25307136.2

STATE OF MICHIGAN IN THE SUPREME COURT

JOSHUA WADE, Plaintiff/Appellant, SCT No. 156150 COA No. 330555 vs. Case No. 2015-000129-MZ Court of Claims THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendant/Appellee. / Steven W. Dulan (P54914) Leonard M. Niehoff (P36695) 1750 E. Grand River Ave. John D. Pirich (P23204) Suite 101 Andrew Pauwels (P79167) East Lansing, MI 48823 Honigman Miller Schwartz and Cohn LLP (517) 333-7132 315 East Eisenhower Parkway Attorney for Plaintiff/Appellant Suite 100 Ann Arbor, MI 48108 (734) 418-4246 Attorneys for Defendant/Appellee

Timothy G. Lynch (P77385) Vice President and General Counsel 503 Thompson St. Ann Arbor, MI 48109 (734) 764-0305 Attorney for Defendant/Appellee

APPELLEE’S OPPOSITION TO APPELLANT’S APPLICATION FOR LEAVE TO APPEAL

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

JUDGMENT OR ORDER APPEALED FROM .............................................................................v 

COUNTER-STATEMENT OF QUESTIONS PRESENTED ....................................................... vi 

INTRODUCTION ...........................................................................................................................1 

MATERIAL FACTS AND PROCEEDINGS BELOW ..................................................................2 

ARGUMENT ...................................................................................................................................7 

I. Article X Does Not Violate the Second Amendment .....................................................7 

A. The Second Amendment Does Not Reach Sensitive Places Such as University Property ....................................................................................10 

B. Even if the Second Amendment Applies, Article X Is Constitutional ............13 

II. Article X Does Not Violate the Michigan Constitution ..............................................16 

III. The University’s Ordinance Is Not Preempted ..........................................................18 

A. The Statute Does Not Apply to the University ...............................................18 

B. If the Statute Did Apply to the University it Would Be Invalid .....................21 

CONCLUSION ..............................................................................................................................24 

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TABLE OF AUTHORITIES

Page(s)

CASES

Bd of Regents of the Univ of Michigan v Auditor General, 167 Mich 444; 132 NW 1037 (1911) .......................................................................3, 17, 18, 22

Bloedorn v Grube, No 609CV055, 2009 WL 4110204 (SD Ga, Nov 24, 2009) aff’d, 631 F3d 1218 (CA 11, 2011) .................................................................................................................14

Capital Area District Library v Michigan Open Carry Inc, 298 Mich App 220; 826 NW2d 736 ........................................................................................19

DiGiacinto v Rector and Visitors of George Mason Univ, 281 Va 127; 704 SE2d 365 (2011) ....................................................................................12, 14

District of Columbia v Heller, 554 US 570; 128 S Ct 2783; 171 L Ed 2d 637 (2008) .......................5, 6, 7, 8, 9, 10, 11, 12, 13

Ezell v Chicago, 651 F3d 684 (CA 7, 2011) .......................................................................................................13

Federated Publications v Bd of Trustees of Michigan State Univ, 460 Mich 75; 594 NW2d 491 (1999) ...................................................................................3, 23

Florida Carry, Inc v University of Florida, 180 So 3d 137 (Fl Ct App, 2015) .............................................................................................12

GeorgiaCarry.Org, Inc v US Army Corps of Engineers, 38 F Supp 3d 1365, 1373 (ND Ga, 2014) aff’d, 788 F3d 1318 (CA 11, 2015) ...................9, 13

Grutter v Bollinger, 539 US 306; 123 S Ct 2325; 156 L Ed 2d 304 (2003) .............................................................16

Healy v James, 408 US 169; 92 S Ct 2338; 33 L Ed 2d 266 (1972) .................................................................14

Heller v District of Columbia, 399 US App DC 314; 670 F3d 1244 (2011) ..............................................................................9

In re Rood, 483 Mich 73; 763 NW2d 587 (2009) .......................................................................................22

Kachalsky v Co of Westchester, 701 F3d 81 (CA 2, 2012) .........................................................................................................16

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Keyishian v Bd of Regents of the Univ of the State of New York, 385 US 589; 87 S Ct 675; 17 L Ed 2d 629 (1967) ...................................................................15

McDonald v City of Chicago, 561 US 742; 130 S Ct 3020; 177 L Ed 2d 894 (2010) ...........................................................8, 9

McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999) .........................................................................................8

Michigan Coalition For Responsible Gun Owners v City of Ferndale, 256 Mich App 401; 662 NW2d 864 (2003) .......................................................................17, 19

Michigan Gun Owners, Inc v Ann Arbor Public Schools, 318 Mich App 338; 897 NW2d 768 (2016) .....................................................................6, 7, 19

Michigan Open Carry Inc. v Clio School District, 318 Mich App 356; 897 NW2d 748 (2016) .........................................................................6, 19

Michigan United Conservation Clubs v Bd of Trustees of Michigan State University, 172 Mich App 189; 431 NW2d 217 (1988) .............................................................................12

Nat’l Rifle Ass’n of Am, Inc v Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F3d 185 (CA 5, 2012) .........................................................................................................9

Nat’l Rifle Ass’n of Am, Inc v McCraw, 719 F3d 338 (CA 5, 2013) cert. denied, 134 S Ct 1365, 188 L Ed 2d 297 (2014) .......................................................................................................................................16

People v Brown, 253 Mich 537; 235 NW 246 (1931) .........................................................................................17

People ex rel Drake v Regents of the Univ of Michigan, 4 Mich 98 (1856) .....................................................................................................................22

People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977) .....................................................................................20

People v McKinley, 496 Mich 410; 852 NW2d 770 (2014) .....................................................................................21

People v Swint, 225 Mich App 353; 572 NW2d 666 (1997) .............................................................................17

Regents of the University of Michigan v Michigan Employment Relations Commission, 389 Mich 96; 204 NW2d 218 (1973) .......................................................................................23

Rock for Life-UMBC v Hrabowski, 643 F Supp 2d 729 (D Md, 2009) aff’d, 411 F Appx 541 (CA 4, 2010) .................................14

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Smith v Tarrant Co Coll Dist, 694 F Supp 2d 610 (ND Tex, 2010) ........................................................................................16

State Bd of Agriculture v Auditor General, 226 Mich 417; 197 NW 160 (1924) .........................................................................................22

Sterling v Regents of the Univ of Michigan, 110 Mich 369; 68 NW 253 (1896) ...........................................................................................22

United States v Bena, 664 F3d 1180 (CA 8, 2011) .......................................................................................................9

United States v Greeno, 679 F3d 510 (CA 6, 2012) .......................................................................................................12

United States v Laurent, 861 F Supp 2d 71 (EDNY, 2011) ............................................................................................13

United States v Lewis, No 2008-45, 2008 WL 5412013 (DVI, Dec 24, 2008) ............................................................10

United States v Marzzarella, 614 F3d 85 (CA 3, 2010), cert. denied, 562 US 1158 ...............................................................9

United States v Masciandaro, 638 F3d 458 (CA 4, 2011) .......................................................................................................14

Widmar v Vincent, 454 US 263, 268 n 5; 102 S Ct 269; 70 L Ed 2d 440 (1981) ..................................................16

STATUTES

MCL § 123.1101 ........................................................................................................5, 7, 18, 21, 23

MCL § 123.1102 .......................................................................................................7,18, 19, 20, 21

RULES

MCR 2.116(C)(8) .............................................................................................................................5

MCR 7.305 ...................................................................................................................................1, 2

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JUDGMENT OR ORDER APPEALED FROM

Plaintiff seeks leave to appeal from the June 6, 2017 opinion issued by the Michigan

Court of Appeals in this case. A copy of that opinion is attached as Exhibit E.

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COUNTER-STATEMENT OF QUESTIONS PRESENTED

I. The Court of Claims dismissed Plaintiff’s claim under the Second Amendment and the Court of Appeals affirmed. Should this Court grant review where two decisions from the Supreme Court of the United States make clear that Second Amendment rights do not even apply to the University ordinance at issue here and where courts have uniformly held that, even where such rights are implicated, government restrictions on such rights are subject to a forgiving reasonableness standard? Appellant answers: Yes Appellee answers: No.

II.

The Court of Claims dismissed Plaintiff’s statutory preemption claim and the Court of Appeals affirmed. Should this Court grant review where it is clear from the plain language of the statute that it does not preempt action by a public university, where this Court would have to re-write the language of the statute to conclude otherwise, and where interpreting the statute as Plaintiff proposes would render it unconstitutional under Article VIII, § 5 of the 1963 Michigan Constitution? Appellant answers: Yes. Appellee answers: No.

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INTRODUCTION

In this case, Appellant Joshua Wade (“Wade”) claims that the Board of Regents of the

University of Michigan (“the University”) is powerless to prevent him from carrying a gun onto

University property and into University buildings because the Second Amendment and the

doctrine of legislative preemption give him the right to do so. He is wrong, and he is not even

wrong in the sort of close or nuanced way that might render this an appropriate case for this

Court’s review. No, he is just obviously and uninterestingly wrong as a matter of clear and

settled law. His Application therefore fails to satisfy any of the bases for review set forth in MCR

7.305(B)(2), (3), or (5)(a), because it does not and cannot identify “an issue of significant public

interest,” “a legal principle of major significance,” or a “clearly erroneous” decision below that

has resulted in a “material injustice.”

Even a cursory review of Wade’s Complaint and Application, and the opinions of the

Court of Appeals and of the Court of Claims below, reveals the numerous flaws in his position.

He invites this Court to do the following:

(a) Conclude that the University of Michigan is not a school;

(b) Ignore entirely the second part of a two-part test that he admits applies in cases

raising Second Amendment claims;

(c) Cast aside the plain and unambiguous language of a Michigan statute;

(d) Rewrite that statute in violation of basic principles of statutory construction; and

(e) Disregard a Michigan constitutional doctrine that this Court has repeatedly endorsed

over the course of more than a century.

The University respectfully submits that this is an invitation this Court can, and should, swiftly

decline without further ado or proceedings.

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Nor, contrary to the suggestion in the Application, does this case involve a conflict

among Court of Appeals decisions that would provide a basis for review under MCR

7.305(B)(5)(b). The “conflict” that Wade describes in his Application simply does not exist and

rests entirely upon his own misreading of the lower court decisions. There may be disarray in his

understanding; but there is no disarray or disagreement in the jurisprudence of this state that

demands this Court’s attention and energies.

The University therefore respectfully requests that this Court decline Wade’s

Application.

MATERIAL FACTS AND PROCEEDINGS BELOW1

The Parties

In March of 2015, Joshua Wade achieved notoriety when he openly carried a pistol into

an Ann Arbor high school choir concert attended by students and their understandably frightened

families. UMSDB at 1. Wade now seeks to repeat that performance at the University of

Michigan, where he does not work, reside, or attend school.

The University of Michigan is widely acclaimed as one of the world’s leading

educational institutions.2 Under the Michigan Constitution, the Board of Regents of the

University of Michigan is a branch of the State government, “a constitutional corporation of

independent authority, which, within the scope of its functions, is coordinate with and equal to

1 Except where footnoted, the background information and data provided below were also provided to the Court of Claims in the University’s Brief in Support of Motion for Summary Disposition (“UMSDB”). Wade did not contest any of the facts or data recited in that brief. The University subsequently provided the same information to the Court of Appeals as part of the record of the case. Citations to this record are in the form “UMSDB at __.”

2 For example, one hundred of the University’s graduate programs have been ranked in the top ten by U.S. News & World Report. See Kim Broekhuisen, UM makes strong showing in U.S. News grad school rankings https://record.umich.edu/articles/u-m-makes-strong-showing-us-news-grad-school-rankings (March 11, 2014) (accessed July 24, 2017).

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that of the legislature.” Bd of Regents of the Univ of Michigan v Auditor General, 167 Mich 444,

450; 132 NW 1037 (1911). Indeed, under article VIII, § 5 of the 1963 Michigan Constitution, the

Regents hold plenary “authority over ‘the absolute management of the University.’” Federated

Publications v Bd of Trustees of Michigan State Univ, 460 Mich 75, 87; 594 NW2d 491 (1999).

Management of the University

Maintaining a safe environment on its property poses a daunting challenge for the

University. The University has campuses in Ann Arbor, Flint, and Dearborn, with 19 schools and

colleges in Ann Arbor. UMSDB at 1. Enrollment of undergraduate, graduate, and professional

students exceeds 40,000 persons. UMSDB at 1. The University provides housing to almost

10,000 undergraduate students in 18 residence halls and apartment buildings. Id. At its Ann

Arbor campus alone, the University employs almost 7,000 faculty and about 14,000 staff. Id.at 2.

