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Rick Curtis v. Utah State Child Support Guidelines Advisory Committee | Reply Memo

04 September 2012 Published in Litigation Materials

American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

Attorney for Plaintiffs



Case No. 020906936
Judge Leslie A. Lewis

RICK CURTIS; FOCUS an unincorporated association, Plaintiffs,



Plaintiffs respectfully submit this Reply Memorandum in support of their Motion for Temporary Restraining Order and Preliminary Injunction in this matter.


In its most basic form, this case is about statutory rules of construction, which require the Utah Open and Public Meetings Act ("the Act") to be read according to its plain meaning. However, something much larger is at stake in this case, namely the admirable goal for which the Act was adopted of ensuring that public bodies conduct their actions and deliberations openly and with accountability to the public. A key component of the law and of this case is that the Act expressly allows members of the public to record an open meeting in an effective and accurate way. The collection and sharing of this type of information have long been recognized as fundamental to our constitutional democracy. As James Madison wrote, "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." Letter to W. T. Barry, Aug. 4, 1822, in 9 Writings of James Madison 103 (G. Hunt ed.1910)).

The arguments of the Utah State Child Support Guidelines Advisory Committee ("the Committee") undermine this idea that a participatory democracy depends upon an informed and active citizenry. In their brief, Defendants argue that the Act should not be read according to its plain language, and they attempt to create their own version of the Utah Open and Public Meetings Act in which public bodies have unfettered discretion in implementing the statute. Defendants argue that the provision in the Act that allows any person to record a public meeting as long as the recording does not interfere with the conduct of the meeting, should be reworded to allow public bodies to choose what method a person may use to "record" a meeting. However, after a careful and tedious review of the Act, Plaintiffs cannot find any language that supports this revision.

After implementing this revised version of the Act, Defendants have chosen to exercise their alleged discretion by prohibiting Plaintiffs from videotaping meetings, but allowing them to use a less effective way to record a meeting, namely tape-recording. This arbitrary decision of the Committee is based upon members’ assumption that, unlike audio-taping, videotaping somehow changes the nature of a public meeting. Plaintiffs submit that this argument is without merit in today’s age of technology. Videotaping is a very common way to record public affairs and, in fact, one of the most accurate. Further, in contrast to what Defendants would like this Court to believe, several courts and numerous state Attorney General Opinions have upheld videotaping as a valid way to record public meetings.

Defendants also argue that if Plaintiffs choose not to tape record or take notes during the meetings, they can rely on the Committee’s official minutes and tape recordings to review public actions taken in the meetings. This argument does little to detract from the statutory right of the Plaintiffs to record the meetings in any non-disruptive fashion. Just because an official record is kept, or a less effective means of recording a meeting is available, does not mean that the Plaintiffs forfeit their right to record a meeting in their chosen, non-disruptive method.

In a last ditch attempt to justify the Committee’s arbitrary decision to prohibit videotaping, Defendants argue that Plaintiffs have actually disrupted the Committee meetings by videotaping. Plaintiffs submit that a close look at Defendants’ arguments will reveal that Plaintiffs’ actions did not disrupt the meetings. In fact, the only disruptions cited occurred when members of the Committee stopped their own meetings and attempted to enforce their illogical rule prohibiting Plaintiffs from video recording. Therefore, the Defendants’ arguments are without merit and should be rejected.


1. The plain meaning of Utah Code §52-4-7(4) does not grant unfettered discretion to the Committee to decide how a public meeting may be recorded.

The Utah Open and Public Meetings Act provides that "All or any part of an open meeting may be recorded by any person in attendance; provided, the recording does not interfere with the conduct of the meeting." Ut.Code Ann. §52-4-7(4). The Act does not define "record." Therefore, this Court must apply statutory rules of construction to determine whether the plain meaning of the word "record" includes videotaping.

When construing a statute, the Court’s primary obligation is to determine and give effect to the intent of the Legislature, State v. Bluff, 2002 WL 1587040 (Utah). The Legislature’s intent stated in the Utah Open and Public Meetings Act is unequivocal: The state, state agencies and political subdivisions exist "to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly." Ut. Code Ann. §52-4-1. Therefore, in interpreting §52-4-7(4) of the Act, the word "record" should be interpreted to allow members of the public to enforce their rights granted by the Legislature: All public meetings should be conducted in the sunshine. Videotaping necessarily advances the legislative intent of this Act.

