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DTH Publishing Corp. v. University of North Carolina at Chapel Hill

February 17, 1998

DTH PUBLISHING CORPORATION, D/B/A THE DAILY TAR HEEL, PLAINTIFF
v.
THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL AND THE UNC-CH UNDERGRADUATE COURT, DEFENDANTS



Appeal by defendants and by plaintiff from judgment entered 12 December 1996 by Judge F. Gordon Battle in Orange County Superior Court. Heard in the Court of Appeals 23 October 1997.

The opinion of the court was delivered by: McGEE, Judge.

This appeal raises the issue of whether a University of North Carolina at Chapel Hill (UNC-CH) Undergraduate Court may hold student disciplinary proceedings in closed session. The parties have stipulated to the facts which are summarized as follows. On or about 13 February 1996, approximately 1500 copies of the Carolina Review, a UNC-CH student magazine, were removed from the racks used for distribution of the magazine. On 16 April 1996, the Undergraduate Court commenced disciplinary proceedings against two students regarding this incident. The editor of The Daily Tar Heel, a daily newspaper which serves the UNC-CH community, attempted to attend the Undergraduate Court proceedings but was informed by a UNC-CH Judicial Programs Officer that Undergraduate Court hearings were required to be closed. On 17 April 1996 DTH Publishing Corporation (DTH), d/b/a The Daily Tar Heel, obtained an ex parte temporary restraining order in Orange County Superior Court from Judge Jack A. Thompson, and a hearing was set to determine whether the restraining order should remain in effect. Following the 18 April 1996 hearing, Judge Thompson, in an order entered 19 April 1996, refused to continue the temporary restraining order.

On 18 April 1996, DTH filed this action seeking injunctive relief and alleging, inter alia, that: (1) defendants violated N.C. Gen. Stat. § 143-318.9 et. seq. (the Open Meetings Law) by refusing to permit public access to Undergraduate Court proceedings; (2) recordings of the Undergraduate Court proceedings were public records under N.C. Gen. Stat. § 132-1 and must be available for public inspection and copying; (3) defendants violated Article I, § 18 of the North Carolina Constitution (open courts provision) by closing the Undergraduate Court proceedings to the public; and (4) UNC-CH's refusal to permit plaintiff access to the Undergraduate Court proceedings violated the First Amendment of the United States Constitution. Defendants admitted they had denied plaintiff access to the Undergraduate Court proceedings but denied that plaintiff was entitled to the relief sought. The matter was heard without a jury upon stipulated facts at the 2 December 1996 Civil Session of Orange County Superior Court, Judge F. Gordon Battle presiding. On 12 December 1996, the trial court entered judgment in which it adopted the stipulated facts and denied plaintiff the relief sought, ruling that: (1) the Undergraduate Court is a public body subject to the Open Meetings Law; (2) the Undergraduate Court has the right under N.C. Gen. Stat. § 143-318.11(a)(1) and 20 U.S.C. § 1232g to conduct hearings in closed session; (3) plaintiff has no right to inspect or copy recordings of closed sessions of the Undergraduate Court; (4) the Undergraduate Court is not a court subject to the open courts provision of the state constitution; and (5) plaintiff is not entitled to relief under the First Amendment. Both defendants and plaintiff appeal. Defendants' Appeal

Defendants argue that the trial court erred by ruling that the Undergraduate Court is a "public body" subject to the Open Meetings Law. We disagree. The Open Meetings Law provides in pertinent part:

(a) Except as provided in G.S. 143-318.11, G.S. 143-318.14A, G.S. 143-318.15, and G.S. 143-318.18, each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.

(b) As used in this Article, "public body" means any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, constituent institutions of The University of North Carolina, or other political subdivisions or public corporations in the State that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function.

N.C. Gen. Stat. § 143-318.10 (1996). Defendants contend the Undergraduate Court is not an "elected or appointed authority, board, commission, committee, council, or other body . . . of one or more . . . constituent institutions of the University of North Carolina" because the Undergraduate Court members are not directly appointed by the UNC-CH Board of Trustees. We hold that defendants' narrow construction of "public body" is unsupported by the statutory language.

The parties have stipulated to the organization of the Undergraduate Court as follows. The members of the Undergraduate Court are appointed by the Student Body President and confirmed by the Student Congress in accordance with policies adopted by the UNC-CH Chancellor pursuant to the authority delegated to the Chancellor by the UNC Board of Governors. The Chancellor has charged and authorized "the student courts, including the Undergraduate Court . . . with adjudication of allegations of violation of the Instrument of Student Judicial Governance, which incorporates the Code of Student Conduct." The student court members are certified as qualified to serve by the Undergraduate Court Chair and the Vice Chancellor for Student Affairs. All sanctions resulting from the Undergraduate Court's verdict are administered by the Vice Chancellor for Student Affairs whose authority on this matter has been delegated to the Judicial Programs Officer. A student who is found guilty may appeal to the University Hearings Board and may appeal further to the Chancellor if the student claims a violation of basic rights. An appeal from the Chancellor's decision can be taken to the UNC-CH Board of Trustees.

In 1994, the General Assembly amended the N.C.G.S. § 143-318.10 definition of "public body" adding the phrase "elected or appointed" and deleting previous requirements that the public body be established in certain enumerated ways. See 1994 N.C. Sess. Laws ch. 570, § 1; see also David M. Lawrence, 1994 Changes to the Open Meetings Law, Local Government Law Bulletin, September 1994, at 1. The current N.C.G.S. § 143-318.10 does not delineate who or what entity must do the appointing for a body to qualify as "appointed." Black's Law Dictionary defines the terms "appoint" and "appointment" as follows, in pertinent part: Appoint. To designate, choose, select, assign, ordain, prescribe, constitute, or nominate. To allot or set apart. To assign authority to a particular use, task, position, or office.

Term is used where exclusive power and authority is given to one person, officer, or body to name persons to hold certain offices.

Appointment. The designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust.

Office or public function. The selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. The term "appointment" is to be distinguished from "election."

Black's Law Dictionary 99 (6th ed. 1990). One of the distinguishing characteristics of these definitions is that the person or body doing the appointing must be one authorized to do so. Here, the parties' stipulations demonstrate that the Student Body President and the Student Congress derive their authority to appoint and confirm Undergraduate Court members from the Chancellor, who in turn derives his authority on this matter from the UNC-CH Board of Trustees. The Chancellor and the UNC-CH Board of Trustees derive their authority from the Board of Governors of the University of North Carolina (UNC) which, in turn, derives its authority from N.C. Gen. Stat. § 116-11(2) (1994) and Article IX, Section 8 of our North Carolina Constitution. Thus, the Undergraduate Court members are clearly appointed and confirmed by those who are authorized to do so under the laws of this State and pursuant to the policies and regulations of UNC-CH and UNC.

In addition, the stipulated facts demonstrate that the Undergraduate Court qualifies as a "public body" pursuant to the remaining N.C.G.S. § 143-318.10 requirements. Since the Undergraduate Court has a chairperson, vice chairs, at least thirty members, and hears evidence in the presence of four members led by the chair or a vice- chair, it clearly "is composed of two or more members" as required by N.C.G.S. § 143-318.10. The stipulated facts also demonstrate that the Undergraduate Court is authorized to exercise an administrative or advisory function pursuant to N.C.G.S. § 143-318.10 when it holds hearings, issues subpoenas, renders verdicts, and recommends sanctions pursuant to the power granted to it ...


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