Federal judge drops Texas cities from open meetings suit

A federal judge ruled last week that a group of Texas cities cannot take part in a legal effort to overturn the state's open meetings law because cities have no guarantee of free speech and therefore cannot challenge the constitutionality of the law alongside 17 public officials.

The cities of Alpine, Pflugerville, Rockport and Wichita Falls cannot join the elected officials in the lawsuit against Texas Attorney General Greg Abbott, which claims that  an open meetings provision barring officials from meeting in secret violates their rights to free speech, since the cities have no First Amendment rights against the state, U.S. District Judge Robert Junell ruled on July 28.

The public officials argue that Texas' open meetings law, which attaches $500 fines and six-month jail sentences to a prohibition on a quorum of government officials deliberating behind closed doors, violates their free speech rights, though prosecutions under the law are rare.

In February, attorneys representing the state of Texas asked the court to drop the cities from the lawsuit, arguing that because municipalities are created by the state, they cannot sue their creator on constitutional grounds. The court agreed with the state’s argument, though it left open the possibility that cities might be able to sue the state under other circumstances.

Specifically, the judge disagreed that the U.S. Supreme Court’s recent decision in Citizens United, which granted free speech rights to a private corporation, applied in this case, saying that argument had “no merit” since cities are public, not private, entities.

“Although the freedom of speech is a right that is guaranteed to entities other than individual persons, Plaintiffs have not cited a single case – and the Court is aware of none – that holds the freedom of speech applies to the political subdivision of a state, or that a political subdivision can invoke the free speech rights of citizens against its own state,” Junell wrote.

The lawsuit mirrors a recent federal case that became moot after the Alpine city council members seeking to overturn the law no longer held office. Attorneys for the previous plaintiffs have taken on the new case free of charge.

The Reporters Committee for Freedom of the Press filed a brief with the Fifth Circuit that supported the constitutionality of the open meetings law during the first case. Prior to the case’s dismissal, Junell in 2006 upheld the constitutionality of the act.