The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5614

December 21, 1979

OPEN MEETINGS ACT:

Exclusion from public meeting for failing to stand for pledge of allegiance

Suitable arrangements to accommodate members of the public

WORDS AND PHRASES:

'Breach of peace'

A public body may not exclude a member of the public from its public meeting for failing to stand for the pledge of allegiance.

Where a larger than anticipated group wishes to attend a public meeting the Open Meetings Act does not require the public body to adjourn the meeting to a larger meeting room, but the public body should exercise reasonable efforts to accommodate interested members of the public, including reconvening the meeting in a larger room where practicable.

Honorable Jerome T. Hart

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on two matters which may be phrased as follows:

(1) May a public body exclude members of the public from its public meeting for failing to stand for the pledge of allegiance?

(2) Must a public body adjourn its public meeting in order to convene in a larger room when it becomes evident that the original meeting room cannot accommodate all members of the public wishing to attend the meeting?

In response to your first question, the Open Meetings Act, 1976 PA 267, Sec. 3(6), MCLA 15.263(6); MSA 4.1800(13)(6), provides:

'A person shall not be excluded from a public meeting except for a breach of the peace actually committed at the meeting.'

The term 'breach of the peace' is not defined in the Open Meetings Act. Thus, it must be assumed that the Legislature adopted the commonly-understood meaning of the term. Detroit Edison v Secretary of State, 281 Mich 428; 275 NW 196 (1937).

Webster's New Third International Dictionary (1966) defines the term 'breach of the peace' to mean:

'Disorderly conduct that disturbs the public peace.'

In People v Johnson, 86 Mich 175, 177; 48 NW 870 (1898), the Court defined a breach of peace to be:

'. . . a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. . . .'

In Johnson, the Court approved the following instruction given to the jury by the circuit judge:

"To be intoxicated and yelling on the public streets of a village, in such a manner as to disturb the good order and tranquillity of that village, would be an act of open violence, and would be a breach of the peace, . . .."

In Street v New York, 394 US 576, 593; 89 S Ct 1354; 22 L Ed 2d 572 (1969), the United States Supreme Court held unconstitutional a state statute prohibiting a person from speaking defiantly or contemptuously about the American flag. In so deciding, the Court stated:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.' Id., at 641-642, 87 L Ed at 1689. (Footnote omitted.)

'We have no doubt that the constitutionally guaranteed 'freedom to be intellectually . . . diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, . . ..'

Inasmuch as failure to stand for the pledge of allegiance to the flag cannot be considered disorderly conduct, it is my opinion that a public body may not exclude a member of the public from its public meeting for failing to stand for the pledge of allegiance.

With respect to your second question, OAG, 1977-1978, No 5183, Question 9 (March 8, 1977), addressed a similar question:

'May a public body establish a rule obligating large groups who wish to attend an open meeting to give timely notice so that the public body may make suitable arrangements to accommodate the group?

'Although the Act, section 3(4), provides that no prerequisite may be required of a person as a condition for his attendance at a public meeting, reasonable latitude must be read into the Act. Section 3(6) provides that a person shall not be excluded from a public meeting except for a breach of the peace committed at the meeting, and section 5 allows the public body to establish rules reasonably regulating the right of the public to address the meeting. All of these subsections must be given effect. Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970).

'If it is known, for example, that a group of 200 people plan to attend a meeting of a public body which normally meets in a room capable of seating only 20 persons, the ability of the public to observe the manner in which the public meeting is conducted will obviously be strained to the breaking point if the public body is not given advance notice by the group so that it may hold the meeting in suitable facilities. However, this should not be construed as an inhibitory condition placed on attendance which section 3(4) of the Act prohibits.

'It is therefore my opinion that where a large organized group knows in advance that it will attend a public meeting and the regular meeting place of the public body is insufficient to contain the number of persons wishing to attend the meeting, the group is required to give advance notice to the public body. However, the public body is under a duty to exercise sincere efforts to accommodate the number of people who may reasonably be expected to attend.'

It is therefore, my opinion that the Open Meetings Act, supra, does not require a public body to adjourn a meeting to a larger meeting room, but the public body should exercise reasonable efforts to accommodate interested members of the public, including reconvening the meeting in a larger room when practicable.

Frank J. Kelley

Attorney General