TCAA NEWS
(Volume 4, Issue 3 – March 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

Eighty-First Legislative Session Is in Full Swing: More than 7,200 bills have been filed so far. (That eclipses last session’s record by more than 1,000 bills.) Keep current by reviewing the weekly edition of the Texas Municipal League’s Legislative Update, which includes a short summary of most city-related legislation that is filed, as well as articles and other updates on items of interest. View the update at www.tml.org by clicking on “Legislative.”

Texas Municipal League Federal Stimulus Package Web Page: As a way to keep the membership informed in a timely manner, the League has created a Web page that details many of the city-related portions of the American Recovery and Reinvestment Act (ARRA). The page can be accessed at www.tml.org by clicking on “Federal Stimulus Information.”

TCAA Speakers Needed! The TCAA Fall Seminar in conjunction with the TML Annual Conference is tentatively scheduled for October 22, 2009, in Fort Worth. The TCAA Board will pick speakers for that agenda at its June 10, 2009, meeting. If you are interested in presenting, please send your submission to Scott Houston at legalgovt@tml.org by May 22, 2009.

2009 TCAA Summer Conference – Register Now! Come join us for the best of both worlds: Earn MCLE credit while at the beach! The TCAA Summer Conference in South Padre Island will be held at the Isla Grand Beach Resort (formerly the Radisson Resort) on June 10-12, 2009. To register for the conference or for more information, please go to www.texascityattorneys.org. Special thanks to this year’s sponsors:

  • Abernathy, Roeder, Boyd & Joplin, P.C.
  • Banowsky & Levine, P.C.
  • Bickerstaff Heath Delgado Acosta, LLP
  • Brown & Hofmeister, L.L.P.
  • Davidson & Troilo, P.C.
  • Denton, Navarro, Rocha and Bernal, P.C.
  • Doyen Sebesta, LTD, LLP
  • FOIA Systems – Open Records
  • Hermansen, McKibben, Woolsey & Villareal, L.L.P.
  • LexisNexis
  • Lloyd, Gosselink, Rochelle & Townsend, P.C.
  • McKamie Law
  • Municipal Code Corporation
  • Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
  • Olson & Olson, L.L.P.
  • Ross, Banks, May, Cron & Cavin, P.C.
  • Russell & Rodriguez, LLP
  • Strasburger & Price, L.L.P.
  • Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
  • Texas Municipal League Intergovernmental Risk Pool
  • Thompson & Knight, LLP

This year’s topics include: (1) multiple ethics presentations; (2) climate change and its impact on municipal operations; (3) recent state and federal cases; (4) redistricting issues for city attorneys; (5) police/fire labor relations update; (6) municipal regulation of the natural gas industry; (7) legislative update; (8) real estate issues for city attorneys; (9) disaster issues; (10) CCN update; (11) airport law 101; (12) anatomy of a TCEQ enforcement action; and (13) FMLA/ADA update.

2009 South Padre hotel information: TCAA has put a hold on reservations at the Isla Grand Beach Resort (formerly the Radisson Resort) until Friday, March 27, 2009, at 8:00 a.m. At that time, rooms will be available on a first-come, first-served basis. To make your reservations, please call the Isla Grand Beach Resort directly at 800-292-7704 or 956-761-6511. (Refer to the “TCAA Summer Conference room block” to receive the conference rate.) TCAA has also secured several “overflow” hotels and will open those reservations at 9:00 a.m. on the same day. For details on those hotels, please go to the conference registration page at www.texascityattorneys.org.

TCAA Awards: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas:

  • TCAA’s Municipal Certification Program recognizes attorneys who demonstrate advanced knowledge and experience in municipal law. The program includes separate certifications for municipal prosecutors, municipal civil law attorneys, and office certifications.
  • TCAA’s Galen Sparks Awards for Outstanding Public Service by an Assistant City Attorney. These awards are intended to recognize and honor a current or former assistant city attorney for significant and distinguished career achievements in the field of municipal law. (Note: In 2009, the TCAA Board voted to grant two awards each year, one for an assistant city attorney from Texas’ eight largest cities (Arlington, Austin, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, or San Antonio) and one to an assistant city attorney from the remaining cities.)

