| A three-judge panel of the 5th U.S. Circuit Court of Appeals held April 24 that elected officials, when carrying out their official duties, have the same free speech rights as other citizens.
The 5th Circuit panel also held that when a state seeks to restrict an elected official's speech on the basis of its content, a federal court must apply strict scrutiny, finding a limitation on speech invalid unless the state proves the regulation is narrowly tailored to further a compelling state interest.
The panel's ruling came in Rangra, et al. v. Brown, et al., a case involving a challenge to the Texas Open Meetings Act (TOMA), Chapter 551 of the state Government Code.
Avinash Rangra, a current member of the Alpine City Council, and Anna Monclova, a former member of the city council, sued then-83rd District Attorney Frank Brown, Texas Attorney General Greg Abbott and the state of Texas in September 2005. In their original complaint, Rangra and Monclova asked U.S. District Judge Rob Junell of the Western District of Texas in Midland to declare the criminal provisions of TOMA "overly broad and unconstitutionally vague."
According to the complaint, a Brewster County grand jury had indicted Rangra and Katie Elms-Lawrence, another member of the city council, in February 2005 for alleged criminal violation of TOMA stemming from an e-mail exchange between four city council members -- a quorum of the council -- discussing whether to call a meeting to discuss a contract matter. According to Junell's November 2006 findings of fact and conclusions of law, the other two city council members who participated in the e-mail exchange, Monclova and Manuel Payne, received immunity from prosecution for their testimony before the grand jury.
Payne, who is still on the city council, says he does not think public officials should be indicted for such communications because sometimes, "you need to talk about issues."
Rangra says in an interview that he indicated in the e-mail exchange with other council members that he would call the mayor to request a special meeting.
"If that kind of exchange of information is a violation of the Open Meetings Act, anyone could violate it," he says.
TOMA prohibits deliberations between a quorum of a governmental body in which public business or policy is discussed outside of an open meeting. An opinion by Abbott expanded that prohibition. Under Attorney General Opinion GA-0326, issued in May 2005, deliberations are not limited to verbal exchanges or face-to-face meetings.
According to the complaint in Rangra, Brown obtained dismissal of the state court indictment against the two city council members without prejudice in May 2005. Rangra and Monclova subsequently filed their suit, alleging violation of 42 U.S.C. §1983 and Article 1, §8 of the Texas Constitution, which prohibits the passage of any law that curtails free speech.
In November 2006, Junell held that the First Amendment affords no protection to elected officials' speech during the course of their official duties and dismissed their challenge to TOMA. Rangra and Monclova then appealed to the 5th Circuit, which disagreed with Junell.
Judge James Dennis wrote for the 5th Circuit panel, "The First Amendment's protection of elected officials' speech is full, robust, and analogous to that afforded citizens in general." The panel, which consists of Dennis and Judges Jacques Wiener Jr. and Rhesa Barksdale, remanded Rangra to Junell for further proceedings. [See the court's opinion.]
Tom Kelley, spokesman for the Texas Office of the Attorney General, which represents Brown and Abbott, says, "We're evaluating our options on appeal."
Brown, who is retired, says the 5th Circuit held that Junell applied the wrong standard in considering the challenge to the Open Meetings Act. However, Brown says he does not believe the district court is going to throw out the act.
But Dick DeGuerin, a partner in Houston's DeGuerin & Dickson and one of the attorneys representing Rangra and Monclova, says he expects the district court to throw out TOMA once the court applies the strict-scrutiny standard.
In a representative form of government, DeGuerin says, voters elect people to speak for them. Then the state says the elected officials cannot speak, DeGuerin says. "There's the conundrum," he says.
Alpine solo Rod Ponton, another attorney who represents Rangra and Monclova, says of the ruling, "We think this is a clear victory for the First Amendment and for the rights of elected officials to communicate freely with each other and the public."
Ponton says Texas has the most restrictive open meetings law among the 33 states that have such laws.
"We believe we can show there are many other ways to achieve no secret deals without throwing politicians in jail for communicating with each other," he says.
