Thoughts on the "Two Kinds of Law"-Part 3

Earlier I wrote a little essay about what I called the "two kinds" of law, black letter law and real law. Yesterday I followed up by responding to some of the comments that had been raised. Today I hope to provide a very brief example that will illustrate what I was talking about.

I need to point out (or cop out), though, that I do not have time to research this. So, before all of you jump on to your online Montana Codes and start telling me I am wrong about this or that, remember that I am writing this more as a hypothetical. This is not a legal opinion; it is an illustration.

One of the comments to my first post stated: "It seems many items passed by the city commissioners have been done so in closed meetings. The 3-minute limitation is one such example. That would make it null and void as it is in direct opposition to the state law." Let me restate this proposition: State law requires that local governments act in open meetings. The City's rule limiting public comment to 3 minutes was passed under circumstances that did not allow for informed, free public input, so the rule should be invalidated.

On its face, the foregoing is not a poorly stated proposition. Other than the factual assertion about the lack of input, the legal averments seem reasonable enough. Local governments are to operate openly. Public input should be solicited at nearly every step of the way. And, if the public is excluded from the process, it makes sense to do away with the rule.

That is a 'black letter law' analysis. Most lay people would look at that, think it makes sense and, after the rule was tossed out, think that the legal system 'worked.'

On the other hand, let's consider how a 'real' legal challenge to the rule might look. Our complainant files a lawsuit against the City trying to void the 3-minute rule.

Resolution 9634 was adopted at a City Commission meeting on January 16, 2007. It appears in the minutes, but there is no record of public comment. Our complainant says he tried to comment but was not allowed; City staff denies that.

First, though, from a legal point of view, public meetings have to be open. This one, apparently, was. Does the statute require that the public be allowed to testify about a particular action? I don't see that.

"Wait, though," says our complainant. "An open meeting without public participation is meaningless under the First Amendment." So, step one: The City Attorney moves for summary judgment alleging that even if the complainant is right, there is no legal requirement of public input. The complainant responds with several legal arguments including a First Amendment argument.

This requires a full round of briefing, and then a hearing.

The judge, who thinks the City Attorney is probably right, nevertheless recognizes that a very important civil right is at stake here and decides to err on the side of the citizen. The motion for summary judgment is denied. The judge then enters a scheduling order setting up various pretrial deadlines and a trial date.

The complainant sets up the deposition of a City Commissioner. At the deposition, the complainant asks very pointed questions, seemingly accusing the Commissioner of personal wrongdoing. The Commissioner refuses to answer the question. After some wrangling by the lawyers, the deposition is recessed.

Several days later, the complainant files a Motion to Compel. Again, the parties file briefs and go to a hearing. The judge rules that the Commissioner does have to answer the question, and orders the deposition reconvened. The complainant asks for his attorney fees in bringing the motion to compel. While sympathetic, the judge finds that the Commissioner had at least an arguable ground to refuse to answer so denies the fees.

By the time the lawyers get the reconvened deposition scheduled, the deadline for completion of discovery has passed (see, scheduling order, above). The City Attorney rightly agrees to extend the deadline to complete the deposition.

At the deposition, the Commissioner says that "Joe Blow was present and has a videotape showing that the whole meeting was open." Complainant's attorney reviews the City Attorney's witness disclosure and finds Joe Blow was not listed on it.

He calls the City Attorney and asks for an extension of time to take Joe Blow's deposition because he was not disclosed earlier. The City Attorney responds that while he did, indeed, forget to include Mr. Blow on his witness disclosure, Mr. Blow was disclosed in a letter written to complainant a year ago.

"No fair," says complainant. He seeks an extension from the Court. Much briefing ensues.

The Court denies the complainant's extension arguing that even with the technical omission, Joe Blow's identity was known and he is available to testify at trial. Complainant can always take an informal statement from Mr. Blow, and then will be in a position to cross-examine him at trial.

But alas, Mr. Blow refuses to speak to the complainant's attorney (as is his right). Complainant files a Motion in Limine seeking to exclude Mr. Blow's testimony. The judge reconsiders and, seeing the unfairness of it all, changes his mind and agrees. Discovery is reopened for this one witness, and the complainant is allowed to take Mr. Blow's deposition to see if he, in fact, will support or contradict the Commissioner's statement.

About this time, the City Attorney notices that the lawsuit was filed on February 23, 2007. "Wait!" he says, "that is more than 30 days from the date of the Commission's action." He files a motion for partial summary judgment alleging a) that the proceeding should be dismissed as untimely and b) that even if the proceeding goes forward, voidability is not a remedy. The complainant responds that the 30 day rule was not pleaded in the City's Answer, and further argues that the 30 day defense should be considered waived since it wasn't raised until now.

Much briefing ensues.

In the meantime, Joe Blow died. The City Attorney writes to the complainant and indicates that he still intends to use Joe Blow's videotape.