Videotaping is not prohibited by the Act. In interpreting statutes, undefined words should be accorded their commonly approved usage, State v. Redd, 992 P.2d 986, 990 (Utah 1999). In §52-4-7, Minutes of Public Meetings, Public Records, Recording of Meetings, the Legislature chose carefully to narrow the word "record" several times.[1] However, in §52-4-7(4) the Legislature did not narrow the public’s right to record a meeting to a certain type of recording device. According to common statutory construction, when the Legislature specifically narrows a broad word such as "record" and then leaves the word in its general form in other statutory sections, the general word should be given its broadest and most commonly accepted meaning. The act of "recording" commonly includes videotaping, audiotaping, digital recording, photography and written notes. All of these forms of "recording" stem from the generally accepted definition of "record," and therefore, the Defendants’ attempt to remove one type of recording device from the Act’s plain language is without merit.

Further, the only limitation contained in §52-4-7(4) on the public’s right to record public meetings is that the act of recording does not disrupt the meeting. The statute simply does not contain any language allowing the Defendants to enact their own narrowed version of the word "record," justifying their broad prohibition on videotaping the meetings. When looking at the plain meaning of the Act, the Defendants have not shown, and likely cannot show, that a per se ban on videotaping is justified.

2. The Committee’s argument that videotaping changes the nature of the public meeting is without merit.

The Committee attempts to justify the per se prohibition on videotaping by arguing that videotaping changes the nature of public meetings, making some members of the Committee too uncomfortable to participate in the meetings, and therefore, causing interference with the meeting. In Maurice River Township Board of Education v. Maurice River Township Teachers Accociation, 455 A.2d 563 (N.J. Super. Ct. Ch. Div. 1982), this proposition was rejected. In Maurice, the Township Board of Education filed suit to restrain a teachers’ association from videotaping any meeting of the board. The Court found that the association had the right to videotape the proceedings of the board subject to certain restrictions imposed by the Court. The Court found that videotaping "has become a part of the very fabric of modern life. To foreclose its use where the democratic process is complete, as at a public meeting, would not only be unrealistic but irrational," at 571.

Further, in Belcher v. Mansi, 569 F. Supp 379 (R.I. Dist. Ct. 1983), the Court found that members of the public could tape record public meetings of the School Committee of the Town of Warren regardless of the Committee members’ argument that the tape recordings would inhibit their participation in public meetings.

If an individual is willing to stand up and talk in the sometime volatile setting of a thronged public meeting, at which members of the press are customarily present, that person has little to fear (and much to gain) from the presence of a tape recorder. In any event, the argument even it has some marginal value, will not be allowed to defeat the salutary ends which are served by allowing the Committee meetings to be taped, at least without convincing evidence to support the proposition.

At 383. This holding is even more compelling in the case at bar, where the right to record the meeting is statutory.

Further, the Supreme Court of the United States rejected the Defendants’ argument that the mere presence of a video camera changes the nature of the public meeting. In Chandler v. Florida, 449 U.S. 560 (1981), the Court held that the very presence of media cameras and recording devices at a trial does not inescapably give rise to an adverse psychological impact on the participants in the trial.[2]

3. The existence of an official record of the meetings does not trump the Plaintiffs’ right to record a meeting in a non-disruptive fashion.

The Committee posits that their prohibition on videotaping cannot cause irreparable harm to the Plaintiffs because the Committee will allow them to take notes of their meetings, tape record the meetings, or obtain copies of the official minutes or tape recordings made by the Committee. The Court in Belcher v. Mansi rejected the Defendants’ argument that participants’ notes and official minutes are an adequate alternative to taping:

By attending Committee meetings in person, individuals can hear and see for themselves the functioning and deliberations of their elected officials. But, while those in attendance may take notes of the discussion, or later refer to the official minutes, neither their notes nor the minutes will provide a complete record of the proceedings. Moreover, many persons who have an interest in the Committee’s doings may be unable to attend the meetings: a tape would provide them with an accurate and complete record of the proceedings.

569 F. Supp at 382. In this case, the Plaintiffs would like to videotape the Committee meetings rather than tape record because they want to be able to identify the correct speaker with the statements made in the meetings, allowing them to participate in government and send comments and or policy suggestions to the correct individual. Audio recordings simply do not provide enough clarity for the Plaintiffs to identify which Committee member made a particular statement.

The Belcher Court also rejected the Defendants’ proposition that the presence of official records of public meetings in some way detracts from the public’s right to record a meeting:

...in keeping an official record of the meeting by the Committee does not mean that unofficial records cannot and should not be kept. There is no evidence that informal records could or would be confused with official ones, and common sense argues strongly to the contrary. Moreover, the official records here in question-the Committee minutes-are summary in nature and do not, in any way, constitute a complete report of the proceedings. Thus, unofficial records may well be invaluable if the public is to taste the full flavor of the proceedings.

