Texas Voters Whose Mail-in Ballots Were Rejected for Claimed Signature Discrepancies Challenge Statewide Law as Unconstitutional

Arguments Tuesday, March 19, in McAllen Federal District Court

Najvar Law Firm press release:

MCALLEN, TEX.—Texas law currently vests local “ballot boards” with the authority to eyeball a voter’s signature on the “carrier” envelope (containing the completed mail-in ballot) to determine if the signature looks sufficiently similar to the voter’s signature on his or her application to vote by mail.  If the ballot board—composed of laypersons with no expertise or training in handwriting analysis—perceives a discrepancy in the signatures, it must reject the ballot.  The voter is disenfranchised in that election with no notice and no opportunity to verify the validity of his or her ballot.  Four elderly South Texas voters, all of whose ballots were improperly rejected in the March 2018 Democratic primary election, have joined a constitutional lawsuit challenging this deficient process. Defendants are the Texas Secretary of State, represented by the Office of the Attorney General, and the members of the Starr County Early Voting Ballot Board.

All four plaintiff voters have verified that they personally signed their applications and carrier envelopes.  The four voters’ experiences illustrate the practical deficiencies in the operation of Texas’s signature-match requirement. 

Plaintiff Amelia Martinez, now deceased, was legally blind.  She was 73 years old when she completed her mail ballot at home, with the help of her daughter, in early 2018.  Ms. Martinez took pride in voting, and always insisted on signing her own name, in cursive, on her mail-ballot application and carrier envelope.  A quick review of the documents reflects that her signatures appear nearly identical on the application and carrier envelope from 2018, but they proceed at different angles, which appears to be the mere result of the angle at which she was sitting in relation to the paper as she signed.  Ms. Martinez passed away in December 2018, and her daughter Magaly Serna seeks to carry her claims forward.

Another Plaintiff voter, Maria Guerrero, 79 years old at the time she completed her mail ballot in 2018, was very careful and deliberate in signing her application.  She consciously left two letters out of her last name because she was concerned that there was not enough room in the box provided, and she did not want to write over the word “Date” on the application.  There is no such box on the carrier envelope, and therefore she was able to write all of the letters when she signed the envelope.  Despite the identical appearance of the handwriting, her ballot was rejected, presumably as the ballot board noticed the discrepancy from the missing letters.   

Maria’s husband Vicente Guerrero, 83 years old at the time he completed his ballot, also had his ballot rejected for a claimed signature discrepancy. 

Under Texas’s current law, the ballot board is required to compare the voter’s signature on the carrier envelope with the signature on the application and reject any ballot for which a discrepancy is perceived.  The law only requires that notice of the rejected ballot be provided to the voter ten days after election day, and provides no opportunity to correct or explain any perceived discrepancy or validate the ballot so that it can be counted in that election.  While records from the 2018 primary election reflect that less than 1% of mail ballots are rejected for signature discrepancies in most counties, the Starr County ballot board rejected an incredible 13.5% of all submitted mail ballots for alleged signature mismatch.

Plaintiffs are represented by Jerad Najvar and Austin Whatley of Houston-based Najvar Law Firm, PLLC, a litigation boutique specializing in election and constitutional litigation.  “Texas already has a system for provisional ballots, allowing voters to present any necessary documentation to local election officials within six days after an election so their ballot can be counted,” Najvar said.  “There is no reason that the same opportunity should not be made available to those Texas voters whose ballots are slated for rejection for a perceived signature discrepancy.  We are asking the court to require that such voters be contacted and provided the same opportunity as provisional voters to validate their ballot.  That will not interfere with the timelines or procedures for elections, but it is immensely important for any voter who would otherwise be disenfranchised.” 

This is the first lawsuit challenging Texas’s signature-match requirement as a violation of due process.  However, similar regimes have been declared unconstitutional in several other states recently, including in Florida in 2016 and New Hampshire and Georgia in 2018.  See Florida Democratic Party v. Detzner, No. 4:16-cvg-607 (N.D. Fla. Oct. 16, 2016); Saucedo v. Gardner, 335 F. Supp. 3d 202 (D. N.H. 2018); and Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018), respectively.

The case is Galvan v. Whitley, et al., No. 7:18-cv-00113, in the U.S. District Court for the Southern District of Texas at McAllen.  All briefing is complete, and a full hearing on the merits is expected Tuesday, March 19, at 2:30 pm before Judge Hinojosa. Plaintiffs seek an order that the Texas law is unenforceable in any Texas election without timely notice and an opportunity for voters whose ballots are marked for rejection based on the signature to validate their ballot.

Plaintiffs’ First Amended Complaint is here; Plaintiffs’ Motion for Summary Judgment is here.

Najvar Law Firm, PLLC, based in Houston, specializes in litigation and appeals in election and constitutional matters. NLF has successfully litigated several constitutional cases, including a case against the Texas Ethics Commission in which the Fifth Circuit struck down a waiting period on Texas PACs, and other successful constitutional cases against Houston, Dallas, and Austin.

