Court dismisses challenge to closed meetings

BOISE – Idaho media outlets have lost the first round in their battle to block the state Legislature from closing its committee meetings whenever it sees fit.

A 4th District judge dismissed the Idaho Press Club’s challenge to those closed meetings. But media leaders had said earlier they would appeal if they lost, and they have the backing of at least some voters.

Judge Kathryn Sticklen held that the framers of the state constitution intended only that the sessions of the full House and Senate, where a majority of each body is present, had to be open to the public at all times under the provision that requires the “business of each house” must be conducted in the open.

“Standing, select and other committees do not constitute a majority of either house, and therefore they cannot conduct any ‘business,’ ” Sticklen wrote in the 10-page opinion, released by lawmakers on Friday.

Idaho Press Club President Mark Browning said Sticklen’s decision only began the debate.

“Ultimately we were going to end up in the Supreme Court no matter who landed the first blow,” Browning said. “This is something that is fundamentally essential to what we do. We’re in it for the long haul.”

There are voters who think the judge is wrong, too. As far as they’re concerned, the people they elect to the Statehouse should live by the same rules they imposed on officials at every other level of government in Idaho when they passed the open meetings law in 1974.

“It’s the fox guarding the henhouse,” Boise real estate developer Tim Day says. “Somebody’s water right might be taken away without their knowledge. Somebody’s taxes might get raised without their knowledge.”

Spurred by a spate of closed committee meetings during the 2003 legislative session, the Press Club – a consortium of Idaho newspaper, radio and television outlets – went to court last May to determine what the framers of the constitution intended when they wrote that “the business of each house … shall be transacted openly and not in secret session.”

Much of the activity during legislative sessions involves the arcane, the routine, the downright boring – usually drawing only the lawmakers themselves along with a handful of journalists and special interest lobbyists.

But because high-profile issues are often sprinkled among the minutiae, the public should pay attention – and should have access to – all of it, said Jack Van Valkenburgh of the Idaho chapter of the American Civil Liberties Union.

“Your challenge is to get everybody to care about democracy and understand that politics is democracy in action,” Van Valkenburgh said. “People don’t understand about politics until they understand that they just got screwed somehow.”

The constitution became the media group’s focus since the Legislature has adopted the legal principle that the operating procedures of each chamber are subject only to constitutional restrictions, not state law. Lawmakers contend that as a separate branch of government, their rules trump all.

Those rules allow closed committee meetings for any reason as long as two-thirds of the committee members approve, but they are rarely invoked.

Since 1990, of the thousands of committee meetings held in the Capitol, only six have been closed.

But five of those occurred in 2003 and prompted media leaders to act before a trend could take hold. Three involved briefings on court cases that were still in progress. The fourth was closed so environmental regulators could discuss the vulnerability of drinking water systems to terrorism, and the fifth covered procedures that would be used to consider tax increase bills in 2003.

“Anytime you put any kind of element of secrecy or exclusiveness in something, there’s an inherent feeling of distrust there,” said Browning, news anchor at KPVI-TV in Pocatello.

Section 12 of the Idaho Constitution says “the business of each house, and of the committee of the whole shall be transacted openly and not in secret session.”

Browning says the constitution’s reference to “business” means what it says, and the vast majority of legislative decisions are made by committee. In most cases, those decisions are simply ratified by the full House and Senate.

Senate Republican Floor Leader Bart Davis, an Idaho Falls attorney who unsuccessfully sought a vacant seat on the state Supreme Court two years ago, has been a willing front man in defending the legislative right to close those meetings.

The constitution, he argues, applies only to the sessions of the full House and Senate, not their committees.

That argument is common in statehouses across the nation.

All 50 states have open meetings laws, but the laws in at least 17 states don’t cover legislative committees, and efforts in several to remove that exemption have repeatedly failed.

The fact that meetings often draw only journalists and lobbyists doesn’t make it any less important they be kept open, real estate developer Day says.

“We can’t be there,” Day says. “But as voters, these are the people we elect and they should be accountable, and we should have a right to hear what they’re saying.”

There may be some wiggle room among legislators.

Davis and House Speaker Bruce Newcomb agree the current rules allowing any meetings to be closed are too broad.

While they both want to preserve the Legislature’s right to make its own operating rules, each said the ability to close a committee meeting should be limited to discussion of lawsuits involving the Legislature.

In addition to lawsuits, state law allows closed sessions for personnel matters, labor and trade negotiations, land transactions and consideration of records that are not public.

On those issues, Davis said, or “anything else, in my opinion, the door should be open and the citizens of the state of Idaho are welcome to attend.”