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IN THE COURT OF APPEALS OF IOWA No. 8-583 / 08-0195 Filed December 17, 2008 MICHAEL DOOLEY, SHARON DOOLEY, LAURIE TULCHIN, JAMES GLASGOW, HARVEY HENRY, MARY ELLEN HILL, JAMES SEDLACEK, GREG PICKETT, and THOMAS CARSNER, Plaintiffs-Appellants, vs. JOHNSON COUNTY BOARD OF SUPERVISORS, MICHAEL LEHMAN, PATRICK HARNEY, SALLY STUTSMAN, TERRENCE NEUZIL, CAROL THOMPSON, and ROD SULLIVAN, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Johnson County, Marsha M. Beckelman, Judge.

Plaintiffs appeal from the district court's ruling dismissing their claim and finding defendants did not violate the Iowa open meetings law. AFFIRMED.

Wallace L. Taylor, Cedar Rapids, for appellants. Janet Lyness, County Attorney, and Andrew B. Chappell, Assistant County Attorney, for appellees.

Heard by Eisenhauer, P.J., and Doyle, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

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ZIMMER, S.J. Plaintiffs, a group of concerned Johnson County residents, appeal from the district court's ruling dismissing their claim and finding that defendants, the Johnson County Board of Supervisors, did not violate the Iowa open meetings law. The district court found the law was not violated because no "meeting," as it is defined in Iowa Code section 21.2(2) (2005), occurred during the gathering at issue. We affirm. BACKGROUND. This case concerns an area referred to as The North Corridor. The land is located in Johnson County and situated north of Iowa City, south of Linn County, east of highway 965, and west of highway 1. This area has been designated as a growth area in Johnson County's comprehensive land use plan. In November 2003, the Johnson County Secondary Road Department

recommended developing a new road through The North Corridor to accommodate for this planned growth. The department determined that existing roads, including Newport Road and Prairie du Chien Road, could not accommodate new growth without being upgraded. The proposed new road

would bypass an existing route, Newport Road, and cut through several properties. Some board members and citizens expressed concern about

developing a new route. Some felt more attention should be paid to retaining the scenic character of the area while others were concerned about accommodations for pedestrians and bicycle traffic. Still others were concerned about potential speed levels on a new road.

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In order to get an additional and independent perspective on transportation options available in the area, the Johnson County Board of Supervisors (the board) contracted with Howard R. Green Company (H.R. Green) to study the issue and provide a recommendation. A preliminary draft of their report was given to members of the board sometime in early December 2004. The draft report contained the following recommendations: The [c]ounty should improve the surface of Prairie du Chien Road and Newport Road within the existing right-of-way and road grade as much as possible, implementing one of several methods currently being used by other county engineers in Iowa. The county should provide a separate trail facility for pedestrian and bicycle traffic. This facility would ideally be located on the outside edge of the existing right-of-way. This requires the acquisition of additional right-of-way. The county should also pursue the assignment and development of a connecting roadway from the north end of Prairie du Chien Road and Newport Road as recommended by the November 2003 report. In addition, a connection further east between Newport Road and IA Hwy 1 should be considered for long term growth. The board's executive assistant emailed the board on December 13, 2004, and stated that someone from H.R. Green wanted to meet with two supervisors and some county staff on January 4, 2005, at 10 a.m. to present the report and discuss it. The email noted, "The meeting is not designed to

deliberate the draft report but to seek input." It asked the board to respond with which members would like to attend. Two board members, Michael Lehman and Patrick Harney, agreed to attend this meeting. In an email reminder the day before the scheduled meeting, the executive assistant reminded Lehman and Harney that no more than two of them could attend the meeting.

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On December 15, 2004, Carol Thompson, a board member whose term was expiring at the close of 2004, emailed comments to the board and the board's executive assistant stating her dissatisfaction with the report. One

complaint was that she believed H.R. Green had not followed their instructions, including that H.R. Green was to recommend one of the design alternatives offered in the November 2003 study by the department of secondary roads. Thompson believed H.R. Green's recommendation was unclear and not one provided for in the 2003 study. The board's executive assistant inquired whether the other board members agreed with Thompson and stated that H.R. Green would be willing to meet with the members to discuss the board's expectations. On January 4, 2005, Lehman and Harney met with the H.R. Green representatives as planned. After Lehman and Harney left, two other members entered and discussed the report with H.R. Green. Then, after those two members left, the remaining board member entered and met with H.R. Green. H.R. Green revised the draft report and presented a project summary of the report publicly on January 19, 2005. The final report issued in February 2005 contained the following recommendations: It is recommended that Prairie du Chien Road be improved to current standards from its current intersection with Newport Road, north to the US Army Corp property with a design speed that will provide a speed limit of 35 MPH or greater along the corridor. It is recommended that the connection proposed in the November 2003 report and shown on Figure 2 in this study be completed to provide a new connection between Prairie du Chien Road and Newport Road.

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It is recommended that Newport Road, between Prairie du Chien Road and the new connection not be improved. If development pressure requires, a hard surface may be required as a long-term solution. It is recommended that Newport Road, from the new connection north and east, be improved to current design standards with a design speed that will allow a speed limit of 35 MPH or greater. It is recommended that a long-term connection between IA Hwy 1 and Newport Road be identified at the planning level and a corridor maintained to provide additional future transportation connections. Plaintiffs filed suit in November 2005 alleging, among other things, the gathering on January 4, 2005, was a violation of Iowa's open meetings law. On September 26, 2007, a bench trial on a stipulated record was held. The judge's ruling, issued on December 12, 2007, concluded there was no violation of the open meetings law. It found the discussion among board members and H.R. Green on January 4, 2005, was not a violation because it was not a "meeting" since there was not a majority present and there was no "deliberation." Plaintiffs appeal. SCOPE OF REVIEW. Actions to enforce Iowa's open meetings law are ordinary actions at law. Schumacher v. Lisbon Sch. Bd., 582 N.W.2d 183, 185 (Iowa 1998). Our review of such actions is for correction of errors at law. Iowa R. App. P. 6.4; Polk County Bd. of Supervisors v. Polk Commonwealth Charter Comm'n, 522 N.W.2d 783, 785 (Iowa 1994). We are bound by the district court's fact findings if they are supported by substantial evidence. Iowa R. App. P. 6.14(6)(a); Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 533 (Iowa 1980). Those seeking enforcement of the law bear the initial burden to demonstrate that the governing body is subject to the open meeting requirements

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and that the body has held a closed session. Iowa Code

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