The U.S. Fifth Court of Appeals held plaintiffs had standing to challenge zombie law provision in charter despite the election being over.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Joe Richard Pool, III, et al. v. City of Houston, et al., No. 19-20828 (5th Cir.  October 23, 2020).

In this appeal from a trial court’s dismissal of an election case.   The U.S. Fifth Circuit reversed the trial court’s dismissal and held that the plaintiffs had standing to continue the suit for future petitions.

The plaintiffs are petition circulators who attempted to circulate a petition in the city where they are not registered voters.  The city stated that it had a charter provision that required petitions to be circulated or signed by registered voters, but that they were going to look into the issue.  While the city was researching the issue, the plaintiffs filed suit in federal district. The district court held that the charter provision was unconstitutional and granted the temporary restraining order preventing enforcement.  After the petition period was over, the trial court dismissed the case as moot. The plaintiffs appealed. During the litigation, the city added an “editor’s note” to its charter that it would accept petitions from anyone and had a link to a new form regarding such.  The city argues that it will not be enforcing the provision and has approved a form and notation to that effect which should preclude a permanent injunction case.

When laws are deemed unconstitutional they are not always updated or removed from documents.  These are called zombie laws.  The Houston Charter has a provision that limits petition signers to registered voters.  This type of law was deemed unconstitutional in 1999 but was not removed from the city’s charter.  See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999).  In order to show standing to overturn such a zombie law, plaintiffs must show that they are “seriously interested in disobeying, and the defendant seriously intent on enforcing, the challenged measure.” Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014).  The Fifth Circuit held that it was clear that the plaintiffs would continue to try to submit petitions despite not being registered voters and that the city’s notation and form were insufficient to prevent enforcement.  The court held that the plaintiffs have standing and could continue their suit against the city for future petitions.

If you would like to read this opinion click here.   Panel consists of  Justices Graves, Costa, and Engelhardt. Opinion by Circuit Judge Gregg Costa.

 

U.S. Supreme Court remands statutory campaign limit case noting court of appeals upheld it under the wrong analysis

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Thompson v. Hebdon, 140 S. Ct. 348 (2019)

In this case, the U.S. Supreme Court held the court of appeals improperly analyzed Alaska’s statute limiting political contributions as constitutional.

Alaska law limits the amount an individual can contribute to a candidate for political office, or to an election-oriented group other than a political party, to $500 per year. Petitioners challenged the limit as an unconstitutional restriction on their First Amendment rights. The trial court and court of appeals upheld the limit.

The Ninth Circuit upheld the law noting the evidence necessary to justify a legitimate state interest is low: the perceived threat must be merely more than “mere conjecture” and “not . . . illusory.”  Under this analysis, the circuit court held the limit was narrowly tailored and allowed effective campaigning. However, such an analysis ignored the Supreme Court’s opinion in Randall v. Sorrell, 548 U. S. 230 (2006).  “[C]ontribution limits that are too low can . . . harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.” It also ignored several “danger signs” listed in Randall such as lower comparable limits in other states, a failure to adjust for inflation over time (Alaska’s has been the same for 23 years), and the application to different offices. The State failed to provide “any special justification that might warrant a contribution limit so low.”   As a result, the Supreme Court vacated the Ninth Circuit’s opinion and remanded for consideration consistent with its opinion.  Justice Ginsburg wrote separately to emphasize that while remand is proper, Alaska has the second smallest legislature in the country and derives 90% of its budget from the oil and gas industry. As a result, the justifications for such a low limit must be analyzed consistent with Alaska’s comparable place in the country.

If you would like to read this opinion click here. Per curiam opinion.

Petition Circulators are not “election officials” subject to the fraud provision of the Election Code says Fort Worth Court of Appeals

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Robert S. Johnson v. Jeff Williams, et al., 02-19-00089-CV (Tex. App. – Fort Worth, November 27, 2019)

The Fort Worth Court of Appeals affirmed a plea to the jurisdiction in a case where a resident sued to invalidate a charter amendment.

Arlington residents initiated a petition drive for an amendment to the city charter that would impose term limits on the mayor and the city council (Proposition E) which was submitted to the voters and passed.  Arlington resident Johnson asserted that because the petition summary misled petition signers, the petition’s circulators had committed fraud, and the resulting amendment should be struck down. He filed suit to invalidate the provision. The City defendants filed a plea to the jurisdiction and motion for summary judgment, which were granted. Johnson appealed.

