Neu v. Miami Herald Pub. Co.

Decision Date17 January 1985
Docket NumberNo. 64151,64151
Citation462 So.2d 821,10 Fla. L. Weekly 59
Parties10 Fla. L. Weekly 59, 11 Media L. Rep. 1392 Howard NEU, Mayor; Robert Lippelman, James Devaney, Diane Lord Brannen and John A. Hagerty, as Members of the North Miami City Council, Petitioners, v. MIAMI HERALD PUBLISHING COMPANY, Intervenor/Respondent, and State of Florida ex rel. Janet Reno, as State Attorney for the Eleventh Judicial Circuit of Florida, and as a citizen of the State of Florida, Respondents.
CourtFlorida Supreme Court

Thomas Martin Pflaum of Simon, Schindler & Hurst, Miami, for petitioners.

Parker D. Thomson and Sanford L. Bohrer of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, and Richard J. Ovelmen, Gen. Counsel, Miami, for The Miami Herald Pub. Co.

Thomas K. Petersen, Chief Asst. State Atty., Miami, for State of Florida ex rel. Janet Reno, State Atty.

Gerry Hammond and Joslyn Wilson, Asst. Attys. Gen., Tallahassee, amicus curiae, for the State of Fla. ex rel. Jim Smith, Atty. Gen.

James R. Wolf, Gen. Counsel, Tallahassee, amicus curiae, for Florida League of Cities.

Robert M. Rhodes, H. Michael Madsen and Kent R. Putnam of Messer, Rhodes & Vickers, Tallahassee, amicus curiae, for Florida School Bds. Ass'n, Inc.

PER CURIAM.

The district court below certified its decision as one passing on a question of great importance. State ex rel. Reno v. Neu, 434 So.2d 1035 (Fla. 3d DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The state attorney and the Miami Herald sought a declaratory judgment that a proposed meeting between the city council and its attorney to discuss pending litigation was subject to the open meeting provisions of the Sunshine Law, section 286.011, Florida Statutes (1981). Relying on Bassett v. Braddock, 262 So.2d 425 (Fla.1972), the trial court concluded that the proposed meeting was neither official nor formal action under section 286.011 and, thus, there was no requirement that the meeting be open to the public. On appeal, the district court reversed, relying on Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969) and City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971) as being directly on point. The district court distinguished Bassett on the basis that it dealt with a different question arising under a constitutional exception to the Sunshine Law. The district court also rejected the argument that the attorney-client privilege provisions of the Florida Evidence Code, section 90.502, Florida Statutes (1981), granted an exception for closed meetings because, in the court's view, section 286.011(1) limited exceptions to the Sunshine Law to those created by the constitution. Because of the continuing significance of the issue, the court certified the following question of great public importance:

Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party.

State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmatively and approve the decision of the district court.

Before turning to the dispositive questions, we dispose of two peripheral questions which have been raised. First, the city council devised a procedure whereby representatives of the press and the state attorney, among others, were to be admitted to the meeting and a record maintained which would later be released to the public. The representatives attending the meeting would be pledged to respect the confidentiality of the cases discussed in the meeting until the cases had been resolved. Whatever merits there may be in this procedural attempt to compromise the competing values between open meetings and private discussion with an attorney, the procedure has no legal impact. Under the Sunshine Law, a meeting is either fully open or fully closed; there are no intermediate categories.

Second, the district court opinion suggests that in enacting the Sunshine Law the legislature, by the use of the words "except as otherwise provided in the constitution," established a requirement that future legislatures could not establish statutory exceptions to the open meeting requirements of the Sunshine Law. This is, of course, incorrect. A legislature may not bind the hands of future legislatures by prohibiting amendments to statutory law. Straughn v. Camp, 293 So.2d 689, 694 (Fla.), appeal dismissed, 419 U.S. 891, 95 S.Ct. 168, 42 L.Ed.2d 135 (1974); Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940); Sovereign Camp Woodmen of the World v. Lake Worth Inlet District, 119 Fla. 782, 161 So. 717 (1935); Kirklands v. Town of Bradley, 104 Fla. 390, 139 So. 144 (1932).

