MARTIN B BREIGHNER III V MICHIGAN HIGH SCHL ATHLETIC ASSN
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
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
public body within the meaning of the
is
“primarily
funded
by
or
FOIA
through
MHSAA
is a
because (1) it
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
232(d)(iv).
Appeals
The
Court
of
as a public body under §
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
membership organization.
became an incorporated, nonprofit
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
association of the state.
the
MHSAA
as
the
official
See MCL 340.379 (repealed by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by 1995 PA 289, § 1); MCL 380.1521 (repealed by 1995 PA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.
MHSAA
Through the Revised School Code, the
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
superintendent of education.
interscholastic
athletic
of
the
state
The council has control of
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
participate in interscholastic athletics.
students
to
Apparently, the
vast majority of high schools in Michigan are members of
the
MHSAA.
schools
Approximately
are
members
of
seven
the
MHSAA
hundred
and
percent of those schools are public.
Michigan
more
than
high
eighty
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
MHSAA’s
majority——approximately
ninety
percent——of
the
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
In some cases, the
but
member
MHSAA
schools
tickets
MHSAA-sponsored
to members of the public who attend
MHSAA’s
events.
itself does not sell the tickets,
remit
to
the
gate
MHSAA
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,
basketball
the positive cash flow from the football and
tournaments
activities.
is
used
to
Services provided by the
fund
MHSAA
these
other
to its members
include the provision of medical insurance for studentathletes; 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
B.
MHSAA
staff.
PLAINTIFFS’ FOIA PROCEEDINGS
Plaintiffs are the parents of a high school student
who
was
sponsored
prohibited
by
the
from
MHSAA
participating
because
he
in
had
a
ski
previously
participated in an unsanctioned event in violation of
5
meet
MHSAA
rules.
Plaintiffs filed a request under the
information related to that decision.
comply
with
the
request,
The
MHSAA
that
asserting
it
refused to
was
public body and was therefore not subject to the
The
trial
court
granted
plaintiffs, holding that the
summary
MHSAA
seeking
FOIA
not
a
FOIA.
disposition
to
is “primarily funded by
or through state or local authority” within the meaning of
§
232(d)(iv)
comes
from
sponsors.
because
gate
the
vast
receipts
at
majority
the
of
its
athletic
funding
events
it
The trial court held that the gate receipts
that comprised the majority of the
MHSAA’s
received
because
“through”
the
schools
revenue were
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
was
not
a
public
232(d)(iii).
body
under
either
§
232(d)(iv)
MHSAA
or
§
255 Mich App 567, 581-582, 583; 662 NW2d 413
(2003).
The
that the
majority
MHSAA
first
addressed
plaintiffs’
argument
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
conclusion that the
no
the
trial
court’s
is primarily funded by or through
MHSAA
state or local authority.
provides
rejected
financial
The panel noted that the state
resources
activities, and that the
to
fund
MHSAA’s
the
actually paid fees for the
MHSAA
use of host facilities.
Member schools pay no fees or
dues
MHSAA
to
the
MHSAA.
The
is
a
private,
nonprofit
organization that hires and trains its own officials and
pays
its
derived
from
events.
forced
own
employees;
the
sale
of
furthermore,
its
own
its
tickets
revenues
are
for
own
its
The majority further noted that schools are not
to
join
the
voluntarily
chose
to
individual
schools
and
MHSAA
engage
have
the
that
member
MHSAA’s
authority
schools
services.
over
their
The
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
under § 232(d)(iii).
FOIA
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
relationship
18;
581
arises
NW2d
only
707
where
(1998),
the
“an
principal
agency
‘has
the
right to control the conduct of the agent with respect to
matters
entrusted
to
him.’”
majority held that the
directors,
not
became
members.
its
control the
board.
the
MHSAA,
(citations
The
was governed by its board of
MHSAA
individual
No
omitted).
one
schools
school
who
or
voluntarily
district
could
because it was controlled by its own
Therefore, the majority held, the
MHSAA
was not an
“agent” of its member schools.
Judge
Jansen
policy behind the
was
primarily
authority
dissented,
FOIA
that
the
public
favored disclosure and that the
funded
because
opining
its
by
or
gate
through
receipts
state
came
to
or
it
MHSAA
local
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
definition of “public
FOIA
body” meant the receipt of a governmental grant or subsidy
and (2) funding that amounted to less than half the total
funding
of
corporation
Judge
funding.
a
Jansen
remitted to the
MHSAA
did
opined
not
amount
that
the
to
gate
primary
receipts
were the functional equivalent of a
grant or subsidy and that virtually the entire budget of
the
came from gate receipts.
