8. Judicial remedies available
Remedies available under the Alabama Open Meetings Act include declaratory judgment, injunction, invalidation of actions taken during the meeting held in violation of the Act, and civil penalty up to $1,000 or one half of the defendant’s monthly salary for the government body, whichever is less. Ala. Code § 36-25A-9(e)-(g). A final order issued against a defendant under the Alabama Open Meetings Act must state specifically upon which claim in Section 36-25A-9(b)(1)-(4) the ruling is based. Ala. Code § 36-25A-9(g).
The typical remedy requested in cases under the former open meetings law was an order enjoining the public entity and/or officials from wrongfully closing a particular meeting or type of meeting in violation of the law. Such an injunction must not simply "direct obedience to the 'sunshine laws.'" Miglionico v. Birmingham News Co., 378 So. 2d 677, 682 (Ala. 1979). Such an injunction must also comply with the requirements of Rule 65(d)(2) of the Alabama Rules of Civil Procedure, "which requires an injunction to contain (1) reasons for its issuance, (2) specific terms, and (3) a reasonably detailed description of the acts sought to be restrained." 378 So. 2d at 682.
An action under the Alabama Open Meetings Act may contain a request for access to records of the wrongfully closed meeting — especially where such records would enable the plaintiff and the public to learn what occurred at the wrongfully closed meeting. See, e.g., Birmingham News Co. v. Cooper, 13 Media L. Rep. (BNA) 1655 (Cir. Ct. Jefferson Cnty., Ala., Equity Div., Oct. 29, 1986) (ordering production of record of votes at wrongfully closed meeting under former open meetings law); Birmingham News Co. v. Bell, 17 Media L. Rep. (BNA) 1597 (Cir. Ct. Jefferson Cnty., Ala., Equity Div., Feb. 12, 1990) (same) (attorneys' fee award affirmed in Bell v. Birmingham News Co., 576 So. 2d 669 (Ala. Civ. App. 1991)); Ex parte Birmingham News Co., 624 So. 2d 1117 (Ala. Crim. App. 1993) (ordering production of transcripts of wrongfully closed pretrial proceedings with redaction of grand jury material; First Amendment, not open meetings law, decision).
Resolution of Alabama Open Meetings Act cases by consent order should be available, especially when the trial judge displays an understanding of the law, a willingness to enforce the law, and the parties can stipulate to the undisputed facts in the case. See, e.g., Birmingham News Co. v. Folsom, CV 88-1591 G (Cir. Ct. Montgomery Cnty., Ala., Nov. 30, 1989) (former open meetings law); Birmingham News Co. v. Ward, CV 90-9338 (Cir. Ct. Jefferson Cnty., Ala., Feb. 20, 1991) (former open meetings law); Mobile Press Register Inc. v. Andrews, CV 92-1929 (Cir. Ct. Mobile Cnty., Ala., June 29, 1992) (former open meetings law); see also Birmingham News Co. v. Coleman, CV 89-723 (Cir. Ct. Jefferson Cnty., Ala., Bessemer Div., Jan. 8, 1990) (issuing a permanent injunction based upon stipulation of parties that city council met in a closed session that included discussion of purchase of real property, and discussion did not involve the character or good name of a woman or man) (former open meetings law).
The only judicial remedy specifically made available in the open meetings law is that action taken contrary to the law is voidable if a suit is filed within 180 days to challenge the action and the court finds, after weighing and balancing all appropriate factors, that the public interest is served by voiding the action. AS 44.62.310(f). In addition to this remedy spelled out in the open meetings act itself, a court could enter a declaratory judgment determining whether an OMA violation had occurred.
The Alaska Supreme Court has rejected the notion that the Open Meetings Act gives an at-will employee a property interest in his or her job, by giving the employee a right to be present at any meeting where his or her reputation is at issue, and a right to request that the meeting be public. See AS 44.62.310(c)(2). The court found this contention without merit because nothing in the Open Meetings Act indicates a legislative intent to create either an implied contract of employment or an expectation of continued employment for at-will positions. Revelle v. Marston, 898 P.2d 917, 925, n. 14 (Alaska 1995).
However, the Alaska Supreme Court has recognized the possibility of a damages remedy for violations of the Open Meetings Act, at least in the form of back pay and benefits that might be payable to an employee discharged as the result of Open Meetings Act violations. Revelle v. Marston, 898 P.2d 917 (Alaska 1995). This is potentially a very significant ruling, in that it highlights the range of interests served by the Open Meetings Act, and underscores the need to consider a broad range of remedies to fully effectuate the purposes of the OMA. In the Revelle case, the Municipal Librarian was terminated from his position by incoming Mayor Tom Fink based solely upon a performance evaluation developed by the Municipal Library Advisory Board in one or more meetings that violated the Open Meetings Act. Because the evaluation was the product of these illegal meetings, the superior court found that it was void. In order to enable a full and fair reconsideration of this void decision by the mayor — who had the authority to have fired Revelle for virtually any reason or no reason, but not to do so solely on the void evaluation — the court found that what was needed was a remedy that would purge the void evaluation of the LAB from the decision-making process concerning whether to fire or retain Revelle.
