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3. To set aside decision

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  • Alabama

    The Alabama Open Meetings Act allows courts to invalidate actions taken during meetings held in violation of the Act if the complaint is filed within 21 days of the date when the action is made public. Ala. Code § 36-25A-9(f). However, under the former open meetings law Alabama courts consistently refused to set aside decisions made at meetings that were wrongfully closed. See, e.g., Ex parte Shelby Medical Center Inc., 564 So. 2d 63 (Ala. 1990). Citizens For Better Schools v. Greene, CV 2007-932 (Cir. Ct. of Jefferson County, Ala. Mar. 19, 2008) (declaring vote null and void and imposing fines and awarding attorney’s fees based on failure to post preliminary agenda in proper location). But see Swindle v. Remington, 2019 WL 1090393 (Ala. 2019), reh'g denied, 2019 WL 2240140 (Ala. 2019) (upholding circuit court’s invalidation of rate increases discussed during improper executive session).

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  • Alaska

    The open meetings act provides that "[a]ction taken contrary to (its provisions) is voidable." AS 44.62.310(f). Based on this, an action may be brought to set aside a decision or other action that is the product of a process that involved violations of the open meetings law. Alaska Supreme Court decisions indicated that public bodies would have an opportunity to cure such violations, through substantial, independent, de novo review of the tainted decisions. That notion was codified and expanded upon when the Open Meetings Act was revised in 1994, so that a public body can cure the violation or alleged violation of the Open Meetings Act before the matter is litigated in court, or after the court finds an action is void.

    As a result of the 1994 amendments to the Open Meetings Act, litigation to set aside a decision, or void an action taken in violation of the Open Meetings Act, is subject to some significant restrictions. First, a lawsuit to void an action taken in violation of the Open Meetings Act must be filed in superior court within 180 days after the date of the action being challenged. AS 44.62.310(f). In addition, action taken by a public body is not subject to being voided as the result of Open Meetings Act violations by purely advisory groups — those governmental bodies that have only authority to advise or make recommendations to a public entity and have no authority to establish policies or make decisions for the public entity. AS 44.62.310(g).

    When a suit is brought seeking to void action taken in violation of the Open Meetings Act, the court may hold that action taken at a meeting held in violation of the OMA is void only if the court finds that, considering all of the circumstances, the public interest in compliance with the OMA outweighs the harm that would be caused to the public interest and to the public entity by voiding the action. AS 44.62.310(f). In making this determination, the court must consider a number of factors, including considerations of disruption or expense that would be caused by voiding the action, the degree to which the action has been relied upon, or the passage of time since it was taken, the extent to which the governmental body has already engaged in public reconsideration of the matters, the degree to which the violations were willful, flagrant, or obvious, and the lack of adherence to the policies stated under the Open Meetings Act in Section .312.

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  • Arizona

    (This section is blank. See the point above.)

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  • Arkansas

    Action taken by a governing body at a meeting held in violation of the FOIA is subject to judicial invalidation. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

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  • California

    Under the Bagley-Keene Act, any interested person may commence an action by mandamus, injunction or declaratory relief to obtain a judicial determination that an action taken by a state body in violation of Section 11123 (providing for open meetings) or 11125 (notice requirements) is null and void. Cal. Gov't Code § 11130.3(a).

    Under the Brown Act, any interested person may commence an action by mandamus, injunction or declaratory relief to obtain a judicial determination that an action taken by a legislative body of a local agency in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules) is null and void. Cal. Gov't Code § 54960.1(a). A predicate to such action under the Brown Act, however, requires a timely demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(b).

    However, to set aside an action, in addition to meeting the threshold procedural requirements, a petitioner must show prejudice.  Galbiso v. Orosi Public Utility Dist., 182 Cal. App. 4th 652, 670-71, 107 Cal. Rptr. 3d 36 (2010); see also San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist., 139 Cal. App. 4th 1356, 1410, 44 Cal. Rptr. 3d 128 (2006).

