STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

BUNCOMBE COUNTY SUPERIOR COURT DIVISION

21 CVS _____
GREEN LINE MEDIA, INC., )
CAROLINA PUBLIC PRESS, )
GANNETT GP MEDIA, INC., )
WESTERN NORTH CAROLINA )
PUBLIC RADIO, )
)
Plaintiffs, ) COMPLAINT
) AND
v. ) REQUEST FOR
) INJUNCTIVE RELIEF
THE CITY OF ASHEVILLE )
through the ASHEVILLE CITY )
COUNCIL; MAYOR ESTHER )
MANHEIMER, in her official )
capacity as Mayor; VICE MAYOR )
SHENEIKA SMITH, in her official )
capacity as Vice Mayor; SANDRA )
KILGORE, in her official capacity )
as a member of the City Council; )
ANTANETTE MOSLEY, in her )
official capacity as a member of the )
City Council; SAGE TURNER, in )
her official capacity as a member of )
the City Council; and GWEN )
WISLER in her official capacity as )
a member of the City Council, )
)
Defendants. )

Pursuant to Rules 3, 7 and 8 of the North Carolina Rules of Civil Procedure

the plaintiffs, complaining of the defendants, allege and say:

INTRODUCTION

This is an action pursuant to the North Carolina Open Meetings Law, N.C.

Gen. Stat. §§ 143-318.10 et seq. and the North Carolina Uniform Declaratory

Judgments Act, N.C. Gen. Stat. §§ 1-253 et seq. Plaintiffs seek to have the court order
the defendants the City of Asheville, Mayor Esther Manheimer, Vice Mayor Sheneika

Smith, Sandra Kilgore, Antanette Mosley, Sage Turner, and Gwen Wisler

(collectively “the City” or “the City of Asheville”) to conduct the meeting scheduled for

March 31, 2021, in open session in compliance with the Open Meetings Law.

THE PARTIES

1. Plaintiff Green Line Media, Inc. (d/b/a Mountain Xpress) is a North

Carolina corporation that maintains its place of business in Asheville, Buncombe

County, North Carolina. Among other things, the company publishes Mountain

Xpress, a free, general interest newspaper that is distributed in Buncombe County

and eight surrounding counties of Western North Carolina. We also publish an online

edition at www.mountainx.com.

2. Plaintiff Carolina Public Press is an independent nonprofit news

organization dedicated to nonpartisan, in-depth and investigative news built upon

the facts and context North Carolinians need to know. Founded in 2011 and originally

established to focus on the issues, topics and challenges faced by Western North

Carolina, the organization now covers all of North Carolina. CPP provides

nonpartisan reporting on important issues facing North Carolina communities.

3. Plaintiff Asheville Citizen-Times, a division of Gannett GP Media, Inc.,

a Delaware corporation that is qualified in North Carolina. The Citizen-Times

maintains its principal place of business in Asheville, Buncombe County, North

Carolina. Among other things, the company publishes The Citizen-Times, a general

interest newspaper that is published in Buncombe County and distributed

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throughout the surrounding area of North Carolina. The Citizen-Times also publishes

an online edition at https://www.citizen-times.com/.

4. Plaintiff Western North Carolina Public Radio, Inc. (d/b/a BPR – Blue

Ridge Public Radio) is a non-profit corporation located in Buncombe County. BPR

operates two public radio channels affiliated with National Public Radio and

originating in Asheville: BPR News and BPR Classic. These stations broadcast on

over a dozen broadcast frequencies. BPR also streams online 24 hours a day and

provides extensive national and local news coverage, including information about

courts throughout North Carolina.

5. Defendant City of Asheville is a municipal corporation organized

pursuant to N.C. Gen. Stat. § 160A-11 and governed by the Asheville City Council,

an elected body. The City Council is a "public body" as defined by N.C. Gen. Stat.

§143-318.10(b); therefore, it is subject to the North Carolina Open Meetings Law.

6. Defendant Esther Manheimer is a resident of Buncombe County, is the

Mayor of Asheville, is being sued in her official capacity, and is a public agency within

the meaning of the North Carolina Open Meetings Law. G.S. § 143-318.10(b).

7. Defendant Sheneika Smith is a resident of Buncombe County, is the Vice

Mayor of Asheville, is being sued in her official capacity, and is a public agency within

the meaning of the North Carolina Open Meetings Law. G.S. § 143-318.10(b).

8. Defendant Sandra Kilgore is a resident of Buncombe County, is a

member of the Asheville City Council, being sued in her official capacity, and is a

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public agency within the meaning of the North Carolina Open Meetings Law. G.S. §

143-318.10(b).

9. Defendant Antanette Mosley is a resident of Buncombe County, is a

member of the Asheville City Council, being sued in her official capacity, and is a

public agency within the meaning of the North Carolina Open Meetings Law. G.S. §

143-318.10(b).