The Supreme Court, reviewing the standards set forth in Alaska Community of Colleges' Federation of Teachers' Local No. 2404 v. University of Alaska, 677 P.2d 886, 890 (Alaska 1984) ["ACCFT"] observed that if reconsideration of the original flawed decision is not possible without invalidating it, then the court must conduct a balancing test to determine whether invalidation is in the public interest. In deciding the public interest issue, the court must weigh the remedial benefits to be gained in light of the goals of the Open Meetings Act against the prejudice likely to accrue to the public. 898 P.2d at 922, citing Brookwood Area Homeowners' Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1325 (Alaska 1985) and ACCFT, 677 P.2d at 893. Note that although the Revelle case was decided interpreting the OMA before it was amended in 1994, this analysis is essentially what the legislature requires in the amendments made to Section .310(f) of OMA in 1994.
The superior court in Revelle concluded that invalidation of Mayor Fink's termination decision was necessary to foster a full and fair reconsideration of it. She ordered the reinstatement of Revelle for a "cooling off period" of 120 days, in order to permit adequate time for this full and fair re-evaluation of Revelle's job qualifications and past performance. The mayor was explicitly prohibited from relying on the LAB's void evaluation, or materials derived from it during reconsideration. Revelle had claimed he was entitled to an award of back pay and benefits as a result of the municipality's violation of the Open Meetings Act. But the superior court denied this on the grounds that such an award would not serve the public interest.
On appeal, the Supreme Court characterized the issue before it as whether the superior court had properly balanced the remedial aspects of the Open Meetings Act against the prejudice that the public would likely suffer in determining whether to award Revelle back-pay and benefits. Significantly, the court did not say that as a matter of law damages, in the form of back pay and benefits or otherwise, are not available as a remedy for an Open Meetings Act violation. Rather, the Supreme Court concluded that whether Revelle was entitled to back pay and benefits depended upon the application of the balancing test originally articulated in ACCFT (and later effectively codified in AS 44.62.310(f)).
In the past, the court had observed that open meeting statutes were not primarily intended as vehicles for individuals displeased with governmental action to obtain reversals of substantive decisions, ACCFT, 677 P.2d at 891, and it underscored that its analysis in Revelle in no way changes "this prior statement." 898 P.2d at 924, n.10.
However, the court elaborated upon the multiple interests served by the Public Open Meetings Act, and remedies for its violation. It noted that the superior court, in rejecting Revelle's claim for back pay and benefits, had interpreted the OMA as having been enacted for the public good rather than providing an avenue for obtaining private relief. The trial court judge noted the potential harms to the Municipality that would occur if money that might otherwise be spent for library purposes, or that might need to be raised from taxpayers, were used to reimburse the librarian for his back pay and benefits. The Supreme Court reaffirmed that the OMA protects and advances the public's right to remain informed, and noted that the superior court was correct in considering the act's broad purpose of encouraging "public participation and input in the operation of government." 898 P.2d at 923. However, the Supreme Court noted, a legitimate but more specific purpose not considered by the superior court was that of maximizing informed and principled decision-making in individual cases.
The Court said that those who will be affected by a public body's decision have the right to appear and be heard in a public forum, and noted that it had previously considered the remedial purposes of OMA from the individual's perspective. It had ruled in University of Alaska v. Geistauts, 666 P.2d 424, 430-31, n. 10 (Alaska 1983) that ideally the plaintiff is entitled to be placed in the position he would have been in had the violation never occurred. That position is not one where the adverse decision is never made. Instead it is one where the decision, adverse or not, is taken in conformity with the sunshine laws. The court noted that the Open Meetings Act also facilitates informed decision-making, so that by ensuring that issues are decided publicly, the act attempts to ensure that better substantive decisions are made through public scrutiny and adequate information. The Supreme Court concluded that the superior court should have considered the purpose of maximizing informed and principled decision-making in individual cases in fashioning its remedial decision in response to the LAB's violation of the act.
The Supreme Court also found that the superior court had apparently not considered the act's remedial goal of deterrence. It observed that placing governmental bodies on notice that courts will strongly enforce the Open Meetings Act serves the act's remedial goal of deterrence, citing Brookwood, an Alaska case where a decision of the Municipality was voided, and citing a Massachusetts case upholding an award of back-pay in favor of a school principal discharged in violation of that state's Open Meetings Act. 898 P.2d at 923-924. Thus, the court concluded, in assessing the remedial benefits to be gained in light of the act's goals, the superior court should have considered the goals of maximizing informed and principled decision-making in individual cases and deterring future violations, as well as the goal of encouraging "public participation and input in the operation of government." The superior court should have weighed all these benefits against the prejudice likely to accrue to the public if Revelle were to have been awarded back pay and benefits.
