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Thursday, July 30, 2009

Courts - Still more on: Open meetings law may be unconstitutional, 5th Circuit rules

Updating this May 15th ILB entry, which quoted a report that:

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

The list of attorneys general who signed onto Caldwell's brief includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

Here is a link to the 5th Circuit opinion in Rangra, et al v. Brown, et al.

Today a number of papers have the AP story by Michael Kunzelman that:

NEW ORLEANS — A New Orleans-based federal appeals court has agreed to review a ruling that several state attorneys general warned could cripple their open meetings laws.

A ruling in April by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit city council members in Alpine, Texas, filed after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails.

After the ruling, attorneys general for Texas, Louisiana and more than a dozen other states asked for the full 5th Circuit to reconsider the case. Lawyers for the Alpine council members also asked for a rehearing. The court announced this week that a majority of its judges voted to rehear the case.

A state grand jury in Texas indicted two of Alpine's five city council members after they circulated e-mails in 2004 about the hiring of engineers for a city water project before a public hearing. A state judge later dismissed the criminal charges.

In 2005, one of the council members who had been charged — and another who had not — sued to block enforcement of the Texas open meetings law.

The 5th Circuit panel said U.S. District Judge Robert Junell incorrectly ruled that the First Amendment "affords absolutely no protection to speech by elected officials made pursuant to their official duties."

The panel directed Junell to decide whether the Texas Open Meetings Act passes the "strict-scrutiny" test under the First Amendment and "make the state carry its burden of proving that the statute pursues a compelling interest which the law is narrowly tailored to further."

Texas Attorney General Greg Abbott's office has warned that the panel's ruling could serve as a precedent for striking down many open meetings laws. The list of attorneys general seeking a rehearing also includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Louisiana, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

Rod Ponton III, a lawyer for the Alpine council members who sued, said his clients are asking the full 5th Circuit to declare that the Texas open meetings law is unconstitutional.

"We've always said we want open government and don't want backroom deals, but this law went too far because it keeps public officials from talking about public issues except at public meetings," Ponton said Wednesday.

This is one of the cases included on the list labeled "AG Zoeller Amicus Briefs 2009" that the ILB posted via this entry on July 28th. It is described on the list as: Avinash Rangra et al v. Brown, DA; Abbott, TX AG, 06-51587, US 5th Cir - LA. It is the only non-SCOTUS brief on the list. From the case summary:
Rangra would subject Texas, Louisiana, and Mississippi Open Meetings Laws to strict scrutiny as content-based speech regulations under the First Amendment. It would also be the first-of-its-kind precedent for subjecting any other State’s open meetings law to that rigorous constitutional justification, contrary to the decisions of at least three state supreme courts. Thus, it is in the States’ interests to urge the Fifth Circuit to rehear the case and correct the panel’s erroneous decision.
From the 5th Circuit docket from July 28:
COURT DIRECTIVE ISSUED granting petition for rehearing en banc filed by Appellants Mr. Avinash Rangra and Ms. Anna Monclova [6278750-2], granting petition for rehearing en banc filed by Appellees Mr. Frank D Brown and Mr. Greg Abbott [6274440-2] A/Pet Supplemental Brief due on 08/18/2009 for Appellant Anna Monclova and Appellant Avinash Rangra.. E/Res Supplemental Brief due on 09/09/2009 for Appellee Greg Abbott and Appellee Frank D Brown.. Miscellaneous due on 09/09/2009 for Appellee Greg Abbott and Appellee Frank D Brown, and Miscellaneous due on 08/18/2009 for Appellant Anna Monclova and Appellant Avinash Rangra for them to send in 20 copies of their original briefs and record excerpts (if record excerpts were filed); reopening case [6331516-2]. [06-51587] (GAM)

COURT ORDER that the motion for Reporters Committee for Freedom of the Press for leave to file amicus brief in support of appellees' petition for rehearing en banc is MOOT [6282156-2], the motion on behalf of the States of Louisiana, Alabama, Arizona, Colorado, Florida, Idaho, Illinois, Indiana, Michigan, Mississippi, Montana, Nebraska, New Mexico, North Dakota, Ohio, South Dakota, and Virginia for leave to file amicus brief in support of appellees' petition for rehearing en banc is moot [6282269-2], the motion of Freedom of Information Foundation of Texas, Inc.,for leave to file amicus brief in support of appellees' petition for rehearing en banc is MOOT [6282327-2], the motionof The Texas Municipal League, The Texas City Attorneys Association, The Illinois Municipal League, The South Dakota Municipal League, The National League of Cities, and The International Municipal Lawyers Association for leave to file amicus brief in support of appellants' petition for rehearing en banc is MOOT. [6283057-2] Judge(s): JLD. [06-51587] (MCS)

Posted by Marcia Oddi on July 30, 2009 08:45 AM
Posted to Courts in general