On writ of certiorari to review order filed 20 November 2002
by Judge James C. Spencer, Jr. in Alamance County Superior Court.
Heard in the Court of Appeals 31 March 2004.
City Attorney Robert M. Ward; and Thomas, Ferguson & Mullins,
L.L.P., by Jay H. Ferguson, for plaintiff-appellee.
Everett, Gaskins, Hancock & Stevens, L.L.P., by C. Amanda
Martin, for defendant-appellant.
BRYANT, Judge.
Boney Publishers, Inc. d/b/a The Alamance News (defendant)
appeals an order filed 20 November 2002 denying defendant's motion
for partial summary judgment and declaring that the City of
Burlington (plaintiff) was not constitutionally or statutorily
barred from bringing a declaratory judgment action to determinewhether the City was in compliance with North Carolina's open
meetings and public records laws.
On 15 July 2002, the Burlington City Council (Council) met for
a work session. A motion was made pursuant to N.C. Gen. Stat. §
143-318.11(a) and approved to hold a closed session allowing the
Council to discuss potential and pending litigation. Jay Ashley,
reporter for The Alamance News, and another reporter from a
different organization left the meeting. Those remaining in the
meeting included Council members, the city clerk, city attorney
Robert Ward, private attorney Reginald Gillespie (who had been
retained to represent the City in five pending lawsuits discussed
during the closed session), and Alamance County Area Chamber of
Commerce president Sonny Wilburn. Wilburn was present for part of
the closed session in order to advise the Council and the attorneys
on issues of land valuation and marketability, as these issues
related to possible settlement of the pending lawsuits. The
Council met for approximately 90 minutes with Wilburn present and
approximately 15 minutes outside of Wilburn's presence. Wilburn
left the meeting during a break. During the break, Ashley asked
Ward to explain why Wilburn had been allowed to be present in a
meeting called pursuant to attorney-client privilege. In his
response, Ward explained that outside parties are permitted to
participate in closed sessions when there is a logical reason to
include them in the meeting. Ward said he relied on a guidebook
published by the Institute of Government for his position on the
issue.
On 30 July 2002, Tom Boney, publisher of The Alamance News,attended an open meeting of the Council, where he voiced his
objection to Wilburn's presence in the 15 July 2002 closed session,
arguing Wilburn's presence destroyed the attorney-client privilege
and rendered the purpose of the meeting void. Boney contended that
the closed session was illegal and requested access to the closed
session minutes. Ward responded that the closed session was held
in accordance with state law. Boney was not given a copy of the
minutes of the closed session.
On 14 August 2002, Boney delivered a letter to Ward, the city
manager, the city clerk, and to each Council member. In his
letter, Boney again stated he believed the attorney-client
privilege had been destroyed by Wilburn's presence and the meeting
had been improperly convened pursuant to N.C. Gen. Stat. § 143-
318.11(a)(3). Boney demanded the closed session minutes and stated
his willingness to pursue legal action to compel the City's
compliance. Responding to Boney's letter, Ward repeated his
position that outside individuals may be included in a closed
session if there is a logical reason for them to be present. Ward
did not articulate what logical reason justified Wilburn's
presence, but provided Boney with citations to two cases: one from
South Carolina and one from Texas in support of his position.
On 19 August 2002, Boney sent a second letter again requesting
the minutes of the closed session. The following day (20 August
2002), Boney appeared at another Council meeting to request access
to the closed session minutes. On 21 August 2002, via a letter
signed by Ward, the city manager, and the city clerk, Ward
responded that certain individuals had been requested to attend theclosed session, and the presence of those individuals was essential
in order to accomplish the purposes of the closed session. The
letter also stated that the minutes would be withheld pursuant to
N.C. Gen. Stat. § 143-318.10(e), until such time as public
inspection would not frustrate the purpose of the closed session.
On 22 August 2002, the City initiated a declaratory judgment
action against defendant in order to resolve the conflict between
the City and defendant. Defendant counterclaimed. This matter
came for hearing at the 16 September 2002 civil session of Alamance
County Superior Court with the Honorable James C. Spencer, Jr.
presiding. The superior court framed the issue as follows:
Did the presence of a third party at the July
15, 2002 closed meeting of the Burlington City
Council vitiate the asserted attorney-client
privilege {N.C.G.S. 143-318.11(a)(3)} and
thereby result in a violation of the North
Carolina Open Meetings Law?
By order filed 25 September 2002, the superior court found
that Wilburn was an agent of the City; Wilburn was present at the
meeting for the purpose of facilitating the rendition of legal
services; and everyone present understood the confidential nature
of the closed meeting. The court concluded that the City acted
properly in holding the closed session and in withholding the
minutes. Defendant did not appeal from this ruling nor assign
error to any portion of this order.
Defendant thereafter filed a motion for partial summary
judgment “with respect to the declaratory judgment claim instituted
by the plaintiff.” This matter came for hearing at the 4 November
2002 civil session of Alamance County Superior Court before Judge
Spencer. The court framed the issue as follows:Was it constitutionally and statutorily
permissible for the plaintiff, City of
Burlington, to initiate a declaratory judgment
action against the defendant, The Alamance
News, seeking a determination of the [C]ity's
rights and obligations with respect to a
dispute which had arisen between the plaintiff
and the defendant as to whether the City was
in or out of compliance with the North
Carolina Open Meetings Law and Public Records
Law?
