State Legislature Must Allow Public to Fully Exercise Their First Amendment Right to Petition Their Government
ANNAPOLIS, MD – The American Civil Liberties Union (ACLU) of Maryland has sent a letter to General Assembly leaders detailing the organization’s legal analysis in support the ability of the Maryland legislature to meet and vote remotely during the COVID-19 pandemic, and reinforcing the importance of fully protecting the First Amendment right of the public to petition their government. The ACLU letter addresses a Maryland Attorney General (AG) opinion on the issue and highlights how the AG opinion does not preclude meeting and voting remotely.
“It is important to understand that the Maryland General Assembly is not constitutionally required to convene and vote in person,” said Joe Spielberger, Public Policy Counsel for the ACLU of Maryland. “What is required is that Marylanders can fully exercise their First Amendment right to petition their government. Leadership must be transparent about where and how they will convene session, and ensure that fundamental rights are not curtailed during this pandemic.”
Contrary to some interpretations, the AG opinion released on August 14, 2020, does not say that the General Assembly is prohibited from convening and voting in a remote or virtual legislative session. What it does do is address factors that courts would consider to determine the constitutionality of such a session, without clearly determining the likelihood or success of such a challenge.
The ACLU’s analysis of the AG opinion shows how it can be both Constitutional and in line with House and Senate rules and procedures for the General Assembly to convene and vote remotely or virtually. The ACLU analysis also shows how doing so requires strict adherence to Open Meetings Act requirements to protect public access to the legislative process.
Although the drafters of the State Constitution certainly intended the General Assembly to convene in Annapolis, the language of the law and historic precedent enable it to convene where it must in order to do the people’s business while keeping its members safe during emergencies. If the General Assembly decides that it is in the public interest and its own to convene virtually, there is no Constitutional provision prohibiting it from doing so.
In addition, if the General Assembly does meet in person, the ACLU letter makes clear that upholding the Open Meetings Act language about the public’s right to “attend” meetings requires more than simply allowing the public to observe them through a broadcast. The public must be allowed in person access as well. This analysis is consistent with AG guidance for holding meetings during the COVID-19 pandemic, which suggests public bodies set a maximum permissible occupancy to enable people to sit socially distanced.
The ACLU letter also states that although House and Senate committees are authorized to meet and consider legislation during the interim, they must limit their scope of work to maximize transparency and public access to the legislative process. If it is not possible to limit the scope of work, then leadership must immediately convene a special session.