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Houston Court of Appeals Revives Law Student’s Claim Arising from Compromised Exam, Alleged Cover-Up

Najvar Law Firm press release from Jan. 2, 2019:

HOUSTON, TEX.—This week, a panel of Texas’s First Court of Appeals held unanimously that a lawsuit against Texas Southern University can proceed to trial.  The suit alleges due process violations arising from the compromise of a “uniform” first-year exam at Thurgood Marshall School of Law (TMSL), and subsequent cover-up by the law school administration.  The decision reverses the judgment of the Harris County district court.

The Plaintiff, Ivan Villarreal, was a first-year student at TMSL in 2014.  TMSL divides first-year law students into four sections, and has adopted a “First Year Uniform Exam Policy,” which TMSL’s student manual explains is supposed to “insure fairness to students because it prevents significant grading pattern differences by first year professors.  Hence, students…have the same opportunity to excel, do average work, or fail no matter which section…the law school assigns them.”  A student must finish with a GPA of 2.0 or higher after the first year to continue his law school education.

Villarreal finished with a 1.98 GPA and was dismissed in June 2015.  However, Villarreal’s lawsuit alleges that an unknown number—at least thirteen—questions from the supposedly-uniform December 2014 Criminal Law exam were compromised by a professor from another section, whose unauthorized, off-campus review sessions became widely known when students returned for the second semester in 2015.  Villarreal alleges that the TMSL administration refused to conduct even a cursory investigation to ascertain the scope of the compromise (how many questions were compromised, and which students had access), and then presented selective portions of an expert’s analysis to mislead the students into believing that the compromise had not materially affected grades.  The lawsuit argues that the exam compromise, the subsequent failure to investigate, and then the selective release of the expert’s report to mislead students, violated his substantive and procedural rights to the “due course of law” guaranteed by article I, section 19 of the Texas Constitution.

A unanimous three-judge panel of the First Court of Appeals held that Villarreal had sufficiently alleged both procedural and substantive violations of the liberty interest in a continuing graduate education as recognized by Texas courts.

The panel held that “Villarreal adequately alleged a procedural due-course-of-law claim based on his allegation of the university’s bad-faith mismanagement of an exam-grading controversy, which allegedly caused him to miss the GPA cut-off by two one-hundredths of a grade point and thereby jeopardized his reputation and intended career path.”  The Court then turned to address whether—aside from procedural deficiencies—Villarreal had alleged a viable claim that the TMSL administration’s decisions related to the claimed investigation and remedy of the exam compromise were substantively defensible.  On that question, the panel held that, even assuming the situation could properly be considered an academic dismissal, the defendants “did not conclusively demonstrate that the decision to implement [a] ‘class-wide’ remedy was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge.”  Accordingly, the Defendants are not entitled to sovereign immunity, and the suit can proceed to further discovery and trial.

“I am pleased with the Court’s decision,” said Villarreal’s attorney, Jerad Najvar of Najvar Law Firm, PLLC, a Houston-based firm specializing in constitutional litigation.  Najvar argued the case to the panel on October 24, 2018; the University and the individual defendants are all represented by the Texas Attorney General’s Office.  Najvar continued:  “This decision rightly means that a state-funded institution cannot actively ignore a cheating scandal that affects students’ grades and career prospects and expect to be immune from any review of administrators’ arbitrary or even bad-faith decisions.”

Villarreal seeks to have the administration finally acknowledge and competently address the impact of the exam compromise on his score-which was curved against all other students, including the unknown number who had prior access to at least 13 questions—so that he may continue his education.

If no petition for rehearing, or petition for review by the Texas Supreme Court, is filed, the case will be remanded soon to the Harris County district court for further proceedings.

The case is Villarreal v. Texas Southern University, et al., No. 01-17-00867-CV, in the First Court of Appeals.  The opinion of the court is here, and Justice Massengale’s concurring opinion is here.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of the Najvar Law Firm, PLLC in Houston. He has successfully litigated several constitutional cases, primarily First Amendment free speech and association claims.

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McAllen Monitor reports Hidalgo County DA Ricardo Rodriguez says he can’t remember who filed Edinburg complaint

So now DA Ricardo Rodriguez “can’t remember” who filed the complaints with his office early in 2018?

He says he would have to review his files to jog his memory.

Excellent! That’s part of what my public information request seeks–the “basic information” from those complaints, which will reveal who filed them with his office, when, and what he did with them (when he forwarded to the state authorities, etc.). (Hint: the SOS’s records confirm that the DA’s aunt, Mary Alice Palacios, filed the complaints with the SOS; I’m trying to figure out when she filed them with the DA’s office.) The DA should release this information, as required by Texas law, rather than hiding behind a request to the Attorney General to keep it hidden.

From the article (which also includes a handy diagram illustrating the DA’s ties to those who lost in the Nov 2017 Edinburg elections):

“When you step back and look at this, there’s a disparity. There’s complaints against both sides, but one side is being investigated and one side is not,” [Najvar] said. “You start thinking about why is that, and one explanation is that [the] district attorney’s office has [a] vested interest with the side that is not being investigated.”

Edinburg Voter Fraud Investigation: A One-Sided Affair?

