For Mike Morgan, the unsuccessful lawsuit against Buncombe County that he and business partner Peter Dawes took to court last week was all about the First Amendment.
For William A. Blancato of Winston-Salem, the county’s lawyer, the issues were camera angles, free publicity and whether Dawes and Morgan have the right to direct county meetings a la Alfred Hitchcock.
For Superior Court Judge Robert D. Lewis — who dismissed the case — it all came down to whether the county had violated the N.C. Open Meetings Law.
And for onlookers, it was a chance to watch a grudge match pitting county officials against two persistent thorns in their sides play out in court.
Thou doth protest
Dawes and Morgan, doing business as Mountain Guardian News & Opinion, filed their lawsuit Oct. 26, three days after a highly charged county commissioners’ meeting.
At the Oct. 23 meeting, the board decided to stop televising public comment, prompting speaker after speaker to protest. Morgan was one of them, and he added that if the commissioners wouldn’t broadcast public comment, the monthly Mountain Guardian newspaper would (through a weekly cable-TV show, No Holds Barred).
Then Morgan and Dawes — with his video camera rolling — strode to the front of the meeting room. Board of Commissioners Chairman Nathan Ramsey informed the two men that videography isn’t allowed where they were standing and asked them to retreat to the back of the room, where WLOS and independent county watchdog Jerry Rice were already shooting video.
The men refused, and sheriff’s deputies escorted them out. Each was then charged with disorderly conduct, a misdemeanor.
In their lawsuit, Dawes and Morgan claimed they sought to photograph and video the meeting in an “unobtrusive manner” from a suitable vantage point at the front of the room.
In typically stilted legal language, the lawsuit went on to declare: “The plaintiffs thereafter peaceably sought to vindicate their said rights under the Open Meetings Law, whereupon the Board unnecessarily and maliciously caused them to be arrested and removed from the meeting chambers in retaliation for doing so.”
That denied them a “reasonable and meaningful” opportunity to photograph and record the proceedings, the lawsuit claimed. Consequently, they sought a judicial declaration that the board had violated the law, an injunction prohibiting any further violations, and payment of their attorney’s fees.
Apart from the substance of the case, however, the trial also offered a glimpse into the complexities of political loyalties. Morgan, a columnist and part owner of the Mountain Guardian, made an unsuccessful bid for county commissioner last year with four Republican running mates, including Ramsey — the only member of the quintet who won.
After Dawes and Morgan had filed their lawsuit, Ramsey said he’d tried to broker a settlement himself, but the deal fell apart.
“To settle a lawsuit, you’ve got to have people who want to settle a lawsuit,” Ramsey remarked in the hallway before the hearing began.
One demand was shot down at the very beginning of the two-day trial, which began Dec. 3.
Dawes and Morgan’s lawyer, Thomas D. Roberts of Asheville, declared that the county’s policy on camera access in meetings is “continually in evolution” and suggested that the judge would be responsible for setting standards for the commissioners’ meetings.
“In futuro?” asked Lewis.
“Yes, your honor,” replied Roberts.
“Not a chance,” the judge said. “Not from this court.”
The Open Meetings Law allows for injunctive relief, Roberts persisted later in the hearing.
Lewis said he doubted he would change his mind about giving the county commissioners instructions on how they should run their meetings in the future. If a problem comes up in a meeting, the plaintiffs can always go to court the next day, said the judge. But if the commissioners continually violated the Open Meetings Law, “That’s something else,” Lewis said.
The case boiled down to whether forcing members of the media to set up video cameras in the back of the commissioners’ chambers — rather than at the front of the room — violates the Open Meetings Law. But Roberts also tried to prove that county officials don’t consider his clients “real” members of the media.
Roberts called seven people to the witness stand: his two clients, Ramsey, WLOS reporter Amy Davis, County Manager Wanda Greene, Sheriff’s Deputy Jason Ratcliff and county resident Danny Roberts.
Dawes said he used to prop his camera on a table that was formerly provided for the media at the front of the room. The table was removed earlier this year, but he wasn’t allowed to use a tripod in its place. For a while, Dawes said he propped his camera on his shoulder. He was later told he had to move to the back of the room. The distance, he contended, makes it hard to get good quality audio or facial shots of speakers or the commissioners.
“You can’t do your job,” Dawes complained.
Later in the trial, Greene countered that tripods, not cameras, are the problem. Greene said she’s always allowed people to shoot video from the front row of the audience, noting that the county had at one time provided a table to make it easier for them.
At one meeting, Greene recalled, Dawes’ camera was blocking the view of the audience and commissioners Bill Stanley and Patsy Keever. That’s when Dawes was asked to move the tripod to the back of the room, Greene said.
In earlier testimony, Ramsey had said it was his understanding that shooting video on a tripod from an alcove at the front of the commissioners’ chambers could block a fire exit when the room is full. (Greene, however, testified later that a county camera had been set up in the alcove for years.) The exit from the alcove leads to another office, which opens onto the hallway.
Roberts asked Dawes whether being forced to move his camera had impaired his ability to earn a living. But the judge interrupted, noting that he didn’t know of any requirement that the county help Dawes earn a living.
During cross-examination, Blancato asked to look at Dawes’ camera (which he had with him), suggesting that he could get better results if he had better equipment.