MHSAA
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),
organization that is allegedly analogous to the
an
MHSAA,
was
leave
to
a state actor for Fourteenth Amendment purposes.
We
appeal.
granted
plaintiffs’
469 Mich 952 (2003).
9
application
for
II.
This
case
STANDARD
involves
OF
REVIEW
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
STATE OR LOCAL AUTHORITY
OR
THROUGH
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).
concluded that, although the
directly
from
moneymaking
the
schools,
capacity
as
MHSAA
it
its
did not receive money
“’enjoy[ed]
own,’”
the
quoting
supra, and was therefore publicly funded.
11
The court
schools’
Brentwood,
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
is
MHSAA
funded
governmental authority.
neither
“by”
nor
“through”
a
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
is
MHSAA
not
governmental grant or subsidy.
the
The
recipient
MHSAA’s
of
member schools
do not distribute their financial resources to the
nor
do
the
allocations
schools
of
indirectly
public
monies.
fund
the
Rather,
any
MHSAA
the
MHSAA;
through
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
athletic event.
MHSAA,
the
MHSAA
MHSAA-sponsored
Member schools pay no dues or fees to the
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
FOIA’s
definitional
provisions
in
language
of
the
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.
MHSAA's
Without the
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)
MHSAA)
“enjoys
the
schools’
(and,
by
analogy,
the
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 432433, 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
LOCAL AUTHORITY
OR
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
authority
athletic
to
exercise
activities
Plaintiffs
bestowed
stress
control
of
all
that
choice but to join the
upon
high
high
MHSAA
over
it
the
in
the
interscholastic
schools
schools
1924:
have
of
the
no
state.
practical
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
“created” by state authority in 1924.
incarnation of the
MHSAA
from
that
the
entity
that
was
arguably
Rather, the modern
is a wholly different organization
was
at
17
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.
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
“is a creature of its members, with no independent
MHSAA
authority over schools or students”—merely lends further
credence to our conclusion that the
body.
the
MHSAA
is not a public
Michigan schools are in no way obligated to join
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 decisionmaking capacity to the
MHSAA,
nor does the
independent authority over its members.4
4
MHSAA
have any
There is simply
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
Again,
athletic eligibility conditions set by the MHSAA.
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 910.
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
When one engages in
is a “public body” under the FOIA.
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.”
fundamental
We disagree and believe that there is a
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
definition any “agency” of such a governmental unit.
this
In
this specific context, the word “agency” clearly refers to
a
unit
or
division
of
government
20
and
not
to
the
relationship between a principal and an agent.
Legislature
intended
any
“agent”
of
the
Had the
enumerated
governmental entities to qualify under § 232(d)(iii), it
would have used that term rather than “agency.”6
reject
plaintiffs’
argument
that
the
MHSAA
Thus, we
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.
The
MHSAA,
CONCLUSION
a private, nonprofit organization having a
wholly voluntary membership of private and public schools,
is not a “public body” within the meaning of the
is
therefore
Accordingly,
not
we
subject
affirm
to
the
the
decision
FOIA’s
of
and
provisions.
the
Court
Appeals.
Robert P. Young, Jr.
Maura D. Corrigan
Michael F. Cavanagh
Clifford W. Taylor
Stephen J. Markman
22
FOIA
of
S T A T E
M I C H I G A N
O F
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
Association,
the
Inc.
Michigan
(MHSAA),
High
School
determines
which
Athletic
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
requirements of the FOIA.
comply
with
the
disclosure
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
underlying the FOIA.
provides
the
policy
foundation
“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.
several
definitions
of
MCL 15.235.
“public
body,”
The FOIA provides
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
through state or local authority.”
primarily
funded
by
or
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
ordinary and generally accepted meaning.
to
its
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
districts,
remains
and
a
the
proper
MHSAA’s
function
of
relationship
public
with
the
school
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
first
year
“Suggested
of
Set
its
of
Administration.”
creation,
Standards
Regarding
the
and
MHSAA
presented
Practices
these
Within the
of
a
Athletic
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).
1
The
Since
the
founding
of
the
MHSAA
the
state
superintendent of public instruction has been as an exofficio 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
.
regulation of athletic . . . contests . . . .”
