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Speicher v. Columbia Twp. Bd. of Trs.

Supreme Court of Michigan

December 22, 2014

KENNETH J. SPEICHER, Plaintiff-Appellee,
v.
COLUMBIA TOWNSHIP BOARD OF TRUSTEES and COLUMBIA TOWNSHIP PLANNING COMMISSION, Defendants-Appellants

October 8, 2014, Argued, December 22, 2014, Filed

For KENNETH J SPEICHER, Plaintiff-Appellant: ROBERT W SMITH, KALAMAZOO, MI.

For COLUMBIA TOWNSHIP BOARD OF TRUSTEES, Defendant-Appellee: CHRISTINE D OLDANI, DETROIT, MI; MARY MASSARON, BLOOMFIELD HILLS, MI.

Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh, Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano. CAVANAGH, J. (dissenting).

Page 52

OPINION

BEFORE THE ENTIRE BENCH

[497 Mich. 128] Viviano, J.

In this Open Meetings Act (OMA)[1] case, defendants Columbia Township Board of Trustees and Columbia Township Planning Commission appeal the Court of Appeals' decision holding that plaintiff Kenneth Speicher was entitled to an award of court costs and actual attorney fees based on his entitlement to declaratory relief under the OMA. The Court of Appeals reached this decision only because it was compelled to do so by Court of Appeals precedent.[2] If not for this binding precedent, the Court of Appeals would have denied plaintiff's request for court costs and actual attorney fees on the ground that the plain language of MCL 15.271(4) does not permit such an award unless the plaintiff obtains injunctive relief. We agree with the Court of Appeals that prior decisions of that court have strayed from the plain language of MCL 15.271(4). Therefore, we reverse the Court of Appeals opinion and order issued December 19, 2013, and reinstate the portion of its January 22, 2013 decision regarding court costs and actual attorney fees.

I. FACTS AND PROCEDURAL HISTORY

In early 2010, the Columbia Township Board of Trustees (the Board) adopted a resolution that fixed the regular monthly meetings of the Board and the Columbia Township Planning Commission (the Planning Commission) for the year 2010-2011. However, during the regularly scheduled October 18, 2010 meeting, the Planning Commission adopted another resolution that it would conduct quarterly, rather than monthly, meetings [497 Mich. 129] beginning January 2011. According to the Township Clerk, after the Planning Commission adopted the new schedule, she contacted a local newspaper, the South Haven Tribune, and requested publication of the new meeting schedule. She stated that she also posted a revised meeting schedule at the Township Hall entrance with the February and March 2011 meetings whited out.

Plaintiff is a property owner in the township. According to plaintiff, he had no notice of the new quarterly meeting schedule, and he appeared for the meetings in February and March 2011, seeking to raise a number of issues before the Planning Commission. Plaintiff claimed that the posted schedule did not reflect the change to quarterly meetings and no notices appeared in the South Haven Tribune prior to those previously scheduled meetings.

Plaintiff sued defendants, alleging that the decision to change the schedule was

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not made at an open meeting[3] and that the February and March meetings were canceled without proper notice in violation of the OMA.[4] Plaintiff alleged that, as a result of the meetings not being held, his right to present certain concerns to the Planning Commission was impaired.[5] Plaintiff [497 Mich. 130] sought a declaration that the Planning Commission's decision to cancel the regularly scheduled meetings was made in violation of the OMA, and he sought to enjoin the Planning Commission and the Board from further noncompliance with the OMA.[6] Plaintiff also cited MCL 15.271(4) and alleged that " if this Court grants relief as a result of this complaint, [plaintiff] shall recover court costs and actual attorney fees for this action."

