Mayor and Aldermen of City of Vicksburg v. Vicksburg Printing and Pub. Co., 54384

• Decision Date: 20 July 1983
• Docket Number: No. 54384,54384
• Citation: 434 So.2d 1333
• Court: Mississippi Supreme Court
• Parties: 9 Media L. Rep. 2279 The MAYOR AND ALDERMEN OF the CITY OF VICKSBURG and the City of Vicksburg Planning Commission, Appellants, v. VICKSBURG PRINTING AND PUBLISHING CO., Appellee.

Page 1333

434 So.2d 1333

9 Media L. Rep. 2279

The MAYOR AND ALDERMEN OF the CITY OF VICKSBURG and the City of Vicksburg Planning Commission, Appellants, v. VICKSBURG PRINTING AND PUBLISHING CO., Appellee.

No. 54384.

Supreme Court of Mississippi.

July 20, 1983.

C.E. Sorey, II, Ward, Martin, Terry, King & Sorey, Vicksburg, for appellants.

William G. Beanland, Vicksburg, for appellee.

Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court.

I.

We are here presented with our first opportunity to construe the Mississippi Open Meetings Law, Miss.Code Ann. Secs. 25-41-1 et seq. (Supp.1982). That law, colloquially referred to as the "Sunshine Law", became effective January 1, 1976.

On May 25, 1982, the Vicksburg Planning Commission (VPC) ¹ met with two expert city planners to consider an extension of the corporate boundaries of the City of Vicksburg. Citing the fact that contemplated litigation was to be discussed, VPC called an executive session. All attorneys, members of the press and the public were excluded.

The publisher of the Vicksburg Evening Post ("The Post"), Appellee here, claims that the executive session was held in violation of the Open Meetings Law. The Chancery Court agreed. The injunctive relief requested by the Post was granted.

With little doubt, the Vicksburg Planning Commission is a "public body" within the meaning of the Open Meetings Law. The meeting of May 25, 1982, was clearly a covered meeting. We hold, however, that the meeting was in substance a strategy session with respect to prospective litigation. It was, therefore, within what has come to be known as the Litigation Exception to the Sunshine Law. The Planning Commission had lawful power to hold an executive session and exclude therefrom members of the press and the public. We reverse.

II.

A.

The City of Vicksburg Planning Commission was created by the Mayor and Board of Aldermen in 1960 by the passage of Ordinance 60-2. The Ordinance provides that the VPC shall consist of not less than ten ordinary citizens serving in an advisory capacity without pay. Certain city officials, including the Board of Supervisors, Mayor and Aldermen, Chairman of the Board of Zoning Appeals, Court Commissioner, Chairman of the Vicksburg School Board, and members of the Housing Authority are appointed as ex-officio members.

The VPC is charged to harmonize city planning. Its duties relevant to the present controversy include consideration of "extension of corporate boundaries of the city, as related to feasibility, service to be rendered and economic and physical factors". The VPC acts in an advisory capacity only. It makes recommendations to the Mayor and Board of Aldermen, who in turn have authority to accept or reject those recommendations.

In the spring of 1982 the City of Vicksburg was considering possible expansion through annexation of additional lands in Warren County. Representatives of the University of Mississippi Department of Urban and Regional Planning had been engaged to assist in determining areas for annexation. On May 25, 1982, a meeting of the VPC was called to discuss a preliminary draft of this study. Invited to attend the meeting were two professional city planners, each of whom had had substantial experience in consultation with cities in preparation for annexation. Each had provided expert witness testimony in prior annexation trials around the state. Each was a probable expert witness for the City of Vicksburg in the anticipated annexation litigation.

As the meeting convened, there were present, in addition to a quorum of VPC, two reporters from The Post, the lawyer for The Post and the lawyer for the City. Soon after the meeting began, the Commission determined that it should go into a closed executive session. The Commission announced that it considered this a meeting for the purpose of discussing matters related to prospective litigation, thus coming within the Litigation Exception to the Public Meetings Law under Miss.Code Ann. Sec. 25-41-7(4)(b). After protest, The Post's lawyer and reporters left.

The meeting lasted for approximately two hours.

B.