    The recipients of this award will be honored at the TCAA Summer Conference in South Padre. In addition, TCAA will waive the recipients’ seminar registration fees and reimburse the recipients up to $500 for transportation and lodging for the meeting. The deadline to apply to receive the awards at the 2009 summer meeting in South Padre on June 10-12 is April 3, 2009.

For more information on these awards, please go to www.texascityattorneys.org.

Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.

Articles

U.S. Supreme Court Rules in Pleasant Grove City, Utah v. Summum: City Wins, Sophia Stadnyk, International Municipal Lawyers Association: A unanimous Supreme Court recently released its decision in Pleasant Grove City, Utah v. Summum, No. 07-665. Justice Alito wrote the opinion, with five justices filing concurring opinions – Justice Stevens (joined by Justice Ginsburg), Justice Scalia (joined by Justice Thomas), Justice Breyer, and Justice Souter. The question before the Court was whether the Free Speech Clause of the First Amendment entitled a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments, including a Ten Commandments monument, were previously erected and currently displayed. In brief, the Court held that the placement of a permanent monument in a public park was a form of government speech and was, therefore, not subject to scrutiny under the Free Speech Clause. Although parks were a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park was not a form of expression to which forum analysis applied.

The facts in the case were as follows. Pioneer Park in Pleasant Grove City contained a number of buildings, artifacts, and permanent displays, including the first city hall and fire department buildings, a 9/11 memorial, and a Ten Commandments monument from the Fraternal Order of Eagles, donated in 1971. The city’s criteria for permanent displays in the park required that monuments be directly related to the city’s history, or be donated by a group with “long-standing ties to the . . . community.” Summum, a religious group, applied to have a monument of its Seven Aphorisms displayed, and advised that its proposed monument would be similar to the Ten Commandments monument already in the park. (The Summum religion includes the belief that, when Moses received stone tablets from God on Mount Sinai, he received two separate sets of tablets – the first was inscribed with the Seven Aphorisms; the second tablet contained the Ten Commandments. Moses revealed the first tablet to only the few who were sufficiently spiritually mature, and received the Ten Commandments (something of a poor second) after he destroyed the Aphorisms tablet.) After the city denied Summum’s request, citing its policy, Summum sued, alleging a violation of its free speech rights. (Summum argued, but abandoned, its Establishment Clause argument before the matter reached the appellate courts.)

The Tenth Circuit held that the park monuments constituted private, not government, speech, in a traditional public forum. Pleasant Grove City’s content-based choices and policy failed strict scrutiny review, and the city was ordered to accept the monument. A divided Tenth Circuit subsequently denied the city’s petition for a rehearing and rehearing en banc. The judges who dissented on the denial of rehearing (who would be referred to in the Supreme Court decision) pointed out that parks, as traditional public forums, had to be open to speeches, demonstrations, and other forms of transitory expression. The city, in this case, had not “by word or deed, invite[d] private citizens to erect monuments of their own choosing in these parks. It follows that any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.”

Following the grant of certiorari, the International Municipal Lawyers Association (IMLA) filed an amicus brief in support of the city, authored by Professor Mary Jean Dolan of the John Marshall Law School. The brief included a survey of existing monuments and placement policies in U.S. municipalities. In its opinion, the Supreme Court several times cited the IMLA brief.

Beginning its analysis, the U.S. Supreme Court noted that there were no prior decisions on the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments. First, the government had a right of expression, the “right to speak for itself.” While the Free Speech Clause restricted the government’s regulation of private speech, including speech in traditional public forums, it did not apply to the government’s own speech. Permanent monuments accepted by governments and placed on public property, despite the fact of being donated by private entities, “typically represent government speech.” Such displays were a traditional form of a government’s expression, and “throughout our Nation’s history, the general government practice with respect to donated monuments [was] one of selective receptivity,” demonstrated by way of design input, prior submission requirements, requests for modifications, and legislative approval for specific content. Pleasant Grove City, like other governments, took into account content-based factors like local history and culture. Thus, in making the decision to accept a permanent monument, the municipality was choosing its message.

