OAKLAND SAIL V OAKLAND UNIV BD OF TRUSTEES
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STATE OF MICHIGAN
COURT OF APPEALS
THE OAKLAND SAIL, d/b/a THE OAKLAND
POST,
UNPUBLISHED
August 30, 2005
Plaintiff-Appellant,
v
No. 252391
Oakland Circuit Court
LC No. 03-048542-CZ
OAKLAND UNIVERSITY BOARD OF
TRUSTEES,
Defendant-Appellee.
Before: Zahra, P.J., and Gage and Murray, JJ.
PER CURIAM.
Plaintiff, the student newspaper at Oakland University, brought this action alleging a
violation of the Open Meetings Act (“OMA”), MCL 15.261 et seq., after a majority of defendant
Oakland University Board of Trustees met in a closed session with its president and lobbying
firm to discuss lobbying strategies in light of anticipated reductions in state funding. Plaintiff
appeals as of right from the trial court’s order granting summary disposition to defendant under
MCR 2.116(C)(10) and (I)(2). We affirm. This case is being decided without oral argument
pursuant to MCR 7.214(E).
We review the trial court’s decision to grant summary disposition de novo to determine
whether defendant was entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich
109, 118; 597 NW2d 817 (1999).
Plaintiff argues that the trial court erred in finding that the OMA did not govern the
meeting at issue. We disagree. Const 1963, art 8, § 5, provides that the individual boards of
regents of the University of Michigan (“U of M”), Michigan State University (“MSU”), and
Wayne State University (“WSU) “shall constitute a body corporate” consisting of eight elected
members. Additionally, it provides that the boards “shall have general supervision of its
institution and the control and direction of all expenditures from the institution’s funds[,]” and
that “[e]ach board shall, as often as necessary, elect a president of the institution under its
supervision.” Id. Const 1963, art 8, § 6, similarly states that “[o]ther institutions of higher
education established by law having authority to grant baccalaureate degrees shall each be
governed by a board of control which shall be a body corporate.” In relevant part, the provisions
of this section are identical to § 5, except that board members are appointed rather than elected.
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Oakland University was established by the Legislature in 1970 as “a state institution of
higher education having authority to grant baccalaureate degrees . . . .” MCL 390.151.
Therefore, its board of control, i.e., defendant, has the powers conferred by Const 1963, art 8, §
6, which are identical to those granted by the constitution to the boards of trustees of U of M,
MSU, and WSU. Thus, we reject plaintiff’s argument that defendant stands on a different
constitutional footing than these three universities.
In Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 78;
594 NW2d 491 (1999), our Supreme Court held that “the Legislature does not have the power to
regulate open meetings for defendant [MSU] in the context of presidential searches at all, i.e., the
Legislature is institutionally unable to craft an open meetings act that would not, in the context of
a presidential selection committee, unconstitutionally infringe the governing board’s power to
supervise the institution.” The Court noted that university governing boards are “constitutional
corporation[s] of independent authority, which, within the scope of its functions, is coordinate
with and equal to that of the legislature.” Id. at 84 n 8, quoting Bd of Regents of the Univ of
Michigan v Auditor Gen, 167 Mich 444, 450; 132 NW 1037 (1911). The Legislature may not
interfere with a board’s constitutional authority to manage and control the university. Federated
Publications, supra at 86-88.
Universities are not exempt from all regulation, and are subject to the Legislature’s police
power, so long as regulation does not invade the university’s constitutional autonomy. Id. at 8788. For example, a university governing board has the constitutional power to elect a president
of the institution under its supervision, so the OMA cannot be applied to the board’s exercise of
its power to elect a president. Id. at 88-89.
Before 1963, it was within the board’s exclusive discretion to decide whether to open
board meetings to the public. Id. at 89-90. In 1963, that discretion was curtailed by Const 1963,
art 8, § 4, requiring that formal sessions be open to the public.1 Id. at 90. However, the boards
retain the power to meet in closed informal sessions. Id. at 90. Additionally, each board is
empowered to decide whether a particular meeting is considered a formal public meeting or a
closed informal session. Id. at 90-91 and nn 13-14. The Court in Federated Publications
concluded that, because meetings of the presidential selection committee were not formal
sessions, the OMA could not be used to compel public admittance. Id. at 91. Public policy
considerations are “irrelevant” in the face of a constitutional mandate. Id. at 91-92 n 15.
Critical to the Court’s decision in Federated Publications is that the presidential selection
committee was exercising authority granted exclusively to the board of trustees by the
constitution. In the present case, defendant’s meeting with the university president and its
lobbyists may similarly be characterized as an exercise of defendant’s constitutional power of
“general supervision of the institution and the control and direction of all expenditures from the
institutions funds.” Const 1963, art 8, § 6. Thus, as in Federated Publications, the Legislature is
1
Const 1963, art 8, § 4, applies to the seven universities listed therein “and to other institutions
of higher education established by law.”
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constitutionally precluded from impinging on that power by requiring compliance with the
OMA.
Furthermore, Const 1963, art 8, § 4, only requires that “formal” sessions be held in
public. In Federated Publications, the presidential selection committee meetings were not
“formal” board meetings. Similarly, here, plaintiff does not argue that defendant’s meeting with
its lobbyist firm was a “formal” session. Instead, because the meeting was informal, the
Legislature is constitutionally precluded from requiring compliance with the OMA.
We therefore conclude that the trial court correctly held that defendant’s meeting with its
lobbyists did not violate the OMA. We decline to reach the broader question whether Federated
Publications precludes all applications of the OMA to university governing boards, regardless of
the circumstances.
Affirmed.
/s/ Brian K. Zahra
/s/ Hilda R. Gage
/s/ Christopher M. Murray
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