On May 27 the Idaho Press Club (IPC) filed a lawsuit against the Idaho Legislature for holding closed meetings of official legislative committees. This would seem to be in violation of the spirit of the Idaho Constitution and of Idaho's Open Meeting Law. Article III, Section 12 of the Constitution reads: "Secret Sessions prohibited. The business of each house, and of the committee of the whole shall be transacted openly and not in secret session." This was strengthened through the passage of the Open Meeting Law in 1974, which states: "All meetings of any standing, special or select committee of either house of the legislature of the state of Idaho shall be open to the public at all times, and any person may attend any meeting ..." Despite the unambiguous wording of this law, both the Senate and the House later adopted procedural rules that allow for executive sessions, or closed meetings, of legislative committees.
The recent problems began during the 2003 legislative session, when several committees held executive sessions. The decision to do so was supported by an April 2003 opinion from Deputy Attorney General Brian Kane. At issue was whether the internal rules of the House and Senate could supersede both the Constitution and Idaho Code. Citing the Legislature's right to control its own proceedings, Kane wrote, "statutes may control procedure insofar as they do not conflict with the rules of the houses or with the provisions of the constitution." He concluded that in the conflict of the Legislature's internal rules versus the Open Meeting Law, the rules are what must win out. Although the opinion cautioned against use of executive sessions, it nevertheless approved of their legality.
Others disagree, however. IPC attorney Allen Derr concluded that the attorney general's opinion was in error. In his analysis of the opinion, Derr said the procedural rules adopted by the Legislature cannot violate specific constitutional requirements, specifically the prohibition on secret sessions. "The general cannot trump the specific, nor can rules supersede the Constitution."
According to IPC President Mark Browning, "The constitution is very clear. I think it's pretty clear as to what constitutes an open meeting. The people of Idaho expect their government business to be done in an open light. ... It's the people's government."
"The Legislature has never had the authority to keep the public out of its committee meetings," said Derr.
In a joint letter from May 3, 2003, IPC and other media groups wrote, "Closed meetings violate state law, but just as importantly, they violate the public trust. Secrecy in government arouses suspicion. Transparency in government fosters trust. We respectfully urge the Legislature to incorporate Idahoans in the committee process--and follow the letter of the law--in all of its future meetings."
Their urgings, however, fell on deaf ears. This past spring, two more executive sessions of committee meetings were held. During the first week of the legislative session, the Resources Committee of both the Senate and the House had closed meetings. At the time, Spokane Spokesman-Review reporter Betsy Russell, then president of the Idaho Press Club, protested the use of closed meetings, as did the Democratic members of the Senate Resources Committee. But protest seemed to be all that they could do.
Although it was rumored that legislative leadership was working on a way to resolve the conflict last session, nothing came of it. Therefore, the Press Club decided to file a lawsuit so that the courts can make a final decision. Described as a friendly lawsuit, the Press Club is not seeking damages; rather, said IPC President Mark Browning, "We're really looking for definition and boundaries. We need a judicial authority to define what constitutes an open meeting and a closed meeting and what can be open and closed."
Although lawmakers may point to the attorney general's opinion as the answer to those questions, Browning said there is a "discrepancy between the legal opinion [that came] out of the [attorney general's] office and what's in the [Idaho] Constitution."
"Idahoans have made their wishes known," said Browning. "They demand that their government operate in the light of day, rather than behind the secrecy of closed doors. It is our responsibility as the Fourth Estate to make sure Idahoans know what their elected representatives are doing with their government."
Derr, who along with attorney Deb Kristensen is representing IPC, said they want the Legislature to "recognize the Constitutional provisions for open meetings." There are, Derr said, "legitimate methods" for discussing sensitive topics without resorting to closed committee meetings. This is in reference to the closed meetings of the House and Senate Resources Committees last session when the chairs of both those committees closed the meetings in order to discuss legal matters from a court case that was under a judge's gag order. At the time, legislative leaders said the urgency of the matter meant there was no other option and the meetings must be closed to the public.
It is likely the case will go to the state Supreme Court. Describing it as a "precedent-setting case," Browning said, "We know that should the ruling come against us, we plan to appeal" and he expects the Legislature would do the same. Since announcing the lawsuit three weeks ago, IPC has received major contributions from media outlets throughout the state, as well as private donations. Browning estimates they have raised nearly $15,000 in donations, and hope to get twice that amount, as they face the lengthy appellate process.
Judge Deborah Bail of Ada County has been assigned the case, and is currently awaiting the Legislature's response to the lawsuit, due June 16. Derr said it would probably be several months before the case is decided, though a summary judgment could be made this summer. Either way, people on both sides of the issue can only hope that the murky issue of closed committee meetings will be cleared up before the Legislature meets again next January.