The Third Court of Appeals issued its Judgment today reversing the trial court’s opinion regarding jurisdiction of Amy Hedtke’s suit against Rep. Byron Cook regarding his offensive no-recording rule. In that suit, Norred Law represented Amy Hedtke in this suit for Cook’s violation of the Open Meetings Act, as Hedtke was arrested for recording in a state committee meeting run by Rep. Cook.
Rep. Cook appealed the trial court’s opinion that it had jurisdiction, as Cook is not running for reelection and it is highly unlikely that he would even have an opportunity to re-offend. The trial court did not buy that argument, which led to Cook’s appeal to the Third Court of Appeals.
In its Memorandum, the appeals court dismissed the suit based on its observation that Cook’s offensive rule has been rescinded, so there is nothing for the courts to address, and the case is moot. We argued that this situation warrants court attention because it is “capable of repetition yet evading review” (because a chairman can put up the no-recording signs, and then take them down when someone sues, over and over) and thus qualifies as an exception to the rule against court action when a case is moot.
Chief Justice Rose and Justices Goodwin and Field were convinced that the situation as discussed suggests that the exception did not apply, stating in the Memorandum, “The mere physical or theoretical possibility that the same party may be subjected to the same action again is not sufficient to satisfy the test…There is nothing in the record
before us to suggest that these hurdles can be overcome and, in fact, the record here indicates that the policy has been changed to allow recording.”
As part of our representation of Amy Hedtke and as the prevailing party, we had requested attorney fees. The Court of Appeals denied that our request was valid because we sued the defendants in their official capacity, citing Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). This case addresses federal suit claims under § 1983 for deprivation of federally recognized and protected rights.
The gist of the judgment of the Third Court of Appeals here is that Amy Hedtke has won, and she should go about her way. The court’s decision allows members of the House of Representatives to continue to claim that the House is not subject to the Open Meetings Act (which they could except themselves from, but have not), as well as the Department of Public Safety and the Sergeant at Arms.
We are currently considering whether we wish to appeal this judgment based on the mootness exception, but one must always focus on the goal of the suit. Members of the Texas state legislature know that there are citizens willing and able to sue them if they attempt to set up illegal no-recording rules. If this happened again, the Third Court of Appeals would have that future suit and remember this one – it would be unlikely to find that the offense does not qualify as “capable of repetition yet evading review” as that will be exactly the case before it at that time.
As tempting as it would be to push this matter to the Texas Supreme Court, that court is not obligated to take the case up, or to find in our favor, or rule on the issue based on our reasoning. But whichever action Ms. Hedtke decides to take, we lift our glass in appreciation for a willingness to be arrested in support of open and transparent government, and those who assisted Norred Law in her defense. Salut!