The court stated that ideally the goal of the Open Meetings Act would be to place Revelle in the position he would have been in had the violation never occurred, so that it was relevant to inquire whether there was a nexus between the LAB's Open Meetings Act violation and Revelle's termination. If there were, the superior court could then further determine that an award of back pay and benefits was appropriate. If, on the other hand, Revelle would have been dismissed even if the Open Meetings Act had been observed, the superior court could conclude that there was an absence of a nexus between the OMA violation and the termination, and that back pay and benefits were therefore not warranted. Significantly, the Supreme Court stated that if the trial court were to reach the latter conclusion, it could still determine that consideration of the remedial goal of deterrence warranted awarding Revelle at least his costs and the full reasonable attorneys' fees he incurred as a result of his attempts to remedy the LAB's violation of the act. 898 P.2d at 924-925.
Courts have wide-ranging powers to ensure compliance with the OML. A.R.S. § 38-431.09 states that “any person or entity charged with the interpretations of [the OML] shall construe [the OML] in favor of open and public meetings.” See Carefree Imp. Ass’n v. City of Scottsdale, 133 Ariz. 106, 107, 649 P.2d 985, 986 (1982) (noting that, “[i]n construing the open meeting law and the declaration of policy, the language must be liberally construed to effect their objects and to promote justice”) (citation and internal quotation marks omitted).
(a) “No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion.” Ark. Code Ann. § 25-19-106(c)(4). Failure to comply with this provision can lead to invalidation of the action taken in the closed session. Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979).
(b) The Supreme Court has held that invalidation is also available when a meeting has been closed in violation of the FOIA. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). However, this remedy is not to be employed routinely. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).
(i) Invalidation is available only if administrative remedies have been exhausted, the plaintiff seeks to vindicate the public interest rather than private concerns, and the FOIA violation is substantial. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).
(ii) The scope of the “substantiality” requirement is not certain. In Rehab Hospital, a telephone poll of members of the governing body had been conducted without notice and without any arrangements that would have allowed the press and public to “listen in.” Although this was a violation of the FOIA, the court held that it was insubstantial, since the body had previously met in an open session and voted to take the action later discussed and reconfirmed by telephone.
(iii) It is not clear whether invalidation will be available for other types of FOIA violations, such as failure to give notice, inadequate notice, refusal to permit tape-recording of the meeting, or the presence at an executive session of persons other than those specified by statute. However, in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006), the court held that invalidation was inappropriate where a governing body had used unsigned ballots in voting. Moreover, a pre-Rehab Hospital case suggests that allowing unauthorized persons to attend a meeting closed under the FOIA’s personnel exemption is a “procedural irregularity” that does not affect the validity of the governing body’s action. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977).
(2) Declaratory and injunctive relief are also available. Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (declaratory judgment); Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989) (same), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979) (injunction).
(a) In pre-meeting cases, the court can enjoin the body from holding the upcoming meeting in private, or issue a declaratory judgment that a meeting would violate the FOIA.
(b) In post-meeting cases, the court can hold that the meeting was impermissibly closed (or that the FOIA had otherwise been violated) and enjoin the body from holding further meetings not in compliance with the act.
(c) A party must exhaust his administrative remedies before seeking a declaratory judgment. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). A court has discretion in deciding whether to entertain an action for declaratory judgment, Jegley v. Picado, 349 Ark. 600, 612-13, 80 S.W.3d 332, 337-38 (2002), and the presence of factual issues may make the case unsuitable for declaratory relief. See Bankers & Shippers Ins. Co. v. Kildow, 9 Ark. App. 86, 654 S.W.2d 600 (1983).
(d) In light of Constitutional Amendment 80, which merged law and equity and abolished the state’s separate chancery courts as of July 1, 2001, a circuit court may grant an injunction or employ other equitable remedies. Prior to merger, circuit courts lacked power to issue injunctions, Ark. Game & Fish Comm’n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001), but chancery courts had granted injunctive relief in FOIA cases. E.g., Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). An injunction will not be issued when there is an adequate remedy at law. E.g., Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Because Ark. Code Ann. § 25-19-107 arguably provides such a remedy in FOIA cases, injunctive relief may be inappropriate.
(3) Writs of mandamus have also been sought in FOIA cases involving open meetings. E.g., Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972). This remedy would be effective only in a pre-meeting case, however. In addition, mandamus is generally not available when another adequate remedy exists. Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977).
