Posted by: Patricia Salkin | August 17, 2013

TN Appeals Court Finds County’s Notice was Adequate Under Open Meetings Law

The Islamic Center of Murfreesboro (“ICM”) submitted a site plan to the Rutherford County Planning Department to construct a mosque in Rutherford County (“County”), Tennessee.  After a planning commission meeting on May 24, 2010, the ICM site plan was approved.  The notice for said meeting was published on May 2, 2010 in the Murfreesboro Post and on the Murfreesboro Post website.  Only the date, time, and location of the meeting were published, without reference to the content of the meeting.  In September of 2010, a group of county residents filed suit against the Rutherford County Regional Planning Commission and other county entities and officials, alleging violations of Tennessee’s Open Meetings Act (“OMA”) and other state laws.  Defendants filed a motion to dismiss all claims not under the OMA for lack of standing, which the trial court granted.  The court subsequently allowed Murfreesboro Post Publishing, LLC (“MPP”) to intervene, who requested a declaratory judgment that the Murfreesboro Post was an appropriate location for the publication of notices in a newspaper.

The trial court found that the notice given on May 2, 2010, for the planning commission meeting to be held on May 24, 2010, was insufficient and failed to comply with the OMA.  The court denied MPP’s request for declaratory judgment, finding that there was no issue of controversy.  In July of 2012, the federal government filed suit against the County in federal district court, claiming that the trial court order violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).  When the federal court ordered the County to proceed with the mosque construction, the trial court stayed all of its previous orders indefinitely.  The mosque was subsequently completed.

The first issue addressed by the court was the mootness of the appeal, an issue not raised by any of the parties.  The court explained the general rule that “a suit brought to enjoin a particular act becomes moot once the act sought to be enjoined take place.”  Exceptions exist, however, for “issues of great public interest and importance to the administration of justice.”  The court found that since the mosque was already built and operating, the relief sought by the plaintiffs (“to stop the construction of the mosque”) was no longer available—that is, the act to be enjoined had already taken place.  Still, the present case fell into the exception because the court determined the issues here to be of “great public interest.”  As for the constitutional issues raised, the court declined to address these because they were not “absolutely necessary for determination of the case and the rights of the parties.”

The main issue on appeal was whether the County provided proper notice for the planning commission meeting in compliance with the OMA.  The trial court determined that the notice provided by the County in the Murfreesboro Post and its website was inadequate.  It held that an issue of such public importance should have been published in a more obvious manner.  Additionally, the court determined that the specific issues to be discussed at the meeting should have been made available.

The OMA provides that a governmental body is required to give “adequate public notice of” its meetings. The statute does not require publication of the issues to be discussed at its meetings, only “notice of” the meetings themselves.  Tennessee case law elaborates that “adequate public notice” is that which is sufficient to “fairly inform the public” in the “totality of the circumstances.”  The appellate court here concluded that the notice provided by the County was indeed adequate.  The appellate court rejected the trial court’s reasoning that “issues of public importance require notice of meeting content.”  As the plain language of the statute does not address publication of the meeting content, the County was not in violation of the OMA when it listed only the time and location of the meeting.  The trial court also determined that the use of the Murfreesboro Post as a medium for notice was inadequate.  The trial court listed several problems such as the lack of circulation and distribution of the Murfreesboro Post among the residents of the County and the small font size of the notice.  In its review, the appellate court cited to a Tennessee case that listed the following criteria for a publication that qualifies as a newspaper: “(1) it is published at regular intervals (such as daily or weekly); (2) it is ‘intended for circulation among the general public’; (3) it ‘contains matters of general interest’; and (4) it is ‘in the form of a newspaper.’”  Here, the appellate court determined that the Murfreesboro Post satisfied each of these criteria and was thus a sufficient medium for publication of notice.

Both the County and the plaintiffs raised issues regarding RLUIPA, which the court declined to address on appeal.  Since it had already determined that the notice provided was adequate, the court did not need to discuss whether the trial court’s order invalidating the notice was a violation of RLUIPA or of any other laws.

The plaintiffs also claimed that the trial court should not have excluded the testimony of two expert witnesses they intended to call at trial.  The experts were to testify regarding the “Sharia-Jihad risks of the ICM,” which the plaintiffs felt was relevant to the adequate notice issue.  The trial court found, and the appellate court agreed, that the expert witness testimony was irrelevant to the adequate notice issue.  The appellate court found no abuse of the trial court’s discretion regarding the expert witnesses.

The final issue on appeal was whether the trial court should have granted MPP’s request for declaratory judgment that the Murfreesboro Post was a “newspaper of general circulation for publication of official notices.”  In its decision, the trial court explained that declaratory judgment should not be granted “when such judgment would not terminate a controversy or uncertainty giving rise to a proceeding.”  It reasoned that here, the issue raised by MPP was not in direct controversy.  As such, the court was unable to rule on the issue.  The appellate court found no abuse of discretion in this reasoning and affirmed the trial court’s decision in this respect.

Fisher v. Rutherford County Regional Planning Commission et al., 2013 WL 2382300 (Tenn. Ct. App. 5/29/2013)

The opinion can be accessed at: http://tncourts.gov/sites/default/files/fisherk_opn.pdf


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