STATE OF MICHIGAN

COURT OF CLAIMS

MICHIGAN OPEN CARRY and GREAT LAKES

GUN RIGHTS, OPINION AND ORDER

Plaintiffs,

v Case No. 23-000049-MZ

MICHIGAN HOUSE OF REPRESENTATIVES Hon. Thomas C. Cameron

and MICHIGAN SENATE,

Defendants.
___________________________/

OPINION AND ORDER DENYING PLAINTIFFS’ EX PARTE EMERGENCY MOTION

FOR ENTRY OF A TEMPORARY RESTRAINING ORDER AND FOR AN ORDER TO
SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE

Pending before the Court is plaintiffs’ motion for entry of an ex parte emergency temporary

restraining order (TRO) and for an order to show cause why a preliminary injunction should not

issue. For the reasons discussed herein, the motion is DENIED.

Plaintiffs are two nonprofit organizations that support the lawful carry of guns. Plaintiffs

sued defendants in this Court on April 13, 2023, alleging that defendants violated the Open

Meetings Act (OMA), MCL 15.261 et seq., by preventing plaintiffs from providing committee

testimony opposing 11 pending House and Senate firearm bills. In short, plaintiffs claim that

defendants either limited or excluded their testimony at the March 1, 2023, March 2, 2023, March

8, 2023, March 9, 2023, March 22, 2023, and April 13, 2023 Michigan House and Senate Judiciary

Committee meetings discussing the firearm bills, while defendants permitted individuals and

-1-
organizations supporting the bills to testify at length. Plaintiffs assert that some bills have already

been discharged and passed through the House and Senate, while others remain pending.

According to plaintiffs, the House and Senate provide index cards that individuals wishing

to testify at a committee meeting can fill out with their name, their organization, whether they wish

to testify, and whether they support, oppose, or are neutral on the pending bills. Plaintiffs allege

that very few (if any) opponents of the bills were permitted to testify at the committee meetings

and, when they were, their testimony was interrupted or limited to only a few minutes. They allege

that plaintiff Michigan Open Carry was permitted to testify for “ ‘a few minutes’ ” or “ ‘two

minutes max’ ” at the March 22, 2023 committee meeting, but the testimony was interrupted

repeatedly. In their six-count complaint, plaintiffs allege that defendants’ refusal to allow them to

address the House and Senate Judiciary Committees violated MCL 15.263(5) of the OMA.

Plaintiffs request that the Court declare that defendants violated the OMA and issue a preliminary

and permanent injunction prohibiting further noncompliance.

Plaintiffs have also moved for an emergency TRO on an ex parte basis, as well as an

emergency order to show cause why a preliminary injunction should not issue. That motion is the

subject of this opinion and order. Plaintiffs argue that an emergency TRO is necessary because

defendants are actively considering the firearm legislation, and “once the chance to address a

public body passes, it is gone forever.” Plaintiffs request the TRO on an ex parte basis, relying on

MCR 3.310(B)(1). As for the request for a show-cause order, plaintiffs argue they are likely to

succeed on the merits of their claims because the OMA required defendants to allow plaintiffs to

speak during the committee meetings. Defendants violated the OMA by prohibiting or limiting

plaintiffs’ testimony. They allege that they will suffer irreparable harm if this Court does not issue

an injunction because they will lose their ability to speak at future committee meetings. The harm

-2-
to their interest, plaintiffs contend, significantly outweighs any perceived harm to the Legislature

for having to listen to their comments. Finally, plaintiffs argue that “[d]efendants themselves have

already declared the interest of the public here by passing the Open Meetings Act.” They attach to

their motion the committee meeting minutes from an April 12, 2023 House Judiciary Committee

meeting. In relevant part, the minutes provide that a representative of Michigan Open Carry

submitted a card in opposition to the bills, but “due to the time constraints [was] unable to speak[.]”

