Garlock v. Wake County Bd. of Educ., COA10–1123.

• Decision Date: 19 April 2011
• Docket Number: No. COA10–1123.,COA10–1123.
• Parties: Barbara GARLOCK, Andrew Snee, by and through Julie Snee, his parent and guardian, David Eisenstadt, by and through Alison Eisenstadt, his parent and guardian, Woodrow Barlow, by and through Ava Barlow, his parent and guardian, Judy Pidcock, Erin Byrd, Gerald Wright, and Colethia Evans, Citizens of Wake County, North Carolina, Plaintiffs,v.WAKE COUNTY BOARD OF EDUCATION, a public body, and its members, in their official capacities, Defendants.
• Court: North Carolina Court of Appeals

712 S.E.2d 158

270 Ed. Law Rep. 294

Barbara GARLOCK, Andrew Snee, by and through Julie Snee, his parent and guardian, David Eisenstadt, by and through Alison Eisenstadt, his parent and guardian, Woodrow Barlow, by and through Ava Barlow, his parent and guardian, Judy Pidcock, Erin Byrd, Gerald Wright, and Colethia Evans, Citizens of Wake County, North Carolina, Plaintiffs,

v.WAKE COUNTY BOARD OF EDUCATION, a public body, and its members, in their official capacities, Defendants.

No. COA10–1123.

Court of Appeals of North Carolina.

April 19, 2011.

OPINION TEXT STARTS HERE

Appeal by plaintiffs and defendants from an order entered 14 May 2010 by Judge William R. Pittman in Superior Court, Wake County. Heard in the Court of Appeals 24 February 2011.

Blue Stephens & Fellers LLP by Dhamian Blue, Raleigh; North Carolina State Conference of the NAACP by Irving Joyner, Durham; UNC Center for Civil Rights by Mark Dorosin, Chapel Hill; North Carolina Justice Center by Jack Holtzman, Raleigh; Southern Coalition for Social Justice by Anita Earls, Durham; and Wood Jackson PLLC by W. Swain Wood, Raleigh, for plaintiffs-appellants.

Shanahan Law Group, PLLC by Kieran J. Shanahan and John E. Branch, III, Raleigh, for defendant-cross appellant Wake County Board of Education.

STROUD, Judge.

Intense public interest in actions under consideration by defendant Wake County Board of Education led to increased attendance by members of the public at Board meetings in early 2010, so that on 23 March 2010, the meeting rooms for the Committee of the Whole (“COW”) meeting and full Board meeting could not accommodate all who wished to attend. Plaintiffs filed this lawsuit seeking relief under North Carolina's Open Meetings Law stemming from the exclusion of members of the public from the 23 March 2010 meetings, and as requested by the plaintiffs, the trial court heard the entire matter on the merits only eight days after the lawsuit was filed. We affirm the trial court's order which found that on 23 March 2010, defendants violated the Open Meetings Law by their last-minute adoption of a ticketing policy and by exclusion of members of the public from the COW meeting, but we vacate the trial court's conclusion as to defendants' failure to accommodate a disabled person because the Open Meetings Law makes no distinction between access by disabled members of the public and access by non-disabled members of the public. The trial court properly considered defendants' actions according to the standard of reasonableness of opportunity for public access to the meetings. In addition, the trial court properly exercised its discretion by declining to grant affirmative relief and dismissing the case where the violations occurred only on 23 March 2010, defendants have taken reasonable measures to avoid future violations, and the violations were not committed in bad faith.

I. Procedural background

On 6 May 2010, a “diverse group of Wake County citizens” (“plaintiffs”) issued civil summons to the Wake County Board of Education (“Board”) and its members in their official capacities (the Board and individual defendants are hereinafter referred to collectively as “defendants”) and filed a complaint against defendants for relief pursuant to the North Carolina Open Meetings Law, N.C. Gen.Stat. § 143–318.16 et seq. The complaint asked the court to “[e]nter a declaratory judgment that Defendants violated the Open Meetings Law” at the 23 March 2010 meetings; “[d]eclare null and void all actions taken at the [Wake County Board of Education] meetings held on March 23, 2010;” and “[e]nter an injunction requiring Defendants to ... [c]onduct all meetings openly[.]” The summons and complaint was accompanied by a “Notice of Hearing” to defendants stating that “Plaintiff's Complaint for Relief Under Open Meetings Law will be heard at 2:00 p.m. on Wednesday May 12, 2010[.]”

On 10 May 2010, plaintiffs filed a motion for preliminary and permanent injunctions and declaratory judgment pursuant to N.C. Gen.Stat. §§ 143–318.16 ¹ and 143–318.16A.² Plaintiffs also filed ten affidavits, accompanied by numerous exhibits, which defendants contend that they did not begin to receive until “[a]fter the close of business on May 10, 2010[.]” Plaintiffs also filed and served an “Amended Notice of Hearing” on 10 May 2010 stating that Judge William R. Pittman would preside over the hearing on 12 May 2010 rather than Judge Donald W. Stephens, but, other than the change in the judge, the substance of the amended notice of hearing was identical to notice of hearing filed on 6 May 2010.