The University’s Health System includes 3 hospitals and 40 outpatient locations with more than

120 clinics, resulting in 1.9 million visits and 45,000 hospital stays each year. Id.

Hundreds of thousands of visitors come to the University every year to attend athletic

competitions, concerts, performances, and other events, and to see the collections at the

University’s many museums. Id. The University’s visitors include numerous children, such as

those who reside at the institution while attending one of its 25 youth sport camps. Id. The

University has a Division of Public Safety and Security, which includes the University’s own

Police Department, Health System Security Services Department, and Housing Security and

Safety Services Department. Id.

Article X

In April of 2001, pursuant to its authority under the Michigan Constitution to manage the

University, protect the safety of the University’s students, faculty, staff, and hundreds of

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thousands of visitors each year, and ensure an open and supportive environment for learning, the

Regents adopted an ordinance prohibiting individuals from possessing firearms on University

property (“Article X”).3 Id. at 3.

The legislative history of Article X shows that the Regents adopted this measure based on

the recommendations of the University’s Campus Safety and Security Advisory Committee

(comprised of faculty, staff, and students), its Department of Public Safety, the administration of

its hospitals and health centers, its executive vice president and chief financial officer, and its

academic leadership—including the deans, the provost, and the chancellors of its Flint and

Dearborn campuses. Id. Thus, the University leaders charged with principal responsibility over

safety, security, health, academics, pedagogical environment, and University property (including

dormitories, classrooms, hospitals, clinics, other buildings, and open spaces) uniformly

supported adoption of Article X. Id.

The Regents adopted Article X for significant and understandable reasons. First, they did

so following changes in Michigan law making it much easier to secure a license to carry a

concealed weapon. Id. at 4. Second, they did so following a number of tragic school shootings,

including the June 25, 1992 murder of Dr. John Kemink, a prominent otolaryngologist at the

University who was shot dead by his patient in an examining room, a 1998 incident in which a

Wayne State University student shot and killed his advisor, the 1999 shootings at Columbine

High School, which left twelve students and one teacher dead and twenty-one other people

wounded, and a 2000 incident in which a University of Arkansas student shot and killed a faculty

3 An Ordinance to Regulate Parking and Traffic, and to Regulate the Use and Protection of the Buildings and Property of the University of Michigan, Article X, § 2. The ordinance also forbids the possession of other “dangerous weapons,” as defined, and includes a number of exceptions. Id. at § 4. A copy of Article X in its entirety was attached as Exhibit A to the University’s Brief in Support of Motion for Summary Disposition. For the convenience of this Court, a copy of Article X in its entirety is also attached to this brief as Exhibit A.

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member. Id. at 4. Nor did concerns about gun violence on the University’s property begin with

the Kemink shooting in 1992; to the contrary, in 1981 a senior at the University gunned down

two of his classmates at the University’s residential Bursley Hall.4 The Regents, based on the

overwhelming recommendation of the University’s academic and public safety leadership,

concluded that the institution needed to respond to these developments. Id. They did so by,

among other things, adopting Article X.

Proceedings Below

Thirteen years later, on September 4, 2014, Wade applied to the University’s Director of

Public Safety for a waiver of the ordinance’s terms that prohibit him from carrying a firearm on

University property. Complaint at ¶ 9. The next day he sought the same waiver from the

University’s Chief of Police. Id. at ¶ 11. On September 24, 2014, his request was denied. Id. at

¶ 12. Wade responded about nine months later by filing this lawsuit.

Wade’s four-page Complaint alleged that Article X violates the Second Amendment to

the Constitution of the United States and article I, § 6 of the Michigan Constitution of 1963

(Count I). He further claimed that Article X is preempted by MCL 123.1101, et seq., which

prohibits “local units of government” from establishing their own limitations on the purchase,

sale, or possession of firearms (Count II).

On July 23, 2015, the University filed its Motion for Summary Disposition and

supporting Brief, seeking dismissal of the Complaint under MCR 2.116(C)(8) on the basis that

Wade had failed to state a claim upon which relief could be granted. The University argued that

Wade’s Second Amendment claim failed because the Supreme Court, in District of Columbia v

4 See Bob Wojonowski, Murder at Bursley Hall: This Week in Ann Arbor History (April 19, 2011) https://annarborscene.wordpress.com/2011/04/19/murder-at-bursley-hall-this-week-in-ann-arbor-history/ (accessed August 7, 2017).

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Heller, 554 US 570; 128 S Ct 2783; 171 L Ed 2d 637 (2008), expressly found that there is no

Second Amendment right to possess a firearm in certain sensitive places, such as schools.

Because no such right exists, a school prohibition on firearms possession (like Article X) cannot

and does not violate the Second Amendment. Furthermore, the University argued that even if

Second Amendment rights were implicated here, Article X would easily pass constitutional

muster. Finally, the University argued that Article X comports with article I, § 6 of the Michigan

Constitution. See UMSDB at 5-10.

The University argued that Count II of the Complaint fared no better. The University

pointed out that the statute on which Plaintiff based his preemption argument does not—by its

express terms—apply to the University. Accordingly, the statute has no preemptive effect with

respect to Article X. The University further argued that if the statute did do so, then it would run

afoul of article VIII, § 5 of the Michigan Constitution. See UMSDB at 11-14.

Wade filed a response to the University’s motion and, on November 13, 2015, the Court

of Claims (through the Hon. Cynthia Stephens) issued its Opinion and Order (cited herein as

“CCO”). The Court of Claims granted the University’s motion, holding that Article X was

“presumptively lawful” under Heller and its progeny and that Wade’s preemption argument

“violates nearly every rule governing statutory construction.” CCO at 6. For this Court’s

convenience, the Opinion and Order of the Court of Claims is attached to this brief as Exhibit B.

On January 4, 2016, Wade appealed to the Michigan Court of Appeals. While the case

was awaiting oral argument, the Michigan Court of Appeals decided two other cases that

addressed related issues: Michigan Gun Owners, Inc v Ann Arbor Public Schools, 318 Mich App

338; 897 NW2d 768 (2016) and Michigan Open Carry Inc. v Clio School District, 318 Mich App

356; 897 NW2d 748 (2016). In both of those cases, the Court of Appeals rejected the same

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argument raised by Wade in Count II of his Complaint, i.e., that the Michigan legislature

completely preempted the field of firearms regulation by adopting MCL 123.1101 et seq. On

February 27, 2017, the University filed a notice of supplemental authority bringing these cases to

the attention of the panel assigned to this case. For this Court’s convenience, copies of those

decisions are attached to this brief as Exhibits C and D, respectively.

The Court of Appeals heard oral argument and, on June 6, 2017, issued its decision in

this case, a copy of which is attached as Exhibit E. The Court of Appeals (through Judges

Cavanagh and Servitto) rejected both of Wade’s claims and affirmed the decision below. The

Court of Appeals held that, because the University is a school, Second Amendment protections

do not extend to its property under Heller. Court of Appeals Opinion (“COAO”) at 6. The Court

further held that, under the plain language of MCL 123.1102, the Legislature did not intend to

completely preempt the field of firearm regulation. COAO at 10. With respect to the latter point,

the Court of Appeals largely followed the reasoning in the recently decided Ann Arbor Public

Schools case. COAO at 9.5 Judge Sawyer filed a dissenting opinion in which he argued that the

Legislature had completely preempted the field and noted that he would not reach Wade’s

Second Amendment claim.

This Application for Leave to Appeal followed.

ARGUMENT

I. Article X Does Not Violate the Second Amendment

In an effort to sustain his Second Amendment claim, Wade reads controlling Supreme

Court cases to say things they do not say—and would not say because those things are

5 In this connection, the Court of Appeals noted that, although Wade had argued on appeal that the University had somehow exceeded its state constitutional authority by adopting Article X, the claim actually advanced in his Complaint was that Article X was invalid because of legislative preemption. COAO at 8.

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nonsensical—and ignores an important part of the constitutional test that he admits applies here.

It is therefore little wonder that Wade cites no authority that supports his interpretation of those

Supreme Court cases. And it is little wonder that no judge who considered his Second

Amendment claim below found any merit in it. To the extent this Court elects to review those

decisions, it does so de novo because the University’s motion presented a question of law.

McDougall v Schanz, 461 Mich 15, 23; 597 NW2d 148 (1999).

The Second Amendment states that: “[a] well regulated militia, being necessary to the

security of a free state, the right of the people to keep and bear arms, shall not be infringed.” US

CONST, Am II. This provision protects an individual’s right to possess a firearm for traditionally

lawful purposes, including within the home. District of Columbia v Heller, 554 US 570, 608,

628-629, 635; 128 S Ct 2783; 171 L Ed 2d 637 (2008).6 Still, the Supreme Court unambiguously

declared in Heller:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Heller, 554 US at 626-627 (2008) (emphasis added). The Heller Court added in a footnote that it

“identif[ied] these presumptively lawful regulatory measures only as examples; our list does not

purport to be exhaustive.” Id. at n 26 (emphasis added). Two years later the Court took pains to

reiterate this point—and to reiterate that Heller was unambiguous in this respect:

6 It is also incorporated into the Fourteenth Amendment’s Due Process Clause and therefore enforceable against the states. McDonald v City of Chicago, 561 US 742, 748; 130 S Ct 3020; 177 L Ed 2d 894 (2010).

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We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here.

McDonald, 561 US at 786 (quoting Heller, 554 US at 626-627) (internal citations omitted)

(emphasis added). Heller and McDonald thus plainly establish that “laws forbidding the carrying

of firearms in sensitive places such as schools and government buildings,” like Article X, are

“presumptively lawful regulatory measures.” Heller, 554 US at 626-627 and n 26.

Courts across the country have read Heller to mean what it says: the Second Amendment

does not apply to regulations concerning “sensitive places.” See, e.g., GeorgiaCarry.Org, Inc v

US Army Corps of Engineers, 38 F Supp 3d 1365, 1373 (ND Ga, 2014) aff’d, 788 F3d 1318 (CA

11, 2015) (“[T]he restriction of firearm possession in certain [sensitive] locations did not burden

any pre-existing rights.”); United States v Marzzarella, 614 F3d 85, 91 (CA 3, 2010), cert.

denied, 562 US 1158; 131 S Ct 958; 178 L Ed 2d 790 (2011) (“[T]hese longstanding limitations

are exceptions to the right to bear arms.”); United States v Bena, 664 F3d 1180, 1183 (CA 8,

2011) (“It seems most likely that . . . the regulatory measures listed in Heller . . . do not infringe

on the Second Amendment right.”); Nat’l Rifle Ass’n of Am, Inc v Bureau of Alcohol, Tobacco,

Firearms, & Explosives, 700 F3d 185, 196-197 (CA 5, 2012) (A “presumptively lawful

regulatory measure” as set forth in Heller “would likely fall outside the ambit of the Second

Amendment.”); Heller v District of Columbia, 399 US App DC 314, 323; 670 F3d 1244 (2011)

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(Heller’s exceptions “are presumed not to burden conduct within the scope of the Second

Amendment.” (internal citations omitted)).7

After Heller, lower courts have conducted a two-step analysis to decide Second

Amendment claims. They first ask whether the challenged regulation reaches conduct that is

protected by the Second Amendment. If it does not—for example, because the regulation

concerns a “sensitive place” like a school or government building—then the analysis is over. If it

does, then courts assess the reasonableness of the regulation in light of the importance of the

governmental interest it advances. Wade concedes that this two-step analysis applies here. See

Application at x. His argument with respect to the first step reads Heller to say things that it does

not and that would lead to nonsensical results; he deals with the second step by ignoring it.

A. The Second Amendment Does Not Reach Sensitive Places Such as University Property

The courts below recognized that Heller makes short work of Plaintiff’s claim under the

Second Amendment because public educational institutions like the University are obviously

“schools.” See COAO 4-6; CCO at 4-5. Indeed, even as a matter of common sense and ordinary

English usage, it would come as a surprise to the students at the University of Michigan that they

are not going to “school” there.

Wade’s attempt to argue that the University is not a school led him into multiple

confusions below. Before the Court of Claims, he seemed to argue that there was no sense in

7 This issue has sometimes been joined in the context of prosecutions under the federal

Gun Free School Zones Act, where defendants have asserted a Second Amendment “right” to bear arms as a defense. Again, courts have acknowledged the clear language of Heller and have held that the Second Amendment simply does not apply on school property. See, e.g., United States v Lewis, No 2008-45, 2008 WL 5412013 (DVI, Dec 24, 2008) (refusing to dismiss an indictment under the Gun Free School Zones Act on Second Amendment grounds, citing the Heller sensitive places exception).

