Crusty Tennessee lawmakers rolling their eyes at colleague Rob Briley for taking part in a lawsuit challenging the Legislature’s closed meetings can safely accuse the young lawyer of being an independent upstart. But a media darling he is not.
Unlike the other plaintiffs in the pending lawsuit, Briley is not seeking to overturn the new state budget lawmakers passed after deliberating, in large part, during closed sessions. He is not pounding his fists at the undemocratic nature of the Legislature’s processes or spouting knee-jerk, populist dogma and claiming to fight the good fight on behalf of the state’s newspapers. All he wants is resolution to the longstanding debate about whether legislative members can legally meet in closed sessions.
“I’m not asking for the budget to be overturned, I’m not asking for the court to step in and enjoin or prohibit certain actions by the Legislature. I just want to know what the damn Constitution says,” says Briley, a Democrat from East Nashville who risks alienating other lawmakers by involving himself in the case.
“My thinking is I’ve been given three different attorney general opinions dating from 1975, to 1983, to 1989, and they all basically deal with the Open Meetings Act and...they’re directly conflicting with each other.”
Briley sums those opinions up this way: One basically says the Open Meetings Act applies to everything the Legislature does, including caucus meetings. “And then they kind of go on in later years to say, well, the Open Meetings Act does apply to the Legislature, but it’s really only a rule of procedure and the Legislature will make the determination as to the manner in which the law applies to it.”
Those conflicting opinions are confusing enough to inspire Briley to ask the court for clarification.
And even though he’s one of several plaintiffs, the relief he’s seeking is not the same as the others.
“You can have multiple parties to a lawsuit that are asking for different things,” he says. “What we’re doing is saying there’s a common nucleus of operative facts and, based upon those, one party wants to overturn the budget, but I’m only saying I want a declaration from the court to tell me what my rights, duties, and responsibilities are as a legislator.”
Briley, who admits to taking part in his share of secret meetings, says there is a constructive benefit to conducting business behind closed doors. “I think legislators believed that having meetings where people could more freely express themselves without fear of public dissemination of their views and opinions was in furtherance of passing a budget that was acceptable to the people.”
But that benefit alone, the freshman legislator says, is not sufficient to justify having closed meetings. “We’re elected to make tough decisions, we’re elected to make hard choices, we’re elected to set the policy of this state,” he says. “And simply by virtue of the fact that one of those decisions might be really hard to make and might be politically unpopular to me is not a sound basis for closing out the public to these deliberations.”
What might be a sound basis to close certain meetings of the Legislature, he says, is Article II, Section 22 of the state Constitution, which says, “The doors of each House and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret.”
Says Briley, “That means something. That has to be given some meaning by the court. I think it’s of such profound public importance that we do have a clear answer on this issue and resolution of it so that the public knows that what we’re doing is correct. I as a legislator don’t know if what we’re doing is correct because I’m getting conflicting interpretations of the law.”
Of course, if the court says that the only obstacle to the Legislature holding closed meetings is the Open Meetings Law the body passed, the General Assembly could simply change it.
“The one thing this lawsuit might be a little naive about is that the Open Meetings Law is a legislative enactment, and the Legislature can change that. We can go back and say it doesn’t apply in these circumstances specifically. So, it might be a little naive to say that’s an absolute point of law. What is an absolute point of law is the Constitution.”
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