This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Prior Lake American, a newspaper
of Red Wing Publishing Company, Inc.,
Wes Mader in his capacity
as mayor of Prior Lake, et al.,
Filed April 17, 2001
Dissenting, Crippen, Judge
Scott County District Court
File No. 200004710
Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)
George C. Hoff, Scott B. Landsman, Hoff, Barry & Kuderer, P.A., 7901 Flying Cloud Drive, Suite 260, Eden Prairie, MN 55344-7914 (for respondents)
Susan L. Naughton, 145 University Avenue West, St. Paul, MN 55103-2044 (amicus curiae for League of Minnesota Cities)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.
The district court held that an executive (non-public) session held by respondents, a mayor and city council members, was within the attorney-client exception to the open meeting law. Because we see no error of law in that determination, we affirm.
In January 2000, a contracting company sent a letter to the Prior Lake city manager concerning an application for a conditional use permit (CUP) and indicating that it might
seek legal action to ensure proper handling and compliance of this matter as well as legal action to recover lost revenues and/or costs incurred as a result of actions by the City of Prior Lake.
The CUP application was an item on the agenda for the February 2000 open meeting of the Prior Lake City Council. Respondent Wes Mader, Mayor of Prior Lake, suggested that the council retire to executive (non-public) session to confer with the city attorney regarding the city’s potential liability in the CUP matter. Respondents James Ericson, Michael Gundlach, and James Petersen, all council members, voted with Mader to retire. The council adjourned to executive session, then returned and reopened its proceedings to the public. The editor of appellant newspaper Prior Lake American attended the open portions of the meeting.
Appellant brought this action seeking a declaration that respondents violated Minn. Stat. § 13D.05, subd. 3(b) (2000), the Open Meeting Law, by adjourning to executive session. The district court granted respondents’ motion for summary judgment; this appeal followed.
D E C I S I O N
When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998).
Minn. Stat. § 13D.05, subd. 3(b), provides that “[m]eetings may be closed if the closure is expressly authorized by statute or permitted by the attorney-client privilege.” The legislature added this provision in 1990. We interpreted it in Star Tribune v. Board of Educ, 507 N.W.2d 869 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993). Star Tribune reversed a district court’s order requiring all board meetings to be open until litigation commenced, holding that “[t]he attorney-client privilege exception to Minn. Stat. § 471.705 is available in circumstances where litigation is imminent, but not actually commenced.” Id. at 872. Litigation was found to be imminent but not yet commenced because, among other things, the school board had sought advice from counsel on its legal rights, obligations and potential liabilities. Id. Respondents here also sought timely advice on the legal rights, obligations and potential liabilities of the city in handling the CUP application. Star Tribune thus supports our holding that the exception applies.
At oral argument, appellant conceded that the city council was “threatened” with legal action in regard to its handling of the application. Concerned by the contractor’s letter, the city council needed immediate and specific legal advice on the legal ramifications of its handling of the application. The attorney-client exception applies “when a public body needs advice above the level of general legal advice, i.e., regarding specific acts and their legal consequences.” Id., (citing HRA [Minneapolis Star & Tribune Co. v. Housing & Redev. Auth.], 310 Minn. [313,] 324, 251 N.W.2d [620,] 626 [(1976)] [(upholding the application of the exception to parties engaged in active and immediate litigation)]; Northwest Publ’ns, Inc. v. City of St. Paul, 435 N.W.2d 64, 67 (Minn. App. 1989) [(upholding the non-application of the exception to a governing body that had not demonstrated that its need for confidentiality outweighed the public’s right of access to public affairs), review denied (Minn. March 29, 1989)]). Respondent’s timely need for specific legal advice justified their invoking the exception.
Appellant quotes Northwest to argue that
[the attorney-client] privilege is not available, however, when a governing body seeks instead to discuss the strengths and weaknesses of the underlying proposed enactment which may give rise to future litigation.
Northwest, 435 N.W.2d at 67. Northwest relied on HRA, which invoked the exception during ongoing litigation and issued a caveat that it was “to be employed or invoked cautiously and seldom in situations other than in relation to threatened or pending litigation.” HRA, 310 Minn. at 324, 251 N.W.2d at 626. Northwest held that the district court had not erred in determining that only general legal advice would be given at the meeting. Northwest, 435 N.W.2d at 67. But Northwest is distinguishable; when it was decided, there was no statutory attorney-client privilege exception to the open meeting law. Because there is now legislative authority for the exception, Northwest is not dispositive.
In response to a threat from the contractor, respondents needed timely legal advice on specific acts and their consequences. That need justified the application of the exception. See Star Tribune, 507 N.W.2d at 872. We agree with the district court that the attorney-client privilege exception was properly applied.
