Plaintiffs in BRTA case say state Supreme Court has ruled that no personal injury required for private plaintiff to sue under Open Meeting Act
The Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act, say plaintiffs in such a lawsuit against the Bartlesville Redevelopment Trust Authority.
Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.
The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.
In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).
On May 4, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.
The BRTA pointed to the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:
1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.
It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:
It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)
The BRTA, relying upon that interpretation, contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute.
The BRTA also argues that based on the second prong of the test, private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.
In a response filed May 31, Rabin and Hurst's attorney pointed to a 2000 ruling in which the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation. (Okla. State Senate v. State Bd. for Prop. & Casualty Rates, 2000 OK 69)
The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision." (Id. ¶ 9)
The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action." (Id.)
The Senate also contended that it had standing based on another state statute. The court said that issue was controlled by a broad application of that statute.
The Court then ruled that the Senate had standing, but the Justices did so without explaining why. Was their ruling based on the Senate's contention that an Open Meeting Act violation "is a public injury," or on the Senate's other argument, or equally on both?
Regardless, the attorney for Hurst and Rabin also pointed to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.
"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.
Deciding that "the only remedy for a violation of the OMA is a criminal sanction ... would effectively nullify this body of precedential and persuasive Oklahoma court decisions determining OMA issues," she said.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.