THE PEOPLE еx rel. THOMAS J. DIFANIS, States‘s Attorney, Appellee, v. JOAN BARR et al., Appellants.
No. 52948
Supreme Court of Illinois
December 19, 1980
83 Ill. 2d 191
Thomas J. Difanis, States‘s Attorney, of Urbana (Joseph D. Pavia, Assistant State‘s Attorney, of counsel), for appellee.
Ronald D. Rotunda, of Champaign, for amicus curiae Illinois News Broadcasters Association.
William E. Feurer, of William E. Feurer, Ltd., of Springfield, for amicus curiae Illinois Press Association.
MR. JUSTICE CLARK delivered the opinion of the court:
Thomas J. Difanis, as State‘s Attorney of Champaign County, brought a declaratory judgment action against the nine defendants, who are members of the Urbana city council. The plaintiff sought a declaration that the defendants violated the Open Meetings Act (
The parties entered into a stipulation of facts which reveals that an Urbana city council meeting was scheduled for Monday, October 23, 1978, at 7:30 p.m. On Friday, October 20, 1978, two members of the city council, defendants John Peterson and Bob Hurt, decided to hold a party caucus prior to the city council meeting. The caucus
The meeting was called to discuss matters the city council would consider at its meeting later that night, as well as party matters and an election to be held in November 1978. No agenda was prepared for the 6 p.m. meeting, and no votes were taken. It is further stipulated that the defendants were not meeting as a duly constituted committee of the Urbana city council and they received no compensation for attending the hour-long meeting. One defendant, Donald Wort, arrived approximately 15 minutes before the end of the meeting and participated in a discussion of matters not on the city council agenda. Of the five matters on the formal agenda for the 7:30 p.m. city council session, four were discussed at the 6 p.m. meeting. Three votes were taken at the city council session on matters discussed at the 6 p.m. meeting. On a vote to approve a ward map recommended by a committee of the council, the nine defendants voted as a bloc. The measure thereupon was passed by the council nine votes to four. On the other two votes taken, concerning a community-development-agency appointment and approval of a “planned unit development” project, the defendants did not vote in a uniform manner. The fourth agenda matter discussed at the 6 p.m. meeting concerned the mayor‘s appointments to the Public Works Commission. The stipulated facts show that the disсussion at the 6 p.m. meeting involved “reasons for holding up the Mayor‘s nominations.” This matter was not brought up at the council session. Finally, the defendants stipulated that they have had
Section 2 of the Open Meetings Act provides in part:
“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings ***. This Act does not apply to the General Assembly or to committees or commissions thereof.” (
Ill. Rev. Stat. 1977, ch. 102, par. 42 .)
The defendants contend first that the 6 p.m. meeting does not fall within the ambit of the Act. The defendants argue that the meeting was called primarily as a political caucus and not as a formal “meeting” of the city council. We disagree.
Section 1 of the Open Meetings Act states:
“It is the public policy of this State that the public cоmmissions, committees, boards and councils and the other public agencies of this State exist to aid in the conduct of the people‘s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (
Ill. Rev. Stat. 1977, ch. 102, par. 41 .)
This clearly enunciated public policy would be poorly served were we to carve out exceptions other than those expressly stated in the Act (see
Indeed, in 1967 the General Assembly amended the Act to delete the word “official” before the word “meeting” in sections 1 and 2. Palpably, the amendment was intended to include unofficial or informal meetings within the coverage of the Act. In Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 69 Cal. Rptr. 480, a luncheon meeting was held at which several county officials, including the five county supervisors, met privately with labor officials to discuss a strike of the social workers union. Newspaper reporters sought but were denied admission to the gathering. In affirming the trial court‘s preliminary injunction order except to the extent it prevented attorneys for the county from discussing privileged matters with county officials, the court stated:
“An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law‘s design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act‘s objectives, the term ‘meeting’ extends to informal sessiоns or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting.” (Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal.
App. 2d 41, 50-51, 69 Cal. Rptr. 480, 487.)
Thus, to allow the nine defendants to circumvent the Act simply because they designate their meeting as an informal gathering or informal caucus would be to thwart the intent of the Act.
A related argument raised by the defendants is that the nine defendants do not constitute a “legislative body” or “subsidiary body” which is subjеct to the Act. This argument misapprehends both the wording of the statute and reality. The statute states that “[a]ll meetings of any legislative, executive, administrative or advisory bodies *** and any subsidiary bodies of any of the foregoing including but not limited to committees or subcommittees *** shall be public meetings ***.” (Emphasis added.) (
It should be emphasized that it is not the province of this court to pass on the wisdom or desirability of legislation. (Garcia v. Tully (1978), 72 Ill. 2d 1, 10.) As long as the means chosen by the legislature to achieve a desired end are lawful and inoffensive to the State and Federal constitutions, our inquiry mаy proceed no further. Thus, whether, as the defendants argue, the instant means chosen by the General Assembly to eliminate secrecy in government and permit the free flow of information to the public might restrict the ability of public officials, either as minority blocs or majority groups, to support or oppose
The first of defendants’ four constitutional arguments
The defendants argue that the General Assembly, in contravention of its own stated policy of open deliberations аnd open actions, has exempted itself from coverage under the Open Meetings Act. The defendants further argue that, while a rational relationship to a legitimate governmental interest may exist for making a distinction between the General Assembly and other bodies, any such interest would be subordinated to the General Assembly‘s stated purpose of conducting public business in the open.
