Kearns-Tribune Corp. v. SALT LAKE CTY.

• Citation: 2001 UT 55,28 P.3d 686
• Decision Date: 29 June 2001
• Docket Number: No. 991011.,991011.
• Parties: KEARNS-TRIBUNE CORPORATION, (Salt Lake Tribune), Plaintiff and Appellee, v. SALT LAKE COUNTY COMMISSION, (Brent Overson, Mary Callaghan and Randy Horiuchi), Defendant and Appellant.
• Court: Supreme Court of Utah

28 P.3d 686

2001 UT 55

KEARNS-TRIBUNE CORPORATION, (Salt Lake Tribune), Plaintiff and Appellee, v. SALT LAKE COUNTY COMMISSION, (Brent Overson, Mary Callaghan and Randy Horiuchi), Defendant and Appellant.

No. 991011.

Supreme Court of Utah.

June 29, 2001.

Michael Patrick O'Brien, Deno G. Himonas, Jeremy M. Hoffman, Salt Lake City, Charles A. Brown, Lewiston, Idaho, for plaintiff.

David E. Yocom, Gavin J. Anderson, Salt Lake City, for defendant.

Jeffrey J. Hunt, Diana Hagen, David C. Reymann, Salt Lake City, for amici.

WILKINS, Justice.

¶ 1 This appeal presents the question of whether the Utah Open and Public Meetings Act, Utah Code Ann. §§ 52-4-1 to -10 (1998), permits the Salt Lake County Commission to close a meeting to the public in order to consider, with legal counsel, possible courses of action with respect to an annexation petition pending before the Salt Lake County Boundary Commission. The parties filed cross motions for summary judgment, and the district court ruled in favor of plaintiff Kearns-Tribune Corporation concluding that by closing the meeting, the Salt Lake County Commission violated the Open and Public Meetings Act. We reverse and remand.

BACKGROUND

¶ 2 In this case, no material differences in the facts were raised by the parties, only questions about the legal implications of those facts. We recite the facts accordingly.

¶ 3 The Salt Lake County Commission ("County Commission") held a staff meeting on March 30, 1998. The County Commission customarily treated staff meetings as subject to the Utah Open and Public Meetings Act, and therefore the March 30, 1998 meeting was open to the public. At one point, however, the county attorney's office suggested to the County Commission that part of the meeting be closed. The county attorney's office wanted to discuss in private whether to oppose Riverton City's petition to annex unincorporated county land that was pending before the Salt Lake County Boundary Commission ("Boundary Commission"). The county commissioners voted unanimously to close the meeting, and the public, including the press, was asked to leave.

¶ 4 The county commissioners and their attorneys then met privately and discussed matters pertaining to Riverton City's annexation proposal. The minutes of this closed meeting reflect that legal counsel first explained to the Commissioners the factual and procedural circumstances surrounding the annexation proceeding and the possible results of the annexation petition, namely that islands of unincorporated county land would result. Next, counsel indicated that South Jordan City had protested Riverton City's petition. Finally, counsel outlined three possible courses of action: (1) the County Commission could send a letter to Riverton City listing technical problems with the petition, but refrain from appearing before the Boundary Commission; (2) the County Commission could appear, through counsel, before the Boundary Commission and address only technical problems with the petition; or (3) the County Commission could file a formal protest with the Boundary Commission opposing the annexation. Counsel recommended that the county not protest technicalities. The County Commission voted to appear before the Boundary Commission and to send a letter to Riverton City identifying technical problems. The meeting was then reopened to the public, and adjourned.

¶ 5 The complaint filed by plaintiff Kearns-Tribune Corporation ("Kearns-Tribune"), a newspaper publishing company, insists that the Salt Lake County Commission violated the Utah Open and Public Meetings Act (the "Act"), arguing that the exception to the Act permitting closed meetings for "strategy sessions to discuss pending or reasonably imminent litigation," Utah Code Ann. § 52-4-5(1)(a)(iii) (1998), is inapplicable to annexation or boundary protest proceedings. The County Commission answered the complaint and filed a motion for summary judgment, arguing that it appropriately closed the March 30, 1998 meeting to discuss the county's legal alternatives to Riverton City's annexation petition as pending or reasonably imminent litigation. Plaintiff responded by filing a response and a cross-motion for summary judgment.

