SHARON HUMMEL, Individually And on behalf of SAVE THE GREEN, INC., Plaintiffs - Appellants/Cross - Appellees, vs. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT and the BOARD OF DIRECTORS OF THE DES MOINES INDEPENDENT SCHOOL DISTRICT and MARC WARD, GINNY STRONG, CONNIE BOESEN, TEREE CALDWELL - JOHNSON, DICK MURPHY, PHIL ROEDER, JEANETTE WOODS, JOE JONGEWAARD, NEAL WESTIN, ANDREA HAUER, KATH KAHOUN, DUANE VAN HEMERT, JAMIE WORNSON, and NANCY SEBRING, Individually, Defendants - Appellees/Cross - Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 8-942 / 08-0763
Filed March 26, 2009
SHARON HUMMEL, Individually
And on behalf of SAVE THE GREEN, INC.,
Plaintiffs-Appellants/Cross-Appellees,
vs.
DES MOINES INDEPENDENT COMMUNITY
SCHOOL DISTRICT and the BOARD OF
DIRECTORS OF THE DES MOINES
INDEPENDENT SCHOOL DISTRICT and
MARC WARD, GINNY STRONG, CONNIE
BOESEN, TEREE CALDWELL-JOHNSON,
DICK MURPHY, PHIL ROEDER, JEANETTE
WOODS, JOE JONGEWAARD, NEAL WESTIN,
ANDREA HAUER, KATH KAHOUN, DUANE
VAN HEMERT, JAMIE WORNSON, and
NANCY SEBRING, Individually,
Defendants-Appellees/Cross-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Plaintiffs appeal from a district court ruling granting summary judgment in
favor of defendants, and defendants cross-appeal from the court‟s denial of their
motion for sanctions. AFFIRMED ON BOTH APPEALS.
George Qualley IV and Thomas K. Bleyhl of Qualley & Bleyhl, P.L.C., Des
Moines, for appellants.
Andrew J. Bracken and Amanda G. Wachuta of Ahlers & Cooney, P.C.,
Des Moines, for appellees.
Heard by Mahan, P.J., and Miller and Doyle, JJ.
2
DOYLE, J.
Sharon Hummel and Save the Green, Inc. (collectively “Hummel”) appeal
from a district court ruling granting summary judgment in favor of the Des Moines
Independent Community School District, its board of directors, superintendent,
and members of a review committee. The defendants cross-appeal from the
court‟s ruling denying their motion for sanctions against Hummel. We affirm the
judgment of the district court.
I. Background Facts and Proceedings.
The record reveals the following undisputed facts:
In June 1999, the
school district closed Byron Rice Elementary School, which it had operated at
3001 Beaver Avenue in Des Moines for approximately ninety years. The school
building was demolished in the summer of 2000. Since that time, the former
school site has remained open space in the Beaverdale neighborhood of Des
Moines. Residents in the neighborhood use it as a park and recreational field.
On July 12, 2005, the school board voted to sell the property.
A
representative of the school district subsequently attended meetings of several
Beaverdale neighborhood organizations in order to “develop a process that
would not only protect the value of the property for [the school district] but to also
be sensitive to the needs of the neighborhood and public interests.” Close to one
year later, on May 9, 2006, the school board held a special meeting at which it
discussed a “conceptual plan” for the sale of the property.
The plan
contemplated creation of a “seven member Review Committee” to review
proposals received by the board for the purchase and development of the
property, with the board ultimately “maintain[ing] control over all decisions.” The
3
committee was to be comprised of representatives of the school district and its
board, the City of Des Moines, and neighborhood organizations.
At later
meetings, the school board voted to begin the process to solicit proposals from
potential purchasers and selected individuals to serve on the review committee.
The school board received six proposals from developers interested in
purchasing the property. The review committee met on September 5, 2006, at a
real estate office in Des Moines to review those proposals. It selected three
proposals to be presented at a public forum on September 18. It also posted
information about all six proposals on two different websites. Following its public
presentation of the proposals, the review committee met at a law office on
September 21 to discuss which proposal it would recommend to the school
board.
