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THE MAYOR AND ALDERMEN OF THE CITY OF VICKSBURG AND THE CITY OF VICKSBURG PLANNING COMMISSION v. VICKSBURG PRINTING AND PUBLISHING CO.

JULY 20, 1983

THE MAYOR AND ALDERMEN OF THE CITY OF VICKSBURG AND THE CITY OF VICKSBURG PLANNING COMMISSION
v.
VICKSBURG PRINTING AND PUBLISHING CO.



BEFORE WALKER, P.J., DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT

We are here presented with our first opportunity to construe the Mississippi Open Meetings Law, Miss. Code Ann. 25-41-1 et seq. (Supp. 1982). That law, colloquially referred to as the" Sunshine Law ", became effective January 1, 1976.

On May 25, 1982, the Vicksburg Planning Commission (VPC) *fn1 met with two expert city planners to consider an extension of the corporate boundaries of the City of Vicksburg. Citing the fact that contemplated litigation was to be discussed, VPC called an executive session. All attorneys, members of the press and the public were excluded.

 The publisher of the Vicksburg Evening Post (" The Post "), Appellee here, claims that the executive session was held in violation of the Open Meetings Law. The Chancery Court agreed. The injunctive relief requested by the Post was granted.

 With little doubt, the Vicksburg Planning Commission is a" public body "within the meaning of the Open Meetings Law. The meeting of May 25, 1982, was clearly a covered meeting. We hold, however, that the meeting was in substance a strategy session with respect to prospective litigation. It was, therefore, within what has come to be known as the Litigation Exception to the Sunshine Law. The Planning Commission had lawful power to hold an executive session and exclude therefrom members of the press and the public. We reverse.

 II.

 A.

 The City of Vicksburg Planning Commission was created by the Mayor and Board of Aldermen in 1960 by the passage of Ordinance 60-2. The Ordinance provides that the VPC shall consist of not less than ten ordinary citizens serving in an advisory capacity without pay. Certain city officials, including the Board of Supervisors, Mayor and Aldermen, Chairman of the Board of Zoning Appeals, Court Commissioner, Chairman of the Vicksburg School Board, and members of the Housing Authority are appointed as ex-officio members.

 The VPC is charged to harmonize city planning. Its duties relevant to the present controversy include consideration of" extension of corporate boundaries of the city, as related to feasibility, service to be rendered and economic and physical factors ". The VPC acts in an advisory capacity only. It makes recommendations to the Mayor and Board of Aldermen, who in turn have authority to accept or reject those recommendations.

 In the spring of 1982 the City of Vicksburg was considering possible expansion through annexation of additional lands in Warren County. Representatives of the University of Mississippi Department of Urban and Regional Planning had been engaged to assist in determining areas for annexation. On May 25, 1982, a meeting of the VPC was called to discuss a preliminary draft of this study. Invited to attend the meeting were two professional city planners, each of whom had had substantial experience in consultation with cities in preparation for annexation. Each had provided expert witness testimony in prior annexation trials around the state. Each was a probable expert witness for the City of Vicksburg in the anticipated annexation litigation.

 As the meeting convened, there were present, in addition to a quorum of VPC, two reporters from The Post, the lawyer for The Post and the lawyer for the City. Soon after the meeting began, the Commission determined that it should go into a closed executive session. The Commission announced that it considered this a meeting for the purpose of discussing matters related to prospective litigation, thus coming within the Litigation Exception to the Public Meetings Law under Miss. Code Ann. 25-41-7 (4) (B). After protest, The Post's lawyer and reporters left.

 The meeting lasted for approximately two hours.

 The next day, May 26, 1982, The Post brought this action in the Chancery Court of Warren County, Mississippi. At an expedited hearing held shortly thereafter, the above facts and circumstances were related. Testimony also reflected that there was an organization known as the Warren County Property Owners Association which had publicly announced that it intended to oppose any extension of the Vicksburg city limits. This same group had opposed Vicksburg's annexation in 1976 which had resulted in litigation.

 In the trial court the City continued to insist that the meeting and all proceedings thereat were entitled to confidentiality protection under the law. Because it was necessary in order to enable him to consider the City's claim of the Litigation Exception, the Chancellor received a copy of the minutes of the meeting for in camera inspection. These minutes were not disclosed to The Post or its counsel. They have, however, been reviewed by

 this Court as a part of the proceedings on this appeal.

 Upon his review of the minutes the Chancellor found the various discussions among the members of the Commission devoted to matters such as police and fire protection, ad valorem taxes on real and personal property, the action in Chancery Court for annexation, health hazards, sewage plans, population growth, and recreational facilities. He noted that maps were displayed showing the areas proposed for annexation.

 At the conclusion of the hearing, the Chancellor held that the City of Vicksburg Planning Commission was indeed a" public body "within the meaning of the Open Meetings Law. He then issued an injunction directed to the City which provided in substantial part as follows:

 2. The City of Vicksburg Planning Commission is hereby permanently enjoined from holding any meetings in executive session such as the one held on May 25, 1982.

 3. Another open meeting of the City of Vicksburg Planning Commission is to be held within a reasonable time to discuss the matters mentioned in the opinion of this Court delivered from the bench on June 15, 1982, as well as any other items that may be inquired into by members of the Commission, and no report to the Mayor and Board of Aldermen or recommendations shall be made until a reasonable time after such open meeting has been held. The" Minutes, Planning Commission Meeting, 5-25-82 "which were submitted to the court for in camera inspection shall be made available to the public.

 4. The City of Vicksburg Planning Commission and the Board of Mayor and Aldermen may hold future meetings in executive session to discuss strategy or negotiating with respect to prospective litigation according to Section 25-41-5, 4-B, but the prospect for litigation must be imminent and under circumstances necessitating the presence of the attorneys for the Commission or Board ...


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