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Part 2 of a 2 part series on the issue of standing to sue for Open Meeting Act violations.
Note: Part 1 of this series explains “standing” and how it affects lawsuits. If you missed Part 1 you can find it by clicking here.
A concerned citizen who believes that the government has violated the Open Meeting Act may want to bring a lawsuit for that violation. Government lawyers’ first line of defense is usually made up of some combination of the following three arguments:
“We didn’t violate the OMA.”
“The Plaintiff doesn’t have standing to sue us.”
“The Plaintiff’s claims are now ‘moot.’”
We will address the “mootness” excuse in another post some other day. Today we focus on the “standing” excuse and the current state of the law for it.
Not too long ago the idea of “standing” in OMA lawsuits seemed to be well defined and no longer a legitimate issue to get past. But a recent case – although unpublished – makes it more of an issue again and something that OMA Plaintiffs need to be aware of. But let us flashback to 2013 and look at a case brought by citizen watchdog Joel Rabin in Bartlesville, Oklahoma.
Mr. Rabin was concerned about a development being pursued in his hometown of Bartlesville. He discovered that the local government did not follow the law when holding public meetings and held illegal executive sessions. He and his wife decided to sue the Bartlesville Redevelopment Trust Authority. Mr. and Mrs. Rabin were both citizens of Bartlesville who regularly attended public meetings and stayed up to speed on what their local government was doing. As mentioned above, the government loves to argue standing to try to get away with OMA violations and did exactly that in this case. They argued that even if the OMA was violated the Rabins had no interest or stake in the outcome of what was discussed at the public meeting where the OMA was violated. In other words, without a specific vested interest in the outcome of the meeting the Rabins did not have “standing” to sue and the case should be dismissed.
Washington County Associate District Judge Russell Vaclaw incorrectly bought the government’s argument and dismissed the Rabins’ lawsuit. Luckily they had the means to appeal this incorrect ruling. The Oklahoma Supreme Court assigned the case to the Oklahoma Court of Civil Appeals. After briefing by the parties’ lawyers, the Court of Civil Appeals reversed Judge Vaclaw’s ruling and held that the Rabins did in fact have standing to sue and the OMA grants the general public a private right of action to sue because the OMA is written for the general public and Joel and his wife are both members of the general public. The case name is Rabin v. Bartlesville Redevelopment Trust Authority. Click here to read the case on FOIBible.
After this ruling, the Oklahoma legislature cleared up language in the OMA to make it (or so we thought) very clear that anyone may bring a lawsuit for violation of the OMA. Okla. Stat. tit. 25, § 314(B) says “For a violation of this act, ANY PERSON may bring a civil suit for declarative or injunctive relief.” Notice it says ANY PERSON. That means any person, as in any, not certain or specific, ANY. Simple right? Well not so fast.
Fast forward to March 2021 and the unpublished decision in Wilkins v. The Tulsa Development Authority. Click here to read the case on FOIBible. The same sort of issue was raised on appeal. But this time the Court of Civil Appeals ruled in favor of the government, finding that Plaintiffs showed no “colorable interest” in the outcome of the resolution at issue in this OMA violation. They held the Plaintiffs did not have standing, despite being members of the general public or “any person” – remember that statutory amendment above?
Most concerning about this case, and the reason I felt compelled to write this editorial about it is the wording Judge Thornbrugh (now retired) used in two locations in his decision in Wilkins. Judge Wiseman and Judge Barnes concurred and did not choose to write separately and shy away from this wording that is offensive to government transparency principles.
The case, like most cases, starts with a recitation of the issues presented and allegations of error. Immediately after that habitual procedural routine, the first words the Court chose to write were:
“We note that the issue here is, in practical terms, one of fees. No practical relief is availed to Plaintiffs. The question of whether Plaintiffs are entitled to a judgment that the OMA was violated is driven by the fact that such a judgment would render Plaintiffs a ‘prevailing party’ entitled to fees under the OMA.”
Later on, in the Court’s ruling, they drop this line about Plaintiffs who sue the government to force it to follow the law:
“[T]he possibility of semantic and technical mischief designed only to torment and harass a public body appears substantial under these circumstances.”
These two sections give a pretty good peek into the thoughts and personal beliefs of at least Judge Thornbrugh, if not the entire three-judge panel. Let me tell you it is not a pretty picture. To me, and other fans of transparent government, this paints a picture of disdain for, at a minimum these particular Plaintiffs, if not all Plaintiffs who seek to hold our government accountable.
The Court’s ruling in Wilkins is inconsistent with the clear and stated purpose of the OMA. The OMA was “created for the purpose of governmental transparency by ensuring governmental bodies hold meetings that are open to the public.” Furthermore, “courts of this state have noted the importance of the OOMA and the need to uphold it…the OOMA ‘is to be construed liberally in favor of the public….without vigorous enforcement [of the OOMA] in the courts, laudable legislation is reduced to ‘mere words’”. Rabin.
The Wilkins decision is inconsistent with the published decision of Rabin and in blatant conflict with the mandates of § 314.