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Prayer at Township Board Meetings

The United States Supreme Court long ago established the appropriate limit for religious prayer in state legislatures in Marsh v Chambers, United States Supreme Court (1983), allowing religious prayer at the federal and state levels of government. The Court held that prayer had a rich heritage in the foundation of our country at these types of proceedings. Although prayer of any kind imposes some facet of religion into a meeting, it has been widely accepted at the state and federal levels of government.

Recently, a majority on the Supreme Court extended the Marsh decision to clearly apply to municipalities as well. The Supreme Court’s decision analyzed the specific prayer practice of a town board’s meeting and determined it to be constitutional under the principles set forth in Marsh. Town of Greece v Galloway, United States Supreme Court (2014).

The town used the following prayer practice for its monthly meetings: A different local clergyman would be invited to each meeting to deliver an invocation at the front of the room. The prayer occurred after the roll call and recitation of the Pledge of Allegiance, but before the balance of the meeting began. The local minister was presented with a commemorative plaque. The purpose of the prayer was to place town board members in “a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.”

The ministers were selected by calling the congregations listed in a local directory. Most invocations ended up being primarily given by Christian faith ministers, except for a few instances that included a Jewish minister and Wiccan priest. The town never denied any faith from providing an invocation and let any minister who requested do so. The town also never reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe on both the free exercise and free speech rights of the ministers.

This practice was upheld by a majority of the Supreme Court. We suggest that you consider the following points if your township currently uses or is considering having prayers at its meetings:

1. Hold the invocation or moment of silence during the opening of the meeting, prior to any legislative action.
2. Establish as policy that the purpose of the invocation should be to place members in a deliberative frame of mind and follow the tradition practiced by Congress and state legislatures.
3. Invite outside individuals to give the invocation, including members of the clergy or any others who request to give an invocation.
4. Create a procedure to select clergy member and others from the surrounding area to provide the prayer or invocation.
5. Consider providing guidelines regarding the invocation or prayer consistent with the current practice of the House of Representatives.
6. Do not direct public participation in the invocations or prayers.
7. Do not single out certain individuals who are outspoken about the practice or indicate that member’s decisions might be affected by an individual’s actions.
8. Do not prohibit the public from entering the meeting after the prayer or invocation and, similarly, do not prohibit any member of the public from leaving during the prayer or invocation; no one individual should be compelled to remain during the prayer or invocation.

FOIA Appeals

Under the Freedom of Information Act, a township denying a FOIA request must provide information regarding how the requester may appeal the denial of the request. FOIA provides that “[i]f a public body makes a final determination to deny in whole or in part a request to inspect or receive a copy of a public record or portion of that public record, the requesting person may  . . . appeal the denial to the head of the public body.” MCL 15.235. But in a township, exactly who is the “head”?

The Michigan Court of Appeals recently considered a FOIA request to a local community college. According to the college’s policy, the head of the college was the President. But when the Court examined the statutes that provide for community college districts, the Court determined that the language “directed and governed by a board of trustees” made the college’s board of trustees the “head of the public body” for FOIA purposes. Anklam v Delta College District, Court of Appeals (June 2014).

Similarly, townships are municipal corporations created under the State Constitution and governed by the General Law Township Act and the Charter Township Act. The governing law provides that township boards are vested with all legislative authority and powers as provided by law. See MCL 42.5. Although we have seen many FOIA policies that direct appeals to the township supervisor as the “head” of the township for FOIA appeals, certain township statutes call this into question. For instance, MCL 41.2 states that the supervisor is an agent for the township for purposes of transacting legal business. MCL 41.61 only provides that the supervisor is the “chief assessor,” not the head of the public body. MCL 42.5 provides that the supervisor shall be the presiding and executive officer. This delegation by statute is akin to the president of the community college in the case discussed above.

Under the Court of Appeals’ recent decision, we recommend that FOIA appeals be directed to the township board as the “head of the public body” until the issue is further clarified with respect to townships in a future case.

Contract Negotiation and Drafting

Michigan appellate courts have reviewed several municipal contract disputes lately, reminding how important it is for townships to be vigilant in their contracting practices. Townships should review any contract and always consider the “what ifs.” What if the developer ends up insolvent? What if the standards in the contract are not well defined? What if the terms do not literally state what the township believes is required by the contract? Although neither party can anticipate the future events that will arise as the parties perform under the contract, it is always important to carefully consider as many likely future scenarios as possible.