"Wait," says the complainant, "what about foundation?" "It will be provided by Mrs. Blow," states the City Attorney. But she wasn't disclosed as a witness.

Have you filed your jury instructions yet? They were due yesterday.

Wait! What were we talking about again...?


Anonymous said...

The tactics of delay most surely favor the government since their checkbook is unlimited. This is why Joe Blow gets the short stick every day. Sure, you can have your day in court... how much you got Joe?

Anonymous said...

Well, then, let's review and revise the hypothetical.
The issue of the voted 3-minute rule is interesting. I cannot find ONE SINGLE ITEM in any work session minutes going back to Oct 17, 2006 and up to and including March 20, 2007, where it was discussed during the meeting. That means it was done closed-door. Illegally.
How does that fit in? RN

Anonymous said...

Where does the 3-min rule come in? I went back and checked RNs facts. RNs right, there's nothing there.
The Resolution just suddenly appears on the Commission Meeting Agenda on Jan 16 and is voted on without preamble or discussion. So, where does that put it in the realm of legality?

GeeGuy said...

Well, they don't leave the agendas up anymore, so we can't say for sure whether it was or wasn't published on the agenda for the January 16, 2007, meeting.

So, that means that RN is making the case, I think, that unless a resolution first appears in a work session, it cannot be voted on legally. Is that the law?

I can find no statute that says any such thing.

I can find nothing in the City Code that says any such thing. So, how is the adoption of Resolution 9634 illegal? If it was placed on the agenda for the 1/16/07 meeting, and a public hearing was held, how was it done "closed door?" I don't follow you.

Then, the next anon says "voted on without preamble or discussion." You do not know that to be true. My guess is that a public hearing was opened, no one spoke for or against, and the hearing was closed. A vote was taken and, you guessed it, the resolution passed unanimously.

Unfortunate? Perhaps. But I'm not following "illegal."

Anonymous said...

No, I'm attempting to follow this. IF the work session is closed to public discussion (as it is) and the items for upcoming agenda are discussed there, and this wasn't, then where did it come from? If it only suddenly appeared at a public-notified Commissioners Meeting and was passed by vote without discussion by the public (which I have been told is the case), then that follows back to another blog of yours in which someone cited a First Amend. out of WI or MN (I think). That, in turn, made me seek out the blog which had the response about censoring the public by quashing anyone who was speaking about subjects the Commissioners didn't want discussed by invoking a time limit and by allowing some folks to cont. their speech(es)past the limit as they were benign and removing those persons who were asking "dangerous" (my words) questions.

The Jan 2007 agenda is online (listed below). The resolution was listed under New Business - Ordinances/Resolutions NOT Public Hearings where other resolutions were listed. WHY? This very much should have been a Public Hearing matter. And this is where I'm attempting to follow the legality of their moves, but I can't seem to find them.


GeeGuy said...

Since you found the link to the Agenda for me, I agree you raise an interesting point. The $64,000.00 question, then, is whether a public hearing was held on this particular resolution. It does not appear that one was, but one may have been.


Anonymous said...

I think it's interesting that you guys are debating the City Commission acting illegally, when the paper this morning had an article about the Airport Authority doing the same dam thing to screw Havre otu of some jobs. Why don't you talk about that?

Anonymous said...

Did anyone see the City Commission Agenda?

July 17, 2007

Please Note: The City Commission agenda format allows citizens to speak on each issue prior to Commission discussion. We encourage your participation.

PETITIONS AND COMMUNICATIONS Please remember that remarks are limited to three minutes per speaker.

Anonymous said...

OK, let's discuss the Airport. Its politicos are doing exactly the same thing the Commissioners are doing. And why not? The city people have been successfully getting away with this for what looks like a long time.
It's interesting to me that when one city entity behaves corruptly and suppressively, another follows quickly behind. I believe this is the new-wave method of bullying dicey plans through vote without public input. It's put forward JUST publicly enough that people think it was done correctly, when it's really not legal and it only flies because the public is unaware of the REAL law (there you go, geeguy, back to that). These entities are counting on the fact that nobody will take the time to dig and find the law broken or ignored.
That leaves the people to use the common sense of 'black letter' law and then dig for the 'real' law.
It can continue or it can be stopped. It means that citizens must do what we're doing here, brainstorm, play devil's advocate, find the truth based on the gut feeling engendered by the 'black letter' portion and apply what's learned to the 'real' portion. Then do something about it. Each erosion of the process inhibits participation, increases 'stress', and allows the corrupt entities to pass through bills, bonds, rules, regs., ordinances & resolutions for self-gain and pay-backs to friends that are detrimental to the average person. And it's the average person who must put a stop to it. RN

WolfPack said...