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which the University was a school. See Plaintiff’s Response to Defendant’s Motion for Summary

Disposition at 7. He apparently thought better of this on appeal, and so shifted position to argue

that the Heller exceptions only applied to “academics” and only to buildings. See Wade Court of

Appeals Brief at 5. Of course, Wade’s focus on academics and buildings has nothing to do with

the actual language of Heller, which refers simply to “schools.” Nor, for that matter, do Wade’s

distinctions make any sense—for example, under this argument a government regulation could

prohibit the possession of a firearm in a classroom (because “academics” is happening there) but

not in a school cafeteria (because “academics” is not happening there), and could prohibit the

possession of a firearm in a parking structure (because it is a building) but not in a parking lot

(because it is not a building). Furthermore, the distinction ignores the reality that “academics”—

that is, learning and teaching—happens in many places other than classrooms (such as

dormitories) and other than in buildings (such as on a quadrangle or in an open-air performance

venue). In sum, Wade reads Heller to say something that it does not—and could not rationally—

say.

Wade’s current attempt in his Application to explain why the University is not a school

leads him into still deeper levels of bewilderment. A University cannot be a “school,” Wade

argues, because if it were then it would be lawful for a citizen to possess a firearm on one side of

the street but not the other. Application at 2. But, of course, that is true of all schools, not just

universities. If, for example, an elementary school has a “no firearms” policy then it would be

impermissible to possess a gun there even though it would be allowed across the street or next

door. Nothing in Heller suggests that a school stops being a school simply because it is

permissible to have a firearm on the other side of the street; nor would it have made any sense

for the Court to have endorsed such a principle.

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In light of all of these failings, it is unremarkable that Wade has been unable to cite a

single case that supports any of the various arguments that he has made below, or that he makes

here, about why the University is not a school. To the contrary, courts in other jurisdictions have

found universities to be “sensitive places” within the meaning of Heller. See, e.g., DiGiacinto v

Rector and Visitors of George Mason Univ, 281 Va 127, 134-137; 704 SE2d 365 (2011) (holding

that university buildings are “sensitive places as contemplated by Heller”) and Florida Carry,

Inc v University of Florida, 180 So 3d 137 (Fl Ct App, 2015) (citing DiGiacinto with approval).8

It should also be noted in passing that the University’s structures are “government buildings”—

another of the “sensitive places” Heller expressly recognized as traditionally and presumptively

subject to firearms prohibitions. Heller, 554 US at 626-627.9

As the courts below correctly held, because the University is a “sensitive place” under

Heller, the Second Amendment does not reach its property and Article X is therefore

constitutional. See COAO at 6; CCO at 5. Again, that reasoning is fully consistent with rulings in

other jurisdictions, where courts have recognized that the Second Amendment analysis comes to

a halt if the regulation in question concerns a “sensitive place.” See cases cited supra at 13. In

this respect, consider also United States v Greeno, 679 F3d 510, 518 (CA 6, 2012). In that case,

the court held that the foundational question is “whether the challenged law burdens conduct that

falls within the scope of the Second Amendment right, as historically understood.” Id. The court

8 DiGiacinto discussed a number of facts about the GMU campus that supported its

decision in this respect. Id. at 132-135. The same facts—the large number of students and employees, elementary and high school visitors, etc.—apply with respect to the University, as discussed in the Introduction, supra.

9 Furthermore, Michigan courts have recognized that a public university’s property extends beyond its buildings and classrooms. See, e.g., Michigan United Conservation Clubs v Bd of Trustees of Michigan State University, 172 Mich App 189 (1988) (upholding MSU restriction on fishing in the portion of the Red Cedar River that runs through university property).

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went on: “as the Seventh Circuit recognized, ‘Heller suggests that some federal gun laws will

survive Second Amendment challenge because they regulate activity falling outside the terms of

the right as publicly understood when the Bill of Rights was ratified.’” Id. (citing Ezell v

Chicago, 651 F3d 684, 702 (CA 7, 2011) (emphasis added).10

In sum, the courts have uniformly held—and Wade concedes—that if the regulation in

question concerns a “sensitive place” then the court’s analysis is over. As a school, the

University qualifies as a sensitive place under Heller. That puts a swift end to Wade’s Second

Amendment claim.

B. Even if the Second Amendment Applies, Article X Is Constitutional

For the reasons outlined in the last section, the Second Amendment does not apply to

Article X. If it did, though, Article X would still be valid. This is made clear by an argument that

the University raised below but that the lower courts evidently concluded they did not need to

reach. The University reiterates it here in the event that this Court wishes to consider it.

Where a firearms restriction does implicate Second Amendment rights, courts review the

law under the intermediate scrutiny standard. See, e.g., GeorgiaCarry.Org, Inc v US Army Corps

of Engineers, 38 F Supp 3d 1365, 1376 (ND Ga, 2014) aff’d, 788 F3d 1318 (CA 11, 2015) (“the

intermediate scrutiny standard applies” in the second prong of the Second Amendment

analysis).11 Intermediate scrutiny “requires a law to be substantially related to an important

governmental interest,” GeorgiaCarry.Org, Inc., 38 F Supp 3d at 1376, or, in some formulations,

10 In Ezell, the Seventh Circuit drew an analogy to the First Amendment and concluded

that “some categories of speech are unprotected as a matter of history and legal tradition. So too with the Second Amendment. Heller suggests that some federal gun laws will survive Second Amendment challenge because they regulate activity falling outside the terms of the right.” Id. (emphasis added).

11 See, e.g., United States v Laurent, 861 F Supp 2d 71, 103 (EDNY, 2011) (“Courts of appeals have adopted intermediate scrutiny to evaluate restrictions on gun possession by particular people or in particular places.”) (collecting cases).

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to be “reasonably adapted to a substantial governmental interest.” United States v Masciandaro,

638 F3d 458, 469-473 (CA 4, 2011). In his Application, Wade concedes that the second step in

the Second Amendment analysis applies a reasonableness standard. See Application at x. Oddly,

Wade does not appear to address this step in the analysis anywhere in his Application.

Article X easily satisfies the intermediate scrutiny standard. It serves a number of

University interests that are substantial—indeed, critical—including the institution’s desire to

maintain a safe environment for thousands of students, faculty, staff, and hundreds of thousands

of visitors. Numerous courts have recognized that a university has a substantial interest in doing

so.12 Further, article VIII, § 5 of the Michigan Constitution recognizes that the University has a

vital interest in managing and controlling its property, which logically includes doing so in a

manner that helps keep everyone on it safe. In the University’s considered judgment, the

introduction of firearms onto its property would raise grave safety concerns.13

Furthermore, the University has an important interest in fostering an environment in

which the members of its community can freely and openly exchange ideas—even controversial,

12 See, e.g., Healy v James, 408 US 169, 184; 92 S Ct 2338; 33 L Ed 2d 266 (1972) (“[A] college has a legitimate interest in preventing disruption on the campus.”); DiGiacinto, 281 Va at 132 (finding a “compelling State interest” in the “safety concerns on a public university campus”); Bloedorn v Grube, No 609CV055, 2009 WL 4110204, at *7-8 (SD Ga, Nov 24, 2009) aff’d, 631 F3d 1218 (CA 11, 2011) (“Maintaining safety, efficiency, and order on campus are crucial to the furtherance of the University’s mission of providing a proper educational environment . . . . [T]he University has an interest in maintaining campus safety in order to support its educational mission.”); Rock for Life-UMBC v Hrabowski, 643 F Supp 2d 729, 747 (D Md, 2009) aff’d, 411 F Appx 541 (CA 4, 2010) (“Safety and security are legitimate interests of a university.”).

13 In a recent article, a Virginia public college safety officer details eleven reasons why administrators “should have significant concerns” about allowing firearms on campus—even when carried by trained holders of concealed pistol licenses. See Lt. John M. Weinstein, “Should We Allow Armed CCP Holders on Campus? 11 Reservations of a ‘Gun Guy,’” Campus Safety (November/December 2015) at 12-14. The article can be found online here: <http://www.campussafetymagazine.com/article/should_we_allow_armed_ccp_holders_on_campus_11_reservations_of_a_gun_guy> (accessed February 1, 2016).

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unsettling, and emotionally provocative ones. The Supreme Court has recognized a university’s

interest in cultivating such an open “marketplace of ideas” as one of constitutional magnitude

under the First Amendment. See, e.g., Keyishian v Bd of Regents of the Univ of the State of New

York, 385 US 589, 603; 87 S Ct 675; 17 L Ed 2d 629 (1967) (noting that a university’s

“academic freedom” is a “special concern of the First Amendment” and that “[t]he classroom is

peculiarly the ‘marketplace of ideas’”). Article X reflects the University’s judgment that the

presence of firearms creates risks of fear, intimidation, and self-censorship that are wholly

inconsistent with this important interest.14

Universities that seek to cultivate an environment of free and open debate currently face a

particularly serious challenge. On a number of recent occasions, protests over a particular idea or

a particular speaker have grown violent.15 Surely, a university can reasonably conclude that an

ordinance that prohibits firearms on its property reduces the likelihood that a protest will turn

from disruptive to tragic.

Furthermore, the University has concerns apart from its interest in fostering an open

“marketplace of ideas.” The University’s properties include numerous settings where the

presence of firearms would raise obvious special safety concerns. These include, by way of

example, its hospitals, counseling offices, mental health clinics, legal clinics, laboratories, and

child care centers.

14 Indeed, guns are excluded from courtrooms for many of the same reasons. Controversial, unsettling, and emotionally provocative things are also said in court. And concerns that judges, lawyers, jurors, and witnesses would be intimidated—and their conduct affected—by the presence of firearms are inarguably legitimate.

15 See, e.g., Katie Reilly, “How Violent Protests at Middlebury and Berkeley Became a Warning for Other Schools,” Time (March 13, 2017), http://time.com/4697066/campus-protests-controversial-speakers (accessed August 7, 2017).

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A substantial and reasonable—indeed, obvious—relationship exists between these

interests and Article X. Certainly, the University acted reasonably in concluding that Article X

would promote safety.16 And, just as certainly, the University acted reasonably in concluding

that Article X would help cultivate an academic, athletics, and patient care environment that is

welcoming, open, expressive, experimental, and free from intimidation. Wade may disagree with

those judgments, but they are the University’s—not his—to make, and courts traditionally defer

to institutional views on matters of pedagogy, academic atmosphere, and educational

environment.17

II. Article X Does Not Violate the Michigan Constitution

Wade claims that he has preserved his claim under Mich Const 1963 Art I, § 6, which

addresses the rights of Michigan citizens to bear arms. The University disagrees, noting that

Wade made no mention of this provision in the questions he presented to the Michigan Court of

Appeals and the Court of Appeals deemed the argument “abandoned.” See COAO at 4 n 2. In

any event, his Michigan constitutional claim fares no better than his federal claim.

16 A number of courts have acknowledged the connection between promoting public safety and regulating the possession of weapons. See, e.g., Kachalsky v Co of Westchester, 701 F3d 81, 98 (CA 2, 2012) (“The connection between promoting public safety and regulating handgun possession in public is not just a conclusion reached by New York. It has served as the basis for other states’ handgun regulations, as recognized by various lower courts.”) (collecting cases); Nat’l Rifle Ass’n of Am, Inc v McCraw, 719 F3d 338, 348 (CA 5, 2013) cert. denied, 134 S Ct 1365, 188 L Ed 2d 297 (2014) (“Texas’s handgun carriage scheme is substantially related to this important government interest in public safety through crime prevention.”).

17 See, e.g., Grutter v Bollinger, 539 US 306, 328-329; 123 S Ct 2325; 156 L Ed 2d 304 (2003) (“The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”) (collecting cases); see also Smith v Tarrant Co Coll Dist, 694 F Supp 2d 610, 627 (ND Tex, 2010) (“[T]he federal judiciary has never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities.” (quoting Widmar v Vincent, 454 US 263, 268 n 5; 102 S Ct 269; 70 L Ed 2d 440 (1981))).