Elections are political matters, and the courts have jurisdiction of political matters only if the law has specifically granted such authority.  The Texas Election Code allows an election contest for election fraud only if an election officer or other person officially involved in the administration of the election commits the alleged fraudulent act. The petition circulators do not formally qualify as election officers. After performing a statutory construction analysis, the court determined the circulators also do not qualify as a person “officially involved in the administration of the election.”  As a result, the plea was properly granted. The court declined to allow Johnson the ability to replead. However, the court noted that since the trial court lacked jurisdiction, it lacked the authority to enter an order on the summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Gabriel, Birdwell, and Womack.  Memorandum Opinion by Justice Birdwell. The docket page with attorney information can be found here.

Taxpayer lacked standing to challenge Houston drainage fee ordinance despite charter election invalidity

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Elizabeth C. Perez v. Sylvester Turner, et al., 01-16-00985-CV (Tex. App. – Hous. [1st Dist], Oct. 15, 2019)

This is a long standing/multi-opinion dispute challenging the City of Houston’s drainage fee ordinance. Prior summaries found here and here. In this substituted opinion (for an opinion issued in August of 2018), the First District affirmed the granting of the City’s plea to the jurisdiction.

Voters in the City of Houston adopted a dedicated charter amendment for a “Pay-As-You-Go Fund for Drainage and Streets.” It then adopted a regulatory ordinance. One source of funding was a charge imposed on properties directly benefitting from the drainage system. The ballot language for the charter amendment was originally held misleading and invalid. After several disputes from the subsequent ordinance occurred, Perez  brought this ultra-vires claim and sought a judgment declaring the drainage fee ordinance invalid (yet again); an injunction against the assessment, collection, and expenditure of taxes and fees pursuant to the ordinance; and reimbursement, “on behalf of herself and all other similarly situated persons or entities,” of taxes and fees assessed and collected pursuant to the ordinance and paid “under duress.”  The City filed a plea to the jurisdiction asserting Perez lacked standing because she had suffered no particularized injury separate from the public, which was granted. Perez appealed.

The prior judicial declaration that the Charter Amendment is void does not address the Drainage Fee Ordinance. Thus, to the extent that Perez’s claims are based on her allegations the prior opinions invalided the ordinance, such are misplaced. The charter amendment was only needed to shift a portion of ad valorem tax revenue from debt services and was not required for authority to pass a drainage fee ordinance. Local Government Code Chapter 552 provided independent authority for such an ordinance. Perez has pleaded that she paid “illegal” drainage fees, she has cited to no authority declaring illegal the Drainage Fee Ordinance. Further, Perez has to demonstrate she “suffered a particularized injury distinct from that suffered by the general public” by the drainage fees collected.  The municipal fees were assessed to property owners across the City. The payment of municipal fees, like the drainage fees assessed against Perez’s properties here and numerous other properties in the City, does not constitute a particularized injury. Taxpayer standing is an exception to the “particularized injury” requirement.  However, it is not enough for the plaintiff to establish that she is a taxpayer— the plaintiff “may maintain an action solely to challenge proposed illegal expenditures.” A litigant must prove that the government is actually expending money on the activity that the taxpayer challenges; merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough.  Perez asserts the fees were collected illegally.  However, she was unable to establish the City is actually making any “measurable, added expenditure” of funds on illegal, unconstitutional, or statutorily unauthorized activities. As a result, she is not entitled to taxpayer standing. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Lloyd and Justice Kelly. The attorneys listed for the City are Collyn A. Peddie and Patricia L. Casey.  The attorneys listed for Perez are Dylan Benjamen Russell, Andy Taylor  and Joseph O. Slovacek.

Texas Supreme Court holds election contest moot, but trial court was still in error when it awarded sanctions

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Laura Pressley v Geregorio Casar, 17-0052 (Tex. January 25, 2019)

This is an election contest case for a city council seat where the losing party and her attorney were sanctioned for bringing a frivolous claim. The Texas Supreme Court reversed the award of sanctions and dismissed the case as currently moot.

