1. “The court of appeals erred in holding that § 551.143 does not violate the First Amendment.”
2. “The court of appeals erred in holding that § 551.143 is not void for vagueness.”
3. “The court of appeals erred in failing to address claims raised by Riley that were material to its disposition of the issues.”
Riley is a member of the Montgomery County Commissioners Court. He, Montgomery County Judge Craig Doyal, and political consultant Mark Davenport met with representatives of a local political action committee (“PAC”) about a proposed bond referendum. The result was an agreement by the PAC to support putting a road bond proposal on the commissioners’ special meeting agenda. That agenda was posted publicly, the meeting was held, and the voters passed the bond referendum that November. But Riley and Doyal were charged under Tex. Gov’t Code § 551.143 for conspiring to circumvent the Texas Open Meetings Act (TOMA). Under subsection (a), “A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.” Riley moved to dismiss on First Amendment grounds, including failure of strict scrutiny for a content-based restriction, overbreadth, and vagueness. The trial court granted the motion.
The court of appeals reversed. It rejected the application of strict scrutiny, holding that the statute targets the conduct of conspiring to circumvent TOMA, not the content of whatever is discussed. Applying rational basis review, it held that Section 551.143 is reasonably related to the State’s legitimate interest in transparency in public proceedings. It also held that the statute gave fair notice to people of ordinary intelligence: although “conspire,” “circumvent,” and “secret” are not defined, each has a plain meaning. The court also held that the definitions of “deliberation” and “meeting,” which generally require a quorum, are drafted so as to accommodate deliberations at meetings without a quorum. As such, it concluded that Riley failed to satisfy his burden to prove the statute is unconstitutional and vague.
Riley raises numerous issues within the first two grounds. First, the statute prohibits speech, not conduct. This restriction is content-based because it prohibits speech by a whole class of speakers on an entire subject matter. As a result, strict scrutiny is appropriate and it was the State’s burden to prove the statute is constitutional. Riley questions the compelling need for the statute and highlights the vast array of innocent discussions between and with government officials that are criminalized by its broad language.
Second, he argues the statute is unconstitutionally vague because it appears to cover so much speech that should not be prohibited. He points to public figures who testified at the pretrial hearing and expressed great confusion as to what is prohibited. He also asserts that the court wrongly focused on Section 551.143’s legitimate application instead of its vague aspects and its chilling effect on protected speech. He faults the court of appeals for not strictly construing Section 551.143 and invoking dictionary definitions for “conspire, “circumvent,” and “secret” when they do not truly resolve the statute’s ambiguity.
Finally, Riley contends that the court of appeals failed to address the following arguments, which were necessary to resolution of the legal issues: (1) that Section 551.143 should be subject to strict scrutiny; (2) that a successful vagueness challenge does not require a law to be vague in all applications; (3) that other statutory terms—besides “conspire, “circumvent,” and “secret”—are also vague; and, (4) that appellate review requires viewing the evidence in the light most favorable to the trial court’s ruling.