                         STATE OF MICHIGAN

                          COURT OF APPEALS


DUANE LOCKWOOD, RONALD CYBULSKI,                                 FOR PUBLICATION
DAVID VOLLMAR, GEORGE MIKA, and                                  March 13, 2018
EUGENE DAVISON,                                                  9:05 a.m.

              Plaintiffs-Appellees,

v                                                                No. 338745
                                                                 Tuscola Circuit Court
TOWNSHIP OF ELLINGTON, ERIC                                      LC No. 17-029711-AW
ZBYTOWSKI, and ED TALASKI,

              Defendants-Appellants.


Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.

JANSEN, J.

        Defendants, the Township of Ellington, Eric Zbytowski, and Ed Talaski, appeal as of
right the May 22, 2017 judgment outing Zbytowski and Talaski from the Ellington Township
Planning Commission, and instead reinstating the appointments of plaintiffs Eugene Davison and
George Mika to the planning commission. The basis of defendants’ appeal, however, is actually
a challenge to the trial court’s order granting summary disposition, pursuant to MCR
2.116(C)(10), in favor of plaintiffs, Duane Lockwood, David Vollmar, Ronald Cybulski, Mika,
and Davison. We reverse and vacate the trial court’s order granting summary disposition in
favor of plaintiffs and the trial court’s judgment in favor of plaintiffs.

                  I. RELEVANT FACTS AND PROCEDURAL HISTORY

        This case arises out of a November 1, 2016 meeting of the Ellington Township board.
The November 1, 2016 meeting had been rescheduled from November 8, 2016, which was
election day. It is uncontested that no notice of the November 1, 2016 open meeting was posted
at the Ellington Township Hall, as is required under the Open Meetings Act (OMA), MCL
15.265. During the November 1, 2016 meeting, the board appointed and verified the
appointments of Mika and Davison to the planning commission. Mika and Davison were to
serve three-year terms, beginning on January 1, 2017. Mika and Davison each took an oath of
office on November 15, 2016.

       Subsequently, a new board took office, and at a special board meeting on November 22,
2016, the new board concluded that the November 1, 2016 meeting was held in violation of

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OMA, therefore the events of that meeting would be added to the December meeting agenda.
This included the appointments of Mika and Davison. At the December 15, 2016 board meeting,
the board did not ratify the appointments of Mika and Davison to the planning commission.
Instead, the board resolved to accept applications for the vacancies that the removals created. On
January 17, 2017, the board approved the appointments of Zbytowski and Talaski to the planning
commission.

       On March 20, 2017, plaintiffs Lockwood, Cybulski, and Vollmar filed a complaint for
quo warranto relief.1 Plaintiffs stated that they were lessors of land, leased by Next Era Energy
Resources, LLC, for the purpose of development of a wind energy conversion system in Almer,
Fairgrove, and Ellington Townships known as Tuscola Wind III, LLC (the Tuscola Wind
Project). Plaintiffs explained that the Tuscola Wind Project would utilize their properties and
they would generate income from the leases.

        Plaintiffs first alleged that the Ellington Township board erroneously invalidated the
actions of the November 1, 2016 meeting because OMA does not permit a public body to
invalidate prior actions taken, and further, that the board had not engaged in any evaluation or
discussion regarding whether the November 1, 2016 meeting impaired the rights of the public
because no notice was given. Additionally, the invalidation of the appointments of Mika and
Davison to the planning commission were unlawful

       as contrary to MCL 125.3815(a); Section 6 of the Township of Ellington Planning
       Commission Ordinance and Section 5c of its Bylaws which require finding of
       misfeasance, malfeasance, or nonfeasance in office, written charges, notice, and
       an opportunity to be heard.

Because Mika and Davison were unlawfully removed from the planning commission, plaintiffs
alleged that Zbytowski and Talaski were “usurping, intruding into, or unlawfully holding office
on the Ellington Township [p]lanning [c]ommission.”2 Plaintiffs requested the trial court order


1
 On March 17, 2017, filed an ex parte application for leave to institute a quo warranto action,
noting that they had requested the Attorney General bring this action on February 21, 2017, and
he had refused to do so. On March 17, 2017, the trial court granted plaintiffs application.
2
  Plaintiffs also alleged that four of the five members of the new Ellington Township board, as
well as Zbytowski and Talaski, were part of a political action group called “Ellington-Almer
Township Concerned Citizens,” which openly opposed and actively attempted to stop the
Tuscola Wind Project. Plaintiffs alleged that at the November 22, 2016 special board meeting, in
addition to erroneously placing the events of the November 1, 2016 meeting on the December
agenda, the board “enacted a Wind Energy Conversion Facilities Moratorium Ordinance,
freezing Township consideration of the Tuscola Wind III project.” Further, on January 17, 2017,
the new board had approved a motion to strengthen the regulations for “noise, setback, shadow
flicker, decommissioning, and conflict resolution for Wind Energy Conversion Systems, and that
the [p]lanning [c]ommission make a recommendation to the [board] regarding such proposed
amendments.” Plaintiff went on to allege that they were “apprehensive that [the board] in


