While both sides prepare for a heated lawsuit over whether the Legislature violated the Open Meetings Act, at least one prominent lawmaker suggests that all the legal wrangling may be an academic exercise.
“How are you going to stop people from having a private meeting? You’re just not going to do it,” House Republican Leader Steve McDaniel says flatly. “It’s impossible for the public to hear every word of every meeting that we go through.”
Don’t tell that to the judge. Last Friday, Circuit Court Judge Hamilton Gayden Jr. ruled that a motley collection of three unlikely plaintiffsformer television newsman and law clerk Mark Mayhew, the Nashville Scene, and NashvillePost.comall have legal standing to sue members of the General Assembly for privately deliberating over how to fund the state budget. None of the state’s daily papers has joined the suit, although The Tennessean was planning to file a friend-of-the-court brief.
The judge’s decision enabled the lawsuit to continue and dismissed the attorney general’s contention that the plaintiffs didn’t have legal standing to sue the Assembly. The plaintiffs are asking the court to throw out the new budget.
At the hearing, Michael Catalano of the attorney general’s office pointed out that the plaintiffs aren’t alleging that they were themselves actually barred from any meeting.
“We don’t think the court should entertain this lawsuit, because there is no distinct and palpable injury caused to these particular individuals,” Catalano argued.
The judge wouldn’t buy it. “The court finds it is not necessary under the Open Meetings Act thatäthe victims have been frozen out or kept out of hearings,” he said.
The judge also ruled that state Rep. Rob Briley, a Democrat from East Nashville, can join the suit as a plaintiff, although only for the purpose of clarifying the scope of the Open Meetings Act.
Gayden will hold a hearing on the state’s motion to dismiss the trial on Aug. 4. Dismissal doesn’t appear likely. For one reason, not only do state lawmakers openly admit that they met privately, they suggest that they at least “deliberated toward a decision” on various budget mattersan apparent violation of the Open Meetings Act.
“We had discussed a lot of the potential budget cuts,” says Sen. Joe Haynes of Goodlettsville, the chair of the Senate Democratic Caucus. “We had tried to reach some consensus on what might get six votes on the Finance Committee.”
Haynes insists that all initiatives that were discussed behind closed doorsincluding various generations of an income taxwere eventually debated in public. That contention may be a part of the state’s legal strategy. Courts have occasionally rendered “no-harm, no-foul,” rulings in which they don’t punish public bodies for violations of sunshine laws if private deliberations are eventually aired publicly.
But as Nashville media lawyer Bob DeLaney points out, “That argument is at odds with the spirit of the Tennessee Open Meetings Act. How can you replicate all the dynamics of the debate and assure the people that the public debate is not just a mere shadow of what occurred in private?”
Here’s another interesting and potentially explosive argument the AG’s office might make: The Tennessee State Constitution is at odds with the Open Meetings Act. In 1983 and again in 1989, the AG’s office issued opinions concluding that the statute is inconsistent with the House and Senate’s constitutional authority to determine its own rules.
That particular argument basically holds that the Open Meetings Act applies to all public bodies but the General Assembly. If the courts agree, then the lawsuit could ironically allow the Legislature to meet secretly even more frequently.
For that reason, DeLaney suggests that the state’s major newspapers might have refrained from joining the lawsuit out of fear of causing more harm than good. “I think The Tennesseean and other news organizations may have a concern that a judicial decision about this matter might create some exceptions in the law that don’t presently exist,” he says.
The trial will start the week of Aug. 29, providing that Judge Gayden doesn’t dismiss it altogether. No matter the outcome, it may not change the rather secretive culture of the General Assembly. “If you polled legislators who understood the budget process,” Rep. McDaniel says, “I think by far the majority would say if meeting in private is what it takes to get the job done, then let’s do it.”
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