© Muckraking Since 1988 We can think of no better way to comment editorially on the circumstances than to republish a quote from Gulliver's Travels, by Jonathan Swift. Written in 1726, Swift's hero, the shipwrecked Lemuel Gulliver, was discussing with his Houynhmn master "concerning lying and false representation." The rational horse argued thus: "that the use of
speech was to make
us understand one another, and to receive information of facts; now if anyone said the thing which was not, these ends were defeated; because I cannot be properly be said to understand him; and I am so far from receiving, that he leaves me worse than in ignorance; for I am led to believe a thing black when it is white, and short when it is long. And these were all the notions he had concerning that faculty of lying, so perfectly well understood, and so universally practiced among human creatures." |
The Great Texas Open Meetings Act Meets Battle (in reverse chronology)
02-16-10 Citizens
United
12-14-09 FLASH! 12-03-09 Presumed Guilty? 12-03-09 Reprint from February 8, 2007: Texas Legislators and the TOMA 12-03-09 Reprint from February 1, 2007: The Texas Legislature's Immunity from TOMA 12-03-09 Reprint from February 1, 2007: An Email from House Speaker Craddick 11-28-09 Ethics, Lobbyists and Free Speech McNamara: Texas Statute Shouldn't Infringe on Elected Officials' Free Speech Rights 09-16-09 Ponton Statement re Rangra V. Brown 09-12-09 Moot! Says the 5th Circuit ... But It Ain't Over
07-29-09 En
Banc!
06-09-09 Twiddling
Thumbs
06-03-09 AG
Opinion GA-0717 of
June 1
05-06-09 "Strict
Scrutiny"
January 20, 2005 Judge Robert
Jenevein's case In Memoriam
|
Stories on This Page 07-27-10 Smyke Letter to Editor: Gas Board Trying to
Dismiss Melvin Davis, Jr.
06-29-10 Smyke Letter to Editor: Congratulations to Alpine City Council member Angie Bermudez 05-10-10 Dear Editor 05-07-10 TIMEOUT! 03-16-10 Recount! 02-28-10 Ooops! 02-27-10 Flash! Election News 02-18-10 Read the Big Bend Sentinel Written and published by Jack D. McNamara
P.O. Box 1445 Alpine, Tx
79831
USA
Phone: (432) 837-5619
Copyright 2010 Nimby Enterprises, Inc. All rights reserved Comments? jack@nimbynews.com |
|
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One of the best ways to get yourself a reputation as a dangerous citizen these days is to go about repeating the very phrases which our founding fathers used in the great struggle for independence." — Charles A. Beard
(1874-1948) 1935 There
is
only one basic human right, the right to do as you damn well please.
And with it comes the only basic human duty, the duty to take the
consequences.
— P.J. O'Rourke
US humorist, journalist, & political commentator (1947-) Those who profess to
favor
freedom, and yet depreciate agitation, are men who want rain
without thunder and lightning. — Frederick Douglass
(1817-1895)
A
legislative act
contrary to the Constitution is not law.— Justice John
Marshall
(1755-1835)
US Supreme Court Chief Justice Who are a free people? Not those over whom government is exer- cised, but those who live under a government so constitutionally checked and controlled that proper provision is made against its being otherwise exercised. — John Dickenson
(1732-1808) Source: Farmer’s Letters, 1767 An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. —
Justice Hugo L. Black
The most important service rendered by the press and the magazines is that of educating people to approach printed matter with distrust. — Samuel
Butler
The only security of all
is in a free press. The force of
public opinion cannot be resisted when permit- ted freely to be
expressed. The agitation it produces must be submitted to. It is
necessary, to keep the waters pure. —Thomas Jefferson
to Lafayette, 1823
To the press alone,
checkered as it is with abuses, the world is indebted for all the
triumphs which have been obtained by
—
James Madison
Restriction
of free
thought and free speech is the most dangerous of all subversions. It
is
the one un-American act that could most easily defeat us. —
William
O. Douglas
A journalist is a grumbler, a
censurer, a giver of advice, a regent of sovereigns, a tutor of nations. Four hostile
newspapers are more to be feared than a thousand
bayonets.—
Napoleon Bonaparte
If
all printers were determined not to print anything till they were sure
it would offend nobody, there would be very little printed. — Benjamin
Franklin
|
August 3, 2010
Letter to the Editor Editor: Recently, I was able to access the records of the Southwest Municipal Gas Co through the open records act and I would like to share with you some of the information I obtained. On June 30, 2008 the General Manager of the Gas Company recommended to the board that they sign a new contract for 25% of the gas Btu’s needed at the current rate of $12.30 and the other 75% at a spot rate as needed. He was over ruled by Mayor Dunlap who advocated signing a 3 year contract at the then current rate of $12.30. This rate was close to an all time high for gas and the gas company. in the past had always purchased its gas on a month to month basis. This was done because natural gas is a commodity and the price fluctuates. The contract with West Texas Gas also requires that you commit to an amount of gas to be delivered on a monthly basis so you pay for a certain amount of gas whether you use it or not. Mayor Dunlap went on to recommend to the board that the rate be marked up $6.99 to the gas customers which is how we have come to pay $19.29 a btu for our gas. This is probably the highest rate in the State of Texas, possibly the entire country. The current rate is around $4.40 a btu. A normal mark up would be around $4.00 a btu. Melvin Davis, the General Manager of the gas co. has over 20 years of experience in the gas business. Not a single member of the gas board has any experience yet they overruled the manager’s sound recommendations. At a March 2010 board meeting of the gas company Mayor Dunlap recommended they pay Bobby Duncan $180 an hour and Mayor Dunlap $30 per hour to straighten out the gas company financial records and the board approved this. Mr. Duncan was paid $30,000 and left town without finishing the job. Mayor Dunlap, as a sitting board member, may not be paid to work for the gas co. The entire board is ignorant of its own by-laws and state regulations. At the March 2010 board meeting, the board budgeted and approved the repair/replacement work now being done on the gas lines in the City of Alpine. The City of Marfa is claiming that this expenditure required the approval of City Council. If this is true, why didn’t Mayor Dunlap bring it to council for approval? At the July, 2010 board meeting the board voted to reduce the rate charged to the customers by $2.00 a btu. Rudy Garcia abstained, Corina Brijalba voted against it saying she wanted the audited financial statement for 2009 first, and Jane Weimers voted against it saying it would be better to give the rate reduction in October when people would need it. The gas co. is a non-profit corp. with over $800,000 in the bank. Why would you need the 2009 audit to vote for a rate reduction? Why would you want to wait to give people a rate reduction when you can start giving them some relief now? The $2.00 is puny enough as it is. Finally, the City of Marfa is saying that the gas co. is in violation of the inter-local agreement because they have not yet produced the audited financial statement for 2009.Looks to me like the board, Bobby Duncan and Mayor Dunlap assumed that responsibility. The 2007 and 2008 statements were produced in May and June of the following years. So where was the hue and cry then if this was some violation? So now some of the board wants to fire the General Manager over these issues. It looks to me like it is the Marfa board members that are irresponsible in their oversight and uninterested in the hardship their actions are having on their community. And by the way customers, you are still going to be paying the highest rates in the state of Texas, maybe the entire country, for another year, thanks to this board. Suzanne Dungan Marfa, Texas 432-729-3117 July 27, 2010 Letter to the Editor Dear Editor, The late Bud Powers once said that South West Texas Municipal Gas (SWTMG) was set up as a non-profit because the corporation's founders "knew elected council members, one day, would want to bleed it dry." The actions of Dan Dunlap, Jerry Johnson, Jane Wiemers, Diana Asgiersson, and Corrina Brijalba would seem to bear that out. Attempting to dismiss General Manager Melvin Davis, Jr., then calling a Special Board Meeting in order to try again, shows that an agenda is clearly trumping service in the public interest. Contrary to claims, each director receives a financial statement every month. Though less detailed than normal because of software problems, they still show a healthy corporation with sound finances. Insisting that an alleged breach of the Inter-Local Agreement was grounds for dismissing Mr. Davis, this group appointed themselves judge, jury, and executioner, and shamelessly attempted to "bend" state administrative codes to fit their vendetta. Why? Also, who called the Special Meeting? How was the issue discussed? Were all board members involved? Why did the agenda appear out of nowhere the morning after the attempt to fire Mr. Davis? What's the hurry? Over the last winter Mr. Davis did everything but beg the board to release some of SWTMG's $800,000 in cash reserves back to the customers, as rebates or lower gas rates. Mayors Dunlap and Johnson led the opposition to these plans, leaving gas customers to take out emergency loans and worse to keep their heat on. Why? And why did the board majority deny the use of $13,000 already budgeted this year for customer appreciation, scholarships, and sponsoring children's sports? In West Texas we support our teams – no exceptions. As a non-profit corporation, SWTMG has an extra burden to operate transparently and for its stated purpose, bringing gas to customers as cheaply and efficiently as operations allow. If it is a burden for some board members to operate openly and in the public interest, then it is time to dissolve the SWTMG board and start over. Sincerely, Peter A. Smyke 303 N 1st St Alpine, TX 79830 432/837-9087 politburro@sbcglobal.net June 29, 2010 Letter to the Editor: Congratulations to ACC Member Angie Bermudez Dear Editor, Congratulations to Alpine City Council member Angie Bermudez for challenging Mayor Jerry Johnson and Council Member Jim “Fitz” Fitzgerald over an unauthorized letter sent in the City Council's name. The letter, written by Mr. Fitzgerald and signed by Mayor Johnson, asks that “representatives from Alpine” meet with Homeland Security officials in order to “assist” Big Bend Aviation (BBA), the company seeking a contract with the City to develop Alpine-Casparis airport. The letter distorts stated City Council policy to BBA's favor, and was sent on City letterhead without being shown to or voted on by a quorum of the full City Council, as required by state law. At first both men acted as though it were no big deal, then when pressed, they apologized. Council Member Fitzgerald has too much business experience to say that words don't matter in this type of communication. The letter's assertions that “final negotiations” with BBA were “in process” and the council had “pledged to assist” BBA are significantly at odds with openly agreed to and voted upon City Council policy. Also, after three years, Mayor Johnson should know how to recognize a letter that hasn't received council approval. Council Member Fitzgerald has a clear conflict of interest in issues relating to contracting for a Fixed Base Operator at Alpine-Casparis Municipal Airport, and must abstain from any City Council votes relating to Big Bend Aviation. Voting on contracting with BBA, after attempting an end-run around City Council authority for their benefit, simply invites attorneys to become wealthy at taxpayer expense. Likewise, Mayor Johnson must also avoid voting on issues involving BBA, as even the appearance of conflict of interest is too close for most elected officials, yet close enough for experienced attorneys. The serious implications of these ethical violations cannot simply be excused away. Two elected officials chose to breach the trust of their constituents and fellow city council members, while knowing that their actions might create a profound effect on BBA's finances and fortunes. People say that they “don't recognize” our country any more. That's because we've gone from being a nation of laws to a nation of people who feel that the laws don't apply to them. Wall Street; BP; Alpine? Sincerely, Peter A. Smyke 303 N. 1st St. Alpine, TX 79830 432/837-9087 politburro@sbcglobal.net June 17,2010 Dear Editor, At the South West Texas Municipal Gas Corp. (SWTMG) Board of Directors meeting on June 7th, new officers were elected to serve the unexpired terms of their