ENTIRE FIFTH CIRCUIT TO REVIEW THE TEXAS OPEN MEETINGS ACT
Earlier this year, the U.S. Court of Appeals for the Fifth Circuit released its opinion in the Alpine Open Meetings Act lawsuit (Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, and the State of Texas).
The question presented in the appeal was whether a local government officials speech, made pursuant to official duties, has the same constitutional protections that the First Amendment grants to other types of speech. A three-judge panel of the Fifth Circuit did not directly answer that question, but instead returned the case to the trial court for further proceedings. That action is significant because the legal standard of review imposed by the Fifth Circuit presents a very high hurdle for the government to overcome. Essentially, the state must prove that the criminal provision of the Open Meetings Act is not unconstitutional.
Shortly after the opinion was issued, both sides filed for a rehearing by the court en banc. An en banc rehearing is one that is conducted by all of the courts seventeen judges. The State of Texas argues that the panels decision should be overturned. The plaintiffs argue that no additional trial proceedings are necessary, and that the court should simply declare the criminal provision of the Act unconstitutional. TML, along with 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 filed an amicus brief in the case in support of the plaintiffs position.
The court granted the motions last month, and will hear oral argument in September. It is important to remember that neither TML nor any other entity is opposed to open government. Quite the contrary. This case is simply arguing that the threat of jail time is not the least restrictive means of achieving that goal.