State Supreme Court overturns lower court ruling in Smyth County sunshine case
By Stephanie Porter-Nichols, SWVA Today – 5/28/2020
Observers called a Thursday Virginia Supreme Court decision a victory for the citizens of Smyth County and the commonwealth.
The Freedom of Information case had been appealed to the court by Beverly Cole, both individually and as president of the non-profit Friends of the Smyth-Bland Regional Library. The case alleged that the Smyth County Board of Supervisors violated the commonwealth’s sunshine law when its members discussed dissolving the Smyth-Bland Regional Library behind closed doors without properly disclosing the subject of their discussion.
In the opinion written by Justice S. Bernard Goodwyn, the justice upheld the case’s claims.
At its essence, the Friends’ case claimed that the supervisors “made illegal motions to hold closed door meetings which excluded the public, and that during those illegally convened meetings, the Board discussed dissolving the Smyth-Bland Regional Library.”
The case grew out of a series of actions taken by the board to correct what its members presented as mismanagement of the Smyth-Bland Regional Library. On Oct. 27, 2016, the supervisors removed its seven appointees to the library’s board of trustees and then named its own members as the new trustees.
In four meetings in early 2017, the supervisors voted to enter closed sessions under the Virginia Freedom of Information Act’s legal exemption, which allows discussion with legal counsel and staff pertaining to actual or probable litigation. During those closed sessions, the supervisors discussed disbanding the regional library, including the financial costs and benefits of doing so. Then, in a special meeting on March 28, 2017, the board voted 6-1 to disband the library and replace it with a county library.
The Friends sued in an effort to stop that move.
However, a Smyth County Circuit Court judge upheld the supervisors’ actions.
Thursday, the Supreme Court reversed that decision.
In its opinion, the court said, “…The motions failed to include a subject matter for the closed sessions at all.” The court explained that, per Black’s Law Dictionary, the subject is the “issue presented for consideration” or the “thing in dispute.”
The opinion continued, “Because the motions failed to sufficiently identify the subject matter of the closed sessions, the circuit court erred in holding that the closed sessions were properly held….”
The opinion went on to say that when the supervisors disbanded the regional library, they publicly cited economic justifications. The resolution adopted by the board to dissolve the library didn’t mention any pending or potential litigation as a factor in its decision-making.
The court wrote, “The circuit court erred in ruling that all of the discussions in the closed sessions were properly exempted from the requirements of VFOIA.”
Ultimately, the justices agreed to reverse and vacate the circuit court’s decision and send the case back to the lower court for judgment and address Cole’s entitlement to attorney’s fees, which the law provides.
The case puts local governments on notice to heed the sunshine law and the access it guarantees citizens to government operations.
In response to the ruling, Paul Morrison II, the plaintiff’s attorney, said, “More than two years ago, the Smyth County Board of Supervisors regularly entered into closed sessions in direct violation of Virginia’s sunshine laws to conduct the county’s business in secret. That is exactly what happened when the board decided to dissolve the Smyth-Bland Regional Library. Today the Virginia Supreme Court confirmed what the Friends of the Smyth-Bland Regional Library have said all along, that the closed meetings held by the board to discuss dissolving the library were illegal.”
Morrison, a Marion attorney, went on to again note the length of time elapsed between the board of supervisors’ actions and Thursday’s ruling.
He was pointing to actions by Jeff Campbell, who represented the supervisors in this case. Campbell, who is also an elected member of the House of Delegates, served as county attorney until the end of 2019.
Late last year, Campbell came under fire for using a special exemption that state law allows legislators who are attorneys to use when their General Assembly duties interfere with their legal work.
Shortly after the state Supreme Court agreed to hear the appeal in April 2018, Campbell filed a motion seeking a time extension because the General Assembly entered a special session to address a budget debate. On May 17, 2018, the court gave the appellees until 30 days after the 2018 special session adjourned to respond to the Friends’ appeal. However, that special session and a second later one technically remain ongoing.
Normally, appellees have 25 days to file a response once an appeal is granted and filed.
Last year, Morrison asked the court to address the delay, noting that “over 500 days have elapsed.” Morrison noted in his motion that Campbell has been at work in the court system, “appearing regularly as counsel of record in cases he chooses to pursue.” Using records from the state Supreme Court, Morrison noted in his documentation that, from Aug. 1, 2018 until Aug. 1, 2019, Campbell appeared in 186 cases in Smyth County courts.
The court agreed to hear arguments on Morrison’s motion, but in November Campbell filed a response and the case was scheduled for arguments on Feb. 26, at which time the case had been pending for more than 677 days.
Thursday, Morrison said, “Because of questionable litigation tactics, justice in this case was delayed for two years. Justice delayed is justice denied, and that is evident in this case, as now many of the members of the board responsible for these illegal meetings are no longer on the board and no longer accountable to the citizens of Smyth County. The county’s business should be open to its citizens.”
Appellate lawyer L. Steven Emmert, who authors the website Virginia Appellate News & Analysis, also commented on the decision Thursday and noted Campbell’s role.
Had Campbell not filed a response when he did, Emmert said, the case could have prompted a constitutional crisis by pitting two elements of the state’s three branches of government – executive, judiciary and legislative — against one another.
Last fall, he wrote “…The standard reaction to this news is ‘Wow!’ This motion carries the potential of an inter-branch dispute that we’ve never seen before….”
Thursday, Emmert noted that the justices’ decision has implications for local governments around the commonwealth. He said they found “that the public announcement in these situations must go beyond mentioning the statutory basis for the exemption; it has to describe the litigation. I suspect that county boards and city councils elsewhere may already do this, but for the rest of them, the requirement is now out in plain sight.”