To illustrate these “what ifs,” a dispute arose between a municipality and a developer over two contract conditions: (1) the term “funded” and (2) the scope of the contemplated project. The parties agreed to the terms in 2000. Ten years later, in 2010, the parties disputed whether the project was “funded” and the size/scope of the project. By this time, officials of the municipality who were in on the initial negotiations regarding the contract were no longer in office. The parties now disputed the terms based on previous representations. Given any court’s reluctance to write terms into a contract, a court is left with interpreting the “plain language” of the contract very literally.

The lower court held that “funded” only required the party to have money or resources available to make payment, found no requirement that the funds had to be “immediately available,” and declined to write such condition into the contract. But on appeal, the Michigan Court of Appeals determined that “funded” meant that the amount of money for the project had to be deposited with the party and readily available. Mere promises or grants awarding funds in the future were not sufficient.

From an outsider’s perspective, both interpretations might appear reasonable. This shows the risk of not clearly defining terms. To avoid disputes concerning the meanings of a term, the parties need to include clear definitions, or at least detail all the representations made by the parties.  Grand/Sakwa Properties, Inc v City of Troy, Michigan Court of Appeals (May 2013).

Since contract disputes can often arise between a municipality and another contracting party, we recommend the following:

• Realize that the life of the contract may span past current township officials’ and employees’ tenure; plan accordingly to ensure that the contemplated performance under the contract is explained with sufficient detail so that future officials and employees can understand the terms.
• Consider how the terms of the contract would be understood to someone who had never previously been involved with the initial negotiations. Would all of the clauses be clear to that individual? If not, how can you clarify the language?
• Reflect on representations and comments made by the other party. Are these representations vital to the contract? To guide your answer to this question, determine whether failure of the other party to fulfill the representation poses a problem for the municipality. If these representations are vital to the contract, they should be included in the body of the contract. Courts are reluctant to look at oral or written communications that were not incorporated into the contract.
• Dissect individual words or phrases such as “funded” and determine the meaning both parties assign to that word or phrase. We recommend incorporating definitions of such terms into the contract.
• If you are concerned with the meaning of a certain phrase or are unclear how to properly reflect the parties’ intent in words, consult with your township attorney and request that proposed language be drafted that can be included in the contract.

Public Highway on Private Property

On occasion, private property may have been used for a public road for years, even though there has been no express dedication, grant or recorded documents that provide for use by the public. Such roads are determined to be public roads by “user” under Michigan statute, MCL 211.20. Establishing a highway on private lands under this statute requires the following:

1. A defined line of travel with definite boundaries;
2. Improvement, maintenance or work done on the road by public authorities;
3. Public travel and use without interruption for 10 years; and
4. Open, notorious and exclusive use by the public.

If these elements are met, Michigan courts will presume that a road exists that is 66 feet-wide. The authority under the highway by user statute to declare private land for public road use was recently challenged. The Michigan Court of Appeals rejected a landowners’ argument that private property could not be converted to a public highway under the statute. Farlow v Grunst, Michigan Court of Appeals (December 2012).

Race to Court! Don’t Lose Public Property by Waiving Statutory Rights.

But if the public can turn private property into a public road, is it also possible for a private party to convert township property into private property?  “Adverse possession” is a claim raised by a person in possession of land owned by someone else. That person may acquire valid title to it, as long as certain requirements are  met, including use of the land for a period of 15 years or more.

A recent decision by the Michigan Court of Appeals held that a party can claim adverse possession against a township. According to the Court, even though another property owner cannot generally obtain land held by the state, the same principle does not apply to municipalities. The issue arises from the drafting of MCL 600.5821(2), which purportedly provided immunity to municipalities, i.e., townships, from claims brought by a party attempting to recover land against the municipality. After the Court’s careful reading of that section, however, the Court has held that the MCL 600.5821 only bars claims against a township for recovery of land if the township files first. This is significant. Waisanen v Superior Township, Michigan Court of Appeals (June 2014).

In a practical sense, this will occur when a township is aware that there is a piece of land that may not have clear boundary lines or a party contacts the township indicating they believe they have an interest in the township’s property. The township must immediately file a complaint in court to quiet title. Although we typically provide recommendations to avoid litigation, if the township is not the first to file such a lawsuit, it may run the risk of losing public property.

Filing first will be a township’s best defense. But, if that is not the case, the party claiming to recover land from the township must still prove the elements of an adverse possession claim. There are valid defenses that can be raised by the township, so not all may be lost.

We would still recommend that townships assess their current properties and determine whether there are issues in the township. Without contacting the property owner, we would advise consulting with legal counsel to file a complaint first and then see whether the matter can be resolved.

Christopher S. Patterson cpatterson@fsbrlaw.com

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 Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.