The next day, May 26, 1982, The Post brought this action in the Chancery Court of Warren County, Mississippi. At an expedited hearing held shortly thereafter, the above facts and circumstances were related. Testimony also reflected that there was an organization known as the Warren County Property Owners Association which had publicly announced that it intended to oppose any extension of the Vicksburg city limits. This same group had opposed Vicksburg's annexation in 1976 which had resulted in litigation.

In the trial court the City continued to insist that the meeting and all proceedings thereat were entitled to confidentiality protection under the law. Because it was necessary in order to enable him to consider the City's claim of the Litigation Exception, the Chancellor received a copy of the minutes of the meeting for in camera inspection. These minutes were not disclosed to The Post or its counsel. They have, however, been reviewed by this Court as a part of the proceedings on this appeal.

Upon his review of the minutes the Chancellor found the various discussions among the members of the Commission devoted to matters such as police and fire protection, ad valorem taxes on real and personal property, the action in Chancery Court for annexation, health hazards, sewage plans, population growth, and recreational facilities. He noted that maps were displayed showing the areas proposed for annexation.

At the conclusion of the hearing, the Chancellor held that the City of Vicksburg Planning Commission was indeed a "public body" within the meaning of the Open Meetings Law. He then issued an injunction directed to the City which provided in substantial part as follows:

2. The City of Vicksburg Planning Commission is hereby permanently enjoined from holding any meetings in executive session such as the one held on May 25, 1982.

3. Another open meeting of the City of Vicksburg Planning Commission is to be held within a reasonable time to discuss the matters mentioned in the opinion of this Court delivered from the bench on June 15, 1982, as well as any other items that may be inquired into by members of the Commission, and no report to the Mayor and Board of Aldermen or recommendations shall be made until a reasonable time after such open meeting has been held. The "Minutes, Planning Commission Meeting, 5-25-82" which were submitted to the court for in camera inspection shall be made available to the public.

4. The City of Vicksburg Planning Commission and the Board of Mayor and Aldermen may hold future meetings in executive session to discuss strategy or negotiating with respect to prospective litigation according to Section 25-41-5, Sec. 4-B, but the prospect for litigation must be imminent and under circumstances necessitating the presence of the attorneys for the Commission or Board involved and the executive session must be confined to the narrow issue of prospective litigation.

III.

Walt Whitman thought "heroic deeds were all conceived in the open air". ² Governmental service ought be noble, if not heroic. Local self-government, through agencies such as the Vicksburg Planning Commission, remains the essence of our democracy. Our legislature has decreed that its acts ought be conceived in the open air. That our statutes may be judged by some to have fallen short of the poet's perfection does not undercut the power of their policy. Openness in government is the public policy of this state. ³ It is conducive to good government, and heroic deeds.

We are acutely aware that we live in an age when secrecy in government generates suspicion and mistrust on the part of our citizenry. Government which does not have the confidence of the people can never govern effectively. However inconvenient openness may be to some, it is the legislatively decreed public policy of this state.

Because the policy of this Act is so important, we quote in full its declaration:

It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a Democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy as public business and shall be conducted at open meetings except as otherwise provided herein.

Miss.Code Ann. Sec. 25-41-1 (Supp.1982).

This policy is then implemented by the basic mandate of the Open Meetings Law which provides as follows:

All official meetings of any public body, unless otherwise provided in this chapter or in the Constitutions of the United States of America or the State of Mississippi, are declared to be public meetings and shall be open to the public at all times unless declared an executive session as provided in Section 25-41-7. Miss.Code Ann. Sec. 25-41-5 (Supp.1982).

It is our hope that what we say hereafter be found faithful to these principles and policies.

IV.

The City of Vicksburg and its Planning Commission claim here that the jurisdiction of the Open Meetings Law does not extend to the Planning Commission. The VPC, they say, is not "a public body" to which the Act applies. Two theories are urged. First, it is suggested that we draw meaning from the fact that the words "advisory committee" or "advisory commission" are not included in the statute following the words "municipal corporation". Second, it is urged that the coverage of the Act is limited to "policy making entities" and that agencies, such as VPC, which have no power to make final binding decisions are necessarily excluded.

The question turns on a construction of the statute, the...