The Court rejected Summum’s argument that something more definite or formal (e.g., passing a resolution) was needed before a government could be said to adopt a monument as its own expressive vehicle. “We see no reason for imposing a requirement of this sort,” adding that the city in this case took ownership of most of the monuments in the park. To require more would be a “pointless exercise that the Constitution does not mandate.” This would be unworkable for other reasons: a monument, even a text-based one, could easily convey more than one message. As demonstrated by the Statue of Liberty, the message intended by the monument’s creator or donor could be different than that expressed by the government accepting the monument, and could change over time.

Public form analysis was “out of place” in addressing such displays. The installation of permanent monuments was not analogous to other forms of speech on government public property. Unlike demonstrating or leafleting, parks could only accommodate a finite number of permanent displays. The application of content-neutral time, place, and manner restrictions was not feasible because the “obvious truth of the matter [was] that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.”

Justice Scalia and Justice Souter, in their concurring opinions, touched briefly on the “shadow” in this case, the Establishment Clause. Justice Scalia, referring to the Court’s earlier ruling in Van Orden v. Perry, 545 U. S. 677 (2005) (Ten Commandments monuments had an “undeniable historical meaning”) added that the city here need “not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.” Justice Souter, taking a broader look, indicated that if a monument had “some religious character, the specter of violating the Establishment Clause” would require the city “to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.” However, it was “simply unclear how the relatively new category of government speech [would] relate to the more traditional categories of Establishment Clause analysis, and this case [was] not an occasion to speculate.”

Justices Stevens and Breyer also echoed the need for municipalities to be careful. Justice Stevens indicated the decision was not a “free license” for a government to “communicate offensive or partisan messages.” Justice Breyer likewise indicated that the “government speech” doctrine would not permit a city to “discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds.”

TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed

Qualified Immunity: Lorena Vera, et al. v. Gino Ruatta, et al., No. 08-41135, on appeal to the United States Court of Appeals for the Fifth Circuit on Petition for Rehearing. TML and TCAA, on behalf of the City of Pasadena, urged the court to grant rehearing. TML and TCAA argued that the appellants should be able to present their qualified immunity defense after the court dismissed the case sua sponte. The brief was filed on December 16, 2008.

Sign Regulation: RTM Media, L.L.C. v. City of Houston, No. 08-20701, on appeal to the United States Court of Appeals for the Fifth Circuit. TML supports the city’s argument that its ordinances regulating and prohibiting off-site commercial signs or billboards is constitutional and should be upheld. The brief was filed March 7, 2009.

Recent Texas Cases of Interest to Cities
Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Austin Chronicle Co. and Jordan Smith v. City of Austin, No. 03-08-00596-CV (Tex. App. Austin – Feb. 24, 2009) (mem. op.). In March of 2008, Jordan Smith, a journalist for the Austin Chronicle, submitted a public information request to the City of Austin for a copy of the entire police report created in connection with the investigation into Frances and Daniel Keller of Fran’s Daycare. Frances and Daniel Keller were jointly convicted and sentenced to 48 years imprisonment for the sexual assault of a child in 1992. The city received a ruling from the attorney general’s office that the requested information was confidential and must be withheld pursuant to section 552.101 of the Government Code based on the doctrine of common-law privacy. The Austin Chronicle filed a petition for a writ of mandamus to order the city to produce the police report, and the petition was tried in district court. The district court entered a final judgment denying the petition in its entirety, finding that the city “acted in reasonable reliance upon a written opinion of the Office of the Attorney General,” and that the police report contained highly embarrassing information that had never been made public. The police report itself was not entered into evidence.

On appeal, the Austin Chronicle contended that the evidence presented was legally and factually insufficient to find that the police report was confidential under Section 552.101 of the Government Code, and that upon prevailing, itwould be entitled to recover their attorney’s fees and costs. Under the doctrine of common-law privacy, otherwise public information is excepted from disclosure if the information contains highly intimate or embarrassing facts, and the information is not of legitimate concern to the public. See Industrial Found. of the South v. Texas Ind. Acc. Bd., 540 S.W.2d 668, 683 (Tex. 1976).

