On November 23, U.S. District Judge Robert Junell held a one-day bench trial in Austin regarding the constitutionality of the criminal provisions of the Texas Open Meetings Act (Act). The lawsuit is based on the same legal principles as a previous one involving city officials from the City of Alpine.  The previous case was ultimately dismissed on procedural grounds. 

In 2006, the same judge upheld the criminal provisions in the Act.  On appeal in 2009, the question was presented as to whether the speech of local government officials made pursuant to their official duties has the same constitutional protections that the First Amendment to the U.S. Constitution grants to other types of speech.  A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that when a state seeks to restrict the speech of an elected official on the basis of its content, a federal court must apply the “strict scrutiny” standard of review.  Strict scrutiny: (1) shifts the burden of proof to the government; (2) requires the government to prove that its action or regulation pursues a compelling state interest; and (3) demands that the government prove that its action or regulation is “narrowly tailored” to further that compelling interest.  In other words, the state would have to prove that the criminal provision of the Act is not unconstitutional. 

Shortly after the opinion of the three-judge panel was issued, however, the entire court dismissed the case by a 16-1 decision without the benefit of hearing oral arguments.  The case was dismissed due to a lack of standing because the plaintiff was no longer a city official (he was term-limited as a councilmember).  The court thus deemed the case moot.

The main issue in the current lawsuit is whether the three-judge panel decision in the previous suit should have precedential value.  The city official plaintiffs point out that the panel decision has already been cited by legal scholars, judges, and attorneys as precedent that should be followed.  Further, the plaintiffs contend that, although the Fifth Circuit ultimately dismissed the case on mootness grounds, the decision to dismiss did not invalidate the panel decision.  If the judge uses the panel decision as precedent, the “strict scrutiny” test will be applied to the criminal provisions of the Act.  Because that standard creates a very high legal hurdle, the criminal provisions in the Act will likely be struck down if that standard is applied.

Newspapers around the state have once again published editorials that contain various misleading statements or outright false information.  TML members should be aware that the League has not funded the lawsuit in any way.  Moreover, the TML Board of Directors decided in 2008 that League should not be a party to the suit, but should provide the type of support  that is expected in a lawsuit that could impact every city (e.g., through “friend of the court” briefs and other non-financial means of support). 

Despite the League’s attempts to clarify the incorrect statements of various media outlets and other groups about the nature of the lawsuit and the fact that TML is not “behind it,” misinformation continues to flow freely. One of the city councilmembers who testified at the November 23 trial made a valiant effort to explain why he is involved in the lawsuit, and his editorial (which has appeared in at least one daily newspaper) is printed in full below:

Texas open meetings law needs improvement

While I agree with the spirit of the [Fort Worth] Star-Telegram Editorial Board’s gallant defense of the Texas Open Meetings Act in the Nov. 26 editorial, “Texas law keeps public business in the public eye,” I feel compelled to point out a couple of straw men.

In your zeal to editorialize, you stated: “What the plaintiffs want is nothing less than judicial approval of backroom meetings and under-the-table deals involving public business.” This is simply not the case, with all due respect, which a review of Judge Robert Junell’s hearing transcript would validate.  (Editor’s note:  The transcript of the trial is available on the TML Web site here.) [legal, Open Government, Misc, November 2010 TOMA Trial Transcript]

Your caricature of my purpose in challenging TOMA, to “perk up [my] public profile” or to “avoid the ordeal of public debate” cheapens the importance of what we should be discussing. I abhor secret meetings and the political culture of concealment and darkness they foment. A history of the 20th century is a compendium of the human catastrophes that can emerge from such environments.

I also detest the use of TOMA, in my world here-and-now, as an instrument of power wielded by some in elected positions of authority to stifle the behavior, or even the thoughts and speech, of other elected officials for their own advantage. It is this unintended, negative consequence of TOMA that I seek to change. While some may scoff at the plaintiffs’ concerns as vague fears of imaginary speech police, the bullies of whom I am mindful are not imaginary, I assure you.

My apprehension about testifying in this case was that the political fringes, both left and right, would inevitably and unfairly accuse me of favoring secret meetings. Nevertheless, I thought that the political capital expended would still be worth it, for I knew that secret meetings, or as you put it “backroom meetings and under-the-table deals,” are a red herring diverting attention from the real issue.

That issue, in my opinion, is confusion, and the desire of some to maintain and even embellish such confusion as a means to attain personal objectives.

If an elected official discusses public policy on the radio with a quorum of his peers listening; or if that same official runs for re-election and mails a flyer to his constituents and his fellow elected leaders; or if he e-mails a proposed agenda to his peers and requests an open meeting; he is committing a crime in each example.

Or are they? Your answer could depend on which lawyer you questioned, or if you asked the proverbial man-on-the-street. You would likely get as many different answers as individuals asked. That is confusion.

TOMA is a vague and confusing law, made more so by opinions handed down by attorneys general and appellate court rulings throughout its 43-year history. Confusion creates a milieu of silence and non-action, hesitation that stems from fear of reprisal, including jail time and fines, or of simply making a mistake.

All of this leads to a void in understanding that enables those in positions of authority to devise their own interpretation of TOMA, often empowering it with applicability to those within their sphere of influence. This interpretation may be self-serving and intimidating -- yet cloaked in the protective garb of confusion, it generally has its way.

My initial tepid response to this lawsuit abated once I read a draft of the plaintiffs’ complaint. Described therein was my experience with the idiosyncrasies of TOMA during my four years in public office, and I felt motivated to rectify a flaw embedded in this most admirable law.

I would welcome “the ordeal of public debate” of this unintended consequence of TOMA, provided our starting point is a mutual disdain for secret meetings of any sort and our intent is to discuss and bring clarification to the real issue at hand.

Mel LeBlanc represents District 1 on the Arlington City Council.

The November 26 editorial to which Councilmember LeBlanc refers is available online here.

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