Since the passage of the Montana Constitution in 1972, the people and press of this state have enjoyed some of the most liberal open government laws in the country. Last month’s unanimous decision by the Montana Supreme Court to dismiss a lawsuit brought against the Darby School District has media experts worried that the decision could begin the reversal of three decades of sunshine in the state.
On Valentine’s Day, the Montana Supreme Court unanimously dismissed a Ravalli County woman’s lawsuit alleging that the Darby School District violated open meeting laws when it hired the district’s superintendent in 2004. The woman, Bruceen Fleenor, planned to argue that the hiring was accomplished at a meeting that was not properly publicized, therefore violating the state’s open meetings laws.
Fleenor never got the chance to make her argument. The Supreme Court upheld the Ravalli County District Court’s decision to toss the case based on what the court determined was Fleenor’s lack of legal standing to sue the district.
According to John Barrows, executive director of the Montana Newspaper Association (MNA), the suit raised serious questions about whether or not citizens have the legal right to claim a government violation of the state’s open meetings laws.
“The suit basically determined that even though Fleenor is a resident of Montana, a taxpayer, and a resident in that district, she doesn’t have standing,” says Barrows.
Justice Patricia Cotter, in writing the court’s decision, said Fleenor did not meet the requirements to establish standing to bring the suit.
“[T]he complaining party must (1) clearly allege past, present or threatened injury to a property right or civil right, and (2) allege an injury that is distinguishable from the injury to the public generally…” Cotter wrote.
Barrows says the court’s “narrow” reading of the law could have detrimental impacts on the public and the press. He’s concerned that, based on the Fleenor decision, bureaucrats might begin asking reporters and citizens why they want access to meetings or documents in an attempt to determine their standing.
“I think this is a devastating decision,” says Barrows.
Jim Clarke, the Associated Press’ Montana bureau chief, agrees with Barrows’ assessment.
“The color drained from my face when I read this decision,” says Clarke. “I would have hoped that the Supreme Court Justices would have taken the facts as they are and realized that they are setting up a real uncomfortable test.”
In a memo sent to publishers, editors and reporters around the state, Robin Meguire, a Helena freedom of information attorney, advised that “all reporters, if asked, should refuse to explain their reasons for requesting public documents and attending public meetings.”
“What we want to do is have a situation where someone asks for access to public documents or meetings and is denied,” says Meguire. “Then we’ll bring another lawsuit and point out why [the Fleenor case] wasn’t the best decision.”
For its part, the Montana School Board Association (MTSBA) wasted no time in advising its members how the Fleenor decision could be interpreted by school districts across the state. The association’s March newsletter includes an analysis of the decision by MTSBA staff attorney Tony Koenig.
“This ruling is important because it should limit politically motivated challenges to decisions of school district boards of trustees,” Koenig wrote. “The open meeting laws will no longer be available as a tool for attacking Board decisions unless the person or group bringing the lawsuit can show that they have been personally impacted by the decision. Additionally, the Supreme Court’s opinion in this case could affect open meeting lawsuits brought by the media, in that it may be difficult for a newspaper to show any personal stake in the decision of a school board.”
“I completely agree with that analysis. It’s just that the lawyer for the school board thinks this is a good thing and I think it’s a bad thing,” says Clem Work, professor of media law at the University of Montana Journalism School.
Work says when he read what he took as Koenig’s gleeful interpretation of the Fleenor decision he almost needed someone to perform the Heimlich maneuver on him.
“It sort of goes to the heart of open government,” says Work. “If citizens, and by extension the media, can’t go into court to enforce the open government laws because they haven’t been personally affected, it eviscerates our open government laws.”
The Associated Press, the MNA and FOI attorneys at the Meloy Trieweiler law firm in Helena are on the lookout for cases where citizens or journalists are denied access to government meetings or documents based on the Fleenor decision.
“I expect what’s going to happen is we’re going to have to fix this the hard way,” says Clarke. “The hard way is to go back to court.”
Barrows has said he’ll lobby for a legislative fix, but in the meantime he’s advising journalists to report to the MNA any incidents where they are denied access to open meetings or records.
“If you don’t get it, and we can put together a good case, we’ll go back to court,” says Barrows.
Sunday, March 12, marks the beginning of the second annual Sunshine Week: Your Right to Know, during which news outlets throughout the country draw public attention to the importance of open government.