Minneapolis Star and Tribune Company v. the Housing and Redevelopment Authority In and For the City of Minneapolis

• Decision Date: 17 September 1976
• Docket Number: No. 46245,46245
• Citation: 246 N.W.2d 448
• Parties: MINNEAPOLIS STAR AND TRIBUNE COMPANY, et al., Appellants, v. The HOUSING AND REDEVELOPMENT AUTHORITY IN AND for CITY OF MINNEAPOLIS, et al, RESPONDENTS
• Court: Minnesota Supreme Court

Page 448

246 N.W.2d 448

MINNEAPOLIS STAR AND TRIBUNE COMPANY, et al., Appellants, v. The HOUSING AND REDEVELOPMENT AUTHORITY IN AND for CITY OF

MINNEAPOLIS, et al, RESPONDENTS

No. 46245.

Supreme Court of Minnesota.

Sept. 17, 1976.

Rehearing Denied Nov. 4, 1976.

Syllabus by the Court

The Minnesota Open Meeting Law, Minn.St. 471.705, is not inconsistent with the attorney-client privilege and the two concepts are capable of compatible and concurrent operation, assuming that public officers and attorneys do not abuse their trust by extending the privilege as a mere conduit to suppress public observation of the decision-making process. The attorney-client privilege should only be invoked when public policy dictates the need for absolute confidentiality.

Faegre & Benson and John S. Holten, James M. Samples and John B. Gordon, Minneapolis, for appellants.

Holmes, Eustis, Kircher & Graven, David L. Graven and James S. Holmes, Minneapolis, for respondents.

Stanley G. Peskar, League of Minnesota Municipalities, St. Paul, amicus curiae, seeking affirmance.

SCOTT, Justice.

Plaintiffs, Minneapolis Star and Tribune Company, Peter Ackerberg, and Leonard J. Canning, commenced this action to obtain a temporary and permanent injunction prohibiting defendant Housing and Redevelopment Authority (hereinafter HRA) and the individual defendants from conducting official meetings closed to the public. In addition, plaintiffs sought a declaratory judgment that all meetings of the HRA convened for the purpose of transacting public business be open to the public, and the imposition of civil penalties pursuant to Minn.St. 471.705, the Minnesota Open Meeting Law.

The motion for a temporary injunction was denied upon the lower court's finding that the Open Meeting Law was not inconsistent with nor did it repeal by implication the statutory attorney-client privilege. The court further held that the judicial branch of government has the inherent power to regulate the conduct of attorneys in coordination with public agencies. Plaintiffs appeal from the summary judgment entered in favor of defendants.

The HRA for the city of Minneapolis is a public agency responsible for the designation and distribution of Federal urban renewal funds throughout the city. Minn.St. 462.411 to 462.716. Defendants Richard H. Jefferson, Walter F. Bochnak, Emily Peake, and Donald P. Early are officers and members of the HRA. Defendants Clifford A. Carlson, Leo A. Bernat, and Mary Grace Flannery are members of the HRA, and defendant Richard A. Brustad is the executive director of HRA.

Plaintiff Minneapolis Star and Tribune Company publishes two daily newspapers, the Minneapolis Star and the Minneapolis Tribune. Plaintiff Peter Ackerberg is employed as a Minneapolis Star reporter, while Leonard J. Canning at the time of the commencement of the action served as the executive editor of the Minneapolis Star.

On April 23, 1975, plaintiff Ackerberg was present at the HRA office to attend a scheduled and publicly announced special meeting. At that time he became aware of a session to be convened for the express purpose of discussing litigation strategy in an action then pending in the United States District Court, District of Minnesota, Fourth Division, entitled Cedar-Riverside Environmental Defense Fund v. Hills, 422 F.Supp. 294. HRA as a public agency and one of its members individually, Mr. Bochnak, are defendants in that action.

Ackerberg was excluded from this closed strategy session despite his stated objections that the meeting was to be conducted in violation of the Open Meeting Law. Upon conclusion of that meeting, Ackerberg was admitted to the previously scheduled public meeting.

The record also indicates that on March 3, 1975, HRA had conducted a similar closed strategy session concerning the Cedar-Riverside case without public notice of the meeting.

