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COMMON CAUSE OF MISSISSIPPI, ROBERTA MADDEN, RIMS BARBER, BARBARA POWELL, JOHN GUEST AND MISSISSIPPI PUBLISHER'S CORPORATION v. GEORGE SMITH

JULY 26, 1989

COMMON CAUSE OF MISSISSIPPI, ROBERTA MADDEN, RIMS BARBER, BARBARA POWELL, JOHN GUEST AND MISSISSIPPI PUBLISHER'S CORPORATION
v.
GEORGE SMITH, ROGER STEWART AND HERSHEL WILBOURN



BEFORE HAWKINS, P.J., ROBERTSON AND SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

On February 25, 1982, Common Cause of Mississippi, et al,

sued the Hinds County Board of Supervisors, and this suit resulted in the entry of a Consent Decree enjoining the Board from violating the Open Meetings Act, 25-41-1, et seq., Miss. Code Ann. (Supp. 1987). The Consent Decree outlined certain conduct and procedures to be followed by the Board, post hac. This decree was entered on May 10, 1982.

 On November 14, 1983, Common Cause petitioned the Hinds County Chancery Court to cite the Board of Supervisors for contempt of the Consent Decree, and Mississippi Publishers Corporation intervened as a party plaintiff.

 On August 18, 1986, the chancellor entered his Findings of Fact and Conclusions of Law which found the Board in contempt for violating the Consent Decree and/or the Open Meetings Act. The chancellor imposed definite jail terms and fines on the defendants, but suspended the imposition of that punishment unless and until "future violations are charged (and proven) . . ." The defendants were also sentenced to perform a designated amount of community service work. The chancellor then vacated the prior Consent Decree, and ultimately incorporated the August 18th Findings of Fact and Conclusions of Law into a final judgment which became the new benchmark by which the conduct of the Hinds County Board of Supervisors would be measured.

 The Hinds County Board of Supervisors held a meeting on Thursday, August 21, 1986, beginning at 9:30 a.m. All five supervisors were present at this meeting. At approximately 10:30 a.m., the Board went into executive session on a "personnel matter." Having opposed the motion to go into executive session, Supervisors Thompson and Bryan did not attend. Following the executive session, the meeting recessed and reconvened at 11:00 a.m. for a "budget hearing." The 11:00 a.m. hearing was attended by Supervisors Smith, Bryan and Thompson.

 During this meeting, the supervisors requested some budget figures from Pat Griffin, the City Comptroller. He stated that it would take a few days for him to gather the requested information. It was determined, therefore, that another meeting would need to be held on "Monday or possibly Tuesday." This announcement was made in the presence of at least one newspaper reporter, but a specific time, date and place was not immediately set. The 11:00 a.m. hearing was then recessed.

 Following recess of the 11:00 a.m. meeting on the 21st, Supervisors Bryan and Thompson departed while Board President Smith remained to confer with Comptroller Griffin.

 Smith and Griffin agreed, inter se, that the next meeting would be held at 1:30 p.m. on Monday, August 25, 1986. No other member of the public was present, and the later prepared minutes of the August 21st meeting to the contrary, no advance public notice of this August 25th meeting was given. Supervisors Wilbourn, Stewart and Thompson got notice of this meeting only after receiving phone calls from Comptroller Griffin on August 22nd or August 25th.

 The Budget Hearing convened on August 25, 1986, at 1:30 p.m., in the Board of Supervisors' Room, Chancery Court Building, Hinds County. The Board heard requests from the Jackson-Hinds Library System and the Jackson Chamber of Commerce. No member of the general public was present at this meeting, and the library system representative discovered the meeting only after telephoning the comptroller on the morning of August 25th. Several important county employees were also noticeably absent, among them Pete McGee, Chancery Clerk, Board Secretary Winnie Dilmore, Joe Moss, then County Attorney, and Diane Butler, the stenographer who usually takes the minutes.

 Two days later, on August 27, 1986, Common Cause, et al, filed its second Petition for Contempt, this time against Supervisors Smith, Stewart and Wilbourn because of their failure to properly notice and take minutes of the August 25th meeting. Supervisors Thompson and Bryan were not sued for violating the August 18th Order for the following reasons: (1) Supervisor Thompson refused to stay for the entire August 25th meeting because he felt it was "framed" ; (2) Mr. Bryan's only participation was to prevent a vote from being taken on an appropriation matter raised by Supervisor Stewart; (3) Supervisors Thompson and Bryan voted against approval of the minutes from the August 21st meeting; and (4) Supervisors Thompson and Bryan have continually evidenced their intent to comply with the Open Meetings Act.

 As previously alluded to, the minutes from the August 21, 1986, meeting were prepared well after the 21st, and incorrectly reflect that, before recess, it was decided that the next meeting would be held at "1:30 p.m. Monday, August 25, 1986." This recital was added ex post facto because the specific time and date was set by Supervisor Smith and Comptroller Griffin, inter se, after everyone had left the August 21st meeting. In fact, the August 21st minutes were not prepared until after the August 25th meeting, and were not presented for Board approval until a September 2nd, 1986, meeting.

 In their Petition for Contempt against Smith, Stewart and Wilbourn, Common Cause requested, inter alia, that the

 chancellor vacate the suspension of the previously imposed jail terms and fines.

 The merits of Common Cause's second Petition for Contempt were heard on September 5, 1986. At the outset, the Chancellor entered a Final Judgment on the prior contempt action, nunc pro tunc, as of August 18, 1986. This Final Judgment incorporated by reference the Findings of Fact and Conclusions of Law entered on August 18, 1986. At the close of the plaintiffs' case-in-chief, the defendants moved for an involuntary dismissal pursuant to Rule 41, Miss. R. Civ. P. The chancellor promptly granted the aforementioned ...


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