(4) The circuit court may order the governing body to comply with the FOIA, and a violation of that order constitutes contempt of court. Ark. Code Ann. § 25-19-107(c).
Invalidating Actions Taken: Under the Bagley-Keene Act, the court may invalidate actions taken by the state body in violation of Section 11123 (open meetings) or 11125 (notice requirements). Cal. Gov't Code § 11130.3(a).
Under the Brown Act, the court may invalidate actions taken by the legislative body of a local agency in violation of Section 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). Cal. Gov't Code § 54960.1(a).
However, under both Acts, the court will not invalidate any action: (1) taken in connection with the sale or issuance of bonds, (2) giving rise to a contract that a party has relied on in good faith, (3) taken in substantial compliance with the sections, or (4) taken in connection with the collection of any tax. Cal. Gov't Code §§ 11130.3(b) (Bagley-Keene Act); 54960.1(d) (Brown Act); see also Regents of Univ. of Cal. v. Superior Court, 20 Cal. 4th 509, 527, 85 Cal. Rptr. 2d 257, 976 P.2d 808 (1999) (Regents held in substantial compliance with notice provisions); Olson v. Hornbrook Cmty. Servs. Dist., 33 Cal. App. 5th 502, 520, 245 Cal. Rptr. 3d 236 (March 26, 2019) (holding agenda that communicated essential nature of board action, which was to discuss and approve payment to third party but which listed incorrect payment amount, was in substantial compliance with Brown Act notice requirements and thus could not form basis of action to nullify board action); id. at 521 (holding agenda item that provided specific and exhaustive list of payments to be approved but excluded some did not give sufficient notice to those interested in payments and thus was sufficient to state action to nullify board action); Castaic Lake Water Agency v. Newhall Cty. Water Dist., 238 Cal. App. 4th 1196, 1207, 190 Cal. Rtpr. 3d 151 (2015) (description of closed agenda item that cited wrong provision authorizing closed session to confer with counsel over litigation was held to be in substantial compliance with Brown Act); San Joaquin Raptor Rescue Ctr. v. Cty. of Merced, 216 Cal. App. 4th 1167, 1177, 157 Cal. Rptr. 3d 458 (2013) (failure to separately disclose consideration of a mitigating negative declaration concerning an environmental project noticed for approval on the agenda held to violate Brown Act); N. Pacific LLC v. Cal. Coastal Comm’n, 166 Cal. App. 4th 1416, 1431-32, 83 Cal. Rptr. 3d 636 (2008) (holding commission in substantial compliance with notice provisions and stating “state actions in violation of [the notice] requirements should not be nullified, so long as the state agency’s reasonably effective efforts to notify interested persons of a public meeting serve the statutory objectives of ensuring that state actions taken and deliberations made at such meetings are open to the public.”).
Additionally, even when technical violations of the Acts are shown, action will not be invalidated absent a showing of prejudice. Cal. Coastal Comm’n, 166 Cal. App. 4th at 1433 (Bagley-Keene Act); Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555-56, 35 Cal. Rptr. 2d 782 (1994) (Brown Act).
Writ of Mandate/Injunctive/Declaratory Relief: Both Acts authorize the issuance of a writ of mandamus, injunction, or a declaratory relief for the purpose of stopping or preventing violations or threatened violations of the Acts, or to determine the application of the Acts to ongoing actions or threatened future actions, or to determine the application of the Acts to past actions of the state or legislative body. Cal. Gov’t Code §§ 11130(a) (Bagley-Keene Act); 54960(a).
Other Relief: With respect to other relief under either Act, the court may order the body to refrain from violating the Act, may determine the legality of a rule or action by the body that penalizes or discourages the expression of its members, or may compel the body to tape record its closed sessions. Cal. Gov't Code §§ 11130(a) (Bagley-Keene Act); 54960(a); 54960(b) (Brown Act).
A court also may order closed-session minutes released to the public. In Register Division of Freedom Newspapers, Inc. v. County of Orange, 158 Cal. App. 3d 893, 906-907, 205 Cal. Rptr. 92 (1984), the court held that closed session minutes must be disclosed under the Public Records Act if a legislative body calls a closed session in violation of the Brown Act and no other privileges apply to the discussions. But another court has held that the Brown Act does not contain any provision for disclosing the minutes of a closed session meeting where the legislative agency correctly convened a closed session under the Brown Act, but strayed into topics that were not on the agenda or not proper for discussion in closed session. Cty. of Los Angeles v. Superior Court (Union of Am. Physicians and Dentists), 130 Cal. App. 4th 1099, 1105-1106, 30 Cal. Rptr. 3d 708 (2005). In that case, the court held that minutes of a closed session meeting remained privileged from discovery, even where the body may have violated the Brown Act. Id. at 1105. This case should be distinguished by pointing out that the plaintiff had never filed a Brown Act lawsuit, and that the issue of whether the Brown Act had been violated had not been fully litigated in the trial court, and the plaintiff was seeking discovery of closed session minutes in a non-Brown Act lawsuit.
