Lewis v. White

• Decision Date: 26 June 1975
• Docket Number: No. 100,100
• Citation: Lewis v. White, 287 N.C. 625, 216 S.E.2d 134 (N.C. 1975)
• Parties: McDaniel LEWIS et al., Plaintiffs, v. Thomas J. WHITE et al., Defendants.
• Court: North Carolina Supreme Court

Page 134

216 S.E.2d 134

287 N.C. 625

McDaniel LEWIS et al., Plaintiffs, v. Thomas J. WHITE et al., Defendants.

No. 100.

Supreme Court of North Carolina.

June 26, 1975.

Kimsey, Mackie & Smith by James M. Kimsey and Stephen T. Smith, Raleigh, for plaintiffs-appellants.

Rufus L. Edmisten, Atty. Gen. by T. Buie Costen, Asst. Atty. Gen., Raleigh, for State Art Museum Building Commission, plaintiff-appellee.

Joyner & Howison by William T. Joyner, R. C. Howison, Jr., James E. Tucker and Edward S. Finley, Jr., Raleigh, for State Art Museum Building Commission and its named members, defendants-appellees.

Maupin, Taylor & Ellis by C. B. Neely, Jr., Raleigh, for defendant Architects, appellees.

LAKE, Justice.

A motion to dismiss for failure to state a claim upon which relief can be granted, like the common law general demurrer, admits, for the purpose of the motion, the well-pleaded material allegations of the complaint, but it does not admit the plaintiff's conclusions of law, such as his interpretation of statutory provisions. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161.

Deferring, momentarily, consideration of the defendants' claim of sovereign immunity to suit, we consider first the conclusions of the Superior Court that in Claims 3 to 10, inclusive, the complaint fails to state a claim upon which relief can be granted or that the plaintiffs have no standing to sue thereon.

The material allegations of Claim No. 3, summarized, are that all meetings of the Commission have been conducted in secrecy and the Commission has refused to permit minutes, records, tapes or other documentation of its activities to be made available for scrutiny by the press or the public; in this the members of the Commission are exceeding their statutory authority, G.S. § 143--318.1 to G.S. § 143--318.7, inclusive, requiring such meetings to be open to the press and to the public; actions taken by the members of the Commission at meetings not open to the public are void; consequently, any actions emanating from such meetings should be restrained.

G.S. § 143--318.1 provides:

'Public policy.--Whereas the commissions, committees, boards, councils and other governing and governmental bodies which administer the legislative and executive functions of this State and its political subdivisions exist solely to conduct the peoples' business, it is the public policy of this State that the hearings, deliberations and actions of said bodies be conducted openly.'

G.S. § 143--318.2 requires that all official meetings of the governing and governmental bodies of the State, including all State Commissions 'which have or claim authority to conduct hearings, deliberate or act as bodies politic and in the public interest' shall be open to the public. G.S. § 143--318.6 provides that any citizen who is denied access to such a meeting 'in addition to other remedies, shall have a right to compel compliance with the (statute) by application to a court of competent jurisdiction for restraining order, injunction or other appropriate relief.'

The prayer for relief as to this claim is that the defendants be enjoined from carrying out any activities which the statute authorizes them to conduct 'until all of their meetings are held as public meetings * * * and all minutes * * * and other documentation of their prior secret meetings be made public.' The answer of the defendants denies that the meetings of the Commission have been held in secret, except insofar as this is authorized by the statute (G.S. § 143--318.3, dealing with executive sessions). However, upon consideration of the motion to dismiss, the allegations of fact in the complaint must be taken as true and the court is not concerned with the denials of those allegations in the answer of the defendants.

We find nothing in G.S. Ch. 143, Art. 33B, which supports the contention of the plaintiffs that all action taken at a meeting of any governmental body of the State, or of one of its political subdivisions, is completely void if such meeting was not open to the public. In the absence of a clear expression of legislative intent that this be the effect of a violation of G.S. § 143--318.2, we decline so to hold. The complainants do not seek in this action an order directing that they, and other members of the class for whom they sue, be admitted to future meetings of the Commission or be given the right to examine minutes or other documents showing action taken at meetings heretofore held. They seek to enjoin the Commission from performing any of its statutory duties or exercising any of its statutory authorities until 'all of their meetings are held as open meetings.' (Emphasis added.) Such an injunction would make it impossible for the Commission to carry out its statutory duties. Compliance with such an injunction, which would be a condition precedent to the carrying out of further activities by the Commission, could not be shown until there were no more meetings of the Commission to be held.