Finding that defendants' conduct was not actionable, the trial court denied plaintiff's motion for summary disposition and granted summary disposition to defendants. The trial court also denied plaintiff's motion for reconsideration. The trial court ruled that defendants did not violate the OMA because plaintiff was not denied access to any meetings. To the extent that notice may not have been timely posted, this was a technical violation not entitling plaintiff to relief. The trial court acknowledged that the notice cancelling the February and March Planning Commission meetings " may not have been done in strict compliance with" the OMA, but the court concluded that any violations were " technical in nature, and did not impair the rights of the public in having their governmental bodies make decisions in an open meeting." Plaintiff had, at most, been inconvenienced by the failure to post timely notice of the meeting changes given that " [p]laintiff had the option [497 Mich. 131] of bringing his concerns to the Planning Commission at its next regularly scheduled meeting."

Plaintiff appealed in the Court of Appeals, which affirmed in part and reversed in part in an unpublished opinion.[7] The Court of Appeals concluded that while the meeting schedule change was properly made at an open meeting, defendants plainly violated the OMA by not timely posting the modified schedule. It therefore held that the trial court erred by failing to grant declaratory relief to plaintiff on that point. However, the Court of Appeals also held that the trial court properly denied injunctive relief for defendants' technical notice violation because " there

Page 54

was no evidence that the Commission had a history of OMA violations, there was no evidence that this violation was done willfully," and there was no evidence that the public or plaintiff was harmed in any manner.[8] The Court of Appeals therefore ruled that " given that the technical nature of this OMA violation resulted in no injunctive relief being warranted, plaintiff is not entitled to any attorney fees or costs under MCL 15.271(4) on remand." [9]

Plaintiff moved for reconsideration, arguing that because the Court of Appeals had held that he was entitled to declaratory relief under the OMA, he was entitled to an award of court costs and actual attorney fees under MCL 15.271(4). The Court of Appeals granted reconsideration and vacated the portion of its unpublished opinion regarding attorney fees.[10] In a [497 Mich. 132] published opinion, the Court of Appeals then held that plaintiff was entitled to court costs and actual attorney fees under existing case law because he established entitlement to declaratory relief.[11] However, the Court of Appeals reached this conclusion only because it was bound by court rule to follow prior published Court of Appeals decisions.[12] The Court explained that the rule that court costs and actual attorney fees were available whenever a plaintiff files a lawsuit seeking injunctive relief under MCL 15.271 and obtains some form of relief had developed from the misapplication of a prior Court of Appeals decision issued in 1981, Ridenour v Dearborn Bd of Ed.[13] However, the Court determined that this rule was unsupported by the plain language of MCL 15.271(4) and that the cases that developed this rule often did not provide any substantive analysis.[14] Were [497 Mich. 133] the Court of Appeals

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free to decide the issue as it deemed appropriate, it would have denied attorney fees and costs under MCL 15.271(4) because the statute permits such an award only when a plaintiff prevails on a request for injunctive relief, which did not occur in this case.[15]

Defendants sought review in this Court, asserting that the Court of Appeals erred by awarding plaintiff court costs and actual attorney fees but correctly reasoned that such costs and fees were improper because plaintiff did not obtain injunctive relief as required by MCL 15.271(4). Plaintiff responded, contending that MCL 15.271(4) expressly requires an award of court costs and actual attorney fees when a plaintiff obtains any relief, not just injunctive relief. In lieu of granting leave, we ordered oral argument on the application, directing the parties to address

whether MCL 15.271(4) authorizes an award of attorney fees and costs to a plaintiff who obtains declaratory relief regarding claimed violations of the Open Meetings Act (MCL 15.261 et seq.), or whether the plaintiff must obtain injunctive relief as a necessary condition of recovering attorney fees and costs under MCL 15.271(4).[16]

II. STANDARD OF REVIEW

Issues of statutory interpretation are reviewed de novo.[17] In interpreting a statute, we consider " both the [497 Mich. 134] plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme." [18] As with any statutory interpretation, our goal is to give effect to the intent of the Legislature by focusing on the statute's plain language.[19]