¶ 6 The district court ruled in favor of Kearns-Tribune, indicating that the portion of the meeting that was closed by the County Commission should have been open to the public. The district court concluded that the County Commission did not conduct a strategy session, but instead discussed the underlying policy issues, which the court stated should be debated publicly. The Salt Lake County Commission appeals.

STANDARD OF REVIEW

¶ 7 Summary judgment is appropriate only upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c); see also, e.g., Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 15, 13 P.3d 581

. In reviewing a trial court's decision to grant summary judgment, we give the court's legal decisions no deference, reviewing for correctness. E.g., Dairy Prod. Servs.,

2000 UT 81 at ¶ 15, 13 P.3d 581.

ANALYSIS

¶ 8 This case requires the interpretation and application of the Utah Open and Public Meetings Act. Section 52-4-3 of the Act specifies, "Every meeting is open to the public unless closed pursuant to Sections 52-4-4 and 52-4-5." Section 52-4-4 provides the procedure through which a meeting may be closed. It reads, in relevant part: "No closed meeting is allowed except as to matters exempted under Section 52-4-5. . . ." The provision under consideration in this case, section 52-4-5, sets forth seven purposes for which a meeting may be closed. Four of those purposes or circumstances permitting closure to the public of a meeting involve "strategy sessions," and all four require that a record of the closed proceedings be kept. Utah Code Ann. § 52-4-5(1)(a) (1998).

¶ 9 The types of strategy sessions allowing for lawful closure of an otherwise public meeting include those to discuss "collective bargaining," § 52-4-5(1)(a)(ii), "pending or reasonably imminent litigation," § 52-4-5(1)(a)(iii), "the purchase, exchange, or lease of real property where public discussion . . . would disclose the . . . value of the property. . . or prevent the public body from completing the transaction on the best possible terms," § 52-4-5(1)(a)(iv), and "the sale of real property where public discussion . . . would disclose the . . . value of the property. . . or prevent . . . completing the transaction on the best possible terms; the public body had previously given public notice that the property would be offered for sale; and the terms of the sale are publicly disclosed before the public body approves the sale," § 52-4-5(1)(a)(v).

¶ 10 We have not had occasion to review and distinguish the individual categories of closable meetings. The general nature and tone of the seven exceptions in section 52-4-5(1), however, suggest a clear legislative intent to ensure that the public's business is done in full view of the public except in those specific instances where either the public, or a specific individual who is the subject of the meeting, may be significantly disadvantaged by premature public disclosure of sensitive information. The ultimate consequence of closed discussions about the price of real property, collective bargaining, and a public body's approach to pending or reasonably imminent litigation eventually becomes public. Nevertheless, in each of these limited circumstances, the public's general interest was thought by our legislature to be best served by allowing confidential discussions to precede the actions that would disclose the strategy.

¶ 11 In the case before us, the Salt Lake County Commission relies upon the exception for strategy sessions to discuss pending or reasonably imminent litigation. See § 52-4-5(1)(a)(iii). The Commission argues that it properly closed the meeting to the public because it discussed Riverton City's petition before the Boundary Commission, and matters before the Boundary Commission are quasi-judicial and therefore qualify as "litigation" for purposes of the statute. Kearns-Tribune, to the contrary, argues that the Salt Lake County Commission improperly closed the meeting because the topic discussed by the county commissioners, an annexation dispute, is a legislative or policy matter, and not pending or reasonably imminent litigation. The amici, the Society of Professional Journalists and several news organizations, also argue that the County Commission improperly closed the meeting because the county commissioners discussed policy, not litigation strategy. The amici further contend that the litigation exception must be strictly construed. The plain meaning of the term "litigation" implies court proceedings, they argue, and defining "litigation" to include agency proceedings, like an annexation proceeding, would result in the litigation exception eviscerating the general rule of openness intended by the Act.

¶ 12 Both parties and the amici refer us to our decision in Common Cause of Utah v. Public Service Commission, 598 P.2d 1312 (Utah 1979). Common Cause is not like this case, however. In Common Cause, we said that the legislatively-created Utah Public Service Commission performs a variety of duties, including those that fall distinctly within legislative, administrative, and adjudicative categories. Id. at 1314. In order to perform the adjudicative function of hearing and resolving disputes between competing and protesting utilities, the Public Service Commission must be able to deliberate and arrive at decisions in private. Id. We therefore concluded that the Public Service Commission's adjudicative function was quasi-judicial, and that as a result the Open and Public Meetings Act did not apply when the Public Service Commission acts in its adjudicative role. Id. In concluding that the Public Service Commission's...