© 2012 The Texas Lawbook.
By Mark Curriden
Senior Writer for The Texas Lawbook
Several city officials in Texas received a skeptical greeting in April when they asked the U.S. Court of Appeals for the Fifth Circuit to declare the Open Meetings Act unconstitutional.
The news didn’t get any better for them today.
A three-judge panel ruled unanimously Tuesday that the open meetings law does not violate the free speech rights of government leaders and does not criminalize all private speech of those officials.
“The plaintiffs’ argument fails because it ignores the other purposes of [the Opening Meetings Act], such as increasing transparency, fostering trust in government, and ensuring that all members of a governing body may take part in the discussion of public business,” Judge Jerry Smith wrote in the 17-page opinion in Asgeirsson v. Abbott. Judges Emilio Garza and Leslie Southwick joined the ruling.
Judge Smith scoffed at the argument that the law criminalizes even casual conversations between city leaders in private.
“If a quorum of a governing body were to meet in secret and discuss knitting or other topics unrelated to their powers as a governing body, no harm would occur,” he wrote.
“Government is not made less transparent because of the message of the private speech about public policy,” Judge Smith said. “Transparency is furthered by allowing the public to have access to government decision making. This is true whether those decisions are made by cogent empirical arguments or coin-flips.”
The court decision is a huge loss for the Texas Municipal League and a group of 15 or more leaders from cities across Texas who have argued for six years in court that the open meetings law is unconstitutional because it is essentially a huge inconvenience and burden for them.
The current case started in 2009 when Alpine City Councilwoman Diana Asgeirsson and others hired high-profile Houston lawyer Dick DeGuerin to file a federal lawsuit after two other Alpine council members were indicted for violating the open meetings law. The criminal case was later dismissed.
In March 2011, U.S. District Judge Robert Junell rejected the constitutional claims brought by the city leaders, who appealed to the Fifth Circuit.
Craig Enoch, a former Texas Supreme Court justice and a partner at Austin-based Enoch Kever who represents the municipal leaders, said he is discussing with his clients whether to seek an en banc review.
James Ho, a former Texas solicitor general and now a partner at Gibson Dunn in Dallas, said the court decision is “a complete and total victory for those who believe in open government.”
“Open government is a First Amendment virtue,” said Ho, who represents The Dallas Morning News, Belo Corporation, a handful of other news media outlets and two-dozen elected officials in Texas who asked the court to uphold the law.
“We hope the plaintiffs decide not to appeal any further because it is not a good use of court resources and it is a complete waste of taxpayer money,” he said.
Former Deputy Solicitor General Sean Jordan, who is now a partner at Sutherland Asbill & Brennan in Austin, successfully argued the case for the state.
“The Fifth Circuit correctly recognized [that] the First Amendment has never been understood to secure a right of elected officials to deliberate and decide in secret the public business entrusted to their care,” said Jordan.
“The Fifth Circuit confirmed that, under both Supreme Court and Circuit precedent, a law regulating speech is not content-based – and therefore subject to strict scrutiny – merely because its applicability depends on the content of the speech,” he said. “Rather, the content-neutrality test turns on the justification for the regulation, and a law will be deemed content-neutral so long as it is justified without regard to the content of the speech.
“The Open Meetings Act is plainly content-neutral because its justifications turn on preventing the secondary effects of closed meetings of elected officials: preventing transparency in government, encouraging fraud and corruption, and fostering mistrust of government,” said Jordan.
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