Avara v. Baltimore News American Division, 85

• Decision Date: 26 January 1982
• Docket Number: No. 85,85
• Citation: 440 A.2d 368,292 Md. 543
• Parties: , 8 Media L. Rep. 1272 R. Charles AVARA et al. v. The BALTIMORE NEWS AMERICAN DIVISION, The Hearst Corporation.
• Court: Maryland Court of Appeals

Page 543

292 Md. 543

440 A.2d 368, 8 Media L. Rep. 1272

R. Charles AVARA et al. v. The BALTIMORE NEWS AMERICAN DIVISION, The Hearst Corporation.

No. 85.

Court of Appeals of Maryland.

Jan. 26, 1982.

Stephen H. Sachs, Atty. Gen., Baltimore (Robert A. Zarnoch and Linda H. Lamone, Asst. Attys. Gen., Annapolis, on brief), for appellants.

Theodore Sherbow, Baltimore (Stephen M. Hearne and Sherbow, Shea & Tatelbaum, P. A., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

The primary issue in this case is whether a Conference Committee of the Maryland General Assembly appointed to resolve differences between the two Houses arising over enactment of the Fiscal Year 1982 Budget Bill (H.B. 620) violated the provisions of Maryland Code (1957, 1980 Repl. Vol.), Article 76A, §§ 7-15 (the Act), by excluding the public from its working sessions.

(1)

The Act requires that meetings of public bodies, with some exceptions, be open to the public. In § 7, the General Assembly declared:

"It is essential to the maintenance of a democratic society that except in special and appropriate circumstances public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy."

Section 9 provides that the Act applies to a "public body when it is exercising legislative, quasi-legislative or advisory functions." Section 8(g) defines a " 'Public body' " as "an entity consisting of two or more persons that is created by the State Constitution, by State statute, local charter or ordinance, or rule, resolution or bylaw, or by executive order of the Governor or the chief executive authority of a political subdivision of the State." Section 8(f) defines a " 'Meeting' " to mean "the convening of a quorum of the constituent membership of a public body for the purpose of considering or transacting public business."

Section 10 requires that meetings of every public body covered by the Act "shall be open to the public unless closed in accordance with § 11." Section 11 authorizes meetings to be closed for any of thirteen specified reasons, one of which (§ 11(a)(13)) permits a meeting to be closed on an individually recorded affirmative vote of two-thirds of the members present, for an "exceptional reason so compelling as to override the general public policy in favor of open meetings." Section 11(b)(2) requires:

"A statement of the time, place, and purpose of any closed meeting, the record of the vote of each member by which any meeting was closed, and the authority under this section for closing any meeting shall be included in the minutes of the next public meeting or public session of the public body."

Section 12(a) requires that public bodies give reasonable advance notice of open meetings. Section 14 entitled "Enforcement of subtitle" authorizes the filing of civil actions by a person "adversely affected by an action in violation of §§ 10 or 12 ... for the purpose of requiring compliance with the provisions of these sections, determining the applicability of these sections, or voiding the action." Section 14(e)(1) authorizes the court "to issue an injunction, to determine the applicability of this subtitle to the discussions or decisions of public bodies, or to grant such other relief as may be appropriate." Section 14(e)(2) authorizes the court to "declare void any final action taken at a meeting held in wilful violation of §§ 10 or 12 ... (if it) finds that no other remedy would be adequate under the circumstances." Subsection 14(g) declares: "This section does not apply to an action appropriating public funds, levying taxes, or providing for the issuance of bonds, notes or other evidences of public obligation." Section 14(h) recites that the provisions of § 14 "do not affect or preclude the application of any other available remedies."

(2)

House and Senate Rules 60 and 61, which are identical in substance, authorize the appointment of conference committees where the two Houses "are unable to concur on the final form of a Bill." The rules provide that the report of the committee may not be amended and if the report recommends passage of the bill in any forum, the bill shall be submitted to a vote of each House.