But given the holding of Union of American Physicians and Dentists, it is advisable to combine any Brown Act demand letter and lawsuit with a demand under the California Public Records Act for the minutes of the portion of the closed session that violated the Brown Act, and assert that release of the documents is being sought under the Public Records Act and the Brown Act.
Action taken at a meeting in violation of the Act may be voidable. 29 Del. C. § 10005(a). Remedies permitted by this section include injunction, a declaratory judgment, writ of mandamus and/or other appropriate relief. 29 Del. C. § 10005(d); see also Wilmington Fed'n of Teachers v. Howell, 374 A.2d 832 (Del. 1977) (invalidation of public body's decision constitutes an extreme sanction and in the absence of an unequivocal statutory mandate declaring action taken in derogation thereof to be null and void action so taken not to be summarily invalidated by a court); Retail Liquor Dealers Ass'n v. Del. Alcoholic Beverage Control Comm'n, 1980 WL 273545 (Del. Ch. Apr. 23, 1980). The 1985 Amendments to the Act appears to address the concern that invalidation is an extreme remedy. See Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (court expressed concern about using injunction to revise action of Board of Election). See Del. Op. Att'y Gen., No. 96-ib18 (May 29, 1996) (finding that a public body meeting was held in violation of the Act but providing for no remedy other than the opinion itself). But see Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994).
District of Columbia
A court may order "an appropriate remedy" if it finds that a resolution, rule, regulation, or other official action was taken, made, or enacted in violation of the Open Meetings Act. Possible remedies include requiring additional forms of notice, postponing meetings, or declaring action taken at a meeting to be void. D.C. Code Ann. § 2-579(d). In addition, if the court finds that a public body plans to hold a closed meeting in violation of the Act, the court may enjoin the public body from closing the meeting or portion of the meeting; order that future meetings of the same kind be open to the public; or order that the record of the meeting be made public. Id. § 2-579(c).
The superior courts have jurisdiction to grant relief in law or equity. O.C.G.A. § 50-14-5(a). The court may grant an injunction requiring that future agency meetings be made open to the public or that the agency comply with the Act's notice and minutes provisions. The court may also grant an injunction requiring an agency to make minutes, agendas, and transcripts of past meetings available to the public. The Act also provides for suits to invalidate official agency actions taken in violation of the Act's provisions. O.C.G.A. § 50-14-1(b)(2). See, e.g., City of Statesboro v. Dabbs, 289 Ga. 669, 715 S.E.2d 73 (2011) (trial court had authority to order city to hold substitute meetings to remedy prior meetings held in violation of Act).
The court may grant an injunction or any appropriate remedy. Haw. Rev. Stat. § 92-12(b). The court may also stay the enforcement of any agency decision if the following criteria have been met:
There is likelihood that the party bringing the action will prevail on the merits;
Irreparable damage will result if a stay is not ordered;
No irreparable damage to the public will result from the stay order; and
Public interest will be served by the stay order.
Haw. Rev. Stat. § 92-12(d).
The court may also determine that any final action taken in violation of Sections 92-3 (open meetings) and 92-7 (notice) is void, provided there is proof of a violation. Haw. Rev. Stat. § 92-11 (1996).
The full range of judicial remedies under Idaho law is available to require compliance with the law or declare action taken in violation of the law null and void, including injunctive and declaratory relief. However, private suits may not be brought for damages or to impose the civil penalty described in Idaho Code §§ 74-208(2)-(4). Idaho Code § 74-208(6).
The court may grant relief in the form of ordering a meeting to be opened to the public, and/or granting an injunction against future violations of the Act. It may order the public body to make available to the public that portion of the minutes of the meeting that are not authorized to be kept confidential. The court also has the option of declaring null and void any final action taken at a meeting held in violation of the Act. See 5 ILCS 120/3(c)). However, relief under the Act is completely discretionary. See 5 ILCS 120/3(c)); People ex rel. Graf v. Village of Lake Bluff, 321 Ill. App. 3d 897, 908, 748 N.E.2d 801, 811, 255 Ill. Dec. 97, 107 (2d Dist. 2001), rev’d on other grounds, 206 Ill. 2d 541, 795 N.E.2d 281, 276 Ill. Dec. 928 (2003).