CRIPPEN, Judge (dissenting)
Our decision in this case disregards a vital, settled standard of law on Minnesota’s Open Meeting Law and suggests indifference to the supreme court’s express warnings against “blind application of the attorney-client privilege”:
We cannot emphasize too strongly that should this exception be applied as a barrier against public access to public affairs, it will not be tolerated, for this court has consistently emphasized that respect for and adherence to the First Amendment is absolutely essential to the continuation of our democratic form of government.
Minneapolis Star & Tribune Co. v. Housing and Redev. Auth., 310 Minn. 313, 322, 324, 251 N.W.2d 620, 625-26 (1976) [hereinafter HRA]. By abandoning precedents without warrant, we render ineffective the state statute, offend a vital constitutional guarantee, and undermine the democratic character of state and local government.
Only a “delicate balancing of public interests” is acceptable in dealing with the issue. Id. at 323, 251 N.W.2d at 625. Consultation with counsel represents a “rare and carefully restrained exception.” St. Cloud Newspapers, Inc. v. District 742 Cmty. Sch., 332 N.W.2d 1, 5 (Minn. 1983). The California Court of Appeals, in language quoted and approved by our supreme court, demands that the attorney-client privilege be “strictly construed,” because it “tends to suppress relevant facts.” Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 69 Cal. Rptr. 480, 492 (Cal. Ct. App. 1968), quoted in HRA, 310 Minn. at 320, 251 N.W.2d at 624.
Just as the exception is heavily restricted, the general rule of openness must be protected. The courts will liberally construe the Open Meeting Law and presume that meetings will be open. St. Cloud Newspapers, 332 N.W.2d at 5.
1. The Minnesota Supreme Court standard
HRA established that the attorney-client exception applies to threatened or pending litigation—expressly declared in reference to a record that the Housing and Redevelopment Authority was “involved in active and immediate litigation,” where consultation with counsel was “necessary” in the quest to attain a beneficial settlement of the litigation, and where the court found it important to protect discussions of “litigation strategy.” HRA, 310 Minn. at 323, 251 N.W.2d at 625. The concern, the court said, was for closed discussion of “litigation strategy.” This result is the fruit of a necessary balancing of the attorney-client privilege with “the public’s right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest.” Id. at 318, 322-23, 251 N.W.2d at 623, 625.
It is important to observe that HRA involves the scrutiny of two considerations, both the matter of time—specifically, the immediacy of risks in litigation—and the type of discussion that is to occur, whether it be specific to the settlement of differences with a likely litigant or directed instead to the reasons, legal and otherwise, for and against a policy proposal. Subsequent authorities enlarge the vitality of this two-part evaluation of the issue, but today this court abandons interest in the substance of the discussion in favor of a simplistic consideration of time—a determination as to whether or not a threat of litigation has been stated.
Thirteen years after HRA was announced, the Ramsey County District Court, whose actions were later affirmed by this court, applied the standard in a cautious approach that the Minnesota legislature subsequently ratified. See Northwest Publications, Inc. v. City of St. Paul, 435 N.W.2d 64 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989). Even with the threat of litigation, we upheld a demand for openness in Northwest Publications where the trial court characterized the subject of the meeting as “general legal advice”—the discussion of the strengths and weaknesses of ordinance changes, the “positions likely to be taken by potential litigants, and the chances of prevailing in future litigation.” Id. at 67.
The trial court reasoned that advising governmental bodies of the constitutionality of proposed enactments and the likelihood of success in the event of a future challenge is basic legal advice common to the deliberative process of any public body.”
The evidence in Northwest Publications showed an unequivocal threat of litigation. The record showed that four businesses submitted briefs to the city council, and the trial court found that litigation was “a virtual certainty.” Id. at 65. The record also shows that the trial court observed: “[T]he fact that no lawsuit has been commenced is apparently due to the fact that no final action has yet been taken on [a councilperson’s] proposals.” Thus, the trial court concluded “that litigation over the proposed ordinance amendments is not only threatened, but rather, constitutes a virtual certainty.” In spite of these findings, this court affirmed a trial court determination that the attorney-client exception was inapplicable to discussions on legal implications in public-policy proposals.
Northwest Publications employs the HRA demand to examine the nature of the discussion the governing body proposes to close from the public. And it contributes remarkably to the development of a useable standard of law by underscoring the gulf that exists between, on the one hand, advice on the settlement of differences with a litigant or likely litigant (HRA)and, on the other hand, discussions on the legal implications of a proposed action by the governing body (Northwest Publications). Northwest Publications also reminds us that the burden rests with the governing body to establish that its interests in secret discussion with counsel outweighs the competing interest in accessing official discussion of public affairs. Id. at 67.
3. Ratification by statute
Contrary to the suggestion of the majority, HRA and Northwest Publications remain fully authoritative. Nothing but our will to forget these precedents diminishes their vitality.