On April 2, 1981, a House-Senate Conference Committee on the Budget Bill, consisting of three members of each House, was appointed to make recommendations involving a number of items in the Budget Bill concerning which the two Houses were not in agreement. The Committee met on April 2, 3 and 6 in closed session. On each occasion, the members unanimously voted to exclude the public and press from attending the meeting and observing the Committee's deliberations. On April 6, 1981, the report of the Conference Committee was submitted to the General Assembly and the Budget Bill was enacted on the same day.

The Baltimore News American, a daily and Sunday newspaper, filed a bill of complaint in the Circuit Court for Anne Arundel County, seeking a declaratory judgment that the Budget Conference Committee, and all other Conference Committees of the General Assembly, were public bodies whose meetings were required to be open to the public. The case was tried on a stipulation of facts between the parties. It was thereby agreed that on April 2, 1981, after the Committee voted to exclude the press and the public from its meetings, Senator Laurence Levitan, one of the conferees, gave as "compelling reasons" justifying closure "the uniqueness and importance of the budget and the budget bill and the necessity to preserve free and open discussion concerning resolution of the conflicts between the two Houses." It was also stipulated that the constitutional deadline for enacting the Budget Bill was 12 midnight, April 6, 1981; that the Conference Committee concluded its business and submitted its report at 12 noon on that day; and that the House and Senate adopted the recommendations of the Committee and approved the Budget Bill, respectively, at 3:30 p. m. and 4:30 p. m. on April 6. The parties further stipulated that in 1976 and 1977 the General Assembly failed to enact the Budget Bill by the constitutional deadline, necessitating a proclamation by the Governor extending the time of the regular session. Additionally, it was stipulated that in every legislative session since 1976 a House-Senate Conference Committee had been appointed to resolve differences between the two Houses in the budget and that it was likely that a similar Conference Committee would be appointed in 1982.

The court (Hopper, J.) stated that "The central and only substantive issue raised by the pleadings ... (was whether) the Budget Conference Committee of the General Assembly (was) required by Article 76A of the Maryland Code to meet in open session at which the public may attend." After reviewing the provisions of the Act, and the public policy reasons underlying its passage as set forth in § 7, the court held that the Committee was a "public body" exercising an "advisory function" within the contemplation of the Act's provisions. ¹ The court recognized that under § 11(a)(13) a meeting could be closed for an "exceptional reason so compelling as to override the general public policy in favor of open meetings." It held, however, that that provision was required by § 14(i) to be strictly construed, ² and that the reason given by Senator Levitan for closing the meeting was not so compelling as to override the general public policy in favor of open meetings. The court said:

"(T)he very reason for open meetings is so that the citizens (public) be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy .... (T) he very reason given for closing the meeting was itself to avoid precisely what the Public Policy set forth in Section 7 of Article 76A sought to accomplish. The importance of the Budget and its effect on the public is self-evident, and this Court is persuaded that any fair and reasonable construction of Section 11(a)(13) would preclude the Committee from closing the meeting to avoid or circumvent the very thing that it sought to accomplish by its public policy in Section 7. How can the reasons furnished by the Committee be so compelling as to override the public policy when the public policy when the public is entitled to be present to observe the performance of public officials, and the deliberations and decisions that go into the making of public policy. Section 11(a)(13) cannot be so construed as to encompass an evasion or circumvention of Section 7. It must be for reasons that override Section 7."

The court found no merit in the argument that § 14(g) deprived it of authority to enforce the Act because the Committee was engaged in "an action appropriating public funds." The court said that the Conference Committee performed only a "conciliatory advisory function" and its action was not, therefore, one appropriating public funds within the contemplation of § 14(g). Even if it was such an action, the court said it nevertheless had jurisdiction under the Maryland Uniform Declaratory Judgments Act, Code (1980 Repl. Vol.), §§ 3-401 to 3-415 of the Courts and Judicial Proceedings Article to determine the applicability of the Act's provisions to the Conference Committee's actions. The court also held that the Speech and Debate clauses of Article 10 of the Maryland Declaration of Rights, ³ and Article III, § 18 of the Maryland Constitution, ⁴ did not operate as a bar to the plaintiff's action, as claimed by the Attorney General. The court said that the plaintiff sought only a declaration of rights under Article 76A "and in no way whatever seeks to impeach any proceedings, or impose liability on any Defendant, either civil or criminal"...