Cheyenne Newspapers, Inc. v. Building Code Board of Appeals

VOIGT, Chief Justice.

[11] Cheyenne Newspapers, Inc. (the Newspaper), appeals from a summary judgment granted by the district court in favor of the Building Code Board of Appeals of the City of Cheyenne (the Board), declaring that certain Board action did not violate the Wyoming Public Meetings Act, and that such action, therefore, was not null and void. We affirm in part and reverse in part.

ISSUES

[12] 1. Are quasi-judicial deliberations following a contested case hearing under the Wyoming Administrative Procedures Act (WAPA) subject to the Wyoming Public Meetings Act (the Act)?

2. Did the Board take any action that must be considered null and void when it met in private to deliberate on a contested case hearing and then voted on its decision in a public meeting?

FACTS

[13] The Board was created by an ordinance of the City of Cheyenne, a municipality duly incorporated by the State of Wyoming. Board procedures are governed by rules pro*161mulgated in 1997. In 2008, the City of Cheyenne's Historic Preservation Board denied permits to demolish six houses in an historic district. The homeowners appealed to the Board. The Board conducted a public contested case hearing on June 27, 2008, during which hearing the parties were represented by counsel, witnesses were heard, and exhibits presented. At the close of the hearing, the Board retired to deliberate in private. These private deliberations, which the Board characterized as "quasi-judicial" rather than "executive session," extended into a meeting on July 2, 2008. The Board then convened a public meeting on July 14, 2008, during which it discussed its prior deliberations and then voted to adopt a draft decision affirming the denial of the demolition permits.

[T4] On July 8, 2008, the Newspaper filed in the district court a Petition for Injunction, seeking an order prohibiting the Board from entering a decision prior to deliberating in a public meeting. Because the Board issued its decision before the Newspaper's petition was heard, the Newspaper on July 16, 2008 filed an Amended Complaint, seeking instead an order declaring the Board's action to be "null and void as not in conformance with the Wyoming [Public] Meetings Act."

[T5] Both parties filed in the district court motions for summary judgment, which motions were heard upon their additional filing of a Joint Statement of Undisputed Facts. The district court determined that the Newspaper had standing to pursue the action, that the Act did not apply to quasi-judicial deliberations after a contested case hearing pursuant to the WAPA, and that the Board's action was, therefore, not null and void. Summary judgment was granted to the Board, which led to the instant appeal.

DISCUSSION

[16] Before we discuss the substantive issues in the case, we must very briefly address the jurisdictional standing issue mentioned by the Newspaper, although not challenged by the Board. We will note simply that we are satisfied that the Newspaper has standing to seek a declaration from the courts that the public, and the media as the public's representative, have standing under our precedent to determine the applicability of the Act under these cireumstances. See Jolley v. State Loan & Inv. Bd., 2002 WY 7, ¶¶ 6-10, 38 P.3d 1073, 1076-79 (Wyo.2002); Mgmt. Council of the Wyo. Legislature v. Geringer, 953 P.2d 839, 841-42 (Wyo.1998); Washakie County Sch. Dist. No. One v. Herschler, 606 P.2d 310, 316-18 (Wyo.1980). In particular, Sheridan Newspapers, Inc. v. City of Sheridan, 660 P.2d 785, 791-95 (Wyo. 1983), recognizes that the public has the right to know what its government is doing, and that members of the "press are the eyes and ears of the people." Id. at 791.

[T7] Although it is not affirmatively identified as such, the Newspaper's Amended Complaint is of the nature of a declaratory judgment action brought pursuant to Wyo. Stat. Ann. § 1-87-103 (LexisNexis 2009), which reads as follows:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.

[18] We have held that summary judgment may be an appropriate resolution of a declaratory judgment action. Coffinberry v. Bd. of County Comm'rs of County of Hot Springs, 2008 WY 110, ¶ 8, 192 P.3d 978, 979 (Wyo.2008). Our standard for reviewing a summary judgment granted in a declaratory judgment action is as follows:

We review a grant of summary judgment entered in response to a petition for declaratory judgment de novo. Wyo. Cmty. Coll. Comm'n v. Casper Cmty. Coll. Dist., 2001 WY 86, ¶ 11, 31 P.3d 1242, 1247 (Wyo.2001). "We accord no deference to the district court on issues of law and may affirm the summary judgment on any legal grounds appearing in the record." Id. "The summary judgment can be sustained only when no genuine issues of material fact are present and the moving party is *162entitled to judgment as a matter of law." Id.

Voss v. Goodman, 2009 WY 40, ¶ 9, 203 P.3d 415, 419 (Wyo.2009).

[19] The question presented to the Court is one of statutory construction. The rules for that process are well established:

In interpreting statutes, our primary consideration is to determine the legislature's intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in part materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation.
Moreover, we will not enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions.
Only if we determine the language of a statute is ambiguous will we proceed to the next step, which involves applying general principles of statutory construction to the language of the statute in order to construe any ambiguous language to accurately reflect the intent of the legislature. If this Court determines that the language of the statute is not ambiguous, there is no room for further construction. We will apply the language of the statute using its ordinary and obvious meaning.

