Wednesday, May 31, 2006

Blogging Lawyer Offers Michael Craddock's Vote Mongering a Pro Bono (Non-Publicō) Legal Defense

The blogger at who broke the news about Michael Craddock securing just enough votes to put Kay Brooks on the school board has been trying to characterize Craddock's critics as merely opposed to having a home-schooling mom on the board, which as we've seen is very far from the truth. But when I pointed out alleged sunshine law violations by Craddock et al., said lawyer offered the following defense:

The sunshine law is horribly vague, almost to the point of jeopardizing its enforceability (what exactly is the “spirit” of the law? what constitutes a “meeting” under the act?).

According to the only real case law, if a public body convenes for one of two purposes: (1) in order to make a decision or (2) in order to deliberate toward a decision, then it is a meeting within the scope of the Act. Neese v. Paris Special School District, 813 S.W.2d 432, 435 (Tenn.Ct.App.1990). Unfortunately, that doesn’t answer most questions regarding the Act’s applicability. There are more restrictive interpretations in Attorney General opinions, but they are not supported by judicial opinions and are not law.

The last paragraph of the sunshine law, which qualifies the entire statute, isn’t clear by any stretch. One cannot hold official meetings outside of voter view. That’s fine, but circular, as noted above. Formal meetings are clearly addressed. Short of sitting in session, the law is vague. What constitutes a “meeting”, and what constitutes “deliberation” are big question marks.

But by the plain language of the statute, the sunshine law does say that casual meetings between legislators aren’t necessarily prohibited .... If anything, Craddock is overly protected by prior court decisions

“Deliberation under the Open Meetings Act ‘refers to discussing, debating, and considering an issue for the purpose of making a decision and does not include a discussion solely for the purpose of information gathering or fact finding.’ The University of Tennessee Arboretum Society, Inc. v. The City of Oak Ridge, slip op. (E.S.Tenn.Ct.App. 1983).”

There isn’t even close to enough evidence to grab the torches and riot for Craddock’s head.

Of course, that last bit of hyperbole tells the tale: no one is grabbing torches and chasing the Frankenstein monster around. On the contrary, I've asked for an investigation on the allegations that Michael Craddock put these votes together outside of public view. We won't know whether there is enough evidence without an independent investigation.

What I got from the MooreThoughts exchange was a lawyer doing what lawyers do: parsing terms and asking "What does this or that word exactly mean?" (I've always found it ironic that in attempts to show how vague a law is lawyers often introduce an even greater lack of clarity. "What exactly is the 'spirit' of the law?" is almost an oxymoronic question. Talk about your circular logic).

My sense is that a politically conservative lawyer who has a bias for and who wishes to defend politically conservative Michael Craddock would prefer that vote mongering in some kind of nebulous, non-legal netherworld remain veiled in obscurity relative to the law on open meetings. If clarity might dictate accountability, a good legal defense further clouds the issue. So, the MooreThoughts blogger is being an able lawyer on Michael Craddock's behalf.

However, for laypeople like me, it doesn't seem too much to ask to test the Open Meeting Law's "applicability" by investigating whether certain Metro Council members violated it. Our other option is to sit around and parse the term "applicability," asking what it means and then asking what exactly each of the terms in its exact definition means ad infinitum. We could chase rabbits in legal head games, but I say, let's test it practically in the real world instead, and at the same time let's find out whether 18 members of the Metro Council betrayed the public trust as has been alleged.

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