Berry v. Peoples Broadcasting Corp., 41A01-8704-CV-87

• Decision Date: 18 November 1987
• Docket Number: No. 41A01-8704-CV-87,41A01-8704-CV-87
• Parties: 14 Media L. Rep. 2011 Michael R. BERRY and Rex E. Thompson, Individually and as Marion County Sheriff's Deputies, Appellants, v. PEOPLES BROADCASTING CORP., VideoIndiana, Inc., Susquehana Broadcasting Company, Inc., d/b/a Radio Indianapolis, Inc., Tel-Am Corporation, McGraw Hill Broadcasting Corporation, Inc., Steven E. Sweitzer, Michael J. Androvett, Joseph Hallinan, (Plaintiffs) and Marion County Sheriff's Merit Board (Defendants), Appellees.
• Court: Indiana Appellate Court

Page 1283

514 N.E.2d 1283

14 Media L. Rep. 2011

Michael R. BERRY and Rex E. Thompson, Individually and as Marion County Sheriff's Deputies, Appellants, v. PEOPLES BROADCASTING CORP., VideoIndiana, Inc., Susquehana Broadcasting Company, Inc., d/b/a Radio Indianapolis, Inc. Tel-Am Corporation, McGraw Hill Broadcasting Corporation Inc., Steven E. Sweitzer, Michael J. Androvett, Joseph Hallinan, (Plaintiffs) and Marion County Sheriff's Merit Board (Defendants), Appellees.

No. 41A01-8704-CV-87.

Court of Appeals of Indiana First District.

Nov. 18, 1987.

Rehearing Denied Jan. 18, 1988.

John C. Ruckelshaus, John F. Kautzman, Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, for appellants.

Richard A. Waples, Indiana Civ. Liberties Union, Indianapolis, for appellees Peoples Broadcasting Corp., VideoIndiana, Inc., Tel-Am Corporation, Steven E. Sweitzer and Michael J. Androvett.

Robert P. Johnstone, Jan M. Carroll, Barnes & Thornburg, Indianapolis, for appellees Indianapolis Newspapers, Inc., and Joseph Hallinan.

NEAL, Judge.

STATEMENT OF THE CASE

Michael R. Berry and Rex E. Thompson (the Deputies), third-party plaintiffs in trial court and appellants here, appeal a declaratory judgment rendered by the Johnson Circuit Court which permitted members of the news media to make reasonable use of tape recorders and cameras in a sheriff's merit board disciplinary hearing.

We affirm.

STATEMENT OF THE FACTS

The stipulated facts reveal that the Deputies were charged by the Marion County Sheriff's Merit Board (the Merit Board) with misconduct. The charges arose out of the death of Valenda Heithecker, who died of multiple gunshot wounds inflicted by the Deputies. During the hearing before the Merit Board, it was discovered that one of the media representatives was using a tape recorder, in violation of a written rule promulgated by the Merit Board. The Merit Board recessed the hearing and, after consulting counsel, announced that the rule would be enforced. Tape recorders, cameras, and television cameras would not be permitted to be used in the hearing room. All the appellees, except the Merit Board, are members of the news media and joined in the action for declaratory judgment. They sought the right, under federal and state constitutional provisions and the Indiana Open Door Law, to use, subject to reasonable restrictions, tape recorders and television cameras in Merit Board disciplinary proceedings. The media prevailed in trial court, and the correctness of that ruling is the sole issue on appeal.

DISCUSSION AND DECISION

Two Indiana statutes and a rule of the Merit Board are relevant to the resolution of this case. IND.CODE 36-8-10-11(a) provides in part:

The sheriff may dismiss, demote, or temporarily suspend a county police officer for cause after preferring charges in writing and after a fair public hearing before the board, which is reviewable in the circuit court.... (Emphasis added.)

The Indiana Open Door Law, IND.CODE 5-14-1.5-1 to -7, requires in section 1, in part, that:

[T]he official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed. The purposes of this chapter are remedial, and its provisions are to be liberally construed with the view of carrying out its policy.

There is no contention that the Merit Board is not a public agency subject to the Open Door Law. IND.CODE 5-14-1.5-3(a) then provides:

Except as provided in section 6 [5-14-1.5-6] herein, all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them. (Emphasis added.)

IND.CODE 5-14-1.5-6, the exception mentioned in the preceding section, permits executive sessions in certain specified instances, from which the public may be excluded. The section reads in relevant part as follows:

(b) Executive sessions may be held only in the following instances:

(1) where authorized by federal or state statute.

....

(5) with respect to any individual over whom the governing body has jurisdiction:

(A) to receive information concerning the individual's alleged misconduct; and

(B) to discuss, prior to any determination, that individual's status as an employee.... (Emphasis added.)

Nevertheless, certain procedures and public notice provisions must be complied with where executive sessions are held pursuant to this section.

Rule 505(B)(3) promulgated by the Merit Board addresses disciplinary hearings and media coverage:

The hearing shall be conducted at a reasonable hour and shall take place at a reasonable location to allow for a full and impartial hearing and such meeting shall be open to the public; however, at no time during the proceedings will any cameras or tape recorders be allowed or permitted to be running inside the hearing room. (Emphasis added.)

Record at 232.

The Deputies do not argue that the phrase contained in IND.CODE 5-14-1.5-3(a), "to observe and record them", does not include tape recorders and television cameras. Nor do they argue that the Open Door Law does not apply. The sole argument presented here is that the executive session provisions contained in IND.CODE 5-14-1.5-6 exclusively control and that the hearing was an executive session.

An executive session is defined as a meeting from which the public is excluded. IND.CODE 5-14-1.5-2(f). Only the Merit Board makes the determination to conduct an executive session. IND.CODE 5-14-1.5-6 invokes the discretionary word "may" in relation to the utilization of an executive session. The record does not reflect that the executive session provision was invoked. Rather, the record reflects that it was not. The Merit Board's own rule, as well as IND.CODE 36-8-10-11(a), provide that the proceedings shall be public. Here, the public and the media were not excluded. Thus, the argument presented by the Deputies must fail on this basis alone.

The second question to be answered is whether it is within the power of the Merit Board to conduct the disciplinary hearing in executive session. Since this question may arise in further proceedings, we will address it. Both parties cite rules of statutory construction, which we will recite. If two statutes address the same subject matter, they should be read in concert and harmonized if possible. Bell v. Bingham (1985), Ind.App., 484 N.E.2d 624. To the extent that apparently conflicting statutes cannot be so harmonized, the more specific or detailed statute should prevail over the more general statute. Bell, supra; accord Sanders v. State (1984), Ind., 466 N.E.2d 424; Stream Pollution Control Board v. Amax, Inc. (1985), Ind.App., 475 N.E.2d 1157; Indiana State Highway Commission v. Bates and Rogers Construction Co. (1983), Ind.App., 448 N.E.2d 321. In Citizens Action Coalition of Indiana, Inc. v. Public Service Commission of Indiana (1981), Ind.App., 425 N.E.2d 178, 184, we said:

In instances where the two acts deal with the same particular subject, the statutes must be examined carefully and harmonized if possible. Where the statutes cannot be harmonized the courts must strive to ascertain the legislative intent behind the statutes. As a general rule, there is a presumption that the...