RN- It seems like some of you believe every action you don't agree with is illegal. All the airport delegation did was ask those in charge to try to get a boarder patrol office moved from Havre to GF. You may not like cities fighting each other for a bigger slice of the Montana economic pie but it’s hardly illegal and clearly they had GF interests in mind. Same with the city changing meeting rules, why did they have to meet ahead of time to create this ordinance? Couldn’t anyone of the commissioners just ask staff for it to be drafted and put on the agenda without a conspiracy? They should have solicited public comments before voting and we have no hard evidence they didn’t. Limiting non-agenda comments to three minutes is hardly shutting the public out and doesn’t create any great escape for commissioners from public scrutiny. Clearly the intent was a desire to bring a greater sense of order to the commission meetings which many may think was not worth the cost. This kind of rule change is hardly the fodder for the next John Grisham novel it’s made out to be.

I was idealistically being pulled along with Geeguy’s talk of black letter or common man law. After reading some of these posts, who would want to be subject to such a wide range of belief systems? As fallible as the real law may be at least its inconsistencies come in a narrower band and it is somewhat predictable. Black letter law may be what lynch mobs use to rationalize their actions.

Anonymous said...

Oh, heck. If it quacks like a duck, walks like a duck, gives birth to babies that look like ducks, what does that make it? A duck.
SME, Animal Control, the coal plant, to name the most recent patterned behavior. It's not our disagreeing with the action which makes it illegal, it's the action itself and how it's implemented.
If they don't want their actions to be considered in this light, they shouldn't commit actions that can be shown to be of a questionable nature.
When specific business is dealt with openly and correctly, while the outcome may not be liked by some people, they don't automatically jump to the conclusion of illegality or lynch mob behavior. The 'people' will even accept bad decisions and mistakes, ungraciously perhaps, allowing for human error. However, when one's senses are assaulted and you can't ignore the corpse, one must acknowledge it exits and deal with it - for the health of all. RN

Anonymous said...

Addendum: Go to

Hit the top bar for 'Government'.
Enter in the search bar
Public Hearings January 2007
(or Agenda minutes + date, etc)

I went all the way back to Oct. No such animal.

If there was a PUBLIC hearing when and where did it happen?

GeeGuy said...

Wolfpack, I agree with you that there was nothing "illegal" about the Airport's delegation contacting our congressmen to move the Border Patrol action. The impropriety, if any, stems from the fact that this act by 2 Airport Authority members may not have been voted on and authorized by a majority of the Authority.

As far as my discussion of "black letter law," you ask who would want to be "subject to such a wide range of belief systems?" I must not have explained myself very well. Black letter law exists. It is in books. It has nothing to do with belief systems.

WolfPack said...

Geeguy- I was more referring to the way the term black letter law has been used here as a synonym for laymen law. I thought you were somewhat contrasting street law and the system. Outside of the legal system I'm not so sure there are laws that are generally known and free from doubt or dispute. Human beings too easily morph their belief system to accommodate their self interest at the expense of others. The justice system while short on justice is still better than mob rule.
As for the airport delegation, I wasn’t endorsing their actions. I just hate how easily the accusation of illegality is thrown around. Whether or not they had the approval of the entire board is an internal issue for the board to address. I thought the Tribunes opinion letter from Havre was a little non-sensical and had a high pitched whining tone. What’s wrong with one community competing with another for programs or development projects? Don’t you think Havre lobbied to get a Wal-Mart and that decision had something to do with a second one not being built here? Do I blame them? Of course not, it was a smart move for their town. Few if any projects that come to GF are not at the expense of some other community.

GeeGuy said...

Wolfpack, I am not trying to suggest that lay people have an existing, general knowledge of "black letter law." I am suggesting that, if these concepts are explained to laypeople, they seem common sensical and are fairly easily understood.

As far as the airport goes, I agree that they did nothing that is illegal. This is, however, a little bit different from two cities competing for a company. The Border Patrol Sector office is already there. Imagine if we found out Billings met with the congressional delegation to try to get federal dollars to entice Centene away from Great Falls. I'm pretty sure you would think that was dirty pool.

Also, this might well have repercussions for us with Havre residents. These people do business here. A decision that can potentially piss off a market of our community's goods and services should not be made lightly, it should be made with widespread support and after much open discussion. I am not sure that occurred here.

WolfPack said...

Geeguy- I agree with your take on the border patrol office. I just think that it's wrong to call people corrupt and/or criminals with no justification. Couldn't the Airport's delegation just be called tactless or inept? It seems like some of your thoughtful readers have gone underground and been replaced by flame throwers. You write thoughtfully about city incompetence but the echo back is corruption. In my mind these are two very different charges and substituting one for the other does little to further the debate. Maybe I’m wrong and the mayor, commissioners, airport delegation, and city staff all drive a Mercedes to their lake front property for an afternoon snack of crackers and brie.

Anonymous said...

"Human beings too easily morph their belief system to accommodate their self interest at the expense of others." (Wolfpack)
No more telling statement can be made. It applies to the elected and appointed individuals and groups.