"Justiciability."

"Redressability."

These two tortuous legal terms were used by the Alabama Supreme Court last month to deliver a devastating one-two punch to Alabama's Open Meetings Act.

First the court proclaimed that our state legislators do not need to hold any of their meetings in public and do not even need to follow their own rules. Then the court placed severe limits on the qualifications of persons who can sue under the open meetings law, although the law plainly states that "any Alabama citizen" can bring such a suit.

Let's begin with Lynn Pettway v. Del Marsh et al, which is the Alabama Education Association's attempt to sue our legislature's Republican leadership over how they passed the Alabama Accountability Act. A modest, 7-page education bill was sent to a legislative conference committee to settle differences between the House and Senate versions. Republicans, who made up a majority of the committee, recessed the meeting, then met privately and added 21 pages to the bill. Among the added provisions was a tax credit for families with children attending failing schools to help pay for tuition at private schools.

The Republican majority reconvened the full conference committee and passed the bill.

Democrats argued that the bill violated Rule 21 of the Joint Rules of the Alabama Legislature, which stipulates:

"The Committee on Conference shall not introduce a new appropriation item, earmark funds for any item that did not appear in either the House-passed or Senate-passed version, or propose new language that did not appear in either the House-passed or Senate-passed version."

Clearly the tax credit for families, to be paid for out of our state's Education Trust Fund, is "a new appropriation item." And the bill "proposed new language that did not appear" in earlier versions.

The Democrats also argued that the Republicans, a majority of the committee, met secretly to overhaul the act, effectively cutting out not just the Democrats but the media, and thereby violating the Alabama Open Meetings Act.

In a ruling issued Sept. 20, the Supreme Court said Alabama's 1901 Constitution trumps both arguments. The court conceded that the meeting violated the law:

"The Alabama Open Meetings Act provides ... that the deliberative process of governmental bodies shall be open to the public during meetings; it is applicable to the Alabama Legislature. However, the question before us is whether the legislature's alleged violation of the Opening Meetings Act is justiciable."

Here's where they lower the boom:

"Because the Alabama Constitution gives the legislature the authority to establish its own procedural rules and because the Open Meetings Act must yield to the Alabama Constitution, the legislature's alleged violation of the Open Meetings Act or Rule 21 in this case is not justiciable. It is not the function of the judiciary to require the legislature to follow its own rules."

But Alabama's Constitution of 1901 DOES state a preference for open meetings. From Section 57: "The doors of each house shall be opened except on such occasions as, in the opinion of the house, may require secrecy..."

When did the Alabama House or Senate vote on that conference committee's need for secrecy?

Section 57 was not mentioned in the justices' virtually unanimous opinion.

Then on Sept. 27, the Alabama Supreme Court issued another through-the-looking-glass ruling, this time using federal case law to trump Alabama's open meetings statute.

In Allan Pizzato and Pauline Howland v. Alabama Educational Television Commission et al., the court ruled that fired executives Pizzato and Howland could not sue their old bosses under the Alabama Open Meetings Act because they lacked standing, even though the law itself says that a "civil action" may be brought by "any Alabama citizen."

The court set aside whether or not the Alabama Educational Television Commission violated the open meetings law when its members met to discuss firing the executives. Instead the court invoked a 1992 ruling in a federal court case, Lujan v. Defenders of Wildlife, which found that plaintiffs in civil suits must have "redressibility," meaning they must have a personal stake in the outcome of litigation.

Most of the court agreed that because Pizzato and Howland had new jobs, and because any fine paid for a violation of the act would be paid into the state treasury, Pizzato and Howland had nothing to gain, and therefore had no standing to sue.

By that standard, just about no one could bring a suit under the act.

Writing for the three voices of reason on the court, Justice Greg Shaw said in a dissenting opinion that he was not convinced Lujan, the federal court case, was germane to Alabama's Open Meetings Act. "This action is not pursued by a disinterested third party or stranger to the incident, but rather by the parties who were allegedly wronged by a procedure that purportedly did not comply with Alabama law."

A finding of guilt against the commission and the civil penalty are precisely the satisfaction that Pizzato and Howland seek.

Justices Tom Parker and James Allen Main agreed with Shaw, with Parker noting the decision will "effectively neuter the [Open Meetings] Act."

Pizzato and Howland are asking for a rehearing before the court, and the Alabama Press Association is filing an amicus brief in support of their position.

We urge the Supreme Court to reconsider: Instead of straining at "redressability," render a judgment based on simple common sense.

In addition, the Alabama Constitutional Revision Commission should be tasked with amending the constitution so that the Legislature must follow the Alabama Open Meetings Act, a law our legislators passed unanimously in 2005.

(This editorial was written by Mike Marshall for the Alabama Media Group Editorial Board. He is also president of the Alabama Press Association. Contact him at mmarshall@al.com.)