S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Herbert P. Wiedemann, Petitioner,
v.
Town of Hilton Head
Island, South Carolina, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Beaufort County
Tom Kemmerlin, Master-in-Equity
Opinion No. 24789
Heard April 21, 1998 - Filed May 18, 1998
AFFIRMED IN PART; REVERSED IN PART,
AND REMANDED. -
Herbert P. Wiedemann, Pro Se, of Hilton Head, for
petitioner.
Curtis L. Coltrane, of Hilton Head Island, for
respondent.
WALLER, A.J.: We granted certiorari to review the Court of Appeals'
opinion in Wiedemann v. Town of Hilton Head, - S.C. , 486 S.E.2d 263
(Ct. App. 1997). We affirm in part, reverse in part, and remand to the
Master-in-Equity.
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WIEDEMANN v. TOWN OF HILTON HEAD
FACTS
In December, 1995, the Hilton Head Island Town Council (Council) held
a workshop at the Dataw Island Club (Club),1 a private residential
community located approximately 45 miles outside the municipal limits of
Hilton Head. The meeting was publicly advertised, and members of the
public were permitted to attend. Wiedemann, a resident of Hilton Head, was
required to pass through a security gate and give his name to a guard in
order to attend the meeting. He was met at the Club by the Assistant Town
Manager and escorted into the meeting where he had to sit on a chair in an
aisle near the entrance.2
Wiedemann brought this declaratory judgment action contending the
meeting was not "open to the public" as required by the South Carolina
Freedom of Information Act (FOIA), S.C. Code Ann. §§ 30-4-10 to 110 (1991
& Supp. 1996). The Master granted Town summary judgment holding that,
in the absence of a statutory prohibition, the local governing body of a
municipality may conduct meetings outside the geographical boundaries of the
county or municipality. The Court of Appeals, construing the "minimal cost
or delay" provision of S.C. Code Ann. § 30-4-15,3 adopted a balancing test
1It is undisputed that the workshop was a "meeting" for purposes of the
South Carolina Freedom of Information Act.
2We are unpersuaded by Wiedemann's claim that sitting in the aisle at
the back of the room renders the meeting "closed" for FOIA purposes. See
Sovich v. ShaugnesU, 705 A.2d 942 (Pa. 1998) (no violation of Sunshine Act
where members of public were placed in an adjoining facility with speakers
and microphone).
3Section 30-4-15 provides, in pertinent part:
The General Assembly finds that it is vital in a democratic society that
public business be performed in an open and public manner so that citizens
shall be advised of the performance of public officials .... Toward this end,
provisions of this chapter must be construed so as to make it possible for
citizens, or their representatives, to learn and report fully the activities of
their public officials at a minimum cost or delay to the persons seeking access
to public documents or meetings.
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WIEDEMANN v. TOWN OF HILTON HEAD
weighing the interests of the public against the government's need to conduct
the meeting at a distant cite. It found the location of the workshop and
procedure for admittance in this case created no undue burden on the public
and, accordingly, affirmed the grant of summary judgment.
ISSUE4
Did the Court of Appeals properly adopt a balancing test and, if
so, was summary judgment proper under that test?
DISCUSSION
Wiedemann contends a balancing test is inappropriate as § 30-4-15
prohibits municipalities, under any circumstances, from conducting meetings
outside their limits. We disagree.
There is some authority for the proposition that municipalities are
absolutely forbidden from holding meetings outside their corporate limits. 37
Am.Jur. Mun. Corps. § 54; 56 Am.Jur. 2d Mun. Corps. § 160. We decline to
follow the American Jurisprudence article.5
4Wiedemann also contends it is a violation of the "open meetings"
provision to conduct a "public" meeting at a private club, in a gated
residential community. We disagree.
S.C.Code Ann. § 30-4-60 requires every meeting of a public body be
open to the public unless closed pursuant to section 30-4-70(a). Fowler v.
