Fisher v. Maricopa County Stadium Dist.

• Decision Date: 05 October 1995
• Docket Number: CA-CV,No. 1,1
• Citation: 912 P.2d 1345,185 Ariz. 116
• Parties: Jim FISHER, Plaintiff-Appellant, v. MARICOPA COUNTY STADIUM DISTRICT; Jim Bruner, Mary Rose Wilcox, Tom Rawles, Ed King, Betsey Bayless, as Directors in their official capacity, Defendants-Appellees. 94-0112.
• Court: Arizona Court of Appeals

Page 1345

912 P.2d 1345

185 Ariz. 116

Jim FISHER, Plaintiff-Appellant, v. MARICOPA COUNTY STADIUM DISTRICT; Jim Bruner, Mary Rose Wilcox, Tom Rawles, Ed King, Betsey Bayless, as Directors in their official capacity, Defendants-Appellees.

No. 1 CA-CV 94-0112.

Court of Appeals of Arizona,

Division 1, Department C.

Oct. 5, 1995.

Review Denied March 19, 1996.

[185 Ariz. 118] Appeal from the Superior Court of Maricopa County; Cause No. CV 93-25670; Honorable Stanley Z. Goodfarb, Judge.

Arizona Center for Law in the Public Interest by Timothy M. Hogan, Phoenix, for plaintiff-appellant.

Richard M. Romley, Maricopa County Attorney by Jessica Gifford Funkhouser, Deputy County Attorney, Shawn H. Nau, Deputy County Attorney, Phoenix, for defendants-appellees.

OPINION

VOSS, Judge.

In this appeal we do not question the validity of the enactment of the sales tax by the Maricopa County Stadium District ("Stadium District") or the use of the tax proceeds to construct the Bank One Ballpark; both may proceed unimpeded by this decision. ¹ We do, however, examine the allegation that meetings by the Stadium District ² were carried out in violation of the Arizona Public Open Meeting Law ("Open Meeting Law"). A.R.S. §§ 38-431 to 431.09 (1985 & Supp.1994).

FACTUAL AND PROCEDURAL BACKGROUND

When a group of private investors ("Owners Group") inquired with Maricopa County officials about public financing for the construction of a major league baseball stadium, the Stadium District was created as the public body to evaluate and eventually vote on any stadium proposal. The Stadium District delegated the negotiations to county attorneys who met privately with the Owners Group. Before the scheduled vote on whether to approve the stadium deal, the Stadium District scheduled four closed-door executive sessions, the stated purpose of which was to confer with the negotiating attorneys to "receive legal advice and give direction to County Counsel regarding legal issues relating to a professional baseball stadium." Plaintiff-Appellant's Complaint at 3.

Jim Fisher ("Appellant") challenged the legality of these executive sessions by filing a Complaint in superior court on December 3, 1993. Appellant claimed that several executive sessions scheduled by the Stadium District were held in violation of the Open Meeting Law. A.R.S. § 38-431.01(A).

The Stadium District filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. The hearing on the motion was held on December 20, 1993. During the hearing, the trial judge ordered that the Stadium District's executive session minutes be turned over to the court for in camera review. That same day, the judge entered an order granting the Stadium District's Motion to Dismiss. The judge held that Appellant did not meet his burden of proving that there was a "reasonable basis for a factual belief ... that the statute was violated...."

Appellant filed a Petition for Special Action on December 23, 1993, but this court declined to exercise jurisdiction. Final judgment was entered on January 5, 1994, and Appellant filed a timely Notice of Appeal on January 19, 1994. We have jurisdiction over this appeal pursuant to A.R.S. sections 12-120.21 (1992) and 12-2101(B) (1994).

ISSUES

The central issue of this appeal, whether the trial judge erred in dismissing Appellant's case, requires us to decide three questions. First, is this appeal moot? Second, did the trial judge err in dismissing Appellant's case for failure to state a claim? To answer this, we must consider both whether Appellant's Complaint sufficiently alleged a claim and whether the trial judge applied the correct burden of proof. Third, did the trial judge err in granting summary judgment after he read and considered the executive session minutes? To answer this, we must consider whether the trial judge applied the correct definition of "legal advice."

I. MOOTNESS

The Stadium District argues that, because the sales tax has been enacted, the appeal no longer presents a controversy and is, therefore, moot. Appellant responds that he does not seek to invalidate the tax, but instead seeks statutory damages and attorney's fees pursuant to the Open Meeting Law. See A.R.S. § 38-431.07(A). The issues of statutory damages and attorney's fees are properly preserved on appeal; therefore, this appeal is not moot.

