Mississippi Legislature not a ‘public body’ and not subject to Open Meetings Act, judge rules

The Mississippi Legislature is not a public body and not subject to the state’s Open Meetings Act, a Hinds County Chancery Court judge ruled Tuesday, affirming a 2023 Mississippi Ethics Commission finding and rejecting an appeal from the Mississippi Free Press.

The decision clears the way for Mississippi’s Republican House majority to continue operating in secret, gathering a quorum of legislators to plan votes and shape legislative agendas without public access to their proceedings.

Chancellor J. Dewayne Thomas ruled in favor of the House of Representatives and former Speaker Philip Gunn on Feb. 18, asserting that while the specific language of the Open Meetings Act included all of the standing, interim and special committees of the Mississippi Legislature, the Legislature itself was excluded from the act.

Mississippi’s Open Meetings Act holds that “it being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner … the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.”

In the House, private Republican caucuses are held to control the agenda of a voting bloc powerful enough to pass or kill legislation regardless of any outside opposition.

MFP Barred from Meeting, Filed Complaint

This reporter attempted to attend a House Republican caucus meeting on March 14, 2022, before legislative staffers quickly jumped to bar the entrance. Then-House Speaker Philip Gunn, the leader of the Republican caucus before leaving the Legislation in 2024, confirmed directly at the caucus that he did not believe the secret meetings were in violation of the Open Meetings Act.

The Mississippi Free Press then brought the matter before the Mississippi Ethics Committee, which adjudicates complaints under the Open Meetings Act and other statutes. While the current and former executive directors of the Ethics Commission argued in favor of the Mississippi Free Press and the public’s access to the proceedings of the House GOP caucus, the full board voted 5-3 to reject the claim, asserting that the Legislature as a whole was not a public body.

Mississippi Ethics Committee Executive Director Tom Hood wrote in defense of the Mississippi Free Press’ appeal, stating that “the formation and determination of public policy by a quorum of the House is public business and must be conducted at open meetings.” Hood went further, calling Gunn’s arguments against the public nature of the Legislature “tortured, misplaced and fail(ing) to recognize the overarching public policy declared by the Legislature at the outset of the Open Meetings Act.”

In the Open Meetings Act, a “public body” is defined as “any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether the entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature.”

The Mississippi Free Press has long contended that “any other policymaking entity” includes the Mississippi Legislature, which is clearly a policymaking entity. On Sept. 11, 2023, Rob McDuff, an attorney with the Mississippi Center For Justice, and MFP Editor & CEO Donna Ladd announced that this news organization would sue in the Chancery Court of Hinds County, asking the court to “hold that all meetings of the House Republican Caucus that include a quorum of the membership of the Mississippi House of Representatives and that are not purely social must comply with the Open Meetings Act be open to the press and the public.”

In the announcement, Donna Ladd suggested to the Legislature that it should declare itself a public body and not withhold access from either media or the public: “While we will appeal this decision, we also call on the Legislature to amend the Act so it is clear that it is subject to all of the transparency required of all other public bodies in Mississippi,” Ladd said. “The public and the press have a right to know, and there is no reason the Legislature should be held to a lesser standard than every city council and board of supervisors throughout the state. Any notion that a Legislature full of elected officials is not a public body is a strike against public transparency.”

McDuff, on behalf of this reporter, the Mississippi Free Press and the Mississippi Center for Justice, filed the appeal in December 2023.

Judge: ‘Not A ‘Public Body’ Under the Open Meetings Act’

Judge Thomas’ determination on behalf of closed meetings was because the wording later specifies “any standing, interim or special committee of the Mississippi Legislature.” Thomas wrote that including the Legislature as a whole would be “redundant and superfluous.”

Thus, gatherings of the largest policymaking entity in Mississippi are functionally freed from the strictures of the act, outside of open floor sessions, which are covered in Mississippi’s Constitution.

“Based upon the foregoing, this Court concludes that the Mississippi House of Representatives is not a ‘public body’ under the Open Meetings Act,” Thomas wrote.

Republican House Speaker Jason White, who succeeded Gunn as the leader of the House in 2024, confirmed to this reporter prior to this year’s Legislative session that he would be maintaining his predecessor’s policy of closed GOP caucus meetings, encouraging those who wished to attend the policymaking meetings to run for office as Republicans.

Ladd said that all efforts at public transparency are worth making, even if the outcome is likely to continue to allow secrecy among elected officials’ decision-making. “Tom Hood had it right,” she said. “Meetings where decisions are made about public policy with a majority of the House present is obviously public business. This is at the very heart of sunshine laws and the public’s right to know. And the idea that the Legislature, based on a wording technicality, is not a ‘public body’ is logically absurd.”

“But we knew it would be an uphill battle,” Ladd added, “and I am proud of Rob, Nick and the MFP team for widely exposing the refusal to make those decisions within public view. Far more people know about it now. I consider that a big win for transparency and sunshine.”

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This story was originally published by Mississippi Free Press and distributed through a partnership with The Associated Press.