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Article I, § 6 of the 1963 Michigan Constitution provides that “[e]very person has a right

to keep and bear arms for the defense of himself and the state.” The cases uniformly hold that

this provision is subject to reasonable regulation by State government, such as reasonable

exercises of the police power by the legislature.18 For the reasons stated above, Article X easily

passes any such reasonableness test.19 His state constitutional claim therefore fails as well.20

18 See, e.g., People v Brown, 253 Mich 537, 540; 235 NW 246 (1931) (“[R]egardless of the basis of the right to bear arms, the state, nevertheless, has the police power to reasonably regulate it.”); Michigan Coalition For Responsible Gun Owners v City of Ferndale, 256 Mich App 401, 405-406; 662 NW2d 864 (2003) (“[T]he constitutionally guaranteed right to bear arms, Const. 1963, art 1, § 6, is not absolute, but ‘may yield to a legislative enactment that represents a reasonable regulation by the state in the exercise of its police power to protect the health, safety, and welfare of Michigan citizens.’” (quoting Kampf v Kampf, 237 Mich App 377, 383, n 3, 603 NW2d 295 (1999))); see also 2010 Mich Op Att’y Gen No 7254 (Oct. 26, 2010) (“Consistent with McDonald, the Michigan Supreme Court construed former Const 1908, art 2, § 5, which created a right to bear arms for specific purposes, as being subject to the reasonable exercise of the State’s police power.” (citing Brown, 253 Mich at 539-541)).

19 One Michigan decision suggests an analytical framework for this inquiry that mirrors the two-prong analysis utilized for Second Amendment issues, as set forth in Section I, supra. People v Swint, 225 Mich App 353, 359; 572 NW2d 666 (1997) (“[W]e must determine whether the case at bar involves an infringement on a constitutionally protected interest . . . . Only if we were to conclude that the statute infringes on an interest in bearing arms that is protected by the state constitution would we have to decide what level of justification the state must proffer to support such an infringement and whether the state has satisfied that burden in this case.”). The University therefore incorporates its analysis in Section I to support its assertion of Article X’s constitutionality under the Michigan Constitution.

20 Plaintiff’s reliance on article I, § 6 also errs because it disregards the broader constitutional structure. There is no question that section 6 is subject to restrictions by the legislature under its constitutional authority. Michigan Coalition For Responsible Gun Owners, 256 Mich App at 405-406. Similarly, the provision is subject to restrictions by the judiciary under its constitutional authority. See Mich. Sup. Ct. Admin. Order 2001-1 (“The issue of courthouse safety is important not only to the judicial employees of this state, but also to all those who are summoned to Michigan Courtrooms or who visit for professional or personal reasons . . . . It is ordered that weapons are not permitted in any courtroom, office or other space used for official court business . . . .”). It is therefore also subject to restrictions by the University under its constitutional authority as “a constitutional corporation of independent authority, which, within the scope of its functions, is coordinate with and equal to that of the Legislature.” See Bd of Regents of the Univ of Michigan v Auditor General, 167 Mich 444, 450; 132 NW 1037 (1911).

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III. The University’s Ordinance Is Not Preempted.

The second count of Plaintiff’s complaint challenged Article X as inconsistent with a

Michigan statute that prohibits “local units of government”—a legislatively defined term—from

establishing their own limitations on the purchase, sale, or possession of firearms, citing MCL §

123.1101 et seq. As the courts below recognized, by its plain language the statute on which

Plaintiff relies does not apply to the University of Michigan and so therefore does not purport to

preempt a regulation like Article X.

A. The Statute Does Not Apply to the University.

MCL § 123.1102 provides that a “local unit of government” shall not “enact or enforce

any ordinance or regulation pertaining to, or regulate in any other manner the . . . possession of

pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or

other firearms, except as otherwise provided by federal law or a law of this state.” MCL §

123.1101 specifically defines “local unit of government” to mean a “city, village, township, or

county.” The University is none of these things. To the contrary, the University is a

constitutional corporation that derives its existence, autonomy, and authority from article VIII, §

5 of the 1963 Michigan Constitution.21 As a result of this political structure, “the board of

regents is made the highest form of juristic person known to the law, a constitutional corporation

of independent authority, which, within the scope of its functions, is coordinate with and equal to

that of the legislature.”22 MCL § 123.1101 does not include the University or any other

constitutional corporation within its terms and so does not apply to the University.

21 The Michigan Constitutions of 1850 and 1908 contained similar provisions. See Bd of Regents of the Univ of Michigan v Auditor General, 167 Mich 444, 450; 132 NW 1037 (1911).

22 Id.

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In addition, MCL § 123.1102 expressly states that a local unit of government may adopt

firearms restrictions to the extent “provided by federal law or a law of this state.” Thus, even if

the University were a local unit of government—which it is not—it would have the authority to

enact such restrictions under another “law of this state”: article VIII, § 5 of the Michigan

Constitution, which confers upon the University the authority to control and manage its property.

The Court of Claims summed it up well: “The plain language of [the statute]

unequivocally defines the scope of its reach and it does not evidence intent by the Legislature to

completely occupy the field of firearms regulation.” CCO at 5. The Court of Appeals reached the

same conclusion. And, in the Ann Arbor Schools and Clio cases, the Court of Appeals similarly

read the statute to mean what it says—that it applies to cities, villages, townships, and counties.

Wade raises several arguments in an effort to resist this logically irresistible conclusion.

First, he contends that there is a split in authority because the Court of Appeals ruled in Michigan

Coalition of Responsible Gun Owners v City of Ferndale, 256 Mich App 401; 662 NW2d 864

(2003), that the Michigan Legislature has completely occupied the field of firearms regulation in

the state of Michigan. But Wade misreads and mischaracterizes that case. That case concerned a

firearms regulation adopted by a municipality—which, unlike the University, does fall within the

statutory definition of a “local unit of government.” The Ferndale decision, which simply relies

on the plain language of the statute, is consistent with the other decisions from the Court of

Appeals.

Second, Wade cites Capital Area District Library v Michigan Open Carry Inc, 298 Mich

App 220; 826 NW2d 736 (2012). As the Court of Appeals recognized, however, that case has no

application here. That case held that a district library could not adopt its own firearm regulation,

a conclusion that followed logically because the library was created by an agreement between a

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county (which the statute specifically includes in its definition of “local unit of government”) and

a municipality (which the statute also specifically includes in its definition of “local unit of

government”). It stands to reason that where neither “local unit of government” had the authority

to regulate firearms they could not acquire that authority by acting together. That case has

nothing to do with this one or with constitutionally created state universities.

Third, Wade relies on People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), and the

test it articulates for determining when the legislature has preempted a field. This case, too, is

wholly inapposite. Llewellyn comes into play where (1) there is a local regulation that conflicts

with a state statutory scheme or (2) the state statutory scheme occupies the field of regulation

that the lower-level government entity seeks to enter. Llewellyn itself provides a case in point:

there, a municipality adopted an obscenity ordinance that was inconsistent with an elaborate state

statutory scheme in multiple ways: it established its own definition and test for obscenity; it

modified the state standards for a prima facie case; and it even changed the punishment to be

imposed in the event of a conviction. Although the Legislature did not expressly state the breadth

of its limitation on local regulation, this Court found the field preempted.

In this case, however, the Llewellyn analysis is not even triggered because neither of the

two predicates is satisfied. Article X does not conflict with the state statutory scheme cited by

Wade. That legislation prohibits only certain defined “local units of government” from adopting

firearms regulations. The University does not fall within that definition, so no conflict between

laws exists.

Similarly, Article X does not enter a field from which the Legislature has excluded the

University from acting. To the contrary, MCL 123.1102 provides an explicit declaration of its

reach, and its definition of “local units of government” does not include public universities.

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Indeed, to find preemption this court would have to find that the Legislature meant something

other than what it expressly and specifically said—a violation of fundamental principles of

statutory interpretation that this Court has repeatedly embraced.23

As the Court of Claims noted, “[P]laintiff’s analysis violates nearly every rule governing

statutory interpretation,” CCO at 6, and this is plainly true. Most importantly, as this Court has

declared: “[t]he first step when interpreting a statute is to examine its plain language” and “[i]f

the statutory language is unambiguous, no further judicial construction is required or permitted.”

People v McKinley, 496 Mich 410, 415; 852 NW2d 770 (2014). In this case, the plain language

of MCL 123.1102 makes clear that the statute applies only to a “local unit of government” and

MCL 123.1101 specifically defines “local unit of government” to mean a “city, village, or

county.” The plain language here does not encompass public universities and, indeed, the entire

statutory scheme does not include a single word indicating that it applies to them. Wade’s failed

effort to make it do so is not statutory construction—it is statutory reinvention; and controlling

precedent from this Court forbids it.

Wade’s preemption argument ignores the plain language of a statute and inserts words

into the statute that the Legislature did not. This Court does not need to grant review in order to

remind Wade of the clear canons of statutory interpretation.

B. If the Statute Did Apply to the University it Would Be Invalid

As noted above, by its express terms MCL § 123.1101 does not apply to the University.

If it did, however, then it would run afoul of Article VIII, § 5 of the Michigan Constitution.

Reading the statute as inapplicable to the University—which it clearly is—therefore also saves it

23 It should be noted that the University does not concede that it is a “lower level government entity” for these purposes, given the constitutional authority vested in the Regents to manage the institution’s property. This point is more fully developed in the next section.

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from a constitutional infirmity. See In re Rood, 483 Mich 73, 121; 763 NW2d 587 (2009)

(observing that courts have “a duty to construe a statute as constitutional unless its

unconstitutionality is clearly apparent” (internal quotation marks omitted)). The plain language

of the statute invites no constitutional dilemmas; Wade nevertheless wishes to introduce one.

It has been settled, for more than 150 years, that as a matter of state constitutional law the

University has the authority to manage and control its property. The Michigan Constitution of

1850 incorporated article XIII, § 8, which broadly provided that “[t]he board of regents shall

have the general supervision of the university and control of all expenditures from the university

interest fund.” Cases decided under this constitutional provision recognized the expansive

authority it vested in the Regents. See, e.g., People ex rel Drake v Regents of the Univ of

Michigan, 4 Mich 98, 104 (1856) (“To their judgment and discretion as a body is committed the

supervision of the financial and all other interests of an institution in which all the people of this

state have a very great interest.”); Sterling v Regents of the Univ of Michigan, 110 Mich 369,

382; 68 NW 253 (1896) (“Under the Constitution, the State cannot control the action of the

regents.”).

The 1908 Constitution incorporated a very similar provision, except that it also included

the Board of Trustees of Michigan State University. Mich Const 1908, art 11, §§ 7, 8. This Court

interpreted this provision equally broadly. See, e.g., Bd of Regents of the Univ of Michigan v

Auditor General, supra; State Bd of Agriculture v Auditor General, 226 Mich 417, 423-424; 197

NW 160 (1924) (“The framers of the Constitution of 1850 wisely [placed the University’s]

exclusive management in the hands of a constitutional board elected by the people.”).

This principle of expansive university autonomy and authority carried over into the

Michigan Constitution of 1963, which states that “[t]he Regents of the University of Michigan

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. . . shall have general supervision of its institution and the control and direction of all

expenditures from the institution’s funds.” Mich Const 1963 art 8, § 5. This Court has interpreted

this provision—like the virtually identical earlier versions—as giving the University expansive

authority over its affairs and property. See, e.g., Federated Publications v Bd of Trustees of

Michigan State Univ, 460 Mich 75, 87; 594 NW 2d 491 (1999) (holding that “[t]he constitution

grants the governing boards authority over the absolute management of the University, and the

exclusive control of all funds received for its use” (quotation marks and citations omitted)).

If, as Plaintiff argues, MCL § 123.1101 did attempt to preempt the University from

adopting Article X, which it does not, then it would plainly run afoul of article VIII, § 5. The

issue of firearm possession on University property goes directly to the day-to-day operations of

the institution. It implicates the University’s judgments regarding safety, housing, and patient

care and how best to foster an open and welcoming educational environment and health system.

And, of course, it directly concerns the control and management of University property.24

24 Plaintiff’s Complaint cites Regents of the University of Michigan v Michigan Employment Relations Commission, 389 Mich 96; 204 NW2d 218 (1973) (“the MERC case”) to assert that Article VIII, § 5 may not “thwart the clearly established public policy of the people of Michigan.” (Compl. ¶ 22). The MERC case is inapposite here. First, for the reasons discussed above, there is no conflict between the articulated legislative policy of MCL § 123.1101 et seq. and Article X. As noted, the University is not a “local unit of government.” Thus, nothing in Article X “thwarts” the public policy expressed in the statute. Second, if there were some tension between MCL § 123.1101 et seq. and Article X, the MERC case does not stand for the proposition that Article X simply vaporizes. To the contrary, in the MERC case the court recognized that the legislature had the general constitutional authority to set policy about the resolution of labor disputes (so the University was subject to the Public Employees Relations Act) but also recognized that the University’s unique constitutional status would affect the scope of bargaining. The court held that those conflicts would need to be addressed on a case-by-case basis. It did not hold that legislative action in a field disempowered the University from exercising its constitutionally conferred authority and, indeed, any such holding would be inconsistent with Federated.