The decision whether to grant or deny a preliminary injunction is within the trial court’s

sound discretion. Davis v Detroit Fin Review Team, 296 Mich App 568, 612; 821 NW2d 896

(2012). The party requesting injunctive relief bears the burden to establish that the court should

issue the preliminary injunction. MCR 3.310(A)(4). The purpose of a preliminary injunction (or

TRO) is to preserve the status quo while the parties wait for a final hearing adjudicating their

rights. Slis v State, 332 Mich App 312, 336; 956 NW2d 569 (2020). To establish entitlement to

this type of relief, the plaintiff must establish that the following four factors weigh in favor of the

preliminary injunction/TRO:

(1) whether the applicant has demonstrated that irreparable harm will occur without
the issuance of an injunction, (2) whether the applicant is likely to prevail on the
merits, (3) whether the harm to the applicant absent an injunction outweighs the
harm an injunction would cause to the adverse party, and (4) whether the public
interest will be harmed if a preliminary injunction is issued. [Id. at 337.]

Generally, the Court may not grant injunctive relief without notice to the opposing party

or before a hearing on the motion for a preliminary injunction/motion for an order to show cause

why the preliminary injunction should not issue. MCR 3.310(A)(1). However, when the plaintiff

-3-
requests a TRO on an ex parte basis, the Court may grant the TRO without notice to the adverse

party if:

(a) it clearly appears from specific facts shown by affidavit or by a verified

complaint that immediate and irreparable injury, loss, or damage will result to the
applicant from the delay required to effect notice or from the risk that notice will
itself precipitate adverse action before an order can be issued;

(b) the applicant’s attorney certifies to the court in writing the efforts, if any,
that have been made to give the notice and the reasons supporting the claim that
notice should not be required; and

(c) a permanent record or memorandum is made of any nonwritten

evidence, argument, or other representations made in support of the application.
[MCR 3.310(B)(1).]

The OMA also permits an individual to file an action to compel compliance or enjoin further

noncompliance with the OMA, and allows the court to issue injunctive relief. MCL 15.271(1) and

(2).

Beginning with the ex parte request for a TRO, plaintiffs have not established through

affidavit or a verified complaint that an immediate and irreparable injury will result from a delay

required to effect notice. According to the complaint, the committee meetings at issue have

occurred over the span of nearly two months, and so plaintiffs have had ample time to file this

lawsuit and provide defendants with notice of their request for injunctive relief. And while

plaintiffs have documented their attempt to notify defense counsel of this lawsuit via e-mail,

plaintiffs have not provided this Court with adequate reason to waive notice under the

circumstances. Therefore, plaintiffs’ request for an ex parte TRO is DENIED.

Turning to plaintiffs’ emergency request for an order to show cause why a preliminary

injunction should not be issued, plaintiffs once again have not supported adequately their request

for such an order.

-4-
 1. Likelihood of Success on the Merits. Beginning with the likelihood that plaintiffs will

succeed on the merits of their claims, plaintiffs rely on MCL 15.263(5) of the OMA. They do not

challenge whether defendants held the committee meetings open to the public or whether they

gave proper notice before the meetings. Instead, plaintiffs challenge whether they were permitted

to address the public body during the meetings. The relevant OMA provision states, “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). See also Pinebrook Warren LLC v City of Warren, ___ Mich App ___; ___ NW2d ___

(2022) (Docket Nos. 355989, 355994, 355995, 356005, 356011, 356017, 356023, 359269, and

359285); slip op at 18 (“A public body must . . . allow persons who attend the meeting to address

the meeting, MCL 15.263(5).”).

The requirement that a public body allow individuals attending the meeting to address the

public body is not absolute, however. Regarding this provision, the Court of Appeals has

explained, “[T]he Legislature intended to grant public bodies the authority to establish and enforce

rules regarding public comment, as well as the ability to establish and enforce similar rules during

hearings and committee reports.” Lysogorski v Bridgeport Charter Twp, 256 Mich App 297, 301;

662 NW2d 108 (2003). In Lysogorski, the plaintiff challenged the defendant’s rule limiting public

comments to a certain time near the beginning of the public meeting. Id. The Court cited favorably

to an Attorney General opinion stating, in relevant part, that

[t]he procedural matters which may be established and limited by rule are: control
over the length of time that a person may address a public meeting, designation of
the time for public participation during a certain part of the agenda, and requirement
that speaker identify himself or herself prior to speaking. [Id. at 302 (alteration in

-5-
 original; emphasis omitted), citing OAG, 1977-1978, No. 5,218, p 224, at 225
(September 13, 1977).]