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the ouster of Zbytowski and Talaski from the planning commission, order that Mika and Davison
were entitled to serve complete three-year terms on the planning commission, and enjoin
Zbytowski and Talaski from holding office or participating as members of the planning
commission until a determination was made regarding the rightful holders of office on the
planning commission.

        Before defendants could file an answer, plaintiffs filed a motion for summary disposition
pursuant to MCR 2.116(C)(10). Plaintiff argued that OMA does not vest a public body with the
power of invalidation. Rather, OMA “provides that an action may be commenced in the circuit
court to challenge the validity of a decision of a public body made in violation of OMA[.] MCL
15.270(1).” The board’s “power to take action, curative or otherwise, is limited to those
situations in which a circuit court action has been filed seeking invalidation of action.”
Accordingly, the new board did not have the authority to “invalidate” the political appointments
of Mika and Davison, particularly in light of the fact that there were never any charges or
findings of misfeasance, malfeasance, or nonfeasance brought or made with respect to Mika and
Davison.

        Further, plaintiffs argued that a decision of a public body can only be invalidated if the
public body has not complied with the requirements of MCL 15.263(1) – (3). Plaintiffs
contended that was not the case here, as the November 1, 2016 meeting was open to the public,
held in a place that was available to the public, and the failure to give notice did not impair the
rights of the public. Therefore, even if the board had the power to take action, “the action it took
failed to meet the statutory or case law requirements.”

        Defendants filed their brief in opposition to plaintiffs’ motion for summary disposition on
April 17, 2017, and requested summary disposition in their favor pursuant to MCR 2.116(I)(2).
Defendants argued that before the four of five members of the board left office, they “purported
to reappoint two members to the [p]lanning [c]ommission” at a meeting that did not comply with
the notice requirement of OMA. However, after the new board took office, they corrected the
defect by holding a new, properly noticed meeting and appointed two different individuals to the
planning commission. Defendants argued that nothing in OMA prevents public bodies from
curing their own defects, and plaintiff’s “contrary interpretation of . . . OMA would prevent
public bodies from correcting their own mistakes and would instead require the public body to be
sued, at taxpayers’ expense.” Although a circuit court’s jurisdiction is limited by OMA – it only
has jurisdiction over actions filed within 60 days of the minutes being approved – there is
nothing in OMA that limits a public body’s abilities to reenact, or not reenact, an illegal decision.

       Further, defendants argued, the appointment of Mika and Davison were unlawful, as the
“lame duck” outgoing board could not make appointments that were legally binding on the new
board. The appointment of government officers is a governmental function, and a “municipal
board cannot impair the rights of its successors, including the right to appoint planning


concert with . . . Zbytowski and . . . Talaski will legislate, by restriction, wind turbines out of
Ellington Township[.]”



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commission members.” In fact, this Court had held that appointment of public officers is a
governmental function and a “municipal council cannot engage a public officer by contract for a
term extending beyond that of its own members, so as to impair the right of their successors to
remove such officer and to appoint another in his place.”

        Following a hearing on plaintiffs’ motion, the trial court entered an opinion and order
granting summary disposition in favor of plaintiffs on May 3, 2017. The trial court determined
that it did not have jurisdiction to address “whether the planning commission’s appointments
should be invalidated for a violation of” OMA because no cause of action was filed in the circuit
court within 60 days of the minutes from the November 1, 2016 meeting being made available to
the public. However, the trial court went on to determine that because public bodies may only
remove planning commission members in the event of misfeasance, malfeasance, or nonfeasance
in office, MCL 125.3815(9), the incoming board did not have the authority to remove Mika and
Davison and to appoint Zbytowski and Talaski in their place. The trial court opined:

       If there was concern about appointments made during a meeting that violated . . .
       OMA, the concerned party or parties should have filed a lawsuit within the 60-day
       statutory limit for invalidation of the decision. See MCL 15.270(1)[.]

