Ags warn ruling could cripple open meetings laws
May 14, 2009
MICHAEL KUNZELMAN Associated Press Writer NEW ORLEANS
Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws. A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general 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. 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 persuant to their official duties." "The First Amendment's protection of elected officials' speech is full, robust, and analogous to that afforded citizens in general," Judge James Dennis wrote. The appeals court directed Junell to decide whether the Texas Open Meetings Act passes the "strict-scrutiny" t e s t u n d e r t h e F i r s t 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 says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test. "Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a contentbased restriction on speech subject to strict-scrutiny review under t h e Firs t Amendment, nor have these statutes been struck down in whole or in part for violating the Amendment's free speech protections." 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 At torney Genera l 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. Arvel Ponton III, a lawyer for an Alpine city council member and a former member who are plaintiffs in the suit, called it "a classic case of individual rights versus government action." "Too many open meetings laws have gone too far," he said. "In trying to enforce the open meetings laws, they keep public officials from being able to talk." In October 2004, two of Alpine's five city council members traded e-mails to discuss the hiring of engineers for a city water project. The e-mails were forwarded to two other council members before a public hearing on the project. In February 2005, the local district attorney subpoenaed the four council members to testify about the e-mail exchange before a state grand jury, which indicted two of them a week later. A state judge dismissed the criminal charges but in September 2005 one of the council members who had been charged and another who had not filed the lawsuit seeking to stop enforcement of the Texas open meetings law. Ann Heath, a lawyer for the Public Affairs Research Council of Louisiana government watchdog group, called the panel's ruling a "scary case" because the 5th Circuit's ruling could have sweeping implications. "Open meetings are just the tip of the iceberg," she said. "Public records could be next."