Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  May 1, 2015                                                                     Robert P. Young, Jr.,
                                                                                             Chief Justice

  149168-9                                                                         Stephen J. Markman
                                                                                       Mary Beth Kelly
  DIANE NASH, Personal Representative of the                                            Brian K. Zahra
                                                                                Bridget M. McCormack
  ESTATE OF CHANCE AARON NASH,                                                        David F. Viviano
            Plaintiff-Appellee,                                                   Richard H. Bernstein,
                                                                                                  Justices
  v                                                     SC: 149168
                                                        COA: 309403
                                                        Ottawa CC: 10-002119-NO
  DUNCAN PARK COMMISSION,
             Defendant-Appellant.
  _________________________________________/
  DIANE NASH, Personal Representative of the
  ESTATE OF CHANCE AARON NASH,
            Plaintiff-Appellee,
  v                                                     SC: 149169
                                                        COA: 314017
                                                        Ottawa CC: 12-002801-NO
  DUNCAN PARK TRUST, and EDWARD
  LYSTRA, RODNEY GRISWOLD, and JERRY
  SCOTT, Individually and as Trustees of the
  DUNCAN PARK TRUST,
              Defendants-Appellants.
  _________________________________________/

         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
  October 24, 2014. We further VACATE that part of the March 20, 2014 Court of
  Appeals opinion addressing whether the Duncan Park Commission is a “board” of the
  City of Grand Haven. That issue was not raised below and the Court of Appeals should
  not have reached it sua sponte. In all other respects, leave to appeal is DENIED, because
  we are no longer persuaded that the questions presented should be reviewed by this
  Court.

        BERNSTEIN, J. (concurring in part and dissenting in part).

        While I agree with the majority’s decision to vacate the order granting leave to
  appeal in this case as improvidently granted and deny leave, I respectfully dissent from
                                                                                                               2

the majority’s decision to vacate the part of the Court of Appeals’ opinion addressing
whether the Duncan Park Commission (Commission) is a “board” of the city of Grand
Haven.

        The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides
narrow exceptions to the general rule that governmental entities are immune from tort
liability. The question presented by this case is whether an entity like the Commission is
a “board . . . of a political subdivision,” MCL 691.1401(e), and therefore entitled to
immunity.

        The Court of Appeals concluded that the Commission was not a board of a
political subdivision, emphasizing that the Commission was not subject to any
meaningful oversight by Grand Haven. I agree with the Court of Appeals’ conclusion
that “[r]ather than serving as an instrumentality or ‘political subdivision’ of Grand
Haven, the Commission is an independent, autonomous, private body that administers
privately held land.” Nash v Duncan Park Comm, 304 Mich App 599, 634-635 (2014).

      Like private entities that are not entitled to governmental immunity, the
Commission functions independently from the municipal government. The Commission,
as a private entity would, maintains and operates Duncan Park without significant
supervision from Grand Haven. The ordinance that created the Commission allows the
Commission to make its own rules and regulations. Although the mayor formally ratifies
the appointment of each member of the Commission, it is the Commission itself that
chooses its own successors who serve unlimited terms. Unlike other boards and
commissions created by Grand Haven and bound by the Grand Haven City Charter, the
Commission appoints its members without the city council’s confirmation.

        If an entity does not function and operate as a governmental entity, then it should
not receive the privileges of governmental immunity no matter what label the entity has
given itself. As the Court of Appeals stated, “Designating the Commission a ‘board’
does not transform a private group into a political subdivision.” Id. at 635. I agree with
this statement and would retain its inclusion in the Court of Appeals’ opinion to
emphasize that the entitlement to governmental immunity should not be so readily
accessible to an entity operating without governmental oversight in a manner similar to a
private entity. Accordingly, while I agree with the majority’s decision to preserve the
result of the Court of Appeals’ opinion, I would simply vacate the order granting leave as
improvidently granted and deny leave to appeal, leaving in place the entirety of the Court
of Appeals’ opinion.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 1, 2015
       t0428
                                                                             Clerk
