AG files motion in TOMA suit

posted on 7.13.2010

Texas Attorney General Greg Abbott has filed a motion for summary judgment to defend the constitutionality of the Texas Open Meetings Act.

A small group of Texas cities and 15 elected officials filed a lawsuit in December arguing that the law violates the First Amendment by barring elected officials from speaking in public or private about public issues.

The case is scheduled for trial in October.

In his brief filed with the federal court hearing the case, Abbott challenged the First Amendment argument.

?The fundamental purpose of the First Amendment is to enable and empower people to engage in free, robust discourse about their government, its officials, and the policies they adopt on their behalf.

Open meetings laws thus further, rather than frustrate, fundamental First Amendment values, by educating the public about the conduct and content of public business.

Indeed, courts have frequently invoked the First Amendment itself to require public access to certain government proceedings.?

Abbott also noted that every court to have addressed a First Amendment challenge to a particular state?s Open Meetings law has rejected such a challenge, including the federal court currently hearing the case.

Judge Rob Junell ruled against the City of Alpine in 2006 in Rangra v. Brown, a suit filed by two Alpine city council members after they were indicted on allegations that they violated the TOMA by exchanging e-mail messages about city business.

The indictments were dropped, but the council members challenged the law in federal court as a violation of the First Amendment. 

But a three-judge panel of the U.S. Fifth Circuit Court of Appeals in New Orleans disagreed with Junell?s decision.

The panel sent the case back for further consideration under a heightened standard of review.

Abbott filed a petition for a rehearing before a full panel of the Fifth Circuit and more than a dozen state attorneys general filed friend-of-the-court briefs in support.

The case was under nationwide scrutiny because a Fifth Circuit panel opinion could cast doubt on similar laws across the country.

But the full Fifth Circuit panel dismissed the case as moot in October of 2009 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.

The dismissal led to the latest suit being filed in December.

Read the Attorney General's Motion for Summary Judgment

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