Gregorio Casar and Laura Pressley finished first and second, respectively, in the 2014 Austin City Council general election for the District 4 council seat. Pressley filed a request for recount, which included a recount of the electronic voting system information. For the manual recount, the CVR file for each voter was printed and counted by hand. The manual recount found no discrepancies with the original canvass and confirmed the original results that Casar won. Pressley next filed an election contest, arguing that CVRs are not “ballot images” or “images of ballots cast,” as the Election Code requires. She also asserted the election officials failed to allow her and the poll watchers the ability to observe the retrieving of the images from the machines. Casar filed traditional and no-evidence summary judgment motions and moved for Chapter 10 sanctions, which the trial court granted and the court of appeals affirmed.

The Court first noted Casar was reelected and began his second term in 2017. Because Pressley’s petition for review was filed after the completion of Casar’s contested term, the Court  decide is whether the election contest is moot.

Casar argued this election contest is moot because no remedy exists to contest an expired term of office. The Court agreed and no exception to the mootness doctrine applied. However, even though the election contest provision is moot, the Court still considered the sanctions holdings. Chapter 10 of the Civil Practice and Remedies Code permits sanctions for pleadings that are filed for an improper purpose or that lack legal or factual support. Pleaded claims must be warranted by existing law or a nonfrivolous argument to change existing law.  The trial court sanctioned Pressley and Rogers for three claims in which they alleged: (1) election irregularities, (2) criminal violation by election officials, and (3) voter disenfranchisement.  After analyzing each, the Court held at least some evidence exists to support the claims asserted. There is nothing frivolous about presenting a statistical analysis showing that the results were unlikely as persuasive support. Pressley’s computer-science and data expert testified that he found at least nine corruption errors in the files, which constitute irregularities and is also an indicator of potential corruption. The seals on the election machines were also broken. Pressley did not need to be right or produce enough evidence to prevail on her entire suit to avoid sanctions. These claims have some evidentiary support and that is enough to make them non-frivolous.  The sanctions order was reversed and the remainder dismissed as moot.

 

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

City obtained mandamus to remove TRO preventing display of budget meeting which addressed fiscal impact of pending charter election

 

In re Sylvester Turner, Mayor and Dave Martin, Houston City Council Member 14-18-00649-CV (Tex. App. – Houston [14th Dist.], Aug. 23, 2018)

This is an original mandamus where the 14th District Court of Appeals in Houston reversed a trial judge’s order requiring the City to remove the video and transcript of the City’s budget meeting from its website.

A Houston firefighter association (“Association”) collected petitions to place a charter amendment on the ballot which addresses comparable compensation between the firefighters and police. The City Council scheduled a council vote for August 8, 2018, to place the Charter Amendment on the ballot. Pursuant to the Texas Local Government Code, for a charter amendment to appear on the November 2018 general election ballot, the City must publish a fiscal impact in the paper several times. The first publication must occur, at the latest, by mid-October 2018. Relators’ petition states that the City’s Budget and Fiscal Affairs Committee scheduled a public meeting for July 26, 2018, in anticipation of the publication. Various City officials spoke at the meeting and the Association’s attorney was invited to speak. Afterwards a video was posted. Four days later, the Association sought a temporary injunction to prevent release of the video asserting it violated the Election Code. A judge signed a TRO restraining the City from displaying on municipal websites or other municipally funded media platforms any audio, video, or transcribed versions of the July 26 meeting.

The Association alleges the City violated §255.003 of the Election Code, which prohibits an officer or employee of a political subdivision from knowingly spending public funds for political advertising. “Political Advertising” includes a communication supporting or opposing a measure that appears on an Internet website. The City’s Budget and Fiscal Affairs Committee scheduled the July 26 public meeting to obtain information regarding the fiscal impact of the proposed charter amendment. The fiscal impact of the charter amendment is relevant to whether voters and Council Members may oppose or support the charter amendment. The 14th Court held it was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting. However, according to Ethics Advisory Opinion No. 456, such public discussion generally does not violate §255.003 of the Election Code. Such section was not intended to inhibit discussion of matters pending before a governmental body. In such a situation, public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the City’s website may be to re-publish statements supporting or opposing the charter amendment.  As a result, the district court judge committed error, and mandamus was issued.

If you would like to read this opinion, click here. Panel consists of Justice Boyce, Justice Wise and Justice Jewell. Memorandum Opinion by Justice Wise. The docket page with attorney information is found here.

Fort Worth Court of Appeals holds candidate on ballot for two separate offices resigned second office by law, not the first, once taking oaths

City of Forest Hill, et al. v. Michielle Benson, et. al., 02-17-00346-CV (Tex. App. – Fort Worth, July 12, 2018).

