ANALYSIS OF APRIL 27, 2023 SUPREME COURT OPINION
(Posted April 27, 2023) Today is the “birthday” of one of my favorite short piano works. On this date in 1810, Ludwig von Beethoven sat down to compose a tune that he named “Für Elise,” honoring a woman whose identity is probably lost to history. Between this work and Debussy’s “Clair de Lune,” I find that I can derive immense pleasure in a short period of listening.
Freedom of Information
There’s one published opinion from the Supreme Court of Virginia today. In Suffolk School Board v. Wahlstrom, the justices address a citizen’s exclusion from a school board retreat.
The retreat was always supposed to be open to the public; the board’s public notice said so. Scheduled for July 22, 2021, it fell three weeks past the date when the Governor’s pandemic orders had expired, but the board still felt it necessary to ensure social distancing. The meeting occurred at a large room in a local school building, with well-spaced round tables spread through the room.
Wahlstrom is a citizen who came to the meeting. She discovered the tables in the designated room and sat down at one. A staffer then told her that the tables were reserved for staff; she accordingly walked over to a spare chair at the side of the room and sat there.
If that had sufficed, we wouldn’t have litigation and hence no opinion today. Someone from the board’s staff informed Wahlstrom that the pubic couldn’t sit in the meeting room; the board had instead arranged for a video feed of the meeting, broadcast into a nearby room. She was invited to go to that room to watch.
No dice, she said, insisting that FOIA permitted her to attend the meeting in person. That prompted the board chair and the division superintendent to approach her and order her out of the room. When she still resisted, a police officer was summoned to escort her, not merely to the other room but out of the building.
That predictably led to a lawsuit. Wahlstrom sued the board, the chair, and the superintendent, seeing injunctive relief, civil penalties, and attorney’s fees. She sued the two officers in their individual and official capacities.
The circuit court sustained a demurrer to the individual-capacity pleadings, holding that FOIA’s obligations run to public bodies, not to individuals. But it permitted the remaining claims to proceed to a bench trial. At the conclusion of that proceeding, the court ruled in Wahlstrom’s favor as against the board, but held that the officers, in their official capacities, had not willfully and knowingly violated FOIA. The court awarded $19,000 in fees against the board and enjoined it from future exclusions of citizens.
The Supreme Court affirms this judgment today. It adopts the trial court’s factual findings, including its conclusion that the board acted “shamefully” in having Wahlstrom escorted out of the building. The court notes that this very school board has had to answer for multiple previous FOIA violations, a fact that assuredly didn’t help its cause at trial or on appeal.
The primary ruling today for FOIA purposes is that the open-meeting requirements generally require – with some exceptions not relevant here – that the public be permitted to be physically present at these meetings. Providing a video feed in this situation didn’t suffice. As I read the opinion, I considered one reductio ad absurdum that the justices don’t mention today: If a video feed were permissible, what’s to stop a public body from prohibiting all in-person attendance, merely by broadcasting the meeting on television or a streaming service? After all, there’s no meaningful difference between watching a video feed from the next room and watching it in your living room.
The Supreme Court today approves of the circuit court’s findings and its imposition of an injunction against future violations. It next turns to Wahlstrom’s cross-error to the dismissal of the individual-capacity claims.
FOIA imposes certain obligations upon public bodies. The officials convinced the circuit court that, because individuals aren’t public bodies, there was no viable claim against them. The Supreme Court finds that this ruling was erroneous, because in its penalties section, FOIA refers to civil penalties against individual actors who are government officials, including members of public bodies. Thus, even though there’s no express obligation in the statute placed upon persons, they can be sued for FOIA violations.
Just as you’re thinking that this will mean a remand, the Supreme Court affirms anyway, thanks to our old pal, the harmless-error doctrine. In its final order adjudicating the official-capacity claims, the circuit court found, as a matter of fact, that the officials didn’t willfully and knowingly violate the act. The Supreme Court rules that that finding disposes of any individual-capacity claims that could have been tried.
Justice Wes Russell pens today’s opinion for a unanimous court.