The city relied upon the letter opinion from the attorney general’s office and the district court’s conclusion that the police report should be withheld from disclosure because both the attorney general and district court inspected the report. However, because the police report was not in the record, the court of appeals did not consider this to be evidence supporting the district court’s judgment. As a result, the court of appeals concluded that there was “a complete absence of evidence of a vital fact,” namely, that the police report at issue was confidential. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Although the attorney general’s letter opinion was entitled to some degree of deference, the court of appeals noted that it is not bound by the opinion. The court of appeals concluded that the evidence was legally insufficient to support the finding that the police report was confidential.

Section 552.323 of the Government Code provides that a court may not assess costs of litigation and attorney’s fees against a governmental body if the court finds the governmental body acted in reasonable reliance on an attorney general’s opinion. See TEX. GOV’T. CODE ANN. § 553.323. Because the evidence supported that the city reasonably relied on the attorney general’s opinion, the court of appeals overruled the Austin Chronicle’s contention that it was entitled to recover attorney’s fees and costs.

Governmental Immunity—Tort: Ben McCullough and Cyndi McCullough v. City of Pearsall, No. 04-08-00395-CV (Tex. App.—San Antonio Feb. 11, 2009) (mem. op.). The court of appeals held that immunity was not waived under the Texas Tort Claims Act because the construction of sidewalks is a governmental function and the failure to put up a signal indicating that railroad tracks are nearby is not a premises defect.

Civil Service: Arturo Gracia v. City of Killeen, No. 03-08-00197-CV (Tex. App.—Austin Feb. 13, 2009). The court of appeals held that there was no statutory basis under the civil service statutes to suspend an employee who had been arrested for a Class A misdemeanor because an arrest under warrant is not the same as being “charged” under Texas Local Government Code Section 143.056.

Eminent Domain: Cascott, LLC, et al v. City of Arlington, No. 2-08-042-CV (Tex. App.— Fort Worth Feb. 19, 2009). The court of appeals held that the City of Arlington’s condemnation of property was proper because the construction of the Dallas Cowboys Stadium was for a “public purpose.”

Sexually Oriented Businesses: Thomas J. “Jim” Trulock v. City of Duncanville, No. 05-08-00343-CV (Tex. App.—Dallas Feb. 19, 2009). The court of appeals dismissed the case as moot because the original ordinance regarding sex clubs was repealed and no charges had been filed under any other ordinance.

Unemployment Compensation: Texas Workforce Comm’n v. City of Houston, No. 14-07-00407-CV (Tex. App.—Houston Feb. 19, 2009). The court of appeals held that the city’s protest to unemployment benefits was not timely under the Texas Administrative Code because the Texas Workforce Commission did not provide the city “misleading information on appeal rights.”

Governmental Immunity—Tort: City of Elgin v. John William Reagan, No. 03-06-00504-CV (Tex. App.—Austin Feb. 26, 2009) (mem. op.). In this dog bite case, the court of appeals held that the city’s immunity had not been waived because running an animal shelter is a governmental function similar to animal control, and because the adoption of the animal was not a ministerial act or use of city property that waives immunity.

Sexually Oriented Businesses: Saronikos, Inc v. City of Dallas, No. 05-07-01063-CV (Tex. App.—Dallas March 5, 2009). The court of appeals held the trial court’s summary judgment in the city’s favor was in error because there is still an issue as to whether the sexually oriented business was within 1,000 feet of the city park and because res judicata does not apply.

Airport Access Fees: Eddins Enters., Inc. v. Town of Addison, No. 05-08-00194-CV (Tex. App.—Dallas March 6, 2009). The court of appeals held the city’s airport access fee ordinance valid because the fees were reasonable, uniform, and based on the cost of the operation of the property.

Attorney General Opinions of Interest to Cities
Note: Included opinions are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion No. GA-0697 (Zoning): concludes that a home rule city may enforce its reasonable land development regulations and ordinances against an independent school district for the purposes of aesthetics and the maintenance of property values.

You can view attorney general opinions at www.oag.state.tx.us. On the same site, you can also sign up to receive e-mail updates of opinion requests and newly released opinions.

As a supplement to TCAA News, please check the TML Legislative Update Newsletter and TML’s Connect News Service .
Please contact Scott Houston, TCAA General Counsel, with your news, questions, and/or comments by e-mail at legalgovt@tml.org or by phone at 512-231-7400.
TCAA members may use the information herein for any purpose. No other person may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas City Attorneys Association.
Texas City Attorneys Association
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