Opinion
SC 165576 COA 360706
09-05-2024
ADAM A. HOLLAND, individually and on behalf of those similarly situated, Plaintiff-Appellant, v. DEWITT PUBLIC SCHOOL DISTRICT, DEWITT PUBLIC SCHOOLS BOARD OF EDUCATION, and DEWITT PUBLIC SCHOOLS SUPERINTENDENT, Defendants-Appellees.
Clinton CC: 2021-012099-CZ
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the January 26, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
VIVIANO, J. (dissenting).
At issue in this case is whether a school-district superintendent had the authority to establish a policy regarding mandatory masking during the COVID-19 pandemic or whether the school board was required to promulgate the policy at a public meeting. This case raises important questions regarding the permissible scope of delegation of powers and when delegation of powers impermissibly circumvents the requirements of the Open Meetings Act (OMA), MCL 15.261 et seq.
At the beginning of the 2021-2022 school year, defendant Shanna Spickard, superintendent of the DeWitt Public School District, adopted and began enforcing a mask policy in response to the COVID-19 pandemic. Plaintiff filed a one-count complaint seeking a declaratory judgment and a permanent injunction against the district, the school board, and the superintendent. Plaintiff alleged, in relevant part:
The School Board effectively delegated its policymaking authority as a public body subject to the Open Meetings Act, MCL 15.261 et seq., and the Superintendent's deliberations and decision to adopt the Mandatory Mask
Policy was made without a meeting open to the public in violation of the Open Meetings Act. See Herald Co v City of Bay City, 463 Mich. 111 (2000) (citing Booth Newspapers, Inc v Univ of Mich. Bd of Regents, 444 Mich. 211 (1993)).
He also sought exemplary damages under the OMA. In response, defendants argued that the superintendent had authority to implement the mask policy under the school district's Policy 8450, which the school board had adopted at a public hearing in 1997 to address control of casual-contact communicable diseases. Throughout the rest of the litigation, plaintiff argued that the mask policy exceeded the scope of authority that Policy 8450 delegated to the superintendent and, alternatively, that if Policy 8450 is as broad as the district argues, the issuance of the mask policy violated the OMA.
The trial court granted summary disposition in favor of defendants. On appeal, plaintiff abandoned the injunctive-relief portion of his claim, and the Court of Appeals determined that plaintiff was not entitled to exemplary damages or declaratory relief. But, as the Court of Appeals observed, "[p]laintiff's complaint clearly sought to invalidate the mask policy." Holland v DeWitt Pub Sch Dist, unpublished per curiam opinion of the Court of Appeals, issued January 26, 2023 (Docket No. 360706), p 4. Ultimately, the Court of Appeals concluded that plaintiff failed to demonstrate that the OMA was violated.
Defendants argue that this appeal is moot since the school board formally adopted a policy on masking subsequent to the filing of plaintiff's lawsuit. However, to the extent plaintiff asserted a valid claim for exemplary damages under the OMA for an intentional violation by a public official, the case would not be moot. Thus, it is necessary to determine whether the Court of Appeals erred by rejecting this claim. MCL 15.273(1) provides that "[a] public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney fees to a person or group of persons bringing the action." Citing People v Whitney, 228 Mich.App. 230, 253 (1998), the Court of Appeals held that, despite the plain language of the statute, a claim for exemplary damages is only available against a "public official" if that public official is also a member of a public body. This, in my view, is a misreading of the statute.
In Whitney, the Court of Appeals was not construing section MCL 15.273; it addressed the immediately preceding section, which provides for criminal liability for an intentional violation of the OMA by a public official. See MCL 15.272. The Court held that the elements of that offense are: "(1) the defendant is a member of a public body, (2) the defendant actually violated the OMA in some fashion, and (3) the defendant intended to violate the OMA." Whitney, 228 Mich.App. at 253 (emphasis added). The Court provided no support for scripting the first element as "a member of a public body" instead of "a public official" and then, in a footnote, observed that even nonpublic officials could be convicted of this crime. See id. at 253 n 14 ("Although only a public official may directly commit the crime of intentionally violating the OMA, we point out that this would not preclude the conviction of a nonpublic official of this crime based on aiding and abetting in an appropriate case where the nonpublic official intentionally or knowingly aided a public official in intentionally violating the OMA."). Therefore, despite its own formulation of the first element, not even the panel in Whitney apparently believed that only members of a public body could be convicted of this crime. I believe the Court of Appeals panel erred by importing this limitation into MCL 15.273.
