IN THE CIRCUIT COURT FOR THE CITY OF SALEM
BETTY ELLEN WILSON, et als.
THE CITY OF SALEM, VIRGINIA
Chancery No. 99-154
FRANCIS E. MUNLEY, et als.
THE CITY OF SALEM, VIRGINIA
Chancery No. 99-4
COMES NOW the Defendant, The City of Salem, Virginia, by
counsel, and as and for its Memorandum in Response to Petitioners’ Memoranda[fn1]
supporting their claims under the Virginia Freedom of Information
Act and 42 U.S.C. Section 1983, respectfully submits the following:
The Petitioners candidly admit to the Court that there is no "controlling
case law in point" (Petitioners’ FOIA Memorandum, page 2)
to support their contentions that they have properly alleged that:
(1) the Virginia Freedom of Information Act has been violated and
(2) this Court has the authority to annul a decision made by the City
regarding the location of the water tower. The reason for this paucity
is, apparently, simple. No other state has enacted an Open (Public)
Meetings Law using language equivalent to that selected by the Virginia
General Assembly. Therefore, to resolve the foregoing issues, the
Court must necessarily interpret the Virginia statute without the
aid of case law from other jurisdictions.
Rather than relying on the language of the Virginia Code to establish
that they have properly alleged a violation of Virginia law, Petitioners
cite what they admit are "factually distinguishable" foreign
cases. These cases are apparently not submitted for precedential
value, but, rather, to point out that some jurisdictions "emphasize
the importance of giving notice of meaningful measure, by advanced
agenda or otherwise, of the intent of the governing body to transaction
important business of the public at an upcoming meeting." (Petitioners’ FOIA
Memorandum, page 7). Based upon these "distinguishable" cases,
Petitioners conclude that the alleged failure of the Defendant to
have a written agenda item concerning the location of a water tower
makes any action regarding same a violation of Virginia law, even
though that action was taken at an "open meeting."
To state that the cases submitted by the Petitioners are "factually distinguishable" from
the case at bar is a paragon of understatement. Indeed, those cases are not only
factually different, a review of the statutes they construed convincingly demonstrates
that Virginia’s Freedom of Information Act contains no requirement that
items to be considered at a public meeting must be particularized on an agenda
or that a public body may only act on items shown on such an agenda. In other
words, the Petitioners have no underpinning whatsoever for their claim that there
has been a violation of Virginia’s Freedom of Information Act.
Section 2.1-343F of the Virginia Act states:
At least one copy of all agenda packets and, unless exempt, all
materials furnished to members of the public body for a meeting
shall be made available for public inspection at the same time
such documents are furnished to the members of the public body.[fn2]
While an "agenda packet" is apparently required, that Section
does not set forth what the agenda must provide nor does it require
that a public body must strictly adhere to the items set forth thereon.
Looking at the cases submitted by the Petitioners, it is evident that the opposite
is true in the jurisdictions in which those cases arose. For example, the Petitioners
cite the Oklahoma case of Haworth Bd of Ed., etc. v. Havens, 637
P.2d 902 (Okl. App. 1981), (See Petitioners’ FOIA Memorandum Exhibit 4),
which involved that state’s statutes governing public meetings. Section
25-311 of the Oklahoma Open Meeting Act expressly provides that "only matters
appearing on the posted agenda may be considered" at the meeting in question.
(See Exhibit 1 for portions of Oklahoma Code). Likewise, the Petitioners put
forth the Nebraska case of Hansmeyer v. Nebraska Public Power Dist.,
578 N.W.2d 476 (Neb. App. 1998). (See Petitioners’ FOIA Memorandum Exhibit
5). The statute involved there provided that notice of public meetings "shall
contain an agenda of subjects known at the time of the publicized notice or a
statement that the agenda which shall be kept continually current, shall be readily
available for public inspection at the principal office of the public body during
normal business hours." (See Exhibit 2 for portions of Nebraska Code). Thus,
Nebraska law expressly requires that the notice of a public meeting must specify
matters which will be discussed by the public body.
