5th Circuit tosses ‘Bizarro World’ FOI ruling; state open meeting laws safe for now

Advocates for open government scored a big – and preemptive – win Thursday when a federal appeals court threw out a case arguing that laws requiring government officials to meet in public are a violation of the officials’ free-speech rights.

In a one-sentence order issued Thursday, the Fifth Circuit U.S. Court of Appeals decided that the case of Rangra v. Brown is moot, because the two members of the Alpine, Tex., city council who brought the challenge have left the council. Since they are no longer in a position to be injured by the open-meetings law, there was no “live” controversy left for the court to decide.

The impact of the dismissal is to restore a favorable U.S. district court ruling that rejected the city officials’ novel challenge to the open-meetings law.

The council members sought to invalidate Texas’ open-meetings law after the state attorney general threatened them with prosecution for discussing city business via e-mail rather than in a recorded, open meeting. They argued that a requirement that government officials refrain from discussing public business behind closed doors was an infringement on their First Amendment rights, because it restricted speech based on its subject matter.

In April, a three-judge panel of the Fifth Circuit agreed with the council members and sent the case back to the trial court, directing the court to consider whether the open-meetings act could pass the most rigorous possible constitutional scrutiny as a content-based restriction on speech. The decision set off alarms nationwide, because a ruling that open-meetings laws infringe on officials’ First Amendment rights had the potential to put all 50 states’ open-meetings laws under a constitutional cloud, setting up years of state-by-state litigation.

The full Fifth Circuit vacated the three-judge panel’s decision in agreeing to hear the case – but before the case could be argued, the court learned that petitioners Avinash Rangra and Anna Monclova had left the council. The court dismissed the appeal without even hearing arguments, a rarity.

Judge James L. Dennis, author of the April opinion that the full court vacated, vented his displeasure with Thursday’s decision in a seven-page opinion accompanying the one-sentence dismissal order. In it, he accused the court of “shirk[ing] its duties under the Constitution,” and – in a boldfaced heading – called his fellow judges’ action “injudicious” and “result oriented.”