Recent Michigan Court of Appeals Case Regarding Written Public Comment: Caution Against Adopting a Policy of Written Comments Only

In the recent case of Michigan Open Carry, Inc v House of Representatives, the Michigan Court of Appeals decided that, in certain circumstances, and with proper rules and procedures in place, written comments may be utilized by public bodies in lieu of spoken comments, but that public bodies may not entirely eliminate the opportunity for spoken public comment.

In the Spring of 2023, the Michigan House and Senate Judiciary Committees held hearings regarding multiple controversial bills.  Members of the public who wished to address the committees were directed to submit “testimony cards” identifying themselves, their position on the bills, and whether they desired to speak at the hearings.

After two individuals representing special interest groups were denied the opportunity to publicly comment at certain hearings, the groups filed a lawsuit alleging the Michigan House and Senate violated the Michigan Open Meetings Act (“OMA”) at the meetings during which the individuals were denied an opportunity to speak.

In considering these claims, the Court found that the Senate did not violate OMA when it limited public comment and utilized written testimony cards, in lieu of spoken public comments.  However, it held that the House of Representatives did violate OMA in its particular use of written testimony cards.

The Court emphasized that it was not condoning the process of accepting written comments only, because neither the House nor the Senate had relied only on the written comment cards.  Rather, individuals were able to indicate their desire to address the committees orally, through written statement, both, or neither.  The Court merely declined to interpret the term “address” a public body, as used in OMA, to preclude the acceptance of written communication in lieu of oral communications.

The House, however, was found to have violated OMA, not because of the comment cards, but because the House rules did not impose time limits for testimony, nor was there a specific rule indicating written testimony would be accepted.

The Court’s ruling then, stands for two things.  First, written communication can be a “pragmatic alternative” in situations where a public body has a duty to carry out its public duties under time constraints and when large numbers of individuals desire to speak, thus, becoming an obstacle to the efficient execution of the body’s duties.  Second, a public body must not only have sufficient rules and policies regarding the procedures of public comment, but must also state in the rules that written communication can be accepted.

A municipality could conceivably, therefore, adopt a procedural rule offering individuals wishing to speak during a busy period of public comment the option of waiting for their turn to speak or submitting a written comment, which could be read by one of the members of the governing body.  In this way, written comments could be an effective tool in the public comment toolbox, but not an exclusive tool, and it is a tool that must be utilized under a defined set of rules.

If you have any questions regarding written public comment during your local government’s public meetings, or general questions about compliance with OMA, please contact one of the members of our Local Government Practice Group.