In the Supreme Court of Texas - PDF Free Download

No. 14-0015 In the Supreme Court of Texas Randall Kallinen and Paul Kubosh, v. Petitioners, FILED 14-0015 12/3/2014 2:07:51 PM tex-3363105 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK The City of Houston, Respondent On Petition for Review from the First District Court of Appeals in Houston, Texas Case No. 01-12-00050-CV BRIEF OF COMMUNITIES UNITED AGAINST POLICE BRUTALITY, THE HUMAN RIGHTS DEFENSE CENTER, AND THE NATIONAL POLICE ACCOUNTABILITY PROJECT AS AMICI CURIAE Anuj A. Shah Texas State Bar No. 24038645 anuj@shah-law.com THE LAW OFFICE OF ANUJ A. SHAH, P.C. 2180 North Loop West, Suite 550 Houston, Texas 77028-8011 Tel: (713) 975-1128 Fax: (713) 904-2572 1

TABLE OF CONTENTS Identity of Parties & Counsel... 3 Interest of Amici Curiae... 4 Table of Authorities... 6 Argument... 7 I. The language of the Texas Public Information Act does not require an attorney general ruling before a writ of mandamus.... 7 II. The requirement of an attorney general ruling before a writ of mandamus would have negative public policy consequences.... 9 Conclusion... 11 Certificate of Compliance... 12 Certificate of Service... 13 3

IDENTITY OF PARTIES & COUNSEL Petitioners / Appellees / Plaintiffs: Randall Kallinen and Paul Kubosh Attorneys for Petitioners / Appellees / Plaintiffs: Joseph R. Larsen State Bar No. 11955425 joseph.larsen@sedgwicklaw.com Sedgwick L.L.P. 1200 Smith Street, Suite 1600 Houston, Texas 77002 Telephone: (832) 426-7020 Facsimile: (877) 527-1451 and David A. Furlow State Bar No. 07555580 dafurlow@gmail.com Law Offices of David A. Furlow, P.C. 4126 Rice Boulevard Houston, Texas 77005 Telephone: (713) 202-3931 Facsimile: (866) 382-0147 Respondent / Appellant / Defendant: City of Houston Counsel for Respondent / Appellant / Defendant: Judith Ramsey City of Houston Legal Department State Bar No. 16519550 900 Bagby Street, 4th Floor Houston, Texas 77002 Telephone: (832) 393-6468 Facsimile: (832) 393-6259 4

INTEREST OF AMICI CURIAE Communities United Against Police Brutality ( CUAPB ) is a nonprofit community organization based in Minneapolis, Minnesota, that seeks to increase the oversight and accountability of police agencies with respect to police misconduct. CUAPB is an all-volunteer organization and spends a significant amount of time and resources educating the public regarding police misconduct and providing advocacy for survivors of police misconduct. In order to accomplish this educational mission, CUAPB or individuals associated with CUAPB have made public data requests to governmental bodies. CUAPB makes some of the information it obtains through data requests available to the public, to keep people informed regarding police misconduct. CUAPB has also initiated successful litigation to obtain public data that governmental bodies have improperly withheld. The Human Rights Defense Center ( HRDC ) is a nonprofit charitable corporation headquartered in Florida that advocates on behalf of the human rights of people held in state and federal prisons, local jails, immigration detention centers, civil commitment facilities, Bureau of Indian Affairs jails, juvenile facilities, and military prisons. HRDC s advocacy efforts include publishing Prison Legal News, a monthly publication that covers criminal justice-related news and litigation nationwide, publishing 5

and distributing self-help reference books for prisoners, and engaging in litigation in state and federal courts on issues concerning detainees. HRDC uses information from its public records requests to educate the public and press for much-needed reforms in our criminal justice system. The National Police Accountability Project ( NPAP ) was founded in 1999 by members of the National Lawyers Guild to address allegations of misconduct by law enforcement and corrections officers through coordinating and assisting civil-rights lawyers willing to undertake representation of victims. NPAP presently has more than 500 attorney members throughout the United States. NPAP provides training and support for these attorneys and other legal workers, public education and information on issues related to misconduct and accountability, and resources for nonprofit organizations and community groups involved with victims of lawenforcement misconduct. NPAP supports legislative efforts aimed at increasing law-enforcement accountability, and appears as amicus curiae in cases, such as this one, presenting issues of particular importance for lawyers and their clients. Amici received no compensation or fees in connection with the preparation or submission of this brief, and will provide any attorneys fees incurred in connection herewith. 6