This is a dual-office holding/statutory construction case where the Fort Worth Court of Appeals affirmed an order removing the official from the second position to which she was elected.

City of Forest Hill has a seven-member council.  the City’s public library is a library district established pursuant to chapter 326 of the local government code and the board of trustees is elected. At the same time as her candidacy for Place 3 on the council, Benson ran for Place 5 on the board of trustees. Benson filed the city-council application before she filed the library-board application. The City did not prohibit Benson from running for both offices, her name subsequently appeared on the ballot as a candidate for both offices, and she was elected to both offices. She was sworn in first as a city-council member and second as a library-board trustee on the same day. The City asked and received an Attorney General opinion the offices were incompatible. The AG opined that by taking the oath for the second position (Place 5 library trustee) she automatically resigned her position on the council. The Council “accepted” her resignation (which she disputed existed) and kicked her off the council. Benson sued and received a temporary injunction prohibiting enforcement of the City’s acceptance and allowing her to remain on the council. The trial court also permanently enjoined the City from interfering with Benson’s occupation of Place 3 of the city council, awarded Benson attorney’s fees, and issued findings of fact and conclusions of law. The City appealed.

The case boiled down to statutory construction between Texas Election Code §§141.033 – 034 and §201.025. Section 141.033 states the second application is invalid for an election (then arguably she could only have been elected to the first office) and §201.025 states the first office is vacated upon being qualified for the second. The City asserts it could not bring a §141.033 challenge because §141.034 states it must wait until after the first early voting ballot is cast.  However, the time limits within §141.034 involve challenges to form, content, or procedure, none of which are present. By contrast, §141.033 addresses the invalidity of an application that a person submits for a place on the ballot for an office that the person is “not permitted by law” to hold. As a result, §141.033 applies.   Under §201.025 the statute applies only to a person who is a current officeholder when she accepts and qualifies for the second office. However, Benson was elected to the city-council and library-board offices on the same day, and she took the oath of office and qualified for both offices on the same day. The court held “construing the term ‘officer’ to include a person who only became an officer on the same day that she qualified for the ‘other’ office would be absurd—it cannot be presumed that Benson intended to resign her city-council position on the very same day that she took the oath of office for that position.”  Like §141.034, §201.025 has no application on these facts.

The dissent (opinion found here) essentially argued that nothing in §201.025 says you must already hold the position first and no actual “law” prohibited her from holding the position anyway.  As a result, incompatibility standards should apply which are incorporated in §201.025.  However, the majority countered by asserting the City did not brief incompatibility as a ground and the dissent’s definition of the term “law” used in the sections is incorrect.

If you would like to read this opinion click here. Panel consists of Justice Walker, Justice Meier and Justice Kerr. Opinion by Justice Meier. Justice Kerr dissented.   The attorney listed for the City is Robert F. Maris.  The attorney listed for Benson is Harold D. Hammett.

Texas Supreme Court holds county official removal statute is subject to Texas Citizens Participation Act and sovereign immunity is waived for attorney’s fees of losing party

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State of Texas ex Rel. George Darrell Best v Paul Reed Harper, 16-0647, — S.W.3d – (Tex. July 29, 2018).

This is a Texas Citizens Participation Act (“TPCA”) case where the Texas Supreme Court held a suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. Sovereign immunity is also abrogated for certain types of attorney’s fees under the TCPA.  This is a 30-page opinion, so the summary is a bit long.

Paul Harper was elected to a position on the Somervell County Hospital District Board and allegedly tried to make good on his campaign promises or removing taxes and employees. In response, a county resident named George Best sought to remove Harper under the county removal statute.  Best alleged that Harper violated the district’s bylaws at a board meeting by moving to set the district’s tax rate at zero.  Best also alleged that Harper posted a blog that falsely accused the district’s administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency.  The removal statute authorizes a citizen to file suit, but it also requires the county attorney to “represent the state” in any removal proceedings that take place. The Somervell county attorney opted to appear in this case as plaintiff on the state’s behalf. The state adopted Best’s allegations, and it added an allegation that Harper engaged in misconduct by violating the Texas Open Meetings Act by texting board members. Harper filed a motion to dismiss the case under the TCPA asserting the removal statute impedes the exercise of the right to petition and right of free speech. After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss.  Harper appealed. The court of appeals reversed, holding that the TCPA applies to the state’s removal action and that the state failed to establish a prima facie case for removal.  In the interim, Harper lost the last election and no longer sits on the board. The Texas Supreme Court granted the state’s petition for review.