Furthermore, even if Appellant's claim for statutory damages was not enough to preserve all of the issues raised, we note that the mootness doctrine is not mandated by the Arizona Constitution, but is solely a discretionary policy of judicial restraint. Big D Constr. Corp. v. Court of Appeals, 163 Ariz. 560, 562-63, 789 P.2d 1061, 1063-64 (1990). Arizona courts may consider an appeal that has "become moot when significant questions of public importance are presented and are likely to recur." Id. at 563, 789 P.2d at 1064.

To determine whether the issue is of sufficient "public importance," we consider the impact of the alleged violation; whether the issue is likely to recur; and whether the issue is one that will evade review in the future. Id.; KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 250, 678 P.2d 431, 435 (1984) (holding that an issue that will evade review is not subject to the mootness doctrine); see also generally Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 588 (Alaska 1990) (holding that the mootness doctrine is a product of judicial policy and not constitutional mandate; and explaining the exceptions to the doctrine).

The Stadium District reasons that the issues raised by Appellant will not recur because "construction of more than one major league baseball stadium within Maricopa County is very unlikely." Appellee's Answering Brief at 7. The Stadium District mischaracterizes the issue in a hyper-specific manner. The issue likely to recur is not the building of a second stadium but the future use of the "legal advice" exemption to justify executive sessions and the misallocation of the burden of proof.

These issues are fundamentally significant because they will define just how "open" Arizona's Open Meeting Law should be. If exemptions to the law are left unexamined by the judiciary, they could handily be expanded until the purpose of the law is frustrated. Because we also find that these issues are likely to recur and that timely, unpressured review of these issues is elusive, we exercise our discretion to address the merits of this appeal.

II. SUMMARY DISMISSAL OF APPELLANT'S CASE

The trial judge granted the Stadium District's Motion to Dismiss because Appellant did not satisfy his burden of proof. However, the trial judge also states later in his order that he considered other evidence that also warranted dismissal. We will consider whether the trial judge's judgment of dismissal can be upheld as either a motion to dismiss or as a summary judgment.

A. Motion to Dismiss for Failure to State a Claim

When a trial judge grants a motion to dismiss, we will affirm only if the facts pled by Appellant--and assumed by us to be true--fail to state a claim upon which relief can be granted. Petolicchio v. Santa Cruz County Fair and Rodeo Ass'n, 177 Ariz. 256, 258, 866 P.2d 1342, 1344 (1994). The Stadium District argues, and the trial judge agreed, that Appellant's Complaint failed to state a valid claim because it did not show a "factual basis to support a belief that a violation has occurred." Dec. 20, 1993, minute order. The Stadium District contends that Appellant's challenge is "baseless" and therefore failed to properly and specifically allege a violation of the Open Meeting Law.

Appellant's Complaint alleged that "[p]ublic accounts of these meetings indicate that they are being conducted in executive session to preserve the confidentiality of the negotiations between the defendants and the Owners Group and 'to make sure we get a good deal for the taxpayers.' " Appellant's Complaint at 3-4. The quote was attributed to a Stadium District member and reported in the Phoenix Gazette. The Complaint summarizes its concern that the news accounts

indicate that something more than legal advice is being discussed in these executive sessions and that their true purpose is to provide the defendants with reports as to the status of negotiations with the Owners' Group and for counsel to receive direction from the defendants as to both legal and non-legal matters.

Id. at 4. The Complaint concludes that the "plaintiff has a legitimate concern that violations of the Open Meeting law have occurred or will occur in the future. The defendants have the burden of proving that their actions fall within an executive session exception to the Open Meeting law." Id. We agree that these allegations are sufficient to support a claim challenging the Stadium District's executive sessions.

The trial judge also stated that he was granting the Stadium District's Motion to Dismiss because Appellant failed to meet his burden of proof. While it is true that the burden of proving a violation of the Open Meeting Law generally rests on the plaintiff asserting the violation, this is not the case for challenges to executive sessions. City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 486 n. 4, 803 P.2d 891, 897 n. 4 (1990). In footnote 4, the supreme court stated:

The trial court, in determining that Prescott did not meet its burden of proving that unlawful discussions took place, was referring to discussions generally and not to the executive sessions at issue in our review of this case. We agree with the trial court that the burden of proving a violation of the open meeting law generally is on the party asserting the violation.

We do not mean to imply, however, that the party challenging an executive session has the burden of proving that an improper discussion took place at the closed meeting. To the contrary, we believe that the public body has the burden of proving that its actions fall within an...