TABLE OF AUTHORITIES Page(s) Tex. Gov t Code 552.321(a)... 7 Bates v. Little Rock, 361 U.S. 516 (1960)... 9 Beauharnais v. People of State of Ill., 343 U.S. 250 (1952)... 10 Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102 (1980)... 7 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)... 10 Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246 (2004)... 8 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963)... 9 Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)... 8 GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (1980)... 10 McBurney v. Young, 133 S.Ct. 1709 (2013)... 7 Milner v. Department of Navy, 131 S.Ct. 1259 (2011)... 8 Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)... 9 N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)... 9 Obrycka v. City of Chicago, 913 F.Supp.2d 598 (N.D. Ill. 2012)... 11 Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App. Austin 1992, no writ)... 10 Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1 (1974)... 10 Robinson v. Shell Oil Co., 519 U.S. 337 (1997)... 8 Schindler Elevator Corp. v. U.S. ex rel. Kirk, 131 S.Ct. 1885 (2011)... 8 TRW Inc. v. Andrews, 534 U.S. 19 (2001)... 8 7

ARGUMENT I. The language of the Texas Public Information Act does not require an attorney general ruling before a writ of mandamus. The decision of the Court of Appeals in this case, requiring an attorney general ruling before district courts can compel the disclosure of public information, undermines the Texas Public Information Act (hereafter TPIA ). We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Here, the TPIA provides that a requestor... may file for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body... refuses to supply public information. TPIA 552.321(a) (Vernon 2011). The TPIA, like other state public records statutes, essentially represents a mechanism by which those who ultimately hold sovereign power that is, the people of Texas may obtain an accounting from the public officials to whom they delegate the exercise of that power. McBurney v. Young, 133 S.Ct. 1709, 1716 (2013). Such an accounting, to be meaningful, must allow the people of Texas timely access to public records in the custody of a governmental body. 8

Statutes should be read to avoid making any provision superfluous, void, or insignificant. Milner v. Department of Navy, 131 S.Ct. 1259, 1268 (2011) (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)). Statutory construction must begin with the language employed... and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 (2009) (quoting Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 252 (2004)). In interpreting a statute, this Court s inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent. Schindler Elevator Corp. v. U.S. ex rel. Kirk, 131 S.Ct. 1885, 1893 (2011) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). The TPIA does not require an attorney general ruling before a requestor may bring an action in the district court to compel the disclosure of public information. 1 As there is no such jurisdictional requirement in the text of the TPIA, district courts have jurisdiction regardless of whether an attorney general ruling has been requested or issued. This Court should, 1 The City of Houston equivocates regarding the definition of public information, which has a distinct meaning. The City properly defines the phrase on page four of its Response to the Petition for Review, but uses a different definition for the remainder of that brief. 9

therefore, reinstate the district court s order compelling disclosure of the requested information and awarding attorneys fees to the prevailing party. II. The requirement of an attorney general ruling before a writ of mandamus would have negative public policy consequences. To require an attorney general ruling before a requestor may bring an action to compel the disclosure of public information constitutes a loophole, giving a governmental body a chance to avoid having to supply public information. It is clear that the courts of this country recognize a general right to inspect and copy public records and documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). Rights such as this one must be protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 544 (1963) (quoting Bates v. Little Rock, 361 U.S. 516, 523 (1960)). Here, the basic purpose of the TPIA is to ensure that people are informed. This is vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). If a governmental body can delay supplying public information, this allows the temporary suppression of mistakes or irregularities that should be immediately open to the scrutiny of the press and the general public. See 10

GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 385 (1980); Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 9 (1974). The decision of the Court of Appeals in this case, however, would require members of the public to spend even more time and resources to keep a watchful eye on the workings of governmental bodies. 2 The science of government is already the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles. Beauharnais v. People of State of Ill., 343 U.S. 250, 262 (1952). Public information, by its very nature, is of interest to those concerned with the administration of government, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975), and thus, access to such information must not be unjustifiably delayed. Countless situations highlight why delayed access to information has negative public policy consequences. When people do not have timely access to public information regarding police practices, for example, officers are less likely to obey the law. See John Burris, Outside Authority is Essential, N.Y. TIMES, Apr. 9, 2013 (stating that there is little evidence that the public should rely on the integrity of the police department to police 2 The decision of the Court of Appeals also negates the holding in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App. Austin 1992, no writ), where the court stated that there is no requirement that the attorney general issue an open records decision before a person may seek a mandamus to compel the disclosure of public information. 11

itself ); see also Obrycka v. City of Chicago, 913 F.Supp.2d 598 (N.D. Ill. 2012) (stating that the jury heard evidence concerning both a code of silence... and a widespread custom or practice of failing to adequately investigate and/or discipline officers ). Timely access to public information regarding police practices, on the other hand, has a deterrent effect on police misconduct, as officers know they are being watched and there are consequences if they violate the law. CONCLUSION For the foregoing reasons and the reasons stated in the briefs of Petitioners and the Freedom of Information Foundation of Texas, this Court should reverse the decision below and reinstate the district court s order compelling disclosure of the requested information and awarding attorneys fees to the prevailing party. Dated: December 3, 2014 Respectfully submitted, /s/ Anuj A. Shah Anuj A. Shah Texas State Bar No. 24038645 anuj@shah-law.com THE LAW OFFICE OF ANUJ A. SHAH, P.C. 2180 North Loop West, Suite 550 Houston, Texas 77028-8011 Tel: (713) 975-1128 Fax: (713) 904-2572 12

Tim M. Phillips Minnesota State Bar No. 0390907 tphillips@jrwilliamslaw.com THE LAW OFFICE OF JOSHUA R. WILLIAMS 3249 Hennepin Ave. S, Suite 216 Minneapolis, Minnesota 55406 Telephone: (612) 486-5540 Facsimile: (612) 605-1944 Counsel for Amicus Curiae Communities United Against Police Brutality CERTIFICATE OF COMPLIANCE Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned hereby certifies that this Brief of Communities United Against Police Brutality, the Human Rights Defense Center, and the National Police Accountability Project as Amici Curiae complies with the applicable word count limitation, because it contains 1,190 words, excluding the parts exempted by Tex. R. App. P. 9.4(i)(1). In making this certification, the undersigned has relied on the word count function in Microsoft Word 2010, which was used to prepare this brief. /s/ Anuj A. Shah Anuj A. Shah 13

CERTIFICATE OF SERVICE I hereby certify that on December 3, 2014, a true and correct copy of this Brief of Communities United Against Police Brutality, the Human Rights Defense Center, and the National Police Accountability Project as Amici Curiae was served upon the following counsel of record as indicated below: Counsel for Respondent The City of Houston: Judith Ramsey Via CM/RRR 7196 9008 9111 7402 0964 City of Houston Legal Department 900 Bagby, 4th Floor Houston, Texas 77002 Counsel for Petitioners Randall Kallinen and Paul Kubosh: Joseph R. Larsen Via CM/RRR 7196 9008 9111 7402 0940 Sedgwick LLP and via electronic filing at 1200 Smith Street, Suite 1600 joseph.larsen@sedgwicklaw.com Houston, Texas 77002 David A. Furlow Via CM/RRR 7196 9008 9111 7402 0957 Law Offices of David A. Furlow and via electronic filing at 4126 Rice Blvd. dafurlow@gmail.com Houston, Texas 77005 /s/ Anuj A. Shah Anuj A. Shah 14