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Brainerd Daily Dispatch v. Dehen

March 22, 2005

BRAINERD DAILY DISPATCH, A DIVISION OF MORRIS COMMUNICATIONS COMPANY, LLC, APPELLANT,
v.
JIM DEHEN, ET AL., RESPONDENTS.



Crow Wing County District Court File No. C0-03-2317.

Considered and decided by Hudson, Presiding Judge; Minge, Judge; and Crippen, Judge.*fn1

SYLLABUS BY THE COURT

Closing a city council meeting pursuant to the attorney-client-privilege exception to the open-meeting law, Minn. Stat. § 13D.05, subd. 3 (2002), was proper when, after balancing the purposes of the attorney-client privilege against those of the open-meeting law, the need for absolute confidentiality justified closing the meeting.

The opinion of the court was delivered by: Hudson, Judge

Affirmed

OPINION

In 2003, the Brainerd City Council met in closed session pursuant to the attorney-client-privilege exception to the open-meeting law, Minn. Stat. § 13D.05, subd. 3(b) (2002), for a confidential consultation with legal counsel appointed by its insurer concerning a threatened legal action. The Brainerd Daily Dispatch sued for violation of the open-meeting law, and the district court granted summary judgment in favor of the city. Because the district court correctly held that the attorney-client-privilege exception applies, we affirm.

FACTS

The City of Brainerd holds an annual Fourth of July celebration that includes a parade. Brainerd Community Action (BCA), a private community-development organization that receives substantial sums from the city through a tax levy, administers the parade. In 2003, the BCA received a permit to organize the parade. The Brainerd Area Coalition for Peace (peace coalition) applied for permission to march in the parade, but BCA denied the request based on safety concerns.

On July 1, 2003, the city attorney contacted the city's insurer, the League of Minnesota Cities Insurance Trust, for advice as to whether the city would be covered if the peace coalition sued. The peace coalition then sent a July 2, 2003 letter to the city and BCA, claiming that the denial of permission to march in the parade violated its rights and informing them that if the decision was not reversed, the peace coalition would seriously consider legal action against them. According to a news report in the Brainerd Daily Dispatch on July 7, 2003, the peace coalition was considering legal action against the city and BCA and had been contacted by the Minnesota Civil Liberties Union (MCLU) concerning the case. BCA did not reverse its decision, and the peace coalition did not march in the parade.

According to a July 9, 2003 report in the Dispatch, the peace coalition accepted an offer from the MCLU to research the issue of whether a First Amendment violation occurred, although at that time the peace coalition had not decided whether to pursue legal action. In a letter dated July 10, 2003, the MCLU made a data-practices request to the city for documents relating to city ordinances, past parade permits, and other data. According to another report in the Dispatch on July 23, an MCLU panel recommended that the MCLU represent the peace coalition in a possible legal action against the city and BCA.

The city's insurer retained an attorney as special counsel to represent the city in the dispute. He appeared at an open session of the Brainerd City Council on July 25, 2003. He first explained that he recommended that the council meet with him in closed session so that he could consult with its members in a private, confidential setting. He discussed Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002), in which an open-meeting violation was found. He distinguished the case, explaining that he was not going to discuss a matter pending before the city council in the closed session, but instead would discuss the development of a defense strategy or reconciliation to address a threatened lawsuit that appeared imminent. He explained that addressing these issues in open session would have a significant negative impact on the city's ability to protect its rights. He assured the council and members of the public that the discussion would be limited to litigation strategy and that no other public business would be addressed.

The city council announced that it was going into closed session to discuss the matter with its attorney. A representative of the Dispatch objected, but the closed session was nonetheless held. The Dispatch sued the individual council members who attended the closed session, Jim Dehen, Anne Nelson Fisher, Mary Koep, Lucy Nesheim, and Gary Scheeler, and the city, claiming that the closed session violated the open-meeting law.*fn2 The ...


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