III. ANALYSIS

At issue in this case is the proper interpretation of the phrase " succeeds in obtaining relief in the action" in MCL 15.271(4). This Court has not yet addressed whether that phrase refers to injunctive relief, as defendants contend and the Court of Appeals panel would have held, or to any relief, as plaintiff contends and the Ridenour line of cases have held.[20] Unlike the Court of Appeals below, we are not bound by the prior Court of Appeals decisions. Therefore, we are able to independently assess the relevant statutory language to determine whether the Court of Appeals has properly interpreted MCL 15.271(4). For the reasons stated below, we agree with defendants and the Court of Appeals panel that court costs and actual attorney fees under MCL 15.271 may only be awarded when a plaintiff seeks and obtains injunctive relief.

Under the OMA, public bodies must conduct their meetings, make all of their decisions, and conduct their deliberations

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(when a quorum is present) at meetings [497 Mich. 135] open to the public.[21] The OMA also requires public bodies to give notice of their regular meetings and changes in their meeting schedule in the manner prescribed by the act.[22] If a public body has failed to comply with the requirements of the act, in addition to authorizing enforcement actions by the attorney general or local prosecuting attorney, the OMA also allows for any person to commence a civil action.[23] 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." [24] 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." [25] Subsection (4) provides for an award of court costs and actual attorney fees when three 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[.]" [26] The meaning of this latter phrase is the crux of this case.

[497 Mich. 136] (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 . . . ." [27]

As an initial matter, " these sections, and the distinct kinds of relief that they provide, stand alone." [28] 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." [29] 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." [30]

Plaintiff does not seek to invalidate any action by defendants or make a claim for personal liability against a public official. Therefore, we must train our focus on § 11 of the OMA to determine if it provides an adequate basis for the Court of Appeals' award of court costs and actual attorney fees in this case.[31] MCL 15.271 [497 Mich. 137] provides as follows:

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(1) If a public body is not complying with this act, the attorney general, prosecuting attorney of the county in which the public body serves, or a person may commence a civil action to compel compliance or to enjoin further noncompliance with this act.
(2) An action for injunctive relief against a local public body shall be commenced in the circuit court, and venue is proper in any county in which the public body serves. An action for an injunction against a state public body shall be commenced in the circuit court and venue is proper in any county in which the public body has its principal office, or in Ingham county. If a person commences an action for injunctive relief, that person shall not be required to post security as a condition for obtaining a preliminary injunction or a temporary restraining order.
(3) An action for mandamus against a public body under this act shall be commenced in the court of appeals.
(4) If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action.

At the outset, we acknowledge that, in isolation, the phrase " relief in the action" in MCL 15.271(4) could potentially refer to more than one type of relief because " it is well established that 'we may not read into the statute what is not within the Legislature's intent as derived from the language of a statute.'" [32] However, " it is equally well established that to discern the Legislature's intent, statutory provisions are not to be read in [497 Mich. 138] isolation; rather, context matters, and thus statutory provisions are to be read as a whole." [33] An attempt to segregate any portion or exclude any portion of a statute from consideration is almost certain to distort legislative intent.[34] Therefore, plaintiff's strained reading of an excerpt of one sentence must yield to context. If, when reading the statute as a whole, it is apparent that " relief in the action" refers to injunctive relief, we should not circumscribe our analysis to one clause of the sentence.

Looking to the plain language of MCL 15.271(4), we believe it is clear that the Legislature only intended for a person to recover court costs and actual attorney fees if the person succeeds in obtaining injunctive relief.[35] The first statutory condition,

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" [i]f a public body is not complying with this act," contemplates an ongoing violation, precisely the circumstances in which injunctive relief is appropriate. The second condition, i.e., commencement of " a civil action against the public body for injunctive relief to compel compliance or enjoin further noncompliance with the act," directly refers to and obviously requires that a party seek injunctive relief. And the third condition, i.e., a requirement that a party who files an action seeking such relief " succeeds in obtaining relief in the action," cannot be divorced from the phrases that precede it.[36]