We find no error in the conclusion and order of the Superior Court with reference to Claim for Relief No. 3.

The allegations of the complaint with reference to Claim for Relief No. 4 are, in summary, that the North Carolina General Assembly, in its 1975 Session, 'will consider' giving appropriate directions to the Commission and the defendants should be restrained from acting toward the construction of the Museum at the site chosen by them until the 1975 Session of the General Assembly has an opportunity to give the Commission 'appropriate direction.' At the time the present suit was filed and at the time the Superior Court entered its order dismissing Claim for Relief No. 4, the 1975 Session of the General Assembly had not been convened, indeed its members had not been elected. The possibility that the 1975 Session of the General Assembly, now in session, may see fit to give further directions to the Commission concerning the location and construction of the Museum cannot be a basis for restraining the Commission from acting in accordance with directions theretofore given.

There was no error in the conclusion and order of the Superior Court with reference to Claim for Relief No. 4.

The material allegations of the complaint with respect to Claim for Relief No. 5, summarized, are that G.S. § 143--30 to G.S. § 143--31.1, inclusive, a portion of the Executive Budget Act, requires the Commission to present its budget to the Director of the Budget, to construct all buildings in strict accordance with such budget requests and to refrain from receiving bids on such construction projects until the results of a study and review by the Director of the Budget of the Commission's budget requests have been incorporated into the Commission's plans and specifications for the construction of the Museum; the defendants have not attempted to comply with this statutory requirement and, therefore, are acting beyond their statutory authority in planning and constructing the Museum at the Polk Prison property; for this reason the defendants should be enjoined from proceeding with the planning and construction of the Museum until they comply with these statutory requirements.

It is the contention of the defendants that the Commission was created with the duty to construct a building of a particular and extraordinary type and character and that the construction of such a building was not contemplated by the provisions of G.S. § 143--30 through G.S. § 143--31.2. Thus, they say, these statutes are not applicable to them.

G.S. § 143--1 provides that the word 'Commission' as used in the Executive Budget Act, with an exception not here pertinent, shall mean 'any State agency, and any other agency, person or commission by whatsoever name called, that uses or expends or receives any State funds.' G.S. § 143--16 provides, 'Every State * * * commission * * * shall operate under an appropriation made in accordance with the provisions of this Article, and no State * * * commission * * * shall expend any money, except in pursuance of such appropriation and the rules, requirement and regulations made pursuant to this Article.' G.S. § 143--28 provides, 'It is the intent and purpose of this Article that every * * * commission * * * that expends money appropriated by the General Assembly or money collected by or for such * * * commission * * * under any general law of this State, shall be subject to and under the control of every provision of this Article.'

G.S. § 143--30 provides that the several commissions of the State to which appropriations are made for permanent improvements 'shall, before any of such appropriations * * * are available or paid to them * * * budget their requirements and present the same to the Director of the Budget.' G.S. § 143--31 provides that all buildings and other permanent improvements shall be erected in strict accordance with the budget requests of such commission filed with the Director of the Budget.

The obvious purpose of these statutory provisions is to guard against improvident extravagant or unauthorized expenditure of State funds in the construction of a building by any commission or agency of the State. We find nothing in the Executive Budget Act which supports the contention of the defendants that they are not subject to its provisions. We find nothing in G.S. Ch. 140, Art. IA, by which the Commission was originally created or in G.S. § 143B--58 by which the Commission was 'recreated' and endowed with certain powers, which indicates a legislative intent to exempt the Commission from the requirements of the Executive Budget Act. The answer of the defendants denies all allegations of the plaintiffs' Claim for Relief No. 5 with reference to the failure of the defendants to comply with the requirements of that Act. However, as above noted, upon consideration of a motion to dismiss, the Superior Court, and, upon appeal, this Court, must take as true the allegations of the complaint concerning the...