When the language of the Oklahoma and Nebraska statutes is compared with Virginia’s
Freedom of Information Act, it becomes abundantly clear that the Virginia General
Assembly did not intend public bodies in this state to be bound by such rigorous
requirements. To rely on decisions like those cited by Petitioners and to suggest
that they have even a modicum of persuasive value in construing the Virginia
statute is flat out wrong.
B. THE VIRGINIA STATUTE DOES NOT AUTHORIZE A
COURT TO VOID ACTIONS TAKEN IN VIOLATION OF
THE FREEDOM OF INFORMATION ACT.
A second critical issue in this case is whether this Court has the
power to annul an act of Salem City Council for an alleged violation
of the Freedom of Information Act. The jurisdictions relied on by
the Petitioners are fundamentally different from Virginia when it
comes to the effect of a violation of the statute. For example, the
Oklahoma statute clearly and expressly grants that authority to the
courts. Section 25-313 of the Oklahoma Code provides that "any
action taken in willful violation of this act shall be invalid." (See
Exhibit 1). Likewise, Nebraska sets out a clear grant of authority
for the Court to void actions taken in violation of its open meeting
law. Section 84-1414 of the Nebraska Code states:
Any motion, resolution, rule, regulation, ordinance or formal action
of a public body made or taken in violation (of the Freedom of Information
Act) shall be declared void . . . if a complaint is made within
120 days of a meeting or shall be voidable if the complaint is made
more than 120 days after the meeting but less than one year after
the meeting. (See Exhibit 2).
The same applies to the State of West Virginia through its open
meeting law.[fn3] Interestingly, West Virginia specifically provides
in a public meeting notice statute that: "any Court of competent
jurisdiction may invalidate any action taken at any meeting for which
notice did not comply with the requirements of this section." West
Virginia Code Section 6-9A-3. Equally important, Section 6-9A-6 provides
that "the Court is empowered to compel compliance or enjoin non-compliance
with the provisions of this article and to annul a decision made
in violation of this article." (emphasis supplied).
Thus, the jurisdiction relied upon by the Petitioners not only specifically set
forth a requirement as to what agendas for public meetings must state, but they
likewise specifically grant to their courts the power to annul a decision made
in violation of those provisions. Virginia, on the other hand, makes no such
Section 2.1-340.1 is the section of the Virginia Code upon which the Petitioners
base their claim that this Court has the power to render void actions taken in
violation of the Freedom of Information Act. That Section reads: "Any ordinance
adopted by a local governing body which conflicts with the provisions of this
Chapter shall be void."
Your Defendant has previously orally argued that the statute means only that
a local governing body cannot adopt procedures which conflict with the procedures
required by the Freedom of Information Act. That comes from a very straightforward
reading of that Section. That Section applies only when an ordinance,
as enacted by a local governing body, itself conflicts with the
Freedom of Information Act. There is nothing contained in the Petitioners’ pleadings
to indicate that the City of Salem has enacted any such conflicting ordinance.
Rather than giving credence to the clear language used by the Virginia legislature,
the Petitioners assert that that language should be read to be the equivalent
of the Nebraska statute which expressly empowers its courts to declare void any
action taken by a public body which violates the open meeting law and of West
Virginia’s language that a court is empowered to "annul a decision
made in violation of this article." That is not what Section 2.1-340.1 says
under any ordinary reading.
The Petitioners further argue that the statute must be given some meaning beyond
what it literally says because to do otherwise would be a redundancy. Local governments
are not empowered to violate state law in any event. Equal with this proposition,
however, is the rule of construction that a court is not required to construe
a statute so that leads [sic] to an absurd result.
Section 2.1-340.1 is expressly limited to an "ordinance" which is enacted
by "a local governing body." As is evident from the Code, the Freedom
of Information Act applies not just to local governing bodies, but, also to "public
bodies." Under Section 2.1-341, a "public body" is defined as
. . . any legislative body, any authority, board, bureau, commission,
district or agency of the Commonwealth or of any political subdivision
of the Commonwealth, including cities, towns and counties; municipal
councils, governing bodies of counties, school boards and planning
commissions; boards of visitors of public institutions of higher
education; and other organizations, corporations or agencies in
the Commonwealth supported wholly or principally by public funds.