On 11 May 2010, defendants replied with an “Objection, Motion to Strike, and Motion for Appropriate Relief,” contending that plaintiffs' motion forced defendants to “respond to Plaintiffs' Motion for Preliminary and Permanent Injunctions and Declaratory Judgment, and to rebut at least six (6) affidavits provided to Defendants less than forty-six (46) hours prior to the hearing ” in violation of N.C. Gen.Stat. § 1A–1, Rule 6(d).³ (Emphasis in original.) Defendants further contended that plaintiffs' motion “asks the Court to rule on the merits of the case, even though Defendants have not had a chance to respond to Plaintiff's Complaint.” Defendants repeated, that “Plaintiffs are asking this Court to make an adjudication on the merits of this case without providing Defendants with the opportunity to even Answer the allegations contained in the Complaint, let alone engage in discovery or any form of due process.” Defendants asked the trial court to “continue [the hearing] to a subsequent date in a manner consistent with the North Carolina Rules of Civil Procedure.”

On 12 May 2010, plaintiffs submitted a “Memorandum in Support of Plaintiffs' Motion for Injunctive Relief and a Declaratory Judgment[.]” The trial court conferred with counsel for the parties on 12 May 2010 and continued the hearing until 14 May 2010 to allow more time for defendants to review the affidavits filed by plaintiffs and to respond to the affidavits. On 13 May 2010, defendants filed a “Brief in Opposition to Plaintiffs' Motion for Preliminary and Permanent Injunctions and Declaratory Judgment” as well as five affidavits and numerous exhibits. Defendants did not file an answer to the complaint.

On 14 May 2010, the trial court held a hearing upon plaintiffs' complaint and motions; on the same day, the trial court entered an order stating that the court had considered “the entire record, the arguments of counsel and the applicable law” and made the following findings of fact:

1. The Wake County School Board (Board) operates the public schools of Wake County, North Carolina, and its nine members are elected by the voters of Wake County.

2. The plaintiffs are citizens and residents of Wake County who desire to attend meetings of the Board.

3. The Board has meetings of the Board and the Committee of the Whole (COW) twice each month which are normally held in the Board's offices.

4. Recent meetings of the Board have generated significantly greater public attention and desire to attend than the Board normally experiences.

5. In anticipation of an extraordinarily large crowd for the March 23, 2010 meeting of the Board and the COW, the Board initiated measures to handle the crowd.

6. The measures involved the issuance of tickets to the Board meeting and limiting the public's attendance to those who had tickets, excluding the public from the room in which the COW met, and the provision of overflow space in which those who could not enter the meeting room could observe the meetings on live electronic audiovisual feeds.

7. Some of the plaintiffs were prevented or deterred from attending one or both of the meetings as a result of the measures.

8. The ticketing procedures changed over the course of issuance without notice to the public.

9. One early ticketing requirement required the holder of a ticket to remain on the premises for several hours prior to the meeting.

10. One of the plaintiffs was denied accommodation for a disability at meetings on March 2.

11. The Board, through arrangements with local media outlets, provides live audiovisual transmission of its meetings through a cable television station and, since December, 2009, the internet via the website of another local television station.

12. Meetings of the COW are also simultaneously broadcast on the internet through the same arrangement.

13. The live audiovisual broadcasts within the Board offices for the overflow crowd have not always been reliable.

14. Subsequent to the meetings of March 23, 2010, the Board has made efforts to improve the technical quality of the simultaneous broadcast to the overflow rooms.

15. The Board makes provisions for public comment from members of the public who are present at Board offices but who cannot secure a seat in the meeting room.

16. The Board normally makes available for public comment more time than is required by the law of North Carolina.

17. The Board has refused requests to move the meetings to larger venues.

18. The press has full access to Board and COW meetings.

The trial court made the following relevant conclusions of law:

2. The Board and the COW are public bodies.

3. The Board is required by North Carolina General Statute § 143–318.9 et seq. [sic] (the Open Meetings Law) to take reasonable measures to provide for public access to its meetings.

4. The provision for simultaneous broadcast of its meetings on television and over the internet are reasonable measures.

5. The provision of overflow rooms to accommodate members of the public who cannot find seats in the meeting rooms and for live audiovisual broadcast of its meetings into the overflow rooms are reasonable measures.

6. The maintenance of safety and security for members of the public, members of the Board, staff and the press is reasonable.

7. The Board is not required by any provision of North Carolina law to change the venue of its meetings if reasonable measures can be taken to accommodate...