Jаmes 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.
No. 14-0751
Court of Appeals of Iowa.
Filed March 25, 2015
865 N.W.2d 23 (Table)
MULLINS, J.
Sasha L. Monthei of Sheldrup Blades, Cedar Rapids, for appellees.
Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
MULLINS, J.
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
I. Background Facts and Proceedings
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 clоsed 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 tо 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
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 subpoеnas 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
On March 13, 2014, the trustees filed an
The court held a telephone hearing on Olinger and Meyer‘s
II. Damages, Fees and Costs and the November 7 Meeting
Our review is for correction of errors at law.
A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
. . . .
c. To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.
Pursuant to
[s]hall assess each member of the governmental body who participated in its violation damages in the amount of not more than five hundred dollars and not less than one hundred dollars. However, if a member of a governmental body knowingly participated in such a violation, damages shall be in the amount of not more than two thousand five hundred dollars and not less than one thousand dollars.
See
Pursuant to
- Voted against the closed session.
- Had good reason to believe and in good faith believed facts which, if true, would have indicated compliance with all the requirements of this chaptеr.
- Reasonably relied upon a decision of a court, a formal opinion of the Iowa public information board, the attorney general, or the attorney for the governmental body, given in writing, or as memorialized in the minutes of the meeting at which a formal oral opinion was given, or an advisory opinion of the Iowa public information board, the attorney general, or the attorney for the governmental body, given in writing.
If successful, a defendant member not only avoids personal sanctions, but also
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 damagеs 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
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
A. Knowingly or unknowingly
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
B. Damages
C. Defenses
The court committed error when its March 4, 2014 order assessed damages without allowing the trustees the opportunity to present any defense per
D. Attorney Fees
With regard to the November 7, 2013 meeting, the district court order that requires the trustees to disclose the recording stands as entered; no party appealed from that portion of the ruling. The damages provision and any other ordered provisions concerning that meeting are vacated. We remand for further proceedings consistent with this ruling.
III. Presence of Counsel and the November 14 Meeting
On appeal, Olinger and Meyer argue the court erred in finding only one violation of IOMA, and that it should have found a violation regarding the November 14, 2013. They argue that counsel must have been present to legally invoke the closed meeting exception found in
In our discussion of the November 7 meeting, we noted the district court did not explicitly find the trustees violated IOMA, but that it implicitly made such a determination when it proceeded to award damages pursuant to
Although Olinger and Meyer appealed all adverse rulings and orders, they did not brief or argue that the court erred when it denied their request to access the recording of the November 14 meeting. Thus, that portion of the ruling stands. See State v. Short, 851 N.W.2d 474, 479 (Iowa 2014) (noting that an issue will be waived if the parties fail to advance it on appeal).
The court‘s determination that the recording need not be disclosed was a preliminary issue—limited by the plaintiffs’ motion for in camera inspection, by the stipulated order approved by the court, and by
On remand we expect one of the fighting issuеs to be whether counsel must be present in order to satisfy
“In determining what the legislature intended . . . we are constrained to follow the express terms of the statute.” State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). “When a statute is plain and its meaning clear, courts are not permitted to search for meaning beyond its express terms.” State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998). If we find the statute is unambiguous, we may not utilize additional canons of statutory construction to further develop its meaning. See State v. Messer, 822 N.W.2d 116, 119 (Iowa 2012). We do not find
Wе have consistently stated that the purpose of statutory interpretation is to determine legislative intent. See, e.g., In re Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012).
“We give words their ordinary and common meaning by considering the context within which they are used, absent a statutory definition or an established meaning in the law. We also consider the legislative history of a statute, including prior enactments, when ascertaining legislative intent. When we interpret a statute, we assess the statute in its entirety, not just isolated words or phrases.”
Id. (quoting Doe v. Iowa Dep‘t of Human Servs., 786 N.W.2d 853, 858 (Iowa 2010)) (citations omitted).