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CONCLUSION

Review by this Court is a precious and limited resource. The University respectfully

suggests that it is much better expended by doing things other than considering whether a

University is a school (it is), whether regulating firearms on school property is a rational thing to

do (it is), whether this Court should ignore the plain language of a statute and insert words into it

that the Legislature did not (it shouldn’t), and whether this Court should ignore a principle of

state constitutional law that has existed and been reaffirmed for more than a century (it

shouldn’t). This Court has important work to do. This meritless case is no part of it.

The University respectfully asks that the Application be declined.

Respectfully Submitted,

HONIGMAN MILLER SCHWARTZ AND COHN LLP By: _/s/Leonard M. Niehoff

Leonard M. Niehoff (P36695) John D. Pirich (P23204) Andrew Pauwels (P79167) 315 East Eisenhower Parkway, Suite 100 Ann Arbor, MI 48108 (734) 418-4246 lniehoff@honigman.com jpirich@honigman.com __________________

Timothy G. Lynch (P77385) Vice President and General Counsel University of Michigan 5010 Fleming Administration Building 503 Thompson Street Ann Arbor, MI 48109 (734) 764-0305

Attorneys for Appellee

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CERTIFICATE OF SERVICE

I hereby certify that on August 11, 2017, I caused the foregoing to be electronically filed

with the Clerk of the Court using the TrueFiling system, which will send notification of such

filing to all counsel of record.

Dated: August 11, 2017

Respectfully Submitted, HONIGMAN MILLER SCHWARTZ AND COHN LLP By: _/s/Leonard M. Niehoff Leonard M. Niehoff (P36695) John D. Pirich (P23204) 315 East Eisenhower Parkway, Suite 100 Ann Arbor, MI 48108 (734) 418-4246 lniehoff@honigman.com Attorneys for Appellee

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EXHIBIT A

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An Ordinance to Regulate

Parking and Traffic and to

Regulate the Use and Protection of the

Buildings and Property of the

Regents of the University of Michigan

Adopted January 1995 Revised April 2001

Maintained by the Office of the Vice President and Secrett11}' of the University of Michigtm

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Aliicle I: Geographic Scope Section 1: Geographic Scope of Ordinance

Article II: Traffic and Parking Section I. Definitions Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section l 0. Section 11. Section 12. Section 13. Section 14. Section 15. Section 16. Section 17. Section 18. Section 19. Section 20. Section 21. Section 22. Section 23. Section 24. Section 25. Section 26.

Parking Areas University Parking Permits Rates General Prohibitions Obstructing Drives Parking Spaces Payment of Charges for Nonmetered Parking Payment of Charges for Metered Parking. Prima Facie Evidence - Parking Violations Following, Overtaking and Passing Turning Movements Traffic Signals and Stops Speed Regulations Parking, Standing, and Starting Miscellaneous Rules. Equipment Authorized Emergency Vehicles Accidents Motorcycles and Motor-driven Cycles Pedestrians Crossing Streets Animal-drawn Vehicles Parades and Competitive Events Obey Police Directions Responsibility for Minor. Traffic Control Orders

Section 27. Abandonment and Impounding of Vehicles Section 28. Vehicular Noise Control Section 29. Handicapped Parking Section 30. Bicyclists Section 31. Coverage of Vehicles and Bicycles

Aliicle III: Littering Section 1. Littering Prohibited Section 2. Placing Commercial Handbills on Vehicles Section 3. Violation Penalty.

Aliicle IV: Arboretum Section l. Section 2. Section 3. Section 4.

Area Driving and Parking Vehicles Injury to Property Alcohol

Section 5. Rules and Regulations Section 6. Hours Section 7. Violation Penalty

Article V: Alcohol Possession and Consumption Section 1. Athletic Arenas and Stadiums Section 2. University Grounds

1 1 l l 2 3 3 4 4 4 4 4 5 5 8 9

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Section 3. Violation Penalty Article VI: Conduct at Athletic Contests or Exhibitions

Section 1. Objects or Projectiles Section 2. Unlawful Entry Section 3. Violation Penalty

Article VII: Unauthorized Entry Section 1. Entry Section 2. Violation Penalty

Aliicle VIII: Skateboards, Roller Skates, and Roller Blades Section 1. Operation Section 2. Violation Penalty

Article IX: Sales and Solicitations Section 1. Buildings Section 2. University Grounds Section 3. Violation Penalty

Article X: Weapons Section 1. Scope of Article X Section 2. Possession of Firearms, Dangerous Weapons and Knives Section 3. Discharge or Use of Fiream1s, Dangerous Weapons and Knives Section 4. Exceptions Section 5. Violation Penalty

Aliicle XI: University of Michigan Identification Cards and Parking Penni ts Section 1. Possession or Display Section 2. Violation Penalty

Article XII: Disorderly Conduct Section 1. Prohibitions Section 2. Violation Penalties

Article Xlll: Noise Control/ Non-Vehicular Noise Section 1. Applicability Section 2. Definitions Section 3. General Prohibitions Section 4. Specific Prohibitions Section 5. Maximum Pennissible Sound Levels Section 6. Limited Exemptions Section 7. General Exemptions Section 8. Temporary Exemptions Section 9. Liability of Owner, Lessee or Occupant Section 10. Violation Penalty

A1iicle XIV: Animals Section 1. Prohibitions Section 2. Violation Penalty

Article XV: Penalties and Enforcement Section 1. Penalties for Violations of Ordinance Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8.

Enforcement Other Applicable Laws Rules and Regulations Separability Posting North Campus Signs Effective Date

43 43 43 43 44 44 44 44 44 44 44 44 44 45 45 45 45 45 45 46 46 46 46 47 47 47 47 48 48 48 48 48 49 49 50 51 51 52 52 52 52 52 52 55 56 56 56 56 56 56

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An Ordinance to Regulate Parking and Traffic and to Regulate the Use and Protection of the Buidlings and Property of

the Regents of the University of Michigan

WHEREAS, Article VIIl, Section 5 of the Michigan Constitution of 1963 provides that The Regents of The University of Michigan and their successors in office shall constitute a body corporate and vests therein the general supervision of said University; and

WHEREAS, Section 5 of Public Act 151 of 1851, as amended (Michigan Compiled Laws Annotated, Section 390.5), provides that the said Regents shall have power to enact ordinances, by-laws, and regulations for the government of said University; and

WHEREAS, Section 3 of Public Act 151 of 1851, as amended (Michigan Compiled Laws Annotated, Section 390.3 ), provides that the government of the University is vested in said Regents; and

WHEREAS, Section 1 of Public Act 80 of 1905, as amended (Michigan Compiled Laws Annotated, Section 19 .141 ), provides that the said Regents shall have authority to make and prescribe rules and regulations for the care, preservation, and protection of buildings and property dedicated and appropriated to the public use, over which the said Regents have jurisdiction or power of control and the conduct of those coming upon the property thereof, which may be necessary for the maintenance of good order and the protection of said state prope1iy, and further provides that the said Regents shall have authority to enforce such rules and regulations; and

WHEREAS, Section 1 of Public Act 291 of 1967 (Michigan Compiled Laws Annotated, Section 390.891 ), authorizes said Regents to enact parking, traffic, and pedestrian ordinances for the government and control of its campuses, and to provide fines for violations of such ordinances; and Section 3 of that Act permits said Regents to establish a Parking Violations Bureau as an exclusive agency to accept admissions of responsibility in cases of civil infraction violations of any parking ordinance and to collect and retain fines and costs as prescribed in the ordinance for such violations; and

WHEREAS, pursuant to the above-designated authority, and in discharge of the responsibility imposed thereby, The Regents of The University of Michigan deem it necessary to adopt an ordinance and rules and regulations for the care, preservation, protection, and government of University property; for the conduct of persons coming upon said property; for the regulation of the driving and parking of motor vehicles, vehicles and bicycles upon said property; for the removal and impoundment of motor vehicles, vehicles and bicycles abandoned thereon; for the maintenance of good order; and for the promotion of public health, safety, and general welfare in and upon said property;

NOW, THEREFORE, THE REGENTS OF THE UNIVERSITY OF MICHIGAN HEREBY ORDAIN AS FOLLOWS:

Regents' Ordinance - University of Michigan

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must be promptly exhibited to a requesting University representative. The appropriate Dean, Director, Department Head or Building Director may either uniformly prohibit such sales and solicitations or uniformly regulate the time, place and manner of such in order to provide for the maintenance of good order and the protection of University property.

Section 2. University Grounds

Except as otherwise provided in the Bylaws of the Board of Regents, sales and solicitations of sales of items and solicitations of contributions on University grounds may take place only with the prior written permission of the Executive Vice President and Chief Financial Officer or the Executive Vice President's written designee, which written permission must be promptly exhibited to a requesting University representative. The Executive Vice President and Chief Financial Officer or the Executive Vice President's written designee may either uniformly prohibit such sales and solicitations or uniformly regulate the time, place and manner of such in order to provide for the maintenance of good order and the protection of University property.

Section 3. Violation Penalty

A violation of this Article IX shall constitute a civil infraction and shall be punishable by a fine ofnot more than fifty dollars ($50.00).

Article X: Weapons

Section 1. Scope of Article X

Article X applies to all prope1iy owned, leased or otherwise controlled by the Regents of the University ofMichigan and applies regardless of whether the Individual has a concealed weapons permit or is otherwise authorized by law to possess, discharge, or use any device referenced below.

Section 2. Possession of Firearms, Dangerous Weapons and Knives

Except as otherwise provided in Section 4, no person shall, while on any property owned, leased, or otherwise controlled by the Regents of the University of Michigan:

( 1) possess any firearm or any other dangerous weapon as defined in or interpreted under Michigan law or

(2) wear on his or her person or cany in his or her clothing any knife, sword or machete having a blade longer than four ( 4) inches, or, in the case of a knife with a mechanism to lock the blade in place when open, longer than three (3) inches.

Section 3. Discharge or Use of Firearms, Dangerous Weapons and Knives

Except as otherwise provided in Section 4, no person shall discharge or otherwise use any device listed in the preceding section on any property owned, leased, or otherwise controlled by the Regents of the University of Michigan.

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Section 4. Exceptions

(1) Except to the extent regulated under Subparagraph (2), the prohibitions in this Article X do not apply:

(a) to University employees who are authorized to possess and/or use such a device pursuant to Standard Practice Guide 201.94;

(b) to non-University law enforcement officers of legally established law enforcement agencies or to other non-University employees who, in either situation, are authorized by their employer to possess or use such a device during the time the employee is engaged In work requiring such a device;

( c) when someone possess or uses such a device as part of a military or similar uniform or costume In connection with a public ceremony or parade or theatrical performance;

(d) when someone possesses or uses such a device in connection with a regularly scheduled educational, recreational or training program authorized by the University;

(e) when someone possess or uses such a device for recreational hunting on property which has been designated for such activity by the University provided such possession and use is in strict compliance with applicable law; or

(t) when the Director of the University's Depaiiment of Public Safety has waived the prohibition based on extraordinary circumstances. Any such waiver must be in writing and must define its scope and duration.

(2) The Director of the Department of Public Safety may impose restrictions upon individuals who are otherwise authorized to possess or use such a device pursuant to Subsection (1) when the Director determines that such restrictions are appropriate under the circumstances.

Section 5. Violation Penalty

A person who violates this Article X is guilty of a misdemeanor, and upon conviction, punishable by imprisonment for not less than ten ( 10) days and no more than sixty (60) days, or by a fine of not more than fifty dollars ($50.00) or both.

Article XI: University of Michigan Identification Cards and Parking Permits

Section 1. Possession or Display

No person shall possess or display any University student, staff or faculty identification card or University parking permit that is altered, fraudulent or that has been issued to another person. University staff who handle University identification cards or parking permits as a requirement of their job are exempt from this section where they are handling such identification cards or parking permits in the performance of their official duties.

Regents' Ordinance - University of Michigan 46

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STATE OF MICHIGAN

COURT OF CLAIMS

JOSHUA WADE,

Plaintiff, OPINION AND ORDER

V Case No. 15-000129-MZ

UNIVERSITY OF MICHIGAN, Hon. Cynthia Diane Stephens

Defendant.

This mater is before the Court on defendant, University of Michigan's, motion for

summary disposition. At issue in this case is whether the University is permitted to enact and

enforce ordinances related to the possession of firearms on the University's campus. Because

this Court concludes that defendant's ordinance prohibiting the possession of firearms on

University property is valid, defendant's motion for summary disposition is GRANTED.

