Hilliary v. State, M-79-640
| Decision Date | 24 June 1981 |
| Docket Number | No. M-79-640,M-79-640 |
| Citation | 1981 OK CR 78,630 P.2d 791 |
| Parties | Edward HILLIARY, Jr., Jack Laughter, Rex Leath, Chuck Smith and A. P. Tuck, Appellants, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Lonny G. Long, Lawton, Stephen Hilliary, Medicine Park, for appellants.
Jan Eric Cartwright, Atty. Gen., William Roy Holton, Jr., Asst. Atty. Gen., Oklahoma City, for appellee.
The members of the Board of Trustees of the City of Medicine Park, Comanche County, Oklahoma, were convicted of violating the Open Meeting Act, Comanche County District Court cases no. CRM-79-298 through 300. The subject meetings were set for December 14, 1978; January 11, 1979; and March 8, 1979; and the January 11 meeting was postponed to January 18, 1979.
Although there was conflicting evidence whether any notice had been posted to announce these meetings, it is uncontroverted that the notices, if there were any, did not contain agendas. (See Appendix A). The appellants' own exhibits both prior and subsequent to the subject meeting dates indicate that the Board was aware of its duty to list an agenda, and the evidence presented by the State reveals that the Board members were aware of public concern over their alleged failure to comply with the Open Meeting Law.
Of the twenty (20) assignments of error, many are overlapping and repetitious. First, the appellants allege that the defense was improperly restricted in the cross-examination of State's witness Haile and was, therefore, effectively denied the right to show bias on the part of that witness. Our review of the record reveals, however, that the defense did manage to show the witness's potential bias.
Next it is argued that the evidence was insufficient and that there had been substantial compliance with the statute. This Court has read the transcript and finds that the State did succeed in presenting a prima facie case. The substantial compliance issue is discussed infra.
The third allegation is that there was no proof of criminal intent. However, the record discloses that the failure to comply with the Open Meeting Act was a willful violation. Beyond that, the criminal intent needs not be proven since this was a crime classified as in malum prohibitum. See Williams v. State, 565 P.2d 46 (Okl.Cr.1977).
In propositions four and five, it is alleged that the State failed to prove what should be contained in an agenda, and further that the State failed to prove that the Board had acted on any matter which would require notice by posting. The Open Meeting Act does not specify that notice be given only when certain business is transacted or that the State needs to prove that a particular type of business was, in fact, transacted in order to prove a violation. Posting is required even for the most typical meeting. 1
Neither do the appellants raise a viable issue in arguing that the Legislature did not define "agenda." The word is not a legal term, and its clear meaning, taken from Webster's New Collegiate Dictionary, eighth edition, is "a list, outline, or plan of things to be considered or done." It is also defined as a memorandum "of things to be done, as items of business or discussion to be brought up at a meeting; a program consisting of such items," Black's Law Dictionary, fifth edition. The errors asserted have no merit.
In propositions six and seven, the appellants say that there was no evidence of detriment and that the verdict did not conform to the evidence. Initially, this Court observes that the Open Meeting Act does not require that the State prove injury in order to establish a prima facie case of a violation under 25 O.S.Supp.1980, § 313.
And second, the sufficiency of the evidence has been upheld. See the first assignment of error.
As the eighth proposition, the appellants allege that the jury was prejudiced by a statement made by the judge. The statement was a response to the arguments by the defense and the prosecution on a motion for a new trial, and it was made at that hearing on July 16, 1979. The jury had been dismissed following their verdict on June 18, 1979. The argument is patently without merit.
Although the appellant alleges that his ninth assignment of error is the improper overruling of the demurrer, the gravamen of his complaint is that the appellant had substantially complied with the Open Meeting Act. First, it is uncontested that the notices, if any, for the three meetings which constitute the bases for the charges, lacked agendas and that the Open Meeting Act specifically requires an agenda as part of the notice. See 25 O.S.Supp.1980, § 311(9), (10), (11). Whether or not substantial compliance will or should apply to the Open Meeting Act is not properly resolved at this time. Before this Court is a factual base which would not support even substantial compliance. There was no partial or skeletal agenda. There was, in fact, no agenda. The allegation is without merit.
There is no assignment of error number ten.
The appellants' propositions number eleven through sixteen address the constitutionality of the statute. Statutes are presumptively constitutional and the challenging party bears the burden of proving otherwise. Williamson v. State, 463 P.2d 1004 (Okl.Cr.1969). This Court has examined all of the appellant's arguments and found merit in none of them. The use of the word "agenda" has...
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