Cheyenne Newspapers v. Building Code Bd.

• Decision Date: 08 January 2010
• Docket Number: No. S-09-0103.,S-09-0103.
• Citation: 222 P.3d 158,2010 WY 2
• Parties: CHEYENNE NEWSPAPERS, INC., a Wyoming corporation, Appellant (Plaintiff), v. BUILDING CODE BOARD OF APPEALS Of the CITY OF CHEYENNE, Appellee (Defendant).
• Court: Wyoming Supreme Court

222 P.3d 158

2010 WY 2

CHEYENNE NEWSPAPERS, INC., a Wyoming corporation, Appellant (Plaintiff), v. BUILDING CODE BOARD OF APPEALS Of the CITY OF CHEYENNE, Appellee (Defendant).

No. S-09-0103.

Supreme Court of Wyoming.

January 8, 2010.

Representing Appellant: Bruce T. Moats of Law Office of Bruce T. Moats, P.C., Cheyenne, Wyoming.

Representing Appellee: Kate M. Fox of Davis & Cannon, LLP, Cheyenne, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] Cheyenne Newspapers, Inc. (the Newspaper), appeals from a summary judgment granted by the district court in favor of the Building Code Board of Appeals of the City of Cheyenne (the Board), declaring that certain Board action did not violate the Wyoming Public Meetings Act, and that such action, therefore, was not null and void. We affirm in part and reverse in part.

ISSUES

[¶ 2] 1. Are quasi-judicial deliberations following a contested case hearing under the Wyoming Administrative Procedures Act (WAPA) subject to the Wyoming Public Meetings Act (the Act)?

2. Did the Board take any action that must be considered null and void when it met in private to deliberate on a contested case hearing and then voted on its decision in a public meeting?

FACTS

[¶ 3] The Board was created by an ordinance of the City of Cheyenne, a municipality duly incorporated by the State of Wyoming. Board procedures are governed by rules promulgated in 1997. In 2008, the City of Cheyenne's Historic Preservation Board denied permits to demolish six houses in an historic district. The homeowners appealed to the Board. The Board conducted a public contested case hearing on June 27, 2008, during which hearing the parties were represented by counsel, witnesses were heard, and exhibits presented. At the close of the hearing, the Board retired to deliberate in private. These private deliberations, which the Board characterized as "quasi-judicial" rather than "executive session," extended into a meeting on July 2, 2008. The Board then convened a public meeting on July 14, 2008, during which it discussed its prior deliberations and then voted to adopt a draft decision affirming the denial of the demolition permits.

[¶ 4] On July 8, 2008, the Newspaper filed in the district court a Petition for Injunction, seeking an order prohibiting the Board from entering a decision prior to deliberating in a public meeting. Because the Board issued its decision before the Newspaper's petition was heard, the Newspaper on July 16, 2008 filed an Amended Complaint, seeking instead an order declaring the Board's action to be "null and void as not in conformance with the Wyoming [Public] Meetings Act."

[¶ 5] Both parties filed in the district court motions for summary judgment, which motions were heard upon their additional filing of a Joint Statement of Undisputed Facts. The district court determined that the Newspaper had standing to pursue the action, that the Act did not apply to quasi-judicial deliberations after a contested case hearing pursuant to the WAPA, and that the Board's action was, therefore, not null and void. Summary judgment was granted to the Board, which led to the instant appeal.

DISCUSSION

[¶ 6] Before we discuss the substantive issues in the case, we must very briefly address the jurisdictional standing issue mentioned by the Newspaper, although not challenged by the Board. We will note simply that we are satisfied that the Newspaper has standing to seek a declaration from the courts that the public, and the media as the public's representative, have standing under our precedent to determine the applicability of the Act under these circumstances. See Jolley v. State Loan & Inv. Bd., 2002 WY 7, ¶¶ 6-10, 38 P.3d 1073, 1076-79 (Wyo.2002); Mgmt. Council of the Wyo. Legislature v. Geringer, 953 P.2d 839, 841-42 (Wyo.1998); Washakie County Sch. Dist. No. One v. Herschler, 606 P.2d 310, 316-18 (Wyo.1980). In particular, Sheridan Newspapers, Inc. v. City of Sheridan, 660 P.2d 785, 791-95 (Wyo. 1983), recognizes that the public has the right to know what its government is doing, and that members of the "press are the eyes and ears of the people." Id. at 791.