10. Defendant Sage Turner is a resident of Buncombe County, is a member

of the Asheville City Council, being sued in her official capacity, and is a public agency

within the meaning of the North Carolina Open Meetings Law. G.S. § 143-318.10(b).

11. Defendant Gwen Wisler is a resident of Buncombe County, is a member

of the Asheville City Council, being sued in her official capacity, and is a public agency

within the meaning of the North Carolina Open Meetings Law. G.S. § 143-318.10(b).

JURISDICTION, STANDING, VENUE AND LIMITATIONS

12. This court has subject matter jurisdiction in this action pursuant to N.C.

Gen. Stat. §§ 143-318.10 et seq. and 1-253 et seq.

13. This court has personal jurisdiction over the parties pursuant to N.C.

Gen. Stat. § 1-75.4.

14. The plaintiffs have standing to institute and pursue this action pursuant

to N.C. Gen. Stat. §§ 143-318.16, 143-318.16A and 1-253.

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 THE OPEN MEETINGS LAW

15. The Open Meetings Law articulates the strong public policy that the

public’s business be conducted in public view.

Whereas the public bodies that administer the legislative, policy-

making, quasi-judicial, administrative, and advisory functions of North
Carolina and its political subdivisions exist solely to conduct the people's
business, it is the public policy of North Carolina that the hearings,
deliberations, and actions of these bodies be conducted openly.

G.S. § 143-318.9.

Except as provided in G.S. 143-318.11, 143-318.14A, and 143-318.18,

each official meeting of a public body shall be open to the public, and any
person is entitled to attend such a meeting. Remote meetings conducted
in accordance with G.S. 166A-19.24 shall comply with this subsection
even if all members of the public body are participating remotely.

§ 143-318.10(a).

16. The law defines official meetings broadly:

"Official meeting" means a meeting, assembly, or gathering together at

any time or place or the simultaneous communication by conference
telephone or other electronic means of a majority of the members of a
public body for the purpose of conducting hearings, participating in
deliberations, or voting upon or otherwise transacting the public
business within the jurisdiction, real or apparent, of the public body.
However, a social meeting or other informal assembly or gathering
together of the members of a public body does not constitute an official
meeting unless called or held to evade the spirit and purposes of this
Article.

§ 143-318.10(d).

17. North Carolina’s Open Meetings Law provides that “Actions brought

pursuant to G.S. 143-318.16 or G.S. 143-318.16A shall be set down for immediate

hearing, and subsequent proceedings in such actions shall be accorded priority by

the trial and appellate courts.” G.S. § 143-318.16C.

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 18. North Carolina courts have ruled no fewer than 22 times that in

considering requests for public access, the right of access is to be liberally construed

and exemptions narrowly construed. LexisNexis Risk Data Mgmt. v. N.C. Admin.

Office of the Courts, 368 N.C. 180, 185, 775 S.E.2d 651, 654 (2015); State Emples.

Ass'n of N.C., Inc. v. N.C. Dep't of State Treasurer & Richard H. Moore, 364 N.C.

205, 211, 695 S.E.2d 91, 95 (2010); Virmani v. Presbyterian Health Servs. Corp.,

350 N.C. 449, 462, 515 S.E.2d 675, 685 (1999); Maready v. City of Winston-Salem,

342 N.C. 708, 730, 467 S.E.2d 615, 629 (1996); News and Observer Publ'g Co. v.

Poole, 330 N.C. 465, 475, 412 S.E.2d 7, 13 (1992); News and Observer Pub. Co. v.

State ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984); Doe v. Doe, ___

N.C. App. ___, 823 S.E.2d 583, 590 (2018); Mastanduno v. Nat'l Freight Indus., ___

N.C. App. ___, 821 S.E.2d 592, 596 (2018); DTH Media Corp. v. Folt, ___ N.C. App.

___, 816 S.E.2d 518 (2018); LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of

the Courts, 368 N.C. 180, 185, 775 S.E.2d 651, 654 (2015); Times News Publ'g Co. v.

Alamance-Burlington Bd. of Educ., 242 N.C. App. 375, 376, 774 S.E.2d 922, 924

(2015); Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768

S.E.2d 23, 25 (2014); In re Search Warrants Issued in Connection with the

Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 186, 683 S.E.2d

418, 423 (2009); News Reporter Co. v. Columbus Cty., 184 N.C. App. 512, 514, 646

S.E.2d 390, 393 (2007); Womack Newspapers v. Town of Kitty Hawk, 181 N.C. App.

1, 17, 639 S.E.2d 96, 107 (2007); Carter-Hubbard Pub. Co. v. WRMC Hosp.

