Ark. Supreme Court hears arguments over definition of public meeting

Lilly Chapa | Freedom of Information | News | November 29, 2012

The Arkansas Supreme Court on Thursday expressed frustration that the state's open meetings law contains no definition for what constitutes a public meeting, forcing the court to define the statute's limits each time a new challenge arises.

In oral arguments in McCutchen v. Fort Smith, the central issue in the case is whether an administrator's action of scheduling a series of individual meetings with members of the city's board of directors to discuss a memo he prepared constituted a meeting under the state's Freedom of Information Act.

The legislature has refused to provide a definition, requiring the state's courts to determine whether a particular activity constituted a public meeting, which creates uncertainty, said city attorney Jerry Canfield.

“The absence of legislation about the definition of a meeting has created a situation of vagueness because officials don’t know when a meeting occurs,” he said.

Brian Brooks, who represents local attorney Joey McCutchen, argued that the officials' actions should be considered a public meeting in violation of the open meetings portion of Arkansas’ FOIA, but Canfield said the official was just passing out public information before an open meeting, and discussions weren’t necessarily about the proposed law.

The state justices seemed to agree that their case-by-case determinations created confusion and were perplexed that the legislature had not sought to more precisely define what constitutes a meeting.

“If there’s rampant confusion, why hasn’t the general assembly on its own taken up the issue?” Chief Justice Jim Hannah asked. Canfield argued that the proper course for the court was to declare the law unconstitutional, prompting the legislature to act.

Brooks said in response that the court had the power to define what meeting means within the context of the law as part of its power to interpret state law.

“You don’t need to declare the statute unconstitutional,” Brooks told the justices. “This notion that this court cannot interpret the term of the statute is nowhere to be found. That’s what Supreme Courts do.”

Additionally, Canfield argued that the criminal provision of the statute violates the First Amendment in that the criminal provisions of the law impose an unconstitutional burden on city officials' free speech rights.

The case, which is on appeal from the Sebastian County Circuit Court, began when McCutchen sued the city of Fort Smith after he learned that in 2009 former city administrator Dennis Kelly discussed city business one-on-one with city leaders.

The circuit judge ruled in favor of the city, stating that parts of the FOIA are vague, overbroad and violate the First Amendment because they restrict officials’ free speech.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief, urging the state Supreme Court to reconsider the lower court’s decision and arguing that open meetings laws do not infringe upon officials' First Amendment rights.

This is not the first time the constitutionality of FOI laws has been questioned. The U.S. Court of Appeals in New Orleans (5th Cir.) recently ruled that the criminal provisions of the Texas Open Meetings Act do not violate the First Amendment rights of public officials.