It is necessary to consider the basis of the HRA's decision to close the strategy meeting to the public. The Cedar-Riverside action concerns a challenge to the adequacy of the environmental impact statement prepared by the HRA in connection with the Cedar-Riverside high-density residential and commercial construction project in Minneapolis. Plaintiffs herein state in their brief that the plaintiffs in the Cedar-Riverside case assert that the HRA environmental impact statement failed to consider--

" * * * the effect of density on psychological and social behavior * * * ; alleged excessive traffic congestion and associated air and noise pollution; lack of adequate natural parkland in the development plan; destruction of the nature of the existing community * * * ; and the effect that funding a major development in one area of Minneapolis would have on denying redevelopment funds to other areas."

This pending action and its attendant circumstances precipitated the HRA's determination to meet to discuss the strategy to be employed throughout the litigation. As elucidated by the May 13, 1975, affidavit of James S. Holmes, attorney for HRA:

"3. That after motions were argued before Judge Miles Lord in United States District Court on April 21, 1975 regarding proceedings with the Cedar-Riverside environmental litigation, our office, as attorneys for the Authority, felt it imperative that we meet with our clients to discuss some of the questions that had been raised thereby and the alternatives available to us in that litigation. Accordingly, on April 23, 1975, Mr. Graven and I recommended a meeting with the Commissioners to discuss trial strategy and further recommend[ed] that said meeting be closed to the public and the press.

"4. That before said April 23 meeting, I explained to plaintiff Ackerberg the reasons for which we were recommending that he be excluded.

"5. That the meeting was then held and matters discussed related solely to Cedar-Riverside environmental litigation strategy.

"6. That as general counsel to the Housing Authority we have exercised extreme caution in the recommendation of or participation in closed meetings. This has been because of the ultimate remedy of 'ouster' which exists in the Minnesota Open Meeting Law. On April 29, 1975, we received an offer of settlement of the Cedar-Riverside environmental litigation from John Herman, attorney for the Cedar-Riverside Defense Fund. On May 6, 1975, a committee of the Housing Authority had on its meeting agenda this settlement offer. At the meeting, I advised the Commissioners of the offer, stated that it was my professional opinion that it would not be in the best interests of the Authority to discuss the settlement in the presence of the opposition, but stated that until the Open Meeting Law was clarified, I did not feel that I could recommend another closed meeting at that time. As a result, the Cedar-Riverside litigation item was removed from the agenda.

"7. That it is my opinion that our obligation as attorneys cannot be fulfilled unless we confidentially confer with our clients regarding this lawsuit. At the same time, it is our opinion that it would be extremely detrimental to the Authority to discuss trial strategy and settlement proposals in the presence of our litigating opposition. Failure to recognize an attorney-client privilege in this and similar matters will have a significant negative impact upon the Authority's ability to effectively deal with litigation matters such as the Cedar-Riverside environmental suit."

Plaintiffs essentially assert that the legislature is empowered to limit the application of the attorney-client privilege when balanced with the extensive public interest and that the promulgation of the Open Meeting Law is exemplary of such a limitation. Minn.St. 471.705, subd. 1, provides in part:

"Except as otherwise expressly provided by statute, all meetings, including executive sessions, of any state agency, board, commission or department when required or permitted by law to transact public business in a meeting, and the governing body of any school district however organized, unorganized territory, county, city, town, or other public body, and of any committee, subcommittee, board, department or commission thereof, shall be open to the public, except meetings of the board of pardons, the Minnesota corrections authority."

In opposition, defendants contend that that portion of Minn.St. 471.705, subd. 1, which states "[e]xcept as otherwise expressly provided by statute" clearly preserves the integrity and applicability of the attorney-client privilege, as found in Minn.St. 595.02(2) ¹ and Minn.St. 481.06(5). ² While not specifically providing that attorney-client meetings involving public agencies must remain inviolate, both statutes generally indicate a legislative intent to preserve attorney-client confidences.

Our analysis must then focus upon the efficacy and necessity of adhering to the basic principles of the attorney-client privilege when balanced against the public's right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest.

This court is empowered by Article 3, Sec. 1, of the 1974 Minnesota Constitution to administer, among other areas, the practice of law. This section provides:

"The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution."

This duty and power were fully discussed in the recent decision of Sharood v. Hatfield 296 Minn. 416, 425, 210 N.W.2d 275, 280 (1973), in which we stated:

"The power to regulate the practice of law rests with the judiciary. Over 100 years ago, the United States Supreme Court, in a case arising from the Territory of Minnesota, said:

" ' * * * [I]t has been well settled, by the rules and practice of common-law courts...