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  • Colorado

    There is no time limit or statute of limitations under the Open Meetings Law.

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  • Connecticut

    The FOIC has the power to set aside the decision of an agency to bar an individual from attending a meeting. See Conn. Gen. Stat. §1-206(b)(1) ("Any person wrongfully denied the right to attend a meeting under FOIA, or denied any other right under FOIA, may appeal therefrom to the FOIC.").

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  • Delaware

    (This section is blank. See the point above.)

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  • District of Columbia

    The Act directs courts to declare actions void only if the court finds that the balance of equities compels the declaration or that the violation was not harmless.  D.C. Code Ann. § 2-579(d).

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  • Florida

    Under § 286.011, Fla. Stat., no resolution, rule, regulation or formal action shall be considered binding except as taken or made at an open meeting.  Accordingly, courts have held that action taken in violation of the law is void ab initioSee, e.g., Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Blackford v. Sch. Bd. of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997); TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991); Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010).  A proceeding to set aside action that was not taken or made at an open meeting would necessarily occur after the meeting.  To be valid, resolutions made during meetings held in violation of section 286.011 must be re-examined and re-discussed in open public meetings.  See Blackford, 375 So. 2d 578.

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  • Georgia

    An action contesting a resolution, rule, regulation, ordinance or other formal action of agency based on a violation of the Act must be commenced within 90 days of the date of the contested action or within 90 days from the date the contestant knew or should have known of the violation, but in no event more than 6 months after the contested action occurred. O.C.G.A. § 50-14-1(b)(2). If the contested action was a zoning decision, any action must be commenced within the time allowed by law for appeal of the decision. § 50-14-1(b)(3). See Walker v. City of Warner Robbins, 262 Ga. 551, 422 S.E.2d 555 (1992) (relief not available under the Act because suit was commenced more than 90 days after agency action).

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  • Hawaii

    A lawsuit to void a final action must be brought within ninety days of the action. Haw. Rev. Stat. § 92-11.

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  • Illinois

    If facts concerning the meeting are not discovered within the 60-day period, an action may be brought within 60 days of the discovery of an alleged violation. See 5 ILCS 120/3(a). There is a split in authority among the districts of the Illinois Appellate Court as to who may bring an action when the facts concerning the meeting are not discovered within the statutory time period after the meeting. The Act permits actions to be brought, if the facts are not discovered within 60 days after the meeting, then "within 60 days of the discovery of a violation by the State's Attorney." Id. The First District, for example, only allows the State's Attorney to bring such an action, see Paxon v. Board of Educ., 276 Ill. App. 3d 912, 658 N.E.2d 1309, 213 Ill. Dec. 288 (1995), whereas the Second District allows anyone to bring such an action, as long as they do so within 60 days of the discovery of a violation by the State's Attorney. If the State's Attorney has not discovered the violation yet, the time period has not begun to toll. See Safanda v. Zoning Bd. of Appeals, 203 Ill. App. 3d 687, 561 N.E.2d 412, 149 Ill. Dec. 134 (1990). The Second District, however, is in the minority, and the majority's restrictive reading of the Act means that, unless you can get your State's Attorney on board, you are limited to bringing an Open Meetings Act suit within 60 days of the violative meeting. It also means that, if you learn of a violation 60 days or more after the meeting by, say, the periodic disclosure of the minutes of closed meetings, it will be too late to do anything about it.

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  • Indiana

    The statute authorizes any aggrieved person to file an action to void any policy, decision or final action taken at a meeting which violates the Open Door Law. Ind. Code § 5-14-1.5-6.1(a)(3); see also Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006) (granting declaratory judgment to prevent violation of Open Door Law where complaint requested voiding adoption of budget cuts); see also Frye v. Vigo County, 769 N.E.2d 188, 197 (Ind. App. 2002) (remanding case to the trial court for further consideration of the statutory factors to decide whether voiding the agency’s action would be a proper remedy). But see Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 549 (Ind. App 2003) (declining to declare action taken void despite Open Door Law violation).

    Regardless whether a formal complaint or informal inquiry is pending before the Public Access Counselor, any lawsuit must be filed before the delivery of warrants, notes, bonds or obligations if the relief sought would have the effect of invalidating the notes, bonds or obligations; or within 30 days of the act or failure to act or the date that the plaintiff knew or should have known that the act or failure to act had occurred (whichever is later). Ind. Code § 5-14-1.5-7(b); see City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1010–11 (Ind. Ct. App. 2011) (holding that the management corporation waived its Open Door Law complaints by failing to file its complaint within the thirty day timeframe). If the challenged action is recorded in the memoranda or minutes of a governing body, a plaintiff is deemed to know of such act, at a minimum, as of that date. Id.

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  • Iowa

    Suit under chapter 21 must be brought within six months of alleged violation if complainant seeks to void action taken. Iowa Code § 21.6(3)(c).

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  • Kansas

    Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by a county attorney, district attorney or attorney general within 21 days of the meeting. K.S.A. 75-4320.

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  • Kentucky

    Enforcement provisions are set forth in Ky. Rev. Stat. 61.846 and 61.848. "Any rule, resolution, regulation, ordinance or other formal action of a public agency without substantial compliance with the requirements of [Ky. Rev. Stat.] 61.810, 61.815, 61.820, and [Ky. Rev. Stat.] 61.823 shall be voidable by a court of competent jurisdiction." Ky. Rev. Stat. 61.848(5). See also Carter v. Smith, 366 S.W.3d 414 (Ky. 2012) (affirming trial court’s decision to void contract entered as a result of improperly closed meeting).

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  • Louisiana

    Suits to void actions must be brought within sixty days of such action. La. Rev. Stat. Ann. § 42:24. For obvious reasons, however, other action to enforce the Open Meeting Law should be filed as promptly as possible after an alleged violation occurs.

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  • Maine

    A court may set aside any decision made in an illegal executive session. 1 M.R.S.A. § 409(2) (court may “enter order providing for the action to be null and void”).

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  • Maryland

    A court may void the action of the public body if it finds a willful violation of the open session, notice, attendance or minutes requirements and it finds that no other adequate remedy is available. § 3-401(d)(4); see also Wesley Chapel Bluemount Ass'n. v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434, 447 (1997) (trial court erred in voiding zoning board's action when there was no evidence that the board's erroneous decision to close its meeting was willful), CLUB v. Baltimore City Board of Elections, 377 Md. 183, 189 832 A.2d 804, 807 (2003). But, a court may not void the action of a public body due to another public body's violation of the Act. § 3-401(a)(2).

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  • Massachusetts

    When barred from attending a public meeting, litigation to set aside decision must be filed within 21 days after the action to be challenged becomes public.

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  • Minnesota

    Courts cannot void decisions made at meetings improperly closed.  See Columbus Concerned Citizens, Inc. v. Minnesota Racing Comm’n., 2006 WL 1529494 (Minn. Ct. App. 2006).

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  • Mississippi

    Courts will not reverse action taken in meeting closed in violation of the Act. Shipman v. North Panola Consolidated School District, 641 So. 2d 1106, 1116 (Miss. 1994).

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  • Montana

    A decision made in an illegally closed session can be set aside by a district court.

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  • Nebraska

    Actions taken may be voidable if successful suit filed after 120 days from meeting, but before one year after meeting. Suit is time-barred if not filed within one year of meeting. Neb. Rev. Stat. §84-1414(1).

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  • Nevada

    A suit to void an action taken in violation of the law must be filed within 60 days. NRS 241.037(3).

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  • New Jersey

    A suit to set aside any action of a public body taken in noncompliance with the Sunshine Law must be commenced within 45 days after the action sought to be voided has been made public. N.J.S.A. 10:4-15.

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  • New Mexico

    No resolution, rule or regulation or ordinance or action of any public body is valid unless made at a meeting held in accordance with the Open Meetings Act.  However, all actions taken are presumed to be in accord with the Act.  NMSA 1978 § 10-15-3(A).