At a school board meeting on October 3, 2006, the review committee
advised the board to select the proposal it received from Rice Development
Partners. Another public meeting was held on October 16 at which six members
of the review committee met with members of the community to discuss its
recommendation to the board.
The school board met the following day to
consider the six proposals it received and the recommendation of the review
committee.
After hearing from the review committee and members of the
community, the board voted to select the development proposal submitted by
Rice Development.
It thereafter approved a resolution for a public hearing
4
pursuant to Iowa Code section 297.22 (2007)1 on its proposal to sell the property
to Rice Development.
On October 20, 2006, a notice was published in the Des Moines Register
announcing the school board would hold a public hearing regarding the proposed
sale of the property on October 31, 2006, at 6:00 p.m. “in the Board Room on the
first floor of Central Campus, 1800 Grand Avenue, Des Moines, Iowa.” After that
notice was published, the meeting site was changed to Hiatt Middle School. On
October 27, the board posted a notice and tentative agenda for the October 31
meeting in the foyer of the district‟s main offices. The notice listed the location of
the meeting as Hiatt Middle School. The board‟s executive secretary also faxed
the notice with the correct location and a tentative agenda to the media.
On October 31, 2006, the school board met at Hiatt Middle School and
held a public hearing regarding the proposed sale of the property to Rice
Development.
Members of the community, including Hummel, attended the
meeting and expressed their disapproval of the board‟s proposal. Following the
hearing, the school board voted to approve the sale of the property to Rice
Development.
The board subsequently learned of the error in the notice it
published in the Des Moines Register regarding the location of the October 31
1
This section provides that
[b]efore the board of directors may sell . . . any property belonging to the
school, the board shall hold a public hearing on the proposal. The board
shall set forth its proposal in a resolution and shall publish notice of the
time and the place of the public hearing on the resolution. The notice shall
also describe the property . . . . Notice of the time and place of the public
hearing shall be published at least once not less than ten days but not
more than twenty days prior to the date of the hearing in a newspaper of
general circulation in the district. After the public hearing, the board may
make a final determination on the proposal contained in the resolution.
Iowa Code § 297.22(1)(c).
5
public hearing. In order to correct the error and ensure compliance with section
297.22, the board voted to hold another public hearing on January 9, 2007. After
that hearing, the board again voted in favor of the sale.
On January 18, 2007, Hummel filed a petition against the school district,
its board, the district‟s superintendent, and members of the review committee,
alleging all of the defendants violated Iowa‟s open meetings law, Iowa Code
chapter 21.2
The defendants filed a motion for summary judgment and
requested the district court to impose sanctions against Hummel and her attorney
pursuant to Iowa Rule of Civil Procedure 1.413(1) and Iowa Code section 619.19.
The district court granted the defendants‟ summary judgment motion, finding the
review committee “did not have any policy-making duties.
Therefore, the
Committee‟s meetings were not subject to the open meetings law.” The court
also determined the district‟s superintendent was not subject to the requirements
of chapter 21 pursuant to Barrett v. Lode, 603 N.W.2d 766, 768 (Iowa 1999), and
it rejected Hummel‟s claim that the board‟s notice of the October 31 meeting
violated that statute.
Finally, the court denied the defendants‟ motion for
sanctions against Hummel and her attorney.
Hummel appeals. She claims the district court erred in entering summary
judgment against her because the review committee is a “governmental body”
subject to the requirements of chapter 21, and its private meetings on September
5 and 21, 2006, were “meeting[s]” as defined by that statute. She additionally
2
Hummel‟s petition also alleged the defendants violated section 297.22. The
defendants filed a motion for partial summary judgment as to that claim early in the
proceedings, arguing such a claim may only be pursued by timely filing a petition for writ
of certiorari, which Hummel did not do. The district court granted the defendants‟
motion, and Hummel does not challenge that ruling on appeal.
