Prior Lake American v. Mader

• Decision Date: 02 May 2002
• Docket Number: No. C7-00-1909.,C7-00-1909.
• Citation: 642 N.W.2d 729
• Parties: PRIOR LAKE AMERICAN, a newspaper of Red Wing Publishing Company, Inc., Petitioner, Appellant, v. Wes MADER in his capacity as mayor of Prior Lake, et al., Respondents.
• Court: Minnesota Supreme Court

642 N.W.2d 729

PRIOR LAKE AMERICAN, a newspaper of Red Wing Publishing Company, Inc., Petitioner, Appellant, v. Wes MADER in his capacity as mayor of Prior Lake, et al., Respondents.

No. C7-00-1909.

Supreme Court of Minnesota.

May 2, 2002.

Mark R. Anfinson, Minneapolis, MN, for appellant.

George C. Hoff, Scott B. Landsman, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for respondents.

Randy Lebedoff, Minneapolis, MN, for amici curiae Minnesota Newspaper Assoc. and Associated Press. Manuel Cervantes, City Attorney, Gerald T. Hendrickson, Asst. City Attorney, St. Paul, MN, for amicus curiae City of Saint Paul.

Barbara Berglund, Ely, MN, for amicus curiae Ely Area Citizens Concerned about Wastewater Treatment Affecting Shagawa and White Iron Lakes.

Susan L. Naughton, League of Minnesota Cities, St. Paul, MN, for amicus curiae League of Minnesota Cities.

Heard, considered, and decided by the court en banc.

OPINION

LANCASTER, Justice.

The Prior Lake American, a newspaper published in Prior Lake, Minnesota, sued the Mayor of Prior Lake and three members of the Prior Lake City Council (respondents), claiming that they violated the Minnesota Open Meeting Law when they invoked the attorney-client privilege exception to close a Council meeting.¹ The district court granted respondents' motion for summary judgment, holding that respondents' need for confidential legal advice relating to a threat of litigation outweighed the public's right to access. The Prior Lake American appealed and the court of appeals affirmed. To determine whether the attorney-client privilege exception to the Open Meeting Law applies, we balance the purposes served by the attorney-client privilege against those served by the Open Meeting Law. The exception applies when this balancing dictates the need for absolute confidentiality. In this case, the balancing does not dictate the need for absolute confidentiality and, therefore, we reverse and remand.

The parties agree that there are no material facts in dispute. Ryan Contracting Co. (Ryan) applied for a conditional use permit (CUP) to operate a gravel extraction site in the City of Prior Lake (City). Ryan's application sparked concern from several sources, including the Shakopee Mdewakanton Sioux Community (SMSC), the Minnesota Department of Natural Resources, and the City. On January 18, 2000, Ryan sent a letter to the City that responded to several issues surrounding its application. The letter stated in part:

In 1997-98 Ryan Contracting had secured an approved grading permit allowing the removal of material from this property. The City of Prior Lake revoked Ryan Contracting's approved grading permit while allowing an adjacent property owner and contractor to mine sand material from their property * * *. Ryan Contracting suffered severe financial harm as a result of the revocation of our approved grading permit. At this present time Ryan Contracting has voluntarily decided to comply with the City of Prior Lake's request to apply for a Conditional Use Permit. In the event Ryan Contracting is denied its CUP as allowed by City ordinance or an EAW is required, Ryan Contracting will revise its application to include any or all of the above items [set forth in preceding paragraphs]. Furthermore Ryan Contracting may seek legal action to ensure proper handling and compliance of this matter as well as legal action to recover lost revenues and/or costs incurred as a result of actions by the City of Prior Lake.

The Council's first opportunity to consider Ryan's letter took place at its regularly scheduled February 7, 2000, meeting.

The February 7, 2000, meeting was open to the public. Council members Ericson, Gundlach, Petersen, and Schenck attended, as did Mayor Mader. Lee Ann Schutz, the editor of the Prior Lake American, also attended the meeting.