The Court first noted the Plaintiffs’ claims are not moot.  While Harper argues mootness cannot be addressed because the record does not contain information he lost the election, a court must consider issues affecting its jurisdiction sua sponte.  Here, the state filed a “status report” with the court of appeals that included an election canvass confirming that Harper lost his reelection bid. Harper does not dispute that he lost the election or that he no longer holds the position. The Court then analyzed and held the attorney’s fees issues and sanctions issues still remain, so the case is not moot. However, the Court cautioned that such applies only if attorney’s fees are ordered prior to the case being moot. The court of appeals ordered the trial court to award attorney’s fees (since it is mandatory under the TCPA) prior to the election, so this particular case survives. And, since the attorney’s fees are required by the TCPA to a prevailing party, the aspects of whether the TCPA applies remain live.

The State asserted a removal suit is not a “legal action” under the TCPA, because it is a specific statute seeking political relief which is controlling over the general TCPA. The term “legal action” is defined within the TCPA. Using rules of statutory construction, the Court held a “remedy” is another word for “relief” and the TCPA authorizes relief as a legal action. As a result, the TCPA applies. Further, the Court held the TCPA’s dismissal provisions complement, rather than contradict, the removal statute. The rule that a specific provision controls over a general provision applies only when the statutes at issue are ambiguous or irreconcilable. The Court found no ambiguity or irreconcilable language after analysis.

Next the Court noted that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney.”  However, the TCPA’s purpose includes a very distinct intent to encourage participation in government to the maximum extent permitted by law. Enforcement action is not defined in the TCPA. Again, using rules of statutory construction, the Court held the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. Under this definition, a removal petition is not an “enforcement action” by itself or in all cases. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. When a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable. However, when it is not unlawful conduct, it is not an enforcement action. Incompetency and drunkenness are both a basis for removal under the removal statute, but neither is against the law. “Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs.  … Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.”  “We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s demands does not render him incompetent.” Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself.  Therefore, Best’s claims are not enforcement actions and the TCPA still applies.

However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. Best did not allege official misconduct against Harper, but the state did in the form of a Texas Open Meetings Act violation. This is sufficient to form the basis of an enforcement action. The Court held Harper may benefit from the TCPA’s expedited-dismissal provisions for the grounds that Best’s initial removal petition raised, but not for the state’s additional ground.

The state then argued the attorney’s award and remand were improper against it given its immunity. The Court held the state waived its immunity from liability as it did not raise it.  The state only raised immunity from suit. The Court then went through a myriad of arguments back and forth regarding immunity from suit. Ultimately, the Court held “[b]ecause the state should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them—and because when it does sue, it risks paying only attorney’s fees (rather than damages or some other uncapped sum), abrogating the state’s sovereign immunity in the TCPA context does not present any grave danger to the public fisc. … Because the state was not operating within sovereign immunity’s bounds when it joined Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s terms.”

The dissent argued the majority ignores the governing statute’s language and undermines the Court’s well-established sovereign-immunity precedent. The dissent asserts the removal statute’s application of incompetence and drunkenness apply only to remove an officer from his official duties. A county officer’s “official duties” are substantive duties imposed by statutory law and therefore the entire case is an enforcement action exempt under the TCPA. The dissent took great issue with the Court’s abrogation of immunity from suit for attorney’s fees.

If you would like to read this opinion click here. Justice Brown delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined.
Justice Boyd delivered a dissenting opinion, in which Justice Johnson and Justice Lehrmann joined.

US Supreme Court remands redistricting case to determine if state improperly used race as a basis for redistricting lines

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Bethune-Hill v. Virginia State Bd. of Elections, No. 15-680 (U.S. March 1, 2017)

In this U.S. Supreme Court redistricting case, the Court held the lower courts misapplied the standard for determining whether race was an impermissible factor in redrawing district lines.

This case addresses whether the Virginia state legislature’s consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment after the 2010 census. Certain voters challenged the new districts as unconstitutional racial gerrymandering.  The trial court panel held 11 of the 12 districts did not deviate from traditional criteria so were constitutional. It also held the 12th, did deviate, but the state had a compelling interest which was narrowly tailored. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. In order to make the 12th district work, non-traditional criteria were used and justified as not wanting to dilute the black vote and to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965.  The citizen’s suit was dismissed.