6
claims the school district and its board violated the statute by failing to give
proper notice of the October 31, 2006 meeting.3 The defendants cross-appeal,
claiming the district court abused its discretion in denying their motion for
sanctions.
II. Scope and Standards of Review.
We review the district court‟s summary judgment ruling for the correction
of errors at law. Iowa R. App. P. 6.4; Mason v. Vision Iowa Bd., 700 N.W.2d 349,
353 (Iowa 2005).
If the record shows no genuine dispute of a material fact and that
the moving party is entitled to judgment as a matter of law,
summary judgment is appropriate. In assessing whether summary
judgment is warranted, we view the entire record in a light most
favorable to the nonmoving party. We also indulge in every
legitimate inference that the evidence will bear in an effort to
ascertain the existence of a fact question.
Mason, 700 N.W.2d at 353 (citation omitted). No fact question arises where, as
here, the only conflict concerns legal consequences flowing from undisputed
facts. McNertney v. Kahler, 710 N.W.2d 209, 210 (Iowa 2006).
The district court‟s order declining to impose sanctions under rule 1.413(1)
and section 619.19 is reviewed for an abuse of discretion. Mathias v. Glandon,
448 N.W.2d 443, 445 (Iowa 1989). We find such an abuse when the court
exercises its discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable. Schettler v. Iowa Dist. Court, 509 N.W.2d 459, 464
(Iowa 1993).
3
She does not challenge the district court‟s determination that the school district‟s
superintendent was not subject to the requirements of chapter 21.
7
III. Discussion.
A. Iowa Code chapter 21.
Iowa‟s open meetings law “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.” Iowa Code § 21.1; Mason, 700 N.W.2d at 353. Thus,
its purpose is to require meetings of governmental bodies to be open so that the
public may attend. KCOB/KLVN, Inc. v. Jasper County Bd. of Supervisors, 473
N.W.2d 171, 173 (Iowa 1991). To that end, section 21.3 provides: “Meetings of
governmental bodies shall be preceded by public notice as provided in section
21.4 and shall be held in open session unless closed sessions are expressly
permitted by law.” However, as our supreme court in Mason, 700 N.W.2d at 353,
recognized, “[n]ot all gatherings . . . are considered „meetings‟ under the statute.”
Section 21.2(2) defines a “meeting” as
a gathering in person or by electronic means, formal or informal, of
a majority of the members of a governmental body where there is
deliberation or action upon any matter within the scope of the
governmental body‟s policy-making duties.
The defendants assert the review committee is not subject to the open meetings
law because it had no “policy-making duties.” We agree.4
We believe resolution of this issue is controlled by the court‟s decision in
Mason, which emphasized that “[a] gathering of a governmental body must be
open to the public only „where there is deliberation or action upon any matter
Because we agree with the district court that the review committee‟s meetings did not
fall with the statutory definition of a “meeting” subject to the requirements of the open
meetings law, we need not determine whether the committee is a governmental body.
See Mason, 700 N.W.2d at 354.
4
8
within the scope of the governmental body‟s policy-making duties.‟” 700 N.W.2d
at 354 (quoting Iowa Code § 21.2(2)). “Policy-making,” according to Mason, is
more than recommending or advising what should be done. Id. (stating that to
“recommend a course of action is merely to suggest favorably a particular plan of
action”).
It instead involves “deciding with authority a course of action.”
Id.
Thus, the court‟s opinion in Mason clearly forecloses Hummel‟s argument that
“[e]ven if the Committee did not have authority to make a final determination that
would irrevocably bind the School Board, this does not mean it did not have
policy making duties.”
Hummel‟s attempts to distinguish the facts presented in this case from
those presented in Mason are unavailing. Here, as in Mason, we find no support
in the record for a finding that the review committee had responsibility for
anything more than simply recommending or suggesting to the school board the
development proposal it should accept.
