*
Where does the record indicate the constant threat?
• Answer:
Affidavits filed with
the
complaint, and in the record. Deferred
<>
- Concluded going over the
facts of
the case.
- Pointed out to Barksdale
the
affidavits for the constant threat.
Rod Ponton
- Judge Barksdale and
Wiener
got into the issue of intent v. strict liability
o Question: Doesn’t
knowingly
mean that the statute requires some intent?
* Answer: Used Tovar to show that
the
Ct. Crim. App. has defined it as a strict liability
crime.
* Also
brought in the Atty Gen. Opinions to
show the broadening of the meaning of the statute.
-
Back to the facts of
the case
o
Barksdale/Wiener
started on the actual contents of the e-mails
o Question:
*
What if they had
decided on an engineer?
o Answer:
* Then there
would be a violation. TOMA makes it illegal to have closed door
meetings in
smoke-filled rooms, and if they had decided on an engineer, then
it would be
illegal. However, in the exchange of emails, no decision was made,
merely
a discussion. Only decision made
was to have a special meeting.
o Argued further, and
judges
agreed, not illegal to have communication to set meeting, but
actually deciding something within
the jurisdiction of the governmental body would not
be an infringement on 1st amendment
rights.
- Question about city council term limits
o Answer: Three term
limits, Monclova
no longer on
council and Rangra currently in third term.
- Opening
statement ended
with Barksdale wanting the exact statutory language of 551.144
for definition of knowingly?
o You
cannot read
the statute by itself; you must read the statute as defined not only in
TOMA, but also as defined in Tovar and
through the various Attorney
General
Opinions. Tovar is Court of
Criminal Appeals opinion
Appellee’s
Argument
Sean
Jordan
- Started off with his
standing
argument
- Specifically attacked
the injury
in fact requirement of standing
o Cited Lujan
o Cited the fact that
there is
no evidence either in record or affidavits that Monclova/or
Rangra intend to continue to
violate Section 551.144
o Cited cases in the
handout
that we got before arguments
o All of the cases are
from other
Court of Appeals
* Could
not cite a Fifth circuit case for the
proposition of standing that he was trying
to make when asked
to by Court
- “Knowingly
Argument”
o Stated that
“knowingly” does
indeed require scienter
* Used the
Texas Penal Code for the proposition that knowingly is a mens rea for
crimes
* No counter for
Appellant’s Tovar/A.G. op. definition of “knowingly”
- Questions
started
after about 6 ½ minutes of argument
o Question Wiener: How
was
TOMA violated in this case?
* Fumbled
around a bit, no real answer, asked again
* Answer: The
emails, and the contents of the emails, constituted a deliberation
and a violation of
TOMA.
o Question Wiener:
Didn’t the
e-mails not do anything but decide to invite people to
the special meeting?
* Answer:
No, they discussed public business which TOMA wants public
officials to discuss
public policy/business in the open
o
Question Wiener: OK, then what was the decision they made?
*
Answer: The
engineers to invite, but Jordan
didn’t really answer this question.
* Wiener
states that, on these facts “you’ve got me”, that these facts
constitute
a chilling of free
speech and an abridgement of First Amendment speech
* Jordan unable
to answer
- Questions
about the
chilling of the speech.
o Brought
AG back
to issue of knowingly and the evidence in the record that Rangra
is going to violate TOMA
again.
* Answer: Rangra only showed intention to
maintain an email
account, talk
to
others, etc and that
he has to limit his communication in fear of being
prosecuted
o Wiener:
If he
has to limit his communication, it would seem that his speech is
chilled.
That’s what chilled speech is. That violates the First Amendment.
o Barksdale
Question: The DA is the decision
maker as to when an indictment is brought
and when it is not, right?
* Answer:
Yes, but the DA is not going to indict for the hypotheticals put forth
by
Appellants, and Rangra has testified
that he won’t talk on issues anymore.
o Wiener:
That he
won’t talk about issues at all, that’s the definition of chilled speech.
o
Wiener/Dennis:
Doesn’t the fact that he’s worried to speak confirm the vagueness
of
the statute?
o Barksdale: How was TOMA violated
in this
case?
* Answer: A
quorum of the Alpine City Council got together and discussed the water
project
behind closed doors. TOMA meant to have open meetings.
o Doesn’t
Tovar
remove scienter from 551.144?
* No it
does not; the holding is different from what appellants urge it to be.
The Tovar court
held that knowingly applies as an intent requirement.
o Dennis: What would
be the
result in a declaratory action?
* Answer:
Unknown
- Public Employees
o Went
into public
employee argument.
o Dennis:
“They got
me.” These aren’t public employees, but elected officials.
o Wiener:
Aren’t
the appellants right when there’s a big difference between public
employees and elected officials?
- Time up
Ponton
Rebuttal
-
Brought
the argument back to “content restrictions.”
-
Countered
standing argument with the line from Carmouche,
a 5th cir case, that
“a chilling
of speech because of allegedly vague
or overbroad statute can be sufficient injury to support standing.”
Read
statement from Rangra affidavit that he is afraid to
Communicate
because of threat of prosecution.
Pointed
out to panel that this case must be analyzed on strict scrutiny
“content based”
restriction on speech, no public employee cases or intermediate scrutiny
-
Reminded
panel about the fact that this is content based restriction, that flies
in the
face of
Cases such as
Jenevein, Wisc. Right to Life, and Rep. Party of Minn.
o Content based restriction is
impermissible for core
political speech.
o We
wouldn’t even be here if they had not discussed the water project to
begin
with.
o This
cannot be time, manner and place restriction because the threshold is
the
content of the deliberations—public issues being discussed
-
Judges
started questions
o Focused mainly from Dennis and Wiener:
* Hypotheticals
• Football game
• Weather
• News interview
• emails, instant
messaging, etc.
If they
talked about the
weather, it is no crime. If they talked about
public issues (Even with no
disagreement) it is a crime. It is a content
based restriction.
* In
every hypothetical asked, it would have been a crime
* Hypotheticals Judges asked about
did not include any
agreement,
only
mere discussion of public matters
* Judges finaly realized that the
statute does not require
criminal
intent,
that it must be
analyzed with Tovar and AG opinions also
* Discussed
rebuttal of AG statement, that intent required, that only
intent needed is to know you are receiving information,
not that you
intend to criminally violate statute
Dennis
extended the questions after the time limit, to include several more
questions
about these being elected representatives (not public employees), and
about
mere public discussion of matters (no agreement). Dennis understood
these were
elected representatives not public employees.
Dennis
commented that he wanted to be sure that their opinion in this case
made clear
to everyone that elected public officials are elected representatives,
no
public employees, and that the public employee cases (Garcetti/
Ceballos/
Connick, et.) have no application to elected representatives.
-
Barksdale
appears to be satisfied (now) that Rangra has standing, not sure about
-
Monclova.
-
Weiner
had made up his mind that the speech rights of Rangra are chilled. He
stated
that the evidence that Jordan
gave him was the definition of chilled speech. He also commented that
TOMA must
be overbroad if it can chill free speech rights.
-
The
Judges in no way bought the public employee argument, it wasted 5
minutes of
their argument. Dennis clearly understood the distinction.
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