Some open government enthusiasts were intrigued by the plucky action of a Wisconsin trial court recently, reacting to alleged violations of the state’s open meeting statute by a legislative conference committee, in issuing an injunction against the legislature’s repeal of most public employee collective bargaining rights. But the Wisconsin Supreme Court, in overruling the lower court, has concluded that the judge simply had no authority to tell lawmakers how to run their proceedings. Under the separation of powers doctrine it would take a constitutional open meeting mandate governing the legislature to supply that authority, the high court reasoned, but the open meeting law was simply an act of that legislature leaving it up to lawmakers to decide if they were complying. As one justice said in a concurring opinion, where the lower court went astray was when it “enjoined the publication of an act passed by the legislature, preventing it from becoming law. It justified this action by relying on statutory provisions that apply to the legislature except when the legislature says they do not.”
In California, although it’s hard to imagine lawmakers moving against labor in any scenario, the result of a lower court’s attempt to block legislative enactment for want of legally adequate transparency would almost certainly be the same. There are two open meeting provisions in the state constitution. Article IV, Section 7 applies to the legislature specifically, but allows the details to be spelled out in a statute governing the openness and proper public notice of legislative proceedings, as well as house rules covering situations that the statute does not, namely Joint Rule 29.5 concerning notice of meetings of conference committees (easily and not uncommonly waived in the final hours of a session). The statute expressly authorizes any member of the public to sue for injunctive or similar relief yielding a court order to prevent violations. It even subjects members to potential criminal prosecution for attending meetings in violation of the statute. But it does not authorize a court to prevent enactment of a law passed in violation of the statutory or even constitutional requirements.
The other constitutional provision, added by the voters in approving Proposition 59 of 2004, gives Californians a fundamental right—as weighty as free speech—to attend meetings of government bodies generally. But since that law was put on the ballot not by initiative but by legislative action, lawmakers carefully exempted their own meetings and records from those rights.
