STATE OF MICHIGAN JN THE CIRCUIT COURT FOR THE COUNTY OF MENOMINEE JADAM MICHAUD, an Individual, COMMITTEE TO’ STOP UNLIMITED MAROJJANA SHOPS, a Local Ballot Committee, FIRST PROPERTY HOLDINGS, ‘LLC, d/b/a RIZE, a Michigan Limited Liability Company, and THE FIRE STATION, LLC, A Micnigan Limitee Liability company. Plaintiffa, v File No. M23-175ae-cz Hon. Mary B. Barglind THE CITY OF MENOMINEE, A Michigan Mutual Corporation, Defendant. smecora bee ncaa Seperactea tad L Gescspesloe eco derelorneas SEL Proposed Tntervening Defendante. J OPINION ON REQUEST FOR PRELIMINARY INJUNCTION BEFORE THE HONORABLE MARY B. BARGLIND, CIRCUIT JUDGE Menominee, Michigan ~ Tuesday, Septenber 26, 2023 APPEARANCES: For the Plaintiffs: MR. ERIC B. DOSTER (P4170) @For the Defendant: For the Proposed Intervening Parties: DOSTER LAW OFFICES, PLLC Attorney for MICHAUD and COMMITTEE TO STOP UNLIMITED MARIHUANA SHOPS 2145 Commons Parkway Okemos, MI 4886¢ (517) 977-0147 MR. JASON SCHETDER (P79296) THE MIKE COX LAW FIRM, PLLC Attorney for RIZE 37430 Laurel Park Dr, ste. 1208 Livonia, Mx 49152 (734) 591-4002 MR. JOHN TURNER JOHN R. TURNER, PLC Attorney for RIZE 321 E. Lake street P.0. Box 2396 Petosky, MI 49770 (231) 348-4500 MR. JAMES A. MARTONE (P77601) DICKINSON WRIGHT, PLLC Attorney for THR FIRE STATION 2600 W. Big Beaver Road, Ste, 300 Troy, MI 48084 (248) 433-7200 MR. MATTHEW W. CROSS (P77526) ‘CUMMINGS, McCLOREY, DAVIS & CHO, PLC Attorney for the CITY oF enor 310 .W. Front Street, ste. 221 Traverse City, MI 49604 (231) 922-1588 MS. JOLIN E. MONAHAN (P77362) Attorney for HIGHER LOVE, INC. and COMMITTEE FOR ECONOMIC DEVELOPMENT 45 Ottawa Avenue NW, Ste. 1100 Grand Rapids, Nz 49503Interested Parties that appeared via Zoom: RECORDED BY: (616) 831-1754 MR. JOE JONES (P79964) ONES LAW, PLC 1104 20™ Avenue, ste 200 P.0. Box #5 Menomines, MZ 49050 (906) 914"a161 BRETT BOTBYL City of Menominee ERIN NOHA, The Marinette Eagle Herald Newspaper MR. KEVIN BLAIR HONING, LLP 222 N. Washington Sq., Ste. 400 Lansing, MI 48933, (517) 377-0716 Ms. Barbara Crispigna-Scheibe, CER 7649 Certified Court RecorderTABLE OF CONTENTS MARKED: PAGE: RECEIVED:0 6 1s 16 1s a 2 Py as Menominee, Michigan Tuesday, September 26, 2023 - 1:06 p.m. C.8.7 (all parties appearing via zoom video conterence) THE COURT: We call the matter of Adam Michaud et al, plaintiffs versus city of Menominee, defendant Menominee County file no. 23-17544-cH. Tt appears that counsel of record is all present via Zoom. The Court is appearing via Zoom as indicated for the sole purpose of rendering the ruling on the preliminary injunction hearing that was held yesterday. ‘The Court has had an opportunity since yesterday to listen to the testimony, review the pleadings, the briefs with regard to the preliminary injunction. the exhibits attached thereto, the exhibits received at the hearing yesterday, as well as oral argunent. ‘The request is for a preliminary injunction. The as counsel is aware there are four factors that the Court must consider in determining whether or not to issue a preliminary injunction. The first factor being the Likelihood of success on the merits. The Court has analyzed the testimony primarily with regard to the Open Meeting Act violations and it appears that with the regard to the May 22, 2023 as well as the July 27, 2023 meetings, there were violations of MCl 15.267(1) vaich states chat* A 2/3 roll call vote of members elected or appointed and serving is required to call a closed session, except for the closed sessions permitted under section @(a), (b), (c), (9), (4), and (3). The roll call vote and the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken’ ‘The counsel did go into closed session at both of those meetings, the May 22, the July 27, admittedly there was no roll call taking--taken at ither of those. There was a --is a statutory--mandatory requirement, not Giscretionary that this be done and the Court is to enforce this statute strictly. And finds chat roll. call at the beginning does not suffice for roll call before going in, That violation in and of itself I don’t believe would be sufficient to find likelihood of success on the merits However, in addition to those roll call violations, we have additionally the violations that the purpose of the meeting for the closed session at ither the May 22 nor the July 27 meetings was stated. Wasn't stated before the counsel went into the meeting, nor was it stated in the minutes that there was a exempt purpose or a statutorily permitted purpose for the meeting. Counsel argues now in light of the law suit that there were legitimate purposes for the closed session, and18 » 2 a cy 4/11 get into that argument ina minute, However, it was not done in advance of the meeting, in advance of going into closed session, it wasn’t announced it was stated only marinuana in the notice agenda and in