Blancato then asked whether Dawes was aware that he could check out the meeting tapes provided by the county at a public library the next day.
“They’re county-controlled and county-edited,” shot back Dawes. “They’re government tapes for rent.”
Blancato also noted that the current lawsuit was the fourth legal action Dawes had filed against county officials in the past three years. The first one, which resulted in a county policy change, concerned access to public records. The second suit claimed that Dawes’ news-gathering efforts were being obstructed; that one was voluntarily dismissed. Dawes also filed a criminal-assault charge against Greene, claiming she had pushed his camera away, injuring his eye. Greene was found not guilty.
When questioning Greene, Roberts asked if she’d ever voiced an opinion as to whether Dawes and Morgan were “real” members of the media.
“I think we treated them like the media,” she replied.
Roberts asked whether she’d granted interviews to his clients.
“That’s not exactly within the scope of the Open Meetings Law,” the judge noted.
Over Blancato’s objection, Roberts showed Greene a drawing of the meeting room with the seating rearranged to allow for cameras at the front. She said she didn’t think it could be done without losing audience seating, which she was reluctant to do.
Roberts questioned Ratcliff about an incident in which he’d told Mountain Xpress photographer Margaret Williams that she couldn’t take photos from a seat that wasn’t expressly reserved for still photographers.
“I guess I took that too literally,” said Ratcliff, noting that he’d been reprimanded by a supervisor over the incident.
Greene testified that the Xpress incident had stemmed from her miscommunication with the deputy about county policy.
Roberts tried unsuccessfully to get footage of that incident and another one involving an Asheville Citizen-Times photographer admitted as evidence.
During a break, Morgan said the trial had to do with First Amendment rights, adding, “We’re David against Goliath.”
After Roberts had wrapped up his evidence, Blancato asked the judge to dismiss the case, arguing that the county commissioners have the right to regulate the placement of cameras in the meeting room. The plaintiffs, he asserted, hadn’t presented evidence showing that they weren’t allowed to use their equipment as intended.
“The whole case is a bit of a pretext,” suggested Blancato, emphasizing that the Dawes and Morgan hadn’t filed the lawsuit until after the commissioners had decided not to continue televising public comment. The plaintiffs, said Blancato, “were no longer getting the free publicity that they craved.”
Roberts rebutted the timing argument by asserting that the camera policy was “confused and evolving” and wasn’t clearly understood by either Ramsey or Ratcliff.
But the judge said Roberts hadn’t proven that being required to shoot video from the back of the room violated his clients’ right to use their equipment — only that it prevented them from getting a frontal view of the speakers.
Accordingly, Lewis dismissed the case, saying he would consider whether to have the plaintiffs pay the county’s legal bill.
After the trial, Morgan charged that politics had played a role in the judge’s decision, declaring, “It was clear that the judge was under the pressure of the Democratic Party.”
Dawes, for his part, called the verdict “Buncombe-style politics.” Denying that he was really seeking publicity, he vowed to appeal the ruling.
Blancato, however, said he didn’t think the judge had been influenced by politics: “I don’t think that’s right. I think he was swayed by common sense.”
The attorney for the county added: “The judge made the right decision. They want to be Alfred Hitchcock in there and get the best shots. And that’s not what the statute says.”
Roberts, however, later reiterated his complaint that the policy is confusing, saying, “Essentially, Wanda Greene knows her policy and everyone else is left to guess.”
Ramsey sought to clear that point up at that evening’s Board of Commissioners meeting, several hours later.
“We are going to prepare a written policy that everyone can see, and there won’t be any surprises and it will be as we testified in court,” Ramsey vowed during a report by County Attorney Joe Connolly on the outcome of the trial.
But the vagaries of an oral policy persisted when Connolly went on to note that people can set up video cameras on tripods at the front of the meeting room — as long as they don’t block anyone’s view. That seemed to contradict the idea that cameras on tripods could be set up only in the back of the room.
Greene allowed that she was pleased about having won the lawsuit, saying the county would follow through on preparing a written policy.
“I think there’s been some confusion and it’s time to fix that, but I have to say nobody ever asked me, either,” Greene observed.
On Dec. 6, Lewis ruled that Dawes and Morgan had to pay the county’s $4,300 legal bill for the case. In Connolly’s view, that meant the judge thought the county had treated both the general public and the plaintiffs fairly.
N.C.’s Open Meetings Law
The state’s Open Meetings Law says, in part: “A public body may regulate the placement and use of equipment necessary for broadcasting, photographing, filming, or recording a meeting, so as to prevent undue interference with the meeting. However, the public body must allow such equipment to be placed within the meeting room in such a way as to permit its intended use, and the ordinary use of such equipment shall not be declared to constitute undue interference; provided, however, that if the public body, in good faith, should determine that the size of the meeting room is such that all the members of the public body, members of the public present, and the equipment and personnel necessary for broadcasting, photographing, filming, and tape-recording the meeting cannot be accommodated in the meeting room without unduly interfering with the meeting and an adequate alternative meeting room is not readily available, then the public body, acting in good faith and consistent with the purposes of this Article, may require the pooling of such equipment and the personnel operating it; and provided further, if the news media, in order to facilitate news coverage, request an alternate site for the meeting, and the public body grants the request, then the news media making such request shall pay any costs incurred by the public body in securing an alternate meeting site.”