Therefore, under MCL 15.263(5), defendants may establish certain rules governing the way

individuals address a committee during an open meeting, including the length of time that

individuals may speak.

Plaintiffs’ argument on this point is brief and vague. Plaintiffs have failed to identify what

defendants’ specific rules are and how defendants violated them. They have not attached a copy

of any written rules to their complaint or motion. Nor have they attached any affidavits or similar

evidence that would support their motion and explain what procedural rules defendants have

violated. Rather, plaintiffs make general, unsubstantiated assertions in their motion. Without more

specific information about how defendants violated the OMA, this Court cannot conclude at this

stage that plaintiffs are likely to prevail on the merits of their claims.

2. Irreparable Harm. Even if plaintiffs had demonstrated a likelihood of success on the

merits, they have not demonstrated that they will suffer an irreparable harm without the injunction.

The party requesting the injunction has the burden to make a “particularized showing of irreparable

harm.” Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist (On Remand), 293 Mich

App 143, 149; 809 NW2d 444 (2011). The requirement that the party requesting the injunction

make a particularized showing of irreparable harm is an “indispensable requirement” for the

preliminary injunction. Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 9;

753 NW2d 595 (2008) (citation and quotation marks omitted). “ ‘[I]t is well settled that an

injunction will not lie upon the mere apprehension of future injury or where the threatened injury

is speculative or conjectural.’ ” Mich AFSCME Council, 293 Mich App at 149 (citation omitted;

alteration in original).

-6-
 Plaintiffs have not made a particularized showing of irreparable harm. Plaintiffs contend

that their right to speak at future committee meetings will become “entirely meaningless” unless

this Court issues a TRO. Yet they acknowledge that one of the plaintiffs was afforded the

opportunity to speak during at least one of the committee meetings. Their argument that

defendants will prevent them from speaking at future committee meetings (assuming such

meetings occur) is a mere apprehension of future injury. And, as noted, plaintiffs do not submit

any affidavits or other evidence demonstrating that they will suffer an irreparable harm without

preliminary-injunctive relief. Again, defendants can make rules governing the public-comment

process, and plaintiffs have not provided this Court with a copy of any rules or information on how

defendants have violated them.

Plaintiffs request that the Court “enjoin[]” defendants’ alleged noncompliance with the

OMA. It is unclear what remedy plaintiffs ask the Court to impose, short of requiring defendants

to allow them to speak without any restriction at each future committee meeting before the bills

are discharged. Plaintiffs have not provided a legal basis under the OMA to order that relief at this

early stage in the proceedings. Finally, plaintiffs’ request would not preserve the status quo before

a final hearing on the parties’ rights. Therefore, plaintiffs have not made a particularized showing

of irreparable harm to support a preliminary injunction.

3. Balancing of Harms. For this factor, plaintiffs argue that the rights they seek to enforce

are “an essential part of good governing,” but fail to define those interests or explain how

defendants’ conduct affects those rights. Plaintiffs also fail to address defendants’ interest in

regulating procedural matters during the public comment, as outlined in Lysogorski. For these

reasons, the Court cannot conclude that the harm to plaintiffs outweighs the harm to defendants.

-7-
 4. Public Interest. Finally, regarding this factor, plaintiffs simply argue that the public

interest is outlined in the OMA, and that “[t]here is no public interest in Defendants’ non-

compliance with [the] Act.” But, once again, the OMA affords public bodies the ability to make

rules governing public comment during open meetings. Plaintiffs raise no argument about what

those rules were in this context and how they were violated. Therefore, plaintiffs have not

established that the public interest will not be harmed if a preliminary injunction is issued. For the

reasons discussed, plaintiffs have not supported adequately their motion for an order to show cause

why a preliminary injunction should not issue. The Court DENIES the motion.

IT IS HEREBY ORDERED that plaintiffs’ emergency ex parte motion for a TRO is

DENIED for failure to meet the requirements of MCR 3.310(B)(1). Plaintiffs’ emergency request

for an order to show cause why a preliminary injunction should not issue is DENIED for lack of

factual and legal support in the motion.

This is not a final order and does not close the case.

Date: April 18, 2023 __________________________________

Thomas C. Cameron
Judge, Court of Claims

-8-