July
26, 2006
“We’ve Got a
Constitutional Issue Here” *
By Jack D. McNamara
* Dick DeGuerin
Note: The Nimby News is off to Pecos
on Wednesday to watch the Texas Open Meetings Act (TOMA) challenge at
the Lucius D. Bunton III Federal Courthouse before Judge Robert Junell.
I have reviewed the case file in Pecos and touched base with numerous
sources as related below.
By the time
Thursday’s papers appear we will know more about what the judge will do
with the case before him — but it may be a while before we have his
decision.
“Mistrial puts Open Meetings Act under cloud—statute may be ineffective in rural
areas,” was the six-column headline
in the Houston
Chronicle on
Sunday, April 25, 1993.
The story by reporter Dianna Hunt deplored a hung jury in Bee County
where the Attorney Generals’ Office and a local reporter tried for more
than two years to prosecute four members of the county commissioners
court for meeting in a room to discuss agenda items for a forthcoming
meeting. Several local prosecutors pushed the case before Assistant
Attorney General Gary Bledsoe finally arrived to try the acknowledged
fact that the reporter had witnessed the meeting and recorded it. The
jury refused to convict.
Great frustration for advocates of open government. One recommendation
for a change to the TOMA law was to try all alleged violations for the
Texas Open Meeting Act (TOMA) in Austin.
Numerous efforts to toughen up the TOMA ensued. In April 1997 the
Lubbock Avalanche Journal described several efforts — “Legislated
loopholes hinder act’s (TOMA) effectiveness.” The article, by reporter
Matthew Henry, described initiatives in 1993, 1995 and 1997 and named
the supporters. Prominent among them were Common Cause and the Freedom
of Information Foundation of Texas and the author of several
unsuccessful amendments, Senator Jeff Wentworth, a San Antonio
Republican.
The senator who debated against an early effort was Senator John
Montford of Lubbock who Common Cause credited with defeating the 1995
effort.
Senator Montford, who had by 1997 become chancellor of Texas Tech, was
delighted to acknowledge his role. As the Avalanche Journal reported,
Montford said, “Not only was I involved, I killed it every time it came
up.”
“I don’t think we should criminalize meetings,” he said. “It carries a
presumption of irregularity among governmental entities that I think is
unnecessary.”
“The bill could put people in jail for trying to have a meeting.”
Montford added, “I think the cure’s worse than the illness.”
The particular amendments which pertain to Wednesday’s hearing were
made in 1999.
Former Senator Montford, who is now Vice President for Governmental
Affairs for ATT, will be a witness for Avinash Rangra and Anna Monclova
in the Pecos hearing to declare the TOMA unconstitutional. Dick
DeGuerin and Rod Ponton represent Rangra and Monclova along with Texas
Tech visiting law professor Dennis Olson.
Other witnesses will include Charles McNabb, El Paso city attorney;
Scott Johnson, Pecos city attorney; Greg Hudson, well-known municipal
attorney of Austin; and Scott Houston of the Texas City Attorneys
Association, who submitted a lengthy brief to the Court.
Neither the Texas Attorney General, represented by James C. Todd, nor
83d District Attorney Frank Brown had submitted witnesses as of last
Friday.
Frank Brown was subpoenaed to appear last week by Rod Ponton.
Though he is not a listed witness, Jefferson County Criminal District
Attorney Tom Maness submitted a lengthy request for an AG Opinion,
posted on the AG’s Web site, which argues the language of the law is
unconstitutionally vague and fails to give adequate notice of what
constitutes criminal behavior.
“If prosecutors cannot agree on how to enforce a criminal provision,
how is a city attorney supposed to advise city officials as to how to
stay out of jail?” asks Scott Houston in his brief of February 8, 2006.
This is an eminently heavy-hitting lineup which little old Alpine has
beckoned to Pecos for the hearing scheduled for Wednesday, July 26
before U.S. District Judge Robert Junell.
To celebrate the event, John Council of Texas Lawyer published Monday
an online article, “West Texans Fight Sunshine Law’s
Constitutionality.” The notable Dick DeGuerin told Texas Lawyer, “We’ve
got a constitutional issue here. We intend to take it all the way to
the Supreme Court” if necessary.
It may not be necessary. Even if the law or part of it is not declared
unconstitutional, the briefs and witnesses assembled make a case for
revision of the statute in the Texas Legislature.
Representative Toby Goodman of Arlington authors one of Rangra and
Monclova’s briefs. He submitted a bill to amend the TOMA in the last
legislature, HB 305, and in his statement he acknowledges his bill was
defeated by opposition from editorials and press associations.
Professor Olson told Texas Lawyer the Texas Statute is the only one of
its kind in the nation which “broadly interprets open meetings
violations and carries criminal penalties.”
Criminal penalties only for local Texas officials — how come? Texans
sometimes brag that their law (TOMA) is superior to even the federal
law because the Texas Legislature did not exempt itself.
But in recent months, Austin reporters have been gingerly reporting
with more vigor the backroom meetings of the Legislature. Why aren’t
they prosecuted? The Attorney General has no authority to enforce the
law on the Legislature, AG spokesman Tom Kelley told me. The
Legislature’s procedures are dictated by their own rules which are
constitutionally based. The Legislature posts notice of committee
meetings but most legislative business is still done in the back room.
Neither the federal judiciary nor the Texas judiciary is subject to
open government laws.
This means we have a law which applies only to local government in
Texas. Astounding. The 1991 brouhaha was initiated by a local reporter,
as the TOMA fully provides, meaning perhaps that reporters are expected
to be criminal investigators? Representative Goodman says the law is
clearly unconstitutional, a “no-brainer.”
This case has now produced a considerable record. Both sides have
presented substantive positions. The effects of what started here with
an email among Alpine city councilpersons trying to arrange a meeting
to fix a water distribution problem may be far reaching.
Take a deep seat and a tight rein. •
(Also
published by the Big Bend Sentinel of Marfa, Texas July 27, 2006.)
|
Archives