Berry v. Peoples Broadcasting Corp.

547 N.E.2d 231, 17 Media L. Rep. (BNA) 1526, 1990 Ind. LEXIS 28, 1989 WL 145773
CourtIndiana Supreme Court
DecidedFebruary 23, 1990
Docket41S01-8911-CV-871
StatusPublished
Cited by5 cases

This text of 547 N.E.2d 231 (Berry v. Peoples Broadcasting Corp.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231, 17 Media L. Rep. (BNA) 1526, 1990 Ind. LEXIS 28, 1989 WL 145773 (Ind. 1990).

Opinions

[232]*232SHEPARD, Chief Justice.

This appeal presents two questions under the Open Door Law. First, may a government body ban the use of cameras and tape recorders at its public hearings under the Open Door Law? We hold it may not. Second, may a sheriffs merit board receive evidence in a formal disciplinary proceeding during an executive session under the Open Door Law? We hold it may not.

I. Stipulated Facts

The parties have stipulated to the facts underlying this dispute. In February 1986, Marion County Sheriffs Deputies Michael R. Berry and Rex E. Thompson fatally shot Yalenda Heithecker. The internal affairs division of the sheriffs department investigated the shooting and the firearms review board considered the facts and circumstances.

On March 7, 1986, the sheriff filed written charges against the deputies. The charges alleged a violation of section 228 of the sheriff department’s rules and regulations, which defines unsatisfactory performance of duties.

Disciplinary action by the sheriff is subject to a fair public hearing by the Marion County Sheriffs Merit Board under Ind. Code § 36-8-10-11.1 The board convened a public hearing on April 29, 1986, to receive evidence, deliberate on the charges against the deputies, and determine the propriety of sanctions. In accordance with Rule 505(B)(3) of the county sheriffs department rules and regulations, the board banned the use of any cameras or tape recorders inside the hearing room.2

Joseph T. Hallinan, a reporter for The Indianapolis Star, carried a small tape recorder into the hearing room. He used it to record the proceedings for approximately one hour while seated at a desk for members of the public. The tape recorder was discovered, and the merit board immediately recessed the hearing to discuss this violation of its rule. The board decided to remain in recess until it could seek legal counsel, and later the merit board announced that it would not reconvene the hearing on this matter until it received a judicial determination on the validity of Rule 505(B)(3).

II. Procedural History

Media representatives3 filed a complaint in the Marion Superior Court on May 19, 1986, seeking declaratory and injunctive relief against the Marion County Sheriffs Merit Board and Sheriff James L. Wells. Plaintiffs sought: (1) a declaration that Rule 505(B)(3) and its application by the merit board contravene the statute governing merit board hearings and the Indiana Open Door Law;4 (2) an order permanently enjoining defendants from prohibiting use of cameras and tape recorders at merit •board meetings and, (3) a judgment against defendants for reasonable attorneys’ fees under 42 U.S.C. §§ 1983, 1988 and the Open Door Law.

The sheriff’s deputies filed a motion to intervene as third-party plaintiffs. In doing so, they asserted that the “disciplinary hearing is governed by the Indiana Open Door Law and should be conducted in closed executive session.” The trial court permitted their intervention. The deputies’ complaint against the merit board asserted that “[wjhile the final action (i.e., vote and rendering of a final decision) must take [233]*233place at an open public meeting, it is clear that the legislature intended for the eviden-tiary and deliberations phases of the disciplinary hearing to be conducted in executive session in order to provide a fair hearing to the Deputies.” The deputies cited Ind.Code § 5-14-1.5-6(a) as authority for the proposition that a disciplinary hearing be conducted as an executive session.5

The case was venued to Johnson Circuit Court, where Judge Larry J. McKinney entered findings of fact and conclusions of law on January 8,1987. The court concluded that the Open Door Law nullified the ban on cameras and recorders contained in Rule 505(B)(3) and permanently enjoined enforcement of those portions of Rule 505(B)(3) during hearings conducted pursuant to Ind.Code § 36-8-10-11. It held that the merit board might meet in executive session when acting in its investigative capacity but that its actions -concerning the sheriffs proposed discipline of individual officers must be based upon evidence presented in a public hearing.

The deputies appealed, and the First District of the Court of Appeals held that the Open Door Law requires public disciplinary hearings and reasonable use of cameras and recorders. Berry v. Peoples Broadcasting Corp. (1987), Ind.App., 514 N.E.2d 1283, 1284.

The sheriff’s deputies ask us to grant transfer and reverse the decision of the trial court and Court of Appeals. They assert that the trial court’s order requiring the merit board to hold disciplinary hearings in public is erroneous, because the Open Door Law allows the Board to use executive sessions in disciplinary matters. Indianapolis Newspapers, Inc., and Joseph Hallinan oppose transfer, arguing that the trial court and Court of Appeals were correct.

III. Executive Session

The sheriff’s deputies argue that “if any part of the Open Door Law applies, the entire statute applies.” Brief for Appellants at 9. From that premise, the deputies proceed to assert that the trial court’s distinction between investigative functions and quasi-judicial functions is improper and contrary to law. Further, they claim that Ind.Code § 36-8-10-11, which governs county sheriff disciplinary hearings, and Ind.Code §§ 5-14-1.5-2(a)(1)6 and 5-14-1.-5-6, provisions of the Open Door Law, may be harmoniously construed. This argument is based on two grounds, that the Open Door Law is the more recent statute dealing with public agency hearing procedures in a detailed manner, and that the legislature did not amend Ind. Code § 36-8-10-11 to exclude it from the Open Door Law. Brief for Appellants at 9-10. Therefore, the deputies assert, the merit board may conduct an executive session for the evidentiary and deliberative phases of the hearing, and then take the final action in public.

The Indiana Open Door Law begins with the statutory mandate that “all meetings of the governing bodies of public agencies must be open,” Ind.Code § 5-14-1.5-3(a), but it also authorizes public bodies to conduct certain business in executive session. Ind.Code § 5-14-1.5-6(a).

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Related

Adkins v. City of Tell City
625 N.E.2d 1298 (Indiana Court of Appeals, 1993)
Berry v. Peoples Broadcasting Corp.
547 N.E.2d 231 (Indiana Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
547 N.E.2d 231, 17 Media L. Rep. (BNA) 1526, 1990 Ind. LEXIS 28, 1989 WL 145773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-peoples-broadcasting-corp-ind-1990.