This shall include any committee or sub-committee of the public
body created to perform delegated functions of the public body or
to advise the public body. It shall not exclude any such committee
or sub-committee because it has private sector or citizen members.
Corporations organized by the Virginia Retirement System are "public
bodies " for the purposes of this chapter.
Thus, the Virginia statute applies to bodies which are not only not "local," but
also to those which are not "governing."
Under the Petitioners’ reading of Section 2.1-340.1 any legislative body,
any authority, any board, any bureau, and any agency of this state other than
a "local governing body" is free to violate the Freedom of Information
Act with no threat to the actions they take. Their actions cannot be set aside
under Section 2.1-340.1. Under that Section only "local governing bodies" face
annulment proceedings. Truly, this is an absurd reading of the Code. Apparently,
Petitioners not only want this Court to read the word "any" in Section
2.1-340.1 to mean "all" (Petitioners’ FOIA Memorandum, page 14),
the want this Court to read "local governing body" to mean all "public
bodies." To do so, would make their argument more rational, but it would
also require this Court to exceed its role as an interpreter of statutes and
move into the realm of a legislature.
Equally compelling food for though comes from the fact that, if Petitioners’ interpretation
of Section 2.1-340.1 is correct, the Court’s power to annul is limited not
only to "local governing bodies," but also only to "ordinances" adopted
by them. The power to annul, therefore, does not apply to those bodies’ adoption
of a resolution, a rule, a contract, a regulation or a motion. (See Section 2.1-344B,
wherein the Virginia General Assembly recognized that public bodies act by means
other than by ordinances). Only ordinances can be ruled void. Thus, even
were the Petitioners correct the power to annul would not apply here. A decision
as to where to locate a water tower is not an ordinance. But, the point,
rather, is that the end result of Petitioners’ contention is an absurdity.
Under their theory, a City Council, for example, could violate the Virginia Freedom
of Information Act by adopting a resolution in violation thereof and its actions
would not be voidable because it did not act by "ordinance." The same
result would, of course, occur if a school board violated the act. School boards
do not act by ordinance. An interpretation leading to such results makes no sense.
What Petitioners really want is for this Court to redraft Section 2.1-340.1 to
read that "a court is authorized to annul all actions of all public bodies
which are taken in violation of the provisions of this chapter." This would
cure Petitioners’ problems in this case. It would also, however, constitute
reversible error on the part of this Court.
The Petitioners further rely on §2.1-343.2 which states that no vote shall
be taken by a public body to authorize "the transaction of any public business
other than a vote taken at a meeting conducted in accordance with . . . this
chapter." The import of this section is that public business shall be conducted
at a "public meeting." A "public meeting" is one which "at
which the public may be present". Virginia Code §2.1-341. Petitioners
have not alleged, nor can they successfully allege that the vote in question
in this cause was taken at a "closed meeting", i.e., where the public
was excluded. By their own admission, the meeting was open. Allegations
such as those which state that members of a group of disgruntled citizens chose
to leave that open meeting does not make it closed. "Closed" implies
an affirmative act to exclude the public.
Furthermore, the only specific violation of the Freedom of Information Act which
is alleged to have occurred is that action on the water tower’s location
was not listed on an agenda. As has already been asserted herein, Section 2.1-343F
does not limit a Virginia "public body" to any specific agenda nor
does it prohibit varying from adding and deleting items from an existing agenda.
It merely requires that "agenda packets" made available to members
of the public body be at the same time made available for public inspection.
There is no allegation that the agenda package for the meeting in question was
not made available as so required.
In sum, the Virginia Freedom of Information Act is not as restrictive in its
requirements as the states involved in the case law submitted by the Petitioners.
Unlike those states, Virginia neither prescribes the contents of an agenda nor
limits a public body to act only on items set forth thereon without the ability
to add or subtract therefrom. Likewise, the Virginia Act does not specifically
provide for the relief which Petitioners seek in this case, without doing a gross
injustice to the English language used in Section 21.1-340.1. Therefore, the
Petitioners’ position in this matter should be rejected by the Court and
the Court should sustain the Defendant’s Demurrer.