See id. at 356. The board minutes
reveal that the review committee was established to “review the [proposals],
conduct a public presentation of the proposals and make a recommendation of
the favored proposal to the Superintendent.
The Superintendent will then
forward a recommendation to the board for approval.” The board specifically
stated it would “maintain control over all decisions.” See id. (noting the “ultimate
authority to accept or reject the development agreement was reserved to the
board; the committee‟s duty was advisory only”).
In an affidavit submitted in support of the defendants‟ summary judgment
motion, a member of the review committee stated that he understood the
committee‟s “charge was to consider the various proposals received by the
9
School District” and to “make a recommendation to the Superintendent regarding
which of the six proposals the members of the Review Committee preferred.” He
did not believe the committee was responsible for or able to eliminate any
proposals from the board‟s consideration. Another member of the committee
similarly stated that the board “maintained control of the sale process and
retained the authority to decide which proposal, if any of them, would be
selected . . . . The School Board did not delegate the decision regarding the sale
to the Review Committee.” Nor did it “authorize the Review Committee to set the
price for the property.”
Indeed, the record shows that the review committee
simply recommended the Rice Development proposal to the superintendent and
the school board, and the board later chose to select that proposal.
We do not agree with Hummel that there is “no evidence in the record that
the School Board did any independent investigation or deliberation into any of the
proposals submitted for the purchase of Rice Field other than the proposal which
was submitted to it by” the review committee. The board minutes set forth a
summary of all of the proposals that were submitted to the board. An affidavit of
a member of the board states that the board members “discussed the various
proposals and the possible sale of the property at the School Board meeting on
October 17, 2006.” Hummel‟s assertions to the contrary are nothing more than
bare conclusory statements, which are insufficient to defeat a properly supported
motion for summary judgment.
See Iowa R. Civ. P. 1.981(5); Winkel v.
Erpelding, 526 N.W.2d 316, 318 (Iowa 1995) (“To mount a successful resistance,
the challenger must come forward with specific facts constituting competent
evidence in support of the claim advanced.” (emphasis added)). Because there
10
are no facts in the record to support a finding that the review committee had
anything more than an advisory function, the district court correctly concluded
that the board‟s September 5 and 21, 2006 meetings were not required to be
open to the public.
We also note there are no facts in the record to support Hummel‟s
apparent assertion that the review committee falls within certain purely advisory
groups included in the statutory definition of “governmental body” in section
21.2(1)(e) and (h). Those paragraphs define a “governmental body” subject to
the requirements of the open meetings law to include:
e. An advisory board, advisory commission, or task force
created by the governor or the general assembly to develop and
make recommendations on public policy issues.
....
h. An advisory board, advisory commission, advisory
committee, task force, or other body created by statute or executive
order of this state or created by an executive order of a political
subdivision of this state to develop and make recommendations on
public policy issues.
Iowa Code § 21.2(1)(e), (h) (emphasis added).
The court in Mason recognized that these specified advisory groups,
unlike other governmental bodies,
would be subject to the open-meetings requirement when they
deliberate or act within the scope of their duty to develop and make
recommendations on public policy issues. But as to all other
governmental bodies, the legislature left unchanged the definition of
“meeting,” including the requirement that the body act in its policymaking role.
700 N.W.2d at 355. However, as in Mason, the “fact that the legislature made
specified advisory groups subject to the open meetings law is of no assistance
to” Hummel because the review committee “was not created by the governor, by
11
the general assembly, by statute, or by executive order of the state or a political
subdivision of the state so as to fall within paragraphs (e) or (h) of section
21.2(1).” Id. It is thus not one of the statutorily-specified advisory groups allowed
to “make recommendations on public policy issues” rather than engage in actual
policy-making yet remain subject to the open-meetings requirement.
