NEWS MEDIA UPDATE · MINNESOTA · Freedom of Information · June 28, 2005
High court will not hear attorney-client open meeting case
June 28, 2005 · The Minnesota Supreme Court has declined to review a lower court holding that allows public bodies to hold closed meetings with their attorneys to discuss the possibility of litigation, not just actual pending litigation
In March, a three-judge panel of the state’s Court of Appeals in St. Paul upheld a trial court ruling that the Brainerd, Minn., City Council properly closed a meeting it held with its lawyer to discuss a possible lawsuit after its private community development organization denied a local peace coalition permission to march in a parade. The Brainerd Daily Dispatch had argued that an attorney-client privilege exception to the state’s open meetings law should apply only in situations where a lawsuit had actually been filed.
The panel relied heavily on Prior Lake American v. Mader, a 2002 state Supreme Court decision which requires courts to balance the attorney-client privilege against the requirements of the open meetings law to see if there is a need for absolute confidentiality and, therefore, whether the attorney-client-privilege exception to the law applies. In Prior Lake the state Supreme Court ruled that the Prior Lake, Minn., City Council improperly closed a meeting to ask an attorney for advice about a pending decision. In contrast, the appellate court noted that in Brainerd, the decision to deny the peace coalition a spot in the parade had already been made, so there was no concern that the closed city council meeting was preventing the public from giving its input.
Mark Anfinson, the attorney who represented The Dispatch, said that although he was not surprised that the Supreme Court declined to take the case, that decision “will cause a bloating of the attorney-client exception.”
“What’s going to happen with our open meeting law in the wake of this case, because of the way it compares with the Prior Lake American case a few years ago, is that when a public body is deliberating an issue that’s on its agenda and a threat of litigation comes in relating to that yet-to-be-decided question, I think Prior Lake will still require the meeting stay open, but where a threat comes in to the public body after they make a decision, they’ll be able to just routinely close those meetings now,” Anfinson said.
“So it’s not like it’s going to completely demolish our open meeting law when threats of litigation are involved, but . . . when a public body makes a decision, including very controversial ones of broad public impact, those kinds of decisions produce threats of litigation all the time and all those meetings will be closed now,” he added.
At several points in her opinion, Judge Natalie E. Hudson wrote for the unanimous court that she found some merit in The Dispatch’s arguments but was bound to follow Minnesota Supreme Court precedents.
“I’ve hardly ever seen an opinion where the court ruling against me so often says that I made some good arguments . . . and over and over they said, ‘We understand your point, but we think our hands are tied,'” Anfinson said.
Anfinson said it is “very possible” the Minnesota Newspaper Association will look to the legislature for a remedy.
(Brainerd Daily Dispatch v. Jim Dehen, et al., Media counsel: Mark Anfinson, Minneapolis, Minn.) — TS