Olinger v. Smith
| Decision Date | 25 March 2015 |
| Docket Number | No. 14-0751,14-0751 |
| Citation | 889 N.W.2d 476 |
| Parties | James W. OLINGER and Larry C. Meyer, Plaintiffs-Appellants, v. Robert SMITH, Walter Utman and Gaylord Pitt, Harrison County, Iowa and Utman Drainage District, Defendants-Appellees. |
| Court | Iowa Court of Appeals |
Jessica A. Zupp of Zupp & Zupp Law Firm, P.C. and Allen K. Nepper of Nepper Law Firm, Denison, for appellants.
Sasha L. Monthei of Sheldrup Blades, Cedar Rapids, for appellees.
Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
James Olinger and Larry Meyer claim the Utman Drainage District Trustees violated Iowa's Open Meetings Act (IOMA). Olinger and Meyer have appealed from a ruling by the district court claiming the court erred in ordering damages before ascertaining whether the Utman Drainage District's Trustees' violation on November 7, 2013, was made knowingly, erred in suspending those damages, and erred in failing to award Olinger and Meyer attorney fees or costs. Olinger and Meyer further contend the district court erred in failing to find an IOMA violation on November 14, 2013, arguing Iowa Code section 21.5(1)(c) (2013) cannot be invoked unless counsel is present. We vacate in part and remand.
Robert Smith, Walter Utman, and Gaylord Pitt comprised the Harrison County Board of Supervisors in November 2013. Acting in their capacity as trustees for the Utman Drainage District (trustees), they went into closed sessions on November 7 and November 14, 2013, allegedly to discuss matters relating to pending litigation. In pleadings, the trustees admitted counsel for the district was not present at either meeting.
On November 25, 2013, James Olinger and Larry Meyer filed a petition alleging that both closed sessions were held in violation of IOMA. Olinger and Meyer filed a motion seeking an in camera inspection of the recording of the closed sessions. The trustees answered by asserting litigation was in fact pending or imminent. The court approved an order presented jointly by the parties that stipulated to the district court's in camera inspection of the recordings of the meetings for the purposes of "determin[ing] whether prejudice to the public will result from disclosure of any portion of the recordings or, in the alternative, whether the probative value of the recordings outweighs any prejudice to the public which might result from such disclosure." See Iowa Code § 21.5(4).
After the inspection, the district court filed an order on March 4, 2014, which held Olinger and Meyer were entitled to access the November 7, 2013 recording as it merely evidenced a discussion of whether to pay the costs of subpoenas from a previous lawsuit, the release of which would not prejudice the trustees in future proceedings. The court found the November 14, 2013 recording should not be released, however, as the trustees discussed litigation strategy involving imminent litigation, the release of which would prejudice the trustees. Upon finding the recording from the November 7, 2013 meeting must be disclosed, the court invoked Iowa Code section 21.6(3)(a) and ordered each participating trustee to pay a $100 fine. The court, apparently sua sponte, supplemented its order on March 11, 2014, by suspending this fine and providing that "[i]n lieu of the fine" the trustees purchase an "Open Meetings, Open Records" handbook from the Iowa Freedom of Information Council for two dollars.
On March 13, 2014, the trustees filed an Iowa Rule Civil Procedure 1.904(2) motion to amend both orders as they were not afforded an opportunity to establish their compliance with IOMA or present defenses pursuant to section 21.6(3)(a). On March 21, 2014, Olinger and Meyer also filed a rule 1.904(2) motion asserting their in camera motion was limited to the question of prejudice and disclosure, not the assessment of penalties pursuant to IOMA, that the district court erred in not allowing the trustees to present section 21.6(3)(a) defenses, erred in finding only one IOMA violation, and erred in suspending the trustees' fines. The trustees withdrew their motion on March 24, 2014.
The court held a telephone hearing on Olinger and Meyer's rule 1.904(2) motion to reconsider on April 11, 2014, at which time the motion was summarily overruled and denied. Olinger and Meyer appeal the court's orders.
Our review is for correction of errors at law. Iowa R. App. P. 6.907.
See id. § 21.6(3)(a) (emphasis added).
Pursuant to section 21.6(3)(a), a defendant member can avoid the imposition of these damages and defend against the IOMA violation claim by establishing the member:
If successful, a defendant member not only avoids personal sanctions, but also avoids personal responsibility for the costs and attorney fees pursuant to section 21.6(3)(b), which states the court:
shall order the payment of all costs and reasonable attorney fees in the trial and appellate courts to any party successfully establishing a violation of this chapter. The costs and fees shall be paid by those members of the governmental body who are assessed damages under paragraph "a". If no such members exist because they have a lawful defense under that paragraph to the imposition of such damages, the costs and fees shall be paid to the successful party from the budget of the offending governmental body or its parent.
In its order approving the in camera inspection, the court stated its purpose for listening to such recordings was to determine "whether the Plaintiffs be given access to all or portions of the recordings for the purpose of reviewing, copying and using them for trial preparation and trial." The court order did not indicate—nor had the parties requested—that this determination would resolve the issue of whether an IOMA violation occurred, or the potential damages or relevant defenses. On March 4, 2014, the district court ordered each member of the Harrison County Board of Supervisors that participated in the November 7, 2013 meeting to pay $100 "fine" for holding a closed session on that date.
Both parties find errors in the district court's order. With respect to the ruling on the November 7 meeting, Olinger and Meyer contend the court erred in imposing final damages before ascertaining whether the trustees knowingly participated in the violations as outlined in section 21.6(3)(a), erred in suspending those damages, and erred in failing to award them attorney fees and costs for the trustees' IOMA violation according to section 21.6(3)(b).
The trustees concede the district court erred in imposing damages before making a finding they violated IOMA1 and erred in failing to grant them an opportunity to be heard and present defenses pursuant to section 21.6(3)(a)(1)–(3).
The district court's March 4, 2014 order made no express finding that the trustees violated IOMA, but implicitly did so when it assessed damages pursuant to section 21.6(3)(a). The order also made no finding regarding whether the trustees knowingly violated IOMA at the November 7 meeting. The court's order assessing damages was premature and constitutes error as it assessed damages without giving the plaintiffs an opportunity to present evidence necessary for the court to determine whether each member "knowingly participated in such a violation" pursuant to section 21.6(3)(a).
Section 21.6(3)(a) states the district court "shall" assess damages upon a determination a violation has occurred, and provides damage amounts to be assessed. Chapter 21 makes no provision for suspending or waiving an assessment. If the court finds a violation of IOMA has occurred, and the court finds that a member has not proved any of the defenses under section 21.6(3)(a)(1), (2) or (3), an assessment of damages is mandatory and the district court is not permitted to suspend such assessment or reduce it below the statutory mandate. The district court erred when it suspended the "fine."
The court committed error when its March 4, 2014 order assessed damages without allowing the trustees the opportunity to present any defense per section...
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