March16, 2006

Sunshine Week
By Jack D. McNamara

U.S. District Judge Robert Junell decided Tuesday afternoon that an Alpine case challenging the Texas Open Meetings Act (TOMA) will go to trial.

The litigants assembled at the Lucius D. Bunton III federal courthouse for a hearing on a lawsuit brought by Alpine City Council members Avinash Rangra and Anna Monclova. Through their attorneys they are asking Judge Junell to declare the TOMA unconstitutional. They are represented by Dick DeGuerin, Rod Ponton and Texas Tech law professor Dennis Olson.

The defendants are the Texas Attorney General and 83d District Attorney Frank Brown. Jim Todd represented the AG and Brown was represented by Brewster County Attorney Steve Houston (formerly the Alpine city attorney also).

The case achieved considerable notoriety a year ago when DA Brown received Brewster County Grand Jury indictments of Rangra and former Alpine city councilperson Katie Elms-Lawrence for an alleged violation of the TOMA in October 2004.

Both cases were dismissed on Brown’s initiative. Both judges in the cases directed that the indictments be expunged, but Brown is appealing those decisions to the 8th Court of Appeals in El Paso.

Tuesday was the first hearing in the Avinash Rangra and Anna Monclova versus the Texas Attorney General and 83d District Attorney Frank Brown — though there have been numerous filings to the Court.

Judge Junell is relatively new to the bench. He is a former Texas legislator from San Angelo who chaired the House Appropriations Committee for years. The judge said that in all his years in the legislature he could not recall a vote on the TOMA. He said he was an attorney for the San Angelo Standard Times in his hometown and he recalled Frank Brown and his wife from that time. But he shares a Texas Tech experience with both Ponton and Olson.

The judge’s statements were not idle political chitchat but in fact disclosures in case either side had recusal in mind. Neither side made a peep.

The purpose of the hearing was to consider the defendants’ motion to dismiss the lawsuit. James Todd presented three jurisdictional issues, of which DeGuerin quickly conceded two.

But there was a lengthy give and take between the attorneys regarding the question whether or not the TOMA — as it was applied in Alpine — is an unconstitutional violation of the First Amendment rights of elected Texas officials.

Judge Junell participated vigorously in the debate between the two sets of lawyers by questioning them several times. The plaintiffs’ argument in the case uses numerous hypothetical situations in which elected officials might offend against the law. The judge added a few of his own from his experience as a trial lawyer in San Angelo.

“Are you asking me to declare part of the TOMA unconstitutional?” asked the judge.

“Yes,” said DeGuerin, adding that the intent of the TOMA was salutary.

Professor Olson emphasized that this case demonstrated the “chilling effect” of the prosecutors’ actions in Alpine. The effect was a threat against both the speaker and the receiver of political information. As an example Olson cited the state’s own written filings which describes Monclova as an offender even though the only thing she did was receive an email.

“We are not asking (Judge Junell) to conjure wild situations” as hypothetical possibilities, he said. These events really happened in Alpine.

DeGuerin emphasized that Rangra was indicted for sending an email which said we ought to have a meeting about fixing Alpine’s water system, exactly the activity that citizens expect their representatives to perform.

Judge Junell pointed out that all speech is not constitutionally protected and cited “commercial” speech as an exception, as well as the prohibition against shouting “Fire!” in a crowded theatre, and federal regulation of the airwaves.

At least twice Houston asked about absolute immunity for his client. Finally DeGuerin said, “We are not seeking damages.”

By the end of the hour’s arguments, assisted by Judge Junell’s prodding, the issue was as clear as it is likely to get. DeGuerin, Ponton and Olson are asking in their clients’ names that Judge Junell declare unconstitutional at least the TOMA section (551.144) on which the Brewster County prosecution proceeded and failed.

Such a decision of course would impact every public official in Texas.

The defendant AG and DA Brown are insisting that the TOMA is constitutional, including the actions here.

The sound in the courtroom was above the standards of the Alpine City Council but still not perfect. At first we were unsure exactly what the judge was saying. Judge Junell said, “Here’s what I’d like to do …” and proceeded to instruct the attorneys. He wants them to “stipulate” (that is, agree on the facts) within 30 days in order to bring the case to trial.

He will consider live testimony and further affidavits suggested by DeGuerin.

AG attorney James Todd said he would “accept their facts,” referring to DeGuerin’s and Ponton’s previous submissions.

Judge Junell repeated his direction that the attorneys “get together,” this is “an important issue to the State of Texas,” said Judge Robert Junell.

Judge Junell said, “I want to try the case here (Pecos).” After considerable comparison of attorney calendars July 25 was selected as the trial date.

In a final reminiscence pertinent to a case trying the constitutionality of a Texas law, Judge Junell said at his closing, “I have to guard against becoming a super-legislator.”

No one said it in court and I doubt many knew it, but this week is “Sunshine Week” in which we celebrate open government with pithy editorials. Texas Attorney General Greg Abbott wrote columns alerting Texas officials to a law which became effective January 1. The new law, sponsored in the last session by San Antonio Senator Jeff Wentworth is Senate Bill 286 and mandates training in open government for Texas officials. The instructions are on the Internet at www.oag.state.tx.us/.

We are sure the AG instructional materials are superior, but we suggest that there could be no better instruction in open government than that hour plus in Pecos this week. And the trial in July should be dramatically superior yet. •

(Also published by the Big Bend Sentinel of Marfa, Texas March 16, 2006.)