In 2001, the Regents of the University of Michigan adopted Article X, a weapons

ordinance that prohibits firearm possession on University property. The ordinance provides:

Except as otherwise provided in Section 4, no person shall, while on any property owned, leased, or otherwise controlled by the Regents of the University of Michigan:

(1) possess any firearm or any other dangerous weapon as defined m or interpreted under Michigan law ... [Article X, Sec. 2.]

The prohibition set forth in Article X, Section 2 applies regardless of whether the individual has

a concealed weapons permit or is otherwise authorized by law to possess, discharge or use any of

the enumerated weapons. The ordinance does not apply to weapons carried by law enforcement,

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the military or for educational purposes. Further, the ordinance permits the director of public

safety to waive the prohibition "based on extraordinary circumstances." (Article X, Section 4.)

In September 2014, plaintiff, Joshua Wade, applied for and was denied a waiver. On

June 9, 2015, plaintiff filed a two-count complaint in the Court of Claims seeking injunctive and

declaratory relief. Plaintiff alleges that defendant's ordinance unconstitutionally abridges the

right of citizens to keep and bear arms. Plaintiff also alleges that the ordinance is preempted by

state statutory law, specifically, MCL 123.1102.

In lieu of an answer, defendant has filed a motion for summary disposition pursuant to

MCR 2. l 16(C)(8). A motion under this court rule tests the legal sufficiency of the plaintiffs

claims on the pleadings alone to determine whether the plaintiff has stated a claim on which

relief may be granted. Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013). Defendant

maintains that plaintiff is not entitled to injunctive or declaratory relief because the University's

ordinance does not violate the state or federal constitutions, is not preempted by state law, and it

was enacted as a valid exercise of the powers granted to the University pursuant to Const 1963,

art 8, § 5.

In Count I of his complaint, plaintiff alleges that the University's ordinance violates

Const 1963, art 1, § 6 of the Michigan Constitution and the Second Amendment of the United

States Constitution. 1 Plaintiff argues that the ordinance unreasonably infringes on the

1 The Second Amendment of the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Michigan counterpart provides: "Every person has a right to keep and bear arms for the defense of himself and the state." The Second Amendment is applicable to

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constitutional right to bear arms. Upon a review of both state and federal precedent, this Court

finds plaintiffs arguments unpersuasive.

In 2008, the United States Supreme Court engaged in its "first in-depth examination of

the Second Amendment" when it considered the case of the District of Columbia v Heller, 554

US 570, 635; 128 S Ct 2783; 171 L Ed 2d 637 (2008). In Heller, the Court held that the Second

Amendment protects an individual's right to carry and possess a hand gun in the home for self­

defense.2 Id. at 635. The Court cautioned that the right secured by the Second Amendment is

not unlimited, that is, it should not be read to confer a right "to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever purpose." Id. at 626. Indeed, the Court

specifically recognized a non-exhaustive list of "presumptively lawful regulatory measures":

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and governmental buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Id.at 626-627 (emphasis added).]

Further supporting its conclusion that the Second Amendment is limited and does not confer an

unfettered right to carry a firearm anytime or anywhere, the Heller Court noted that the laws

banning "dangerous and unusual weapons" or regulating the storage of firearms to prevent

accidents" do not run afoul of the Second Amendment. Id. at 627, 632.

It is interesting to note that the Heller Court was cognizant of the rising problem of

handgun violence in this Country. In response to this concern, the Court specifically

acknowledged that governmental entities have "a variety of tools for combating that problem,"

the states by virtue of the Fourteenth Amendment. McDonald v City of Chicago, 561 US 742, 750; 130 S Ct 3020; 177 L Ed 2d 894 (2010) 2 Notably, the Court did not decide whether the Second Amendment extends outside the home.

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including "forbidding the carrying of firearms in sensitive places such as schools and

government buildings." Heller, 444 US at 626-627 and n 27, 636. Two years after its opinion in

Heller, the Supreme Court, in McDonald v City of Chicago, 561 US 742, 785-786; 130 S Ct

3020; 177 L Ed 2d 894 (20 l 0), reiterated that the right to carry a firearm is not unlimited, and

that "presumptively lawful regulatory measurers" include laws forbidding the carrying of

firearms in schools. Id. at 786.

Citing to the opinion in Heller, the courts in this State have similarly recognized that

"there are constitutionally acceptable categorical regulations of gun possession" and that "some

limits can be placed on the right to keep and bear arms." People v Wilder, 301 Mich App 546,

555; 861 NW2d 645 (2014); see also, People v Deroche, 299 Mich App 301, 307-308; 829

NW2d 891 (2013). In Michigan Coalition for Responsible Gun Owners v City of Ferndale, 256

Mich App 401, 405-406; 662 NW2d 864 (2003), the Court of Appeals reaffirmed that the

constitutional right to bear arms as conferred by Const 1963, art 1, § 6 "is not absolute, but 'may

yield to a legislative enactment that represents a reasonable regulation by the state in the exercise

of its police power to protect the health, safety, and welfare of Michigan Citizens.'"

Thus, based upon the most recent and relevant pronouncements from the United States

Supreme Court and this state's appellate courts, regulations restricting the carrying of firearms in

sensitive places, specifically schools and government buildings, are presumptively legal. That is,

the scope of the right conferred by the Second Amendment does not extend to theses places. It

cannot legitimately be disputed that the University of Michigan, a public educational institution,

is a school with unique characteristics inherent in such a designation. Defendant represents that

as of the fall of 2014, enrollment reached over 43,000 students. The University provides high­

density housing for nearly 10,000 undergraduate students. Many of these undergraduates are

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minors. With this demographic comes, all too frequently, alcohol consumption, impaired

judgment and conduct. The University employs over 21,000 faculty and staff members.

Defendant also notes that numerous children visit the campus to attend 25 youth sport camps

each year. Defendant also operates the University Health System. Clearly, the University of

Michigan is a "sensitive place" as contemplated by the Supreme Court in Heller and McDonald.

As such, the University's prohibition on the possession of firearms is "presumptively lawful."

Consequently, the University's ordinance does not fall within the scope of the right conferred by

the Second Amendment or Const 1963, Art I, § 6. Therefore, plaintiff has failed to state a claim

upon which relief can be granted in Count I of his complaint.

In Count II of the complaint, it is alleged that the University's ordinance has been

preempted by state law. In general, preemption is found in two situations: ( l) where the

ordinance directly conflicts with a state statutory scheme; or (2) where the statutory scheme

completely occupies the field that the ordinance attempts to regulate. People v Llewellyn, 401

Mich 314, 322; 257 NW2d 902 ( 1977). Relying on the doctrine of field preemption, plaintiff

argues that MCL 123.1102 precludes the University from adopting an ordinance creating gun­

free zones. This Court disagrees. The plain language of MCL 123.1102 unequivocally defines

the scope of its reach and it does not evidence intent by the Legislature to completely occupy the

field of firearm regulation.

MCL 123.1102 provides:

A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state. [Emphasis added.]

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MCL 123. l IOl(b) defines "local unit of government" as: "a city, village, township or country."

Because the University of Michigan does not constitute "a city, village, township or country," it

is axiomatic that the prohibitions set forth in MCL 123.1102 do not apply to the University.

Clearly, the Legislature limited the preemptive effective of MCL 123.1101 et seq. to firearm

ordinances adopted by cities, villages, townships and counties.

Plaintiff argues that the forgoing analysis is an overly narrow reading of MCL 123.1102.

He contends that "the legislature's word choice in MCL 123.1101 is of little import when the

effect of the statute is to vest exclusive regulatory authority for the field of firearms possession

with the state legislature." Plaintiff reasons that the definition of "local unit of government"

necessarily includes "quasi-municipal" entities. However, plaintiffs analysis violates nearly

every rule governing statutory construction. It is axiomatic that the primary goal of statutory

interpretation is to give effect to the intent of the legislature. Mich Ed Ass 'n v Secretary of State

(On Reh), 489 Mich 194, 217; 801 NW2d 35 (2011). This determination always begins with

examining the plain language of the statute itself. Ter Beek v City of Wyoming, 495 Mich l, 8;

846 NW2d 531 (2014 ). If the statutory language is unambiguous, it is to be presumed that the

Legislature intended the meaning plainly expressed, and further judicial construction is not

permitted or required. Id. In this case, the statute could not be more clear. The Legislature

specifically defined "local unit of government" as a "city, village, township, or county." It

limited the scope of preemption to firearm regulations adopted by these entities. The Legislature

did not leave any room for interpretation. It did not include "quasi-municipal" entities in its

definition of "local unit of government." A court interpreting a statute is not free to add words to

an unambiguous statute. Rowland v Washtenaw County Road Com 'n, 477 Mich 197, 213 n 10;

731 NW2d 41 (2007). Based on a reading of the plain language of the statute, the Legislature

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did not intend to limit the ability of public universities to regulate firearms possession on their

campuses.

This Court further finds that plaintiffs reliance upon the opinions in Michigan Coalition

for Responsible Gun Owners v City of Ferndale, 256 Mich App 401; 662 NW2d 864 (2003) and

Capital Area District Library v Michigan Open Carry, Inc, 298 Mich App 220; 826 NW2d 736

(2012) is misplaced. In Michigan Coalition, the Court found that MCL 123.1102 preempted a

City of Ferndale regulation prohibiting the possession of weapons in all building owned or

controlled by the city. Michigan Coalition, 256 Mich App at 402-403. In doing so, the Court

stated:

With the pronouncement in § 1102, the Legislature stripped local units of government of all authority to regulate firearms by ordinance or otherwise with respect to the areas enumerated in the statute, [footnote omitted] except as particularly provided in other provisions of the act and unless federal or state law provided otherwise. Unlike some other statutes, § 1102 does not use language to the effect that the act "occupies the whole field of regulation," [footnote omitted] but rather expressly removes the power of local units of government to regulate.in the field. The effect is to occupy the field to the exclusion of local units of government. In other words, although stated in the negative, rather than the affirmative, the statutory language of § 1102 demonstrates that, in effect, state law completely occupies the field of regulation that the Ferndale ordinance seeks to enter, to the exclusion of the ordinance, although subject to limited exceptions. [Citation and footnote omitted.] With the enactment of§ 1102, the Legislature made a clear policy choice to remove from local units of government the authority to dictate where firearms may be taken. [Michigan Coalition, 256 Mich App at 413-414 (emphasis added).]

The Michigan Coalition Court simply applied the plain language of the statute and emphasized

that the preemptive effect of MCL 123.1102, was limited to "local units of government."

The opinion in Capital Area District Library (hereinafter "CADL ") is similarly

inapposite. In CADL, the Court considered "whether district libraries established under the

District Library Establishment Act (OLEA), MCL 397.171 et seq., are subject to the same

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restrictions regarding firearm regulation that apply to public libraries established by local units of

government." CADL, 298 Mich App 223. Of particular note is the nature of such a library;

Under the OLEA, two or more municipalities may enter into an agreement to create a district

library. The CADL was a collaboration between the City of Lansing and Ingham County. Id. at

224, 228. As to the scope of the preemption, the Court first reiterated the holding in Michigan

Coalition, that "state law completely occupies£3] the field of firearm regulation to the exclusion

of local units of government." Id. at 224 (emphasis added). The Court also noted that district

libraries are not expressly included within the definition of a local unit of government by MCL

123.1102. However, it deemed the CADL a quasi-municipality. The Court ultimately concluded

that MCL 123.1102 preempted the CADL's attempt to ban firearm possession in the libraries

because the district library constituted a "local unit of government." The Court held that

''[e]xcluding a district library from the field of regulation -simply because it is established by

two local units of government instead of one-defies the purpose of the statute and would

undoubtedly lead to patchwork regulation." Id. at 237. Contrary to plaintiffs assertion, the

Court did actually expand the definition of "local government unit." Indeed, the Court's

reasoning recognizes that the regulation at issue was actually promulgated by two local units of

government as defined by MCL 123. l IOl(b), i.e. a city and a county.

Even if the University were deemed to be a local unit of government, MCL 123.1102 still

would not prohibit the University from promulgating its own firearm regulations. MCL

123.1102 specifically permits "local units of government" to enact regulations as "otherwise

3 Emphasis in original text.

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provided by federal law or a law of this state." In this case, the State Constitution grants to the

University the autonomy to promulgate its own firearm regulations.

