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People Ex Rel. Difanis v. Barr

OPINION FILED DECEMBER 19, 1980.

THE PEOPLE EX REL. THOMAS J. DIFANIS, STATES'S ATTORNEY, APPELLEE,

v.

JOAN BARR ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fourth MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Thomas J. Difanis, as State's Attorney of Champaign County, brought a declaratory judgment action against the nine defendants, who are members of the Urbana city council. The plaintiff sought a declaration that the defendants violated the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) when, on October 23, 1978, they met and conferred shortly before a special session of the Urbana city council. The circuit court of Champaign County entered judgment in favor of the plaintiff. The appellate court affirmed. (78 Ill. App.3d 842.) We allowed the defendants' petition for leave to appeal. 73 Ill.2d R. 315.

The parties entered into a stipulation of facts which reveals that an Urbana city council meeting was scheduled for Monday, October 23, 1978, at 7:30 p.m. On Friday, October 20, 1978, two members of the city council, defendants John Peterson and Bob Hurt, decided to hold a party caucus prior to the city council meeting. The caucus meeting was scheduled for October 23, 1978, at 6 p.m. in the home of a member of the city council. Attendance at the meeting was voluntary. The nine defendants attended the 6 p.m. meeting. Eight of the defendants are members of the Champaign County Democratic party, and one defendant has no political affiliation. There are 15 members of the Urbana city council, nine of whom are Democrats. Eight persons constitute a quorum of the council.

The meeting was called to discuss matters the city council would consider at its meeting later that night, as well as party matters and an election to be held in November 1978. No agenda was prepared for the 6 p.m. meeting, and no votes were taken. It is further stipulated that the defendants were not meeting as a duly constituted committee of the Urbana city council and they received no compensation for attending the hour-long meeting. One defendant, Donald Wort, arrived approximately 15 minutes before the end of the meeting and participated in a discussion of matters not on the city council agenda. Of the five matters on the formal agenda for the 7:30 p.m. city council session, four were discussed at the 6 p.m. meeting. Three votes were taken at the city council session on matters discussed at the 6 p.m. meeting. On a vote to approve a ward map recommended by a committee of the council, the nine defendants voted as a bloc. The measure thereupon was passed by the council nine votes to four. On the other two votes taken, concerning a community-development-agency appointment and approval of a "planned unit development" project, the defendants did not vote in a uniform manner. The fourth agenda matter discussed at the 6 p.m. meeting concerned the mayor's appointments to the Public Works Commission. The stipulated facts show that the discussion at the 6 p.m. meeting involved "reasons for holding up the Mayor's nominations." This matter was not brought up at the council session. Finally, the defendants stipulated that they have had "caucuses of this nature in the past and will continue to have caucuses of this nature in the future."

Section 2 of the Open Meetings Act provides in part:

"All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings * * *. This Act does not apply to the General Assembly or to committees or commissions thereof." (Ill. Rev. Stat. 1977, ch. 102, par. 42.)

The defendants contend first that the 6 p.m. meeting does not fall within the ambit of the Act. The defendants argue that the meeting was called primarily as a political caucus and not as a formal "meeting" of the city council. We disagree.

Section 1 of the Open Meetings Act states:

"It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies of this State exist to aid in the conduct of the people's business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly." (Ill. Rev. Stat. 1977, ch. 102, par. 41.)

This clearly enunciated public policy would be poorly served were we to carve out exceptions other than those expressly stated in the Act (see Ill. Rev. Stat. 1977, ch. 102, par. 42) for informal political caucuses where, as here, public business was deliberated and it appears that a consensus on at least one issue was reached outside of public view. Moreover, an expression of certain exceptions in a statute is construed as an exclusion of all others. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 557; City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill.2d 609, 612; 1971 Ill. Att'y Gen. Op. 51, 53.

Indeed, in 1967 the General Assembly amended the Act to delete the word "official" before the word "meeting" in sections 1 and 2. Palpably, the amendment was intended to include unofficial or informal meetings within the coverage of the Act. In Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal.App.2d 41, 69 Cal.Rptr. 480, a luncheon meeting was held at which several county officials, including the five county supervisors, met privately with labor officials to discuss a strike of the social workers union. Newspaper reporters sought but were denied admission to the gathering. In affirming the trial court's preliminary injunction order except to the extent it prevented attorneys for the county from discussing privileged matters with county officials, the court stated:

"An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act's objectives, the term `meeting' extends to informal sessions or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting." (Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal.App.2d 41, 50-51, 69 Cal.Rptr. 480, 487.)

Thus, to allow the nine defendants to circumvent the Act simply because they designate their meeting as an informal gathering or informal caucus would be to thwart the intent of the Act.

A related argument raised by the defendants is that the nine defendants do not constitute a "legislative body" or "subsidiary body" which is subject to the Act. This argument misapprehends both the wording of the statute and reality. The statute states that "[a]ll meetings of any legislative, executive, administrative or advisory bodies * * * and any subsidiary bodies of any of the foregoing including but not limited to committees or subcommittees * * * shall be public meetings * * *." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 102, par. 42.) We interpret the foregoing to mean that the Act was intended to apply to more than meetings of full bodies or duly constituted committees. Thus, "body" must necessarily be interpreted to mean an informal gathering of nine members of a legally constituted public body. The trial court decided that the Open Meetings Act ...


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