Turning now to the dispositive questions, the trial court concluded, and petitioners urge, that our decision in Bassett creates an exception to the Sunshine Law permitting governmental bodies to meet privately with their attorneys to discuss pending litigation. In Bassett we held that an attorney representing a governmental body could meet privately with employee representatives to negotiate a collective bargaining agreement, and that the governmental body could meet privately with its attorney representative to instruct and consult on the negotiations. We agree that much of our rationale in Bassett would appear to support the proposition that private consultations are permitted with attorneys representing governmental bodies in pending litigation. Indeed, we went so far as to comment that "where the negotiator is an attorney that certainly he is entitled to consult with the Board on matters regarding preliminary advices." Bassett, 262 So.2d at 428 (emphasis in original). Despite the broadness of such language, our decision was restricted to and rested on what we saw to be a constitutional exception to the Sunshine Law, to wit: the article I, section 6 right of public employees to bargain collectively.

Petitioners urge that opening up the consultation of the governmental body with its attorney to its adversary in pending litigation gives the adversary an unfair advantage which can be used to secure unmerited or excessive judgments or settlements against the public. There is a good deal of wisdom in petitioners' argument but, as will be made clear below, we have no constitutional or statutory authority to create an exception to the Sunshine Law for governmental bodies to meet privately with their attorneys to discuss pending litigation.

Petitioners next urge that section 90.502, Florida Statutes (Supp.1976) created an attorney/client privilege whereby governmental bodies may meet privately with their attorneys. Although we agree that the legislature has the authority to exempt such meetings from the Sunshine Law, we do not agree that it has done so. Section 90.502(1)(c) provides that "[a] communication between lawyer and client is 'confidential' if it is not intended to be disclosed to third persons...." The Law Revision Council Note to section (1), Florida Statutes Annotated 90.502 (1979), comments that "[w]hen the communication is made in public ... the intent to keep the communication confidential is lacking and the privilege cannot be claimed." The Sunshine Law explicitly provides for public meetings; communications at such public meetings are not confidential and no attorney/client privilege can arise therefrom. Our conclusion is supported by the later unsuccessful attempt of the legislature to enact House Bill 1107 (HB 1107) in the 1977 legislative session. Section 8 of HB 1107 provided that governmental bodies could meet privately with their attorneys to discuss pending litigation. However, the Governor vetoed HB 1107 and that veto was sustained. In his veto message to the legislature, Governor Askew indicated that he approved most of the contents of HB 1107, but so strongly disapproved of the exception to the Sunshine Law for discussions with attorneys that he was constrained to veto the bill. As it pertains to this point, the significance of section 8 of HB 1107 is that it clearly indicates that the legislature, despite petitioners' argument to the contrary did not intend by its earlier enactment of section 90.502 to create an exception to the Sunshine Law for attorney/client meetings. If it had so intended, HB 1107 would have been a pointless act. In construing legislation, courts should not assume that the legislature acted pointlessly. Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962).

Petitioners next urge, alternatively, that reading section 286.011 to deny them a right to private meetings with their attorney places section 286.011 in conflict with Florida Bar Code of Professional Responsibility, Disciplinary Rule 4-101 and Ethical Consideration 4-2, and infringes on the constitutional authority of this Court under article V, section 15, Florida Constitution to regulate the practice of law. Petitioners cite Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969), in support. We disagree and disapprove that portion of Times Publishing Co. which holds that the legislature is without authority to regulate the relationship of public bodies with their attorneys. We note first that Disciplinary Rule 4-101 and Ethical Consideration 4-2 both provide that an attorney may divulge communications with his client when required by law. Further, as we noted above, there are no confidential communications to protect when the communications occur in a public meeting. Finally, the attorney/client privilege belongs to the client, not the attorney. The legislature has plenary constitutional authority to regulate the activities of political subdivisions and can require, as it has done in section 286.011, that meetings be open to the public. The attorney's right to invoke the attorney/client privilege is derivative of the client's right to that privilege. Under the circumstances, it would truly be a case of the tail wagging the dog to hold that an attorney, or this Court, could require closed...

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