Ann Arbor Resident Alleged Judge Was Biased and City Violated Open Meetings Act: Court of Appeals Says, “Nope”

by P.D. Lesko

On June 9, 2025 in an unpublished opinion, the Michigan Court of Appeals refused to reverse trial court Judge Carol Kuhnke’s ruling that went against John C, Floyd, III and his attorney Bruce Laidlaw, who sued the City of Ann Arbor for allegedly violating the Michigan Open Meeting Act. Bruce Laidlaw served as the Ann Arbor City Attorney for 13 years. John Floyd ran unsuccessfully to serve on the Board of the Washtenaw County Commissioner in 2014. Floyd also ran for Ann Arbor City Council in 2010, but lost to incumbent Carsten Hohnke.

In February of 2024, John Floyd filed a suit against the City of Ann Arbor in the Washtenaw County trial court for alleged violations of the Michigan Open Meetings Act at an October 16, 2023 meeting of Ann Arbor City Council. At that meeting, City Attorney Atleen Kaur announced two successive closed sessions of Council.

According to the Michigan Court of Appeals’ unpublished opinion, “During this [October 16, 2023] meeting, the City held two closed sessions to separately consider the periodic personnel evaluations of City Attorney Atleen Kaur and City Administrator Milton Dohoney, Jr. Before taking a roll call vote to go into the first closed session, Kaur announced, ‘I would like to call a closed session under the Michigan Open Meetings Act, specifically MCL 15.268. c, d, e, and h.'”

Meeting Minutes Don’t Reflect What Happened in the City Council Meeting

One of issues with which John Floyd took exception is that the meeting minutes from that October 16, 2023 meeting posted on the City’s website reference MCL 15.268(1)(a) as having been cited as a reason for both closed sessions. On the recording of the meeting, Attorney Kaur was “left off the list,” as the Court of Appeals noted in its opinion.

In an affidavit filed to the City’s request for summary dismissal at the trial court level, the City’s attorney concedes that subsection (a) was left off the list of OMA subsections provided as support for the first closed session.

The minutes of an open meeting are required to accurately reflect the actions taken at the meeting, or to be corrected. The fact that the video of the meeting did not accurately reflect City Attorney Kaur’s request to go into closed session is problematic.

In his suit filed in the trial court, Floyd asked Judge Kuhnke to grant the following relief:

• The appointment of a master to monitor the City’s compliance under the OMA
• That the City provide to the Court for in camera review the minutes and any recordings the City may have of the closed meeting on October 16, 2023.
• An injunction against the City from holding closed meetings of the City Council without the adoption of a resolution truthfully describing a legal purpose for the closed meeting.
• An injunction against the City from making City Council decisions other than in open meetings.
• An injunction against the City from City Council deliberations toward decisions

The City of Ann Arbor asked Judge Kuhnke to dismiss on summary judgement, arguing that John Floyd had asked for relief which the Court could not grant.

John Floyd Files Suit

In the Court of Appeals’ June 2025 opinion, the summary explains why John Floyd filed suit in the 22nd Circuit Count:

“On February 21, 2024, plaintiff filed a complaint in the Washtenaw County Circuit Court, alleging that the City violated the Michigan Open Meetings Act (OMA) by holding a closed meeting on October 16, 2023, without announcing the purpose as required by MCL 15.267. The complaint seeks injunctive relief under MCL 15.271, attorney fees and costs, and ‘appointment of a master to monitor the City’s compliance with the orders of the court, and to make recommendations to the court regarding City policies to achieve transparency in government.'”

After John Floyd filed his complaint in the 22nd Circuit Court, he filed a motion to disqualify trial court judge Carol Kuhnke on the basis that she could not fairly preside over his lawsuit, because she made campaign donations of $100 each to two City Council members who participated in the October 16, 2023 closed session at issue. Floyd also asked the judge to disqualify herself because she had ruled against Floyd’s lawyer in a previous FOIA instant action.

Circuit Court Judge Refuses to Disqualify Herself

Judge Kuhnke denied Floyd’s motion for disqualification. Floyd, as was his right, asked Circuit Court Chief Judge Patrick J. Conlin, Jr. to review. Judge Conlin denied the motion for Judge Kuhnke’s disqualification, as well.

In his Court of Appeals filing, John Floyd repeated the assertion that the trial court (Judge Kuhnke) was biased against plaintiff’s counsel (Bruce Laidlaw) on the basis of how she had ruled in previous unrelated cases against plaintiff’s counsel.

On March 18, 2024, the City of Ann Arbor filed a motion to ask the Circuit Court to dismiss Floyd’s lawsuit alleging the suit lacked both legal and factual sufficiency. Judge Kuhnke, in light of Floyd’s motion to disqualify her, did not rule on the City’s request for dismissal until Chief Judge Conlin had weighed in on the request that Judge Kuhnke disqualify herself. On June 5, 2024, after the Chief Judge refused to order the disqualification, Judge Kuhnke heard the City’s Motion to dismiss Floyd’s lawsuit.

Judge Kuhnke ruled John Floyd had asked the Court for relief under the auspices of the Michigan Open Meetings Act which the Court could not legally grant and dismissed Floyd’s lawsuit.

The Michigan Court of Appeals upheld Judge Kuhnke’s ruling and that Court’s unpublished opinion explains why.