The Supreme Court went through a lengthy analysis. It first held the district court used an incorrect legal standard regarding the first 11 districts. The proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used but did not. A legislature “could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing one map over others…” unjustified race considerations may be present.  The trial court erred in considering the legislature’s racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria.  The “ultimate object of the inquiry is the legislature’s predominant motive for the district’s design as a whole, and any explanation for a particular portion of the lines must take account of the districtwide context. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations…”  The Court remanded the determination of the first 11 districts to the trial court to reconsider in light of the Court’s rulings. However, as to the 12th district, the Court held Virginia had a compelling interest to comply with the Voting Rights Act applicable at the time. The State does not have to show its action of race consideration was actually necessary to avoid a statutory violation, but only that the legislature had “ ‘good reasons to believe’ ” its use of race was needed in order to satisfy the Voting Rights Act.  Virginia established its use of race for the 12th district was narrowly tailored and necessary under §5, and the result reflected the good-faith efforts of legislators to achieve an informed bipartisan consensus.  The Court affirmed the dismissal as to the 12th district and remanded the remaining 11.

Justice Alito concurred in part and in the judgment. He concurred as to the 12th district because he believed the law applicable should be the case law from 2012 and not to consider the Court’s holding in Shelby County v. Holder, 570 U. S. ___ (2013).  He concurred with the remand of the 11 districts but believes strict scrutiny should apply to them.

Justice Thomas concurred in the judgment but dissented in part. He concurred with remanding the 11 districts and would hold they must satisfy strict scrutiny requirements. As to the 12th district, he disagrees Virginia satisfied a strict scrutiny analysis.  Since he has previously held §5 of the Voting Rights Act is unconstitutional, using §5 as a reason to consider impermissible grounds does not qualify as a compelling interest. He also believed Virginia did not narrowly tailor its application. And while he sympathizes with the legislature and appears to believe they were trying to comply with §5, he equates the action to “state sponsored race discrimination.”

If you would like to read this opinion click here.  Justice Kennedy delivered the opinion of the court, in which Justices Roberts, Ginsburg, Sotomayor, and Kagan JJ., joined.  Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.

Dallas Court of Appeals dismisses referendum/mandamus claims against council but allows mandamus claims to go forward to trial against City Secretary

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City of Plano, Texas, et al. v. Elizabeth Carruth, et al.  05-16-00573-CV (Tex. App— Dallas, February 23, 2017)

This is a referendum case where the Dallas Court of Appeals dismissed all but one of the Plaintiffs’ claims under a plea to the jurisdiction.  It held the trial court had jurisdiction to consider the merits of the remaining mandamus/ultra-vires claim against the City Secretary.

The City adopted a comprehensive plan and zoning ordinance. The City Charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance. Citizens submitted a referendum petition to change the ordinance adopting a change in the comprehensive plan to the City Secretary. The City Secretary did not act on the referendum petition.  The City took the position that zoning and comprehensive plans have been removed from the referendum scope by state law. So no action is required.  The citizens filed a writ of mandamus seeking a court order directing the City Secretary to present the petition to the City Council and directing the City Council to reconsider the Plan and submit it to popular vote if the council did not entirely repeal it. In addition, they sought a declaratory judgment that pending approval by the voters in a referendum the Plan is suspended. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The Court of Appeals first held the Plaintiffs properly plead jurisdiction against the City Secretary. The court held there is a difference between the merits of whether mandamus should be issued with whether the trial court has jurisdiction to hear those merits. “Whether the trial court should ultimately grant or deny the petition for mandamus is not the issue before [the court]. “ Based on the language in the pleadings, the trial court has jurisdiction to hear the merits of the mandamus claim. However, no mandamus can be issued against the remaining officials since the City Secretary has not submitted the petition to the Council. Their duty is not triggered unless and until the petition is submitted, therefore the claims are not ripe. Finally, the court dismissed the declaratory judgment claims noting the charter does not provide that an ordinance is suspended immediately upon the filing of a referendum petition.  The Charter is clear that a suspension applies only upon the subject being submitted to popular vote. Until the Council is presented with the petition and acts on it, any declaration about the effect of that action would be advisory. The trial court’s order was affirmed in part and reversed in part.

If you would like to read this opinion click here. The Panel includes Justice Lang- Miers, Justice Stoddart, and Retired Justice O’Neill. Justice Stoddart delivered the opinion of the court. Attorneys for the Appellants: Robert J. Davis, William A. Taylor, and Timothy Dunn.  Attorney for the Appellees: Jack George Ternan.

