Miglionico v. Birmingham News Co.
| Decision Date | 14 September 1979 |
| Citation | 378 So.2d 677 |
| Parties | Nina MIGLIONICO et al. v. The BIRMINGHAM NEWS COMPANY. The BIRMINGHAM NEWS COMPANY v. Nina MIGLIONICO et al. CITY OF BIRMIGNHAM et al. v. The BIRMINGHAM NEWS COMPANY. 78-59, 78-59X and 78-62. |
| Court | Alabama Supreme Court |
John S. Foster, Birmingham, for appellants and cross-appellees Nina Miglionico, David Herring, Russell Yarbrough, E. C. Overton, Richard Arrington, Jr., and Bessie S. Estell.
John P. Carlton and Charles E. Clark, Birmingham, for appellants City of Birmingham and David Vann, Mayor.
James C. Barton and Gilbert E. Johnston, Jr., Birmingham, for appellee and cross-appellant Birmingham News Co.
David M. Olive of McMillan & Spratling, Birmingham, for Birmingham Post Co., Inc. and Alabama Press Ass'n, amicus curiae.
These are consolidated appeals and a cross-appeal from a final judgment enjoining the members of the Birmingham City Council from excluding any of the public from its meetings and from meeting in secret or executive sessions except when the character or good name of a person is involved. We affirm in part, reverse in part, and remand for entry of a judgment in conformity herewith.
On March 20, 1978, two employees of The Birmingham News (News) were denied admission to a closed meeting of the Birmingham City Council (Council) held to consider an appointment to the city board of education. At that meeting, the Council interviewed potential appointees and the members indicated their preferences by marking sheets of paper.
Another closed meeting of the Council was scheduled for April 17, 1978, to consider an appointment to fill a vacancy on the Council itself. This meeting was cancelled following a court order obtained by the News requiring the meeting to be open to the public.
The News then sought a permanent injunction requiring all meetings of the Council to be open to the public. Six of the eight Council members named as defendants appeared, and the City of Birmingham and the Mayor were allowed to intervene as defendants.
After a hearing ore tenus, the trial court found that the News was entitled to the relief sought. The final judgment reads, in pertinent part, as follows:
"ONE : The Defendants are hereby enjoined to cease and refrain from excluding any of the public from any of its meetings and from meeting in secret or executive sessions except, 'when the character or good name of a woman or man is involved' in the matters considered and discussed."
Following denial of motions for a new trial or, in the alternative, to modify the final judgment, the Council and the intervenors appealed, and the News cross-appealed from the judgment insofar as it permits closed meetings under some circumstances.
Three statutes are involved, referred to hereafter as "sunshine laws." The first is Code 1975, § 13-5-1, enacted in 1915. It prohibits executive or secret sessions of various boards or commissions, including any city commissions or municipal councils, except when the character or good name of a person is involved:
The second statute is Code 1975, § 11-43-49, which first appeared in the 1907 Code. This statute applies to mayor-council forms of municipal government in general, and requires all council meetings to be open to the public:
The third statute is the Mayor-Council Act of 1955, 1 as amended, which applies to the City of Birmingham. The Act provides that all meetings of the council shall be open to the public, that the council exercises its powers subject to the Constitution and laws of Alabama, and that only those laws inconsistent with the provisions of the Act are superseded. There is no provision for executive or secret sessions. Pertinent sections of the Act are:
It appears to us that it makes no difference with respect to the issue of "sunshine laws" whether § 11-43-49 or § 3.12 of the Mayor-Council Act applies. Neither section is inconsistent with § 13-5-1, and all three may be read in pari materia. The clear language of the open meetings laws evidences the legislative policy of this state that all meetings of municipal governing bodies are to be open to the public and that no executive sessions are to be held, with the one exception set out in § 13-5-1. It is the application of this broadly stated public policy which is at issue on this appeal.
There are challenges to the News' Standing to enforce the open meetings laws. Section 11-43-49 and the Mayor-Council Act have no enforcement provisions. Section 13-5-1 provides that a violation is a misdemeanor punishable by a fine. There is reliance upon the general principle that one who has no injury different from that sustained by the general public may not maintain an action in the public interest.
We hold that the News does have Standing to enforce the "sunshine laws." The public meeting requirement is for the benefit of the public to ensure that it has the opportunity to become informed as to the affairs of its governmental bodies. It is intended that the whole deliberative process be open to public scrutiny, rather than that there be the mere formal announcement of decisions already made in private. In Channel 10, Inc. v. Independent School District No. 709, 298 Minn. 306, 215 N.W.2d 814 (1974), the Supreme Court of Minnesota addressed the identical issue of standing, in that case of a television station, to enforce the Minnesota Open Meetings Law, which had no enforcement provisions. As that court concluded, so do we, that the nature of "sunshine laws" implies standing in members of the public to enforce their right to attend public meetings.
Some appellants question the propriety of injunctive relief, contending that criminal statutes may not be enforced by injunction. It is true that § 13-5-1 is codified in Title 13, Crimes and Offenses, and prescribes punishment for a violation. However, the inclusion of criminal sanctions does not necessarily make the entire statute penal in nature. In Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), the Supreme Court of Arkansas, speaking through Justice George Rose Smith, held that the Arkansas Freedom of Information Act, although it did contain criminal sanctions, is not primarily a criminal statute. Rather, it "was (enacted) wholly in the public interest and is to be liberally interpreted" most favorably to the public. Cf. Raton Public Service Co. v. Hobbes, 76 N.M. 535, 417 P.2d 32 (1966).
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