Citizen has no standing to sue to prevent red-light camera referendum election says 2nd Court of Appeals

Jody Weiderman v. The City of Arlington, 02-15-00120-CV (Tex. App. – Fort Worth, September 17, 2015).

This is an election case where the Second Court of Appeals upheld the granting of a plea to the jurisdiction essentially holding a citizen could not file suit to stop a referendum election due to a lack of a distinct injury.

The City received a referendum petition to hold and election to remove red-light cameras in the City.  The City Council signed an ordinance calling for the election. Immediately afterwards Weiderman filed suit attempting to stop the City from performing any actions to move forward with the election.  The City filed a plea to the jurisdiction which the trial court granted. Weiderman appealed.

After analyzing the standards and pleadings, the court determined there was no evidence Weiderman suffered any direct or distinct injury because of the calling of the election. He admitted at the hearing his injuries are no different than any other citizens’. The failure of such a distinct injury equates to Weiderman having no standing to bring suit. The granting of the plea was upheld.

If you would like to read this opinion click here. Chief Justice Livingston, Justice Dauphinot,  and Justice Gabriel. Memorandum Opinion by Justice Gabriel. The attorneys listed for Weiderman are Wallace B. Jefferson and Andy Taylor.  The attorney for the City Defendants is Robert H. Fugate.

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.

City Charter amendment ballot language insufficient to give voters enough information, so could be invalid says Texas Supreme Court

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Allen Mark Dacus, Elizabeth C. Perez, And Rev. Robert Jefferson v Annise D. Parker and City of Houston. 13-0047, (Tex. June 12, 2015).

This is an election contest case in which the Texas Supreme Court held the ballot did not make clear that the city charter amendment imposed charges directly on many voters and therefore was not specific enough to meet the minimum standards.

Voters in the City of Houston adopted a dedicated “Pay-As-You-Go Fund for Drainage and Streets.” One source of funding was a charge imposed on properties directly benefitting from the drainage system. Publications in the newspaper and the fiscal impact summary noted the charges as being part of the amendment. However, the language on the ballot merely stated the amendment was relating to the creation of the dedicated funding source for enhancement, improvement, and renew of drainage system. After the amendment passed, several voters filed an election contest asserting the ballot language was insufficient. The City filed a summary judgment which the trial court granted and the court of appeals affirmed.

Charter amendments must be published in the newspaper and distributed prior to an election.  As a result, the actual ballot is not required to educate or repeat every word. Voters are presumed to be familiar with every measure on a ballot and the ballot need not educate them on something they are already familiar with. However, the ballot language must still capture the essence of the measure and substantially submit the question with enough certainty voters are not misled. The ballot measure in this case lacked the character descriptions noting charges to be imposed by specific landowners. “Our common law prohibits the City from submitting such an amendment to the voters without disclosing on the ballot that many of them will pay for it out of their own pockets.”  As a result, summary judgment should not have been granted and the matter is remanded.

Justice Guzman issued a concurring opinion but did so only to emphasis the common law standard is the prevailing standard.

If you would like to read this opinion click here.  Justice Devine issued the opinion of the court.  Justice Guzman delivered a concurring opinion found here with Justice Willett joining.  Justice Brown not sitting. The docket page with attorney information is found here.

Constitutional “hold over” provision controls over “resign to run” rule says 13th Court of Appeals

Richard Bianchi v. The State Of Texas, 13-14-00303-CV (Tex. App. – Corpus Christi, August 21, 2014) This is a quo warranto case where the central issue is the interaction between the “resign to run” rule under the Texas Constitution and the constitutional “hold over” provision. The 13th Court of Appeals held the “hold over” provision controls regardless of the automatic nature of the “resign to run” rule. Bianchi was the County Attorney for Aransas County who was elected to office. He announced to the County Commissioner’s Court that he was running for County Judge and that this means he was automatically resigning his position under TEX. CONST. art. XVI, §65(b).  While the Commissioner’s Court had the right and power to appoint his successor, they chose not to do so, stating in depositions that he was doing a good job. Bianchi stated on numerous occasions in the record that he did resign but was obligated under the Texas Constitutional “hold over” provision to continue with his office until his replacement is appointed. TEX. CONST.  art. XVI, §§ 17.  The District Attorney believed the automatic nature of the “resign to run” rule in the Constitution trumped the hold over provision and that the resignation was automatic in all respects.  He brought suit on behalf of the State of Texas via quo warranto against Bianchi for illegally holding office. The trial court issue an order removing Bianchi and issued findings of facts and conclusions of law. Bianchi appealed. This is a 31 page opinion where a large part of the opinion is the reciting of evidence, testimony, and findings of the trial court. The bottom line is the Commissioner’s Court could have appointed a replacement but chose not to do so. This left Bianchi in the position of County Attorney as a hold over while running for another office. The trial court started the legal analysis noting the ancient nature of a quo warranto proceeding then went into the nature of the two constitutional provisions, then statutory construction principles. In the end the court held the resign to run rule is subject to the hold over provision and since the Commissioner’s Court has made the express decision not to appoint a replacement, Bianchi is still lawfully holding office. That decision is not subject to collateral attack in court as it is in the sole discretion of the Commissioner’s Court.  The State did not sue the Commissioner’s Court, only Bianchi, so their decision cannot be attacked as arbitrary. As a result, the trial court order is reversed and judgment is rendered for Bianchi to remain in office until a successor is appointed. The court went on to cite to another reason for its opinion, holding “[a]s well intentioned and diligently reasoned as it was, the district court’s decision would have uprooted a firmly founded and widely accepted understanding of a critical aspect of Texas constitutional law that is of vital importance to certain public officials. . . The Texas quo warranto statute was never intended to allow for judicial second-guessing of decisions committed to the sound discretion of the County Judge and Commissioners Court. Such decisions are best left to locally-elected public officials who are in the best position to judge the needs of these particular issues and to exercise sound discretion in addressing them. We will not disturb the orderly balance of powers as expressed by the will of the people…” If you would like to read this opinion click here. Panel: Chief Justice Valdez, Justice Perkes, and Justice Longoria. Opinion by Chief Justice Valdez. The attorney listed for the State is Michael E. Welborn.  The attorneys listed for Bianchi are Audrey Mullert Vicknair and  C.M. Henkel, III

Election dispute moot after voters decision

 

Cargill v. Jaime Adan Ballesteros, 03-12-00629-CV (Tex. App. – Austin, November 6, 2013).

