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Olinger v. Smith

Court of Appeals of Iowa

December 21, 2016

JAMES W. OLINGER and LARRY C. MEYER, Plaintiffs-Appellants/Cross-Appellees,
v.
ROBERT SMITH, WALTER UTMAN, GAYLORD PITT, HARRISON COUNTY, IOWA, and UTMAN DRAINAGE DISTRICT, Defendants-Appellees/Cross-Appellants.

         Appeal from the Iowa District Court for Harrison County, James M. Richardson, Judge.

         The plaintiffs appeal various aspects of the district court's order and judgment on their claim the defendants violated the Iowa Open Meetings Act. The defendants cross-appeal. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Jessica A. Zupp of Zupp & Zupp Law Firm, P.C., Denison, and Allen K. Nepper of Nepper Law Firm, Denison, for appellants/cross-appellees.

          Sasha L. Monthei of Scheldrup Blades, Cedar Rapids, for appellees/cross-appellants.

          Heard by Vogel, P.J., and Tabor and Mullins, JJ.

          MULLINS, Judge.

         James Olinger and Larry Meyer appeal various aspects of the district court's order and judgment on their claim the trustees of the Utman Drainage District violated the Iowa Open Meetings Act (IOMA). The drainage district and its trustees cross-appeal. We affirm in part, reverse in part, and remand.

         I. Background Facts and Proceedings

         In its order and judgment, the district court summarized the following relevant facts:

[Olinger and Meyer] are residents of Harrison County, Iowa. . . . Robert Smith, Walter Utman, and Gaylord Pitt are elected members of the Harrison County Board of Supervisors who act as the trustees of the Utman Drainage District.
Elizabeth Lenz has been the drainage clerk for the Utman Drainage District for more than [twenty] years. Ms. Lenz acted as a liaison between the trustees and legal counsel. She would gather information from legal counsel and pass it on to the trustees as issues arose. . . .
During the fall of 2013, a levy became a hotly contested issue in Harrison County, Iowa. [Olinger and Meyer] in a different cause of action filed for a writ of mandamus. . . .
On or about November 4, 2013, counsel for [the] plaintiffs sent a threatening letter to the [trustees]. This letter threatened certain legal ramifications if certain actions were not taken prior to November 15, 2013. . . .
The Harrison County board of supervisors meets weekly . . . .
At their weekly . . . meeting on November 7, 2013, the matter of the drainage district litigation came up. Based upon advice given by counsel to Ms. Lenz, it was determined any discussion of the litigation should not be in an open meeting. . . . [T]he trustees entered a closed session to discuss litigation for approximately [three] minutes. The subject discussed was the November 4, 2013 letter threatening legal action. . . . No specific action was discussed. As it pertains to the payment of court costs requested in the previous litigation, the transcript of the November 4 closed meeting session indicates that the court had not yet assess[ed] the cost and as a result, the trustees all agreed to wait on any action.
Similarly, on November 14, 2013, the trustees went into closed session to discuss threatened litigation for approximately [six] minutes. No specific action was discussed. Again, this was pursuant to legal advice given by counsel to the trustees through Ms. Lenz.

         On November 25, 2013, Olinger and Smith filed a petition alleging both closed sessions were held in violation of IOMA, as provided in Iowa Code chapter 21 (2013). Olinger v. Smith, No. 14-0751, 2015 WL 1331269, at *1 (Iowa Ct. App. Mar. 25, 2015). Olinger and Smith then "filed a motion seeking an in camera inspection of the recording of the closed sessions." Id.; see also Iowa Code § 21.5(4) (providing for in camera inspection). After the inspection, the district court determined Olinger and Smith were entitled to access the recording of the November 7 meeting but the November 14 recording should not be released. Olinger, 2015 WL 1331269, at *1. Having found the recording from the November 7 meeting must be disclosed, the district court invoked Iowa Code section 21.6(3)(a) and ordered each trustee to pay a $100 fine. Id. The court later suspended the fine in the event each trustee purchased an "Open Meetings, Open Records" handbook. Id. Olinger and Smith filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), asserting the district court's order should have been limited to the in camera motion; the district court summarily denied the motion. Olinger and Smith appealed.

         This court reversed on appeal, finding the district court erred by prematurely assessing damages without expressly determining whether the trustees knowingly violated IOMA, by failing to allow the trustees an opportunity to present defenses, by suspending the fine without statutory authority, and by failing to address whether Olinger and Smith were entitled to attorney fees. Id. at *3. Based on the trustees' admission counsel for the drainage district was not present at either meeting, this court further clarified "a closed session under Iowa Code section 21.5(1)(c) requires the presence of counsel at the meeting in order to satisfy the requirement 'to discuss strategy with counsel.'" Id. at *7 (footnote omitted). On appeal, it is undisputed by the parties that counsel was not present during the November 7 and 14 gatherings.

         Upon remand, trial was held. The district court's order did not explicitly state a violation of the act occurred. Instead, the district court found: (1) "a closed meeting occurred, " (2) the trustees entered into the closed meetings on advice of counsel, (3) "the trustees intended to fully comply with all aspects of the open meeting law, " (4) the "trustees substantially complied with the open meetings statute on both November 7 and 14, " and (5) "[w]hether or not a violation occurred, the [trustees] ha[ve] met all burdens in establishing their actions were made in good faith in attempting to comply with the open meetings statutes." Having made these findings, the district court imposed a fine upon the drainage district-concluding the trustees were not individually liable based on their "good faith" defense-and taxed the drainage district with costs including plaintiffs' attorney fees, as reduced by the district court.

         Following Olinger and Smith's rule 1.904(2) motion to amend or enlarge, the district court entered an amended ruling eliminating the fine imposed upon the drainage district. Olinger and Smith appeal; the drainage district and its trustees cross-appeal.

         II. Standards and Scope of Review

         "Actions to enforce the open meetings law are ordinary, not equitable, actions." Hutchison v. Shull, 878 N.W.2d 221, 229 (Iowa 2016). "In such actions, we accord a trial court's factual findings the same degree of deference we accord a jury's special verdict." Id. (citing Iowa R. App. P. 6.907). "Thus, factual findings by the trial court are binding if substantial evidence supports them." Id. "Substantial evidence supports a factual finding when the finding 'may be reasonably inferred from the evidence presented.'" Id. at 229-30 (quoting Vaughan v. Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996)). Our review is for correction of errors at law. See Tel. Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 533 (Iowa 1980).

         We review the award of attorney fees for an abuse of discretion. See Schumacher v. Lisbon Sch. Bd., 582 N.W.2d 183, 186 (Iowa 1998).

         III. Analysis

         A. IOMA Violation

         Iowa Code section 21.1 "seeks to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people." In furtherance of this purpose, "[a]mbiguity in the construction or application of [IOMA] should be resolved in favor of openness." Iowa Code § 21.1.

         The initial burden rests with the party seeking judicial enforcement of IOMA to "demonstrate[] to the court that the body in question is subject to the requirements of [IOMA] and has held a closed session." Id. § 21.6(2). Once the claimant has done so, "the burden of going forward shall be on the body and its members to demonstrate compliance with the requirements of [IOMA]." Id.

         There is no dispute the drainage district and its trustees are subject to the requirements of IOMA. The Iowa Code provides that "[m]eetings of governmental bodies, " such as the drainage district, "shall be held in open session unless closed sessions are expressly permitted by law." Id. § 21.3. An "[o]pen session" is defined as "a meeting to which all members of the public have access." I ...


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