“(c) Sеssions of each house of the General Assembly and meetings of committees, joint committees and legislative commissions shall be open to the public. Sessions and committee meetings of a house may be closed to the public if two-thirds of the members elected to that house determine that the public interest so requires; and meetings of joint committees and legislative commissions may be so closed if two-thirds of the members elected to each house so determine.”
The defendants argue that the Constitution only requires that formal sessions be conducted openly and that meetings of committees and commissions need not be open to the public. This argument is incorrect, however. Article IV, section 5(c), expressly requires that sessions, meetings of committees, joint committees and legislative commissions shall be open to the public. It is true that informal meetings of members of the General Assembly are thus not required to be conducted openly. Under the well-established standards regarding equal protection of the laws, the legislature may differentiate between persons similarly situated (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578); equal protection requires only that there be a reasonable and rational basis for the classifications which justify different procedures for treating the two groups. People v. Pembrock (1976), 62 Ill. 2d 317, 321; People v. Sherman (1974), 57 Ill. 2d 1, 4; People v. McCabe (1971), 49 Ill. 2d 338, 341; People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 534.
It is conceivable that the General Assembly concluded that the relatively smaller size of other bodies covered by the Act and their generally greater proximity to their constituents justified a difference in treatment. Due to its compliance with the well-entrenched rational-basis
The next constitutional contention raised by the defendants is that the Open Meetings Act, as applied to these defendаnts, is a denial of due process of law under the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. Those constitutional provisions read in pertinent part:
“*** nor shall any State deprive any person of life, liberty, or property, without due process of law; ***.” (
U.S. Const., amend. XIV, sec 1. )“Section 2. Due Process and Equal Protection
No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” (Ill. Const. 1970, art. I, sec. 2. )
In particular the defendants argue that the Open Meetings Act is vague, uncertain and indefinite with regard to thе phrase “meetings of a legislative body.”
A statute is impermissibly vague when “men of common intelligence must necessarily guess at its meaning.” (Broadrick v. Oklahoma (1973), 413 U.S. 601, 607, 37 L. Ed. 2d 830, 837, 93 S. Ct. 2908, 2913, quoting Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127.) A criminal statute violates due process if it fails to give adequate notice as to what action or conduct is proscribed. (People v. Schwartz (1976), 64 Ill. 2d 275, 280; People v. Vandiver (1971), 51 Ill. 2d 525.) “Impossible standards of specificity, however, are not required.” People v. Schwartz (1976), 64 Ill. 2d 275, 280, citing Jordan v. De George (1951), 341 U.S. 223, 231, 95 L. Ed. 886, 892, 71 S. Ct. 703, 707-08.
We think that the Open Meetings Act, as applied to these defendants, is not impermissibly vague for two reasons. First, after the 1967 amendments deleted the word “official” where it had appeared before the word “meetings,” no guessing was rеquired to prohibit all
In Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, and its companion case, United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880, the Supreme Court upheld, respectively, a State and a Federal statute against several constitutional challenges. The statutes involved in those cаses prohibited certain public employees from participating in political parties or campaigns. We think the court‘s statements in Broadrick v. Oklahoma (1973), 413 U.S. 601, 607-08, 37 L. Ed. 2d 830, 837-38, 93 S. Ct. 2908, 2913-14, in rejecting the due process attack in those cases are particularly appropriate in this case:
“Whatever other problems there are with section 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards’ for those who must apply it. Grayned v. City of Rockford [(1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2299]. In the plainest language, it prohibits any state classified employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other political purpose’ and taking part ‘in the management or affairs of any political party or in any political campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in section 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was said in United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 578-79, 37 L. Ed. 2d 796, 816, 93 S. Ct. 2880, 2897, is applicable here: ‘there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.’ Moreover, even if the outermost boundaries of section 818 may be imprecise, any such uncertainty has little relevance here, where appellants’ conduct falls squarely within the ‘hard core’ of the statute‘s proscriptions and appellants concede as much. See Dombrowski v. Pfister [(1965), 380 U.S. 479, 491-92, 14 L. Ed. 2d 22, 31, 85 S. Ct. 1116, 1123-24]; United States v. National Dairy Products Corp. [(1963), 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594]; Williams v. United States [(1951), 341 U.S. 97, 95 L. Ed. 774, 71 S. Ct. 576]; Robinson v. United States [(1945), 324 U.S. 282, 286, 89 L. Ed. 944, 947, 65 S. Ct. 666, 669]; United States v. Wurzbach [(1930), 280 U.S. 396, 74 L. Ed. 508, 50 S. Ct. 167].” (Emphasis added.)