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  • New York

    The court has discretionary power to declare void any action taken in violation of the OML. N.Y. Pub. Off. Law § 107(1) (McKinney 1988). However, this power can be exercised only “upon good cause shown.” N.Y. Pub. Off. Law § 107(1) (McKinney 1988). See, e.g., Matter of Western Sullivan O.R.E. LLC v. Town of Thompson Planning Bd., 2016 N.Y. Misc. LEXIS 3350 (Sullivan Cty. Sept. 21, 2016)( “A board’s determination may not be set aside in absence of illegality, arbitrariness or abuse of discretion, and such determination will be sustained if it has a rational basis and is supported by substantial evidence.”); Weatherwax v. Town of Stony Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983); Concerned Citizens to Review the Jefferson Mall v. Town Bd., 83 A.D.2d 612, 441 N.Y.S.2d 292 (2d Dep’t 1981), appeal dismissed, 54 N.Y.2d 957, 429 N.E.2d 833, 445 N.Y.S.2d 154 (1981).

    The burden is on the complaining party to establish good cause to nullify action taken in violation of the OML. Kloepfer v. Comm’r of Educ., 82 A.D.2d 974, 440 N.Y.S.2d 785 (3d Dep’t 1981), aff’d, 56 N.Y.2d 687, 436 N.E.2d 1334, 451 N.Y.S.2d 732 (1982) (petitioner failed to show that prejudice resulted from board’s failure to properly convene an executive session).

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  • North Carolina

    The Open Meetings Law allows a party to seek avoidance of any action taken at an improper closed session by filing suit within 45 days of the initial disclosure of the action, though no court has overturned a public body’s action under this provision. The North Carolina Court of Appeals affirmed a trial court decision finding a violation of the Open Meetings Law but refusing to void the decision made in closed session on the basis that the trial court’s decision could only be reversed for an abuse of discretion and no such abuse existed. HBS v. Cumberland Co. Bd. of Educ., 122 N.C. App. 49, 468 S.E.2d 517 (1996).

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  • Ohio

    When a public body has already decided to close a meeting which has yet to occur, the person seeking to attend may commence an injunction action in common pleas court. Ohio Rev. Code § 121.22(I)(1).

    A person seeking to attend an unlawfully closed may commence a mandamus action in the common pleas court or in an appellate level court to require the public body to vacate its decision. The statute does not address the remedy of mandamus, but the Ohio Supreme Court allowed a newspaper to seek a writ while the meeting was ongoing. State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988).

    Mandamus is not available to compel a public body to comply with the Sunshine Law in the future. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty Bd. of Commrs, 128 Ohio St.3d 256, 943 N.E.2d 553, 2011-Ohio-625; State ex rel. Adams v. Rockwell, 167 Ohio St. 15, 145 N.E.2d 685 (1957).

    But see State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996) (writ of mandamus granted "ordering respondents to open all council meetings to the public, as required by . . . the Mason City Charter").

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  • Oklahoma

    In re Appeal of the Order Declaring Annexation Dated June 29, 1978, supra (court invalidated action of board taken in violation of Open Meeting Act);  Wilson v. City of Tecumseh, 2008 OK CIV APP 84, 194 P.3d 140 (Appeal Court upheld trial court declaration that vote to pay City Manager bonus was null and void because not properly noticed on agenda); Okmulgee County Rural Water Dist. No. 2 v. Beggs Public Works, 2009 OK CIV APP 51, 211 P.3d 225 (Water contract declared invalid because approved by the Public Works Authority without being properly noticed on agenda).

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  • Oregon

    ORS 192.680(1) makes decisions in violation of the act voidable, subject to reinstatement at a properly conducted meeting. Under ORS 192.680(3), however, a decision will be voided if the court finds it to be the result of intentional disregard of the act or willful misconduct by a quorum of members.