[497 Mich. 139] Plaintiff makes much of the fact that, in this latter phrase, the Legislature did not specifically modify the word " relief" with the word " injunctive," and argues that this means that any relief obtained for a violation of the OMA mandates an award of attorney fees and costs. However, by its plain language, MCL 15.271(4) requires that the plaintiff succeed " in obtaining relief in the action." We find it significant that the phrase " relief in the action" employs the definite article, " the." [37] Use of that word, which we read as having a " specifying or particularizing effect," [38] indicates a legislative intent to refer to an action seeking injunctive relief and subsequently obtaining such relief. That is, given that the relevant phrase, " relief in the action," immediately follows the phrase " a person commences a civil action against the public body for injunctive relief," the phrase " relief in the action" must also be construed as referring to injunctive relief. Obtaining relief other than injunctive relief merely because, or as result, of the action is insufficient to meet the requirement of the statute.[39]

Moreover, even though the Legislature did not modify the word " relief" with the word " injunctive" in the particular phrase at issue, use of the word " injunctive" when again referring to " relief" was unnecessary. This Court was faced with an almost identical problem in Robinson v City of Lansing : the Legislature modified [497 Mich. 140] a noun, but omitted the modifier from its subsequent use of the noun.[40] The defendant City argued that the Legislature's failure to qualify " highway" as a " county highway" in MCL 691.1402a(2) meant that the 2-inch rule applied to all improved portions of highways designed for vehicular travel.[41] Plaintiff, on the other hand,

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asserted that the " highway" in Subsection (2) must be a " county highway" as framed by Subsection (1) (meaning it did not apply to the state highway where she was injured).[42] This Court sided with the plaintiff, stating that " a reasonable person reading this statute would understand that all three subsections of this provision apply only to county highways." [43]

[497 Mich. 141] The same analysis applies here. Subsection (4) specifically refers to and is limited to injunctive relief by use of the word " injunctive" in the preceding phrase, " a civil action against the public body for injunctive relief[.]" Because the word " relief" appears twice in the same sentence, only a strained reading of a portion of that sentence prevents the obvious conclusion that the second mention of " relief" is in direct reference to the first. The Legislature was not required to restate the modifier, " injunctive," when again referring to the noun, " relief," as the modifier was already sufficiently incorporated into the statute and, when read in context, was implied when the Legislature subsequently used the word " relief." [44] A reasonable reader of MCL 15.271(4) would understand that when a plaintiff " commences a civil action . . . for injunctive relief," the plaintiff is required to " succeed[] in obtaining [ injunctive ] relief in the action" to be entitled to court costs and actual attorney fees.

Our conclusion is reinforced by viewing MCL 15.271 as a whole. The statute allows a person to seek injunctive relief to compel compliance or to enjoin further noncompliance with the OMA.[45] The statute then provides the proper venue in which to commence an action for injunctive relief.[46] And finally, the statute allows for a person to recover court costs and actual attorney fees for an action against the public body for injunctive relief [497 Mich. 142] if a person " succeeds in obtaining relief in the action." [47] Thus, as a whole, MCL 15.271 only speaks in terms of an injunctive relief and contemplates no other form of relief.[48]

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Plaintiff's interpretation of the statute does not comport with the statutory scheme. According to plaintiff's theory, a party can satisfy the second condition of the statute simply by requesting injunctive relief--regardless of whether such claim has any legal merit. And, according to plaintiff, as long as a party receives any type of relief, the party has satisfied the third condition of the statute--regardless of whether the relief arises from another section of the OMA or has a separate legal basis altogether. We cannot conclude that this is what the Legislature intended simply by omitting an implied modifier. Rather, a party seeking a remedy under the OMA is confined to the remedy provided under the applicable section of the act--here, MCL 15.271.[49] A party cannot simply assert a meritless claim for injunctive relief under MCL 15.271 in the hope that one of its other claims will yield some fruit, and then bootstrap its claim for court costs and actual attorney fees on the other relief provided.