In so doing, the panel below relied upon an unpublished federal district court opinion, which it found persuasive. See Holland, unpub op at 4 & n 2, citing Ritchie v Coldwater Community Sch, unpublished opinion of the United States District Court for the Western District of Michigan, issued July 11, 2012 (Case No. 1:11-CV-530), pp 37-38. In Ritchie, before adopting this limitation, the court observed that "the Whitney court's conclusion that a defendant must be 'a member of a public' body is consistent with the purpose [of] the OMA, which is to ensure public access to official decision-making of public bodies." Ritchie, unpub op at 37-38. But as interpreted by this Court, the OMA also prohibits a public body from avoiding its obligations under the OMA by delegating its decisionmaking authority to another group or individual. See Booth Newspapers, 444 Mich. at 226 ("[D]elegating the task of choosing a public university president to a one-man committee . . . would warrant the finding that this one-man task force was in fact a public body.... [W]e do not find the question of whether a multi-member panel or a single person presides to be dispositive. Such a distinction carries with it the potential for undermining the Open Meetings Act[.]") (citation and quotation marks omitted); Pinebrook Warren, LLC v City of Warren, Mich., (July 31, 2024) (Docket No. 164869); slip op at 26 ("[I]f a public body delegates its authority to any other entity regardless of its size, that entity (or person) is still effectively a public body, even though an individual person does not generally fit the statutory definition of a 'public body.' "). In any event, neither Whitney nor Ritchie nor the Court of Appeals panel below provided a sufficient rationale for departing from the plain language of the statute.
Because plaintiff has stated a valid claim for exemplary damages against the superintendent, this appeal is not moot, and the Court should address the merits of his claim that the superintendent's adoption and enforcement of the mask policy violated the OMA. Plaintiff argues that the contested mask policy is a "decision"-i.e., it is an action "by which [the school board] effectuates or formulates public policy," MCL 15.262(d)-and thus was required to have been made at an open, public meeting, see MCL 15.263(2). That contention does not appear to be in serious dispute. Instead defendants argue, and the Court of Appeals agreed, that the superintendent was given authority to implement a mask mandate by Policy 8450, the communicable diseases policy that was formally adopted by the school board. The policy provides as follows: 8450 - CONTROL OF CASUAL-CONTACT COMMUNICABLE DISEASES
The Board of Education recognizes that control of the spread of communicable disease spread through casual-contact is essential to the wellbeing of the school community and to the efficient District operation.
* * *
In order to protect the health and safety of the students, District personnel, and the community at large, the Board shall follow all State statutes and Health Department regulations which pertain to immunization and other means for controlling casual-contact communicable disease spread through normal interaction in the school setting.
If a student exhibits symptoms of a communicable disease, the principal will isolate the student in the building and contact the parents/guardians. Protocols established by the County Health Department shall be followed.
The Superintendent shall develop administrative guidelines for the control of communicable disease which shall include:
A. instruction of professional staff members in the detection of these common diseases and measures for their prevention and control;
B. removal of students from District property to the care of a responsible adult;
C. preparation of standards for the readmission of students who have recovered from casual-contact communicable diseases;
D. filing of reports as required by statute and the State Department of Health.
Policy 8450 places certain obligations on the school board and imposes certain duties on the superintendent. The school board is required to "follow [state law] and Health Department regulations which pertain to immunization and other means for controlling casual-contact communicable disease spread through normal interaction in the school setting." This paragraph suggests that the school district must follow these outside authorities for guidance on whether immunization or other steps are required to control the spread of communicable diseases. If a student exhibits symptoms of such a disease, the policy requires the principal to isolate the student and contact a parent or guardian in accordance with County Health Department protocols.
Although the policy does not address masking, the Court of Appeals summarily concluded that it was broad enough to authorize the superintendent to impose a mask mandate. The Court of Appeals did not point to any particular language in the policy, but the trial court, in also ruling for defendants, misread the policy as authorizing the superintendent to "develop administrative guidelines for the control of communicable diseases which shall include . . . measures for their prevention and control." But that is not what the policy actually says. Instead, it requires the superintendent to develop administrative guidelines for the removal and readmission of students and the instruction of staff in the detection of communicable diseases and measures for their prevention and control. This is not an independent grant of policymaking authority. It is a specific direction for the superintendent to implement the policies adopted by the school board in accordance with state law and state and local health department regulations.
We recently made clear that an entity or person who "makes public policy decisions that would otherwise have had to have been made by . . . [a] public body according to the law . . . is also a public body covered by the OMA." Pinebrook Warren, LLC v City of Warren, ___Mich __, ___ (July 31, 2024) (Docket No. 164869); slip op at 29. Thus, whether viewed as an ultra vires act by the superintendent to which the school board acquiesced, or an improper delegation of decision-making authority by the school board, I believe that the trial court erred by granting summary disposition of plaintiff's complaint. As I noted at the outset, this case raises important questions about delegation of powers and the OMA. If a public body that is subject to the OMA can avoid public scrutiny of its decisions by delegating decision-making related to controversial topics, then that has the potential to open a gaping hole in the OMA. For the above reasons, I would reverse the Court of Appeals judgment and remand this case to the trial court for further proceedings. I respectfully dissent.