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A lawsuit filed by half of the Wayne State University Board of Governors against the other half was delayed Friday when Michigan Court of Appeals Judge Cynthia Stephens dismissed the case on a technicality.

The controversy will remain alive after Stephens said the plaintiffs could refile the case and she would issue a written ruling within 10 days of the refiling.

The four board members who sued — Governors Sandra Hughes O'Brien, Michael Busuito, Anil Kumar and Dana Thompson — refiled the case later Friday, said their lawyer, Bill Burdett.

The suit seeks an injunction against decisions about student tuition, a real estate transaction and more during a June meeting when the four plaintiffs admitted that they boycotted the meeting, leaving the remaining four board members without a quorum.

At the time, Lou Lessem, Wayne State's general counsel, ruled that President M. Roy Wilson could act as an ex-officio member so the board could have a quorum and conduct business. 

But the four board members who sued Wilson as well as Governors Kim Trent, Bryan Barnhill, Mark Gaffney and Marilyn Kelly, said in their lawsuit that the meeting was illegal.

They explained in the lawsuit that they boycotted the meeting because one of the four members, Kumar, was going to be on vacation and wouldn't be at the meeting to vote against a last-minute agenda item of a long-term sublease of a building at 400 Mack Avenue that previously had been rejected because of the cost.

After the hearing, Kelly said there is no question that the judge should rule in favor of the defendants.

"The plaintiffs put forth no legal authority whatsoever in support of the argument that the president is not a member of the board," she said.

A former Michigan Supreme Court justice, Kelly added that Michigan's high court ruled that the Open Meetings Act did not apply to the case. 

"We have a minority of members of the board who are discontent about this and other issues and they want ... attention," she said. 

Kelly was referring to a battle between the two sides that has been playing out for months as the faction that filed the lawsuit derailed talks to expand a partnership between Henry Ford Health System and the university's medical school.

Busuito said the lawsuit is not about squabbling, it's about the state Constitution.

"This will have a major impact not only on how the three major universities and other public universities in the state are going to run," Busuito said, "but there are all kinds of municipalities that have ex-officio members without voting powers."

kkozlowski@detroitnews.com

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