Our Supreme Court has noted that the Michigan Constitution confers a unique status on

public universities and their government boards. Federated Publications, Inc v Board of

Trustees of Michigan State University, 460 Mich 75, 84; 594 NW2d 491 (1999). Under Const

1963, art 8, § 5, the Regents of the University of Michigan constitute a "body corporate" vested

with the "general supervision of its institution and the control and direction of all expenditures

from the institution's funds." Indeed, the Court described the governing board's status as "a

constitutional corporation of independent authority, which, within the scope of its functions, is

co-ordinate with and equal to that of the legislature." Id. at 84 n 8 (citing Bd of Regents of the

Univ of Michigan v Auditor General, 167 Mich 444,450; 132 NW 1037 (1911)). Thus, "[t]he

constitution grants the governing boards authority over 'the absolute management of the

University and the exclusive control of all funds received for its use."' Id. at 87. Promulgating

firearm ordinances for the safety of the students, staff and faculty is, therefore, constitutionally

permissible and inextricably intertwined with the operation of the University and its mission to

educate. Thus, even if the University were deemed a "local unit of government," its ordinance

would not run afoul of MCL 123.1102 because under the Michigan Constitution, the University

has the autonomy to promulgate firearm regulations. Moreover, any legislative scheme that

"clearly infringes on the university's educational or financial autonomy must, therefore, yield to

the university's constitutional power." Id. Simply put, the Legislature may not interfere with the

management and control of public universities when they are exercising their constitutional

powers to supervise the institution. Id. at 87, 88.

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IT IS HEREBY ORDERED that defendant's motion for summary disposition is

GRANTED.

Dated:

This order resolves the last pending claim and closes the case.

NOV 13 2015

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~ Hon. Cynthia Diane <§~n:i~'"'pfhi1e..,.n-s----­Court of Claims Judge

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Capital Area Dist Library v Michigan Open Carry, Inc CADL

CADL

District of Columbia v Heller

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People v Llewellyn

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i

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prohibition

limitation

CADLCADL

CADLet seq

CADL CADL

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CADL

CADL

CADL LlewellynCADL

Llewellyn Llewellyn

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LlewellynCADL

CADL

LlewellynLlewellyn

et seq

LlewelynPeople v Gardner

Id. only

In re Certified Question from US Court of Appeals for Sixth Circuit

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Llewellynprohibit

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S MICHIGAN OPEN CARRY INC. and KENNETH HERMAN, Plaintiffs-Appellees,

FOR PUBLICATION December 15, 2016 9:10 a.m.

v No. 329418 Genesee Circuit Court

CLIO AREA SCHOOL DISTRICT, FLETCHER SPEARS, III, and KATRINA MITCHELL,

LC No. 15-104373-CZ

Defendants-Appellants.

Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ. PER CURIAM.

The issue presented is whether state law preempts Clio Area School District policies banning the possession of firearms in schools and at school-sponsored events. We hold that it does not, and reverse the judgment of the circuit court.

I

On June 5, 1996, defendant, Clio Area School District (CASD), promulgated policy 7217, which provides:

The Board of Education prohibits visitors from possessing, storing, making, or using a weapon in any setting that is under the control and supervision of the Board including, but not limited to, property leased, owned, or contracted for by the Board, a school-sponsored event, or in a Board-owned vehicle.

* * *

The term “weapon” means any object which, in the manner in which it is used, is intended to be used, or is represented, is capable of inflicting serious bodily harm or property damage, as well as endangering the health and safety of persons. Weapons include, but are not limited to, firearms, guns of any type, including spring, air and gas-powered guns, (whether loaded or unloaded), that will expel a BB, pellet, or paint balls knives, razors, clubs, electric weapons, metallic knuckles, martial arts weapons, ammunition, and explosives or any other weapon described in 18 U.S.C. 921.

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This prohibition applies regardless of whether the visitor is otherwise authorized by law to possess the weapon, including if the visitor holds a concealed weapons permit. The following are the exceptions to this policy:

A. weapons under the control of law enforcement personnel;

B. items approved by a principal as part of a class or individual presentation under adult supervision, if used for the purpose of and in the manner approved (working firearms and ammunition shall never be approved);

C. theatrical props that do not meet the definition of “weapon” above, used in appropriate settings;

D. starter pistols used in appropriate sporting events.

These restrictions shall not apply in the following circumstances to persons who are also properly licensed to carry a concealed weapon:

A. A parent or legal guardian of a student of the school may carry a concealed weapon while in a vehicle on school property, if s/he is dropping the student off at the school or picking up the student from the school and any person may carry a concealed weapon solely in the parking lot.

B. A county corrections officer, a member of a Sheriff’s posse, a police or sheriffs reserve or auxiliary officer, or a State Department of Corrections parole or corrections officer, a private investigator, a Michigan State Police motor carrier officer or Capitol security officer, a State court judge, a security officer required by the employer to carry a concealed weapon while on the premises, a court officer

C. A retired police or law enforcement officer, a retired Federal law enforcement officer, or a retired State court judge.

Signs advising of this policy are placed at every CASD school and warn violators that they will be denied admittance.

In September 2013, plaintiff, Kenneth Herman, attempted to visit his child’s elementary school while openly carrying a pistol for which he possessed a concealed pistol license. Herman claimed he was thereafter denied access to the school on several occasions in 2013 and 2014 for his open pistol possession. Finally, in November 2014, the CASD threatened to summon authorities if Herman again attempted to enter the building with his weapon.

As a result of these incidents, Herman and plaintiff, Michigan Open Carry, Inc., filed suit against the district and certain district officials. Plaintiffs’ complaint asserts that Michigan law allows Herman to openly carry a pistol on school property because state law preempts a local unit of government from regulating the possession of firearms. According to plaintiffs, the CASD qualifies as a “local unit of government.”

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Defendants sought summary disposition, arguing that Michigan law confers on public school districts the right to address the safety and welfare of the students and prevent disruption to the educational environment by enacting policies such as that in question. Defendants also cited Davis v Hillsdale Community Sch Dist, 226 Mich App 375; 573 NW2d 77 (1997), for the proposition that a school district has plenary power to ban weapons from its premises. No state statute conflicts with this authority, the CASD urged, and caselaw governing preemption does not encompass the ability of school districts to regulate firearms on their premises.

Primarily relying on this Court’s decision in Capital Area Dist Library v Michigan Open Carry, Inc, 298 Mich App 220; 826 NW2d 736 (2012) (CADL), contended that state law allows certain individuals to carry guns on school property in specific circumstances and preempts any attempts by local units of government to regulate firearms. Michigan’s statutory regulation of firearms is so pervasive, plaintiffs insisted, that the entire firearms field is preempted and school districts are foreclosed from any rule-making regarding firearms. More specifically, plaintiffs asserted that the CASD policy contradicted and therefore was preempted by MCL 123.1102, which provides:

A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.[1]

In resolving this case, the circuit court declared that “the outcome of this case is relatively simple.” US Const, Am 2 and Const 1963, art I, § 6 entitle citizens to bear arms. But, the court noted, that right “is not unlimited.” For example, in District of Columbia v Heller, 554 US 570, 626; 128 S Ct 2783; 171 L Ed 2d 637 (2008), the United States Supreme Court held that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings[.]”2 The court continued:

The Michigan [L]egislature has seen fit to pass certain laws limiting the right of individual[s] to possess firearms specifically with respect to the issue in this case, an individual shall not possess a concealed weapon in a weapons-free school zone, MCL [750.237a(1)]. An individual shall not possess a weapon in a weapons free school zone – that’s MCL [750.237a(4)] – unless that individual is licensed to carry a concealed weapon, MCL [750.237a(5)]. An individual licensed to carry a concealed pistol shall not carry a concealed pistol on school

1 The statute was amended to add pneumatic guns after CADL issued. See 2015 PA 29. 2 On appeal, defendants cite Heller and posit that citizens do not have an unlimited Second Amendment right to possess arms on school property. The circuit court accepted that proposition and we need not address it further.

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property; that’s MCL [28.425o(1)(a)]; however, a parent or guardian licensed to carry a concealed pistol, may carry that pistol concealed while in a vehicle on school property either dropping the student off at school or picking the student up from school.

When you read this law as a whole and these statutes as a whole, these statutes do not prohibit an individual, who is licensed to carry a concealed pistol from openly possessing a pistol in a weapons free school zone. The Michigan Legislature evidently has not seen fit to completely prohibit individuals from possessing firearms on school property.

The circuit court distinguished the current case from Davis, noting that Davis permitted a school district to direct discipline of students possessing weapons, not to “do anything that it wants” to exclude pistols from its properties. And given the pervasive nature of the state statutes, the court rejected CASD’s challenge against preemption.

In relation to plaintiffs’ arguments, the court found CADL controlling. The court ruled that the school district was “a quasi-municipal corporation,” just like the district library in CADL, rendering the cases “virtually identical.” CADL “held that the Michigan Legislature has occupied the field of firearm regulation to such an extent that State law preempts a quasi-municipal corporation’s attempts to regulate in that same field.” Accordingly, the circuit court granted summary disposition and entered a declaratory judgment in plaintiffs’ favor, thereby invalidating CASD’s firearms ban. Defendants appeal that ruling.

II

We first address plaintiffs’ contention that the CASD weapons policy directly contradicts MCL 28.425o, specifically subsection (1)(a), which provides in relevant part as follows:

(1) Subject to subsection (5), an individual licensed under this act to carry a concealed pistol, or who is exempt from licensure under [MCL 28.432a(1)(h)], shall not carry a concealed pistol on the premises of any of the following:

(a) A school or school property except that a parent or legal guardian of a student of the school is not precluded from carrying a concealed pistol while in a vehicle on school property, if he or she is dropping the student off at the school or picking up the student from the school. As used in this section, “school” and “school property” mean those terms as defined in . . . MCL 750.237a.

* * *

(5) Subsections (1) and (2) do not apply to any of the following:

(a) An individual licensed under this act who is a retired police officer, retired law enforcement officer, or retired federal law enforcement officer.

(b) An individual who is licensed under this act and who is employed or contracted by an entity described under subsection (1) to provide security services

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and is required by his or her employer or the terms of a contract to carry a concealed firearm on the premises of the employing or contracting entity.

(c) An individual who is licensed as a private investigator or private detective under the professional investigator licensure act, 1965 PA 285, MCL 338.821 to 338.851.

(d) An individual who is licensed under this act and who is a corrections officer of a county sheriff’s department or who is licensed under this act and is a retired corrections officer of a county sheriff’s department, if that individual has received county sheriff approved weapons training.

(e) An individual who is licensed under this act and who is a motor carrier officer or capitol security officer of the department of state police.

(f) An individual who is licensed under this act and who is a member of a sheriff’s posse.

(g) An individual who is licensed under this act and who is an auxiliary officer or reserve officer of a police or sheriff’s department.

(h) An individual who is licensed under this act and who is any of the following:

(i) A parole, probation, or corrections officer, or absconder recovery unit member, of the department of corrections, if that individual has obtained a Michigan department of corrections weapons permit.

(ii) A retired parole, probation, or corrections officer, or retired absconder recovery unit member, of the department of corrections, if that individual has obtained a Michigan department of corrections weapons permit.

(i) A state court judge or state court retired judge who is licensed under this act.

(j) An individual who is licensed under this act and who is a court officer.

Plaintiffs argue that because MCL 28.425o(1)(a) addresses the right of concealed pistol license holders to carry a concealed pistol on school property in certain circumstances, CASD’s policy banning weapons is expressly preempted.

We resolved this very issue in the companion case placed before this Court, Michigan Gun Owners, Inc v Ann Arbor Public Schs, ___ Mich App ___; ___ NW2d ___ (Docket No. 329632, issued _____), slip op at ___:

We read the statute differently. MCL 28.425o(1)(a) imposes a blanket prohibition on carrying a concealed pistol on school grounds (“shall not”) subject to certain specific and limited exceptions. The statute does not expressly forbid additional regulation, or declare that its subparts supersede any other school-

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related firearm rules. More to the point, AAPS policy 5420 specifically references and acknowledges that MCL 28.425o controls the ability of concealed pistol license holders to carry a concealed pistol under the distinct circumstances conforming to the statute. We find no conflict between the statute and the AAPS policies, and thus no express preemption. Moreover, as discussed in greater detail in the next section, this statute’s virtually categorical limitation of the presence of weapons in educational settings strongly implies that the Legislature intended this enactment to curtail the carrying of weapons in public schools.

The CASD policy does not expressly reference MCL 28.425o. However, it does provide exceptions to its ban consistent with the statute. We discern no conflict between the district policy and statute in this case either.

III

Defendants assert that its firearms policy is consistent with state law permitting school districts to make their schools “gun free zones.” For this reason, CADL is readily distinguishable from the current action.