Beasley, 472 S.E.2d 630, 322 S.C. 463 (1996). The purpose of the FOIA is
to protect the public from secret government activity. South Carolina Tax
Comm'n v. Gaston Copper Recycling Corp., 316 S.C. 163, 447 S.E.2d 843
(1994). There is no requirement, in section 30-4-60 or elsewhere in the
FOIA, that meetings of a public body be conducted in a public building. On
the contrary, the only specific requirements are that the meeting be open to
the public and be done at minimal cost or delay. Absent a specific statutory
restriction, we find meetings may be held in locations other than public
buildings. Here, it is undisputed that the public was given notice of and
welcome to attend the meeting. The fact that Wiedemann was required to
give his name to a security guard at the gate of the Dataw Island Country
Club does not violate the open meeting provision.
5The only American case specifically adopting this position relies upon
AmJur. See Town of Paradise Valley v. Acker, 411 P.2d 168 (Ariz. 1966).
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WIEDEMANN v. TOWN OF HILTON HEAD
Nowhere in the South Carolina FOIA are public bodies required to
conduct public meetings within municipal limits. On the contrary, the only
restriction is that they be conducted with "minimum cost or delay" to the
public. Notably, the Legislature did, in the case of School Boards, require
all meetings be held "at the school district office or at such other place
within the district that the board deems convenient..." S.C. Code Ann. § 59-
1-340. See also 1991 S.C. Op. Atty. Gen. 73, Op. No. 91-24 (1991) (espousing
that in light of express legislative statement in § 59-1-340, that section 30-4-
15 permits public meetings without a municipality's boundaries). We agree
with the Court of Appeals that the fact that the Legislature specifically
required school board meetings to be conducted within district boundaries,
but failed to do so in the case of municipal boards is indicative of its intent
that such meetings may be held outside municipal limits. Accord Atlantic
Skin and Cancer Clinic v. Hallmark General Partners, 320 S.C. 113, 463
S.E.2d 600 (1995) (under maxim of expressio unius est exclusio alterius,
'expression of one thing is exclusion of another'). Accordingly, we affirm the
Court of Appeals' opinion insofar as it held that meetings may be conducted
outside municipal boundaries. Further, we concur with the Court of Appeals
that a balancing test is appropriate to determine whether such a meeting
complies with the "minimum cost or delay" requirements of § 30-4-15.
The Court of Appeals adopted the balancing test espoused by the court
in Rhea v. School Board of Alachua County, 636 So.2d 1383 (Fla. App. 1994).
Under that test, "the interests of the municipality in conducting the meeting
outside the municipal limits [should] be weighed against the cost or delay to
the public." 486 S.E.2d at 267. The Court of Appeals concluded that, as
there was no evidence any members of the public were prevented from
attending the meeting, and since Wiedemann and various reporters had
attended the meeting, its location created no undue burden on the public.
It therefore affirmed the Master's grant of summary judgment. This was
error.
Summary judgment is appropriate when it is clear there is no genuine
issue of material fact and the moving party is entitled to judgment as a
matter of law. City of Columbia v. American Civil Liberties Union, 323 S.C.
384, 475 S.E.2d 747 (1996). In determining whether any triable issue of fact
exists, the evidence and all inferences which can be reasonably drawn
therefrom must be viewed in the light most favorable to the non-moving
party. Summer v. Carpenter, _ S.C. _, 492 S.E.2d 55 (1997).
Here, there are genuine issues of material fact concerning the necessity
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WIEDEMANN v. TOWN OF HILTON HEAD
of Town conducting the meeting outside the municipal limits. There is
simply no evidence in the record as to why it was necessary for Tow-n to
conduct the meeting at Dataw Island. Accordingly, on the present record, it
was simply impossible to balance the interests of the Tpwn against those of
the public. Therefore, rather than affirming the grant of summary judgment,
the Court of Appeals should have remanded to the Master for receipt of
further evidence on this issue. Accordingly, the opinion of the Court of
Appeals is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
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