the meeting minutes for the May 22 meeting--no I think it was the July 27% meeting, the minutes didn’t state any reason at 211, just that there was motion to go into closed session. It @id not even state that it was about marihuana, according to the minutes The defendant argues that the purpose for the May 22 closed session was to discuss litigation, but it does agree that they did not state which case they were going into closed session to discuss, which is a requirement ‘The defendant also argues that the attorney client privilege pursuant to FOIA was the legitimate basis for going into closed session. The Michigan Court of Appeals in Herold Company v Tax Tribunal--and I don’t that cite Fight handy--Limited the use of FOIA in OMA cases and o¥A isoues and stated that; FOIA and OMA mandate that when dealing with material exempt from the act’s disclosure requirements, the public body shall separate exempt and nonexempt material, describe the exept material, make the nonexempt material available and state on the record the purpose of the closed session before initiating the closedn 2 B a » Viewing the evidence that was submitted at the hearing yesterday, it appears that the July 27 closed session, dealt with more than FOIA protected attorney client information or records. Tt was a lengthy meeting, according to the testimony of Mr. Rotbyl, and the city’s attorney had to admonish counsel members to watch what they were saying ‘Tne defendant also argues with regard to the plaintiff’s OMA arguments that although these violations may have occurred, they were technical violations only. As I stated, I think the roll call violations--even roll call violations at both of those meetings T would agree could be considered technical violations. However, looking at the totality of the evidence, the totality of the circumstances that were put forth in the testimony and the exhibits yesterday. The Court disagrees that these violations were technical in totality and finds that there’s a likelihood that this accumulation of errors, a pattern if you will, of continued noncompliance with the open Meeting Act. There is a likelihood that at the permanent injunction hearing it would be found by the Court, that there was an impairment of the rights of the public and T think that that finding is likely based upon the proofs that T have heard. The second factor io the irreparable harn factor.“ 1s 16 ” 18 weue ‘The Court finds that the irreparable harm factor weighs also in favor of granting an injunction. As to the plaintifé Comittee, The Committee to stop Unlimited Marihuana Shops, they had an interest in these meetings and the content of the counsels’ discussions and actions in that they are attempting to enforce their rights to proceed with the referendum. From all appearances and the testimony and the pleadings, the referendum efforts have been in compliance with the laws and their petitions were certified. ‘The counsels’ actions in violating the open Meeting Act as just discussed, puts that Committee in danger of irreparable harm. Puts the Committee in danger of having their rights under the referendum laws that they were on track to proceed with, they were following appropriately. And that is a significant harm Similarly, RIZE and TFS who had previously been granted licenses under the first ordinance, and are up and operating. ‘The decisions of the counsel that had been made after closed sessions that were done in violation of the Open Meeting Act, puts them in danger of irreparable harm as well. ‘The third factor whether the harm and the City of Menominee--but whether, sorry--whether the harm to the City of Menominee and the public interest would suffer16 "7 18 9 a 2 2 2s nore if the injunctive relief is granted, than the plaintiffs would, if this motion is denied. That factor weighs in favor of granting the injunction. t don’t see harm to the defendants and there is potential harm to the plaintiffs as has been discussed. The defendants can redo their actions, the defendants cannot change their situation they are eubject to the will of the counsel on these issues. They are stuck with the potential harm caused by these violations and the city, as I stated, has the ability to correct them if that’s how they wish to proceed. So, I think the harm factor on factor three, as T stated, weighs in favor of granting the injunction. and then the fourth factor, the harm to the public interest if the injunction is issued. Little to no harm was identified by the City at the hearing yesterday. T don’t think their brief touched on that factor. Harm to the public if the injunction is issued, potentially a delay in generating funds into the public operating funds fron the sale of marihuana as a result of the delay that would ensue as this litigation proceeds. However, the Court finds that this interest pales in comparison