Janelle P. Eurick (#8801)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862
Attorney for Plaintiffs
IN THE THIRD JUDICIAL DISTRICT COURT
SALT LAKE COUNTY, STATE OF UTAH
MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Case No. 020906936
RICK CURTIS; FOCUS an unincorporated association, Plaintiffs,
UTAH STATE CHILD SUPPORT GUIDELINES ADVISORY COMMITTEE; TRACEY FINDLEY; MICHAEL D. LYON; RANDALL K. FIELDS; KEN D. PILON; STEWART P. RALPHS; JESSIE X. FAN, HELEN E. CHRISTIAN; THOMAS N. MALONEY; DIANNA MCDOWELL; BRAD LINNELL; and MARK BRASHER, Defendants.
Plaintiffs Rick Curtis and FOCUS seek to videotape the Utah State Child Support Guidelines Advisory Committee (the “Committee”) meetings to further their efforts to advocate for the rights of divorced parents and to guarantee public access to the Committee’s deliberations and actions. Under the plain language of the Utah Open and Public Meetings Act any attendee of an open meeting may record the meeting. But on three occasions the Committee has refused to allow the plaintiffs Rick Curtis and FOCUS to record its monthly meetings and indicated it will not allow videotaping in the future without a court order.
Plaintiff Rick Curtis is a taxpayer and resident of Salt Lake County, Utah, and a member of FOCUS, an organization representing fathers rights in child custody matters. Curtis has attended and been denied the right to videotape the last three public meetings of the Utah State Child Support Guidelines Advisory Committee. Curtis has an interest in having video recordings of the Committee’s meetings to allow viewing of the meetings by members of his organization who cannot attend. Curtis also would like videotapes of the meetings to allow members of FOCUS to develop accurate comments and to gain a meaningful opportunity to participate in meetings of the Committee concerning child support guidelines. Curtis is a “person” under the Open and Public Meetings Act for the purpose of maintaining this lawsuit under Utah Code Ann. § 52-4-9(2).
Plaintiff FOCUS is an organization currently pending classification as an incorporated association. FOCUS represents the rights of fathers on a variety of issues that affect child custody in Utah. FOCUS and member Rick Curtis have been denied the right to videotape the Child Support Guidelines Advisory Committee meetings during the past three meetings. FOCUS and its members previously videotaped the meetings without incident. FOCUS is a “person” under the Open and Public Meetings Act for the purpose of maintaining this lawsuit under Utah Code Ann. § 52-4-9(2).
Defendant Child Support Guidelines Advisory Committee (the “Committee”), is a committee appointed by the Governor under Utah Code Ann. § 78-45-7.13(1). The Committee reviews the state’s “child support guidelines to ensure their application results in the determination of appropriate child support award amounts,” Utah Code Ann. § 78-45-7.13(4)(a). The Committee makes group and individual recommendations to the Legislative Judiciary Interim Committee. Utah Code Ann. § 78-45-7.13(4)(b)-(c). The Committee is a “public body” within the meaning of Utah Code Ann. § 52-4-2(3).
The individual defendants Tracey Findley, Michael D. Lyon, Randall K. Fields, Ken D. Pilon, Stewart P. Ralphs, Jessie X. Fan, Helen E. Christian, Thomas N. Maloney, DiAnna McDowell, Brad Linnell, and Mark Brasher are all members of the Committee and were appointed to the Committee by the Governor. The individual members are sued in their official capacity.
On or about May 6, 2002 Mr. Stewart P. Ralphs, a member of the Child Support Guidelines Advisory Committee, informed Mr. Curtis that videotaping would not be allowed during the Committee’s meetings anymore because the Committee believed it had a choice whether to allow videotaping and had voted not to allow it. See Affidavit of Rick Curtis in Support of Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction (“Curtis Aff.”) ¶ 4. Prior to this meeting, members of Focus commonly videotaped every meeting of the Committee. Curtis Aff. ¶ 4.
On June 3, 2002 Mr. Curtis and Focus were denied the right to videotape the Committee meeting. That day, Mr. Curtis contacted the Governors office who informed him that their office thought videotaping was an appropriate way to record public meetings. Curtis Aff. ¶ 5, 6.
On July 1, 2002, at a meeting of the Committee, Mr. Curtis was again told by Mr. Ralphs that certain members of the Committee were uncomfortable being videotaped and instructed Mr. Curtis that he would need a court order if he wanted the videotape the meetings. Curtis Aff. ¶ 7.
All three of the meetings above constituted “meetings” within the meaning of Utah Code Ann. § 52-4-2, and should have been open to the public pursuant to Utah Code Ann. § 52-4-3. On information and belief, the Committee did not close (nor could it properly have closed) any of the meetings pursuant to Utah Code Ann. § 52-4-4. Utah Code Ann. § 52-4-7(4) allows that any “person” has the right to “record” open meetings as long as the recording is not disruptive to the meetings. On information and belief, the Committee did not find Mr. Curtis’ attempts to videotape the meetings “disruptive,” and therefore did not comply with the Utah Open and Public Meetings Act when denying Mr. Curtis and Focus the right to videotape.
I. THE STANDARD FOR PRELIMINARY INJUNCTION
Rule 65A(e) of the Utah Rules of Civil Procedure sets forth the standards for a preliminary injunction under Utah law:
(1) The applicant will suffer irreparable harm unless the injunction issues;
(2) The threatened injury to the applicant outweighs whatever damage the proposed injunction may cause the party enjoined;
(3) The injunction, if issued, would not be adverse to the public interest; and
(4) There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits, which should be the subject of further litigation.
Utah R. Civ. P. 65A(e); see also Hunsaker v. Kersh, 991 P.2d 67, 69 (Utah 1999); Water & Energy Sys. Tech. Inc. v. Keil, 974 P.2d 821, 822 (Utah 1999). All four standards must be met for a court to grant a preliminary injunction.
II. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS OF THEIR CLAIM THAT DEFENDANTS VIOLATE THE UTAH OPEN AND PUBLIC MEETINGS ACT BY DENYING PLAINTIFFS THEIR RIGHT TO VIDEOTAPE THE COMMITTEE’S MEETINGS
Because the law strongly supports plaintiffs’ argument here on the merits, by explicitly allowing open meetings to be recorded by attendees, Utah Code Ann. § 52-4-7(4), we turn first to that discussion. When the legislature enacted the Utah Open and Public Meetings Act it declared, “[T]he state, its agencies, and political subdivisions, exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” Ut. Code Ann. § 52-4-1. In this vein the legislature included, “All or any part of an open meetings may be recorded by any person in attendance; provided, the recording does not interfere with the conduct of the meeting.” Ut. Code Ann. § 52-4-7(4). As a threshold matter, this Court must construe this section of the Open and Public Meetings Act. The threshold question is whether, based on this statute, the plaintiffs are entitled to videotape the Committee’s meetings.
Statutory construction begins and, if possible, ends with the statute’s plain language. State v. Redd, 992 P.2d 986, 990 (Utah 1999); see also Zoll & Branch P.C. v. Asay, 932 P.2d 592, 594 (Utah 1997) ("The fundamental rule of statutory construction is that statutes are generally to be construed according to their plain language. Unambiguous language in the statute may not be interpreted to contradict its plain meaning.”). A corollary of this rule is that "a statutory term should be interpreted and applied according to its usually accepted meaning, where the ordinary meaning of the term results in an application that is neither unreasonably confused, inoperable, nor in blatant contradiction of the express purpose of the statute." State v. Bohne, 18 P.3d 514, 516 (Utah 2001). In the absence of statutory definitions, Utah courts rely on common dictionary definitions to determine plain meaning. See State v. Redd, 992 P.2d at 990; Zoll & Branch, 932 P.2d at 594.
The Open and Public Meetings statute does not define “record” in the definition section. However, Merriam-Webster’s Online Dictionary defines record as:
1 a (1) : to set down in writing : furnish written evidence of (2) : to deposit an authentic official copy of <record a deed> b : to state for or as if for the record <voted in favor but recorded certain reservations> c (1) : to register permanently by mechanical means <earthquake shocks recorded by a seismograph> (2) : INDICATE, READ <the thermometer recorded 90°>
2 : to give evidence of
3 : to cause (as sound, visual images, or data) to be registered on something (as a disc or magnetic tape) in reproducible form
See http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=records. According to this definition, the term “record” not only means written notes, but also replication of visual images used in videotaping a meeting.
The Legislature could have narrowed the definition of “record” by listing the specific categories of recording allowed by members of the public. Elsewhere in the statute, for instance, the Legislature did just that. The Section titled “Minutes of open meetings - Public records - Recordings of meetings” states, “Written minutes or a digital or tape recording shall be kept of all open meetings.” Utah Code Ann. § 52-4-7-(1). Further, it states, “Except as provided in Section 52-4-7.5, written minutes or a digital or tape recording shall be kept of all closed meetings.” Utah Code Ann. § 52-4-7(2). These sections indicate that the Legislature intended to narrow the term “record” to certain types of recording in those sections, while allowing members of the public the broadest interpretation of “record” in § 52-4-7(4), omitting any listing of the specific types of recording allowed by members of the public.
The Committee told plaintiff Curtis that it did not want the meetings recorded because members of the Committee were uncomfortable being videotaped. See Curtis Aff. ¶4-7. This is not a permissible reason for denial under the Open and Public Meetings Act. Utah Code Ann. § 52-4-7-(4) provides, “All or any part of an open meeting may be recorded by any person in attendance; provided, the recording does not interfere with the conduct of the meeting.” On information and belief, the Committee did not find Curtis’ attempts to videotape the meetings “disruptive” and therefore the Committee is in violation of the law.
III. PLAINTIFFS SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF
A. Plaintiffs will suffer irreparable injury that greatly outweighs any purported harm to the State should the status quo be maintained.
The Committee has already illegally denied Plaintiffs the right to videotape the last three Committee meetings, for the months of May, June, and July 2002. The opportunity to capture the content of those meetings on videotape cannot be reclaimed. For future meetings, the Committee threatened to continue in their illegal course of action, telling plaintiffs that videotaping will not be allowed without a court order. The meetings of the Committee are held monthly; the next meeting is scheduled for August 5, 2002. Without immediate injunctive relief prohibiting the Committee from denying the rights of the plaintiffs and allowing them to videotape the meetings, the plaintiffs will be denied their statutory right to record the August meeting.
B. A Preliminary Injunction Will Not Be Adverse To The Public Interest.
Allowing plaintiffs to exercise their rights under the Utah Open and Public Meetings Act to record the committee’s meetings is not adverse to the public interest; in fact, it advances the public interest. By observing and illuminating the actions of the Child Support Guidelines Advisory Committee the plaintiffs aid the legislative public policy goal of the Open and Public Meetings Act: to ensure the government’s “actions be taken openly and that their deliberations be conducted openly.” Utah Code Ann. § 52-4-1.
C. No Security Should Be Required under Rule 65A(c)
The Utah Rules of Civil Procedure require that the Court consider whether a security is necessary and appropriate for the issuance of a preliminary injunction. In light of the lack of harm that will befall the defendants if a preliminary injunction is issued, no security should be required.
For all the foregoing reasons, the court should issue immediate injunctive relief enjoining defendants from denying plaintiffs their right to videotape the Committee’s meetings.
DATED this 26 day of July 2002.
By: Janelle P. Eurick
Attorney for Plaintiffs