so, courts must
turn first to the plain and ordinary meaning of the statute’s or court rule’s language. Id. at 177.
Lastly, a trial court’s decision to grant or deny injunctive relief, including injunctive relief under
the OMA, is reviewed for an abuse of discretion. Id.
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On appeal, Higgs raises two arguments that essentially present the same issue—whether
the trial court erred by concluding that plaintiffs were not entitled to a declaratory judgment as a
matter of law. We conclude that it did not.
First, Higgs argues that plaintiffs were entitled to a declaratory judgment under MCR
2.605(A)(1), which provides as follows:
(1) In a case of actual controversy within its jurisdiction, a Michigan court
of record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought
or granted.
“An actual controversy under MCR 2.605(A)(1) exists when a declaratory judgment is necessary
to guide a plaintiff’s future conduct in order to preserve legal rights.” UAW v Central Mich Univ
Trustees, 295 Mich App 486, 495; 815 NW2d 132 (2012) (internal quotation marks omitted).
“The essential requirement of an actual controversy under the rule is that the plaintiff pleads and
proves facts that demonstrate an adverse interest necessitating the sharpening of the issues
raised.” Id. (internal quotation marks omitted). We agree with the trial court’s conclusion that a
declaratory judgment was not necessary to guide a plaintiff’s future conduct in order to preserve
legal rights in this case. Generally, all of Higgs’s and the other plaintiffs’ allegations against the
defendants have either been resolved, see Vermilya v Delta College Bd of Trustees, unpublished
opinion per curiam of the Court of Appeals, issued November 4, 2014 (Docket No. 315403), or
remain at issue in other pending actions. The only exception, at least in our view, is the alleged
violation at issue in this case, which involved some or all of the defendants’ failure to post a
schedule of the regular meetings within 10 days of the first meeting for the 2009 calendar year.
However, defendants do not dispute that allegation. In short, we cannot conclude that an actual
controversy exists as required by MCR 2.605(A)(1). Accordingly, we reject Higgs’s argument in
this regard.
Second, Higgs argues that plaintiffs were entitled to a declaratory judgment under the
OMA. As our Supreme Court explained in Speicher v Columbia Twp Bd of Trustees, 497 Mich
125, 135-136; 860 NW2d 51 (2014),
The OMA creates a three-tiered enforcement scheme for private litigants:
(1) Section 10 of the OMA allows a person to file a civil suit “to
challenge the validity of a decision of a public body made in
violation of this act.” Subsection (2) specifies when a decision
may be invalidated, and Subsection (5) allows a public body to
cure the alleged defect by reenacting a disputed decision in
conformity with the OMA. Notably, § 10 does not provide for an
award of attorney fees or costs.
(2) If a public body is not complying with the OMA, § 11 allows a
person to file a civil suit “to compel compliance or to enjoin
further noncompliance with this act.” Subsection (4) provides for
an award of court costs and actual attorney fees when three
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conditions are met: (a) a public body is not complying with the
act; (b) a person files “a civil action against the public body for
injunctive relief to compel compliance or enjoin further
noncompliance with the act”; and (c) the person “succeeds in
obtaining relief in the action[.]” The meaning of this latter phrase
is the crux of this case.
(3) Finally, § 13 provides that a public official who intentionally
violates the OMA is “personally liable in a civil action for actual or
exemplary damages of not more than $500.00 total, plus court
costs and actual attorney fees . . . .”
As an initial matter, “these sections, and the distinct kinds of relief that
they provide, stand alone.” This is an important point because “[t]o determine
whether a plaintiff may bring a cause of action for a specific remedy, this Court
must determine whether [the Legislature intended to create such a cause of
action.” When a statute, like the OMA, “gives new rights and prescribes new
remedies, such remedies must be strictly pursued; and a party seeking a remedy
under the act is confined to the remedy conferred thereby and to that only.”
Stated simply, “the structure of the OMA and the somewhat limited nature of the available
remedies as recognized in Speicher only allow for causes of action seeking, on the basis of an
alleged OMA violation, (1) invalidation of a public body’s decision, (2) injunctive relief, or (3)
money damages.” Citizens for a Better Algonac Comm Sch, 317 Mich App at 181. Higgs’s
argument on appeal essentially asks that we add a fourth, and this Court has, in a published, and
thus binding, MCR 7.215(J)(1), opinion, declined to do so based on the Legislature’s intent as
reflected in the plain language of the OMA. Citizens for a Better Algonac Comm Sch, 317 Mich
App at 180 (“Effectively, there was no legislative intent to create an OMA cause of action for
declaratory relief.”). Accordingly, we reject Higgs’s argument in this regard as well.
Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.
/s/ Colleen A. O'Brien
/s/ Joel P. Hoekstra
/s/ Mark T. Boonstra
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