to correcting the Open Meeting Act violations and proceeding with the status quo in place while the litigation proceeds. ‘The purpose of the Open Meeting Act is to promoten n 3 4 1s a 2 ™ a» governmental accountability by facilitating public to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern. Therefore, the Court finda that it is appropriate, in thie cage, to issue a preliminary injunction. There is a potential, the court believes, that if not corrected these Open Meeting Act violations, these errors could result in invalidation of the ordinances Te is ordered that one, the City is enjoined from taking any further action consistent with the amended ordinances waile this litigation is pending. In other words, the status quo is preserved by this preliminary injunction. The City is also enjoined from further violating the Open Meeting Act. Obviously, that statute is in effect and that’s an obvious action or conduct that they should not engage in. But I do believe it is appropriate given the repeated acts of violating the Open Meeting Act that they be enjoined from doing that in the future Tam going to have Connie schedule a status conference in the near future so that we can discuss the scheduling of the permanent injunction hearing and any other motions or hearings that need to be scheduled in this matterzeus who is here for the plaintiff, Mr. Schneider is that you, for Mr. Cox's office? MR. SCHNEIDER: Yes, your Honor. THE COURT: Anyway, does one of the plaintifts’ counsel that's here today want to take care of preparing the order consistent with the Court's ruling? MR. SCHNIEDER: Yes, we can do that. THE COURT: All right. Anything further at this time, Mr. Martone? MR. MARTONR: Nothing further from me, your Honor THE COURT: Mr. Schneider? MR. SCHNEIDER: No. No, your Honor. THE COURT: Mr. Doster? MR. DOSTER: Nothing from me, your Honor. Thank you. THE COURT: Mr. Cross? me. CROSS: guage, the only question I have se, you indicated that the order is going to require us to maintain the status quo while the litigation ie pending. 1 believe that plaintiff’s motion requested basically the status quo as of--1 don’t know, several weeks ago before any licenses were issued pursuant to the new ordinance. $0, we do know now because I believe Higher Love just filed a motion to intervene and indicated that they doa 2 ™ » have a license, they are up and running. So, the question to the Court is are you saying no further or is there sone action we need to take to clawback what’s been done already? THE COURT: No. I think at this point status quo as of today’s date. Mm. CROSS: Understood, Thank you. YR. MARTONE: Matt, my one comment to that I guess would be, it looks 1ike Higher Love, 0.1. only received a provisional license. Whereas Fire Station RIZE received @ final license after inspections and all. IME COURT: Te that correct Mr. Cross to your understanding? MR. CROSS: My understanding that’s correct, but I do recall seeing an email from the city Clerk saying something to the effect of the provisional license still allows then to begin selling and I believe Ms. Monahan is raising her hand, she'd probable provide some better information on that. ‘THE COURT: Ms. Monahan? NS. MONAHAN: Thank you, your honor. I certainly appreciate being acknowledged. Consistent with the papers that Higher Love filed today, we have the exact same kind of operating license that the Fire station and RIZE have. ‘The reason that I know that is that I specifically0 a 2 2% 2s inquired of Clerk Brofka about that question, T shouldn't say I did, but Mr. Jones did, and she responded that Listen you have the same exact operating license that RIZE and Fire station have, they all renew in February. You are operating precisely exactly the way they are. We also have permanent CRA licenses just Like RIZE and tha Pixe Station that’s also contained in the papers that were filed today. ‘There is absolutely no difference, not even a technical difference. ‘That we are absolutely on the exact same footing relative to our licensing. Happy to expand on that or call witnesses or whatever, but I think that’s fairly well--that's very easy to establish, your Honor, and the paper's we filed show that. THE COURT: Nope. As an officer of the court, T accept that and my ruling is status quo as of today's date, so. Anything further Mr. Cross? MR. CROSS: No Tudge, thank you THE COURT: All right, thank you counsel. The Court is in recess (at 1:22 p.., court adjourned)COUNTY OF MENOMINEE ) > STATS OF MICHIGAN ) I certify that this transcript, consisting of 15 pages, is a complete, true, and correct record of the proceedings and testinony tuken in this cage on Tuesday september 26, 2023. Uucha Goanie Chicha CERF 6114 Cerzified Court Recorder Dickinson County Courthouse PO 30x 609 Tron Mountain, MZ 49801 (905) 774-2266 Dated: october 6, 2023