The Michigan Court of Appeals Refuses to Reverse Judge Kuhnke and Finds Her Refusal to Disqualify Proper

First, the Court of Appeals’ opinion explains, the Open Meetings Act allows a court to grant relief when “a public body is not complying with the OMA.” CBACS v Algonac Community Sch, 317 Mich App 171, 181; 894 NW2d 645 (2016). The phrase ‘not complying’ indicates the statute contemplates an ‘ongoing violation.'”

John Floyd’s suit against the City of Ann Arbor was based on a single alleged violation of the Open Meetings Act on Oct. 16, 2023.

The Court of Appeals opinion elaborates on this point of law: “Rather, if there has been a pattern, within a relevant timeframe, reflecting the public body has been regularly engaging in activity that violates the OMA, an action for injunctive relief under MCL 15.271 would be proper . . . .”

John Floyd had failed to provide the trial court with evidence that there “was reason to believe that a public body [City of Ann Arbor] will deliberately fail to comply with the OMA in the future.”

Thus, the Court of Appeals opinion states, “Injunctive relief is unwarranted.” The opinion goes on: “The trial court correctly concluded that plaintiff failed to state a viable claim for injunctive relief under the OMA, as plaintiff had not alleged any facts to suggest that an ongoing violation or real and imminent danger of irreparable injury occurred.”

While a pattern of OMA violations by the City of Ann Arbor may exist, without establishing a pattern of violations of OMA on the part of the City of Ann Arbor, the trial court could not grant injunctive relief to John Floyd, i.e. “The appointment of a master to monitor the City’s compliance under the OMA.”

In 2009, a group of business owners sued the City of Ann Arbor for violations of the OMA for use of email to discuss and deliberate on matters related to the construction of the underground parking structure on the Library Lot site during a public meeting on February 17, 2009. In March 2010, the City settled the lawsuit.

Floyd’s requests for relief, such as “the appointment of a master,” were also fatal to his lawsuit. OMA: (1) MCL 15.270(1) permits specific types of relief:

First, a person may file in a trial court to seek injunctive relief “to compel compliance or to enjoin further noncompliance with [the] act” [this is what John Floyd did].

Next, OMA permits a plaintiff to file suit against a public official for intentional violations of the OMA [this John Floyd did not do].

The statute makes no mention of appointment of a special master.

The Court of Appeals then looked very carefully at Floyd’s motion that Judge Kuhnke disqualify herself to determine if the Judge had violated judicial canons, and had then acted improperly by failing to disqualify herself.

John Floyd’s Motion for disqualification included evidence that Judge Kuhnke had made campaign donations to two City Council members and that she “had appeared” at a fundraiser for one of those candidates. This, Floyd argued, gave the appearance of impropriety. Judicial Canon 7 limits Michigan judges to making donations to political parties. Judges may attend political gatherings just like anyone else.

The Appeals Court acknowledged Judicial Canon 7 precluded Judge Kuhnke from making donations, even nominal donations, to non-judicial candidates, and she should have known her donations were disallowed by Judicial Canon 7. However, the Appeals Court judges turned to the State Bar of Michigan Ethics Opinions.

“While a City Council candidate is an individual and not a ‘political party,’ we find further instruction in the State Bar of Michigan Ethics Opinions. In Ethics Opinion JI-145 (2015), the State Bar found that ‘if a judge can attend political gatherings, speak at political gatherings on his or her own behalf or on behalf of another judicial candidate, and contribute to a political party pursuant to Canon 7A(2)(a), (b), and (c), a private donation by a judge to a nonjudicial candidate’s campaign, without more, is not an ethically prohibited ‘public endorsement.’”

The Appeals Court held, “Plaintiff [John Floyd] failed to establish any other reason that the trial judge’s campaign contributions to two Councilmembers or attendance at a candidate’s fundraiser give any appearance of impropriety on an OMA case against the City.”

The Appeals Court in its opinion then burst the bubble of every “wronged” litigant ever who draws the same “biased judge” again: “Plaintiff’s appeal also relies on prior adverse rulings by the trial judge against his attorney in separate and unrelated FOIA cases (and now, he too relies on the adverse rulings in the present case). But the law is clear that prior adverse rulings are not sufficient to require disqualification.” In plain language, just because a judge rules against a litigant in a different case, there is not adequate reason to ask the judge to disqualify him or herself. Even a death threat aimed at a judge by a litigant is not automatic basis for a judge to recuse.

Floyd Hit A Familiar Brick Wall: “Failing to raise issues in the trial court.”

Finally, the Appeals Court also examined Floyd’s requests to that Court that it “requests review by the Judicial Tenure Commission regarding conduct of the trial court judge, review by the Attorney Grievance Commission of the conduct of City Attorneys, and review by the Michigan Attorney General and Washtenaw County Prosecutor regarding conduct of the Mayor and City Clerk Jacqueline Beaudry.”

In making these requests of the Court of Appeals, John Floyd and his attorney ran full speed into the familiar appellate brick wall that is “failing to raise issues in the trial court.”

The Court of Appeals explained in its opinion: “Plaintiff waived appellate review of each of these issues by failing to raise these issues in the trial court. For an issue to be preserved for appellate review, it must be raised in or decided by the trial court. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Plaintiff did not raise any of these requests at any time in the trial court. Moreover, even if this issue was properly preserved, this Court is not the proper venue in which to raise such requests.”

Read the Court’s unpublished opinion here.