In sum, when considering both the plain meaning of the critical phrase in context as well as its placement and purpose in the statutory scheme, MCL 15.271 limits the award of attorney fees to cases in which the [497 Mich. 143] public body persists in violating the act, a suit is brought to enjoin such behavior, and that suit is successful in obtaining injunctive relief. Accordingly, we conclude that the phrase " succeeds in obtaining relief in the action" necessarily mandates that the plaintiff succeed in obtaining injunctive relief, not just any relief, in order to be entitled to court costs and actual attorney fees under MCL 15.271(4).

In so holding, we acknowledge the line of contrary holdings of the Court of Appeals. But, for the reasons explained above, the Ridenour court and the cases that followed it impermissibly strayed from the plain language of MCL 15.271(4).[50] There is no allowance in the statute for obtaining the equivalent of relief--rather the plaintiff must obtain injunctive relief, as sought in commencing the action.[51] The Court of Appeals has unfortunately perpetuated this error in numerous cases since Ridenour.[52] Because these decisions have incorrectly extended the entitlement to court costs and actual attorney fees beyond the scope articulated by the Legislature, we overrule Ridenour and its progeny to the extent that those cases allow for the recovery of attorney fees and costs under MCL 15.271(4) when injunctive relief was not obtained, equivalent or otherwise.

[497 Mich. 144] IV. APPLICATION

Plaintiff commenced a civil action against the Board and Planning Commission

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that sought to enjoin the Planning Commission and the Board from further noncompliance with the OMA under MCL 15.271. However, both the trial court and the Court of Appeals agreed that plaintiff failed to sustain his burden to show that he was entitled to an injunction. As the Court of Appeals explained in its January 2013 opinion, " there was no evidence that the Commission had a history of OMA violations,[53] there was no evidence that this violation was done willfully," and there was no evidence that the public or plaintiff was harmed in any manner.[54] Although the Court of Appeals concluded that plaintiff was nevertheless entitled to declaratory relief for defendants' notice violation, he is not entitled to receive court costs and actual attorney fees because he did not succeed in obtaining injunctive relief in the action, as MCL 15.271(4) requires.

V. CONCLUSION

We hold that a person cannot recover court costs and actual attorney fees under MCL 15.271(4) unless he or she succeeds in obtaining injunctive relief in the action. [497 Mich. 145] Accordingly, we reverse the Court of Appeals opinion and order issued December 19, 2013, and reinstate the portion of the Court of Appeals decision issued January 22, 2013, regarding court costs and actual attorney fees.

DISSENT

Cavanagh, J. ( dissenting ).

Shortly after the enactment of the Open Meetings Act (OMA), MCL 15.261 et seq., the Court of Appeals effectively held that declaratory relief granted in lieu of or as the functional equivalent of an injunction supports an award of costs and actual attorney fees under MCL 15.271(4). See Ridenour v Dearborn Bd of Ed, 111 Mich.App. 798; 314 N.W.2d 760 (1981). Over the past 33 years, the Court of Appeals has reiterated that holding in numerous published opinions, solidifying the role of declaratory relief as it relates to costs and attorney fees under MCL 15.271(4). Despite this long line of precedent, at no time has the Legislature taken steps to amend MCL 15.271(4) in response. Because I believe that these cases properly interpreted and effectuated the Legislature's intent, I respectfully dissent.