predecessors, and the Treasurer's post, once considered redundant, was revived. (The Treasurer's position “shall have the custody of the Corporation's funds” and “disburse the funds of the Corporation as may be ordered by the board.”) All of the nominations and votes cast were by Board Members Jerry Johnson, Dan Dunlap, Jane Wiemers, Diana Asgiersson, and Corrina Brijalba. Mr. Johnson was elected President, Dan Dunlap Vice President, and Ms. Asgiersson Treasurer. Board members Rudy Garcia, Avi Rangra, and Leo Dominguez chose to remain silent during the entire election, but their protests were not recorded for any vote. Alpine Mayor Jerry Johnson bragged the previous Thursday that at 12:00 AM that day, he would become the new SWTMG president. This statement preceded the Marfa City Council vote that same evening to remove three term board member and acting president Hester Ann White, and replace her with rookie council member Corrina Brijalba. It also came several days before the above-mentioned officers' election. The Mayor's statement, reviving the Treasurer's post, and Ms. White's removal are all indications that this board majority likely has a hidden agenda it intends to carry out. It may revolve around trying to capture SWTMG cash reserves. From 1998 through 2005 over $1,200,000.00 was taken from the gas company by the two cities, always before the corporation's yearly audit. Distributing SWTMG funds was no doubt appealing, but in fact it amounted to double taxation of gas company customers. SWTMG customers remitted taxes to Alpine or Marfa, then had monies paid in good faith to the gas company taken for use in those same municipalities, while propane and and all-electric customers did not. Any attempt by the current Gas Board majority to disburse SWTMG funds to either city will no doubt draw legal challenges and intervention by state regulatory agencies. Perhaps if our Mayors spent as much energy balancing their budgets as they do scheming to get SWTMG funds, they wouldn't need the gas company's money after all. Sincerely, Peter A. Smyke 303 N. 1st St. Alpine, TX 79830 432/837-9087 politburro@sbcglobal.net Publisher’s comment What Pete Smyke has written above is a very much needed commentary regarding the strange ways of the Southwest Municipal Gas Company . As most of us know, there were a bagful of problems there several years ago – leaking gas lines particularly. But for the past few years the non-profit corporation belonging to the cities of Alpine and Marfa has operated with competence and efficiency so far as the operations of gas are concerned. So of course it is time for political meddling. Our ne’er do well political class is again seized by the idea that they should get in there and stir things up, perhaps hoping that a few stray dollars will drift out of the wreckage for their cronies. We saw this in the Alpine water wars, the Alpine landfill battle and numerous other skirmishes. I attended the meeting at the gas board on June 7 but the room was full when I got there so my knowledge was channeled over several others in the doorway. Pete Smyke was there just inside the door and heard the entire meeting. That means that he heard the technical judgments of the manager, Melvin Davis, confirmed. Smyke also heard the weak and improbable rendition of Marfa Mayor Dan Dunlap’s explanation as to why an honorable and effective Marfa citizen, Hester Ann White, had to be disappeared without notice so that someone’s agenda could be advanced at that June 7 meeting. Now we know from Pete Smyke that on May 27 Alpine Mayor Jerry Johnson already knew what was going to happen on June 7. To wit, Johnson knew he was going to be made president (or chairman, or High Populorum) when he went to downtown Alpine at noon on May 27 to interfere in ongoing and reasonable work by utility crews from three agencies. Indeed Mayor Johnson proclaimed his elevation to replace Hester White even before the Marfa City Council had met to disappear White from her leadership of the gas board. This is bizarre, even for the last frontier. So before I published Smyke’s piece I sent a copy of it to the city of Alpine for possible comment by Johnson or Asgeirssen. They have not responded. When and if they do I will publish their statements…if the statements make any sense. I do not want to conclude without complimenting both the Avalanche (and their new editor/publisher John Dilmore) and the Sentinel. This is what newspapers are supposed to do of course so I will not get all trembly. ..yet. May 10, 2010 Dear Editor Kudos to the TXDOT Alpine Area Office for the design of the US 67/90 ADA Ramp and Sidewalk Upgrade. Our local TXDOT staff have outdone themselves in the conception of this project by paying close attention to the details that will make this upgrade "Alpine friendly." In addition to bringing the street corners and sidewalks along Holland Ave., Ave. E, 5th Street, and Cockrell Ave. into compliance with the Americans with Disabilities Act, the project also calls for additional trees, native stone planters, park benches, and trash cans. These amenities will create a much more pedestrian friendly downtown, leading residents and visitors alike to spend more time browsing and shopping in our business district. They will also help to make Alpine a destination for regional visitors and tourists from all over the world. The Alpine TXDOT staff paid particular attention to details like using drought tolerant native tree species, Dark Sky friendly lighting, native stone, star-shaped inlays in the curb ramps, and benches and trash receptacles that match the ones currently in place. Additionally, major curb and gutter work will make these streets safer and easier to cross, while structural paving work will reduce maintenance needs well into the future. TXDOT also coordinated the project with the City of Alpine Utilities Department and the Southwest Texas Municipal Gas Corp. to make sure that these entities could take full advantage of the construction to upgrade water and gas lines to benefit city residents and businesses. It is fashionable these days to insist that government can't get anything right, and that our tax dollars consistently disappear down a political black hole, never to benefit the hard working folks who pay them. Thanks to the efforts of Congressman Ciro D. Rodriguez, State Rep. Pete P. Gallego, and the inspired and diligent work of TXDOT staff and engineers who live and work in Alpine, our state and federal taxes will provide structural, aesthetic, and safety improvements that will make us all proud to call Alpine home for years to come. Sincerely, Peter A. Smyke 303 N. 1st St. Alpine, TX 79830 432/837-9087 politburro@sbcglobal.net May 7, 2010 TIMEOUT! By Jack D. McNamara We, in the sense of the editorial we, are declaring a process timeout. That means we haven’t done much on the Nimby News website lately nor do we intend to do much in the near future. We are exploring some housekeeping changes and even (perhaps) some restructuring. Maybe even some stylistic curlicues…or possible something more creative yet. This is the time of the year we clear out some of the debris left from the more exciting phases of the past. Shred and burn. But such reviews also sometimes send one on circuitous paths of the past. In our case we have been impelled to the writings of John Milton and J.S. Mill. What does one do with such old dead white men? Do they still have any intellectual authority? Or have they been displaced by the Texas Attorney General’s men? Strange ruminations out here at the end of the civilized world in a dry place. March 16, 2010 Recount By Jack D. McNamara Brewster County Democratic Party Chair Dale Christophersen circulated an email today, March 16, 2010 which declared a recount of the electronic ballots in this year’s Brewster County Judge’s race of March 3. The ballots in question amount to more that 21% of the ballots cast. The race was previously declared a 60%-40% win for Judge Val Clark Beard on March 3. But questions were raised immediately and during the election. The most startling event was a well organized initiative led by veteran Brewster County conservative Becky Terry. She circulated a letter and a post card (posted on www.2theportal.com) encouraging Republicans to cross over to the Democratic primary and vote for Beard. Analyses of the numbers of votes cast indicated a reasonable conclusion that many Republicans did in fact abandon the high profile Republican primary contest for governor to vote in this county’s Democratic primary. This is unusual; but it is not illegal. Other events led Ray Hendryx of KVLF, the senior journalist observer of the county, to describe the election as the most “heated” he had seen lately. As the voting tally moved about, Rangra petitioned for a recount. Democratic chair Christophersen wrote in his email today that Rangra's petition “has been been accepted.” • March 16, 2010 "Sent: Tuesday, March 16, 2010 12:03 AM Subject: Recount Brewster County Judge Candidate Avinash Rangra submitted a Petition for Recount of the Electronic Ballots cast in the Brewster County Judge race on March 13 . A minor defect in that Petition appears to have been remedied and the Petition will likely be accepted by Democratic County Chair Dale Christophersen on March 16. The requested Recount of the electronic ballots will be conducted no later than seven days from the date of the acceptance of the Petition, presumably Tuesday, March 23 if the Petition is accepted on March 16. This Recount is of only the votes cast in that race using the DRE (direct recording-electronic) equipment. A manual Recount of those electronic votes has been requested. It may be of interest to voters to know that it appears that approximately 79 % of those voting in this race chose to use paper ballots rather than the DRE machines. This could be viewed as a compliment to those who chose paper, but I wouldn't want to criticize those choosing the machine. Wasn't it Ronald Reagan who advised that we "trust, but verify"? *note: given what I regard as the outrageous costs to the County and State, cities, school and hospital districts, etc. to program these machines for every election, I certainly would like to encourage some public spirited citizen to take on the project of pursuing the demise of the vendor, ES&S by legislative action. I will be happy to assist in such a project. I am not a Luddite, but someone's pockets are getting far too well-lined. Federal and state law, at present, require that the machines be made available to voters at every polling place." February 28, 2010 Ooops!
Ooops! The news we
published yesterday included two
errors. We designated the Texas primary election date March 3 vice the
correct date of March 2. We also assigned precinct commissioner
candidates Andy Byrnes and Bill Bourbon to Precinct 3 vice the correct
Precinct 2. Our
alert readers quickly corrected us and several also commented
extensively on what we call the “ag exemption.” There
is a great website at http://recenter.tamu.edu/pdf/1361.pdf.
The
“1361” refers to a publication just revised in January 2010: “Ag-use
Exemption: Fact or Fiction?” The article states that “… rural land as a
whole receives substantial tax saving by qualifying for one of two
types of special appraisal methods.” The two types of appraisal
are “Agricultural-use” and “open-space.” Publication
1361 discusses several hair-raising provisions of the law including
liability of landowners for “tax rollback, interest and penalties.”
These are rough-appearing conditions and the “chief appraiser" is the
official most often mentioned as the responsible administrator. All
of the comments and references reminded me of an intriguing matter
brought up at the candidates forum here in Alpine on February 20.
Moderator John Waters of the Big Bend Gazette asked about the
possibility of a bankruptcy of the Terlingua Ranch organization. The
question was peculiarly appropriate because it led to a related
observation: There
are 1000 miles of road in the huge development known as Terlingua
Ranch. Who maintains those roads if the developer or the successor
organization goes broke? No one answered the question. With
those thoughts in mind I went down to vote on Sunday. The polls were
busy and poll workers showed me that as of close-of-business Saturday
there had been more than 1100 voters here in Alpine, about 18% of the
registered voters. Only 211 voted Republican and a much larger number
voted the Democratic ballot. In
2008, 2,250 votes were spread among six Democratic candidates for
President. In the 2008 Republican primary there were 917 votes among
nine presidential candidates. So
it appears more Republicans are voting in the Democratic primary than
was true of 2008. Send
us your election stories and permission to publish them. We are
intrigued as to whether or not Brewster County can do worse than 2008. • February 27, 2010 Flash!
