SUPREME COURT OF VIRGINIA
223 S.E.2d 895, 216 Va. 892
April 23, 1976
WTAR RADIO-TV CORPORATION, ET AL. v. CITY COUNCIL OF THE CITY OF
VIRGINIA BEACH, ET AL
Appeal from a decree of the Circuit Court of the City of
Virginia Beach. Hon. Robert S. Wahab, Jr., judge presiding.
Conrad M. Shumadine; David Y. Faggert (Barry W. Hunter; Kaufman,
Oberndorfer & Spainhour, on briefs), for appellants.
Charles Salle, Assistant City Attorney (j. Dale Bimson, City
Attorney; Arthur Bergman, Assistant City Attorney, on brief), for
Present, All the Justices.
The opinion of the court was delivered by: Poff
POFF, J., delivered the opinion of the court.
WTAR Radio-TV Corporation and Joseph Jay Moore, III,
(petitioners) filed original and amended petitions against City
Council of the City of Virginia Beach and its individual members
(collectively, Council) alleging violations of the Virginia Freedom
of Information Act, Code secs. 2.1-340, et seq. (Repl. Vol. 1973;
Cum. Supp. 1975)*
. . . (the Act) and seeking injunctive relief. The chancellor
sustained Council's demurrers and we must decide whether the
petitions stated a cause of action.
Petitioners alleged that Council adopted a resolution at its
regular meeting on December 2, 1974, announcing a closed meeting on
December 9, 1974; that the resolution stated that the meeting was
to be held "for the purpose of discussing items permitted for
discussion under Section 2.1-344, subparagraph 2 and 6 of the...
Act"; that the resolution did "not state specifically the purpose
or purposes" to be discussed; that petitioners learned that the
subject scheduled for discussion was a report compiled by the
Virginia Beach Neptune Festival, a private organization, requesting
an appropriation of public funds; that the legality of the request
did not constitute a "legal matter" within the meaning of Code sec.
2.1-344(6) (Cum. Supp. 1975) and the subject was not otherwise
privileged for secret discussion; that Council, over petitioners'
protest, discussed that subject in executive session at the
December 9, 1974, meeting; and that, at another closed meeting on
January 13, 1975, Council discussed six items listed on the agenda,
four of which "were inappropriate for an executive session", and
another item not listed on the agenda.
Petitioners asked the chancellor to hold that the discussion of
these matters in executive session constituted violations of the
Act, and to "enter a permanent injunction... enjoining the City
Council... from holding executive or closed meetings except for the
purposes set forth in Section 2.1-344(a),... from holding executive
or closed meetings unless and until the City Council shall
specifically state the purpose or purposes... with particularity
and... from discussing any items not contemplated at the time the
resolution was passed...."
The dispositive question is whether petitioners' allegations of
previously consummated violations of the Act were sufficient to
support the issuance of the requested injunction restraining future
Under Code sec. 2.1-346 (Repl. Vol. 1973), the filing of a
verified petition alleging denial of a protected right vests the
chancellor with jurisdiction to hear the cause and "to enforce" the
right by granting injunctive relief. Contrary to Council's
contention, the petition need not contain an allegation of
"irreparable injury". See Town of Palm Beach v. Gradison,
296 So.2d 473 (Fla. 1974). The Act does not, however, expressly
provide what other allegations are necessary or what restraints may
be imposed to enforce the right denied. It provides only that the
petition for injunction must be "supported by an affidavit showing
Historically, the "good cause" to be served by injunctions,
whether mandatory or prohibitory, has been the prevention of future
wrongs. The function of the mandatory injunction is to undo an
existing wrongful condition; but its use is justified only when it
appears that, if it is not applied, the wrongful condition is
likely to continue. The function of the prohibitory injunction is,
not to repair or penalize a wrong previously consummated, but
either to maintain the status quo, to restrain the continued
commission of an on-going wrong, or to prevent the future
commission of an anticipated wrong.
Whether an injunction, an extraordinary remedy, should be
employed to prevent the future commission of an anticipated wrong
depends, in each case, upon the nature of the wrong and upon the
likelihood that the wrong will be committed. When there is
reasonable cause to believe that the wrong is one that would cause
irreparable injury and the wrong is actually threatened or
apprehended with reasonable probability, there is good cause for
entry of a prohibitory injunction.
In respect to good cause here, the irreparable injury inquiry
has, as we have said, been mooted by the Act, and an actual threat
of a future violation has not been alleged. The remaining question
is whether, from the facts that were alleged, such a violation can
be apprehended with reasonable probability.
Petitioners alleged that Council had committed several
violations of the Act. For purposes of the demurrer, these
allegations must be treated as true. A previous course of conduct
may raise an inference that such conduct will be repeated. But a
mere inference does not support an apprehension with reasonable
probability such as would justify imposition of a judicial sanction
against a legislative body.
The law never presumes that a man will violate the law. Rather,
the ancient presumption is that every man will obey the law. That
presumption holds even when one accused of crime has been convicted
of other crimes, and it prevails until rebutted by proof beyond a
reasonable doubt. While charges of civil violations entail a lesser
evidentiary burden, a similar presumption follows the public
official into his office. Sometimes, regrettably, the public trust
is betrayed and the office dishonored. But the presumption itself
survives, as it must, for our system of government could hardly
function if the law were to presume that all public officials are
scoundrels deserving continuing supervision by judicial
We hold that the verified petitions failed to allege facts
sufficient to show good cause for the injunctive relief requested
and that the demurrers were properly sustained.
We are mindful of the high purpose the Act seeks to promote, and
we have carefully considered what petitioners call "the futility of
having a Freedom of Information Act if there is no method of
forcing public bodies to comply with it." Our holding does not
render the Act unenforceable; the injunctive relief it authorizes
remains available when a cause is properly pleaded. Whether the
enforcement provisions of the Act should be amended, and if so, in
what manner, are matters of public policy solely within the
jurisdiction of the General Assembly.
* Insofar as pertinent to this appeal, the Act
" sec. 2.1-343. Meetings to be public except as otherwise
provided; minutes; information as to time and place. -- Except as
otherwise specifically provided by law and except as provided in
secs. 2.1-344 and 2.1-345, all meetings shall be public meetings.
Minutes shall be recorded at all public meetings. Information as to
the time and place of each meeting shall be furnished to any
citizen of this State who requests such information.
" sec. 2.1-344. Executive or closed meetings. -- (a) Executive
or closed meetings may be held only for the following purposes:
"(6) Consultation with legal counsel and briefings by staff
members, consultants or attorneys, pertaining to pending
litigation, or legal matters within the jurisdiction of the public
body, including legal documents.
"(b) No meeting shall become an executive or closed meeting
unless there shall have been recorded in open meeting an
affirmative vote to that effect by the public body holding such
meeting, which motion shall state specifically the purpose or
purposes hereinabove set forth in this section which are to be the
subject of such meeting.
"(c) No resolution, ordinance, rule, contract, regulation or
motion adopted, passed or agreed to in an executive or closed
meeting shall become effective unless such public body, following
such meeting, reconvenes in open meeting and takes a vote of the
membership on such resolution, ordinance, rule, contract,
regulation or motion.
" sec. 2.1-346. Proceedings for enforcement of chapter. -- Any
person denied the rights and privileges conferred by this chapter
may proceed to enforce such rights and privileges by petition for
mandamus or injunction, supported by an affidavit showing good