In 1968, the Legislature enacted an open meetings law to consolidate a " patchwork of statutes" that required accountability and openness in governmental affairs. Booth v Univ of Mich. Bd of Regents, 444 Mich. 211, 221; 507 N.W.2d 422 (1993). By rendering the decision-making process of most public bodies open and accessible to the public, the 1968 statute was intended to act as " 'an important check and balance on self-government.'" Id. at 223, quoting Osmon, Sunshine or Shadows: One State's Decision, 1977 Det C L Rev 613, 617. Specifically, by addressing a longstanding concern regarding the public's access to governmental

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decision-making,[1] [497 Mich. 146] the statute's aim was to " 'serve as both a light and disinfectant in exposing potential abuse and misuse of power.'" Booth, 444 Mich. at 223, quoting Sunshine or Shadows, 1977 Det C L Rev at 617. Although the goals of the 1968 statute were laudable, the statute was flawed: " because the 1968 statute failed to impose an enforcement mechanism and penalties to deter noncompliance, nothing prevented the wholesale evasion of the act's provisions" by public bodies, and the law was often ignored. Booth, 444 Mich. at 221. See, also, Sunshine or Shadows, 1977 Det C L Rev at 619. To remedy this, the statute was " comprehensively revise[d]" in 1976 to provide for enforcement by way of several mechanisms, including actions by private citizens to vindicate, not primarily personal rights, but the rights of the public at large. Booth, 444 Mich. at 222. One such enforcement provision is MCL 15.271(4), which provides that a successful party is entitled to court costs and actual attorney fees. Specifically, MCL 15.271(4) states:

If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action.

At issue in this case is whether the statutory phrase " succeeds in obtaining relief in the action" encompasses more than formal injunctive relief. Stated another way, at issue is whether the Court of Appeals has correctly effectuated the Legislature's intent by holding that the [497 Mich. 147] absence of formal injunctive relief does not preclude a plaintiff from recovering statutory attorney fees and costs under MCL 15.271(4). Considering the purposes behind the OMA, including the Legislature's conscious choice to enact a citizen enforcement provision aimed at ensuring compliance with the OMA, I cannot conclude that the last 33 years of Court of Appeals precedent was in error.

As previously noted, four years after the effective date of MCL 15.271(4), the Ridenour panel effectively held that declaratory relief granted in lieu of or as the functional equivalent of an injunction supports an award of costs and actual attorney fees under the statute. In Ridenour, the plaintiff sought to enjoin the defendant from holding a closed meeting. Although the trial court determined that the defendant's proposed conduct would violate the OMA, it determined that injunctive relief was not necessary in light of the defendant's promise that it would comply with the trial court's decision. Ridenour, 111 Mich.App. at 801. Despite the trial court's decision to deny the plaintiff's request for injunctive relief on that basis, it granted the plaintiff's request for costs and attorney fees under MCL 15.271(4), reasoning that the relief that the plaintiff obtained was " the equivalent of an injunction." Id. at 801. On appeal, the Court of Appeals affirmed the award of costs and attorney fees explaining, " No matter how it is viewed, plaintiff received the relief he sought. The [trial court] agreed with plaintiff's position and gave a judgment in his favor." Id. at 806.

Subsequent panels of the Court of Appeals have followed Ridenour, reasoning

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that, under MCL 15.271(4), " neither proof of injury nor issuance of an injunction is a prerequisite for the recovery of attorney fees under the OMA" ; rather, under the language of [497 Mich. 148] MCL 15.271(4), a " plaintiff need only 'succeed in obtaining relief in the action,'" and, therefore, declaratory relief, as a form of relief, is necessarily sufficient. Herald Co, Inc v Tax Tribunal, 258 Mich.App. 78, 92; 669 N.W.2d 862 (2003), quoting MCL 15.271(4) (emphasis added).[2] Accordingly, for more than three decades, the Court of Appeals has repeatedly held that declaratory relief granted in lieu of an injunction or that is the functional equivalent of an injunction is sufficient to trigger an award of attorney fees and costs because, in [497 Mich. 149] such cases, the plaintiff has " succeeded in obtaining relief in the action," which is all that MCL 15.271(4) requires.