By order filed 20 November 2002, the court concluded there was
no constitutional or statutory bar to plaintiff's initiation of a
declaratory judgment action seeking a determination of the City's
rights and obligations with respect to whether the City was in
compliance with the North Carolina Open Meetings Law and Public
Records Law, and concluded defendant's motion should be denied.
Defendant filed notice of appeal on 20 December 2002 from the 20
November 2002 order. The superior court granted Rule 54
certification on 21 January 2003. On 16 May 2003, this Court
granted defendant's petition for writ of certiorari to review the
20 November 2002 order.
Interlocutory appeal
[1] A judgment is either interlocutory or a final
determination of the rights of parties. N.C.G.S. § 1A-1, Rule
54(a) (2003);
see Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d
377, 381 (1950). An order is interlocutory if it is entered during
the pendency of an action and does not dispose of the case, but
requires further action by the trial court to finally determine the
rights of all the parties involved in the controversy.
Veazey, 231
N.C. at 362, 57 S.E.2d at 381. Generally, there is no right to
appeal from an interlocutory order.
See N.C.G.S. § 1A-1, Rule54(b) (2003). Our courts, however, have recognized two avenues for
appealing interlocutory orders.
Under Rule 54(b), when multiple claims are involved in an
action and the court enters a final judgment that adjudicates one
or more of the claims, such judgment, although interlocutory in
nature, may be appealed if the trial judge certifies that there is
no just reason for delay. N.C.G.S. § 1A-1, Rule 54(b);
see Hoots
v. Pryor, 106 N.C. App. 397, 401, 417 S.E.2d 269, 272 (1992). In
this case, the trial court certified the denial of partial summary
judgment as immediately appealable pursuant to Rule 54(b); however,
such certification is not dispositive when the order appealed from
is interlocutory.
First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131
N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998).
In the instant case, the trial court entered two separate
orders. The first order, filed 25 September 2002, decreed:
I 1.
The oral motion of the defendant, made at
the September 16, 2002 hearing, for
defendant's attorneys to be granted
access to the minutes of the July 15,
2002 closed meeting of the Burlington
City Council is DENIED;
II 2.
The July 15, 2002 closed meeting of the
Burlington City Council was, and is
declared to have been, held in compliance
with the requirements of the North
Carolina Open Meetings Law;
III 3.
The actions of the City of Burlington in
denying, at the present time, access to
the minutes of the July 15, 2002 closed
meeting of the Burlington City Council
are, and are declared to be, in
compliance with the requirements of the
North Carolina Public Records Law and
Open Meetings Law;
IV 4.
The prayer of defendant for injunctive
relief arising out of the conduct of theCity of Burlington surrounding the July
15, 2002 closed meeting of the Burlington
City Council is DENIED;
V 5.
Inasmuch as there are claims in
defendant's Counterclaim not addressed at
the September 16, 2002 hearing, the
matter is retained for further
proceedings, including any determination
respecting costs and attorney fees.
(emphasis added). Defendant
did not appeal from this order.
Concerning the 20 November 2002 order from which defendant
did
appeal, the only issue before the superior court was whether:
it [was] constitutionally and statutorily
permissible for the plaintiff, City of
Burlington, to initiate a declaratory judgment
action against the defendant,
The Alamance
News, seeking a determination of the [C]ity's
rights and obligations with respect to a
dispute which had arisen between the plaintiff
and the defendant as to whether the City was
in or out of compliance with the North
Carolina Open Meetings Law and Public Records
Law?
Our review of the complaint and counterclaims reveal that the
20 November 2002 order was not a final judgment as to any of the
claims or counterclaims presented by the parties. Therefore, Rule
54 certification was not properly granted as to the 20 November
2002 order. However, on 16 May 2003, this Court granted
defendant's subsequent petition for writ of certiorari to review
the 20 November 2002 order.
_________________________
[2] The issue on appeal is whether the Public Records Act and
Open Meetings Act were designed to allow a government entity to
file for declaratory judgment.
Public Records Act
In
McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C.App. 459, 596 S.E.2d 431 (2004),
(See footnote 1)
this Court addressed the issue of
whether a governmental entity could file a declaratory action.
McCormick, 164 N.C. App. at 463, 596 S.E.2d at 434 (quoting
N.C.G.S. § 132-9(a) (2003)) (“'[a]ny person who is denied access to
public records for purposes of inspection and examination, or who
is denied copies of public records, may apply to the appropriate
division of the General Court of Justice for an order compelling
disclosure or copying'”). The
McCormick Court concluded:
The North Carolina Public Records Act
clearly gives the public a right to access
records compiled by government agencies.
