BREAKING NEWS: Trial of the 21st Century, The TOMA Trial: Attorney Riggs declares TOMA “unconstitutional”

Visiting Judge Randy M. Clapp of the 329th District Court of Wharton County.

Conroe, March 30 – Testifying before Visiting District Judge Randy Clapp, Attorney Jennifer Riggs had no trouble explaining, under the provisions of Section 143, what public officials can and can’t do on Facebook, blogs, and other social media. Clearly, there is no prohibition of the content of free speech but only time, place, and manner restrictions on the actions of governmental officials. Riggs stated that she believes Section 143 is unconstitutional, because it “prohibits an entire category of speech.”

Riggs testified that the “intent of the statute is to prevent multiple sequential exchanges to get around the quorum” prohibition of meetings outside of open meetings under TOMA. Riggs testified that this statute does not give a “person of ordinary intelligence” advice as to what is prohibited and, therefore, causes attorneys to give very conservative advice which interrupts the freedom of speech. Riggs further argued that very intelligent people “have to guess what this statute proscribes.”

Riggs argued from the witness stand that the statute under which Doyal, Riley, and Davenport were indicted creates a burden substantially greater than the Legislature had intended when it approved the statute.

Frighteningly, Judge Clapp was openly nodding his head while Riggs testified.  Riggs clearly enamored Judge Clapp.

Riggs said that two Commissioners might have a problem if they discuss an issue with a landowner. Her argument doesn’t make sense in that hypothetical. Where in that situation is there any effort to establish an eventual quorum with respect to that landowner’s issue?

Davenport’s attorney Steve Jackson attempted to argue the extreme position that TOMA would only permit a governmental official to discuss a public issue even with one constituent in a private meeting, only after with proper 72-hours notice under the TOMA. Where in that situation is there any effort to establish an eventual quorum?

Riggs argued that TOMA opens government officials to selective prosecutions. She said that elected officials need to “keep your criminal defense lawyer on speed dial.”

Riggs testified that TOMA is over broad because it burdens more speech than necessary in order to effectuate the policy of open government. She argued that prosecutions under TOMA are “prior restraints” on free speech. That argument would mean that every time, place, and manner restriction of speech would be a prior restraint. When Craig Doyal limits citizen comments to 3 minutes each during Commissioners Court, has he then committed a prior restraint on free speech?

Riggs added that constituents are “particularly at risk” under Section 143 if they try to talk with governmental officials. The problem with Riggs’ overreaching argument is that nothing in Section 143 refers to prohibiting any conduct other than the conduct of “members of governmental bodies.”

Riley’s attorney, Troy McKinney, derided the minimal 1 hour TOMA training local officials receive during his questioning of Riggs. Riggs told the Courtroom full of people that, regardless of the amount of training received, government officials don’t understand the statute and more training doesn’t seem to make a difference. Riggs said that her advice to clients is “don’t talk about it” as to any issues that could fall within a governmental bodies’ jurisdiction.

After a break, Riggs took the extreme position that an individual city councilman could only discuss a proposal with citizens in a publicly-noticed open meeting. Nothing in the statute, however, would seem to be that broad to prevent an individual councilman from speaking to his constituents. There has never been a criminal prosecution in Texas of that nature.

Riggs further testified that Section 143 of TOMA would require legislative amendment to remove its vagueness and ambiguity and that a court cannot rewrite the statute.

Doyal’s attorney Rusty Hardin then questioned Riggs. Riggs said it’s ironic that she is testifying against Section 143 even though she supports open government. Riggs stated that “I don’t agree with the AG opinions…I have a great deal of sympathy for the Commissioners…Most of them want to comply with the law…but most of them want to be responsive to the public…elected officials need to learn about the issues.” Riggs said with the advent of social media, it’s so easy to commit a criminal violation of the TOMA and it’s unfair.

Riggs testified that she believes TOMA’s Section 143 is “content-based” but she did not discuss time, place, and manner restrictions on free speech, which are squarely constitutional under federal and State law.

Riggs said that the Texas Legislators are violating Section 143 every single day of the Legislature.

In response to Hardin’s questions, Riggs said that Section 143 is actually punishing innocent conduct under TOMA by its contradictory express language within the definitions of “deliberations” and “meetings” under the Act. Neither Riggs nor Hardin explained that argument. Riggs did, however, note that the definition of “deliberations” requires a quorum while Section 143 of TOMA makes it a crime to “deliberate” in numbers less than a quorum. While that draftsmanship may not constitute perfect English, the real question before a court of law is whether the plain meaning of the statute is not clear to a person of ordinary intelligence. That’s precisely where the defendants’ argument fails. It is very clear under Section 143 that it prohibits members of a governmental body from meeting and speaking in numbers less than a quorum for the purpose of conspiring to achieve a quorum in support of a particular issue. It’s really not that tough. 

Poor writing doesn’t make a statute facially unconstitutional, especially where its prohibitions are clear.

Riggs claimed that there are no cases challenging Section 143 of TOMA because prosecutors have been so reluctant to enforce it.

Riggs accused then-Attorney General Greg Abbott of rewriting the law with respect to his Opinion that stated that a “walking quorum” violates TOMA’s Section 143. She stated that Abbott, now Governor, was trying to “save” the statute. Riggs said that when she worked on the Attorney General’s opinion committee for extreme liberal Attorney General Jim Mattox in the late 1980s, “we normally didn’t issue opinions about criminal statutes.”

Riggs, in response to Hardin’s leading question, stated that Section 143 of TOMA requires too much of a “burden” on he reader to interpret what the statute means.

Hardin tried to argue that the Legislature passed Section 143 which makes them “a crook” every day because they meet in numbers less than a quorum.

 

 

 

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