Despite the clear holdings of the Court of Appeals, the Legislature has not amended MCL 15.271(4) or otherwise taken any action to signal its disapproval of Ridenour and its progeny, even though the Legislature has made numerous amendments to other provisions of the OMA. I continue to find relevant the well-established presumption that the Legislature is aware of statutory interpretations by this Court and the Court of Appeals. See Ford Motor Co v City of Woodhaven, 475 Mich. 425, 439-440; 716 N.W.2d 247 (2006); Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich. 488, 505-506; 475 N.W.2d 704 (1991).[3] Consequently, in my view, the Legislature's silence on this topic since 1981 is a strong indication that the Court of Appeals has properly effectuated the Legislature's intent, in accordance with that primary goal of statutory interpretation. In re MCI Telecom Complaint, 460 Mich. 396, 411;

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596 N.W.2d 164 (1999); Craig v Larson, 432 Mich. 346, 353; 439 N.W.2d 899 (1989). While the Legislature may not be required to " cumbersomely repeat language that is sufficiently incorporated into a statute," Robinson v Lansing, 486 Mich. 1, 16-17; 782 N.W.2d 171 (2010), the Legislature also unquestionably has the ability to correct judicial interpretations that it believes are contrary to its intent. The fact that the Legislature has long acquiesced to Ridenour and its progeny, despite numerous intervening amendments to the OMA, is, in my opinion, compelling.[4]

[497 Mich. 150] Indeed, the interpretation of the statutory language in Ridenour and its progeny is consistent with the purpose of MCL 15.271(4) and the history of the OMA, both of which are relevant considerations in discerning the Legislature's intent. In re Certified Question, 433 Mich. 710, 722; 449 N.W.2d 660 (1989); Booth, 444 Mich. at 223-224. To begin, it is entirely reasonable to presume that public bodies will adhere to the law as declared by a court. Cf. Straus v Governor, 459 Mich. 526, 532; 592 N.W.2d 53 (1999) (noting that declaratory relief is generally sufficient to induce the legislative and executive branches to comply with the law); Florida v U.S. Dep't of Health & Human Servs, 780 F.Supp.2d 1307, 1314, 1316 (ND Fla, 2011) (noting the longstanding presumption that federal officials will follow the law as declared by a court). In fact, a judgment for declaratory relief constitutes a binding and conclusive adjudication of the rights and status of the litigants. Black's Law Dictionary (6th ed). Thus, a declaratory judgment has the force and effect of a final judgment. MCR 2.605(E). It is a " real judgment, not just a bit of friendly advice," and, as one court has noted, those who try to evade it will likely " come to regret it." US Dep't of Health & Human Servs, 780 F.Supp.2d at 1316, quoting Badger Catholic, Inc v Walsh, 620 F.3d 775, 782 (CA 7, 2010).[5] " If it were otherwise, a . . . declaratory judgment [497 Mich. 151] would serve no useful purpose as a final determination of rights." Id. (quotation marks omitted). See, also, MCR 2.605(F) (" Further necessary or proper relief based on a declaratory judgment may be granted . . . ." ). Consequently, in the context of public bodies, a judgment for declaratory relief is the " functional equivalent of an injunction." US Dep't of Health & Human Servs, 780 F.Supp.2d at 1314 (citations and quotation marks omitted).[6] As a final order, a declaratory judgment acts to restrain

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public bodies from further noncompliance with the OMA, consistent with the overall purpose of MCL 15.271. Accordingly, as Ridenour explained, although a plaintiff might not receive relief in the form of an injunction, the receipt of a declaratory judgment upon the finding of an OMA violation is the functional equivalent of one. Ridenour, 111 Mich.App. at 806. Although that might not be the case in a context other than the OMA, considering the purpose of MCL 15.271 and the OMA generally, I believe that Ridenour and its progeny clearly effectuated the intent of the Legislature by concluding that obtaining a judgment for declaratory relief is " succeed[ing] in obtaining relief in the action." See MCL 15.271(4).

