Third remedy: constitutional

4. Remedial response to adverse judicial decisions interpreting
   the state's Open Meeting Law.

Addressing Open Meeting Law:

    With regard to the state's Open Meeting Law
GL c39 s23A and 23B the following is offered.^39

This Report examines in detial the operation of the state's
Open Meeting Law [copy of law on Pp 72--75 of this report]
and the impact this law has had on the city council and, as it
turns out, all legislative assemblies across the state.

An opinion is offered about the impact of the statute on
political speech and association and recommendations are
offered that suggest ways the law may be amended to address
these constitutional concerns.


    The intent is to accurately explain the case law
surrounding the Speech or Debate Clause of the state and
federal constitutions, as well as the controlling issues
inherent in the First Amendment to the United States
Constitution.

The research is presented fairly, accurately and in context,
and with the goal of giving the city council a better
understanding of the degreee of encroachment on protected
activities believed to have occurred.^40


____________________________________
^39 While the initital Open Meeting Law
c626 of the Acts of 1958 was of a general nature, refrring to
boards, commissions and committees, a later revision to the law
c303 of the Acts of 1975 broadened the language of the Act to
include the various levels of government "however created or
constituted within the executive or legislative branch of the
commonwealth..."

The question of whether legislative committee meetings are open
to the public is not at issue.

Whether discussion between legislators outside the committee
setting most certainly is.

Nonetheless, this is the same language that is codified in
GL c39 Section 23A & B.

In all revisions of the law, the legislature stipulated that
the law "shall not include the general court or the committees
or recess commissions thereof, or bodies of the judicial
branch."


^40 While this Report has focused only on the state's
Open Meeting Law, a cursory review of the state's
Public Records Law sugests the same infirmity exists in its
drafting and application.

43




    This Report concludes that there is sufficient causse to
reexamine the state's Open Meeting Law, both as written and as
applied, as the statute prohibits meetings, deliberations and
discussions from occurring between elected officials wishing to
exchange their views, concerns, strategies and/or suggestions
in private with one another, whether meeting as a committee
informally or individually in groups.

The constitutional issues raised by such a broad prohibition on
speech and political associations, imposed by the Open Meeting
Law, warrants that examination, for it is well-settled in law
that a statute should not be read in such a manner as to defeat
a constitutional privilege, but rather it must be read to avoid
that conflict.

It is the constitution, not the statute that
sets the parameters of its own limitations.



    In this regard, it should be understood that what this
Report offers is an informed opinion "about" the law, not an
opinion "of law."

If, however, the conclusions of this Report are fairly
accurate, as this author believes they are, and the law is to
serve its intended purpose, the recommendations contained
herein, that the law be revisited, are worth considering.

Leaving it alone is not the answer, given the constitutional
frictions inherent in its drafting and across-the-board,
sweeping aplication.

The notion that there are no constitutional issues involved in
a statute that limits speech and prohibits political
associations to such an extent, is patently absurd.


    As for methodology, a large part of this Report focuses on
the impact the state's Open Meeting Law has had on protected
First Amendment activities.

It also focuses on the impact of the statute on the
Deliberation, Speech and Debate Clause of Art. XXI of the
Declaration of Rights of our state and Art. I s6 of the
federal constitutions.

Because so few citizens know about or understand the reason for
Art. XXI, it might well be worth citing it at the outset.


    The council will note that this Report weaves both First
Amendment and state constitutional and federal issues together,
since they are so closely intertwined.

Neiher Art. XXI, nor the state's Open Meeting Law, should be
read to defeat or

44




overly burden the free speech clause of the First Amendment or
the numerous ancillary rights protected by that Amendment.

Indeed, the "deliberations," "speech" and "debate" clause
should be read in harmony with the speech guarantees of the
First Amendment.


    As for our state constitution, Art. XXI reads as follows:

          The freedom of deliberation, speech and debate,
          in either house of the legislature, is so
          essential to the rights of the people, that it
          cannot be the foundation of any accusation or
          prosecution, action or complaint in any other
          court or place whatsoever.



    With these 43 words the constitutional Famers[sp.] sought
to ensure that legislators would not face either civil or
criminal prosecution for the lawful exercise of their
constitutional duties as elected representatives.

We pay particular attention to the words of the Article:
NOTHING in a legislator's "deliberations," "speech," or
"debate," can be "the foundation for ANY accusation or
prosecution, action or complaint.^41


    What do these words mean?


    In the first case to reach the Supreme Court of the
United States regardin the federal Speech or Debate Clause,
Kilbourn v. Thompson 103 US 168 (1880) the nation's highest
court pointed to a decision of the Supreme Judicial Court of
Massachusetts interpreting the reach of the Deliberation,
Speech and Debate


____________________________________
^41 It should be noted that the federal guarantees included in
Art. 1 s6 of the United States Constitution applies to states
and local governing bodies as well.

Hence, the rights described in this Report are both federal and
state rights.

The Supreme Court of the United States has defined the clause
this way:

"The Speech or Debate Clause was designed to assure a co-equal
 branch of government wide freedom of speech, debate, and
 deliberation without intimidation or threats from the
 Executive Branch.

 It thus protects Members against prosecutions that directly
 impinge upon or threaten the legislative process."
United States v. Gravel 408 US 606, 616 (1972)

"Indeed, the Speech or Debate Clause was designed to preclude
 prosecution of Members for legislative acts.

 The Clause protects against inquiry into acts that occur in
 the regular course of the legislative process and into the
 motivation for those acts.

 It precludes any showing of how a legislator acted, voted or
 decided."
United States v. Helsioski 442 US 447, 489 (1979)

The Massachusetts Supreme Judicial Court has also enumerated
the state protections in the seminal case of
Coffin v. Coffin 4 Mass 1 (1808) and this Report will go into
greater detail about that decision throughout.

45

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