Texas Open Meetings Act faces second legal challenge

From the Winter 2010 issue of The News Media & The Law, page 18.

When a federal appeals court in October dismissed a lawsuit brought by former Texas public officials challenging the state’s open meetings act because the individuals were no longer in office, open government advocates breathed a sigh of relief.

But the relief was short lived. In December, four Texas cities and several elected officials filed a lawsuit to overturn the open meetings law invoking the same argument as the prior suit — that the criminal penalties attached to the statute, which include six months in jail or a $500 fine, violate their right to free speech. However, prosecutions are rare in Texas and the punishments are rarely used.

The resurgence has open government advocates, public officials and their attorneys debating whether open meetings laws that attach criminal penalties are constitutional — and the battle could have far-reaching implications beyond the state of Texas.

The first challenge: Rangra v. Brown

The first suit challenging the Texas Open Meetings Act began when four Alpine city council members exchanged e-mail messages about an upcoming meeting. Two were indicted for violating a provision of the law that requires a quorum of public officials to discuss official business in public.

Though prosecutors eventually dropped the criminal charges, a current and former Alpine city council member filed suit against the local district attorney, the Texas attorney general and the state of Texas, arguing that the open meetings law violated their free speech rights under the First Amendment.

A federal judge in Pecos, Texas, upheld the constitutionality of the Texas Open Meetings Act in 2006. “The [Act] does not impede the freedom of speech; the Act simply requires speech . . . be made openly, and in the presence of interested public, as opposed to ‘behind closed doors,’” Judge Robert Junell wrote in his opinion.

But a three-judge panel of the U.S. Court of Appeals in New Orleans (5th Cir.) disagreed. “The First Amendment’s protection of elected officials’ speech is full, robust, and analogous to that afforded citizens in general,” Judge James Dennis wrote, noting that any regulation of elected officials’ speech must be narrowly tailored and serve a compelling state interest. The panel sent the case back to Junell for further consideration under the heightened standard of review.

The Texas attorney general filed a petition for a rehearing before a full panel of the Fifth Circuit and more than a dozen state attorney generals filed friend-of-the-court briefs in support. The Reporters Committee for Freedom of the Press filed its own friend-of-the-court brief saying the Texas Open Meetings Act regulated meetings, not speech, and the Fifth Circuit panel opinion could cast doubt on similar laws across the country.

The full Fifth Circuit panel dismissed the case as moot because after four years of litigation, the two plaintiffs were no longer serving terms on the Alpine City Council and therefore lacked the proper standing to sue. But because the court agreed to rehear the case and then dismissed it, the questions raised when the three-judge panel sent the case back to district court were never answered.

“It’s a good thing they did this, because right now it’s unclear how much of a precedent the [Rangra] case set,” said Peter M. Friedman, a partner at Holland & Knight LLP in Chicago who has handled numerous First Amendment cases.

The next chapter

In December, the new group of plaintiffs — the cities of Alpine, Pflugerville, Big Lake and Rockport, plus 15 individual elected officials — filed suit in a federal court in Pecos alleging the state’s open meetings law infringes on their right to communicate freely with one another. The cities and public officials in City of Alpine v. Wilson are being represented by Rod Ponton and Dick DeGuerin, who also represented the Rangra plaintiffs, free of charge.

“Our lawsuit is not trying to throw out the entire Open Meetings Act,” Ponton told the Austin American-Statesman in October. “We’re only asking to declare unconstitutional the criminal provision that says that council members can’t talk to each other except at a meeting.”

The city attorney in Wichita Falls said the city joined the suit because the law is vague and gives prosecutors unlimited discretion. “We have a very even-handed district attorney in Wichita Falls, but that is not the case for many other districts in Texas,” Miles Risley said.

A far-reaching impact

Though every state and the District of Columbia have open meetings laws that prevent public officials from conducting business in secret¬ — only 13 levy criminal penalties for infractions¬ — no court has ever before struck down one of these statutes as a violation of public officials’ right to free speech. Open government advocates worry about what a successful challenge to the law in Texas might mean.

“If the federal court struck down the statute, it would have a ripple effect,” said Friedman.

Friedman says plaintiffs could use a decision in the Alpine case to wage legal battles in states like Illinois, where public officials convicted of open meetings violations can spend 30 days in jail, pay a $1500 fine or both. “I wouldn’t be surprised if someone tried to challenge the law based on the Texas situation. There is always a little bit of follow the leader,” he said.

Friedman points out that doing away with criminal penalties would be a relatively easy legislative fix that could avoid protracted litigation over the laws. The real issue is whether doing away with such penalties would deprive states of tools with which to enforce the law.

Further complicating the matter is that some legal experts are not confident the Texas Open Meetings Act can withstand the strict conditions imposed by the appeals court in the Rangra case, which require the government to show the regulation is the least restrictive necessary in order to protect a compelling state interest.

While courts are likely to agree that an open government is a compelling state interest, Friedman anticipates debate over whether barring a quorum of elected officials from speaking about public business outside a public meeting, either in person or through e-mail messages, will satisfy courts as being narrowly tailored.

Texas argues that even though this standard should not be used, the Texas Open Meetings Act passes the test. Furthermore, the state’s position is that any challenge to the constitutionality of the open meetings law on the basis of vagueness misinterprets the statute, since it only forbids knowingly participating in a closed meeting, not passively receiving emails.

Texas Attorney General Gregg Abbott’s most recent motion argued the municipalities should be dismissed from the case, leaving just the officials as plaintiffs, because cities are “creatures of the state” and therefore “may not assert constitutional claims against the state.”

If the court reject’s Abbott’s motion, the Alpine case will be closely watched as it winds its way through the court system. The Texas statute is typical of open meetings laws and other states—particularly those with criminal penalties for open meetings violations and those in the Fifth Circuit—have a lot at stake.

“To call into question the constitutionality of the Texas Open Meetings Act . . . by mischaracterizing it as a restriction on the speech of elected officials could potentially have a disastrous impact upon the public’s right to access, observe, and criticize their government officials,” the Reporters Committee’s brief to the court asserted.