Election News
The
Alpine Awful (aka The Alpine Avalanche) has once again
screwed up. This time the mistake, if it was unintentional,
nevertheless may significantly affect the Brewster County primary
elections scheduled for March 2, 2010. The
February 25 edition prints the following information on page 1 under
“Election info” and “Demo chair…” The
Democratic Party chairman’s race — between incumbent Dale
Christophersen and Clarence Russeau — is on the ballot in Precincts 2,
4, 6; it does not appear on the ballots in 1, 3, 5, 7 or 8.” The Avalanche statement above is false, according to Dale
Christophersen on Friday afternoon here in Alpine. He says he has no
idea where the Avalanche got their information. It didn’t
come from him. As an
aside, the Avalanche sent Christophersen an email
requesting information for the newspaper’s quaint candidate interviews
… but after he submitted the information they didn’t say anything
concerning either Christophersen or Russeau. This journalistic performance may seriously affect the election. We have already seen a well organized effort by Brewster County Republicans to vote ONLY in the DEMOCRATIC primary for the incumbent county judge. There is a letter and a card posted on the excellent website www.2theportal.com. Further,
this election immediately follows the 2008 Democratic primary. In that
election three ballot boxes were “found” in the county voting office
vault almost a week after an election which narrowly returned the
incumbent 83rd District Attorney Frank Brown to office. When
the votes were finally counted again, primary challenger Jesse Gonzales
of Ft. Stockton won. The
2008 election was conducted under a commission chaired by Brewster
County Judge Val Clark Beard. After the 2008 election the commission
was decommissioned and voting supervision returned to County Clerk
Berta Martinez and County Tax Collector Betty Jo Rooney. Both have
frequently told me over the past two years that the Commissioners Court
had failed to provide them with enough personnel or funds to properly
support the two primaries. In
addition, one of the loudest complaints from the two challenge
candidates in Precinct 2, Bill Bourbon and Andy Byrnes, concern the
confusing and irrational precinct lines drawn after the past censuses.
No one knows which precinct is his residence. The Avalanche’s completely confused editorial policy and
demonstrably unprofessional unfairness toward Avinash Rangra and bias
toward Judge Beard justifies the low esteem in which the American press
is now held. All
over the Granite Newspapers website we read the words “community” as it
relates to newspapers. Who among us is in Perry’s community? Lastly,
publisher/editor Mike Perry is directly accountable for this mess. I know
no one in journalism who works harder than Mike and Cindy Perry. But
the proud traditions of the American press from the Colonial printers
to the Washington Post and the New York
Times in the Watergate mess demand that journalists be competent
too. Stuff
your bias, Mike, and get back to the books. You changed your so-called
editorial-endorsement-letters-advertising “policy” several times. Then
when Fred Gossien of South County wrote a perfectly printable letter
you published it — but only after you gave the incumbent county judge
candidate the opportunity to write a rebuttal in the same issue. I have more to do
than instruct the Avalanche but if necessary I
will make an exception. • February 18, 2010 Read the Big Bend Sentinel By Jack D. McNamara Of
course I often cite the Sentinel as the best and most
journalistically dominant of the Big Bend publications. But
this is a special praise — because for the past month or so the awful Avalanche
has been unbelievably, unfairly awful to a degree never seen here
before … by me at least. This
week (February 18) the Sentinel published a full page ad paid
for by Stephanie McGraw, an Alpine resident. Ms McGraw simply compared
her home’s taxes on a house on Mosley Lane with the taxes of a
development two miles north of Alpine called McElroy Ranch. The figures
cited are public information available from the Brewster County Tax
Office. The development is well known because it sits about two miles
north of the city limits alongside Highway 118. Tax records show the
development includes more than 400 acres of what was formerly cattle
grazing pastureland. But Alpine Avalanche editor and
publisher Mike Perry refused
to allow Ms McGraw to purchase an ad in the Avalanche. The Avalanche is the “official
newspaper” of the county. Mrs
Beard is the Chairman of the Brewster County Appraisal District. The
“agricultural exemption” which so obviously benefits developers is
perfectly legal and well known in Texas law. It is often a source of
hot debate in Texas. So
isn’t that what newspapers do? Publish interesting controversial
information to stimulate political debate? Isn’t that why our
forefathers adopted the First Amendment to our Constitution? Not
in Alpine. This week the Avalanche gushingly endorsed Judge
Beard. For the past several weeks Perry has published biased, slanted
and even untrue letters to the editor in an effort to defeat Avinash
Rangra. But
this week the Sentinel redeemed the honor of the craft of
journalism. What
do you think? This is an election isn’t it? Or is it a coronation? • By
Jack D. McNamara I
was cruising the Internet yesterday and happened across the home page
of the
Texas Ethics Commission. I go there frequently to check the big dollar
contributors to Texas political causes and politicians. On
the Internet page, there were several links, one of
them “What’s New.” Several people had recently asked me what Texas was
doing
about the blockbuster U.S. Supreme Court decision several weeks ago, “Citizens United v. Federal Election
Commission.” I had no answer when asked so I decided to check even
though I
was skeptical that any Texas agency could absorb that major decision in
anything less than months. To my
great surprise, “What’s New” was
100-plus words which state — as we
have stated
in advisory opinions, we believe the Texas Legislature intended laws
under our
jurisdiction to prohibit political expenditures by corporations to the
full
extent allowed by the Constitution, as interpreted by the United States
Supreme
Court. In light of the recently issued United States Supreme Court
ruling in
Citizens United v. Federal Election Commission, it is our position that
corporations are allowed to make all types of direct campaign
expenditures (as
defined by Section
251.001(8) of the Election Code and Section
20.1(5) of the Texas Ethics Commission
Rules and referred to in
Citizens United as independent expenditures) regulated by Title 15 of
the
Election Code. It is also our position that corporations are still
prohibited
from making political contributions unless specifically allowed by
Title 15 of
the Election Code. (Last
Revision: January 25, 2010.) Rangra
v. Brown In
September 2009 the 5th
Circuit Court of Appeals declared “moot” the appeal for an en banc
hearing of
the case tried in the U.S. District Court in Pecos in July 2006. In
Pecos, Judge Robert Junell
granted summary judgment to the Defendants Texas Attorney General Greg
Abbott
and 83rd District Attorney Frank Brown (soon to be former
DA).
Rangra and Monclova, represented by Dick DeGuerin of Houston and Rod
Ponton of
Alpine, appealed. At
the 5th Circuit a
host of outraged and vocal supporters of the idea that Texas local
officials
should be criminally prosecuted descended on New Orleans with amicus
briefs.
More than two dozen state attorneys general filed briefs. Several press
associations (including two to which I belong) filed briefs. All
passionately
supported the novel proposition that prosecutors should diligently
enforce
Texas laws which criminalize speech on public affairs by elected local
officials — unless such speech is conducted in a properly noticed
public
meeting. After
lengthy consideration
from December 2007 to April 2009, a three judge panel of the 5th
Circuit (Judges James Dennis, Jacques Wiener and Rhesa Barksdale)
rendered
judgment for Rangra and Monclova. Of course Texas local officials have
the
protection of the First Amendment. The panel ordered the case sent back
to
Judge Junell in Pecos for examination under a “strict scrutiny”
standard. That
means (among other things) that the state must show what “compelling”
state
interest is at stake which requires government gagging those we elect
to
represent us. The
simple explanation of
course is that we have laws requiring one part of government to gag
another
part of government for one simple reason. As
we all know, modern life
means more laws, more regulation and more government. The legislatures
are full
of lawyers and other lawyers are fully employed lobbying and writing
more
regulations. When those statutes and regulations break down, even more
lawyers
are required to prosecute and defend those citizens unlucky or careless
enough
to become ensnared in the web. That,
dear reader, is what
happened here in Alpine. A small group of citizen legislators
specifically four
Alpine city councilpersons set about
correcting a crisis, namely the city water distribution system’s aged
neglect.
Another small group, specifically one council member, the mayor and the
city
manager, set about obstructing the council majority’s efforts. Enter
the lawyers, those we
name the Courthouse Gang. Using a fatally flawed criminal statute,
Section
551.144, the 83rd District Attorney and his assistant, the
incumbent
city attorney at the time, and with the ignorant support of other
attorneys in
the area, indicted two of the putatively offending city representatives. Fortunately,
two other lawyers
came riding to the rescue. Followed by a succession of other good
lawyers at
the 394th District Court and the 5th Circuit
Court levels
the prosecution of Avinash Rangra and Katie Elms-Lawrence was defeated. The
bad laws, Sections 551.143
and 551.144 of the Texas Open Meetings Act (TOMA) are dead, effective
January
21, 2010 with the Citizens United decision by the U.S. Supreme Court. The
most quoted line from the author of the majority
decision, Justice Anthony Kennedy, is “If the First Amendment has any
force, it
prohibits Congress from fining or jailing citizens, or associations of
citizens, for simply engaging in political speech.” That
is exactly what was threatened here in Alpine. But
two Alpine city councilpersons had the courage to stand up and object
and two
splendid lawyers who were later joined by many others, agreed to
represent
them…and still do so. So
where we stand now is that the case is renewed on
the same issues but with many more plaintiffs….City of Alpine et al v.
Greg
Abbott et al. So
we are off again. You can find the court documents
on the marvelous PACER court system…or you can read about here in
stories
listed in reverse chronology in the center column of the Nimby News
home page. • FLASH! Press Release “Texas Open Meetings Act” declared unconstitutional. The lawyers representing these A
legislative act
contrary to the
Constitution is not law. — Justice John
Marshall
(1755-1835) US Supreme Court Chief Justice elected officials and municipalities are doing so pro bono in order to allow Texas elected officials, who have been elected to speak for their constituents, the right to do just that, to speak for the citizens who elect them. As it stands now, the so called “Texas Open Meetings Acts” prevents a city councilman, a county commissioner, a member of a school board or any other elected representative (except members of the legislature who have exempted themselves from the law) from stating publically what they stand for and from speaking in public or private to express their political beliefs on issues facing them. This lawsuit does not seek protection for “backroom deals” made in “smoked filled rooms” without the public’s knowledge or input. To the contrary the constitutional right to free speech encourages the free and open exchange of ideas, and this lawsuit seeks to enforce the First Amendment right of free speech for There will be a press conference on the grounds of the Texas Capitol in -End-
For further information contact:
Dick DeGuerin at ddeguerin@aol.com
Rod Ponton
at rod_ponton@yahoo.com
December 3, 2009
By Jack D. McNamara Former Texas Lieutenant Governor (1973-91) Bill Hobby joined the current Texas Open Meeting Act debate on November 27 with a column (“The Open Meetings Act”) in the Weatherford Democrat. The column, rather like others circulating around the state, criticizes the Texas Municipal League (TML) for fomenting a movement to bring back “the days of making backroom good ol’ boy deals in private” among their 1100 municipalities. He characterizes the idea of changing the law as “serious and troubling attempts . . .” Backroom wheeling and dealing in Texas? Heaven forbid! Call out the Texas Rangers . . . after you get them out of the back room. I
don’t want to seem cynical but the fact of the matter
is that the highly public campaign by several newspaper lobbying
organizations
lacks even the rudiments of candor. Neither the TML nor the Alpine
plaintiffs
nor their lawyers nor most of the local officials in Texas are opposed
to most
of the requirements of the “TOMA” (Texas Open Meetings Act). They
oppose the two rather silly criminal provisions,
Sections 551.143 and 551.144. Those sections, along with an amendment
in 1999 defining
“deliberation,” changed the meaning of the act by criminalizing any
discussion of
public affairs among elected local officials unless the communication
occurs in
a posted, public meeting. Criminalizes
human communication in the age of the
Internet, texting, twittering, cell phones and email? The idea is
ludicrous and
laughable. And unconstitutional as we shall see after more expensive
litigation
yet to come. If we don’t change the law we will have even more
senseless
prosecutions like that which occurred here in Alpine. Governor
Hobby unfortunately indulges in another of the
rhetorical tactics used to oppose his TML adversaries. The world as we
know it
will end. It
appears our Texas local elected officials are the only
politicians who pose such a threat to honest government. When
Bill Hobby was lieutenant governor many Texans
thought themselves exceptional because unlike the U.S. Congress, Texas
legislators subjected themselves to the open government laws. But the
Texas
House no longer holds themselves accountable to the same law as other
Texans. In
2003 the House convened early in the session to adopt
rules. They exempted themselves from the criminal provisions of the
TOMA by
claiming the Texas Constitution’s Speech and Debate clause protected
the state
legislators. And then they adjourned to Austin bars to discuss the
coming
session with their fellow legislators and lobbyists. Federal
legislators and state legislators exempt
themselves from a law which criminally prosecutes our neighbors on city
councils, school boards, and hospital districts? Take
a look at the U.S. Constitution. Where are the words
“freedom of information?” Or “transparency”? Those words aren’t there
because
statutes and laws creating such governmental mandates are very new. Lt.
Gov. Hobby
gives the TOMA a pedigree of “42 years,” about the same lifetime as the
federal
Freedom of Information Act (FOIA) passed in 1966. But FOIA is about
access to
government records, like the Texas Public Information Act (TPIA). In my
opinion
the records laws work well because they are specific and about some
thing. There
is no federal open meetings act. There are two
statutes, the Federal Advisory Committee Act (FACA) and the “Government
in the
Sunshine Act”; but both are toothless and ignored while the FOIA is in
the news
every day. American
government never intended the onerous Texas laws
which punish the mere act of discussing political matters. The
Constitutional
Convention of 1787 was conducted in secret. None of the state
representatives
attending were permitted to publicly discuss the proceedings but of
course they
did anyway. The Philadelphia taverns rocked into the night as the
representatives wheeled and dealed. No recorder was appointed for the
meeting
but we are lucky to have James Madison’s unauthorized notes. We have
access to
the marvelous record, the Constitution itself. We can all see it, read
it and
understand the words as written. The
First Amendment is about the right to speak and to
assemble to “petition” redress of grievances — what lobbyists do and as
the TML
and the Texas Daily Newspaper Association is doing now. Only in Texas
can that
be made into a crime? Are our locally elected officials the worst men
and women
in the nation? If not, why then do we by law presume them guilty for
doing what
we elect them to do while the rest of us prattle and chatter on? We
must not presume
our officials to be guilty before they have actually done anything
wrong. Lt.
Gov. Hobby gives a hint that maybe it is time to
reconsider revising the law to provide for new communications devices. Good
for the guv — that is a start. (Also published
in the Big Bend Sentinel of Marfa, Texas December 3, 2009.) December 3,
2009 (The following
two columns were published in February 2007. They demonstrate
conclusively that the Texas Legislature does not require itself to
follow the same law which is so arbitrarily and capriciously applied to
elected officials of local governments in Texas.) Reprint Texas Legislators
and the TOMA December 3, 2009 Reprint February 1, 2007 The Texas Legislature’s Immunity from TOMA By Jack D. McNamara Does the Texas Legislature comply with the Texas Open Meetings Act? We have been asking this question for the past three months — ever since we read U.S. District Judge Robert Junell’s November 7, 2006 decision regarding the challenge to the constitutionality of that law by two Alpine city councilpersons, Avinash Rangra and Anna Monclova. The answer is No, at least as it concerns the Texas House of Representatives. On January 27 we received an answer to our question in an email from House Speaker Tom Craddick. While “the House and Senate are technically subject to the TOMA” the Open Meetings Act also “explicitly recognizes … an overriding constitutional authority to set their own rules (Article III, section 11 and sections 551.003 and 551.046 of the Texas Government Code).” We are not the only Texans confused by the comparison of law in Alpine and law in Austin. News stories in which reporters are at least implicitly critical of Austin legislative openness abound. Our favorite remains a news story from the Austin American-Statesman online of May 25, 2005. The Legislature had just concluded the biennial budget, a $140 billion exercise. Mark Lisheron wrote that the only legislators who had any influence on the final bill were Senator Steve Ogden of the Senate Finance Committee and Representative Jim Pitts, chair of the House Appropriations Committee. The headline was “Decisions come behind closed doors at the Capitol—Backrooms still the base of power.” The TOMA was a point of pride for open government activists in Austin in the late 1970s. One of those activists, Charles Deaton, wrote a book, The Year They Threw The Rascals Out, describing the reforming session of 1973. In 1978 the TOMA, Article 6252-17, section 2b read, “In this Act the Legislature is exercising its rule-making powers to prohibit secret meetings of the Legislature, its committees or any other bodies associated with the Legislature….” However, the section has one more phrase: “except as otherwise specifically permitted by the Constitution.” Moreover, various authorities in the intervening years have indicated the Lege is covered by the TOMA. In 1974 Attorney General John Hill opined (Letter Advisory Opinion No. 84) that the law was “intended to cover legislative committees.” In 1983 Attorney General Jim Mattox (JM-122) wrote that the Legislature is covered and in December 2000 the Texas Supreme Court rendered a similar decision in their opinion permitting the Texas Senate to conduct a secret ballot to determine the Senate’s presiding officer after then Lt. Governor Rick Perry vacated the office to become governor. We asked the Travis County District Attorney if he had ever prosecuted a legislator for violation of the TOMA and he said No. There were complaints filed in 2003 after the Democratic minorities in the Senate and the House respectively bolted for Albuquerque and Ardmore, Oklahoma to prevent a quorum. The complaints pointed out rather rationally that the Democrats had to meet and communicate somehow in order to collectively as one man get out of Austin — an apparent violation of the criminal section of the TOMA for conspiring in numbers less than a quorum. But no prosecutions resulted from the Democrats’ flight. After discussing the question rather widely, Greg Cox of the Travis County District Attorney’s Office recommended we contact former Representative Terry Keel, an Austin criminal defense lawyer who left his seat in 2006 to run for the Court of Criminal Appeals. Keel was highly regarded in the Legislature. Mr. Keel referred us to the House Journal of January 13, 2005 — the 79th Legislature, Regular Session. The Journal records the meetings of the House in the early days of each session. The House adopts the rules by which the members will proceed — pursuant of course to Article III, section 11 of the Texas Constitution. This year there was a heated debate over electing the Speaker. In 2005 the Journal includes a lengthy “statement” by Mr. Keel. In the first paragraph he says, “Observers should take note that the Texas Open Meetings Act is inapplicable to the Texas Legislature.” Mr. Keel reviews the Act’s history as it relates to the Legislature, including specific legislative procedures which are common now but might be illegal under the TOMA. The paragraph concludes, “… Thus every time a legislator meets with other legislators to secure a majority vote on an issue before a committee or the full house, that legislator would be violating the Open Meetings Act. Attempting such a misapplication of the Act leads to absurd results, given that the conduct described is universally recognized as proper and necessary for legislators in a representative democracy.” At the conclusion of his “statement” Mr. Keel reports he has discussed these matters with the Travis County District Attorney whose opinion is consistent with Mr. Keel’s. So there we are … except these opinions all preceded Judge Junell’s November 2006 opinion. And yes, Judge Junell sits in the Western District of Texas which includes Austin. And yes, Judge Junell was, prior to his appointment to the bench, a senior Texas legislator, chairman of the House Appropriations Committee. After presentation of the case in Pecos, the judge wrote, as a conclusion of law, that “… there is no meaningful distinction among public employees, appointed public officials, and elected public officials.” An email from one Alpine city councilperson to another asking to set up a council meeting was therefore prosecutable, even if such an interpretation of the TOMA is “absurd” in Austin. There is a slight disconnect here. The rules of both the House and the Senate contain many references to open government. But there are zero cases of criminal enforcement and the House Rules do not include any criminal sanctions in the 100-plus pages. Even before Judge Junell’s decision a Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel lawyer, David Méndez, posted a lengthy article on the Web, “Special Problems Under the Open Meetings Act: Applicability of the Open Meetings Act to the Legislature” (July 2004). ”With the demise of a bipartisan culture the committees and policies for operation of the chambers will need to be reviewed and analyzed to determine how they adhere to the Open Meetings Act as the Act may represent one of many tools that can be utilized to check the power of the body.” Representative Keel is correct. Representative democracy cannot proceed under the ridiculous strictures applied here in Alpine. The result is that we have one rule of law in Austin and another rule in the cities, counties, and school boards out in the boondocks. • (Also published by the Big Bend Sentinel of Marfa, Texas February 1, 2007.) December 3, 2009 Reprint February 1, 2007 An Email from House Speaker Craddick "1-26-07 Dear Mr. McNamara: Whether the Texas House and Senate are subject to the Texas Open Meetings Act is a legally complicated question. The House and Senate are technically subject to the Texas Open Meetings Act, see for example Texas Government Code section 551.001. However, the Texas Open Meetings Act also explicitly recognizes that the House and Senate hold an overriding constitutional authority to set their own rules to govern their own legislative processes, see for example Texas Constitution Article 3, section 11, and Texas Government Code sections 551.003 and 551.046. I strongly believe that Texas government should operate in the open for all Texans to see, and the House in its rules does strive to ensure that the House's business is done in public view, with requirements similar to those found in OMA. For example, House rules require that House Committee meetings and House floor debates are announced in advance and are conducted in public view, giving Texans the opportunity to observe their government in action. If I can ever be helpful to you on this or any other issue, please do not hesitate to contact me. Sincerely, TOM CRADDICK Speaker" November 28, 2009 Ethics, Lobbyists and Free Speech On November 15 a
friend sent me a "commentary" article from the Austin
American-Statesman by a registered but unpaid lobbyist for the Texas
Daily Newspaper Association (TDNA). The article demonstrated for me the
reasons for the hostility the Texas press has shown toward the effort
to secure First Amendment protections for local elected officials in
Texas. The commentary, "Don't let lobbyists undermine the Texas Open
Meetings Act," also contained several howling errors. The situation is very
illustrative of the problems the press is enduring in the Internet Age
now upon us. In a word, they are scared. I have always respected the
Austin American-Statesman so I immediately emailed a comment to the
editor of the editorial page Arnold Garcia. Any press code of
ethics includes at a minimum a standard of fairness which provides a
right of reply for those attacked, especially when the facts asserted
are wrong. Garcia and I exchanged several emails and he published the
third revision along with several links to other articles related. Well done, Mr. Garcia. I want to emphasize
that Mr. Fred Hartman is a newspaper publisher with several platforms
from which he may legitimately bash anyone for anything he opposes. OF
COURSE he has his First Amendment rights.` All Avinash Rangra,
Anna Monclova and other elected officials are asking for is that they
have the same rights. The article published November 25 is below. "statesman.com OTHER TAKES McNamara: Texas statute shouldn't infringeon elected officials' free speech rights Jack D. McNamara, SPECIAL CONTRIBUTORWednesday, November 25, 2009In his Nov. 15 commentary "Don't let lobbyists undermine the Texas Open Meetings Act," special contributor Fred Hartman complains of the Texas Municipal League's efforts "continually trying to chip away at the public's right to know" and cites a lawsuit here in Alpine — "This lawsuit is being paid for by taxpayer dollars as well — outrageous." Well, it might be objectionable if true but Hartman is wrong. The lawsuit "Rangra v. Brown" was financed by the plaintiffs, Avinash Rangra and Anna Monclova. The case was dismissed for "mootness" because Rangra's term-limits as a three term city councilman meant he no longer had "standing." The courts took so long deliberating that Rangra was out of office. The politics of Alpine is sustained by water. More than 60% of the Brewster County population lives in or just outside the city. In April 2002 the Texas Council on Environmental Quality (TCEQ) cited the city for failing to maintain water pressure standards in the southeast sector of the city, a predominantly minority area called Pueblo Nuevo. There ensued several rough city elections for the five council seats from 2003 through 2005. Avinash Rangra, a Sul Ross chemistry professor born in the Punjab, India became the leader of the council majority which was struggling to fix the water distribution system — and to fix Pueblo Nuevo first. In October 2004 another councilperson elected with Rangra in 2003, Katie Elms Lawrence, sent him an email urging Rangra to contact the mayor and ask her to call a special meeting to consider hiring another engineering consultant. At the time there were four engineering entities whose bona fides were before the council. Rangra
acknowledged the email and contacted the mayor. At that time there were
more than 40 hours of recorded meetings, discussions, workshops,
videotapes, etc., etc. on the subject of engineering the water system.
Rangra forwarded Elms's email to two other councilpersons, Anna
Monclova and Manuel Payne and the council unanimously voted to retain
Naismith Engineering of Austin. The fifth councilmember, Mrs. Nancy DeWitt, obtained more than 100 of Rangra's emails and delivered them to 83rd District Attorney Frank Brown. He led a leaky, highly publicized grand jury to indict both Rangra and Elms for violation of the Texas Open Meetings Act (TOMA) Section 551.144. They retained Dick DeGuerin of Houston and Marfa and Rod Ponton of Alpine. District Attorney Brown quickly moved to dismiss the indictments. Brown was defeated in the March 2008 Democratic primary. Elms chose not to run for reelection in 2005. Monclova was narrowly defeated in 2006. DeWitt narrowly won reelection in 2005, then abruptly resigned and left town. Judge Robert Junell heard the case in July 2006 in Pecos. He ruled in favor of the Texas AG and DA Frank Brown. Rangra and Monclova appealed to the 5th Circuit in December 2006. A three judge panel ruled in late April 2009 that of course elected representatives in Texas have the same First Amendment rights as anyone else. The panel reversed Judge Junell's decision and remanded the case back to him for "strict scrutiny." The Texas Attorney General appealed for the full 5th Circuit to hear the case anew so Rangra and Monclova did too, saying in effect the decision so strongly favored their action that we might as well keep going to the U.S. Supreme Court. The full court suddenly noticed that Rangra's third elected term had ended in May 2009. Sixteen judges then ruled the cause "moot" in a single sentence. But Judge Dennis wrote a stinging six page dissent which will confront the Texas AG or any other politically ambitious prosecutor who might try to gag a representative of the people. In June 2009 the City of Alpine completed the redesign of the water distribution system at a cost of just over $4 million. The rejected engineer had proposed a system costing more than $10 million and never did provide sufficient water pressure for a morning shower to our Pueblo Nuevo. Hartman says "there have been only a handful of prosecutions" — one is too many if this statute denies the free speech rights of the elected officials who represent us. But Mr. Hartman is a vice president of "Hartman Newspapers." Who does he represent? According to your article he is also the "chairman of the Texas Daily Newspaper Association's Legislative Advisory Committee." He is a lobbyist who places his business interests above our free speech rights. McNamara is publisher of The Nimby News." September 16, 2009 The following statement was released by Alpine Attorney Rod Ponton on September 14, 2009: "To: Robert Halpern, Mike Perry, Jack McNamara "This is what we plan to do regarding our next steps in Rangra v Brown. "We will file a Motion for Rehearing, asking the Court to reconsider the dismissal. We had filed a Motion to Intervene, last Friday, with affidavits signed by four current officeholders-- James Fitzgerald, Angie Bermudez, and Johanna Nelson, Alpine city council, and Russell Jones, Sugar Land city council. They each asked to intervene on appeal, because their rights were not being vindicated by Rangra. We also filed a Reply Brief last Friday, pointing out that Rangra met all the standing standards of 5th Circuit and Supreme Court law. Our reply Brief was timely, filed 14 days after service of the Attorney General's Brief on the merits. Thus, the 5th Circuit dismissed the case without obtaining and reviewing all briefing in the case. Judge Dennis' dissent was accurate-- it was a result oriented decision, not based on current standing law. We will ask the 5th Circuit to rehear the matter, so as to be able to have all briefing before them. If they refuse, we will ask them to dismiss the appeal, not the case. In any event, we will return to District Court, where Rangra still has pending damage claims for a violation of 42 USC Sec 1983. We will add additional plaintiffs at the District Court level, to avoid future standing problems. We will press forward. The TOMA law is still the same. The First Amendment is still a part of the Constitution. The problems faced by Texas public officials are real and ongoing. The dismissal merely delays for a year, the inevitable review of whether TOMA violates the First Amendment. We will not stop for a moment. The Attorney General is apparently afraid to have TOMA reviewed on whether it violates the First Amendment, because he was the one pushing the standing issue. We will keep pushing the issue until we are able to get a full 5th Circuit review, and ultimately a Supreme Court review. Rod" September 12, 2009 Moot! Says the 5th Circuit ... But It Ain't Over By Jack D. McNamara On Thursday, September 10, the U.S. 5th Circuit Court of Appeals in New Orleans dismissed the case challenging the Texas Open Meetings Act (TOMA) for "mootness." That means a majority of the 17 judges said it is over and thereby cancelled a hearing scheduled for September 24. The Court collectively stated this in a one-line sentence of nine words. This succinct decision probably reflects that a majority of the judges accepted the Texas Attorney General's late argument that because Avinash Rangra left the Alpine City Council on May 19, 2009 due term limits (and after being elected three times in opposed elections) neither of the named plaintiffs any longer had "standing" to challenge the constitutionality of a Texas statute governing elected municipal representatives. There was, however, a strong dissent to the dismissal from Judge James Dennis, a member of the three-judge panel who decided for Rangra and Monclova in April. It is an astonishing dissent and so admirable that we publish the dissent here in full. .................. "DENNIS, Circuit Judge, dissenting: I emphatically dissent from the majority's decision to declare this case moot because it is incorrect, injudicious, and result-oriented. Background
Rangra
served three consecutive two-year terms (6 years) as Alpine city council member until he was term limited (for one two-year term) at the end of his term on May 19, 2009. During his second term, in February 2005, Rangra was accused of exchanging emails among a quorum of council members to schedule a council meeting. Rangra was indicted for a violation of the Texas Open Meetings Act ("TOMA"), but that charge was later nolle prossed or dismissed without prejudice. The district attorney warned or threatened to bring new charges if his communications were perceived as violating TOMA again. In September 2005, Rangra and another city council member brought this § 1983 action for declaratory and injunctive relief, challenging the criminal provisions of TOMA, under which they had been prosecuted, as content-based speech regulations. The district court held that elected city council members are entitled to no more First Amendment protection oftheir speech pursuant to their official duties than are unelected public employees. On appeal, the panel held (1) that elected officials are entitled to full First Amendment protection of their speech pursuant to their official duties; (2) that the TOMA provisions at issue are content-based restrictions on speech which must be subjected to strict scrutiny. Thus, the panel reversed the district court judgment and remanded the case for further proceedings. An en banc rehearing was granted and scheduled for oral argument on September 24,2009. Recently, when this court was notified of Rangra's leaving office on May 19, 2009, it raised the issue of mootness sua sponte, and now dismisses the case as moot. 1
The Panel
Correctly Decided That Plaintiff Has Standing And That The Case Is Not Moot Because He Is Still Threatened By Prosecution. The panel rejected the defendants' objection based on alleged lack of standing and mootness. See Rangra v. Brown, 566 F.3d 515, 519-20 (5th Cir.· 2009). Because the plaintiff has once been indicted and prosecuted for an alleged violation of the Texas Open Meetings Act and could be so prosecuted again, the plaintiff has standing to challenge the statute and the case is not moot. The panel's reasons were as follows: It is well established that a credible threat of present or future criminal prosecution will confer standing. See, e.g., Virginia v. Am. Booksellers Ass'n, , Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 98 L.Ed.2d 782 (1988) (holding that the injury-in-fact requirement was met, in part, because "plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them"); Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L.Ed.2d 505 (1974) ( "[I]t is not necessary that [a party] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights."); Doe v. Bolton, 410 U.S. 179, 188-89,93 S. Ct. 739, 35 L.Ed.2d 201 (1973). This is because a credible threat of present or future prosecution is an injury sufficient to confer standing, even if there is no history of past enforcement, see Bolton, 410 U.S. at 188, 93 S. Ct. 739, and a speaker who fears prosecution may engage in self-censorship, which is itself another injury, see Am. Booksellers, 484 U:S. at 392, 108 S. Ct. 636 ("[T]he alleged danger of [the challenged] statute is, in large measure, one of self-censorship."); see also Ashcroft v. ACLU, 542 U.S. 656, 670-71, 124 S. Ct. 2783, 159 L.Ed.2d 690 (2004) ("Where a prosecution is a likely possibility ... speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech."). 2 See also Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129, 127 S. Ct. 764, 166 L.Ed.2d 604 (2007) ("[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat--for example, the constitutionality of a law threatened to be enforced. The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction."); Ellis v. Dyson, 421 U.S. 426, 432, 95 S. Ct. 1691,44 L.Ed.2d 274 (1975)("[F]ederal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied."). For the same reasons, because the plaintiff is still exposed to prosecution under the statute, the panel held that the plaintiff's standing still exists and the case is not moot. See Rangra, 566 F.3d at 520; Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S. Ct. 1055, 137 L.Ed.2d 170 (1997) (a case is not moot where "~[t]he requisite personal interest that must exist at the commencement ofthe litigation [to give rise to standing] continue[s] throughout its existence."'(quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388,397, 100 S. Ct. 1202,63 L.Ed.2d 479 (1980»); see also Steffel, 415 U.S. at 459,94 S. Ct. at 1215-16 (holding that "alleged threats cannot be characterized as 'imaginary or speculative'" where petitioner was warned that continued exercise of his constitutional rights would result in prosecution and petitioner's companion was prosecuted for engaging in the same conduct (quoting Younger v. Harris, 401 U.S. 37, 41, 91 S. Ct. 746, 749,27 L.Ed.2d 669 (1971); Poe v. Ullman, 367 U.S. 497,508,81 S. Ct. 1752, 1758-1759,6 L.Ed.2d 989 (1961»). 3 The Precipitous Action By The En Banc Court To Declare Mootness Prior To Full Briefing And Oral Argument Is Incorrect, Injudicious And Result Oriented.
The
plaintiff, Rangra, left office at the end of his term on May 19, 2009 because he had served the maximum (three) consecutive two-year terms allowed without a break. See HOME RULE CHARTER OF THE CITY OF ALPINE § 3.01(E). However, this did not defeat his standing to challenge TOMA, to protect himself from alleged unlawful prosecution to which he is still exposed. Thus, the controversy created by his initial prosecution under the Act and this suit by him to protect himself from the threat of future prosecution by challenging the constitutionality of the Act is live, extant and not moot. The statute of limitations for a violation under the Act is two years from the date of the commission of the offense. See TEX. CODE CRIM. PROC. ANN. art. 12.02 (Vernon 2009). Thus, the statute of limitations will not run completely on the threat of prosecution to Rangra until May 19, 2011. So long as the threat of prosecution exists and Rangra maintains his constitutional challenge he is entitled to seek protection under the First Amendment in the federal courts. See, e.g., Am. Booksellers Ass'n, 484 U.S. at 392-93, 108 S. Ct: at 642-43; Steffel, 415 U.S. at 459,94 S. Ct. 1215-16; Bolton, 410 U.S. at 188-89, 93 S. Ct. at 745-46; Ashcroft, 542 U.S. at 670-71, 124 S. Ct. at 2794. More generally, so long as the federal court's decision is likely to have some effect in the future, the case should not be dismissed even though the plaintiff's primary injury has passed. In Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974), "[d]uring a labor strike, the employers whose plants were struck filed a lawsuit challenging a state law that permitted strikers to receive public assistance through state welfare programs. Although the strike ended before the completion of the federal court litigation, the Court held that the case was not moot because a federal court decision could 4 substantially affect future labor-management negotiations." Erwin Chemerinsky, Federal Jurisdiction § 2.5, at 131 (4th ed. 2003). The Court also reasoned that the case presented a wrong capable of repetition yet evading review. Thus, any continuing injury means that there is a live controversy. Super Tire, 416 U.S. at 121-26. Here, Rangra continues to live under the threat of prosecution and under the damage that was done to him by his prior indictment and prosecution by the state government. The only reason that has been advanced for dismissing this case prior to the date upon which it had been set for en banc rehearing and oral argument, is that it would overtax the judges of this court to prepare for oral argument on both the mootness question and the merits of the appeal. This is not a valid reason. We have often been confronted with standing and mootness challenges just prior to en banc oral argument. To my knowledge this court has never before dismissed an appeal set for en banc hearing so precipitously without giving the parties full time for briefing and without hearing them fully on the issue at oral argument. A heavy work load never justifies giving short shrift to a case in which there is undisputed jurisdiction and an initial demonstration of standing. That is even more.so because our regular oral argument dockets are currently dwindling, now that we have a near full complement of sixteen active judges and six senior judges. Alternatively, although it is not necessary to consider any exception to the mootness doctrine, because this case presents a live, extant controversy, this case also fits within several of the exceptions. For instance, this controversy is excepted from the mootness doctrine as presenting a "wrong capable ofrepetition yet evading review." To come within this exception, Rangra is only required to show that '''(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable 5 expectation that the same complaining party will be subject to the same action again.'" Fed. Elec. Comm'n v. Wisconsin Right to Life, Inc., 661 U.s. 449, 462, 127 S. Ct. 2662, 2662, 168 L.Ed.2d 329 (2007) (quoting Spencer v. Kemna, 623 U.S. 1, 17 (1998». Rangra has done so. The duration of this litigation, now over four years, double the length of a council term, establishes conclusively the litigation time required greatly exceeds the period after which the claimant will be met with a mootnessobjection. See Wis. Right to Life, Inc., 661 U.S. at 462, 127 S. Ct. at 2662 (the fact that "two blackout periods have come and gone during the pendency of this action" showed the action evaded review); Davis v. Fed. Elec. Comm'n, 128 S. Ct. 2769, 2769-70 (2008) (the passing of two congressional election cycles "demonstrat[ed] that [the] claim[ was] capable of evading review"). Further, there is also a reasonable expectation that Rangra will be subjected to future deprivations of his constitutional rights; he was indicted and prosecuted once; the charges were dismissed withoutprejudice; and the district attorney threatened him with another prosecution in the future. See Murphy v. Hunt, 466 U.S. 478, 481,102 S. Ct. 1181, 1183,71 L.Ed.2d 363 (1982) (requiring '''a reasonable expectation that the same complaining party would be subjected to the same action again'" (quoting Ill. Elections Ed. v. Socialist Workers Party, 440 U.S. 173, 187,99 S. Ct. 983,991,69 L.Ed.2d 230 (1979». As the Court has explained, thisis not a difficult showing to make - there need only be a "reasonable probability" that the plaintiff will be subjected to the same action. See Honig v. Doe, 484 U.S. 306, 318 n.6, 108 S. Ct. 692, 98 L.Ed.2d 686 (1988) ("We have found controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable."). Rangra was elected to three consecutive terms until he was term-limited for one term; the Alpine voters re-elected him twice after he had been indicted and prosecuted for violating TOMA; he filed a sworn affidavit stating his intent seek the office again 6 when he becomes eligible to run in 2011. * * * This court shirks its duty under the Constitution to afford Rangra a forum for his constitutional challenge and live controversy by dismissing his claim without full briefing, full oral argument, and full judicial consideration and attention. The Supreme Court in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007) held: "[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat-for example, the constitutionality of a law threatened to be enforced. The plaintiffs own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. For example, in Terrace v. Thompson, 263 U.S. 197, 44 S. Ct.. 15 (1923), the State threatened the plaintiff with forfeiture ofhis farm, fines, and penalties ifhe entered into a lease with an alien in violation of the State's anti-alien land law. Given this genuine threat of enforcement, we did not require, as a prerequisite to testing the validity of the law in a suit for injunction, that the plaintiffbet the farm, so to speak, by taking the violative action. Id. at 216. See also, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926); Ex parte Young, 209 U.S. 123, 28 S. Ct. (1908). Likewise, in Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209 (1974), we did not require the plaintiff to proceed to distribute handbills and risk actual prosecution before he could seek a declaratory judgment regarding the constitutionality ofa state statute prohibiting such distribution. Id. at 458-460. As then-Justice Rehnquist put it in his concurrence, 'the declaratory judgment procedure is an alternative to pursuit ofthe arguably illegal activity.' Id. at 480. In each ofthese cases, the plaintiff had eliminated the imminent threat of harm 7 by simply not doing what he claimed the right to do (enter into a lease, or distribute handbills at the shopping center). That did not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced. See Terrace, supra, at 215-216; Steffel, supra, at 459. The dilemma posed by that coercion-putting the challenger to the choice between abandoning his rights or risking prosecution-is 'a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.' Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S. Ct. 1507 (1967)." Id. at 128-29. As the Supreme Court put it, Rangra did not have to "bet the farm," id. at 129, on his right to use his email to communicate with other members of the city council for the purpose of scheduling a routine business meeting; instead, he took the action that the Supreme Court has approved and encouraged citizens to take when they are threatened by criminal prosecutions they believe to be unlawful. He filed a declaratory judgment action challenging the constitutionality of the criminal statute as an infringement on the First Amendment. (No one disputes that Rangra was threatened with further prosecution when he brought this declaratory action. No one disputes that if Rangra had continued to engage in email communications to schedule routine business meetings and had been subjected to further prosecution continuing throughout his term of office that this case would not be moot. No one would contend that the State could violate Rangra's constitutional rights at will simply by prosecuting him until the clock ran out on his term in office.) Rangra did everything he needed to do to preserve his right to bring this constitutional challenge to the statute. This Court's precipitous actions are in direct conflict with the Supreme Court's well. established jurisprudence culminating in Medimmune." 8 July 29, 2009 En Banc! By Jack D. McNamara Yesterday, July 28, the 5th Circuit Court of Appeals in New Orleans posted a court order granting petitions by both sides in Avinash Rangra; Anna Monclova vs. Frank D. Brown, District Attorney; Greg Abbott, Texas Attorney General (No. 06-51587). “En Banc” means as many as 17 circuit Judges will hear the appeals of the respective sides regarding the constitutionality of the Texas Open Meetings Act (TOMA). A majority of the judges voted to hear the appeals which are scheduled for oral argument the week of September 21 in New Orleans. Under the rules of the court the order “stays” (suspends) the opinion previously released by a three-judge panel reversing and remanding the decision of Western District of Texas Judge Robert Junell. The panel had ordered Judge Junell to examine the case under the demanding standards of “strict scrutiny.” (See above.) As an aside, this probably means the case will eventually go to the U.S. Supreme Court. The plaintiffs (Rangra and Monclova) are much stronger now than they were when this started in February 2005. The state’s case is weaker. Frank Brown is no longer 83rd District Attorney because he was defeated in the Democratic primary of March 2008. Brown was defeated after three previously uncounted ballot boxes were “found” in the vault in the Brewster County Voting Office. When this irregularity and others (such as more votes than voters) were corrected, Brown lost by a narrow margin. The county promptly disestablished the voting office. Brown’s attorney, Steve Houston, next attempted to substitute the new district attorney’s name (Jesse Gonzales) for his (Frank Brown) on the court documents. The plaintiffs strenuously objected and the court denied the request. • June 9, 2009 Twiddling Thumbs By Jack D. McNamara Here we sit twiddling two thumbs waiting to hear from the 5th Circuit Court of Appeals — will they conduct an en banc hearing on Rangra v. Brown? The court reversed and remanded U.S. District Court Judge Robert Junell’s November 2006 decision on April 27. There were several hugely important aspects to the decision which we discussed here on May 6, “Strict Scrutiny.” After the decision the Texas Attorney General mulled over his options and decided to seek the en banc hearing. He brought with him a couple of press lobbying organizations, the Freedom of Information Foundation of Texas and the national Reporters Committee for Freedom of the Press. In addition more than a dozen state attorneys general joined in bellowing that the First Amendment was in great danger because a three judge panel said that our elected officials have the same right to free speech as do prosecutors and editorialists. But for the moment the decision by Judges Dennis, Weiner and Barksdale stands … the case will come back to West Texas for a hearing on the issue. Interestingly the Texas AG does not any longer refer to the legal cornerstone of Judge Junell’s decision, the 2006 Supreme Court decision in Garcetti v. Ceballos. Nor has the Texas AG very much acknowledged the April 27 decision. In November 2006 the AG’s website resounded with press releases praising Judge Junell and proclaiming a preferred position for the freedom of speech of prosecutors and editors. But now we have only a puny footnote in an AG opinion issued on June 1. Greg Abbott Opinion 0717 refers to the court’s three judge decision in the last footnote of an opinion for the city of Rockwall. Their city attorney asked if the city’s charter allowing a quorum of council members to call a special meeting and set the agenda was OK. Well, yes it is, says the Texas AG, NOW somewhat belatedly. That is precisely the circumstance under which the Brewster County Courthouse Gang indicted Avinash Rangra and Katie Elms-Lawrence in 2005. So it appears the courthouse gangs in Texas no longer have a legal cornerstone, Garcetti v. Ceballos, and some sanity has returned to those who decide if local governments may communicate and meet to solve the problems they were elected to solve. My best guess is that the case is coming back to West Texas. Both sides have requested the en banc hearing and both sides are apparently positioned to appeal to the U.S. Supreme Court. But I think that doesn’t happen until the record is complete in accordance with what Judge Dennis in New Orleans wrote in April. If the case comes back here we should have the opportunity to reexamine the blatantly political prosecution of Alpine city council members in late 2004 and 2005. To add substance to that examination we have posted a copy of the Texas House of Representatives’ HR 2790 commemorating the service of Avinash Rangra on the Alpine City Council for three terms. Introduced by our State Representative Pete P. Gallego, the bill was passed unanimously by the state House on June 1. Among other accomplishments the resolution gives credit to Rangra for “his efforts helped bring about many positive developments, including the resolution of a long standing water pressure problem in Alpine …” We are looking forward to a replay under oath of the Alpine water travesty…. “Whiskey is for drinking and water is for fighting.” • June 1, 2009
Dear Ms. Culpepper: You indicate that section 3.08 of the charter of the City of Rockwall declares that "[s]pecial meetings of the City Council shall be held at the call of the Mayor or a majority of the Council members . . . upon provision of public notice in accordance with state law." (1) You inquire as to whether section 3.08 violates the Open Meetings Act, chapter 551 of the Government Code (the "Act") either facially or as it may be applied. Specifically, you ask whether "a majority of council members [may] call, without deliberating at a publicly noticed meeting . . . a special meeting of the city council without violating the Open Meetings Act." Request Letter at 1. As we have not been presented with a specific factual scenario, our analysis is necessarily limited to whether the charter provision violates the Act on its face. The Act does not specifically address the procedures for calling a special meeting of a governmental body. However, any procedures adopted by the city council must be consistent with the Act's requirements. Under the terms of the Act, "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." Tex. Gov't Code Ann. § 551.002 (Vernon 2004). The Act defines "meeting" to include a "deliberation between a quorum of a governmental body." Id. § 551.001(4) (Vernon Supp. 2008). A "deliberation" is a "verbal exchange during a meeting between a quorum of a governmental body . . . concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2). (2) Because the Rockwall City Council consists of a mayor and six council members, a majority of the Council, as called for by the charter provision, also constitutes a quorum of the governmental body (Council plus Mayor) under the Act. The word "quorum" generally means "a majority of a governmental body." Id. § 551.001(6). In a prior opinion, this office stated that "agenda preparation procedures may not involve deliberations among a quorum of members of a governmental body except in a public meeting for which notice has been posted." Tex. Att'y Gen. Op. No. DM-473 (1998) at 3. We need not, however, adopt any global statement about agenda preparation procedures, because the question before us is more narrow than that. (3) We are asked only to determine whether a majority of the city council may call a "special meeting" under the referenced charter provision without violating the Act. As was the case with agenda preparation, the procedures for calling a special meeting under the charter provision may not involve deliberations among a quorum of the city council outside of a public meeting for which notice has been posted. While the charter provision appears to invite a quorum of the governmental body to engage in a prohibited exchange "concerning an issue within the jurisdiction of the governmental body or any public business," the charter provision does not necessarily mandate any deliberation among a quorum of city council members. Tex. Gov't Code Ann. § 551.001(2) (Vernon Supp. 2008). In addition, your request to us expressly assumes a call made "without deliberating at a publicly noticed meeting." Request Letter at 1. In other words, your question asks us to assume the call at issue is made without deliberation. Thus, we cannot conclude that every conceivable procedure put into place by the city council to implement section 3.08 of the charter would on its face violate the Act. As a result, we cannot determine as a matter of law that the charter provision at issue would contravene the Act. We caution, however, that "if a member or group of members of a governmental body knowingly conspires to circumvent the [A]ct by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the [A]ct, the person or persons commit a criminal offense." (4) Tex. Att'y Gen. Op. No. DM-0473 (1998) at 3. S U M M A R Y We cannot conclude, as a matter of law, that a charter provision of the City of Rockwall permitting a majority of members of the city council to call a special meeting violates the Open Meetings Act on its face.
ANDREW WEBER JONATHAN K.
FRELS NANCY S.
FULLER Rick Gilpin Footnotes 1. Request Letter (available at http://www.texasattorneygeneral.gov). 2. In a prior opinion, we said that the Act "does not require that governmental body members be in each others' physical presence to constitute a quorum." Tex. Att'y Gen Op. No. GA-0326 (2005) at 3. Relying, inter alia, on Esperanza Peace & Justice Center v. City of San Antonio, the opinion found that the Act is applicable to a governmental body that takes action without conducting a public meeting, even though that action avoids the technical definitions of "meeting" and "deliberation." Id. at 5 (citing Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 472, 478). 3. We also need not address section 22.038(b) of the Local Government Code, which provides that "[t]he mayor may call a special meeting on the mayor's own motion or on the application of three aldermen." Tex. Loc. Gov't Code Ann. § 22.038(b) (Vernon 2008). That chapter of the Local Government Code is applicable only to a Type A general-law municipality. Id. § 22.001. The City of Rockwall is on the other hand, by virtue of its charter, a home-rule municipality. 4. In considering a claim by two elected officials that section 551.144 of the Act violates the First Amendment, the Fifth Circuit concluded that this provision is a content-based speech regulation that is subject to strict scrutiny review, and remanded the case for further proceedings in the district court. Rangra v. Brown, No. 06-51587, 2009 WL 1100611, at **1, 3 (5th Cir. Apr. 24, 2009). Although the court directed the district court to apply strict scrutiny in evaluating the elected officials' First Amendment claim, it did not invalidate section 551.144. See id. “Strict Scrutiny” By Jack D. McNamara jack@nimbynews.com/432-837-5619 The regulars for the “ain’t it awful” seminar were tense with anticipation at 5 p.m. Friday, April 24. We routinely assemble for a few beers and political chit-chat at the venerable Railroad Blues, Alpine’s classiest honky-tonk. But this particular Friday we had rumors of real news. Alpine City Councilor Avinash Rangra arrived and with customary restraint effused “We won!” What Rangra won, along with his fellow City Councilor and named plaintiff Mrs. Anna Monclova, was a lawsuit challenging the constitutionality of the Texas Open Meetings Act (TOMA). A three-judge panel of the 5th Circuit Court of Appeals in New Orleans had just that day released a 17-page opinion which “reversed and remanded” U.S. District Judge Robert Junell’s dismissal of their cause in November 2006. The opinion was written by Judge James L. Dennis and he was joined by Judges Jacques L. Weiner, Jr. and Rhesa H. Barksdale. Rangra was informed of the court’s actions that Friday by one of his lawyers, Rod Ponton of Alpine, who had in turn been informed by their other lawyer, Dick DeGuerin of Houston and Marfa. Ponton soon arrived at the Blues and began handing out copies of the decision to the regulars. We knew the context because we had been discussing it ever since the outrageous grand jury subpoenas and indictments of early 2005. Several of us shared Rangra’s enthusiasm because we were involved in the case. So much for journalistic objectivity. Throughout
2003 and most of 2004 the Alpine City Council struggled with the
politically intractable problem of the Alpine water distribution
system. A minority of the council, the city manager and the city’s
engineer at the time, a widely known and respected firm, favored a new
system which would circle Alpine with 12-inch pipes and new water tanks
convenient to developers needing the hydrostatic pressure from 4700
foot elevations. The majority of the council favored “fixing Alpine
first,” as Councilperson Katie Elms-Lawrence often said.In late April 2002 the Texas Council on Environmental Quality (TCEQ) measured the city’s water supply pressure on the southeast as below state standards, the result of years of demonstrable neglect of the needs of our citizens. But the state citation was not known to the public until mid-2003 when we got the records through the Texas Public Information Act (TPIA). LtCol Hugh Garrett USAF (ret), a member of the Alpine Independent School District Board at the time, expressing his opinion of the TOMA prosecution at the Brewster County Courthouse. Photo by the Alpine Avalanche. [April 2005] Alpine, frequently cited as a “best place” for various qualities, is indeed a best place for factional and political battle. The conflict is most intense at city hall because that local government actually deals with the most controversial questions and does it with the greatest degree of democracy. Rangra and Monclova’s victory proved that average citizens can understand complex municipal problems as well as the experts, developers, lawyers and lobbyists who come to their door selling projects. The stakes could not be higher. As the water war evolved from 2002 onward the price estimated for repairing the city’s water distribution system eventually rose to more than $11 million for the developers’ model of more tanks and big pipes girdling the city on the prairie to the north and west. There was no help offered from the county commissioners — there never is. Since 1993 the city has financed a new land-fill for the benefit of several surrounding communities in the area, a utilities extension to a new private hospital and renovation of the sewage treatment plant. In addition the city funds area recycling, the fire department, a large police department, the “municipal” airport (used by all the usual users, few of whom are city taxpayers) and a host of economic development celebrations for the tourists. Besides taxes, the principal source of revenue for the city is the sale of water. Water for Alpine and all the surrounding customers in the suburbs comes from two sources. Sixty-five percent comes from wells on the Jeff Davis County line in the Musquiz Creek watershed as the creek exits the mountains. That water was given to the city by the rancher/philanthropist Herbert Kokernot, Jr. in 1972. The well field is ten miles north of Alpine and was piped to the city by one of the early federal grants from the Department of Housing and Urban Development. Thirty-five percent of the city’s water comes from wells developed in the early 1950s and which run along the route of Ranch to Market Road 1703 about three miles to the west of downtown Alpine. In the years before World War II almost all of the city’s water came from wells in the city, most of them private. When the seven-year drought of the 1950s hit those wells dropped. The two well fields in operation now saved the city, including Sul Ross State University. Over the years the distribution system deteriorated; water meters became salted up; unauthorized taps into water lines were permitted by “good old boy” relationships. The water line coming from the west went across an area expanding with small acreage “ranchettes.” The City sought no easement for the line. Rather than seek easements, the city fathers shook hands on the subsequent private deals — free water, no easements (my family was once a beneficiary of one of those deals). When the city finally reviewed these matters honestly City Attorney Rod Ponton found seventy-nine “problematic” water accounts. Much of the Brewster County and Alpine power structure preferred that examinations of past deals not be revealed nor disclosed. But beginning with the election in 2003 of Avinash Rangra and Katie Elms-Lawrence and reinforced with the 2004 elections of Anna Monclova and Manuel Payne, the city council sought the truth as a basis of making public policy. Rangra, a science professor who was born in India, brought a rather fresh perspective to the West Texas water wars. For our local pooh bah class of developers, lawyers, bureaucrats, beef barons, water sellers and courthouse courtiers, there can be no greater offense. Accordingly, 83rd District Attorney Frank Brown swung into action in late 2004. The developers’ councilor, Mrs. Nancy DeWitt, obtained several hundred emails Rangra had sent from his SRSU account under the Texas Public Information Act. Rangra is a chemistry professor at SRSU. Among those DA Brown selected one sent from Katie Elms-Lawrence to three other councilors on October 21, 2004. She asked Rangra to contact the mayor and set a “called” or special meeting to discuss the selection of another engineer. He did. Monclova and Payne received the email at their computers but neither replied. Manuel Payne, the descendant of Seminole scouts, and for whom an Alpine softball field is named, doesn’t do email. The special meeting was called. The council unanimously selected Naismith Engineering of Austin from among four current and hopeful applicants on October 25, 2004 to take a new look at the water distribution problem. The City borrowed more than $4 million through the Texas Water Development Board (TWDB) and the project is scheduled to be completed the first week in May. DA Brown convened his grand jury in early 2005 but conducted no law enforcement investigation. The grand jury convened and immediately began leaking the names of those subpoenaed. Rangra and Elms, due to stand for reelection in May 2005, were indicted on the eve of the election. They retained Dick DeGuerin and Rod Ponton. DA Brown promptly dropped the indictment, claiming Councilman Payne had “changed” his testimony. Rangra and Monclova sued DA Brown and Texas Attorney General Greg Abbott in federal court in Pecos, seeking declaratory and injunctive relief, “challenging as content based speech regulations the criminal provisions of the TOMA.” Judge Junell dismissed their claims, citing a 2006 U.S. Supreme Court case, Garcetti v. Ceballos. The councilors appealed. The case was argued in late January 2008. Since then, every Friday, the boys at the Blues passionately argue this case. Most of us either are or have been public officials. While we are not a quorum of anything we often speculate about our vulnerability to a DA Brown indictment. (Only one of us ever defends Brown and the Brewster County courthouse gang.) That indictment possibility became somewhat more improbable when Brown was defeated in the 2008 Democratic primary by Jesse Gonzales of Ft. Stockton. Typical for Brewster County, Brown was declared the winner by a narrow margin the day after the election. But the following Monday three ballot boxes were “discovered” on the floor in the county voting administrator’s vault. Someone opened the boxes (we don’t know who) and someone counted the votes some time later and then in an official recount. Gonzales won by a small but thunderous margin. Asked about the April 24th 5th Circuit decision case by Texas Lawyer, Brown said he hadn’t lost because the case was remanded, meaning sent back to Junell for a process known as “strict scrutiny.” That is the standard which should have been applied at every stage, of course. But we are accustomed to repeating ourselves over and over again out here on the Last Frontier—water systems, elections, court cases, etc. In comment to the news media this week both Brown and his former assistant DA Steve Houston stubbornly insist on further litigation, perhaps to the U.S. Supreme Court; So what does the 5th Circuit opinion mean? It means that thousands of local government officials in the 5th Circuit now have a stout shield against the attacks upon representative democracy. The TOMA is preserved; but fewer prosecutors will seek the hard work involved in preparing a prosecution which can survive the kind of challenge raised by Rangra and Monclova through their splendid defenders Ponton and DeGuerin. “5th Circuit : Strict Scrutiny Applies to Restrictions on Officials’ Speech” by Mary Alice Robbins, Texas Lawyer (online), April 27, 2009 www.law.com/jsp/tx “Rangra case sent back to district court” by Mike Perry, Alpine Avalanche, April 30, 2009. www.alpineavalanche.com • April 14, 2009 Reprint from March 8, 2007 Water Masters at Work April 14, 2009 Water in Alpine
April 14, 2009 Reprint from March 15, 2007 (edited) Spring Roundup <>By Jack D. McNamara State Representative Pete P. Gallego took responsibility for the failure to notify local elected officials of his water district legislation, HB 545 and HB 546. He said, “my name is on the door,” and that he was “trying to rectify a mistake” when he spoke to a gathering of county and city officials in Marfa on March 6. Janet Grubb, administrator of both the Presidio and Jeff David County groundwater districts, echoed Gallego and took part of the “blame.” She said she “assumed” everyone was “up to snuff.” The apology took care of the procedural issue well enough but there were many questions regarding the substance of the bills. Gallego said his intent was merely to unify the county districts in the event of another water marketer coming into the area. Gallego said, “You all are grandfathered.” Turning to his staffers they offered the term “historical use” which generally means among the water planners that whatever we are doing we can keep doing. City Secretary Cindy Clarke of Presidio wanted some more specificity, however, and posed a hypothetical question: “When Presidio reaches 50,000 (population) the water district will not shut us off from drilling another well?” Gallego said No. Janet Adams said No. Gallego concluded the session by saying that before the Marfa event he had met with Rod Ponton (a fellow who is “up on water law”) as well as Alpine City Manager Jesus “Chuy” Garcia and Alpine Ward 1 Representative Avinash Rangra. They resolved their differences and that evening the city of Alpine passed a resolution supporting the bill. On March 9, Senator Carlos Uresti filed a companion bill in the Texas Senate, SB 1895. Representative Gallego has introduced about two dozen bills in the House as of the close of filing deadline of March 10. Representative Gallego has another bill concerning water, HB 3477 “relating to the creation of a strategic mapping program to be administered by the Texas Water Development Board.” Simultaneous with our thrilling little brouhaha here regarding HB 545/HB 546, the U.S. House of Representatives last week started action on renewing federal funding for water projects (HB 700 and HB 720). Funding has been suspended for perhaps 10 years. One bill will cost about $11 billion, according to the subcommittee chair, Representative Eddie Bernice Johnson of Dallas. Our Representative Ciro Rodriguez spoke in favor of the funding on the floor of the House last week. The City of Alpine is still waiting for approval of Alpine’s water distribution plan. The city was approved exactly two years ago for a $4,860,000 loan from the Texas Water Development Board. There was great urgency at the time because in April 2002 Alpine’s southeast sector was determined by the Texas Council on Environmental Quality (TCEQ)to have dangerously low water pressure. Since 2002 we have spent unnecessarily $1.35 million on a new water and sewer system for the U.S. Border Patrol. We have paid several hundred thousand dollars to the middlemen bondsmen, lawyers and engineers. But you still can’t take an after-work shower in New Town. The failure of this project to date has many causes, principally the inability of the city to overcome the obstructionists here and elsewhere. Neither Brewster County nor the expanding bureaucracy of water planners has offered a penny. Thousands of dollars in campaign contributions to U.S. Representative Henry Bonilla did not produce a single south Alpine earmark for water distribution. Now there’s a good campaign slogan for the 2007 municipal elections — “Showers for the South Side!” •
Furor
Erupts Over HB 811 “Whiskey
is for drinking and water is for fighting,”
observed Mark Twain. A
political firestorm has once again erupted here in
Alpine concerning the control of the city’s water wells. This debate
occurs at
the same time as the 2009 city council elections. Those
elections have brought forth eight candidates for
three seats. One
candidate, Brian Shugart, filed for election to the
Ward 1 position but withdrew when duty called him to work for the FDIC
(Federal Deposit Insurance Corporation) in the
current bank mess. Three
candidates remain for the Ward 1 position — Angie Bermudez, Lorie
Rubenser and Anita
DeVries. In
Ward 3, Jim “Fitz” Fitzgerald was the only candidate
to file. After the incumbent, Gerald Raun, died a few weeks ago,
Fitzgerald was
appointed to the office at the April 7 city council meeting. There
are three candidates for election in Ward 5 —
incumbent Diana Asgeirsson, Pete Smyke and Moises Morales. We
cheerfully volunteer to publish any candidate’s
comments on this issue. To that end, we have published Pete Smyke’s
email April
9 below. Water
is the most important function of this city, in our
humble opinion. Pete
Smyke Says — “Got Water? Think Again!” Two bills
requested by the Brewster
County Underground Water Conservation District, HB 811 and
SB 1737, are currently making their way through the
Texas House
and Senate. These bills would remove the existing protections
under state
law that allow Alpine to manage its own water supplies, and effectively
transfer regulatory authority over Alpine's water to the Brewster
County
Underground Water Conservation District (BCUWCD).
These bills would
give the BCUWCD the authority to set production fees and
quotas on
city wells, and transport and import fees on water currently
produced at
the Musquiz Field wells in Jeff Davis County that were deeded to
Alpine by
Herbert Kokernot in the 1970's.
The BCUWCD is an
unelected county board with no City of Alpine representative. The
district did
not consult with the City of Alpine before introducing these bills, and
has
made no attempt to work with the city to address any concerns it has
with
Alpine's water use or production. (This same scenario occurred two
years ago
when similar bills were introduced regarding the Brewster and Presidio
county
water districts.) Members
of
the Alpine city government are working with Rep. Gallego to amend
the House
bill, but it is imperative that local citizens contact their Texas
House and
Senate representatives to oppose transferring control of Alpine's water
supplies. No one that I've spoken to in the city government
is
opposed to working with the BCUWCD to promote conservation and wise
water use.
However, having an unelected county board take control of Alpine's
water
without so much as a discussion is simply unacceptable.
Contact
information is listed below, along with links to the bill's history,
text (one
sentence), and the section of the current Texas Water Code that
would be
deleted if the two bills pass. (Due to my limited computer skills, you
may have
to paste the links into your browser.)
Please contact
Senator Uresti and Representative Gallego at the numbers and links
listed below
and ask them to stop these bills or amend them to leave control of
Alpine's
water resources in City of Alpine hands.
Please feel free
to contact me with any questions or thoughts you might have, but please be
sure to contact our State Senator and State Representative as well.
Have a Hoppy
Easter!
Pete Smyke Texas
State Senate Dist. 19 Senator
Carlos Uresti http://www.senate.state.tx.us/75r/senate/members/dist19/dist19.htm
Capitol
Phone: (512) 463-0119 Texas
House of Reps. Dist. 74 Representative
Pete P. Gallego http://www.house.state.tx.us/members/dist74/gallego.htm
Links about HB 811: http://www.legis.state.tx.us/tlodocs/81R/billtext/pdf/HB00811l.pdf
Text of HB 811. http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB811
Bill History. http://tlo2.tlc.state.tx.us/statutes/docs/WA/content/htm/wa.002.00.000036.00.htm
Texas Water Code; Chapter 36 Sec. 36.121. LIMITATION
ON RULEMAKING POWER OF DISTRICTS OVER WELLS IN CERTAIN
COUNTIES. Except as provided by Section 36.117, a district
that is
created under this chapter on or after September 1, 1991, shall exempt
from
regulation under this chapter a well and any water produced or to be
produced
by a well that is located in a county that has a population of 14,000
or less
if the water is to be used solely to supply a municipality that has a
population of 121,000 or less and the rights to the water produced from
the
well are owned by a political subdivision that is not a municipality,
or by a
municipality that has a population of 100,000 or less, and that
purchased,
owned, or held rights to the water before the date on which the
district was
created, regardless of the date the well is drilled or the water is
produced.
The district may not prohibit the political subdivision or municipality
from
transporting produced water inside or outside the district's boundaries.
The Nimby
News Observes The city
council voted unanimously on
April 7 to “oppose HB811 as originally drafted …” and to support
Representative
Gallego’s compromise language grandfathering the city’s wells. Those
voting
were Representative Avinash Rangra, Johanna Nelson, Manuel Payne (now
in his
third term), and Diana Asgeirsson, who is a candidate this year for
reelection
to a second term. Rangra
leaves office in May after
three terms in accordance with the city’s home rule charter adopted in
1993. Mayor
Jerry Johnson votes only in
case of a tie. The new
Ward 3 representative, Jim
“Fitz” Fitzgerald has told us in several
conversations that he
fully supports the efforts of the current council to protect Alpine’s
water
supply. The city’s
minutes state City
Attorney Rod Ponton, City Manager Chuy Garcia and the city’s engineers
are to
“take all action necessary to make sure that HB 811 protects the
interests of
the City.” Copies of the minutes and the resolution were faxed to Representative Gallego and our Texas Senator Carlos Uresti and will be available online after approval at the next city council meeting, April 21. March 19, 2009 A General Observation on the Current State of Affairs — A great hue and cry is now raised again in the early 2009 American political system. The reasons are obvious to all. A new Administration is in office, and a new Congress is in office. They have assumed responsibility for our government as their predecessors shuffle off, bellowing their protests all the way. We can think of no better way to comment editorially on the circumstances than to republish a quote from Gulliver's Travels, by Jonathan Swift. Written in 1726, Swift's hero, the shipwrecked Lemuel Gulliver, was discussing with his Houynhmn master "concerning lying and false representation." The rational horse argued thus: "that the use of
speech was to make
us understand one another, and
to receive information of facts; now if anyone said the thing
which was not, these ends were defeated; because I cannot be
properly be said to understand him; and I am so far from receiving,
that he leaves me worse than in ignorance; for I am led to believe a
thing black when it is white, and short when
it is long. And these were all the notions he had
concerning that faculty of lying,
so perfectly well understood, and so universally practiced among human
creatures."
—Book IV, Chapter IV,
Gulliver's Travels (1726),
by Jonathan Swift.
"concerning lying and false
representation"
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