Open meetings case may go to Md. high court

Lawyer seeks to overturn decision that limits suits

October 02, 2003|By Tricia Bishop | Tricia Bishop,SUN STAFF

An Ellicott City lawyer said yesterday that he will ask Maryland's highest court to overturn a Howard County judge's ruling that limits legal challenges under the state open meetings law.

The ruling in August - that citizens cannot sue under the law unless they have suffered specific damages - has the news media and some members of the public in an uproar. They fear it would make open-government laws unenforceable.

The Maryland-Delaware-DC Press Association plans to file a joint motion as soon as today, requesting permission to intervene in the case, said executive director Jim Donahue. The motion - filed on behalf of 12 newspapers, including The Sun - seeks to submit a "friend of the court" brief in lawyer Allen Dyer's appeal stressing the importance of the public's role in enforcing the Open Meetings Act.

Dyer has filed a notice of appeal with the Court of Special Appeals, which typically hears such complaints involving Circuit Court rulings. But he now wants the Court of Appeals, Maryland's top judicial body, to handle the ruling. The high court usually receives about 700 such requests each year.

"It's definitely of such great public interest that it is only right and proper for the highest court in the state to address the issue," said Dyer, who initiated the lawsuit against the Howard County school board in November 2000, claiming its members met secretly and illegally.

The Howard Circuit Court ruling, signed Aug. 8 by Judge James B. Dudley, said Dyer did not have the legal standing to sue the county Board of Education for alleged violations of the Maryland Open Meetings Act because he did not show that he had a property interest affected adversely.

"In effect, Judge Dudley repealed the Open Meetings Act because he repealed the ability of the average citizen to enforce it," said Dyer, who, along with media attorneys and open-government activists, believes the state law should be enforced by the public.

"It basically obligates the citizens of the state to make sure that their government operates in the open," Dyer said. Dudley's ruling goes against that sentiment, he said, requiring actual damages to claim a grievance.

"As a member of the public, you certainly should have sufficient standing to sue because that's what the open meetings laws are all about - namely public access to these meetings," said Carol Melamed, chairwoman of the Governmental Affairs Committee of the Maryland-Delaware-DC Press Association.

News media representatives also worry that the ruling will be interpreted to make it more difficult for them to perform their watchdog duties.

"The Open Meetings Act is used by the media to gather and report information to the public," Donahue said. "If this decision were construed by other people to say that the press didn't have standing, then the act from the press' point of view is meaningless."

The 11 other newspapers behind the press association's motion are: The Washington Post, Maryland Gazette Newspapers, The Washington Times, Annapolis Capital, The Frederick News-Post, The Hagerstown Herald-Mail, Daily Times in Salisbury, The Daily Record in Baltimore, Carroll County Times, Dundalk Eagle and Ocean City Today.

For the Court of Appeals to hear Dyer's case, he has to persuade members that the issue is of great public interest.

"It has to have some importance beyond the parties in the case," said Robert M. Bell, chief judge of the Maryland Court of Appeals. "We are a policy-making court so it has to further that duty that we have, and have a rather general broad interest to the bench and bar."

The school board's attorney, Leslie R. Stellman, said he is not convinced this is such a case.

"It does not, in my opinion, involve such a momentous issue that it requires the Court of Appeals to look at the case," Stellman said. "It just requires an interpretation of the law."

Stellman said he doesn't know if he will oppose Dyer's request, but noted that if he does and the Court of Appeals does not hear the case, it would likely be resolved by the Court of Special Appeals. But Dyer hopes his case makes it to the top. "When the Court of Appeals speaks," Dyer said, "everybody listens."

If the appeal is successful, the lawsuit would be sent back to Dudley, who would have to rule on Dyer's allegations against the Howard school board.

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