The majority begins its legal analysis of the case with reference to Minn. Stat. § 13D.05, subd. 3(b) (2000), enacted in 1990. The statute provides for meeting closure “permitted by the attorney-client privilege.” But the majority reads something into this statute that is not found in its language and is in fact contradicted by its history. Citing the statute and treating as obsolete the authority of HRA and Northwest Publications, the majority declares that if there is a threat of litigation, there is no longer a demand of law for open discussion on the strengths and weaknesses of proposed public action, on positions likely to be taken by potential litigants, or on the likelihood of success in the event of a future legal challenge—matters this court has correctly characterized as “basic legal advice common to the deliberative process of any public body.” Northwest Publications, 435 N.W.2d at 67. The majority employs an emasculated standard, one requiring no balancing of the public interests protected by the Open Meeting Law: If a proposal is apt to prompt litigation, we declare, the boardroom door may be closed.
There is no basis upon which we can build the proposition that the governing standard of law is altered by 1990 legislation. First, the enactment speaks only of a privilege and what it permits, without the slightest indication that it defines a new standard. Minnesota Wood Specialties, Inc. v. Mattson, 274 N.W.2d 116, 119 (Minn. 1978) (“Words and phrases which have acquired an established meaning by judicial construction are deemed to be used in the same sense in a subsequent statute relating to the same subject matter.” (citations omitted)). Second, legislative history confirms that the enactment was intended to approve the narrow, judicial explanation of the attorney-client-privilege exception and, of critical importance, to adopt the principle as refined in Northwest Publications. Finally, we have already expressly held, without equivocation, that the enactment adopts the previous judicial construction of the privilege. Star Tribune v. Board of Educ., Special Sch. Dist. No. 1, 507 N.W.2d 869, 871 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993).
4. Star Tribune v. Board of Education
For its new, incomplete approach to the Open Meeting Law and the “rare” exception for consultation with counsel, examining only whether litigation has been threatened, the majority also offers a mistaken application of Star Tribune. See id. This 1993 decision lends no support for the determination in the present case.
In Star Tribune, we reversed a sweeping trial court order for open doors at all stages before the initiation of litigation, the same simplistic application of the law that the majority employs today by suggesting that doors can be closed whenever the threat of litigation is stated. The court did not determine, as did the trial court in Northwest Publications, which pre-litigation discussions involved advice above the level of general legal advice; the case establishes that some pre-litigation discussion may occur behind closed doors, but the court did not determine which pre-litigation discussion was public and which was not.
In addition, it is important to observe that Star Tribune did not abandon but ratified the use of a balancing test that weighs the public interest in open meetings. Id. at 871. The court announced as a primary concept the propriety of a pre-litigation closing of a meeting where “legal strategy” is discussed, and expressly recognized the authority for opening a meeting “when the discussion focuses on the underlying merits of a proposed action that might give rise to future litigation.” Id. (citation omitted). And Star Tribune specifically rejected the notion advanced by the majority, that the attorney-client exception can be reduced “to a question of timing, not confidentiality.” Id. at 872.
5. City of Prior Lake
As suggested in the majority opinion, the facts in this case reveal only that a permit applicant might seek legal action to insure that the matter is handled properly or to recover damages if it was not. Likewise, the city mayor and council members explained that their closed session dealt with the risk of city liability, including the probability of litigation. There is no evidence to suggest that council deliberations involved anything beyond a determination of the demands of the law pertinent to its handling of a zoning-permit application. There is no suggestion that the discussion was to involve legal strategy or the negotiation of a settlement of adverse claims. The record supports neither the trial court decision nor the determination of the majority to affirm it.
Our chosen approach to the Open Meeting Law, putting aside what HRA and Northwest Publications so carefully enunciate on the need to examine the distinction between strategy talk and policy discussion, involves mischief without evident limit. Counsel is commonly present for the deliberations of boards and councils. The governing body must know what the law demands. Of course, its violation of legal standards may produce court proceedings aimed at correcting the error. By the simple expedient of noting a private demand for compliance with the law, with a suggestion that the law will be enforced if it is offended, we say today that the chamber doors may be closed. This approach comes dangerously close to a concept of secrecy at will, robbing the public of scrutiny for countless public-policy discussions by state and local government bodies.
The decision in this case is not what the opinion of the court suggests, a routine application of an established rule of law. Instead, it represents a marked departure from a well-established and important body of law. It abandons the mandatory, jealous, judicial posture toward a rare exception for consultation with counsel. It disregards a presumption that meetings will be open. Most important, it employs a withered version of the controlling standard of law, permitting the courts to examine the need for openness without scrutinizing the subject matter of government-body discussions.
It is fortunate, perhaps, that the court has elected against publication of its decision in this case, making it non-precedential. But this is small comfort to the people it adversely affects and, of course, it permits and perhaps invites similar future endorsement of prohibited secrecy in public affairs.