                                            * * *

       It should be noted that because the newly elected Township Board wishes to
       invalidate the prior Township Board’s action and take a different action, the
       remedy of reenactment by action by the Township Board which is a contemplated
       remedy for OMA violations was not feasible. The newly elected Township Board
       wished to take a different action and intended to invalidate the prior Board’s
       action, this could only have been accomplished by a Circuit Court action as
       provided by . . . OMA. Because that did not occur and because the Board did not
       remove plaintiffs Davison and Mika for misfeasance, malfeasance, or
       nonfeasance, MCL 125.3815(9), the Board had no legal authority to remove Mika
       and Davison and appoint Zbytowski and Talaski.

The trial court went on to rely on Trainor v Bd of Auditors, 89 Mich 162; 50 NW 809 (1891), for
its holding that officers, as opposed to employees, cannot be subject to removal from office at
“the will or caprice of the appointing power.”

       Defendants unsuccessfully moved for reconsideration of the trial court’s order. On May
22, 2017, the trial court entered a final judgment in this matter, ordering that Mika and Davison
were entitled to serve on the planning commission for three years. This appeal followed.

                                 II. STANDARD OF REVIEW

        We review a trial court’s decision regarding a motion for summary disposition de novo.
Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). A motion for summary
disposition brought under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint,”
Shinn v Mich Assigned Claims Facility, 314 Mich App 765, 768; 887 NW2d 635 (2016) (citation
omitted), and should be granted where “there is no genuine issue regarding any material fact and

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the moving party is entitled to judgment as a matter of law.” West v Gem Motors Corp, 469
Mich 177, 183; 665 NW2d 468 (2003).

         “The moving party has the initial burden to support its claim for summary disposition by
affidavits, depositions, admissions, or other documentary evidence.” McCoig Materials, LLC v.
Galui Constr., Inc., 295 Mich App 684, 693; 818 N.W.2d 410 (2012). The court must consider
all of the admissible evidence in a light most favorable to the nonmoving party. Liparoto
Constr., Inc. v. Gen. Shale Brick, Inc., 284 Mich App 25, 29; 772 NW2d 801 (2009). However,
the party opposing summary disposition under MCR 2.116(C)(10) “may not rely on mere
allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts
showing that a genuine issue of material fact exists.” Oliver v. Smith, 269 Mich App 560, 564;
715 NW2d 314 (2006) (citation omitted). “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” Bahri v IDS Prop Cas Ins Co, 308 Mich App 420, 423;
864 NW2d 609 (2014) (citation and quotation marks omitted).

       If, after careful review of the evidence, it appears to the trial court that there is no genuine
issue of material fact and the opposing party is entitled to judgment as a matter of law, then
summary disposition is properly granted under MCR 2.116(I)(2). Holland v Consumers Energy
Co, 308 Mich App 675, 681-682; 886 NW2d 871 (2015), aff’d City of Coldwater v Consumers
Energy Co, 500 Mich 158; 895 NW2d 154 (2017).

                                  III. JURISDICTIONAL ISSUES

        Defendants first argue that the trial court erroneously held that the 60-day period for
filing a civil action under OMA had expired, and therefore, it did not have jurisdiction over any
alleged violation of the act. We disagree.

        There are three different types of relief available under OMA. Leemreis v Sherman Twp,
273 Mich App 691, 704; 731 NW2d 787 (2007). A plaintiff may: (1) seek to compel compliance
or enjoin further non-compliance (MCL 15.271; Leemreis, 273 Mich App at 699); (2) seek actual
and exemplary damages against a public official for intentional violations of OMA (MCL
15.273(1); Leemreis, 273 Mich App at 700); or (3) seek to have the decision of a public body
invalidated on the grounds that it was not made in conformity with OMA (MCL 15.270;
Leemreis, 273 Mich App at 699).

        This case involves allegations of an OMA violation, i.e. the Ellington Township board
held its November 1, 2016 meeting without providing the requisite notice. MCL 15.270(2)
provides that

       (2) A decision made by a public body may be invalidated if the public body has
       not complied with the requirements of [MCL 15.263(1) – (3)] in making the
       decision or if failure to give notice in accordance with [MCL 15.265] has
       interfered with substantial compliance with [MCL 15.263(1) – (3)] and the court
       finds that the noncompliance or failure has impaired the rights of the public under
       this act.


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Therefore, “[a] court has discretion to invalidate a decision made in violation of . . . OMA if it
finds that violation impaired the rights of the public under . . . OMA.” Morrison v East Lansing,
255 Mich App 505, 520; 660 NW2d 395 (2003). A trial court’s determination of whether the
public’s rights were impaired is based on the public’s opportunity to participate in the public
body’s decision-making process. Id. at 521.