1. The Petitioners in their brief seemingly take the position that
the allegations made in the Munley lawsuit are sufficient to
bring them within the Freedom of Information Act arguments as it relates
to the water tower. The relief which the Petitioners in Munley seek
is to enjoin the rezoning of parcels of property upon which the tank
is not situated. That being the case, the Munley Petitioners
have no standing whatsoever to join in a claim that the tank should
be torn down because of a violation of the Freedom of Information
Act. Accordingly, the Petition of the Munleys should be dismissed
out of hand as it relates to an alleged violation of that Act.
2. In their brief the Petitioners assert that your Defendant’s Demurrer
is insufficient to reach the arguments set forth above. Your Defendant believes
that its Demurrer is in fact broad enough to encompass those arguments. If not,
your Defendant hereby moves that it be granted leave to file an Amended Demurrer.
This would only be fair and reasonable given the multiple pleadings that the
Petitioners have been permitted to file so far in these causes.
[In the remainder of the Memorandum, the Defendant addresses the
various theories the Petitioners say their rights guaranteed by the
federal civil rights statute, 42 U.S.C. §1983 were violated.
The Petitioners allege: (1) that construction of a water tower on
their property would constitute a taking of their property without
just compensation in violation of the Fifth Amendment; (2) the City
Council’s action deprived them of their substantive due process
rights; and (3) the City Council’s action deprived them of a "liberty
interest " without the benefit of due process.]
The Petitioners assert that Virginia’s Freedom of Information
Act has been violated and that they have a cause of action based upon
42 U.S.C. §1983. As to both claims, Petitioners have failed to
submit one case which supports them either in law or in fact. The
reason for this is that no such case exists. Their claim as to each
theory can survive only if this Court were to virtually amend the
Virginia Freedom of Information Act and the United States Constitution
to suit Petitioners’ purposes. The better path, however, is to
determine that Petitioners are wrong as to both assertions and to
dismiss their claims.
William C. Maxwell, Esquire
Stephen M. Yost, Esquire
Jolly, Place, Fralin & Prillaman, P.C.[fn*]
P.O. Box 279
Salem, VA 24153
Counsel for the Defendant
I hereby certify that a true copy of the foregoing Memorandum was
mailed this 28th day of December, 2000, to Philip C. Coulter, Esquire,
Coulter & Coulter, P.O. Box 1299, Roanoke, Virginia 24006, counsel
for the petitioners.
1. Petitioners have submitted two separate Memoranda, presumably
because the Munley Petitioners are not asserting a 42 U.S.C. §1983
claim. Defendant is submitting only one Memorandum as a matter of
convenience, recognizing that two separate Court files are involved
and that these cases have not been consolidated.
2. Section 2.1-343F is the only Virginia Statute which deals with
the matter of agendas for public meetings. Yet, the only time that
section is cited by Petitioners is on page iii of their Memorandum,
under the heading of "Table of Cases, etc." No page of their
Memorandum is cited in the Table opposite that statute’s mention.
Indeed, that code section is nowhere to be found in the text of the
Memorandum itself. Curious it is that the Petitioners believe that "distinguishable" foreign
case law takes precedence over a Virginia statute dealing directly
with the subject. Petitioners have said it all on Page 9 of their
Memorandum: "Silence conveys less sound that any noise." In
this case, "silence" appears also to convey a "soundless" admission
that the Virginia Code does not require that which they suggest it
3. Petitioners tout two West Virginia opinions to support their view,
but they have totally missed the point of those opinions. Construction
of Chapter 29B of the West Virginia Code was at issue in those cases.
While that chapter is titled as West Virginia’s Freedom of Information
Act, it deals solely with the right of the public to obtain documents
and other information from public bodies. It is Chapter 6-9A of the
West Virginia Code which sets forth provisions dealing with the conduct
of public meetings. Therefore, neither of the opinions cited by the
Petitioners has any applicability to the matter now before the Court.
(See Exhibits 3 and 4 for portions of W.Va. Code).
* As of at least July 7, 2001, firm name is Osterhoudt, Prillaman,
Natt, Helscher, Yost, Maxwell & Ferguson, PLC.