I respectfully dissent.
 The statute was then Minn. Stat. § 471.705, subd. 1d(e) (1998); it has since been recodified without substantive change as Minn. Stat. § 13D.05, subd. 3(b).
 See also Demming v. Housing & Redev. Auth., 847 F. Supp. 130, 133 (D. Minn. 1994) (interpreting the provision and holding that, after an employee had said she was “unhesitant about employing legal action” against a governing body, that body was “amply within its rights to solicit [confidential] legal advice” about its future dealings with her).
[The following endnotes are from dissenting opinion]:
 As suggested in the language of the supreme court, the Open Meeting Law is a manifestation of constitutional law. As such, its defense requires diligence of a unique kind. The relationship of the statute to the First Amendment is well-stated in this statement by the Supreme Court of Colorado:
The United States Supreme Court has recognized that the First Amendment’s guarantee to freedom of speech necessarily protects the right to receive ideas and information. Virginia Pharmacy Board v. Virginia Consumer Counsel, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); see also Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). The First Amendment plays an important role in affording the public access to discussion, debate, and the dissemination of information and ideas. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). A free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, to act responsibly and account for its actions.
We conclude that the Open Meetings Law strikes the proper balance between the public’s right of access to information and a legislator’s right to freedom of speech. The people have determined that they are willing to assume the detriment of a potential stifling of discussion among legislators to secure the advantages of open government. Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976). The Open Meetings Law does not forbid political discussion among legislators, and does not regulate the content of their discussions. The Colorado Open Meetings Law merely requires that business meetings of policy-making bodies of the General Assembly be open to the public. The Open Meetings Law, as we view it, is a reasonable legislative enactment which seeks to balance the public’s right of access to public information with the right of legislators to speak candidly and to associate with whomever they choose. See also People ex rel. DiFanis v. Barr, 83 Ill.2d 191, 46 Ill.Dec. 678, 414 N.E.2d 731 (1980).
Cole v. Colorado, 673 P.2d 345, 350 (Colo. 1983).
 At the Senate Privacy Subcommittee hearing of March 2, 1990, an early version of the bill was proposed that would have provided, at what is now Minn. Stat. 13D.05, subd. 3(b) (2000), that a meeting may be closed “if expressly authorized by other law.” This discussion followed:
Senator Merriam: Would somebody tell me what’s included in “other law”? Isn’t that a broad term? Shouldn’t we talk about, “another statute”?
Senator Cohen: There is the attorney-client privilege also.
Senator Merriam: We don’t have a statute that authorizes the attorney-client privilege?
Senator Cohen: The courts made this up.
* * * *
Senator Merriam: If there are case law that we want to maintain and agree to do that, why don’t we describe them [by expressly referring to the attorney-client privilege] rather than leaving them out there somewhere.
Senator Cohen: Codify them.
Hearing on S.F. No. 1874 Before the Senate Subcomm. on Privacy of the Senate Judiciary Comm. (Mar. 2, 1990). Senator Knaak then moved that the language “authorized by other law” be changed to read “authorized by statute or permitted by the attorney-client privilege.” Id. Senator Cohen agreed to this change in his bill. Id.
Senator Merriam then asked, “How does the exception for the attorney-client privilege work?” Senator Cohen responded with a detailed description of the HRA case and this discussion acknowledging the Northwest Publications decision followed:
Senator Merriam: What’s the danger that by a year from now that every time that a public board meets with its attorney it will feel compelled or at least permitted to close the meeting? Because after all they will be exercising their “attorney-client privilege”?
Gemberling: There’s been further guidance since the Ackerberg [HRA] case, including the recent Court of Appeals case involving the City of St. Paul [Northwest Publications]—in which the guidance related to just because you’re meeting with your attorneys doesn’t mean you can close the meeting.
* * * *
Senator Knaak: Why do we need to mention it [the attorney-client privilege] at all? * * * Otherwise, isn’t this just the sort of signal that invites—
Gemberling: If it’s there, don’t we just want to say it, rather than say, “by statute,” and then wink and say, “Ah, but you know and we know that the attorney-client privilege is out there anyway.”
* * * *
Anfinson: This case out of St. Paul, the ordinance, really did narrow the attorney-client privilege a lot. It cut it down very well. I tend to agree with Senator Knaak’s point that we should include it on the “checklist principle.” Why not? Not everybody knows the law as well as we do.
Id. Whereupon the subcommittee adopted the language that is now at Minn. Stat. § 13D.05, subd. 3(b). Id. The subcommittee then forwarded the bill to the Judiciary Committee, which approved the language without further discussion of the attorney-client-privilege exception. Hearing on S.F. 1874 Before the Senate Judiciary Comm. (Mar. 15, 1990).