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...?