Some time in the shade: giving the public's legal counsel some relief under Alabama's Sunshine Law.

• Author: Daniel, Gerald A., Jr.

The good of the people is the greatest law. Cicero

INTRODUCTION

In 2004, the Alabama Supreme Court expanded its attorney-client exception to the Alabama open meetings law. Adopting a Tennessee standard, the court held that public commissions and boards may close meetings to discuss with their attorneys not only pending litigation, but also "imminently likely" litigation or litigation that might result from their actions. Locking out the public from decision making and policy deliberation is contrary to the black letter law of Alabama and believed by many to create a breeding ground for political corruption. The issue before the Alabama Supreme Court in Auburn University v. Advertiser Company (1) was whether the public is best served when the otherwise confidential discussions between an attorney and client are made available to the public and any potential adversary.

This case brought once again to the forefront an ongoing conflict between the competing concepts of open meetings to provide for the public's interaction with its governing bodies and the need for attorneys to be able to speak privately and frankly with their clients. This Note will review the backgrounds of these two competing concepts and review the discussion of the court and some of the other decisions that have considered the tension. Finally, this Note will look to the potential resolution of the conflict based on the decision of the court.

BACKGROUND

1. Sunshine Laws

   Sunshine Laws, also called open meeting laws, require that government deliberations and decision making be made in a public forum so that the general public may observe and thereby participate in those decisions. (2) The purpose of the laws hearkens back to the words of James Madison (3) and the notion that our democratic form of government can only succeed if the people are informed and involved in their own governance. The general public has a duty to observe the government and the decision-making process, (4) which should not be left solely to the press. (5) Thereafter, the public can make corrections to the course of their own government through the elective process. The founding fathers advanced the notion that the public has a right and a duty to be informed to ensure the best possible governance, a notion embodied in the First Amendment's constitutional guarantee of freedom of the press. (6) Today, the general public has an expectation that the media will be present to observe and report on the conduct of all public meetings, but such was not always an expectation in this country. (7)

   Sunshine laws are a relatively contemporary development in the United States, with the bulk of state legislation having been enacted in just the last fifty years. (8) Since about 1950, the national press has successfully pushed governments at all levels to open their meetings to the public. (9) Remarkably, the federal government did not open meetings and deliberations of federal agencies until the Carter administration in the mid-1970s. (10) Alabama was one of the first states to establish an open meetings law, a law that remained substantially unchanged for nearly ninety years. (11)

   1. "The Federal Government in the Sunshine Act"

      The federal government passed the federal Administrative Procedures Act in 1976 (APA). (12) The federal open meetings law (13) is an integral part of the APA, often closely associated with the Freedom of Information Act (14) and the Privacy Act. (15) Together, these three sections of the APA work to control much of the information transferred to and from the public. The federal open meetings law begins with the basic rule that all meetings are to be held in open, public fora; executive agencies may not meet privately to "conduct or dispose of agency business." (16) There are ten exceptions to the basic rule. (17) Like the Alabama law, the federal statute provides some protection against needless damage to an individual's reputation. (18) The federal law also provides closed meetings to prevent the release of information that could be used to damage critical infrastructure. (19) The last exception includes closing a meeting to discuss "the agency's participation in a civil action or proceeding." (20) The United States District Court for the District of Columbia, however, declined to extend the exception to create an attorney-client privilege in the federal law. (21)

   2. The Alabama Sunshine Law

      Alabama's original Sunshine Law prohibits any public body, board or commission from conducting any meeting behind closed doors and out of the view of the public with a single exception. (22) The exception is that private discussions may be held when the topic concerns the character or good name of a woman or a man. (23) Alabama courts have upheld this simple standard since the adoption of the statute in 1915. (24)

      Notably absent is an exception or provision for a closed session with an attorney to advise the public body as the client on legal questions or litigation. Like many other states, (25) Alabama has recently had to deal with the question of whether there is an implied exception to the open meetings law that allows a meeting to be closed for attorney-client discussions.

2. Attorney-Client Privilege

   The attorney-client privilege is both an evidentiary rule and a confidentiality standard that protects the communications between an attorney and client, prohibiting unauthorized disclosure and promoting open and honest communication. (26) Within the body of evidentiary law, the privilege is imposed by statute. (27) As a confidentiality rule, the privilege is required by professional ethics. (28) The opportunity for a client to discuss his case privately with his attorney is considered foundational to the proper conduct of the duties of an officer of the court. (29) Experience has taught lawyers that a client is much more likely to be open and honest with his attorney if he knows that his conversation is being kept inviolate. (30) The security of that confidentiality encourages the client to convey to his attorney the whole truth of his situation, no matter how embarrassing or damaging that truth might be. (31) The privilege is a commonly accepted rule today, and it is reasonable that a public body might presume to enjoy the same privilege as any other paying client.

3. Relaxing the Sunshine Law

   As late as 1979, the Alabama Supreme Court strictly adhered to the Sunshine Law. The court held in Miglionico v. Birmingham News Company (32) that the existing Alabama exception included discussions of character or reputation, but no more, and meetings should resume their open nature once such discussion had ended. This requirement applied equally to personal interviews for board positions. In that case, the city council had excluded the local newspaper from meetings in which the council interviewed candidates for the board of education and an open position on the city council. (33) The trial court found that the interviews included discussions of the candidates' good name or character, but the discussions had not been the sole topic of the interviews. (34) The discussions overstepped the bounds of the exception and the city council was enjoined from conducting such closed meetings in the future. (35) The Alabama Supreme Court affirmed the lower court's holding. (36)

   Shortly after Miglionico, the Tennessee Supreme Court considered an open meetings case that would have great impact on Alabama law. Like Alabama, Tennessee's Open Meetings Act prohibited closed sessions of public bodies. (37) In Smith County Education Association v. Anderson, (38) the local education association, representing the collective bargaining interests of the teachers in the county, sued the county board of education for closing meetings to the public. (39) The board of education met to discuss the progress of the collective bargaining process without notice to the public, in closed session, and in consultation with its attorney. (40) The Supreme Court of Tennessee reviewed decisions in several jurisdictions and adopted a majority position. (41) The court held that while the open meetings law included no express exception, the attorney-client privilege could still coexist with the statute. (42) There was no evidence that the legislature had repealed the privilege by implication, in favor of the open meetings law. (43) The court held the separation of powers doctrine which was included in the state's constitution retained to the judiciary the authority to establish an attorney-client privilege. (44) The judiciary created the privilege as a duty to be upheld by officers of the court, and the privilege could not be destroyed by the legislature under the separation of powers doctrine. (45)

   The Smith County court limited its decision. The court restricted closed attorney-client discussions to the gathering of legal information and the offering of various legal alternatives. (46) Discussions of legal options and deliberations must be reopened to the public. (47) The Tennessee Supreme Court reaffirmed its 1984 holding in Smith as recently as 1991. (48)

   Two years after Tennessee reaffirmed its position, the Alabama Supreme Court considered the Alabama Sunshine Law and the attorney-client privilege in Dunn v. Alabama State University Board of Trustees. (49) In Dunn, the Alabama Supreme Court found the Tennessee rationale to be persuasive and, like the Tennessee Supreme Court, carved out an implied exception in favor of the privilege. (50) Bringing the Miglionico decision into question, the Dunn decision raised concern among the media outlets of the state. One commentator derided the case as a clear violation of clear black letter law, and a grave overextension of judicial power. (51)

   In Dunn, the Alabama State University Board of Trustees sued to prevent the seating of two gubernatorial appointments to the board. (52) In their counterclaim, the...