Bills to target meeting rules

Open Meetings Act would be reworded

Anyone could sue for violation

Move spurred by ruling that limited legal action

December 22, 2003|By Tricia Bishop | Tricia Bishop,SUN STAFF

Bills will be introduced in both houses of the Maryland General Assembly next year to clarify the state's Open Meetings Act and sidestep a Circuit Court ruling that narrowed those who could take legal action to enforce the law.

The legislation would make it clear that anybody could sue for violations of the open meetings law. It addresses an issue that arose in Howard County, where a judge ruled this year that only those who could show that they were "affected adversely" by an improperly closed meeting could take legal action.

"Every member of the public has a stake in having the public's business done in the open," said Sen. Brian E. Frosh, a Montgomery County Democrat. "It makes a mockery of the law if you have to show that you have some pecuniary interest or some other tangible damage that stems from violations in order to have [legal] standing."

Frosh plans to file a bill in the Senate that mirrors a measure pre-filed by Del. Elizabeth Bobo, a Howard County Democrat.

Bobo's bill - co-sponsored by Del. John R. Leopold, an Anne Arundel County Republican - deletes wording in the state's Open Meetings Act that says only people "affected adversely" by a public body's failure to comply with the law "may file with a circuit court." She replaces the section with wording that says "any person" may sue.

"The point is to make the standard what most people already thought it was," Bobo said.

Many, including Bobo, have claimed that everyone suffers when a public body breaks sunshine laws, which should qualify as enough adverse effect to file suit. But a Howard Circuit Court judge recently said otherwise, causing politicians and news media to balk, claiming the law was rendered useless by the decision.

Judge James B. Dudley dismissed a case in August against the Howard County school board because he said the plaintiff did not prove harm from the alleged lawbreaking, which Dudley interpreted to mean having had a property right affected.

"When I read about it, I thought, `This is outrageous,'" Leopold said.

The plaintiff - Allen Dyer, an Ellicott City attorney - is appealing Dudley's decision in the Court of Special Appeals with legal support from multiple media outlets, including The Sun. He had asked the state's highest court, the Court of Appeals, to hear the case, but his request was denied Wednesday.

Dyer is seeking the same right to sue as the lawmakers, who say his case was the main impetus behind their bills. A request by the Open Meetings Compliance board was a close second.

"They're so concerned about it, they asked the legislature to address it this year," Bobo said.

Compliance board members want "people who believe there has been a violation of the Open Meetings Act to not have obstacles to bringing the issue to court," said Assistant Attorney General Jack Schwartz, who counsels the board. "The effect of the current language, at least as interpreted in the one case, is to create a barrier."

The way the law is set up, people may file grievances with the compliance board when they believe a violation has occurred. But the board has no enforcement or sanctioning power and can only issue advisory opinions, which is why Leopold said it is essential that everyone be allowed to seek redress in the courts.

Some - including Dudley's former law clerk, Dana Paul - have said the "affected adversely" requirement is necessary.

"The legislature doesn't do anything by accident; they put [`affected adversely'] in there for a reason," Paul said in August after Dudley's ruling. "It's there to limit the cases brought before the court" and sift out the irrational ones, so "every taxpayer can't sue every time they think there's [a wrong]."

But Schwartz said the inherent difficulties in suing will keep frivolous lawsuits from clogging the courts.

"You have to hire a lawyer, you have to pay filing fees. The workload on the court system is such that you may face considerable delays," Schwartz said. "It's a costly and time-consuming enterprise even if the standing provision were changed. I don't think the courts are going to be flooded with cases."

The 2004 legislative session begins Jan. 14. Even if one of the bills passes, it would not have any effect on Dyer's case, the lawyer said, because the appeals judges will look at whether he had legal standing in light of the law as it was written when he filed suit in November 2000.

Still, Dyer is glad the lawmakers will introduce the bills.

"I think it's good to be able to get some interest down there in the Open Meetings Act at all," he said. "It's something that deserves regular attention."

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