340.379.
designate
Although
the
interscholastic
MHSAA
as
the
statute
the
athletics,
did
official
it
did
not
.
.
Former MCL
expressly
organization
provide
and
that
for
“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
Legislature was referencing the MHSAA.
assumed
that
the
See Communities for
Equity, supra at 811.
Also in 1972, the MHSAA reorganized as a private notfor-profit
corporation.
The
MHSAA’s
essentially unchanged after 1972.
purpose
remained
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
voluntary.
former
law,
membership
in
the
MHSAA
was
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.
school
districts
performing
the
to
The law now simply authorizes
“join
functions
organizations
of
the
380.11a(4) (emphasis added).
school
as
part
district.”
of
MCL
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
annually adopt the MHSAA membership resolution.
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
must
That
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.
noted
above,
statute
the
as
the
MHSAA
was
not
expressly
“official”
organization after 1972.
state
named
in
As
the
interscholastic
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
remains
true.
voluntary.
could
Membership
has
always
been
and
At any point since 1924, a school district
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
<http://www.mhsaa.com/administration/eligibility.pdf>
(accessed July 28, 2004).
9
MHSAA’s
purpose.
through
annual
they
adopt
the
When
school
resolutions
MHSAA’s
districts
passed
by
the
constitution,
regulations “as their own.”7
join
the
school
by-laws,
MHSAA
boards,
rules
and
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.
States
Supreme
School
Athletic
subject
to
Court
held
Association
constitutional
In
that
Brentwood,
the
(TSSAA)
the United
Tennessee
was
a
limitations.
Secondary
state
While
actor
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
similarities to the MHSAA.
case
because
of
the
TSSAA’s
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
Academy
against
plaintiff
recruiting violations.
Brentwood
based
on
In finding that the TSSAA was a
state actor, the United States Supreme Court noted that
“the
nominally
overborne
private
by
the
character
pervasive
of
the
Association
entwinement
of
is
public
institutions and public officials in its composition and
workings.
TSSAA’s
.
.”
Id.
membership
at
298.
consisted
Brentwood
of
also
noted
predominantly
the
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
8
is
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.”
846-847.
See Communities for Equity, supra at
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
.
.
.
.”
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
MCL
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.
“fund,”
even
Apparently
though
“subsidize”
the
term
“fund”
was
used
panel
then
turned
to
a
Legislature,10
the
definition
“subsidy”
of
preferring
(a
noun)
and
by
to
the
dictionary
discovered
that
a
“subsidy” is defined as “a direct financial aid furnished
by a government . . . [or] any grant or contribution of
money.”
words
Thus, by mixing verbs and nouns and substituting
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 . . .”
(3d ed).
of
the
Webster’s New World Dictionary
Michigan public schools represent eighty percent
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
11
of
the
Webster’s,
“synonymous.”
gate
receipts
supra,
14
to
defining
MHSAA,
it
would
“synonym”
and
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
and
“by”
“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
definitions
of
“through”
in
Webster’s
are
The applicable
“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
would
hold
that
because
the
MHSAA
receives
its
I
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
“through”
authority.
majority
must
refer
suggests
to
that
different
the
kinds
terms
of
“by”
and
governmental
The majority adopts the analysis of the Court
of Appeals and concludes that “by” refers to an entity that
directly
distributes
disputed organization.
its
financial
resources
to
the
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.
it
not
is
necessary
indirect
funding
intended
to
However, to understand the statute,
to
or
to
reference
engraft
concepts
conclude
of
direct
and
the
Legislature
kinds
different
that
of
governmental
authority when it only used the term authority once.
The
majority’s
the
approach
defies
the
plain
language
of
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
sponsorship
of
organization
public
school
for
its
athletic
organization
and
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.
17
By
collecting
gate
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.”
13, 15.
Ante at 12-
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
particular
where
the
organization
service.
interscholastic
True,
seasons
and
provides
the
MHSAA
postseason
a
fee
does
for
a
organize
tournaments.
It
also provides medical insurance, publications, and training
to its members.
allow
it
athletes
insurance,
to
However, schools do not join the MHSAA or
sell
simply
tickets
because
publications,
to
events
featuring
student
the
MHSAA
provides
medical
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.
function
of
school
These decisions are within the proper
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
athletes.
scholastic
achievement
for
participating
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.
15.232(d)(iv).
MCL
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
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