Texas Supreme Court holds once City Secretary certified referendum petition, City Council had ministerial duty to repeal or submit on election ballot regardless of forgery allegations

In Re Jared Woodfill et al, 14-0667 (Tex. July 24, 2015)

This is a mandamus action to compel a referendum to repeal the City of Houston’s “equal rights ordinances” be placed on the November ballot.

This dispute concerns the duties of the City Secretary and the City Council of Houston when a referendum petition is filed. If Houstonians dislike an ordinance passed by the City Council, they may submit a referendum petition under the Charter. First, the referendum petition must be “signed and verified in the [required] manner and form” by the required number of voters and be timely filed. Second, the City Secretary must review the petition, certify the results of her review, and present such petition and certificate to the City Council. Third, after receiving the petition and City Secretary’s certificate, the City Council must either repeal the ordinance or submit it to popular vote.  The City Council refused to consider the petition, noting it was not proper under the Charter. Petitioner’s filed a writ of mandamus.

Under the Charter each signature must be accompanied by the signatory’s printed name, address, date of signing, and birth date or voter registration number. The City Secretary determined the signatures complied, but the City Attorney determined the signatures did not comply.  Both sets of information were submitted to the City Council. The Texas Supreme Court determined that the City Secretary certified the petition and thereby invoked the City Council’s ministerial duty to reconsider and repeal the ordinance or submit it to popular vote. The City Secretary did not expressly adopt the City Attorney’s findings, and she never reviewed his reasons—she merely reviewed his math. The Charter requires the City Secretary to “certify” her findings, and the only findings she expressly certified were her own. The City Attorney may give legal advice to the City Secretary, but he cannot assume her duties.  Once certified, the City Council had a ministerial duty to act by either repealing or submitting to popular vote. The Charter gives the City Council no discretion to reevaluate the petition. If the City Council believed the City Secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the Charter.   “The legislative power reserved to the people of Houston is not being honored.”  As a result, the Supreme Court granted the writ of mandamus compelling the referendum be placed on the November ballot.

If you would like to read this opinion click here.  Per Curiam Opinion. The docket statement with attorney information can be found here.

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