Amicus Brief

Timothy Ader v Delta College Board of Trustees

Case Year: 2012
Case Forum: Michigan Supreme Court
Keywords: Open Meetings Act (OMA), closed session, Michigan Constitution, separation of powers
Amicus Counsel:

William B. Beach | Steven D. Mann | Emma T. Chen |
Miller, Canfield, Paddock and Stone, P.L.C. | 150 West Jefferson
Suite 2500 | Detroit, Michigan 48226

CoAmicus Parties:

1. Michigan Townships Association (MTA)
2. Public Corporation Law Section of th State Bar of Michigan (PCLS)


In order to ensure that the public is informed as to the goings on in government, the legislature enacted the OMA to require transparency in the way that public bodies conduct their business. Amicus counsel argues that the legislature may not grant a person standing to bring suit when the person “has not suffered a particularized or personal injury.” A statute may not grant standing unless it is shown that the party has met the constitutional requirement of having suffered an actual and particularized injury. Until the incorrect holding of the court of appeals in Lansing Schools Education Association, this was the established law applied by Michigan courts, even in cases brought under a statute that created a private right of action. The Lansing Schools decision erroneously elevated individual persons to the position of a “representative,” despite the fact that public officials are supposed to be elected through the democratic process, and that individual persons have no rights or responsibilities to bring claims on behalf of the public. The Michigan Constitution requires a separation of powers, which allows the judicial branch the power to hear cases only when an actual controversy exists. In the absence of such a dispute, the judicial branch in hearing such a case is improperly exercising the power of another branch of government. If the Lansing Schools decision stands and plaintiffs are allowed to bring suit despite a lack of injury, the result will be frequent lawsuits, which will burden the courts, waste public resources, and impede local government.


On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we VACATE our order of February 1, 2012. The application for leave to appeal the July 14, 2011 judgment of the Court of Appeals is DENIED, because we are no longer persuaded that the questions presented should be reviewed by this Court.

MSC requested LDF amicus brief? No

Plaintiff contends that defendant violated the Open Meetings Act, (OMA) at a meeting on June 10, 2008. At the meeting, the board voted to go into closed session to discuss a lawsuit filed by board member Kim Higgs. Plaintiff, Higgs, and others who attended the meeting left the room but, shortly thereafter, Higgs and his attorney, James Johnson, were asked into the closed session. The public was not permitted to reenter the board room. Plaintiff maintains that, during the closed meeting, the board, the board’s attorney, Higgs, and Johnson
“discussed and negotiated toward a settlement of the lawsuit….” Plaintiff sought a declaratory judgment that the board violated the OMA and he requested an injunction to compel the board to comply with the OMA and to enjoin the board from further noncompliance.

Case Number: 2011-14
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