FIFTH CIRCUIT DISMISSES TEXAS OPEN MEETINGS ACT CHALLENGE

Previous editions of the TML Legislative Update have reported on the progress of the Alpine Open Meetings Act lawsuit (Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, and the State of Texas).

The core question presented in the case was whether a local government official’s speech, made pursuant to official duties, has the same constitutional protections that the First Amendment grants to other types of speech.

In 2006, a federal district court upheld the law. On appeal earlier this year, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued an opinion that failed to directly answer the question. Instead, the panel returned the case to the trial court for further proceedings based on a tougher legal standard of review. Under that standard, the state would have had to prove that the criminal provision of the Open Meetings Act (Act) is not unconstitutional.

Shortly after the opinion was issued, both sides filed for a rehearing by the court en banc. An en banc rehearing is one that is conducted by all of the court’s seventeen judges. The State of Texas argued that the panel’s decision should be overturned. The plaintiffs argued that no additional trial proceedings were necessary, and that the court should have simply declared the criminal provision of the Act to be unconstitutional.

TML, along with the Texas City Attorneys Association, the Illinois Municipal League, the South Dakota Municipal League, the National League of Cities, and the International Municipal Lawyers Association, filed an amicus brief in the case in support of the plaintiff’s position.

The court granted the motions, and was set to hear oral arguments this month. But in a surprise move, the court dismissed the case on September 10 by a 16-1 decision without the benefit of hearing oral arguments.

The case was dismissed due to a lack of “standing.” The plaintiff is no longer a city official (he was term-limited as a councilmember), and the court thus deemed the case moot. “Standing” is a prerequisite to bringing suit, and the doctrine generally requires a “live controversy.” However, in the case of a statute like the Act, the law allows a case to proceed if there is a “credible threat of present or future prosecution” or if the case is “capable of repetition but evading review.” Because the criminal statute of limitations under the Act is two years, the plaintiff could still be prosecuted even though no longer in office. In addition, thousands of elected and appointed officials are still subject to criminal prosecution under the Act.

The lone dissenting justice wrote a scathing rebuke in which he lambasted the other members of the court for essentially taking the easy way out. The decisive vote, and other indications from the court, seems to indicate that further appeals of the original case may be futile.

Because of that, several city officials may file an entirely new lawsuit based on the same legal principles as the Alpine case, at the federal district court level. If you are an official who is subject to the Act, and are interested in being a plaintiff in that case, please contact Rod Ponton, Alpine’s city attorney, at rod_ponton@yahoo.com.

Contrary to what some media reports and attorney general press releases may imply, it is important to remember that neither the League nor any other entity is opposed to open government. Quite the contrary. This case was simply arguing that the threat of jail time is not the least restrictive means of achieving that goal.

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No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the
Texas Municipal League.

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