The court may open the meeting, invalidate the decision, or order that future meetings be conducted in public. Ind. Code § 5-14-1.5-7. If a decision is voided, the court may enjoin the governing body from acting on the subject matter of the voided act until it has been substantially reconsidered at a meeting or meetings that comply with the Open Door Law. Ind. Code § 5-14-1.5-7(e). Indiana courts have held that substantial compliance with the Open Door Law may in some circumstances be sufficient remedy for previous violations. Riggin v. Bd. of Trs. of Ball State Univ., 489 N.E.2d 616, 623–24 (Ind. Ct. App. 1986) (holding that Ball State substantially complied with the Open Door Law); see also Azhar v. Town of Fishers, 744 N.E.2d 947, 953 (Ind. App. 2001) (holding that there were genuine issues of fact as to whether the agency cured its Open Door Law violations).
Review of actions to enforce the open meetings statute are ordinary actions at law. Schumacher v. Lisbon Sch. Bd., 582 N.W .2d 183, 185 (Iowa 1998). They are not equitable actions. Olinger v. Smith, 892 N.W.2d 775, 779 (Iowa Ct. App. 2016).
The trial court's findings are binding if supported by substantial evidence. Tel. Herald Inc. v. City of Dubuque, 297 N.W.2d 529, 533 (Iowa 1980); Gavin v. City of Cascade, 500 N.W.2d 729, 731 (Iowa Ct. App.1993).
Iowa Code § 21.6 provides:
1. The remedies provided by this section against state governmental bodies shall be in addition to those provided by section 17A.19. Any aggrieved person, taxpayer to, or citizen of, the state of Iowa, or the attorney general or county attorney, may seek judicial enforcement of the requirements of this chapter. Suits to enforce this chapter shall be brought in the district court for the county in which the governmental body has its principal place of business.
2. Once a party seeking judicial enforcement of this chapter demonstrates to the court that the body in question is subject to the requirements of this chapter and has held a closed session, the burden of going forward shall be on the body and its members to demonstrate compliance with the requirements of this chapter.
3. Upon a finding by a preponderance of the evidence that a governmental body has violated any provision of this chapter, a court:
a. Shall 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. These damages shall be paid by the court imposing it to the state of Iowa, if the body in question is a state governmental body, or to the local government involved if the body in question is a local governmental body. A member of a governmental body found to have violated this chapter shall not be assessed such damages if that member proves that the member did any of the following:
(1) Voted against the closed session.
(2) Had good reason to believe and in good faith believed facts which, if true, would have indicated compliance with all the requirements of this chapter.
(3) Reasonably relied upon a decision of a court, a formal opinion of 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 attorney general or the attorney for the governmental body, given in writing .
b. 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 damages 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.
c. Shall void any action taken in violation of this chapter, if the suit for enforcement of this chapter is brought within six months of the violation and the court finds under the facts of the particular case that the public interest in the enforcement of the policy of this chapter outweighs the public interest in sustaining the validity of the action taken in the closed session. This paragraph shall not apply to an action taken regarding the issuance of bonds or other evidence of indebtedness of a governmental body if a public hearing, election or public sale has been held regarding the bonds or evidence of indebtedness.
d. Shall issue an order removing a member of a governmental body from office if that member has engaged in a prior violation of this chapter for which damages were assessed against the member during the member's term.
e. May issue a mandatory injunction punishable by civil contempt ordering the members of the offending governmental body to refrain for one year from any future violations of this chapter.
4. Ignorance of the legal requirements of this chapter shall be no defense to an enforcement proceeding brought under this section. A governmental body which is in doubt about the legality of closing a particular meeting is authorized to bring suit at the expense of that governmental body in the district court of the county of the governmental body's principal place of business to ascertain the propriety of any such action, or seek a formal opinion of the attorney general or an attorney for the governmental body.
Evidence of gross negligence, bad faith and malice is relevant in deciding whether to impose damage award and tax costs. Wells v. Dallas Cty. Bd. of Adjustment, 475 N.W.2d 680, 683 (Iowa 1991).
The court may affirm the agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant any other appropriate relief from the agency action, equitable or legal and including declaratory relief, if substantial rights of the petitioner have been prejudiced because the agency action is: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) in violation of an agency rule; (d) made upon unlawful procedure; (e) affected by other error of law; (f) in a contested case, unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole; (g) action other than a rule that is inconsistent with a rule of the agency; (h) action other than a rule that is inconsistent with the agency’s prior practice or precedents; (i) the product of illogical and wholly irrational reasoning; (j) the product of a decision-making process in which relevant and important information was not considered; (k) affecting private rights in a grossly disproportionate manner and lacks any foundation in any rational agency policy; (l) based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of the law; (m) based upon an irrational, illogical, or wholly unjustifiable application of a provision of the law; or (n) otherwise unreasonable, arbitrary, capricious, or an abuse of discretion. Iowa Code §17A.19(10).