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  • South Carolina

    The injunctive relief provision of the act includes the power to set aside decisions reached improperly in executive session. Piedmont Pub. Serv. Dist. v. Cowart, 459 S.E.2d 876 (S.C. App. 1995).

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  • South Dakota

    As soon as possible.

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  • Tennessee

    This is the primary remedy under the Act. T.C.A. § 8-44-105. In 1990, however, the Tennessee Court of Appeals stated:

    We do not believe that the legislative intent of this statute was forever to bar a governing body from properly ratifying its decision made in a prior violative manner. However, neither was it the legislative intent to allow such a body to ratify a decision in a subsequent meeting by a perfunctory crystallization of its earlier action. We hold that the purpose of the act is satisfied if the ultimate decision is made in accordance with the Public Meetings Act, and if it is a new and substantial reconsideration of the issues involved, in which the public is afforded ample opportunity to know the facts and to be heard with reference to the matters at issue.

    Neese v. Paris Special Sch. Dist., 813 S.W.2d 423 (Tenn. Ct. App. 1990). In Allen v. City of Memphis, 2004 Tenn. App. LEXIS 403 (Jan. 22, 2004), the court concluded that a governing body's subsequent action to correct a failure to record minutes was nothing more than a "perfuctory crystallization of its earlier action" when there was no substantial reconsideration of the issue. Therefore, the court considered the action taken by the body to be void. If the body were to repeal its action taken in violation of the Act, however, this would render moot a claim under the Act. Cathey v. City of Dickson, 2002 Tenn. App. LEXIS 342 (Tenn. Ct. App. May 10, 2002).

    Where a city held five subsequent public meetings to consider the sale of public building, this cured any violation of the Act by several officials meeting in private earlier with investors about the sale.  Dossett v. City of Kingsport, 258 S.W.3d 139 (Tenn. Ct. App. 2007).

    If the governing body rescinds its action taken at a meeting in violation of the Act, this will moot the violation. Person v. Board of Commissioners, 2009 Tenn. App. LEXIS 652 (Tenn. Ct. App. Sept 28, 2009).

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  • Texas

    Any action taken by a governmental body in violation of the Act is voidable, Tex. Gov’t Code § 551.141, and may be reversed in a mandamus or injunction action after the decision is rendered. Id. at § 551.142.

    If a party dislikes a ruling issued by a district court judge, it can file a petition for a writ of mandamus in the appropriate appellate court.  However, appellate courts have broad authority to determine what issues can be addressed through a mandamus.  If the appellate court denies the request for mandamus, the party can file a motion for rehearing within fifteen days after the order is rendered.  Tex. R. App. P. 52.9.

     

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  • Utah

    Any final action taken in violation of the Open Meetings Act is “voidable” rather than automatically void. Utah Code § 52-4-302(1)(a). In other words, a court may hold that the action is void, but the action is not void until the court so holds.

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  • Vermont

    The most common relief awarded for violations of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g.Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).  Courts will not, however, invalidate the decision if the public body cured the Open Meeting Law violation by ratifying its decision in a subsequent meeting that complied with the statute.  See Valley Realty & Dev. v. Town of Hartford, 165 Vt. 463, 469, 685 A.2d 292, 296 (Vt. 1996).

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  • Virginia

    The Virginia Supreme Court has stated "[u]nless there is a specific statutory provision for invalidation, courts are generally wary of imposing such a penalty for violation of 'open meeting' or 'right to know' statutes." Nageotte v. King George County, 223 Va. 259, 267 n.2, 288 S.E.2d 423, 427 n.2 (1982).

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  • West Virginia

    Section 3 of the Open Meetings Act specifically authorizes a court of competent jurisdiction to "invalidate any action taken at any meeting for which notice did not comply with the requirements of this section. W. Va. Code § 6-9A-3. Section 6 seems to broaden the court's authority to annul a decision for non-compliance with provisions other than the notice requirements.

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  • Wyoming

    The Act states that decisions made at meetings not in conformity with the Act are null and void.

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