Operating Corp., 178 N.C. App. 621, 624, 633 S.E.2d 682, 684 (2006) writ allowed,

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361 N.C. 218, 642 S.E.2d 246 (2007) and aff'd sub nom. Carter-Hubbard Publ'g Co.,

Inc. v. WRMC Hosp. Operating Corp., 361 N.C. 233, 641 S.E.2d 301 (2007); City of

Burlington v. Boney Publishers, Inc., 166 N.C. App. 186, 191-92, 600 S.E.2d 872,

876 (2004); McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459,

469, 596 S.E.2d 431, 437 (2004); Gannett Pacific Corp. v. North Carolina State

Bureau of Investigation, 164 N.C. App. 154, 156, 595 S.E.2d 162, 163 (2004); Boney

Publishers, Inc. v. Burlington City Council, 151 N.C. App. 651, 658, 566 S.E.2d 701,

704 and 706 (2002); Multimedia Pub. of North Carolina, Inc. v. Henderson County,

136 N.C. App. 567, 575, 525 S.E.2d 786, 791 (2000); H.B.S. Contractors, Inc. v.

Cumberland County Bd. of Educ., 122 N.C. App. 49, 54, 468 S.E.2d 517, 521 (1996);

Advance Publications, Inc. v. City of Elizabeth City, 53 N.C. App. 504, 506-07, 281

S.E.2d 69, 70-1 (1981).

FACTUAL ALLEGATIONS IN SUPPORT OF PLAINTIFFS’ CLAIMS

19. The Asheville City Council has announced plans for a two-day retreat

March 31 and April 1 to be conducted at Harrah's Cherokee Center - Asheville, which

is owned and managed by the city.

20. The City has announced that the portion of the meeting that will take

place from 8:30 a.m. to 3:00 p.m. on Wednesday, March 31, will be a closed session

for “team-building activities.”

21. Upon information and belief, the closed session will be devoted to

“strengthening personal relationships, teamwork and communication required to do

meaningful work together.”

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 22. Expressing their strong objection to the meeting being held in closed

session and their view that the Open Meetings Law required open sessions, plaintiffs

urged the City to seek counsel from the North Carolina Attorney General.

23. Asheville City Attorney Brad Branham stated that instead he would

consult with the UNC School of Government.

24. Upon information and belief, UNC School of Government Faculty

Frayda Bluestein, the David M. Lawrence Distinguished Professor of Public Law and

Government, provided Asheville City Attorney Branham with her opinion that the

planned meeting constituted public business that could not be conducted in closed

session.

25. On March 24, Attorney Branham wrote, “Upon consultation with the

School of Government, I remain committed to my opinion that the ‘get to know you’

session of the City Council retreat does not qualify as an official meeting as described

by the North Carolina open meetings laws. I have discussed this opinion with the

mayor, and the city plans to proceed with the Council retreat as planned.”

26. The Notice of the March 31 meeting posted on the City of Asheville

website states:

City Council will hold their annual retreat on March 31 and April 1,
2021. The March 31 meeting will begin at 3:00 p.m. and the April 1
meeting will begin at 8:30 a.m., both on the Arena Floor of Harrah’s
Cherokee Center – Asheville, located at 87 Haywood Street, Asheville,
N.C. This retreat will be in-person for Council members, a small
number of staff, facilitators and members of the media; however, due to
COVID restrictions, the public should continue to view the meeting
virtually. Members of the City Council and City staff will meet on March
31st prior to the start of the public meeting, but no public business will

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 be deliberated and no actions will be taken. This portion of the retreat
will not be open to the public.

https://www.ashevillenc.gov/government/city-council-agenda/

27. Upon information and belief, the City of Asheville has hired Nicholas

Beamon of One Team Leadership and Kimberly Hunter to “facilitate” the meeting.

Upon information and belief, those individuals will be paid by the City of Asheville.

OPEN MEETINGS LAW VIOLATION

28. It would be a violation of the North Carolina Open Meetings Law for the

Asheville City Council, unquestionably a public body, to go forward with a publicly

funded session the goal of which is to strengthen and improve the operations of the

public body. Such a meeting is “transacting public business” and must take place as

an open, public session.

WHEREFORE, the plaintiffs respectfully pray unto the court for the entry of:

(1) an order pursuant to N.C. Gen. Stat. §§ 143-318.16A and 1-253 declaring

that the March 31, 2021, meeting must be conducted in open session with members

of the public able to attend;

(2) an order, pursuant to N.C. Gen. Stat. § 143-318.16, enjoining the

defendants and anyone acting in concert with them from conducting meetings

violations of the Open Meetings Law;

(3) an order awarding the plaintiff its reasonable attorney fees pursuant to

N.C. Gen. Stat. § 143-318.16B; and,

(4) such other and further relief as the court may determine to be

appropriate and necessary.

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This the 29th day of March 2021.

STEVENS, MARTIN, VAUGHN & TADYCH, PLLC

By: /s C. Amanda Martin

C. Amanda Martin
N.C. State Bar No. 21186
amartin@smvt.com
Hugh Stevens
N.C. State Bar No. 4158
hugh@smvt.com
Michael J. Tadych
N.C. State Bar No. 24556
mike@smvt.com
Attorneys for Plaintiffs
6300 Creedmoor Road
Suite 170-370
Raleigh, NC 27612
Telephone: 919-810-6246

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