Pine v. McGreavy, 95-570-APPEAL

• Decision Date: 15 January 1997
• Docket Number: No. 95-570-APPEAL,95-570-APPEAL
• Citation: 687 A.2d 1244
• Parties: Attorney General Jeffrey PINE in His Official Capacity on Behalf of the Edward A. Sherman Publishing Company and the Newport Daily News 1 v. Francis W. McGREAVY, in His Official Capacity as Town Moderator of the Town of Tiverton.
• Court: Rhode Island Supreme Court

Page 1244

687 A.2d 1244

Attorney General Jeffrey PINE in His Official Capacity on Behalf of the Edward A. Sherman Publishing Company and the Newport Daily News ¹ v. Francis W. McGREAVY, in His Official Capacity as Town Moderator of the Town of Tiverton.

No. 95-570-APPEAL.

Supreme Court of Rhode Island.

Jan. 15, 1997.

Joseph V. Cavanagh, Jr., Providence, Elizabeth A. Wallace, Asst. Attorney General, for Plaintiff.

Thomas T. Brady, Tiverton, for Defendant.

OPINION

PER CURIAM.

This case came before us for oral argument on December 5, 1996, pursuant to an order that had directed the parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the oral arguments and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The Attorney General appeals from the dismissal of his complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. The complaint had been filed against Francis W. McGreavy (defendant) in his capacity as town moderator of the town of Tiverton for violation of the Open Meetings Act, G.L.1956 chapter 46 of title 42 (the Act). The facts of the case insofar as pertinent to this appeal are as follows.

The defendant, while serving as moderator of the financial town meeting for the town of Tiverton held in the high school gymnasium, caused a photographer employed by the Newport Daily News to be ejected from the meeting. He took this action because the photographer did not obey an earlier instruction to be seated in that portion of the gymnasium reserved for members of the press. The gymnasium had been divided into a section for those electors qualified to vote on the annual budget, a section for members of the public who were not qualified electors, and a section area designated for occupancy by members of the press. The designation of sections had been made by the board of canvassers in order to separate voters from nonvoters so as to facilitate vote counting on issues to be presented to the qualified electors and to maintain orderly procedures and decorum among those who were present at the assembly. The photographer, although admonished by the moderator, continued to walk about the general area, taking photographs with a camera that she considered not to be distracting because it did not utilize a flash attachment.

A justice of the Superior Court dismissed the complaint on the ground that the Act did not apply to a financial town meeting or to the town moderator who presided at such meeting. In essence the trial justice held that a financial town meeting was not included in the definitions contained in § 42-46-2, which defines a public body...