Frame your issues carefully, or you may end up arguing the wrong case. That is what happened in Michigan Open Carry v Michigan House of Representatives and Senate. Gun rights advocates attended multiple House and Senate Judiciary Committee hearings intending to speak against proposed gun-control legislation. Both chambers require members of the public who want to comment to fill out “testimony cards.” These cards ask for the person’s name, whether they oppose or support the legislation under consideration, and whether they wish to speak. The card also advises that written statements are accepted in lieu of speaking.
The plaintiffs were able to speak at some of the hearings. At others, they were not able to speak because public comment ended due to time constraints. The plaintiffs argued that the committees’ rules—permitting public comment to be truncated for time’s sake—violate the Open Meetings Act, which provides:
A person must be permitted to address a meeting of a public body under rules established and recorded by the public body. The legislature or a house of the legislature may provide by rule that the right to address may be limited to prescribed times at hearings and committee meetings only.
MCL 15.263(5).
The trial court held that the word “address” encompasses both oral and written communication. Therefore, it concluded that the committees did not violate the OMA by limiting oral public comment, because the rules permitted a person to “address” the committee orally or in writing. The trial court’s interpretation of the statute was the sole issue on appeal.
On appeal, the plaintiffs took the position that in the context of the OMA, “address” means only oral communication. But in so doing, the plaintiffs: (1) mischaracterized the issue; and (2) failed to raise a separate dispositive issue. First, the plaintiffs argued that the trial court had held that a public body can dispense with public comment altogether and only accept written communications. But, as the Court of Appeals was careful to note, that is not what the trial court held. Instead, the trial court held that “address” can mean oral or written communication. This is the holding that the Court of Appeals affirmed. Second, the plaintiffs did not challenge the trial court’s holding that the House and Senate complied with the requirement of the OMA to establish rules governing public comment. Consequently, even if the Court of Appeals had agreed that the trial court’s interpretation of “address” was erroneous, the plaintiffs would not be entitled to relief.
Zealous appellate advocacy requires a lawyer to frame the issues to their client’s advantage. Sometimes this means altering the Court of Appeals to negative unintended consequences of the trial court’s ruling. In this case, such an argument might have included the possibility that a public body would use the trial court’s holding to justify doing away with oral comments altogether. But a lawyer must also take care to (1) frame the issues accurately, and (2) not leave a dispositive issue on the table.