Cargill challenged the outcome of the election for constable and asserted claims for tortious interference with his right to seek office.  The trial court dismissed the claims and Cargill appealed.

The Austin court first noted that the arguments were provided without authority or proper references. The court did not apparently like the briefings, holding that “[f]ailure to cite legal authority or provide substantive analysis of the legal issue presented results in waiver of the complaint”; court has “no duty—or even right—to perform an independent review of the record and applicable law to determine whether there was error.”  Further “where a contest between candidates for nomination in a party primary election cannot be tried and a final decree entered in time for substantial compliance with pre-election statutes by officials charged with the duty of preparing for the holding of the general election, the courts must dismiss the contest as being moot.”  As a result, the court dismissed all claims.

If you would like to read this opinion click here.

U.S. 5th Circuit holds Texas Election Code unconstitutional.

Texans for Free Enterprise v. Texas Ethics Commission, No.13-50014 (5th Cir. October 16, 2013).

This is an injunction case of interest to any governmental entity which has its own election code or enforces state law election codes through an ethics ordinance.  In this case, the U.S. Court of Appeals for the Fifth Circuit enjoined the enforcement of certain sections of the Texas Election Code as being contrary to the First Amendment.

Texans for Free Enterprise (“TFE”) is a political committee formed and incorporated to advocate for candidates in Texas elections. They advocate for candidates they believe proper for a position, but do not provide funding to any specific candidate. The Texas Election Code prohibits corporations from “mak[ing] a[n unauthorized] political contribution” which includes providing indirectly anything of value to a candidate. The ban on contributions applies regardless of whether the corporation uses that money to make contributions to candidates or makes only direct campaign expenditures supporting a candidate (such as paying for a supporting commercial).  TFE sued to TEC seeking to enjoy the enforcement of this provision against it for its support of candidates. The trial court granted the injunction and the TEC appealed.

In affirming the injunction, the 5th Circuit held the challenged law is incompatible with the First Amendment and adopted the holdings of various other circuits.  Preventing anyone, including corporations, from paying for advocacy of candidates is not supported under the U.S. Constitution. Additionally, although not explicit in the opinion, is this holdings implication on a candidates “acceptance” of such indirect value which would, more than likely, not hold up to a constitutional challenge either.

If you would like to read this opinion click here.

9th Court interprets elections after Voting Rights Act declared unconstitutional by U.S. Supreme Court.

Rodriguez, et al.  v. Beaumont Independent School District, et al.,  No. 09-13-00434-CV (Tex. App. – Beaumont, October 17, 2013)

In this case the Beaumont Court of Appeals was asked to see how the recent U.S. Supreme Court declaration that portions of the federal Voting Rights Act are unconstitutional affects a local election.  This is a 24 page opinion out of an interlocutory appeal from a temporary injunction order.

Prior to the 2010 census, all seven BISD trustees were elected from single-member districts.  In May 2011 the voters changed the system to a five single-member and two at-large districts (a 5-2 plan).  Rodriquez and company are 3 individuals who filed to run in the aborted May 2013 election (moved to November by Legislature to be federally compliant) and were denied a placed on the ballot (separate federal suit). BISD failed to obtain preclearance.  The trial court held the 5-2 plan was not capable of being approved in federal court so allowed the Board to conduct its election under a seven single-member district plan with no at-large districts and on a non-statutory election date (based on a 1985 federal order).

The 9th Court of Appeals disapproved of the trial court’s reasoning as federal law no longer requires BISD to obtain preclearance and it must now comply with state law. After the U.S. Supreme Court’s holding in Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612, 2631 (2013), the federal district court dismissed BISD’s preclearance lawsuit (noted above). In dismissing the federal suit, the U.S. District Court expressly recognized that the matter was now purely an issue of state court law. Both parties asked the 172nd District Court to solve a problem that resulted from the federal court’s imposing preclearance requirements on an election authorized by a statute whose preclearance requirements have now been rendered unenforceable as a collateral consequence of the Supreme Court’s decision.

However, the plans proposed by both BISD and the putative trustees are each inconsistent with the 5-2 manner of electing trustees adopted by BISD’s voters. BISD wanted the defunct 7 single-member districts and the putative trustees argued that since the May election did not happen when it should have, they should be automatically seated as trustees.  The 9th Court held BISD has no authority to conduct an election on a date inconsistent with state law. And now, under federal law, the U.S. Department of Justice bears the burden of proof (not merely the ability to object) that an election map is racially discriminatory and must bring suit under the surviving sections of the Act. BISD retains the power to manage the logistics of an election which is consistent with Texas law but that must include the voter’s choice for a 5-2 plan. In other words, both parties won part and lost part. But since this was an interlocutory order, the final resolution must be decided by the trial court after a trial on the merits.

For you litigators out there, the court also went into some detail about the standards for temporary injunctions and what it means to go “far beyond” preserving the status quo and rendering a decision on the merits after only an injunction hearing.  If you are not a litigator, just ignore that part.

If you would like to read this opinion click here.