State ex rel. Plain Dealer Pub. Co. v. Barnes

• Decision Date: 11 August 1988
• Docket Number: No. 87-115,87-115
• Citation: 38 Ohio St.3d 165,527 N.E.2d 807
• Parties: , 15 Media L. Rep. 2083 The STATE, ex rel. PLAIN DEALER PUBLISHING COMPANY, Appellant, v. BARNES et al., Appellees.
• Court: Ohio Supreme Court

Page 165

38 Ohio St.3d 165

527 N.E.2d 807, 15 Media L. Rep. 2083

The STATE, ex rel. PLAIN DEALER PUBLISHING COMPANY, Appellant, v. BARNES et al., Appellees.

No. 87-115.

Supreme Court of Ohio.

Submitted March 1, 1988.

Decided Aug. 11, 1988.

Syllabus by the Court

1. Although a case may be moot, a court may hear the the appeal where the issues raised are "capable of repetition, yet evading review." (Southern Pacific Terminal Co. v. ICC [1911], 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, followed.)

2. A municipal charter vesting broad powers in the legislative body of a municipality may also contain specific prohibitions and restrictions upon the exercise of those powers.

3. As used in Section 28 of the Charter of the City of Cleveland, a "meeting" of the Cleveland City Council or any of its committees means any assemblage of the city council or its committees where a majority of members constituting the body are in attendance and the gathering is arranged for the purpose of discussing public business.

Relator-appellant, Plain Dealer Publishing Company, is an Ohio corporation with its principal place of business in Cleveland, Ohio, where it publishes The Plain Dealer, a daily metropolitan newspaper. Respondents are the individual members of the Cleveland City Council and the Mayor of the city of Cleveland.

On November 18, 1986, substantially all the members of council met at approximately 11:00 a.m. with the mayor in city hall. Even though no evidence in the record reveals the precise nature and manner in which the meeting was called, it is clear from statements of counsel at oral argument before this court that council and the mayor had an "understanding" that they would assemble to discuss council's complaints concerning the city's sidewalks, lakefront airport, and, inferentially, other city business. Members of the press and public, including Plain Dealer reporter Steven Luttner, were barred from the meeting.

Relator immediately filed its complaint in mandamus in the court of appeals requesting that either a peremptory or alternative writ of mandamus be issued to compel respondents to open the ongoing meeting as well as future meetings of all or substantially all the members of council.

On November 20, 1986, the Plain Dealer amended its complaint to delete references to future council meetings from the prayer for relief.

On November 24, 1986, the court of appeals sua sponte dismissed the complaint as moot because " * * * [t]he meeting to which the relator alleges [it] has been refused admittance is concluded * * *." Although relator had amended its complaint to delete its request for prospective relief, the court added that a writ of mandamus is not available to order the performance of a prospective act.

The cause is now before this court as a matter of right.

Baker & Hostetler, Louis A. Colombo and David L. Marburger, Cleveland, for appellant.

Marilyn G. Zack, director of law, and Malcolm C. Douglas, Cleveland, for appellees.

Walter, Haverfield, Buescher & Chockley, F. Wilson Chockley, Jr., Michael T. McMenamin and Frederick W. Whatley, Cleveland, urging reversal for amicus curiae, Storer Communications, Inc.

Baker & Hostetler, Cleveland, urging reversal for amicus curiae, Ohio Newspaper Assn.

American Civil Liberties Union of Cleveland Foundation, Inc., Gordon Beggs, Lois Robinson, Cleveland, and William P. Marshall, urging reversal for amicus curiae, American Civil Liberties Union of Cleveland.

Kent Markus, Cleveland, and William P. Marshall, urging reversal for amicus curiae, Common Cause/Ohio.

MOYER, Chief Justice.

I

At the outset, we consider whether this cause has been rendered moot by adjournment of the meeting at issue. We note that the Cleveland City Council has engaged in a practice of excluding the press and public from certain of its meetings. Such meetings will normally adjourn before the practice of exclusion is subjected to judicial review. Although a case may be moot, a court may hear the appeal where the issues raised are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC (1911), 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed.2d 310. Thus, because this case raises important issues concerning public rights which are "capable of repetition, yet evading review," we conclude it is not moot. State, ex rel. The Repository, v. Unger (1986), 28 Ohio St.3d 418, 420, 28 OBR 472, 474, 504 N.E.2d 37, 39; Press Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 6, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1. Moreover, in view of the admissions of counsel and in the interest of judicial economy, we proceed to review the case on the merits rather than remand for further fact-finding by the court of appeals.