       With respect to the November 1, 2016 meeting, which was changed from November 8,
2016, the board was required to post “within 3 days after the meeting at which the change is
made, a public notice stating the new dates, time, and places of its regular meetings” in order to
be in compliance with OMA. See MCL 15.265. It is uncontested that the no notice of the
November 1, 2016 meeting was provided, and that the meeting was violative of OMA.

        OMA also lays out the procedure to be utilized by the attorney general, the county
prosecuting attorney, or any other person when seeking invalidation of a decision made by a
public body. Specifically, MCL 15.270(3) provides:

       (3) The circuit court shall not have jurisdiction to invalidate a decision of a public
       body for a violation of this act unless an action is commenced pursuant to this
       section within the following specified period of time:

       (a) Within 60 days after the approved minutes are made available to the public by
       the public body except as otherwise provided in subdivision (b).

       (b) If the decision involves the approval of contracts, the receipt or acceptance of
       bids, the making of assessments, the procedures pertaining to the issuance of
       bonds or other evidences of indebtedness, or the submission of a borrowing
       proposal to the electors, within 30 days after the approved minutes are made
       available to the public pursuant to that decision.

        We find no error with the trial court’s determination that it did not have jurisdiction over
any alleged OMA violation relating to the November 1, 2016 meeting. It appears from our
review of the record that the minutes from the November 1, 2016 meeting were neither approved
nor made available to the public. While we agree with defendants that because the minutes were
never approved and released, and therefore the 60-day statute of limitations had not begun to run,
we nevertheless conclude that the trial court did not have jurisdiction because no party had filed
an action in the circuit court to invalidate any decision made at the November 1, 2016 meeting.
MCL 15.270(3). The trial court did not err by concluding that it did not have the authority to
determine whether the appointments of Mika and Davison should have been invalidated because
the November 1, 2016 board meeting did not comply with the notice requirements of OMA.

                                    IV. OMA VIOLATIONS

       Defendants next argue that the trial court erroneously held that the Township of Ellington
Board could not cure any alleged OMA violation on its own without first being sued. We agree.

       It is uncontested that OMA provides that public bodies may ratify decisions made at
meetings that were not inconformity with OMA. Specifically, MCL 15.270(5) states:

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       In any case where an action has been initiated to invalidate a decision of a public
       body on the ground that it was not taken in conformity with the requirements of
       this act, the public body may, without being deemed to make any admission
       contrary to its interest, reenact the disputed decision in conformity with this act.
       A decision reenacted in this matter shall be effective from the date of reenactment
       and shall not be declared invalid by reason of a deficiency in the procedure used
       for its initial enactment.

Therefore, “a deficiency in the procedure may not render a decision made during a session
invalid if the public body duly reenacts and corrects the procedural omission.” Herald Co v
Mich Tax Tribunal, 258 Mich App 78, 90; 669 NW2d 862 (2003).

        The failure to provide notice of the November 1, 2016 meeting was a procedural
violation. In granting summary disposition in favor of plaintiff, the trial court found that the only
way the new board could have invalidated the actions taken by the old board at the November 1,
2016 was if an action had been filed in the circuit court. We disagree.

         Although the board was permitted by OMA to correct the deficiency in the procedure by
ratifying the decisions made during the November 1, 2016 meeting, there is nothing in OMA to
suggest that it was required to ratify the decisions made during that meeting. MCL 15.270(5).
Therefore, if an action taken at a meeting held in violation of OMA is not ratified, it is not valid,
and has no force or effect. Further, there is nothing in OMA that suggests a board must be sued
before correcting any procedural violations on its own. To conclude otherwise ignores the
ratification provision included in OMA by the Legislature, and further would result in a waste of
city resources and taxpayer dollars. Accordingly, we conclude that the trial court erred in
finding that the only way to invalidate an action taken at a meeting that was held in violation of
OMA was by bringing an action in the circuit court.

        In sum, we conclude that because the appointments made at the November 1, 2016 board
meeting were violative of OMA and never ratified, they had no force or effect. Comparatively,
the subsequent appointments of Zbytowski and Talaski to the planning commission were valid,
and should remain in effect because they were made at a meeting properly noticed and held in
compliance with OMA. On that basis, we reverse, and vacate the order granting summary
disposition in favor of plaintiffs and the judgment in favor of plaintiffs. Based on the foregoing,
we find it unnecessary to address defendant’s arguments relating to the “lame duck” outgoing
board.

       Reversed.


                                                              /s/ Kathleen Jansen
                                                              /s/ Michael J. Kelly
                                                              /s/ Patrick M. Meter




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