City Council of City of Reno v. Reno Newspapers, Inc.

• Decision Date: 28 December 1989
• Docket Number: No. 18206,18206
• Parties: , 17 Media L. Rep. 2150 The CITY COUNCIL OF the CITY OF RENO, Appellant, v. RENO NEWSPAPERS, INC., a Nevada corporation, Respondent.
• Court: Nevada Supreme Court

Page 974

784 P.2d 974

105 Nev. 886, 17 Media L. Rep. 2150

The CITY COUNCIL OF the CITY OF RENO, Appellant, v. RENO NEWSPAPERS, INC., a Nevada corporation, Respondent.

No. 18206.

Supreme Court of Nevada.

Dec. 28, 1989.

Patricia Lynch, City Atty., and Carl F. Hylin, Asst. City Atty., Reno, for appellant.

Hardesty & Moss, Reno, for respondent.

OPINION

ROSE, Justice ¹:

The City of Reno City Council (the Council) appeals a district court citation holding five members of the Council in contempt for violating an injunction that prohibited them from conducting closed meetings for the purpose of selecting public officers. We conclude that although the Council members violated Nevada's Open Meeting Law there is insufficient evidence to support the district court's criminal contempt citation.

FACTS

Reno Newspapers, Inc. (Reno Newspapers) sued the Council in 1986 to force it to select Reno's new city manager in a session open to the public. At the time of the suit, the Council had eliminated all but two of the 75 city manager candidates and was about to make its final decision.

The parties eventually settled their dispute by entering into a stipulation to judgment. In the stipulation, the Council admitted that it had violated Nevada's Open Meeting Law in its city manager selection process and it agreed to entry of a permanent injunction restraining it from conducting "any closed sessions in violation of Chapter 241 of the Nevada Revised Statutes in the future in connection with the selection of a public officer, as that term is defined in NRS 281.005." Pursuant to this stipulation, the district court entered a judgment permanently enjoining and restraining the Council from conducting any closed meetings in the future for the purpose of selecting a public officer, as that term is defined in NRS 281.005. The district court also expressly reserved jurisdiction over the city manager selection process until June 1, 1986.

Approximately ten months after entry of the injunction, the Council selected a new city clerk. The Council conducted the initial interviews of the applicants in a public session, but then announced the desire to go into a closed personnel session to discuss the applicants and asked the city attorney if this was legal. Although initially equivocal, the city attorney ultimately advised the Council members that it was permissible pursuant to NRS 241.030(1), provided they discuss only the character, alleged misconduct, professional competence or physical or mental health of the applicants. Mayor Pete Sferrazza, himself an attorney, voiced concern about the closed meeting violating the Open Meeting Law. A reporter for Reno Newspapers objected to the closed session and requested a recess so that his employer's attorney could appear and present arguments in opposition to it. Councilman David Howard asserted that the Mayor was permitting a young reporter to run the City Council meeting and abruptly left.

Acting on the city attorney's advice, Florence Lehners, Janice Pine, Gus Nunez and The minutes of the closed meeting indicate that the Council members in attendance discussed only the character and professional competence of the applicants. The Council members then reconvened publicly, discussed the requirements of the city clerk's job, nominated two candidates, and proceeded to vote. Don Cook was selected as the new city clerk.

Catherine Wishart voted to meet in a closed personnel session. Walter Wilson and Peter Sferrazza opposed the motion. Six City Council members, Lehners, Wilson, Pine, Nunez, Howard and Wishart, along with the city attorney then met in a closed session. Mayor Sferrazza did not attend the twenty minute closed meeting.

Thereafter, Reno Newspapers moved for an order compelling the Council to show cause why it should not be held in contempt for violating the previously entered permanent injunction. The district court issued the requested order to show cause. In answer to the show cause order, the Council averred that the permanent injunction involved only the selection of the city manager and, by its terms, had expired, and that the five Council members who met in closed session had not violated the Open Meeting Law because they met only to discuss matters permitted by NRS 241.030(1).

After a hearing, the district court found that the four Council members, Florence Lehners, Gus Nunez, Janice Pine and Catherine Wishart, who voted to close the session were in violation of the permanent injunction. Each were fined $300. Councilman David Howard, who attended the closed meeting but who had not voted for it, was also found guilty of contempt and fined $500 for willfully violating the injunction. The district court assessed attorney's fees and costs against the Council.