City resident challenged a city council decision to create a city manager position because the decision was allegedly made during a closed door session, but the ordinance that created the position was read three times in open sessions before it was passed. Moreover, the resident failed to bring suit to enforce the meetings law within six months of the closed meeting as required by Iowa Code § 21.6; further, the district court could only void a closed meeting action if the public interest involved in enforcing the policy outweighed the interest in sustaining the validity of the action. Adele v. City of Pleasant Hill, No. 07-1338, 2008 WL 2520837 (Iowa Ct. App. June 25, 2008).
The Circuit Court may enforce the Open Meetings Act by injunction or other appropriate order. Ky. Rev. Stat. 61.848(1). This includes the ability to void certain actions of the public agency that were taken at the illegal meeting. Ky. Rev. Stat. 61.848(5). A Circuit Court is not required to void an action, even if there was no substantial compliance with the Act. In Stinson v. State Board of Accountancy, 625 S.W.2d 589 (Ky. Ct. App. 1981), the Court chose not to void an action because the plaintiff raised no objection at the time and demonstrated no prejudice as a result of the action.
Writ of mandamus, injunctive relief, declaratory relief, judgment rendering action void. La. Rev. Stat. Ann. § 42:26(A). See also Twin Parish Port Comm'n v. Berry Bros. Inc., 650 So. 2d 748 (La. 1995). (District Court finding that an ordinance was adopted in violation of the Open Meeting Law renders the action null and void, not unconstitutional, and does not trigger immediate Louisiana Supreme Court review).
Upon the finding of a violation, the court may issue an order to:
(1) compel immediate and future compliance with the open meeting law;
(2) compel attendance at a training session authorized by the attorney general;
(3) nullify in whole or in part any action taken at the meeting;
(4) impose a civil penalty upon the public body of not more than $1,000 for each intentional violation;
(5) reinstate an employee without loss of compensation, seniority, tenure or other benefits;
(6) compel that minutes, records or other materials be made public; or
(7) prescribe other appropriate action.
C.L. c. 30A, § 23(c), (f).
An action of a public body may be invalidated under Mich. Comp. Laws Ann. § 15.270; a court may compel compliance with the OMA or enjoin further noncompliance under Mich. Comp. Laws Ann. § 15.271. An action for mandamus against a public body may be commenced in the Court of Appeals under Mich. Comp. Laws Ann. § 15.271(3).
Injunctive relief may be an appropriate remedy, provided the relief does not alter the purpose of the statute, involves matters actually litigated and sets forth its order with reasonable certainty. Channel 10 Inc. v. Independent School Dist. No. 709, 298 MN 306, 215 N.W.2d 814 (1974). Governing bodies have sought orders declaring a proposed act as an appropriate subject of an open meeting. Itaska County Board of Commissioners, 372 N.W.2d 804 (Minn. Ct. App. 1985).
The court may issue a declaratory judgment holding that the public governmental body violated the Sunshine Law, and issue an injunction prohibiting further violations. See Laut v. City of Arnold, 491 S.W.3d 191, 208 (Mo. 2016) (reiterating the fact that circuit courts “have jurisdiction to issue injunctions to enforce the provisions of sections 610.010 to 610.115”) (citations omitted). However, the court may only enter a declaratory judgment in the context of a specific factual matrix and actual justiciable controversy. See Fulson v. Kansas City Star Co., 816 S.W.2d 297, 299 (Mo.Ct.App. 1991); Buckner v. Burnett, 908 S.W.2d 908 (Mo.Ct.App. 1995). Typically in a suit for judicial enforcement of the Sunshine Law in which a public governmental body is determined to have violated the statute, a court will enter an injunction compelling compliance both as to past violations (i.e., require that a public record be made available for public inspection) and future violations (i.e., require that similar public meetings or records be open to the public in the future). However, the Missouri Court of Appeals for the Western District has held that the Sunshine Law does not provide a remedy in the nature of an injunction relating to future requests. Buckner v. Burnett, supra. Rather, the Sunshine Law merely provides a remedy for past violations. Id. In the event a public governmental body repeats the same violation, that new violation could be deemed a purposeful violation of the Sunshine Law, affording the additional relief, including attorneys fees and fines which are discussed below. Id.
The court has the discretionary power, upon good cause shown, to declare void any action or part thereof taken in violation of the OML. N.Y. Pub. Off. Law § 107(1) (McKinney 1988). See, e.g., Sanna v. Lindenhurst Bd. of Educ., 58 N.Y.2d 626, 444 N.E.2d 975, 458 N.Y.S.2d 511 (1982). The court may also grant declaratory and injunctive relief. N.Y. Pub. Off. Law § 107(1) (McKinney 1988). See, e.g., Binghamton Press Co. v. Board of Educ., 67 A.D.2d 797, 412 N.Y.S.2d 492 (3d Dep’t 1979). In the instance of persistent violations in the face of previous court orders, the court may exercise its prerogative of holding a public body in contempt of court. See, e.g., Orange Cty. Publications v. Cty. of Orange, 120 A.D.2d 596, 502 N.Y.S.2d 71 (2d Dep’t 1986), appeal dismissed, 68 N.Y.2d 807, 498 N.E.2d 437, 506 N.Y.S.2d 1037 (1986).