BP Am. Prod. Co. v. Dep't of Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo.2005) (internal citations and quotations omitted). We must accept statutes as they are written; neither omitting words that are included, nor including words that are omitted. Id.; Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo.2005); Fontaine v. Bd. of County Comm'rs of Park County, 4 P.3d 890, 895 (Wyo.2000); In re Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976).

[T10] Whether a statute is ambiguous is a question of law for the Court's determination. Dep't of Revenue & Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo. 1994). A statute is unambiguous if reasonable persons are able to agree as to its meaning with consistency and predictability, while a statute is ambiguous if it is vague or uncertain and subject to varying interpretations. Id. (internal citations and quotation marks omitted).

[T11] The instant case focuses upon the language of Wyo. Stat. Ann. § 16-4-408(a) (LexisNexis 2009), which reads as follows:

(a) All meetings of the governing body of an agency are public meetings, open to the public at all times, except as otherwise provided. No action of a governing body of an agency shall be taken exeept during a public meeting following notice of the meeting in accordance with this act. Action taken at a meeting not in conformity with this act is null and void and not merely voidable.

The following definitions found in Wyo. Stat. Ann. § 16-4-402(a) (LexisNexis 2009) are relevant to the issues presented:

(a) As used in this act:
(1) "Action" means the transaction of official business of an agency including a collective decision of a governing body, a collective commitment or promise by a governing body to make a positive or negative decision, or an actual vote by a governing body upon a motion, proposal, resolution, regulation, rule, order or ordinance;
(ii) "Agency" means any authority, bureau, board, commission, committee, or su-bageney of the state, a county, a municipality or other political subdivision which is created by or pursuant to the Wyoming constitution, statute or ordinance, other than the state legislature and the judiciary;
*163(ii) "Meeting" means an assembly of at least a quorum of the governing body of an agency which has been called by proper authority of the ageney for the purpose of discussion, deliberation, presentation of information or taking action regarding public business[.]

[112] The nature of the administrative proceedings in this case leads us to single out one other statute that must be addressed. Wyo. Stat. Ann. § 16-8-110 (LexisNexis 2009), which is part of the WAPA, reads as follows:

A final decision or order adverse to a party in a contested case shall be in writing or dictated into the record. The final decision shall include findings of fact and conclusions of law separately stated. Findings of fact if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Parties shall be notified either personally or by mail of any decision or order. A copy of the decision and order shall be delivered or mailed forthwith to each party or to his attorney of record.

[T13] The answer to the first question-whether the quasi-judicial deliberations following a contested case hearing under the WAPA are subject to the Act-can readily be answered by application of the rules of statutory construction to the Act. The starting point, of course, is the mandate in Wyo. Stat. Aun. § 16-4-408(a) that "[all meetings of the governing body of an ageney are public meetings. ..." First, it is logical to ask whether the Board is an "agency" under Wyo. Stat, Ann. § 16-4-402(a)(i) because, if it is not, the Act does not apply. We would be hard-pressed to find any ambiguity in that statutory subsection, and equally hard-pressed to say that the Board is not an "agency" under the definition. The Board is a "board" created by an ordinance of the City of Cheyenne, which is a municipality. Next, we should ask whether a "meeting," as defined in Wyo. Stat. Ann. § 16-4-402(a)(ii), took place. Once again, the statute is clear, and there is no factual dispute; the Board met to discuss and deliberate the appeal from the action of the City's Historic Preservation Board. Surely, no one could argue that such was not "public business," and there has been no suggestion that fewer than a quorum of the members was present.

[114] The Board attempts to "hang its hat," at least in part, on the contention that it is not a "governing body" under the Act. Noting that the phrase "governing body" is not defined in the Act, it points out that, under Wyo. Stat. Ann. § 15-1-101(a)(vi) (LexisNexis 2009), "governing body" is defined as "the council or commission constituting the elected legislative body of any city or town including the mayor who is the presiding officer." The Board also directs the Court to Wyo. Stat. Ann. § 35-10-201(b) (LexisNexis 2009), where "governing body" is defined as the city council or the board of county commissioners. We find these statutory references to be unhelpful, at best, and misleading, at worst. Wyo. Stat. Ann. § 15 1-101(a)(vi) defines the phrase solely for the purposes of Title 15, which contains the statutory authority for cities and towns in Wyoming. Wyo. Stat. Ann. § 35-10-201(b) defines the phrase solely for the purposes of Article 2 of Title 85, which provides for the regulation of fireworks.1

