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143621 - Ader v Delta College

Timothy Ader,
Roland J. Jersevic
(Appeal from Ct of Appeal)
(Saginaw – Borchard, F.)
Delta College Board of Trustees,
Joseph Nimako


​While a journalism student at Delta College in 2008, Timothy Ader investigated a lawsuit that had been filed by Delta College Board of Trustees member Kim Higgs against the board of trustees. Ader learned that the board of trustees had spent $25,707 in legal fees on the lawsuit. Soon after, Ader attended a June 2008 board of trustees meeting; toward the end of this meeting, the board voted to go into closed session to consult with its attorneys regarding the Higgs litigation. After 30 to 45 minutes, the boardroom door opened and Higgs and his attorney were asked to join the board and its lawyers. No one else was allowed into the boardroom.


Ader sued, alleging that the latter part of the closed session – the portion attended by Higgs and his lawyer – violated the Open Meetings Act. Section 8(e) of the Open Meetings Act, MCL 15.268(e), allows a public body to meet in a closed session only for specific purposes, including to “consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” Ader argued that, when the board of trustees invited Higgs and his attorney into the closed session, it became an illegal closed meeting for three reasons: (1) the board was no longer consulting with its attorney regarding trial or settlement strategy, (2) there was no detrimental financial effect on the board’s litigation or settlement position, compared with holding an open meeting, and (3) it was legally impossible for the board to consult with its attorney because the opposing party was present.


Ader requested a declaratory judgment finding that the closed meeting violated the OMA, and injunctive relief compelling the board of trustees to comply with the OMA; he also asked for costs and attorney’s fees.


Ader moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that he was entitled to judgment in his favor, including his costs and attorney’s fees, as a matter of law. The board of trustees filed its own motion for summary disposition pursuant to MCR 2.116(C)(7) and (8), asking the court to dismiss the lawsuit on several grounds. In particular, the board argued that Ader lacked standing to sue – that he was not personally affected or injured by the board going into closed session and so lacked the legal right to sue. Ader responded that he was granted standing to sue by section 11(1) of the OMA, MCL 15.271(1), which states that, if a public body is not complying with the 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.”


The trial court granted the board of trustees’ motion, concluding that Ader lacked standing to sue because he failed to suffer an injury as a result of the board of trustees’ alleged violation of the OMA. Ader appealed to the Court of Appeals, which initially agreed with the trial court. But the Michigan Supreme Court directed the Court of Appeals to reconsider its ruling in light of the recent decision in Lansing Schools Education Ass’n v Lansing Bd of Education, 487 Mich 349 (2010). In an unpublished per curiam opinion, the Court of Appeals reversed the trial court and reinstated Ader’s lawsuit, remanding the case to the trial court for further proceedings. The Court of Appeals held that Ader had standing to sue because “[t]he OMA allows an individual to commence a civil action for injunctive relief to either compel compliance with the OMA or enjoin further noncompliance with the act.” The court noted that “[i]n light of the Supreme Court’s removal of the constitutional limitation on standing [in Lansing Schools Education Ass’n], the OMA alone is sufficient to confer standing on plaintiff.”


The board of trustees appeals.