Charter Amendment on ballot held misleading… again.

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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.

Service of process deadline for election contest deemed non-jurisdictional by First Court of Appeals in Houston

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City of Houston and Annise D. Parker v. Phillip Paul Bryant and James Scarborough,01-16-00273-CV( Tex.App— Dallas, January 12, 2017)

This is an election contest case where the First Court of Appeals out of Houston held Texas Election Code §233.008 (requiring process be served within 20 days) is not jurisdictional.

Petitioners challenge a ballot measure concerning term limits for City of Houston elective offices. The City filed a plea to the jurisdiction asserting that while the petition was timely filed and the City received service to the correct person, it did not receive service within the 20 days mandated by §233.008.  Therefore, the trial court was without jurisdiction. The trial court denied the plea and the City appealed.

The Court of Appeals held the thirty-day deadline by which the petition must be filed under §233.006(b) is jurisdictional and non-waivable.  It is undisputed the election contest was filed within that deadline.  Thus, according to the court, the trial court obtained subject-matter jurisdiction at that time. Section 233.008 is clearly mandatory, in that it provides that a citation issued in an election contest “must direct” the officer to return the citation unserved if it is not served within twenty days after it was issued.  However, “just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional.” Section 233.008 does not require a time to effectuate service and is not expressly jurisdictional.  It does not prohibit the reissuance of a citation or preclude a party from making a second attempt.  It also does not list a specific consequence for non-compliance.  As a result, it is not jurisdictional.   And while “other consequences” may be the result of failing to follow a non-jurisdictional deadline, such is not for evaluation under a plea to the jurisdiction.

If you would like to read this opinion click here. The Panel includes Justice Jennings, Justice Keyes, and Justice Brown. Justice Keyes delivered the opinion of the court. Attorney for the City: Collyn A. Peddie. Attorney for the Appellee: Joseph Synoradzki and Eric B. Dick

 

 

 

Petitioner did not conclusively establish charter amendment petition was valid; but city did not prove it was not valid so case remanded

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City of Galena Park, Et Al. v. Barry Ponder, 14-15-00708-CV (Tex.App— Houston [ 14th Dist.] October 25, 2016)

In this suit to compel a charter amendment election, the 14th Court of Appeals reversed the granting of a summary judgment which favored the election.

Barry Ponder delivered a set of papers to Galena Park City Secretary Mayra Gonzales that purported to be a petition in support of city charter amendments proposed by a local group. The amendments concerned, respectively, (1) the creation of four new commissioner positions to act as liaisons from the city commission to certain departments of the city government; (2) appointment and duties of fire chief, fire marshal, and police chief; (3) a detailed procedural system for voter initiative, referendum, and recall petitions; and (4) changes to the general powers of the mayor and the commission. According to the City Secretary, there were no proposed charter amendments attached to the signature pages. She reviewed the signature pages to determine the validity of the signatures. The number of valid signatures exceeded the charter requirements. However, the City Attorney asserted the petition did not constitute a proper petition primarily because (1) the signature pages did not include the text or a description of any proposed amendment to the charter so there was no way to tell what amendments were being presented, (2) there were no amendments attached to the signature pages as referenced, and (3) the proposed amendments covered multiple subjects, which he asserts is not permitted under the law. The City refused to call the election and Ponder filed suit. Both sides filed motions for summary judgment and the trial court ruled for Ponder. The City appealed.

The court first analyzed Ponder’s summary judgment and determined that enough qualified voters signed the petition. However, that does not mean the petition itself is proper. The gap in Ponder’s logic is the papers do not conclusively establish that the four amendments presented are the actual amendments that the signatories were demanding be placed on the ballot. Further, the City Secretary’s letter only stated that the number of signatures exceeded the required number for an amendment petition, but was not an acceptance of the rest of the petition. The trial court errored in granting Ponder’s motion. The court then considered the City’s motion. The court narrowed the issues by listing several City issues as abandoned or not preserved. The court then determined that while Ponder did not conclusively establish entitlement to summary judgment, the City’s arguments on the form of the petition did not establish the charter section (§9.004) were not met. Further, nothing in the text of section §9.004, expressly prohibits an election petition from proposing more than one amendment. Further, proposed changes to a city charter may seek broader schematic changes to city government that may make sense only as an all-or-nothing proposition. In other words, broad categories for amendments are fine. Thus, the City did not establish entitlement to summary judgment. The case is remanded back to the trial court.