[¶ 7] Although it is not affirmatively identified as such, the Newspaper's Amended Complaint is of the nature of a declaratory judgment action brought pursuant to Wyo. Stat. Ann. § 1-37-103 (LexisNexis 2009), which reads as follows:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.

[¶ 8] We have held that summary judgment may be an appropriate resolution of a declaratory judgment action. Coffinberry v. Bd. of County Comm'rs of County of Hot Springs, 2008 WY 110, ¶ 3, 192 P.3d 978, 979 (Wyo.2008). Our standard for reviewing a summary judgment granted in a declaratory judgment action is as follows:

We review a grant of summary judgment entered in response to a petition for declaratory judgment de novo. Wyo. Cmty. Coll. Comm'n v. Casper Cmty. Coll. Dist., 2001 WY 86, ¶ 11, 31 P.3d 1242, 1247 (Wyo.2001). "We accord no deference to the district court on issues of law and may affirm the summary judgment on any legal grounds appearing in the record." Id. "The summary judgment can be sustained only when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law." Id.

Voss v. Goodman, 2009 WY 40, ¶ 9, 203 P.3d 415, 419 (Wyo.2009).

[¶ 9] The question presented to the Court is one of statutory construction. The rules for that process are well established:

In interpreting statutes, our primary consideration is to determine the legislature's intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation.

Moreover, we will not enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions.

Only if we determine the language of a statute is ambiguous will we proceed to the next step, which involves applying general principles of statutory construction to the language of the statute in order to construe any ambiguous language to accurately reflect the intent of the legislature. If this Court determines that the language of the statute is not ambiguous, there is no room for further construction. We will apply the language of the statute using its ordinary and obvious meaning.

BP Am. Prod. Co. v. Dep't of Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo.2005) (internal citations and quotations omitted). We must accept statutes as they are written; neither omitting words that are included, nor including words that are omitted. Id.; Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo.2005); Fontaine v. Bd. of County Comm'rs of Park County, 4 P.3d 890, 895 (Wyo.2000); In re Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976).

[¶ 10] Whether a statute is ambiguous is a question of law for the Court's determination. Dep't of Revenue & Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo. 1994). A statute is unambiguous if reasonable persons are able to agree as to its meaning with consistency and predictability, while a statute is ambiguous if it is vague or uncertain and subject to varying interpretations. Id. (internal citations and quotation marks omitted).

[¶ 11] The instant case focuses upon the language of Wyo. Stat. Ann. § 16-4-403(a) (LexisNexis 2009), which reads as follows:

(a) All meetings of the governing body of an agency are public meetings, open to the public at all times, except as otherwise provided. No action of a governing body of an agency shall be taken except during a public meeting following notice of the meeting in accordance with this act. Action taken at a meeting not in conformity with this act is null and void and not merely voidable.

The following definitions found in Wyo. Stat. Ann. § 16-4-402(a) (LexisNexis 2009) are relevant to the issues presented:

(a) As used in this act:

(i) "Action" means the transaction of official business of an agency including a collective decision of a governing body, a collective commitment or promise by a governing body to make a positive or negative decision, or an actual vote by a governing body upon a motion, proposal, resolution, regulation, rule, order or ordinance;

(ii) "Agency" means any authority, bureau, board, commission, committee, or subagency of the state, a county, a municipality or other political subdivision which is created by or pursuant to the Wyoming constitution, statute or ordinance, other than the state legislature and the judiciary (iii) "Meeting" means an assembly of at least a quorum of the governing body of an agency which has been called by proper authority of the agency for the purpose of discussion, deliberation, presentation of information or taking action regarding public...