Open Meetings Act Lawsuit Comes to an End

Last Monday, the U.S. Supreme Court denied the petition for writ of certiorari (i.e., request to hear the case) in Asgeirsson v. Abbott.  The court’s denial brings eight years of litigation to a close.  The lawsuit, commonly referred to as “TOMA II,” was the second challenge brought by several city councilmembers who claimed – with amicus support from the League – that the criminal closed meeting provision of the Texas Open Meetings Act unconstitutionally infringes upon their right to freedom of speech.

The legal result of the court’s decision is that a previous Fifth Circuit Court of Appeals opinion upholding the Act is the law of the land in Texas.  The practical result is that city attorneys still can’t clearly advise on the legality of speaking with other councilmembers outside of a properly-posted open meeting.

After the trial court rejected the city officials’ original claim that the criminal provision in the Act is unconstitutional, they appealed to the U.S. Court of Appeals for the Fifth Circuit. In September 2012, the Fifth Circuit Court of Appeals held that the Act is constitutional because it is aimed at prohibiting the negative “secondary effects” of closed meetings.  According to the court, closed meetings: (1) prevent transparency; (2) encourage fraud and corruption; and (3) foster mistrust in government.

The next step was to ask the U.S. Supreme Court to overturn the Fifth Circuit’s opinion.  TML and the National League of Cities filed a brief in support of the appeal, but to no avail.

City officials are now left in the same place as before the appeal:  They should use caution when communicating outside of an open meeting to avoid possible criminal prosecution.

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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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