If you would like to read this opinion click here listed . The Panel includes Justice Jamison, Justice Donovan and Justice Brown.  Justice Jamison delivered the opinion of the court. Attorneys for the City are listed as Eric C.  Farrar and John J. Hightower. Attorneys for the Ponder are listed as David Tang, Richard Nguyen and Paul H. Lavalle.

Permanent injunction prohibiting city from holding election on red light cameras dissolved

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The City of Cleveland et al., v. Keep Cleveland Safe, 09-15-00076-CV (Tex. App—Beaumont, July28, 2016)

Plaintiff, Keep Cleveland Safe (“KCS”) filed a petition attempting to stop the City from placing an issue on the ballot for the May 2014 election regarding photographic traffic signal enforcement systems or red light cameras. The trial court permanently enjoined the City and the City appealed.

The City of Cleveland is a home-rule municipality which passed an ordinance authorizing and implementing a photographic traffic signal enforcement program. The City received a petition to ban all red light cameras from another group of citizens. The City Council accepted the Red Light Ban Petition and placed the measure on the ballot as part of a charter amendment. KCS filed this lawsuit in response. KCS argued the Texas Transportation Code vests exclusive control over red light cameras with the “governing body,” making the subject outside the scope of permissible referendums and initiatives. After a bench trial the trial court issued a permanent injunction prohibiting the City from ever considering an initiative or referendum on red light cameras.

The Legislature may remove by general law a subject matter from the initiatory process. However, the claims cannot be moot at the time of trial or appeal. The City asserts even though the May 2014 election has passed, the injunction prohibits it from ever holding such an election. KCS asserts the claim is not moot because others can still submit another initiative to ban the cameras and the subject could evade judicial review.  However, the court held the mere possibility someone else could bring an initiative on the same grounds does not mean the matter is excepted from the mootness doctrine. KCS failed to demonstrate how there is a reasonable expectation that the City will be subjected to the same action again. Additionally, even if the matter was not moot, there is no justiciable question.  “It is well settled that separation of powers and the judiciary’s deference to the legislative branch require that judicial power not be invoked to interfere with the elective process.” The trial court lacked subject matter jurisdiction to issue a permanent injunction that enjoined the election process. “Being lawfully clothed with legislative power, the City should be allowed to exercise that power and to the dictates of its legislative judgment, regardless of whether or not any particular enactment may be valid or invalid.”  Finally, a court should not “declare rights on facts which have not arisen or adjudicate matters which are contingent, uncertain, or rest in the future.”  As a result, the court dissolved the permanent injunction and dismissed the case.

If you would like to read this opinion click here.  The Panel includes chief Justice McKeithen, Justice Kreger, and Justice Johnson. Justice Johnson delivered the opinion of the court. If you would like to see the attorneys for the parties, click here.

U.S. Supreme Court holds Texas can use total population for voting districts vs voter-eligible population

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Evenwel v. Abbott 14-940 (U.S. April 4, 2016).

This is a voter rights case where the U.S. Supreme Court affirmed that Texas can utilize total state population in drawing district lines instead of voter-eligible population.

Texas draws its legislative districts on the basis of total population. Plaintiffs/appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population. Plaintiffs argue voter-eligible population must be used to ensure that their votes will not be devalued in relation to citizens’ votes in other districts. A three-judge District Court dismissed the complaint for failure to state a claim on which relief could be granted. Plaintiffs appealed.

This is a long set of opinions. I say again, this is a very long set of opinions, totaling 56 pages worth. However, the bottom line is the Court held consistent with constitutional history States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations.   The Court went through a long history of events dating back to the debates of the first Constitutional Congress as well as the federal courts’ tradition of abstaining from interfering with legislative districting calculations. The Court analyzed the fierce divergence between proponents of total population districts and voter-registration proponents citing the public policy reasons for each. Ultimately, the Court held “[a]s the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible to vote. Nonvoters have an important stake in many policy debates and in receiving constituent services. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.” Because constitutional history, precedent, and practice support a total population usage, the dismissal of the Plaintiffs’ claims was proper.

If you would like to read this set of opinions, click here. Justice Ginsburg delivered the opinion of the Court. Justice Thomas concurred. Justice Alito wrote his own concurring opinion. The docket page with attorney listings can be found here.