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Friday, May 15, 2009

Courts - More on: Open meetings law may be unconstitutional, 5th Circuit rules

Updating this ILB entry from May 8th, Michael Kunzelman of the AP reported May 12th in the Chicago Tribune in a story that begins:

NEW ORLEANS - Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws.

A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails.

The 5th Circuit panel said U.S. District Judge Robert Junell incorrectly ruled that the First Amendment "affords absolutely no protection to speech by elected officials made persuant to their official duties."

"The First Amendment's protection of elected officials' speech is full, robust, and analogous to that afforded citizens in general," Judge James Dennis wrote.

The appeals court directed Junell to decide whether the Texas Open Meetings Act passes the "strict-scrutiny" test under the First Amendment and "make the state carry its burden of proving that the statute pursues a compelling interest which the law is narrowly tailored to further."

Texas Attorney General Greg Abbott's office says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test.

"Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down -- in whole or in part -- for violating the Amendment's free speech protections."

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

The list of attorneys general who signed onto Caldwell's brief includes those for Alabama, Arizona, Colorado, Florida, Idaho, Indiana, Illinois, Michigan, Mississippi, Montana, Nebraska, New Mexico, Nevada, Ohio, South Dakota and Virginia.

Here is a link to the 5th Circuit opinion.

Posted by Marcia Oddi on May 15, 2009 11:15 AM
Posted to Courts in general