In contrast to Ridenour and its progeny, the majority's interpretation undermines the OMA's enforcement provision and the purpose of the OMA, generally. In addition to mandating formal injunctive relief before costs and attorney fees can be awarded, the majority [497 Mich. 152] now clarifies that an " ongoing violation" is also a prerequisite to obtaining costs and attorney fees under the OMA. Consequently, the majority opinion effectively gives a public body at least one free pass at violating the OMA because, without more, the public body's violation of the OMA, no matter how substantial, is presumably not " ongoing." [7] I do not believe that the majority's apparent interpretation is what the Legislature intended when it adopted legislation aimed at promoting a " new era" of governmental accountability and public access to governmental decision-making. Booth, 444 Mich. at 222-223.

Further, under the majority's interpretation of MCL 15.271(4), even if a lawsuit may be brought to enforce the interests of the public at large, there is no incentive for the public body not to contest the plaintiff's interpretation of the statutory provisions through vigorous [497 Mich. 153] litigation. After all, upon the trial court's adverse ruling, the public body need only concede defeat to preclude injunctive relief. See Wexford Co Prosecutor v Pranger, 83 Mich.App. 197, 205; 268 N.W.2d 344 (1978) (affirming declaratory relief based on a violation of the OMA, but vacating an injunction, reasoning that there was no " real and imminent danger of irreparable injury" when the defendants acted in good faith); Nicholas v Meridian Charter Twp Bd, 239 Mich.App. 525, 534; 609 N.W.2d 574 (2000) (" Where there is no reason to believe that a public body will deliberately

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fail to comply with the OMA in the future, injunctive relief is unwarranted." ). Under the majority's interpretation, such a concession will preclude an award to the plaintiff for his or her costs of pursuing the litigation even though, as previously explained, a grant of declaratory relief is generally sufficient to make the violation known to the public body and restrain it from further violating the OMA, which is consistent with the purpose of MCL 15.271(4) and the purpose of the OMA generally.

Of particular importance is that, in enacting MCL 15.271(4), the Legislature granted individual citizens the right to pursue remedies for OMA violations rather than rely solely on the Attorney General or county prosecutors. By doing so, the Legislature seems to have implicitly recognized that there would be times when members of the executive branch could not, or would not, act and that, in those instances, the overriding concern for governmental accountability mandates the availability of causes of action brought by private citizens. In light of the Legislature's choice to allow private citizen suits to pursue remedies for procedural OMA violations,[8] which vindicate the rights of the public at [497 Mich. 154] large, I cannot conclude that the Legislature intended to limit this right to the small portion of the population that is capable of pursuing such actions at their own personal expense. See Nemeth v Abonmarche Dev, Inc, 457 Mich. 16, 47; 576 N.W.2d 641 (1998) (Cavanagh, J., concurring in part and dissenting in part). The result of the majority's decision is that the ability of private citizens to bring OMA complaints will, in all likelihood, be severely curtailed. To penalize private citizens and, consequently, the public at large, simply because relief comes in the form of a declaratory judgment, rather than injunctive relief, elevates form over substance when, as explained earlier, there is little practical difference between the two forms of relief in this context. Consequently, I do not believe that the Legislature intended the majority's interpretation of MCL 15.271(4), which undermines the OMA's purpose.

In this case, plaintiff requested both injunctive and declaratory relief and was ultimately awarded the latter. Because declaratory relief is sufficient to trigger attorney fees and costs under MCL 15.271(4), I would hold that plaintiff is entitled to costs and attorney fees, consistent with Ridenour and its progeny.

In light of the language, history, and purpose of the act, I cannot agree with the majority's decision to cast aside 33 years of precedent and erroneously write into the OMA a requirement that the Legislature did not intend--i.e., that a party must obtain formal injunctive relief as a prerequisite to an award of costs and attorney fees under MCL 15.271(4). Because I believe that more than three decades of precedent properly interpreted and effectuated the Legislature's intent, I respectfully dissent.


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