The Council's agenda included the following item: "Consider Approval of Report Regarding the Petition for Preparation of an Environmental Assessment Worksheet for Ryan Contracting's Application for a Conditional Use Permit for Gravel Excavation." The City's staff presented its findings and recommended that the petition for an environmental assessment worksheet² (EAW) be denied and that Ryan's CUP application be approved.³

A discussion of the staff's report followed. Although Mader acknowledged that the petitioner had not submitted facts to prove that Ryan's gravel excavation operation "would necessarily represent a risk to the water supply," he believed that the petitioner had submitted facts showing that Ryan's operation might pose a threat to the water supply. Mader continued, asking questions about the acreage that Ryan intended to mine, traffic concerns, and effects Ryan's operation would have on water resources. Mader concluded, "I'm not persuaded that * * * there isn't a potential environmental problem, nor * * * am I persuaded that this can be carried out without impact on neighboring properties, significant impact on neighboring properties."

Gundlach followed Mader. Gundlach asked about an observation well, traffic concerns, an aquifer, noise concerns, enforcement of conditions attached to Ryan's CUP, and tree replacement. Petersen spoke next. He believed that the Council should grant the petition for an EAW:

[T]he Mayor brought up a bunch of concerns that in denying this environmental assessment worksheet which I though[t] we were going to do here, and I just hardly can't go along with that at this point. There are too many concerns that got brought up on that and so I have to change my opinion on that a little bit. I think if we go anyplace on this we'll have to have that worksheet brought up. There are just too many things.

After Petersen's questions, Schenck asked about the timing and cost of an EAW, dewatering, cleaning, the length of time it would take Ryan to complete its gravel extraction, road maintenance, and property reclamation. Ericson then stated that "it would be prudent for us to conduct an EAW since there have been significant issues raised this evening."

Mader summarized his thoughts with respect to the petition for an EAW:

Let me again reiterate that I think there are some serious concerns [that] have been raised and I certainly am not comfortable, for example, that we've addressed the water issue carefully when our own documentation and the documentation from the DNR and from the Council are both suggesting we should have an EAW. Our own data, at least from what I understand now, we also indicate that site is also within the well head protection area of the well that the Dakota Community has[.] * * * [I]t should be an obvious[] conclusion that if State regulatory agencies are imposing well head protection for protection of water, I can't understand how we could possibly justify going ahead with an excavation operation within a well head protection area just because it doesn't happen to be our well. I think that would be inappropriate.

Mader addressed Ryan's letter:

I'm looking at * * * a letter to the City from Ryan Contracting * * * which says "In the event Ryan Contracting is denied its CUP as allowed by City ordinance, or an EAW is required, Ryan Contracting will revise[] its application to include any or all of the above items." Those are the items, incidentally, that have been previously determined to be objectionable * * *. The implication of that as I read it is "if you don't give us what we want, we['re] going to come back and add all those things that are so objectionable," and I really have some problems with that. But more important, the next sentence says, "Ryan Contracting may seek legal action to ensure proper handling and compliance of this matter, as well as legal action to recover lost revenues and/or costs incurred as a result of actions by the City of Prior Lake." Now, unless I don't understand what that means, I think what that says is "hey City Council, if you don't approve this tonight, we're going to sue you."

Mader then suggested that the Council retire to executive session:

I read this as a clear indication of a threat of litigation, and I am going to suggest to the rest of the Council members, that it is not inappropriate for the Council to meet in executive session to discuss any potential action that relates to potential litigation, and I'm not so sure that it wouldn't be very appropriate for the Council to recess and go into executive session so that we can discuss with counsel in an executive session just how we should view this threat of litigation relative to the actions that are before the Council this evening.

Gundlach made a motion to recess into executive session and Ericson seconded the motion. Schenck questioned the propriety of the meeting's closure:

[D]o we have enough here to legally retire into executive session? I know what this letter is getting at and we've got the CUP behind us, we require an EAW tonight, we move forward. There is no need for an executive session. Let them sue us.

Mader responded: "All I'm suggesting * * * is we do have the right to go into executive session when there is a threat of litigation, and I think this is a pretty clear threat. I assume you would agree[] with that?" Schenck disagreed, regarding Ryan's letter as "negotiation tactics, scare tactics." The Council passed the motion. Mader, Gundlach, Petersen, and Ericson voted in favor of the motion and Schenck voted against it. The Council adjourned to executive session. Schutz objected to the meeting's closure. Schenck did not participate in the executive session.

After the Council returned, the members explained why they retired to executive session. Mader said, "We went into executive session because of * * * the threat of litigation if we do not grant * * * the CUP petition and we do not deny the EAW." He reasoned:

I think it's certainly appropriate that as a Council deliberates and makes decisions, that it do so, hopefully without threat of litigation, but if there is a threat

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