Appellate court sides with Mesa woman
Zink wins several key points in 18-year-old open meetings lawsuit
Last updated 6/2/2021 at 3:35pm
MESA — After 18 years, a local woman has won several arguments in a major round in court over being denied the right to video tape a City Council meeting and then being arrested.
On Tuesday, June, 1, the state Court of Appeals, Division III found in favor of Donna Zink, a local resident who sued following the May 8, 2003, actions of the Mesa City Council and Mayor Duana Rae Ross.
Zink sued the city after Mayor Ross illegally ordered Zink to stop recording a public meeting, records show. The mayor also called 911 and asked that Zink be removed from the meeting and demanded she be arrested for trespassing.
Her removal and arrest led to the lawsuit, and this week’s appellate ruling.
In the appellate ruling, Judges Rebecca L. Pennell, Laurel H. Siddoway and Robert E. Lawrence-Berrey affirmed lower court rulings that the city had indeed violated the state Open Public Meetings Act by barring Zink from recording.
However, the appellate court lifted the “restrictive” amount of attorney fees awarded and remanded that issue back to a lower court, allowing Zink to pursue full compensation for her legal fees and costs.
In the initial lawsuit, Zink claimed $19,411.65 in fees and costs, but a lower court ordered the city to only pay $6,511.49 in compensation.
The appellate court also reversed a lower court order in finding that Mayor Ross and the city violated Zink’s rights under the Fourth and 14th Amendments.
The Fourth Amendment protects individuals from unlawful search, seizure, arrest and malicious prosecution. The 14th Amendment guarantees the right to due process and protection from malicious prosecution.
The trial court dismissed the Fourth Amendment violation allegations.
But the appellate court found that Zink’s Fourth Amendment rights were in fact denied, noting that City Council members — specific ally Councilman Patrick Fay and Mayor Ross — actively tried to persuade a deputy to arrest Zink.
“… One could conclude Mayor Ross and council member Fay instigated Ms. Zink’s arrest and imprisonment by not only calling 911 with a request for law enforcement to remove Ms. Zink, but also actively trying to convince the responding sheriff’s deputy that Ms. Zink had no legal right to record the council meeting,” the appellate ruling said. “The activities of Mayor Ross and council member Fay went beyond merely providing truthful information to law enforcement and then allowing law enforcement to take independent action. The city officials looked through statute books and relayed legal claims in an effort to convince the sheriff’s deputy there was a basis for arrest.”
Zink also sought a jury trial in her allegation of denial of due process, but the trial court said a jury trial was not warranted.
The appellate court disagreed.
“The Zinks presented a viable claim that Mayor Ross, acting in her official capacity, deprived Ms. Zink of her right to attend a public meeting by unlawfully conditioning attendance on Ms. Zink’s foregoing the video recording of the meeting,” the court found.
As a result, the Zinks are entitled to a jury trial in their violation of due process claim against Ross, according to the ruling.
The appellate court remanded the Fourth and 14th Amendments complaints back to a lower court, allowing Zink to pursue further legal actions.