[T15] Generally speaking, a "governing body" is the "group ... having ultimate control." Black's Law Dictionary 764 (9th ed. 2009). In the instant case, the group having ultimate control over the Board's decisions is the Board. It is not the city council. Furthermore, to define "governing body" in Wyo. Stat. Ann. § to limit it to the city council in all matters municipal would render the definition of "agency" in subsection (ii) of that statute less than meaningless; it would make it nonsensical. Simply put, if the legislature had intended to limit application of the Act to city councils and boards of county commissioners, it would *164have said so. Instead, it unambiguously included all of the entities listed in the definition of "agency." 2

[116] So far, then, we have concluded that the Board is subject to the Act. The next question is whether quasi-judicial deliberations after a WAPA contested case hearing may be closed to the public. The answer is "no." Wyo. Stat. Ann. § 16-4-403(a) mandates that all meetings of the governing body of an agency are public meetings, "except as otherwise provided." Under the Act, the only provision for closed meetings is for executive sessions as described in Wyo. Stat, Ann. § 16-4-405 (LexisNexis 2009), which does not include quasi-judicial deliberations after a WAPA contested case hearing. In fact, the legislature in 1995 amended the definition of "meeting" to include "discussion, deliberation, presentation of information." Act of July 1, 1995, ch. 110, see. 1, § 16-402(a)(iii), 1995 Wyo. Laws 207, 2083 The Act now clearly intends that an agency's deliberations occur during a public meeting.4

[117] Finally, we will state our perception that Wyo. Stat. Ann. § 16-3-110, set forth above, does not change this conclusion (see supra 112). Wyo. Stat. Ann. § 16-3-110, which is part of the WAPA, provides for notification of parties and their attorneys, either personally or by mail, of the decision or order of an agency after a contested case hearing. Similar provisions have been interpreted as indicating that the decision need rot have been reached in a public meeting. See Stillwater Sav. & Loan Ass'n v. Oklahoma Sav. & Loan Bd., 534 P.2d 9, 11 (Okla. 1975). We do not believe that such a notice requirement serves to defeat the specific requirements of the Act. First, there may be many reasons to require proof of notice of a contested case decision. Second, Wyo. Stat. Ann. § 16-4-407 (LexisNexis 2009) provides that, in the event of statutory conflicts, the provisions of the Act control.

[118] The conclusion that the quasi-judicial deliberations of an agency after a contested case hearing pursuant to the WAPA are not exempt from the Act does not answer the second question presented to the Court, which is whether some action was taken by the Board that the Court must declare to be null and void. In that regard, we find the facts of this case to be much like those in Mayland v. Flitner, 2001 WY 69, 28 P.3d 838 (Wyo.2001). In Mayland, a board of county commissioners entered into executive session in violation of the Act, but took no action during that meeting that this Court found should be considered void. Id. at 1 31, 28 P.3d at 849. Instead, as in this case, the commissioners took action only later at an appropriately called public meeting. In other words, although the first sentence of Wyo. Stat. Ann. § 16-4-408(a) was violated when the private meeting took place, the second sentence was not violated because the agency's action took place at a public meeting. Thus, the third sentence, wherein the action is declared null and void, does not apply.

CONCLUSION

[T19] The Board violated Wyo. Stat. Ann. § 16-4-408(a) by deliberating at a closed meeting, but the ageney action took place at a public meeting, so that agency action is not null and void. We reverse the conclusion of the district court that the Act does not apply to quasi-judicial deliberations *165of an agency after a WAPA contested case hearing, but we affirm the conclusion of the district court that the Board took no action that must be declared null and void.

. The Board did not exhaust the list. For example, Wyo. Stat. Ann. § 16-3-101(b)(i) (LexisNexis 2009) exempts the governing body of a city or town from the definition of "agency" under the WAPA, and Wyo. Stat. Ann. § 37-13-103(a)(viii) (LexisNexis 2009) defines "governing body" to include boards of county commissioners, city councils, and the boards of trustees of improvement districts for the purposes of the Wyoming Underground Conversion of Utilities Law.

. That is what distinguishes this case from Decker v. Wyoming Medical Commission, 2008 WY 100, ¶¶ 17-19, 191 P.3d 105, 118-19 (Wyo.2008), wherein we determined that a panel created by the Medical Commission was neither an "agency" nor a "governing body" under the Act.

. This amendment may have been in response to Ward v. Goshen County School District No. 1, 865 P.2d 618, 621 (Wyo.1993), where we noted that the prior definition of "meeting" in the Act was limited to "an assembly of the governing body of an agency at which action is taken." (Emphasis added.)

. It is up to the legislature to decide the policy question of whether quasi-judicial deliberations are to take place at public meetings. Compare Kennedy v. Upper Milford Township Zoning Hearing Board, 575 Pa. 105, 834 A.2d 1104, 1118 n. 28 (2003) (quasi-judicial deliberations included as legitimate purpose for executive session) with Bryan County Board of Equalization v. Bryan County Board of Tax Assessors, 253 Ga.App. 831, 560 S.E.2d 719, 720 (2002) (board deliberations not included in statutory exclusions to open meetings act).