The same is true in the instant case. Therefore, the Act, as applied to these defendants, is neither vague, indefinite nor uncertain, and thus comports with minimum due process requirements.
The defendants’ penultimate contention is that the Open Meetings Act violates the State constitutional
Thus, the exemption of the General Assembly from coverage under the Act is not akin to an attempt to enact reforms “one step at a time” (Grace v. Howlett (1972), 51 Ill. 2d 478, 487, quoting Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461, 465) but, rather, is an instance where a general law recognizes a distinction between two classes which warrants differеnt treatment. (McRoberts v. Adams (1975), 60 Ill. 2d 458, 462.) The Open Meetings Act is intended to create a practicable means of opening the deliberative processes of government to public view. The General Assembly is already affected in this area by article IV, section 5(c), of the 1970 Constitution, which requires that sessions and meetings of committees, joint committees and legislative commissions will, subject to two exceptions, be open to the public. In its substantive effect, then, the Open Meetings Act exemption refers only to private meetings between General Assembly members; however, the size of the General Assembly and the volume of public business it deals with, compared to the size and volume of substantially all of the bodies covered by the Act, reveal why it is reasonable for a distinction to be made between the General Assembly and other bodies. Recognition of the different nature of the General Assembly under the Act does not violate the special legislation provision of the 1970 Constitution.
Finally, the defendants contend that the Open Meet-
A governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Zwickler v. Koota (1967), 389 U.S. 241, 250, 19 L. Ed. 2d 444, 451, 88 S. Ct. 391, 396; NAACP v. Alabama ex rel. Flowers (1964), 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338, 84 S. Ct. 1302, 1314; People v. Klick (1977), 66 Ill. 2d 269, 273; People v. Ridens (1974), 59 Ill. 2d 362, 370.) A statute is overly broad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. People v. Klick (1977), 66 Ill. 2d 269, 273, citing Grayned v. City of Rockford (1972), 408 U.S. 104, 114-15, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302.
It is a well recognized constitutional principle that the government may adopt reasonable time, place and manner regulations which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. (Buckley v. Valeo (1976), 424 U.S. 1, 18, 46 L. Ed. 2d 659, 687, 96 S. Ct. 612, 634, and cases cited therein.) We conclude that the General Assembly has adopted reasonable regulations with regard to public officials’ rights of speech and assembly when those rights are balanced against the extremеly important governmental interest of the public‘s right of access to public information. The Open Meetings Act does not prohibit political discussions between or among members of public bodies; thus there is no chilling effect upon political discussion.
In the instant case, nine public officials, a majority of a 15-member city council, had a prearranged meeting to discuss matters set to be discussed in a public meeting later that same night. Their conduct fell within the “hard core” of the Act‘s proscriptions. Whether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination. We conclude only that the Act applies to the meetings held by these defendants and that the Open Meetings Act (
Accordingly, for the reasons stated, the judgment of the appellate court is affirmed.
Judgment affirmed.
MR. JUSTICE WARD, dissenting:
The majority leaves a cloud of constitutional doubt hanging over this important statute.
The statute expressly states that it shall apply to meetings of executive as well as legislative bodies and raises serious questions as to whether it violates the constitutional assurances of separation of governmental powers. Is the Act to apply to meetings of the governor‘s cabinet, for example, or to meetings of officials of the Attorney General‘s office or State‘s Attorneys offices? The statute was amended in 1979 to make it inapplicable to “that portion of meetings of law enforcement agencies, committees or commissions involved in the investigation of criminal activities which are concerned with or are to
But what about meetings of officials of the Attorney General‘s office or the State‘s Attorneys offices with discussions not regarding criminal investigations, but prosecutions? Topics discussed might be flaws or merits in the particular case, trial strategy, summoning of witnesses and their suspected unreliability, caliber of defense counsel or trial judges and the like. It is to be noted that the Aсt states that its intent is that “deliberations be conducted openly.”
The Act fairly bristles with questions regarding the separation of powers and other constitutional areas. The opinion of the majority implicitly acknowledges constitutional problems, stating that the decision here is only “under the narrow facts presented” (83 Ill. 2d at 202) and that “[w]hether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination” (83 Ill. 2d at 211). But the deep and troubling problems will not go away. I believe it is a dissеrvice not to address the problems and permit the legislature, if the Act is in fact determined to be unconstitutional, to take fresh legislative action.
As a general proposition it is said that a court, of course, will avoid constitutional questions if possible and will decide only the question before it. But this court on its own initiative will consider constitutional problems and will if necessary declare legislation unconstitutional. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.
There is a severability provision in the act here (
MR. JUSTICE UNDERWOOD joins in this dissent.