G.S. § 143-318.16 authorizes the courts to enter “mandatory or prohibitory injunctions” to enjoin (1) threatened violations of the Open Meetings Law, (2) the recurrence of past violations, or (3) continuing violations.
G.S. § 143-318.16A authorizes the Superior Court to enter a judgment declaring that any action of the public body was “taken, considered, discussed, or deliberated” in violation of the Open Meetings Law and, upon such a finding, to declare any such action null and void.
G.S. § 143-318.16A(e) expressly restricts courts from considering any challenge to an enacted law or joint resolution or passed simple resolution of either house of the General Assembly when that challenge is based on an alleged violation of the Open Meetings Law.
The court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1). For an intentional or knowing violation, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater. N.D.C.C. § 44-04-21.2(1).
The available judicial remedies are:
- Injunction. Ohio Rev. Code § 121.22(I)(1).
- Award enjoined public body to pay civil forfeiture of $500 to the person who successfully obtained injunction. Ohio Rev. Code § 121.22(I)(2).
- Mandamus. State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996), State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
- Invalidation of action taken in or resulting from a session closed in violation of the statute. Ohio Rev. Code § 121.22(H); see, e.g., Maddox v. Greene Cty. Children Servs. Bd. of Dirs., 12 N.E.3d 476, 491, 2014-Ohio-2312, ¶ 35 (invalidating termination of employee based upon deliberations that occurred in violation of the Open Meetings Act.
- A member of a public body who knowingly violates an injunction to obey the statute may be removed from office by an action brought by a prosecuting authority or the attorney general. Ohio Rev. Code § 121.22(I)(4).
Judicial remedies include power to nullify any action taken in the unlawfully held meeting and to permanently enjoin further violations. An action taken by a governing body which is later determined to be void under the Open Meetings Act can still serve as the basis for another claim, such as discrimination. Forbes v. Wilson County Emergency District 911 Board, 966 S.W.2d 417 (Tenn. 1998).
The court may issue a writ of mandamus directed to members of the governing body subject to the Act. The court also may issue a declaratory judgment or an injunction. See Tex. Gov’t Code§ 551.142; The Pea Picker, Inc., 632 S.W.2d at 677 (stating that since parties were uncertain whether meeting of public officials was required to be open, trial court had power to construe statute as to whether notice of meeting must be given and when meeting is required to be open; thus actual controversy existed as basis for declaratory judgment action).
A court may (a) compel compliance with the Open Meetings Act; (b) enjoin an agency’s violation of the Act; (c) determine the Act’s applicability to a public body’s discussions or decisions; or (d) order the public disclosure of a tape recording or minutes containing information about a meeting, or a portion thereof, that was closed illegally. Utah Code §§ 52-4-303(3), -304(2)(b).
The court may grant appropriate injunctive relief or may enter declaratory judgment on behalf of an aggrieved party. 1 V.S.A. § 314(c). Because the open meeting law provides remedies for “the curtailment of free speech [caused] by holding improper executive sessions” and for “violations of the rights to observe and participate in the discussion and decision making of local government,” a plaintiff cannot maintain a suit for damages for the same injuries under articles 13 (freedom of speech) or 10 (due process) of the Vermont Constitution. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 341-42 (D. Vt. 2003).
The court may void any final actions taken at the meeting, if the governing body failed to comply with the OPMA. The court also may enjoin prospective or future violations. However, where there is no evidence that the agency will hold another meeting in violation of the OPMA, injunctive relief is not appropriate. Protect the Peninsula’s Future v. Clallam County, 66 Wn. App. 671, 677, 833 P.2d 406 (1992).
The Open Meetings Act specifically authorizes injunctive relief, as well as the judicial annulment of official actions taken in violation of the statute. W. Va. Code § 6-9A-6. There is one exception to the court's power to annul any decision made in violation of the statute: no bond issue that was passed or approved by any public agency may be annulled for noncompliance with the Act "if notice of the meeting at which such bond issue was finally considered was given at least ten days prior to such meeting by a Class I legal advertisement" published in a newspaper circulated within the public agency's geographical area. Id.
A court also could enter a declaratory judgment determining the public's access rights in a given situation, as well as any other remedy the court deems appropriate.
W. Va. Code § 6-9A-6 requires that any order which compels compliance or enjoins non-compliance with the provisions of the statute, or which annuls a decision made in violation of the Act, "shall include findings of fact and conclusions of law and shall be recorded in the minutes of the governing body."