Charter Amendment on ballot held misleading… again.

The City of Houston and its Current Mayor, Sylvester Turner v. Allen Mark Dacus and Elizabeth C. Perez, 14-16-00123-CV(Tex. App–– Houston[ 14th District], February 9,2017)

This is an election case involving posting of an alleged misleading charter amendment where the law of the case doctrine required the trial court to rule against the City.

The Texas Supreme Court already issued one interlocutory opinion in this matter, and held the drainage charges to be imposed on benefitting real property was among the Ballot measure’s chief features, and that Proposition 1 was misleading because it failed to mention the charges.  The Court remanded the case for trial because only the City moved for summary judgment, not the Contestants. Summary found here. On remand, the Contestants sought summary judgment on the grounds that (a) the Texas Supreme Court already had decided the issue in Dacus II, which became the law of the case; or (b) even if Dacus II did not constitute the law of the case, the trial court should reach the same result for the same reasons. The trial court granted the motion and the City appealed.

First, the First District Court of Appeals rejected the City’s argument the case is a challenge to “the post-election implementation of the charter amendment” instead of an election case. The trial court is not deprived of jurisdiction over this election contest merely because additional steps were taken after the election to implement the measure, and the City cited “…no authority that voters can bring an election contest challenging the sufficiency of a ballot description only in the rare case in which the measure itself is self-executing.”  Second, the case is governed by the questions of law decided in Dacus II, but only if the questions of law were answered by the Supreme Court. Texas Supreme Court explained that even voters already familiar with the measure to be voted on can be misled by ballot language that fails to sufficiently describe the measure.  The Court then compared the ballot’s language (which is undisputed) to the proposed charter amendment’s language (which also is undisputed). From that comparison, the Court determined that “[t]he ballot did not identify a central aspect of the amendment…” Such holdings are not dictum but are explicit findings by the Court. “The question of whether the ballot language misled voters by omitting one of the measure’s chief features calls for a yes-or-no answer, and the state’s highest civil court has answered that question in the affirmative.”   As a result, the law of the case required the trial court to rule against the City.

If you would like to read this opinion click here. The Panel includes Chief Justice Frost, Justice Christopher, and Justice Jamison. Justice Christopher delivered the opinion of the court. Attorney for the City and the Current Mayor, Sylvester Turner is Collyn Ann Peddie. Attorney for Mr. Darcus and Ms. Perez is Dylan Benjamen Russell, William A. Taylor, and Joseph O. Slovacek.

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