SHERYL L. WRIGHT & others [Note 1] vs. CITY OF LAWRENCE.

KAPLAN, J. Ten registered voters of the city of Lawrence sued the city for a declaration that they were entitled to record on video (i.e. audio-visual) tape the public (i.e. nonexecutive) meetings of the city council. It was understood that the judge of the Superior Court would decide the case on the basis of the admitted facts, as disclosed by the pleadings and answers

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to interrogatories. The material facts may be summarized thus. On December 20, 1983, the council allowed representatives of two unions to tape record (evidently meaning sound record) public meetings of the council in which they were interested. However, on July 3, 1984, the council refused them permission to videotape such meetings. If the plaintiff voters applied to the council for permission to do the same, the council would deny the application. The judge added, on the basis of personal observation, that videotaping could by means of suitable apparatus be so accomplished as to avoid active interference with the meetings. On the case thus posited, the judge held for the defendant city, and the voters appeal from the judgment.

The case reaches us upon a record that is unsatisfactory in its legal as well as its factual aspects. Especially is it unsatisfactory because in one of the branches of the case the plaintiffs claimed a declaration on constitutional questions.

The amended complaint by its several counts sought an interpretation of a city charter provision about public meetings; an interpretation or extrapolation of the State open meeting statute; and, finally, failing both these lesser grounds of declaration, a declaration of constitutional rights. The ground of jurisdiction alleged for a suit by the ten voters was G. L. c. 43B, Section 14(2), inserted by St. 1966, c. 734, Section 1. [Note 2] This statutory provision could apply, if at all, only to the claim based on the charter provision; but that claim evidently was abandoned;

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it is not pressed in the briefs. [Note 3] If the case is considered, alternatively, as simply a suit by individuals for a declaration under the declaratory judgment chapter, G. L. c. 231A, upon the remaining claims or theories alleged, we find a violation of Section 8 of that chapter in that it does not appear of record that the Attorney General was notified and given an opportunity to be heard with respect to the constitutional phases of the suit. As recently stated in Shell Oil Co. v. Revere, 383 Mass. 682, 684 (1981), "Such notice and opportunity to be heard are `conditions precedent to the entry of a declaratory decree.' Court St. Parking Co. v. Boston, 336 Mass. 224, 226 (1957)." Cf. Lowell v. Boston, 322 Mass. 709, 740-741 (1948); City Manager of Medford v. Civil Serv. Commn., 329 Mass. 323, 330 (1952). Strictly, this would eliminate from the suit the constitutional claims, leaving only the claim under the open meeting statute, G. L. c. 39, Section 23B, which, as we shall see, is transparently feeble.

Quite apart from this, the showing on the facts lacks definiteness or precision. It is not made clear what was the ground of the action taken by the council on July 3, 1984; for aught that appears of record, it may have been an ad hoc decision responsive to a particular occasion and not intended as a prescription of a rule. As to the particular plaintiffs, there is no indication of record that they or any of them have ever presented themselves at a council meeting and demanded video rights and elicited action of any sort by the council. While an answer to an interrogatory indicates that the plaintiffs would be refused permission, this was hypothetical and the putative ground was left unexplained. [Note 4] A certain amount of "iffiness" can be tolerated in declaratory actions, see American Mach. & Metals, Inc. v. DeBothezat Impeller Co., 166 F.2d 535, 536 (2d Cir. 1948), but more than a modicum of contingency is highly undesirable

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in constitutional litigation which has a potentiality for major consequences across the Commonwealth.

The factors mentioned incline us to dismiss the present suit without decision on the merits. In candor, we add that the substantive problem seems to us at this time appropriate for legislative (or executive) settlement, not for judicial decision. With respect to the open meeting law, the plaintiffs have asked the court to derive from the statute, which in terms creates a right to sound recording of public meetings, [Note 5] an additional right to audio-visual recording (and broadcast). There are indeed cases where the "equity" of a statute may be perceived to justify the recognition of a right extending beyond the statute's bare words. In the present case, however, we believe, in agreement with the trial judge, that extension is for the Legislature. Similarly, it appears quite improbable that the United States Supreme Court would be disposed to anticipate the State or local legislative process and hold that the public's constitutional right to "know" includes a right to have the knowledge conveyed by the particular video or television medium. The full discussion in the recent case of Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir.), aff'g 596 F.Supp. 1166 (S.D. N.Y. 1984), cert. denied sub nom. Cable News Network, Inc. v. United States Dist. Court for the So. Dist. of N.Y., 472 U.S. 1017 (1985), although addressed to the question of television coverage of a civil trial in Federal court, not the meetings of a local legislative body, is highly suggestive of the current attitude of the highest court toward a case like the present. [Note 6] See also United States v. Hastings, 695 F.2d 1278

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(11th Cir. 1983); United States v. Yonkers Bd. of Educ., 747 F.2d 111 (2d Cir.), cert. denied sub nom. Post-Newsweek Stations, Fla., Inc. v. United States, 461 U.S. 931 (1983). The Supreme Judicial Court may also be expected to let the local legislative process take its course without any thought of constitutional compulsion. The court's deliberate approach to "cameras in the courtroom" and its final approval of a careful set of guidelines (see SJC Rule 3:09, Code of Judicial Conduct, Canon 3[A] [7]), as appearing in 387 Mass. 1218 [1983]), [Note 7] suggests that it did not conceive it was responding to an imperative of the constitution, and it might well see the present case as no more meet for constitutional intrusion. [Note 8]

There may come a time when sound cameras will be so thoroughly accepted, and any idea that they could distort or prejudice deliberation or offend decorum so anachronistic, that to bar them would seem the equivalent of prohibiting pencil and paper. Perhaps then the Constitution might be involved -- but at that stage the compelling effect of public opinion will have been felt and a constitutional exercise will be unnecessary. [Note 9]

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If the city council of Lawrence means as a matter of rule to exclude the plaintiffs' video equipment from the chamber, the plaintiffs' recourse is not to go to court but to stir debate on the issue before the council and elsewhere.

The judgment is vacated and the action is dismissed.

So ordered.