We must next determine whether, as Hummel claims, the school district
and its board violated chapter 21 by failing to give proper notice of the board‟s
October 31, 2006 meeting. Iowa Code section 21.4(1) requires a governmental
body to “give notice of the time, date, and place of each meeting, and its tentative
agenda, in a manner reasonably calculated to apprise the public of that
information.” Hummel contends the school district and its board ran afoul of this
provision because the notice published in the Des Moines Register on October
20, 2006, listed an incorrect location for the board meeting held on October 31.
Hummel‟s argument ignores the fact that after the notice with the wrong
location was published in the Des Moines Register, the school board posted
another notice of the October 31 meeting in the foyer of the school district‟s main
offices. That notice, which was posted on October 27, 2006, listed the correct
location of the meeting. The board‟s executive secretary also faxed the notice
with the correct location to the media. We believe the October 27, 2006 notice
“sufficiently apprised the public and gave full opportunity for public knowledge
and participation.” KCOB/KLVN, 473 N.W.2d at 173. It also complied with the
requirements of section 21.4(1) and (2), which provide:
1. . . . Reasonable notice shall include advising the news
media . . . and posting the notice on a bulletin board or other
prominent place which is easily accessible to the public and clearly
12
designated for that purpose at the principal office of the body
holding the meeting . . . .
2. Notice conforming with all of the requirements of
subsection 1 of this section shall be given at least twenty-four hours
prior to the commencement of any meeting of a governmental
body . . . .
See KCOB/KLVN, 473 N.W.2d at 176 (stating in evaluating whether a
governmental body complied with the procedures set forth in chapter 21, “the
standard is substantial rather than absolute compliance with the statutory
requirements”).
We do not agree with Hummel that “[e]ven if the faulty notice was a mere
innocent error, it was still a violation of the law.” Although “notice is an important
tool utilized to accomplish openness, it is not the primary purpose of chapter 21.”
Id. at 173. Instead, as we previously acknowledged, the primary purpose of the
open meetings law is to “require meetings of governmental bodies to be open
and permit the public to be present.” Id. Here, members of the media and the
community, including Hummel herself, were present at and participated in the
October 31st meeting.
Moreover, ignoring the October 27, 2006 notice and
interpreting chapter 21 in manner urged by Hummel would lead to an impractical
if not absurd result.
It would, in effect, preclude a governmental body from
rescheduling a meeting or changing its location. That surely cannot have been
the legislature‟s intent. We therefore conclude the district court did not err in
determining the school district and its board satisfied the notice requirements set
forth in section 21.4. This brings us to the defendants‟ claim on cross-appeal:
whether the district court abused its discretion in denying their motion for
sanctions.
13
B. Sanctions.
The defendants sought imposition of sanctions against Hummel and her
attorney pursuant to Iowa Rule of Civil Procedure 1.413(1) and Iowa Code
section 619.19, arguing the open meetings law claims against them were “not
well grounded in fact or law, and . . . were filed for an improper purpose—using
the judicial system as a political weapon.” In reviewing a district court‟s denial of
a motion for sanctions under rule 1.413(1) and section 619.19 for an abuse of
discretion, “[w]e are mindful the rule and statute directs the court to impose a
sanction when it finds a violation.” Mathias, 448 N.W.2d at 445. However, “[t]he
question presented to the district court under rule [1.413(1)] and section 619.19
is not whether a court shall impose sanctions when it finds a violation—it must;
instead, the question is how to determine whether there was a violation.” Id.
Rule 1.413(1) requires the signer of a petition to certify: “(1) that he has
read the petition, (2) that he has concluded after reasonable inquiry into the facts
and law that there is adequate support for the filing, and (3) that he is acting
without any improper motive.” Weigel v. Weigel, 467 N.W.2d 277, 280 (Iowa
1991) (emphasis added); accord Iowa Code § 619.19 (adopting similar
certification requirements for parties as well as attorneys). The reasonableness
of the inquiry necessarily turns on the facts available at the time of filing, and
whether the filing was based on a plausible view of the law. Weigel, 467 N.W.2d
at 280.