See
News and Observer Publ'g Co. v. Poole, 330
N.C. 465, 475, 412 S.E.2d 7, 13 (1992) (“'the
legislature intended to provide that, as a
general rule, the public would have liberal
access to public records'”) (quoting
News and
Observer v. State, 312 N.C. 276, 281, 322
S.E.2d 133, 137 (1984)); N.C.G.S. § 132-1(b)
(2003) (the public records compiled by the
agencies of North Carolina government “are the
property of the people”). “The Public Records
Act permits public access to all public
records in an agency's possession 'unless
either the agency or the record is
specifically exempted from the statute's
mandate.'”
Gannett Pacific Corp. v. N.C.
State Bureau of Investigation, 164 N.C. App.
154, 156, 595 S.E.2d 162, 164, 2004 N.C. App.
LEXIS 693, at *3-4 (2004) (citing
Times-News
Publishing Co. v. State of North Carolina, 124
N.C. App. 175, 177, 474 S.E.2d 450, 452
(1996)). Further, the Public Records Act does
not appear to allow a government entity to
bring a declaratory judgment action; only the
person making the public records request is
entitled to initiate judicial action to seek
enforcement of its request.
McCormick, 164 N.C. App. at 463-64, 596 S.E.2d at 434. The
McCormick Court held, “based on the Public Records Act and thepolicy consideration for disclosure under the act . . . the use of
a declaratory judgment action in the instant case was improper.”
McCormick, 164 N.C. App. at 464, 596 S.E.2d at 434. Likewise, we
hold use of a declaratory judgment action under the Public Records
Act was improper in the instant case.
Open Meetings Act
Generally, “[i]t is the policy of this State, as announced by
the General Assembly, to conduct the public's business in public.”
Boney v. Burlington City Council, 151 N.C. App. 651, 657-58, 566
S.E.2d 701, 705-06 (2001) (“The purpose of the Open Meetings Law is
'to promote openness in the daily workings of public bodies.'”
(citation omitted)); N.C.G.S. § 143-318.9 (2003) (“Whereas the
public bodies that administer the legislative, policy-making,
quasi-judicial, administrative, and advisory functions of North
Carolina and its political subdivisions exist solely to conduct the
people's business, it is the public policy of North Carolina that
the hearings, deliberations, and actions of these bodies be
conducted openly.”).
Under certain circumstances, a public body may hold a closed
meeting, N.C.G.S. § 143-318.11 (2003); however, the body is
required to “keep a general account of the closed session so that
a person not in attendance would have a reasonable understanding of
what transpired,” N.C.G.S. § 143-318.10(e) (2003). “Such minutes
and accounts shall be public records within the meaning of the
Public Records Law, G.S. 132-1 et seq.; provided, however, that
minutes or an account of a closed session conducted in compliance
with G.S. 143-318.11 may be withheld from public inspection so longas public inspection would frustrate the purpose of a closed
session.” N.C.G.S. § 143-318.10(e) (2003).
Uniform with the Public Records Act, the Open Meetings Act
does not appear to allow a government entity to bring a declaratory
judgment action; only a person seeking a declaration that an action
of a public body was in violation of the Open Meetings Act is
entitled to initiate judicial action to seek enforcement of its
request.
See N.C.G.S. § 143-318.16 (2003) (“Any person may bring
an action in the appropriate division of the General Court of
Justice seeking such an injunction; and the plaintiff need not
allege or prove special damage different from that suffered by the
public at large.”); N.C.G.S. § 143-318.16A(a) (2003) (“Any person
may institute a suit in the superior court requesting the entry of
a judgment declaring that any action of a public body was taken,
considered, discussed, or deliberated in violation of this Article.
. . . Any person may seek such a declaratory judgment, and the
plaintiff need not allege or prove special damage different from
that suffered by the public at large.”);
Eggimann v. Wake County
Bd. of Educ., 22 N.C. App. 459, 463, 206 S.E.2d 754, 757 (1974)
(stating that the “provisions of former G.S. 143-318.6 [now G.S. §
143-318.16] were intended to apply only to a situation where a
citizen has been refused access to a meeting required to be open”).
Likewise, the same consideration we noted in our opinion in
McCormick as to the propriety of a government agency bringing a
declaratory judgment action as to public records, applies in the
instant case to a government agency bringing a declaratory judgment
action as to open meetings. Allowing a governmental agency tobring a declaratory judgment action against someone who has not
initiated litigation will have a chilling effect on the public, in
essence eliminating the protection offered them under the statute
by requiring them “'to defend civil actions they otherwise might
not have commenced, . . . thus frustrating the Legislature's
purpose of furthering the fundamental right of every person . . .
to have prompt access to information in the possession of public
agencies.'”
McCormick, 164 N.C. App. at 463, 596 S.E.2d at 434
(2004) (quoting
Filarsky v. Superior Court, 28 Cal. 4th 419, 423,
121 Cal. Rptr. 2d 844, 845, 49 P.3d 194, 195 (2002)).
Based on the purpose of promoting “'openness in the daily
workings of public bodies,'”
Boney, 151 N.C. App. at 658, 566
S.E.2d at 706 (citation omitted), and the policy consideration for
disclosure under the act, it was error for the trial court to allow
a public body to file a declaratory judgment action in the instant
case.
Reversed.
Judges McCULLOUGH and ELMORE concur.
Footnote: 1