Poll v. South Weber City

Poll v. South Weber City

IN THE UTAH COURT OF APPEALS
 

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Brent Poll,

Petitioner and Appellant,

v.

South Weber City,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040888-CA
 

F I L E D
(May 19, 2005)
 

2005 UT App 220

 

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Second District, Layton Department, 040600206

The Honorable Thomas L. Kay

Attorneys: Brent Poll, South Weber, Appellant Pro Se

Stephen F. Noel, Ogden, for Appellee

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

    Brent Poll appeals the ruling and order of the district court granting South Weber City's (City) motion for summary judgment. We affirm.

    Poll filed an action against the City under the Utah Open and Public Meetings Act (the Act). See Utah Code Ann. § 52-4-1, et seq. Poll argued that a closed meeting held by the City Council on October 23, 2003, and another closed meeting held by the City Planning Commission on January 22, 2004, each violated the Act. The City argued that these meetings were closed to discuss the purchase of real property and pending or imminent litigation, subjects excluded from the openness requirement under the Act. The district court reviewed the closed meeting minutes in camera and concluded that the meetings constituted strategy sessions and therefore did not violate the Act. The court dismissed the action pursuant to Utah Code section 52-4-10(2)(a). See Utah Code Ann. § 52-4-10(2)(a) (2002) ("If the judge determines that the public body did not violate the law governing closed meetings, the judge shall dismiss the case . . . .").

    Poll appeals with regard to the January 22, 2004 meeting. To the extent Poll's appellate brief raises issues that were not raised below, we shall not address these issues. See Carrier v. Salt Lake County, 2004 UT 98,¶43, 104 P.3d 1208 (holding that "as a general rule we decline to address issues raised for the first time on appeal"). Poll argues that the district court erred when it ruled that the City did not violate the Act when it closed the January 22 meeting due to discussion regarding pending litigation.

    Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c); see also Kearns-Tribune Corp. v. Salt Lake County Comm'n, 2001 UT 55,¶7, 28 P.3d 686. We give a trial court's decision to grant summary judgment no deference and review it for correctness. See Kearns-Tribune Corp., 2001 UT 55 at ¶7.

    Section 52-4-3 of the Act states, "Every meeting is open to the public unless closed pursuant to Sections 52-4-4 and 52-4-5." Utah Code Ann. § 52-4-3 (2002). "No closed meeting is allowed except as to matters exempted under Section 52-4-5 . . . ." Id. § 52-4-4 (2002). Pursuant to section 52-4-5, a meeting may be closed to the public if it involves certain "strategy sessions." Id. § 52-4-5(1)(a) (2002). The statutory provision in question permits an otherwise public meeting to be closed by a public body for "strategy sessions to discuss pending or reasonably imminent litigation." Id. § 52-4-5(1)(a)(iii).

    In order for the City to close the January 22 meeting without violating the Act, the closed portion of the meeting "(1) must have been a strategy session, (2) the strategy session must have been with respect to litigation, and (3) the litigation must have been pending or reasonably imminent." Kearns-Tribune Corp., 2001 UT 55 at ¶16.

    The district court concluded that "the meetings in question were 'strategy sessions' closed to the public in order to effectuate the discussion of pending or reasonably imminent litigation." We agree with this analysis as it relates to the January 22 meeting. The minutes reveal that the closed portion of this meeting was a strategy session. "In generally accepted terms, to strategize means to devise plans or means to achieve an end." Kearns-Tribune Corp., 2001 UT 55 at ¶18. During the closed portion of the January 22 meeting, counsel for the City explained the history, status, and circumstances surrounding Poll's lawsuit; described possible outcomes with regard to the lawsuit; and suggested the actions which the Planning Commission should take in light of the lawsuit. The minutes also contain the Planning Commission's plans in light of the lawsuit. This is sufficient to constitute a strategy session under Utah Code section 52-4-5(1)(a). See Kearns-Tribune Corp., 2001 UT 55 at ¶18 (holding that closed session during which the county commission was informed of the background of pending litigation, given a recommended course of action, and decided upon a course of action constituted a "strategy session").

    In regard to the remaining elements required under Kearns-Tribune Corp., there is no dispute that Poll had already filed a civil action against the City. Thus, litigation was "pending or reasonably imminent." Id. at ¶16. Finally, it is clear that the focus of the strategy session was "with respect to" such litigation. Id. Poll himself concedes that "litigation may have been discussed in some general way in the closed [January 22,] 2004 session." Therefore, each element set forth in Kearns-Tribune Corp. is met in this case. See id.

    Accordingly, the City did not violate the Act when it closed the January 22 meeting to the public. Therefore, the district court correctly granted the City's motion for summary judgment and properly dismissed Poll's action.

    The ruling and order of the district court is affirmed.

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James Z. Davis, Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge