September
7, 2006
News on the Last
Frontier
By
Jack D. McNamara
The field of
contestants for the Texas 23rd U.S. Congressional race is now set at
seven. Only the Republican incumbent, Henry Bonilla, has any money.
Does anything ever change in Texas?
Texas Supreme Court Justice Nathan Hecht awaits the verdict as to
whether or not he violated the judicial canon of ethics in his
promotion of Harriet Miers’s nomination to the U.S. Supreme Court. One
of the judges hearing his case, Eighth Court of Appeals Justice Ann
McClure, recently decided Katie Elms-Lawrence’s expunction case.
In Mexico, Andrés Manuel López Obrador will be denied the
Presidency this week.
And in Alpine the city council has raised taxes, increased utility
fees, and proposed to increase expenditures this year by 10%. The
citizenry is too groggy to protest.
With all these news events, the Marfa City Council remains the most
colorful in the Last Frontier category.
As we read and hear of the recent struggles of the Marfa City Council
we are astonished how Marfa’s experience parallels that ours here in
Alpine over the recent years. Good citizens are perplexed with the
apparent lack of order which overcomes our meetings. Like Casey Stengel
looking sorrowfully on his expansion New York Mets baseball team,
“Can’t nobody here play this game?” (His first baseman, Marvelous Marv
Throneberry, carried the nickname “Stone Hands.”)
Until about 40 years ago, no one thought to try to control most of our
meetings. The U.S. Congress has rules, as does the Texas Legislature.
Those rules are authorized explicitly in the respective Constitutions,
revised and amended over time but always subject to the specific
determinations of the body’s majorities. But local governments
proceeded as common sense might dictate.
A wave of “open government” laws passed over the land in the 1960s. The
laws truly reflected the desire of legislators and citizens to increase
democratic participation in the countless lesser governments of cities
and counties. Those laws are with us still.
May citizens speak at Texas Open Meetings? No such provision is in the
Texas law, the Texas Open Meetings Act. The original law, SB 94 Acts
60th Legislature, 1967, Art. 6252-17, provided “Except as otherwise
provided in this Act, every regular, special or called meeting or
session of every governmental body shall be open to the public.”
Discussing and defining “open to the public” has been a major effort of
Texas authorities for 40 years. For most Texans “open to the public”
means we can go to the meeting and speak our piece. Raise rhetorical
hell. Tell them how the cow ate the cabbage, etc. We believe that
because we believe such free speech to government is precisely what is
intended by the U.S. Constitution’s First Amendment guarantee of the
right to peaceably assemble and petition government for a redress of
our grievances. Speak truth to power.
That is what you are doing in Marfa.
When elected officials, lawyers, or police attempt some procedural
order over a citizen’s desire to speak out at an open meeting, it is
that First Amendment right the government is messing with. And
government’s first responsibility is to protect and ensure the basic
right to speak.
Those who attend public meetings know very well that speakers seldom
hew closely to the written agenda. So many of our meetings are
necessarily messy.
One of the better discussions of this problem is an Attorney General
Opinion by John Cornyn on January 24, 2000. The Tarrant County District
Attorney asked whether a governmental body may permit members of the
public to comment at pubic meetings on matters not specified in the
posted meeting notice (JC-0169).
Cornyn wrote, “The Act does not give the public a right to speak …” at
open meetings.
Between 2000 and 2002 the Alpine City Council set out to silence
critics by enacting a “gag” ordinance. They were probably encouraged by
bad lawyers and the first page of JC-0169. They should have read
farther. Cornyn reviews the practice of public comment which is now
common in Texas cities and on page 3 writes, “… it is clear that a
‘public comment’ session is now encompassed within the definition of
‘meeting….’”
Cornyn cites (page 4) a 1931 court case “(F)requently citizens
interested in matters to be acted upon by the council appeared before
them at their meetings.”
Well, of course. Our ancestors were not shrinking violets. Early
America’s public meetings were raucous, loud and often fatal if a
hanging was in order.
The Miss Priss nanny standards demanding decorum first which now infect
our public process must be derived from first grade classrooms. It is
not from the history of a free people. Heated, robust debate is called
for by all our precedents. If someone can’t stand the heat, stay home.
We have some serious problems with JC-0169 but we can leave that for
another day. In dealing with the Texas open government laws the Texas
Attorney General Opinions are extremely valuable. The sequence over
time of these writings tell us a lot about a people’s struggle for self
governance. In reading the JC-0169 opinion of January 2000 I came
across a reference I had not previously checked out.
Cornyn cites an AG Opinion, M-220, of April 23, 1968; only a year after
the Open Meetings Act was passed. The District Attorney for Cameron
County, F.T. Graham, wrote AG Crawford Martin to inquire “Re: Validity
and Constitutionality of SB 94, Acts 60th Leg., 1967 (Art. 6252-17) and
related questions.
Graham asked five questions, three of them definitions of “open,”
“closed” and “meeting.” The AG wrote that he had been unable to find
any court cases which
defined either phrase “open to the public” or
“closed to the public,” and
stated we must rely on the
plain meaning of
the terms.
The other two questions from District Attorney Graham challenged the
constitutionality and the criminal provisions of the law at the time of
enactment in 1967.
It was a very short law in 1968 but mighty oaks from little acorns
grow.
The U.S. Congress passed and the states ratified a First Amendment
which includes the words, “Congress shall make no law … abridging the
freedom of speech or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances.” But we have a forest of laws, court precedents, AG
Opinions and editorial comment concerning the fundamental activity of
democracies which remains people getting together to decide what to do.
•
(Also published by the
Big Bend
Sentinel of Marfa, Texas September 7, 2006.)
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