TOMA constitutionality affirmed by 5th circuit appeals court

By ALBERTO TOMAS HALPERN

ALPINE, NEW ORLEANS – The Texas Open Meetings Act (TOMA) is constitutional, a panel of the U.S. Fifth Circuit Court of Appeals ruled on Tuesday.

The ruling came on the heels of a lawsuit against Texas Attorney General Greg Abbot and the State of Texas that has gone through multiple courts. The plaintiffs in the case include current and former Alpine City elected officials, Avinash Rangra, Angie Bermudez, James Fitzgerald and Johanna Nelson, along with elected officials from Wichita Falls, Pflugerville, Sugar Land, Heath, Arlington, Joshua, Rockport, Leon Valley, Whiteboro, Hurst and Bellmead.

TOMA is a state law requiring meetings of governmental bodies to be open to the public. It prohibits elected officials from participating in a closed meeting in which public business is discussed and acted on. A violation of the law is a misdemeanor and is punishable by a fine or jail confinement for up to six months. The Texas State Legislature is exempt from TOMA.

In 2005, then-83^rd District Attorney Frank Brown pressed charges against now Alpine Mayor Dr. Avinash Rangra, then a city councilman, and fellow former council member Katie Elms-Lawrence for allegedly violating TOMA, specifically for exchanging emails regarding city business. Those charges were eventually dropped, but spurred the lawsuit by city officials, who contend that TOMA violated their first amendment rights. They argued that the law is a content-based restriction of political speech and that it is unconstitutionally vague and is overbroad.

In its ruling this week, the New Orleans federal appeals court said, “TOMA is content-neutral and is not unconstitutionally overbroad or vague. It is also a disclosure statute, though that does not change the level of scrutiny, because the statute is content-neutral.”

The court erred on the side of government transparency in its ruling supporting the provisions of TOMA.

“It’s absolutely amazing,” Frank Brown said this week after learning of the court’s ruling. “Was there ever any doubt?”

Brown said he never believed the case was a first amendment issue. “City council members have to say everything in public, (the first amendment argument) was nothing more than a smokescreen to move the issue into something it wasn’t. It was about time and place (of the speech).”

Rangra, who is now mayor of Alpine, said this week he never opposed the law’s effort to shed light and make government transparent. “If council members get together at a house and talk about (city business) I’m against that,” Rangra said. “I’m not in favor of people making decisions outside of meetings.” He did say that elected officials exchanging ideas is a different story and that TOMA is difficult for elected officials to understand sometimes.

“I’m not against TOMA, it’s the language,” of the law.

Rangra also finds it unfair that members of the state legislature, the very people who enacted the law, are exempt from it. “Our state legislators exempt themselves from TOMA and the people at the bottom of the food chain,” are not exempt.

This week’s court ruling may not have been the last arguments on the case. William McKamie, one of the plaintiffs’ attorneys said, “Looking at the way the decision is written we think we have a better-than-average chance of having a full-court review, and maybe having the Supreme Court look at it.”

“I’d like to see the Supreme Court address that issue,” Rangra said of the prospect of taking his case to the highest court in the land. “Should all elected officials be subjected or just a few? That’s the issue. I’m ok with TOMA, just not how it’s applied.”

Marfa and Houston attorney Dick DeGuerin, also an attorney for the plaintiffs in the case, said he expects the debate to continue.

“That’s just one panel of the entire court,” DeGuerin said of the ruling. “A different panel years ago ruled the exact opposite. They ruled for us and ruled that the statute requires strict scrutiny.” With two different panels of the same court making opposing rulings, DeGuerin thinks that’s grounds for a full circuit court review.

“The irony is that TOMA actually keeps elected officals from stating their positions on things for fear of violating the act. We would have better insight into government if it weren’t for TOMA,” said DeGuerin.

Brown disagreed. “No more backroom smokey deals,” he said, supporting the court’s ruling. “You can’t yell fire in a theater.”

Alpine attorney and 83^rd District Attorney-elect Rod Ponton was an attorney for the plaintiffs until relinquishing that role recently to run for office. “The attorneys representing the plaintiffs feel the opinion was wrong. I anticipate a motion for a rehearing. I feel that the case will merit review by the U.S. Supreme Court because of the national importance of answering the question of whether public officials should be put in jail for engaging in free speech,” Ponton said.

Asked whether he believes the case will eventually go before the Supreme Court, DeGuerin said, “I think it probably will. Neither side is going to give up. It’s not over.”