LEGAL DISCUSSION

I. Effectiveness of Preliminary Injunction

The stipulation for entry of judgment entered into by the parties concerned the selection of the city manager, but also stated that the Council would not violate NRS Chapter 241. NRS Chapter 241, Nevada's Open Meeting Law, however, contains an exception that permits closed meetings. Nonetheless, the judgment entered pursuant to the stipulation went beyond the stipulation's language by stating that the Council is permanently enjoined from "conducting any closed meetings in the future for the purpose of selecting a public officer."

The Council asserts first that the district court lost jurisdiction once the city manager was selected. While the district court expressly reserved jurisdiction until completion of the city manager's selection, the prohibition against selecting a public officer in private had no time limitation and was effective until withdrawn. A district court may enforce an injunction by subsequent contempt proceedings. See Conforte v. Hanna, 76 Nev. 239, 351 P.2d 612 (1960). Therefore, the injunctive prohibition was effective and binding on the Council when, less than a year hence, it considered the selection of another public officer, i.e., the city clerk.

Since the district court had jurisdiction of the issue addressed in the motion and order to show cause, we must next determine whether the district court erred in enjoining future conduct that would be in violation of the Open Meeting Law. The answer to this question is given by the Supreme Court of Florida's interpretation of a similar statute. In Board of Public Instruction of Broward Co. v. Doran, 224 So.2d 693 (Fla.1969), the court stated:

While it is well established that courts may not issue a blanket order enjoining any violation of a statute upon a showing that the statute has been violated in some particular respects (see Moore v. City Dry Cleaners & Laundry, 41 So.2d 865 (Fla.1949)), nevertheless they do possess authority to restrain violations similar to those already committed. See Interstate Commerce Commission v. Keeshin Motor Express, 134 F.2d 228 (C.C.A.Ill.1943). This Court may enjoin violations of a statute where one violation has been found if it appears that the future violations bear some resemblance to the past violation or that danger of violations in the future is to be anticipated from the course of conduct in the past. See National Labor Relations Board v. Express Publishing Company, 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930 (1941).

Id. at 699, 700.

The district court had a clear indication that the City of Reno had violated Nevada's Open Meeting Law. Coupled with the Council's stipulation to a judgment that would enjoin it from violating the Open Meeting Law in the future selection of public officers, this provided sufficient specificity and basis for entering the permanent injunction.

The final determination concerning the preliminary injunction is whether the injunction pursuant to stipulation was effective to the extent that it went beyond the language of the stipulation by expanding the activity that the city was forbidden to conduct, i.e., the prohibition against the private selection of any public officer without respect to any exception contained in the Open Meeting Law.

Public officers can only be enjoined from acts that are unlawful or in excess of the officer's authority. State ex rel. Berger v. Myers, 108 Ariz. 248, 250, 495 P.2d 844, 846 (1972). Since the Open Meeting Law permits public bodies to close meetings in some circumstances, the blanket prohibition against ever closing a meeting involving the appointment of a public officer might have prevented the Council from doing a lawful act. When an injunction against a public agency for failure to conduct an open meeting is too broad in scope, it may be modified on appeal and enforced as modified. See Sacramento Newspaper Guild v. Sacramento Co. Bd. of Super., 263 Cal.App.2d 41, 69 Cal.Rptr. 480 (1968). Thus, to the extent that the injunction was overly broad, we restrict and deny effect to its language in excess of that which prohibited the selection of a public officer in any closed session in violation of Chapter 241.

II. Nevada's Open Meeting Law

The pivotal question now is whether the closed meeting that gave rise to this appeal violated Nevada's Open Meeting Law. We begin by observing that the legislature amended and strengthened the Open Meeting Law in 1977, but that the amendment also specifically sets forth an exception to the Open Meeting Law. Section 1 of NRS 241.030 provides that a public body may hold "a closed meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of a person." Had the statute stopped here, there would be no question that the Council's actions were lawful. However, section 3 of NRS 241.030 enumerates certain things the Open Meeting Law does not permit, and, in NRS 241.030(3)(e), the statute clearly provides that the Open Meeting Law "does not permit a closed meeting for the discussion of the appointment of any person to public office or as a member of a public body."

The Council argues that it did not...