Leak v. High Point City Council , 25 N.C. App. 394 ( 1975 )

213 S.E.2d 386 (1975) 25 N.C. App. 394

O. H. LEAK et al., Original Plaintiffs, and
League of Professional Police of High Point, Inc., Intervening Plaintiffs,
v.
The HIGH POINT CITY COUNCIL et al., Defendants.

No. 7418SC1094.

Court of Appeals of North Carolina.

April 16, 1975.

Chambers, Stein & Ferguson by Adam Stein, Chapel Hill, for original plaintiffs.

Morgan, Byerly, Post & Herring by W. B. Byerly, Jr., High Point, for intervening plaintiff.

Tharrington, Smith & Hargrove by Wade H. Hargrove, Roger W. Smith and Peter E. Powell, Raleigh, for defendants.

CLARK, Judge.

On 3 February 1975, after this cause had been docketed and briefs filed, the original plaintiffs filed in this Court a motion to dismiss the appeal as moot.

The defendants with their response to said motion to dismiss filed a certified copy of selected excerpts from the minutes of Council meeting on 23 October 1974, wherein the hearings were "recessed" by the Chairman, who made the following statement: ". . . I feel that it would be some time before each of us might be able to digest the information that we might have. And I feel that maybe there's a possibility that maybe we might want to come back and ask further questions after digesting these notes. And now, I'm going to recess these hearings until further notice, and then we will have a statement to make."

The original plaintiffs with their motion to dismiss filed a certified copy of the minutes of the Council meeting on 27 November 1974, wherein it appeared that the Council met to receive the report of the Police Investigating Committee. The report contained detailed findings of negligence, misconduct and favoritism within the police department and noted that "we believe the City Manager's recent action in dismissing Chief Pritchett was justified." The meeting concluded with the statement by Mayor Clapp that "the Committee will not disband and will make their recommendations at a future time."

The defendants' response to the motion to dismiss as moot was filed in this Court on 27 February 1975. We assume that if the Committee had conducted an investigative hearing after making its report on 27 November 1974, the counsel for defendants would have with this response appropriately informed this Court of such hearing.

It appears that the question involved in this appeal may be moot for that the Police Investigating Committee of the City Council of High Point has probably concluded its investigative hearings, though it may still exist for the purpose of making recommendation based on its hearings.

However, we do not deem it necessary to make a determination of whether the controversy has ceased to exist either from the record before us or after remanding to the Superior Court for further findings. The general rule that an appeal presenting a moot question will be dismissed is subject to some exceptions, one of which is that where the question involved is a matter of public interest the court has the duty to make a determination. 5 C.J.S. Appeal and Error § 1354(1) (1958).

This case involves the right of city councils to "investigate the affairs of the city", to subpoena witnesses and compel the production of evidence to carry out that function as provided by G.S. § 160A-80; and further involves the right of the city councils to "adopt reasonable rules" for the conduct of such investigative hearings as provided by G.S. § 160A-81. The statutes were enacted in the 1971 Session of the General Assembly. The case is the first involving this enactment to reach us, and the determination of the issues involved is of public interest, unquestionably beneficial to the municipalities as a guide in the exercise of the investigative authority delegated by the legislature.

On appeal, the plaintiffs do not contend that the said statutes are unconstitutional, nor that the rules of procedure adopted by the City Council of High Point relating to media coverage violate any of their constitutional rights. Therefore, we confine the issue before us to the authority of a city council in conducting investigative hearings to adopt rules providing not only for press but also for radio and television coverage.

Where the legislature makes a proper delegation of power to a municipality, the Courts may not interfere with the exercise of that power without a showing of manifest abuse. Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968); Jones v. Hospital, 1 N.C.App. 33, 159 S.E.2d 252 (1968). There has been no showing by the plaintiffs that radio and television coverage would disrupt the hearings, would violate any constitutional rights of the plaintiffs, or would in any other way constitute a manifest abuse of this discretionary power delegated to the municipality.

Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed.

The order of the Superior Court provides for press coverage and apparently bases its prohibition of radio and television coverage on the finding that "live coverage is likely to prejudice some of the officers involved". Different treatment of competing forms of communication is hardly justified by this finding.

We vacate the following portion of the preliminary injunction of 3 October 1974: "(1) [T]here shall be no live radio or television coverage of the hearings and there shall be no voice or television recording devices in the hearing room." And this cause is remanded to the Superior Court.

Vacated in part and remanded.

PARKER and HEDRICK, JJ., concur.