As provided in Michigan Gun Owners, ___ Mich App at ___, slip op at ___:

As always, we begin with the language of the statute. In MCL 123.1101(b), the Legislature defined the term “local unit of government” to mean “a city, village, township, or county.”4 In CADL, this Court held that although a district library established pursuant to the District Library Establishment Act, MCL 397.171 et seq., is not “a city, village, township, or county,” a district library is “a quasi-municipal corporation” and therefore a “local unit of government.” CADL, 298 Mich App at 231-232, 236. CADL reasoned that because a district library is established by two local units of government, it is swept within the reach of MCL 123.1102, which expressly prohibits the enactment of any regulation relating to the possession of firearms by “local units of government.” Id. at 237.

CADL’s holding rested on a judgment that district libraries are so closely akin to the local units of government listed in MCL 123.1101(b) that the same regulatory scheme should apply. In essence, the CADL Court determined that because the city and county that formed the Capital Area District Library were precluded from regulating firearms pursuant to MCL 123.1102, it made no sense to permit their stepchild—a library—from doing so. No corresponding parallels exist here. School districts are not formed, organized or operated by cities, villages, townships or counties, but exist independently of those bodies. “Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education.” Const 1963, art 8, § 3. While a district library enjoys a general ability to “supervise and control” its property, MCL 397.182(1)(f), the Legislature has specifically allocated to school districts very broad powers of self-

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governance, which specifically include “[p]roviding for the safety and welfare of pupils while at school or a school sponsored activity”:

A general powers school district has all of the rights, powers, and duties expressly stated in this act; may exercise a power implied or incident to a power expressly stated in this act; and, except as provided by law, may exercise a power incidental or appropriate to the performance of a function related to operation of the school district in the interests of public elementary and secondary education in the school district, including but not limited to, all of the following:

(a) Educating pupils. In addition to educating pupils in grades K-12, this function may include operation of preschool, lifelong education, adult education, community education, training, enrichment, and recreation programs for other persons.

(b) Providing for the safety and welfare of pupils while at school or a school sponsored activity or while en route to or from school or a school sponsored activity. [MCL 380.11a.]

The close connection between district libraries and the cities or counties that established them informed CADL’s analysis of the Llewellyn[3] factors. The distinct differences between local units of government and school districts likewise influence our calculus and our conclusion that CADL does not govern this case.

________________________________________________________________

4 At the time CADL issued, the pertinent definition was located in subsection (a) of the statute.

__________________________________________________________________

IV

The circuit court also committed clear legal error in accepting plaintiffs’ claim that state law preempts school district policies against the possession of firearms. The Llewellyn framework guides our evaluation of this question, a framework the circuit court ignored in rendering judgment. And application of the Llewellyn factors counsels against a finding of field preemption.

3 People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977).

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Again, as held by this Court in Michigan Gun Owners, ___ Mich App at ___:

The first Llewellyn factor asks whether the state law cited as preemptive “expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive[.]” Llewellyn, 401 Mich at 323. As we have stated, no such provision exists. It bears repeating that the statute on which plaintiffs rely does not reference schools or school districts in its list of “local units of government,” despite that for many other purposes, the Legislature has explicitly identified school districts as “local units of government.” See, e.g., MCL 550.1951 (including “school districts” within the definition of “local unit of government” in an act providing that certain entities are subject to the patient’s right to independent review act); MCL 286.942(g) (including “school district[s]” within the definition of “local unit of government” for purposes of the Rural Development Fund Act); and MCL 123.381 (including “school district[s]” within the definition of “local unit of government” in an act concerning the construction of water and waste supply systems).

The second Llewellyn factor requires us to consider legislative history.5 Plaintiffs point to the House Legislative Analysis we cited in CADL, reciting that MCL 123.1102 “was designed to address the ‘proliferation of local regulation regarding firearm ownership, sale, and possession’ and the ‘concern that continued local authority to enact and enforce gun control ordinances may result in the establishment of a patchwork of ordinances.’ ” CADL, 298 Mich App at 236. We find this fragment of legislative history useless, as it speaks to ordinances and local units of government rather than to schools. As no other legislative history has been presented to us, we conclude that this factor does not support preemption.

The third Llewellyn factor concerns “the pervasiveness of the state regulatory scheme.” Firearms are indeed pervasively regulated in Michigan. Llewellyn, 401 Mich at 323. In MCL 28.425a(5), the Legislature commanded that the legislative service bureau “compile the firearms laws of this state, including laws that apply to carrying a concealed pistol, and . . . provide copies of the compilation in an electronic format to the department of state police.” That compilation is available to all at <https://www.legislature.mi.gov/Publications/ Firearms.pdf> (accessed November 30, 2016). The statutes referencing firearms consume almost 200 pages of paper. Included are several provisions in the revised school code, MCL 380.1 et seq. For example, MCL 380.1163 requires schools to develop “model gun safety instruction program[s].” MCL 380.1311(2) permits a school board to expel a pupil who “possesses in a weapon free school zone a weapon that constitutes a dangerous weapon[.]” MCL 380.1313(2) authorizes a school official to confiscate a dangerous weapon in the possession of a pupil. And the full compilation includes MCL 28.425o(1)(a), which we cited above, as well as penal statutes such as MCL 750.234d, which provides:

(1) Except as provided in subsection (2), a person shall not possess a firearm on the premises of any of the following:

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(a) A depository financial institution or a subsidiary or affiliate of a depository financial institution.

(b) A church or other house of religious worship.

(c) A court.

(d) A theatre.

(e) A sports arena.

(f) A day care center.

(g) A hospital.

(h) An establishment licensed under the Michigan liquor control act, [MCL 436.1 to MCL 436.58].

(2) This section does not apply to any of the following:

(a) A person who owns, or is employed by or contracted by, an entity described in subsection (1) if the possession of that firearm is to provide security services for that entity.

(b) A peace officer.

(c) A person licensed by this state or another state to carry a concealed weapon.

(d) A person who possesses a firearm on the premises of an entity described in subsection (1) if that possession is with the permission of the owner or an agent of the owner of that entity.

(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.6

Yet another penal statute relevant to this case addresses “weapon free school zones,” which are defined as “school property and a vehicle used by a school to transport students to or from school property.” MCL 750.237a(6)(e). This statute sets out penalties for individuals who engage in firearm offenses in a weapon free school zone, and specifically provides that “an individual who possesses a weapon in a weapon free school zone is guilty of a misdemeanor[.]” MCL 750.237a(4). This subsection does not apply, however, to individuals licensed to carry a concealed weapon, a “peace officer,” or certain designated others. MCL 750.237a(5).

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Given this panoply of firearm laws, we most certainly agree that firearms are pervasively regulated in Michigan. But this fact, standing alone, does not compel us to imply preemption. “While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of preemption.” Llewellyn, 401 Mich at 324. Here, relevant segments of a multifaceted statutory framework evince the Legislature’s intent to prohibit weapons in schools, rather than to rein in a district’s ability to control the possession of weapons on its campuses.

Among the statutes regulating firearms complied by the legislative service bureau are 26 different laws specifically referencing “weapon free school zones.” These four words telegraph an unmistakable objective regarding guns and schools; indeed, we find it hard to imagine a more straightforward expression of legislative will. The Legislature contemplated that this repeatedly invoked phrase would be interpreted to mean exactly what it says—no weapons are allowed in schools. Viewing the AAPS policies against this statutory backdrop, we infer that firearm policies consistent with the “weapon free school zone” concept are unobjectionable. Field preemption analysis does not permit us to ignore this statutory language simply because there are many statutes regulating firearms. To the contrary, the pervasiveness of the Legislature’s use of the phrase “weapon free school zones” presses against the preemption of a district policy affirming that its schools will remain “weapon-free”.

Llewellyn’s fourth factor asks whether “the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.” Id. at 324. Given that the Legislature has never expressly reserved to itself the ability to regulate firearms in schools, our evaluation of this factor requires us to weigh policy choices.

Plaintiffs insist that a “patchwork” of differing school policies will create “confusion” and will “burden” the police and the public. We find no merit in this argument. The Legislature has broadly empowered school districts to “[p]rovid[e] for the safety and welfare of pupils while at school or a school sponsored activity or while en route to or from school or a school sponsored activity.” Indisputably, the Legislature recognized that different school districts would employ different methods and strategies to accomplish this goal. Most parents of school-age children send those children to schools located within a single school district. Most parents easily learn and adapt to the policies and procedures applicable to their children’s schools and district. We discern no possibility of meaningful “confusion” or burdening of law enforcement. To the contrary, the AAPS policy ensures that the learning environment remains uninterrupted by the invocation of emergency procedures which would surely be required each and every time a weapon is openly carried by a citizen into a school building.

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5 We note that in the almost 40 years that have passed since our Supreme Court’s decision in Llewellyn, the Supreme Court’s views regarding the propriety of judicial reliance on legislative history have changed considerably. For example, in People v Gardner, 482 Mich 41, 57; 753 NW2d 78 (2008), the Court discussed the many “problems inherent in preferring judicial interpretation of legislative history to a plain reading of the unambiguous text,” and expressed a decided preference for “historical facts” about “the Legislature’s affirmative acts” rather than “staff analyses of legislation.” Id. “[R]esort to legislative history of any form is proper only where a genuine ambiguity exists in the statute. Legislative history cannot be used to create an ambiguity where one does not otherwise exist.” In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109, 115, n 5; 659 NW2d 597 (2003) (emphasis in original).

6 Despite that MCL 750.234(2)(c) permits concealed weapon holders to carry concealed weapons in “[a] court,” our Supreme Court has promulgated an administrative order barring the presence of all weapons in court facilities unless approved by the chief judge. Michigan Supreme Court Administrative Order 2001-1. Many circuit courts have issued their own policies banning the presence of weapons. See, e.g., <https://www.oakgov.com/courts/circuit/Documents/ao/ 2012-06J.pdf> (accessed November 30, 2016).

________________________________________________________________

V

However, we must note our agreement with the circuit court’s conclusion that Davis is not applicable to the current matter. In Davis, 226 Mich App at 377-378, the Hillsdale Community School District (HCSD) implemented a policy requiring expulsion of students found in possession of a “weapon in a weapon free school zone.” BB guns fell within the district policy’s definition of “weapon” or “dangerous weapon.” Id. at 378. Two students expelled for BB gun possession filed suit, complaining that the policy conflicted with and therefore was preempted by MCL 380.1311. Davis, 226 Mich App at 378-379. The statute mandated expulsion of students possessing weapons on school grounds, but did not specifically include BB guns within the definition of subject weapons. Id. at 379 and n 3.

The circuit court accepted the preemption argument, but this Court reversed. Id. at 379, 381. In doing so, this Court reasoned that local school boards have “ ‘inherent power to define disciplinable acts . . . .’ ” and manage student behavior. Id. at 382, quoting Widdoes v Detroit Pub Schs, 218 Mich App 282, 287; 553 NW2d 688 (1996). There is no precedent establishing a

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school district’s inherent power to direct the behavior of nonstudent citizens. Given the vastly different interests at play, we cannot adopt defendants’ claim that Davis controls the preemption question in this case.

We reverse.

/s/ Kirsten Frank Kelly /s/ Elizabeth L. Gleicher /s/ Douglas B. Shapiro

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District of Columbia v Heller

Heller

District of Columbia v Heller

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Heller

Kyocera Corp v Hemlock Semiconductor, LLC

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McDougall v Schanz

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Mitcham vDetroit

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McDonald v Chicago

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People v WilderPeople v Deroche

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Ter Beek v City of Wyoming

Regents of Univ of Mich v Brooks

Federated Publications, Inc v Mich State Univ Bd of TrusteesRegents of Univ of Mich v Auditor General

Brooks

Branum v Regents of Univ of Mich

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Regents of Univ of Mich v Mich Employment Relations Comm

WT Andrew Co Inc v Mid-State Surety Corp

Capital Area Dist Library (CADL) v Mich Open Carry, Inc

Haynes v Neshewat

Koontz v Ameritech Servs, Inc

Mich Coalition for Responsible Gun Owners v City of Ferndale

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CADLMich Gun Owners, Inc

Llewellyn

Llewellyn

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dissenting

Capital Area Dist Library v Mich Open Carry, Inc,

CADL

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People v Llewellyn CADL

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Mich Gun Owners, Inc v Ann Arbor Public Schools

Mich Gun Owners CADLCADL

Llewellyn

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CADL

Federated Publications, Inc v Board of Trustees of Michigan State University Federated Publications

Regents of the Univ of Michigan v Michigan

State Bd of Agriculture v Auditor General,

Bd of Control of Eastern Michigan Univ v Labor Mediation Bd,

Regents of the Univ of Michigan v Employment Relations Comm,Branum v Bd of Regents of

the Univ of Michigan,

Mich Gun OwnersCADL

et seq

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