Must all statutory laws be written?

July 20, 2006 2:27 PM

Is there a constitutional provision in the United States that all statutory laws must be written and/or available to the public for review?

Our county has adopted new rules that it is currently enforcing, but they are not recorded anywhere in the public domain. Apparently, the county is "editing" the new rules for typographical and grammatical errors before releasing them to the public. I thought I remebered somewhere in history class where we learned that American citizens cannot be subject to laws if they aren't even public record.

posted by chitlin to Law & Government (18 answers total)

Strange. It's hard to imagine they're not recorded anywhere. Presumably these rules got adopted by the vote of either county officers or registered voters. Either way, wouldn't the rules already have been somehow made public -- typos and all -- as part of that process?
posted by nakedcodemonkey at 2:41 PM on July 20, 2006

Ignorance of the law is not a defense to violation, assuming that the law is publicly available. As for a specific constitutional requirement, not off the top of my head. I would find out which meeting these rules were adopted at, and go from there. Most likely, you can get what you need to know from the records of that meeting.
posted by MrZero at 2:54 PM on July 20, 2006

IANAL (most definitely not), however...

I think you're looking for due process, which (among other things) means:

Procedural due process is essentially based on the concept of "fundamental fairness." As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings.
posted by sbutler at 2:55 PM on July 20, 2006

What state are you in? Pretty much every US state has a public records law that says the local government must release every single document it creates to the public, upon request. The exceptions to this rule vary widely, however.
posted by croutonsupafreak at 3:17 PM on July 20, 2006

A few secret laws in America
posted by evariste at 3:17 PM on July 20, 2006

This is in the state of Texas. The County Commissioners have held hearings on the content of these rules (Subdivision Regulations - partitioning of land) for around two years. There has been lots of discussion on content, and a draft was issued in January of this year.

However, since that time, there have been two hearings per month. Proposed changes were discussed at every meeting, and one of the commissioners has been 'keeping track' of these changes and has incorporated them into the rules.

They voted on the rules last month and approved them with the changes discussed, but no one has released a final copy! We have pressed them almost daily for a month, but still no printed rules!

I was just hoping to be able to quote case law or part of the Bill of Rights to show them what they are doing is wrong.
posted by chitlin at 3:32 PM on July 20, 2006

IANAL, but in many cases, laws and regulations such as you describe are adopted with an effective date in the future, and are published in an official document or register before they become effective. In the case of the County Commissioners, there should be a procedure under Texas statutes or the state constitition for how and when these sorts of things must be adopted and become effective. The state defines the procedures under which county governments here are created and operate.

FWIW, there are "sunshine" regulations in Texas (sorry I have no citation). Here in Galveston, there are some controversies and court cases regarding official actions taken without following proper procedures (for example, leasing land to BP for a future LNG plant).

Is this worth consulting a lawyer? Or filing the state equivalent of an FOI request?
posted by Robert Angelo at 3:41 PM on July 20, 2006

...that's FOIA: Freedom of Information Act
posted by Robert Angelo at 3:41 PM on July 20, 2006

File a FOIA, my friend. Then if they drag their feet, get a paper involved. Dailies have lawyers for this, and newspaper reporters love to file FOIAs.
posted by klangklangston at 3:52 PM on July 20, 2006

From the link in your profile, I assume you are in Kerr County? Your county clerk ought to be able to help you. She is required to have records of the Commisioners' proceedings, including supporting documents.
posted by Robert Angelo at 3:58 PM on July 20, 2006

Well, there are some terms of art here. Laws have to be written and open to the public. Rules & regulations, not necessarily, as in the link evarist refers to. Presidents can issue secret executive orders, and do, all the time.

In practice, there may not be a practical distinction. But in a regulatory context of the kind the original poster refers to, this does smell like a violation of due process.
posted by Brian James at 4:21 PM on July 20, 2006

I don't think we have this in Australia. Laws come into effect by being presented as bills to the parliament, debated and passed/denied. I thought it was the same in the USA.

Apart from any issue of constitutionality, how can you be expected to obey a law that you don't know exists? And how would you be arrested? I'm pretty sure that - especially in the USA - you have a right to know what you're accused of.
posted by Lucie at 5:38 PM on July 20, 2006

Chitlin- you'll probably have more success in convincing a local authority of it's need to comply with open records/open meetings law if you cite the local controlling regulation, rather than a vague exhortation to the Constitution or Bill of Rights or fundamental Democratic principles.

So, I'd suggest that you (and anyone else interested in keeping their governments accountable or getting access to open records) consult the Reporters' Committee for the Freedom of the Press publication Tapping Officials' Secrets, a state-by-state guide which spells out the requirements and limitations of each state's Open Records/Open Meetings act. For Texas, you'd probably find what you need in the section What records are and are not subject to the act?, which outlines broad applicability to governmental bodies, and Whose records are and are not subject to the act? (Legislative Branch), which says that only legislative drafts or working papers are exempted.

If you don't have success, you might want to consult the "Procedure for Asserting Right of Access," section, on how to challenge them.
posted by Eldritch at 7:00 PM on July 20, 2006

And klangklangston, since chitlin is dealing with a state body, the Freedom of Information Act (FOIA) has no applicability whatsoever here. The FOIA is a Federal law, applying only to Federal agencies and bodies. People often mistake their state Open Records/Open Meetings act for the FOIA, and many people (including Open Records compliance officers, even) will use the term interchangeably for both. But they are very different beasts.
posted by Eldritch at 7:05 PM on July 20, 2006

Here is some information from your Attorney General. Should have all you need to know. There's even a hotline you can call that can probably answer this question easily.

FWIW, if they can't produce a written document, I have trouble believing they could enforce it in court -- that's where, I'd think, that business about due process fits in. But if you just want to *see* the rules -- that's where your Texas laws and atty. general are your friends.
posted by SuperNova at 7:38 PM on July 20, 2006

Eldrich, though I don't know Texas's nomenclature, in my state it IS called the Freedom of Information Act, and those words or FOIA have to be in the request. So the reason that I use FOIA for both state and federal requests is that it is a FOIA. But thanks for clarifying for states that don't have the same language, which may be the case in Texas.
posted by klangklangston at 6:33 AM on July 21, 2006

Looks like SuperNova nailed it.

the Texas Attorney General has an entire open records division.
posted by Megafly at 5:24 PM on July 21, 2006

Come to find out, after reviewing the link in SuperNova's post, our county is in violation of the Public Information Act of Texas. I will make our officials aware of this violation and see if they respond.

Thanks to everyone for their help!
posted by chitlin at 8:39 AM on July 22, 2006