In ascertaining legislative intent, we consider “the statute‘s subject matter, the object to be accomplished, the purpose to be served, underlying policies, remedies provided, and the consequences of the various interpretations.” State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006) (citation and internal quota- tion
State v. Lindell, 828 N.W.2d 1, 5 (Iowa 2013) cert. denied, --- U.S. ---, 134 S. Ct. 249, 187 L. Ed. 2d 147 (2013).
The trustees contend that the placement of “or” in
As the phrase “discuss strategy with counsel” is placed at the beginning of the sentence, we find it modifies both the “presently in litigation” and “where litigation is imminent” clauses. Both clauses are dependent, and thus, both made whole and constrained by the “to discuss strategy with counsel” clause introducing the exception. As explained below, legislative intent—derived from related statutes and legislative history—supports our grammatical interpretation that “discuss strategy with counsel” applies to both clauses.
The source of Iowa‘s litigation exception can be traced to House File 2074. See
The bill passed the House and when it was received back from the Senate on April 5, 1978, it included an amendment to strike the words “with counsel” from the exception. See H. Journal, 67th G.A., 2nd Sess., at 1372 (H-5914, Senate amendment to House amended H.F. 2074, striking p. 4 line 1 words “with counsel“). Certainly, such an amendment would have permitted closed sessions to discuss litigation regardless of attorney presence.
For our purposes, however, it is most significant that H-5914 was introduced and considered, but failed to pass. On April 27, 1978, the House heard a conference committee report from a joint House-Senate committee appointed to reconcile the differencеs between House and Senate versions of the H.F. 2074. See H. Journal, 67th G.A., 2nd Sess., at 1967. The committee recommended the Senate recede from its H-5914 amendment entirely; it further recommended a series of mutual amendments for which “with counsel” would remain in the bill. See H. Journal, 67th G.A., 2nd Sess., at 1968. The conference committee report was adopted by the House. See H. Journal, 67th G.A., 2nd Sess., at 1970. The bill passed the House with the committee‘s recommended changеs on April 27, 1998. See H. Journal, 67th G.A., 2nd Sess., at 1970-971. On May 2, 1978, the Senate informed the House that it likewise adopted the committee report and passed H.F. 2074 with the committee‘s amendments. See H. Journal 67th G.A., 2nd Sess., at 2106. Certainly, Iowa‘s legislature intended closed sessions to be held “with counsel“.
This is consistent with the way in which our sister states have interpreted similar provisions. See Page v. MiraCosta Cmty. Coll. Dist., 180 Cal. App. 4th 471, 102 Cal. Rptr. 3d 902, 924, 927-28 (2009) (stating the statute which allowed for closed sessions to “confer with, or recеive advice from, its legal counsel” only applied to meetings between board and their own legal counsel, not to a meeting with oppos- ing
Some states have interpreted the litigation exception so narrowly as to not apply in some situations even if counsel is present. See Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435, 437, 442 (Minn. Ct. App. 2005) (stating the attorney-client privilege exception is narrowly construed to require openness in situations in which an attоrney is present giving legal advice but discussing other city business); Edinger v. Governing Auth. of Stutsman Cnty. Corr. Ctr. & Law Enforcement Ctr., 695 N.W.2d 447, 450, 451 (N.D. 2005) (stating “mere presence or participation of an attorney” at a meeting is not enough to invoke a litigation exception which provides for closed sessions for “attorney consultation“).3
Further evidence of our legislature‘s intent that we should interpret IOMA “in favor of openness” is found in
Giving the words of
That portion of the March 4 order denying the plaintiffs’ request to access the
IV. Conclusion
The decision of the district court requiring disclosure of the recording from thе November 7, 2013 meeting stands as entered. All other ordered provisions relating to that meeting are vacated and the parties shall have an opportunity to develop a record as set forth above. The order of the court with regard to disclosure of the recording from the November 14, 2013 meeting stands as entered. To the extent the order is interpreted as a determination IOMA was not violated when the trustees went into closed sеssion on November 14, such determination is vacated. This case is remanded for further proceedings consistent with this opinion.
VACATED IN PART AND REMANDED.