II

For the reasons set forth below, we find relator is entitled to a peremptory writ of mandamus to compel respondents to open the meetings of council to the public, pursuant to public rights established under Section 28 of the Charter of the City of Cleveland.

It is well-settled that a writ of mandamus may issue whenever relator demonstrates: (1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the requested act, and (3) that relator has no plain and adequate remedy at law. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph ten of the syllabus; State, ex rel. Corrigan, v. McAllister (1985), 18 Ohio St.3d 239, 240, 18 OBR 296, 297, 480 N.E.2d 783, 785; Eudela v. Rogers (1984), 9 Ohio St.3d 159, 161, 9 OBR 448, 449, 459 N.E.2d 539, 541.

Relator relies on Section 28 of the Cleveland City Charter and Section 11, Article I of the Ohio Constitution as the source of its right and respondents' duty to permit access to meetings of the Cleveland City Council. It is unnecessary to decide whether the constitutional guarantee of freedom of speech and press under Section 11, Article I of the Ohio Constitution also guarantees the right of access to meetings of municipal legislatures, as the plain and ordinary meaning of Section 28 of the Cleveland City Charter provides for such a right.

Section 28 of the Cleveland City Charter provides:

"At seven o'clock p.m., on the first Monday in January following a regular Municipal election, the Council shall meet at the usual place for holding meetings, at which time the newly-elected members of the Council shall assume the duties of their offices. Thereafter the Council shall meet at such times as may be prescribed by ordinance or resolution. The Mayor, the President of the Council, or any five members thereof may call special meetings of the Council upon at least twelve (12) hours' written notice to each member of the Council, served personally on each member or left at the usual place of residence of such member. Any such notice shall state the subjects to be considered at the meeting and no other subjects shall be there considered. All meetings of the Council or committees thereof shall be public and any citizen shall have access to the minutes and records thereof at all reasonable times."

The charter provides that all meetings of council and committees shall be public. The word "shall" establishes a mandatory duty, absent a clear and unequivocal intent that it receive a construction other than its ordinary meaning. Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus. The council contends that the words "all meetings of the Council or committees thereof" mean only those three categories described in Section 28 of the charter. Relator emphasizes the word "all" and rejects council's assertion of a right to designate a class of closed executive sessions.

Regardless which interpretation one accepts, it is clear that this prearranged meeting of a majority of council and the mayor at a set time and place was to discuss city business, and falls within the intent of the special meetings category of Section 28 of the charter.

We note that the charter requires all meetings of council and its committees to be public, and does so without exception. While Section 24 of the charter provides that "[t]he legislative powers of the City, except as reserved to the people by this Charter, shall be vested in a Council * * *," and Section 2 of the charter further grants implied powers appropriate to the exercise of enumerated powers, ¹ we reject the proposition that council has implied authority to designate and hold closed special meetings of council or committees thereof in contravention of the more specific public duty mandated by Section 28. ² This conclusion is reinforced by Section 1 of the charter, which provides that all powers " * * * whether expressed or implied, shall be exercised and enforced in the manner prescribed by this Charter * * *." ³ Prior decisions of this court have established the principle that a municipal charter vesting broad powers in the legislative body of a municipality may also contain specific prohibitions and restrictions upon the exercise of those powers. See State, ex rel. McClure, v. Hagerman (1951), 155 Ohio St. 320, 44 O.O. 309, 98 N.E.2d 835, paragraph one of the syllabus; Reed v. Youngstown (1962), 173 Ohio St. 265, 19 O.O.2d 119, 181 N.E.2d 700, paragraph two of the syllabus, and its progeny (ordinances and resolutions in conflict with provisions of city charter invalid). See, also, State, ex rel. Elchlinger, v. Ramser (1961), 113 Ohio App. 289, 17 O.O.2d 275, 172 N.E.2d 731 (administrative rules in conflict with provisions of city charter invalid).

Amici, Storer Communications, Inc. and the Ohio Newspaper Association, in support of relator, propose that we apply the statutory definition of "meeting," found in Ohio's sunshine law under R.C. 121.22(B)(2): " * * * any prearranged discussion of the public business of the public body by a majority of its members." We find...