At 383. This holding is just as applicable in this case. The official minutes kept by the Committee are summary in nature in this case as well, and do not provide members of the public with an adequate record of what deliberations took place during the meetings.[3] See Exhibit 1 attached.

4. Plaintiffs did not disrupt the Committee meetings while videotaping.

Lastly, the Defendants state, "videotaping has caused prior problems and interfered with the conduct of the meetings." Opp. Memo at 7. However, the only evidence given by the Committee to support this tenuous position is the information contained in Mr. Stewart Ralphs’ Affidavit. In his Affidavit, Mr. Ralphs states that because of the Committee’s decision not to allow videotaping, they had to stop the Committee meetings several times to request that members of FOCUS turn off their cameras. Ralphs Aff. at ¶6-7. This may be the case, but it does not provide any evidence showing the act of videotaping itself interfered with the conduct of the meetings.

For instance, it is plausible to argue that an individual who is an inexperienced operator of a video camera could cause a disturbance to a public meeting while recording the meeting. His or her actions may cause Committee members to pause the meeting and ask that person to stop videotaping. However, a complete prohibition on all videotaping in the meetings is excessive and not justified by the facts in this case. The Committee has not shown that Mr. Curtis or members of FOCUS, while videotaping the meetings, have caused any interference at all with the meetings to justify such a broad prohibition. In fact, the only disruptions occurred when the Committee members interfered with their own meetings and asked that videotaping be discontinued.

Finally, the Plaintiffs are not asking for an unqualified right to videotape the Committee meetings. All they ask is that they be allowed to videotape the meetings in a non-disruptive fashion in order to educate their members and the public about the actions of this particular Committee. The Plaintiffs are more than willing to abide by any reasonable regulations developed by the Committee in order to prevent the act of videotaping from interfering with the conduct of the meeting. For example, the Plaintiffs would agree to place their cameras in certain areas of the room and set up cameras at certain specified times in order to avoid any possible disruption of the meetings.


Mr. Curtis and FOCUS respectfully ask this Court to grant their Motion for Issuance of a Temporary Restraining Order and Preliminary Injunction in this case. The Plaintiffs will suffer irreparable harm stemming from the Committee’s refusal to implement and uphold the spirit and intent of the Utah Open and Public Meetings Act. The Plaintiffs have demonstrated that the Committee’s actions are without legal justification in statute or law and that the Plaintiffs will likely succeed on the merits of this case. Further, the harm to the public resulting from the Committee’s actions could not be greater

While the vice practiced by the defendants in the case at bar seems somewhat mild, vigilance in the assiduous protection of the rights of citizens is necessary in response to any unwarranted decurtation [sic]on those rights, mild or odious. So here: If the public’s twin rights, to know and to expect that institutions of government will be accountable, are to be safeguarded, they deserve to be protected against all impermissible incursions as devastation can result as effectively from the combined effect of multiple pinholes in the dike as from the blasting of a single major cavity.

Belcher v. Mansi, 569 F. Supp at 385-386.

Dated this 3rd day of September, 2002.

Janelle P. Eurick
Attorney for Plaintiffs


1. For example, all of the following statutory sections in §52-4-1 include some form of narrowing the word "record":

(1) Written minutes or a digital or tape recording shall be kept of all open meetings...
(2) Except as provided in Section 52-4-7.5, written minutes or a digital or tape recording shall be kept of all closed meetings.
(3) The minutes and recordings are public records and shall be available within a reasonable time after the meeting. A meeting record kept only by a digital or tape recording must be converted to written minutes within a reasonable time upon request.
(6) Written minutes or digital or tape recordings shall be public records pursuant to Title 63, Chapter 2, Government Records Access and Management Act, but only written minutes shall be evidence of the official action taken at such meeting.

2. Videotaping public meetings is not a new phenomenon. Several State Attorney General Opinions interpret their open and public meetings act to allow both video and audio taping: See Op. Att”y Gen. Op. 15 (Wash. 1998); Att”y Gen. 96-OMD-143 (Ky. 1996)[1]; 13 Op. Att”y Gen. 196 (Okla. 1981)[2]; Op. Att”y Gen. 24 (S.C. 1988); 66 Op. Att”y Gen. 318 (Wis. 1977); Op. Att”y Gen. 87 (Fla. 1991).

3. The Defendants have not clarified whether members of the media are also prohibited from videotaping. However, in Belcher v. Mansi the Court noted "Defendants would surely not insist that a newspaper must base its report of Committee meetings solely on the official minutes, yet that mode of practice would follow logically from defendants’ asseveration. As the press is a representative of the public and does not have a monopoly either on the First Amendment or on the ability to enlighten, First National Bank of Boston v. Bellotti, 43 U.S. 765 (1978), the same rights and privileges must be accorded to members of the public."

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