The test is an objective one of reasonableness under all relevant
circumstances, id. at 281, including those factors set forth in Mathias, 448
N.W.2d at 446.
14
In denying the defendants‟ motion for sanctions, the district court found as
follows:
In the objective sense of “frivolous,” the Court cannot say
Hummel‟s motion was frivolous in the present case, for her attorney
was able to present a rational argument based upon evidence and
existing law in support of her claims. Nor can the Court say that in
the subjective sense the claims were frivolous. Hummel‟s claims
were clear and concise. The court is unable to read into her claims
that Hummel‟s purpose was to harass or cause an unnecessary
delay in litigation. The Court finds that sanctions against Hummel
or her attorney would not be appropriate in this case.
We do not believe the court abused its discretion in so finding.5
As our foregoing discussion intimates, “whether a violation has occurred is
a matter for the court to determine, and this involves matters of judgment and
degree.” Mathias, 448 N.W.2d at 446 (citing O’Connell v. Champion Int’l Corp.,
812 F.2d 393, 395 (8th Cir. 1987)). The district court‟s determination that the
purpose of Hummel‟s lawsuit was not “to harass or cause an unnecessary delay
in litigation,” see Iowa R. Civ. P. 1.413(1), “rests upon and is informed by the
[d]istrict [c]ourt‟s intimate familiarity with the case, parties, and counsel, a
familiarity we cannot have.” O’Connell, 812 F.2d at 395. The district court is
thus “best situated to determine when a sanction is warranted to serve [the] goal
of specific and general deterrence.” Dull v. Iowa Dist. Court, 465 N.W.2d 296,
298 (Iowa Ct. App. 1990). “Such a determination deserves substantial deference
from a reviewing court.” O’Connell, 812 F.2d at 395. This is so because “[t]he
5
Hummel argues the defendants failed to preserve error on their claim that the district
court abused its discretion in denying their motion for sanctions because the “trial Court
did not make specific factual findings with regard to the motion for sanctions. Nor did the
Court specifically analyze the arguments raised by the School Board.” Our review of the
record reveals this argument is without merit as the preceding quote from the district
court‟s ruling demonstrates.
15
imposition of sanctions is a serious matter and should be approached with
circumspection.”
Id.; see also Dull, 465 N.W.2d at 298 (“Deference to the
determination of the courts on the front lines of litigation will enhance these
courts‟ ability to control the litigants before them.”). This attitude underlies the
court‟s denial of the defendants‟ motion for sanctions, and we agree with its
approach, see O’Connell, 812 F.2d at 395, especially in light of the fact that the
defendants‟ allegation that Hummel and her attorney harbored an improper
purpose in filing their petition rests on “factual conclusions, obviously rejected by
the district court . . . .” Dull, 465 N.W.2d at 298.
We thus cannot say the district court exercised its discretion on grounds or
for reasons clearly untenable or to an extent clearly unreasonable in finding that
Hummel and her attorney did not bring this lawsuit against the defendants for an
improper purpose. See Schettler, 509 N.W.2d at 464 (“„Unreasonable‟ in this
context means not based on substantial evidence.”). We therefore conclude the
court did not abuse its discretion in denying the defendants‟ motion for sanctions.
IV. Conclusion.
The district court correctly determined that the undisputed facts
established as a matter of law that the review committee did not have any policymaking duties. Therefore, its meetings were not subject to the open meetings
law in Iowa Code chapter 21. The district court also correctly determined that the
school district and its board satisfied the notice requirements set forth in that
statute. We therefore affirm the court‟s ruling entering summary judgment in
favor of the defendants. We also affirm the court‟s denial of the defendants‟
16
motion for sanctions.
The court did not abuse its discretion in determining
sanctions against Hummel and her attorney were not warranted in this case.
AFFIRMED ON BOTH APPEALS.
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