*Editors’ note: This post was originally published 9/8/18 on the Najvar Law Firm Facebook page. We are cross-posting it here, and will do so for all future posts on this topic. This situation deserves to be documented in a way that is permanently available and more easily accessible than Facebook allows. Posts will be tagged so you can easily find all posts on the topic.

[Nov. 9, 2018.]  This week, the Texas Rangers have arrested more than ten additional people in their investigation of allegations of voter fraud in Edinburg, which began after the Nov 2017 Edinburg elections. (See linked article.) But the picture is more interesting than those arrests in isolation.

The initial arrests came after a criminal complaint that, although Hidalgo County DA Ricardo Rodriguez wouldn’t admit it at first, was filed by his own aunt, Mary Alice Palacios. Mary Alice Palacios lost a lucrative contract with Edinburg after Richard Molina and his slate took over in 2017. There was a flurry of arrests in May 2018, which we now know was in response to Palacios’s complaints. But at the time, Rodriguez would not say who complained, although he was apparently happy to tell The Monitor that his office received the complaint and began the investigation before state law enforcement became involved. The additional arrests this week seem to be targeting the same group of persons, who were supporting the challengers to the Palacios regime in Edinburg. (And that 2017 election was devastating to the Palacios clan, even aside from Mary Alice’s contract cancelation: Molina took out Richard Garcia as mayor, who was and is partners in Terry Palacios’s law firm; J.R. Betencourt declined to run for re-election early on, after vocal allegations of conflicts of interest by Molina; Molina’s slate won a solid majority, flipping control of the City; Ricky Palacios immediately resigned as City Attorney; and Molina also represented a direct threat to Terry Palacios’s role as long-time muni judge, because Molina promised to seek voter approval to change the position to an appointed position with term limits.)

Of course, investigators should do a full and fair investigation of any credible allegations. But if that is the principle, then it is puzzling why the criminal complaints filed by Molina’s supporters, in response to those filed by Palacios, appear to have disappeared into a black hole. At least for now.

I requested records from Rodriguez’s office in October, seeking documents that would reflect (1) when Rodriguez received any complaints from Mary Alice Palacios or anyone else that triggered the initial investigation; (2) whether he has recused himself from any such investigations sparked by his own aunt’s complaints, and (3) documents showing that his office did, in fact, receive the complaints filed later by Molina supporters against Palacios-team supporters, and how he processed/forwarded those to any state authorities. Rodriguez has claimed that he forwarded them, but it’s unclear if he did so, or if so, when. Also, if he did forward them on, I would be interested in knowing if he made the state law enforcement agencies aware of how those complaints implicated some of his own family members, and therefore that his office should be considered to have a conflict of interest.

This story may take a while to play out. But it promises to get much more interesting.

Rodriguez is fighting disclosure of the documents I’ve requested, so today I filed this letter with the Texas AG’s Open Records opinion committee:
http://lexpolitico.com/…/…/20181109-letter-to-AG-Op-Cmte.pdf

NLF IS HIRING: Associate Attorney for Constitutional/Election Litigation and Appeals

Najvar Law Firm, PLLC is looking for a highly skilled and motivated young attorney.  Recent graduates who just took the bar, as well as young attorneys with a few years’ experience, are welcome to apply.

Job Description

Constitutional and political litigation; focusing on election and First Amendment issues including campaign finance, ethics (for public officials), and other speech and election-related litigation, both trial and appellate. We are committed to aggressively defending First Amendment rights of speech, political association and liberty in general.

NLF is a political litigation boutique providing a rare opportunity to practice constitutional and election litigation at the highest levels. In the last four years, NLF has scored four major victories striking down campaign finance laws in federal courts, another Fifth Circuit victory in a Fourth Amendment false arrest case, and won an election contest trial in South Texas resulting in landmark precedent from the Thirteenth Court of Appeals protecting voting rights. Specifically, NLF: served as co-counsel to Shaun McCutcheon, who prevailed in McCutcheon v. FEC, in which the U.S. Supreme Court struck down federal aggregate contribution limits; secured an opinion from the Fifth Circuit in Aug. 2014 facially invalidating Texas’s waiting period on new PACs (Catholic Leadership v. Reisman); won a district court judgment in 2015 invalidating Houston’s blackout period on fundraising for city office (Gordon v. City of Houston); secured a decision from the Fifth Circuit in February 2017 on behalf of a client who was arrested for holding a sign outside of an abortion clinic; and, in February 2018, secured a Fifth Circuit judgment affirming the invalidation of two Austin laws restricting campaign fundraising (Zimmerman v. Austin). We have filed a petition for cert with the Supreme Court in Zimmerman with respect to two other issues in the case (No. 18-93). NLF also has a petition for review pending in the Texas Supreme Court in a case involving important taxpayer rights regarding tax elections, and is prosecuting an election contest challenging the November 2017 Houston election for a billion-dollar bond issue, alleging that the City used misleading ballot language. That case is currently pending in the First Court of Appeals. The person hired for this position will play an integral role in litigating these and other cases. Additional NLF cases in the past have involved a challenge to a Dallas sign ban, and an economic liberty (commerce clause) challenge to a municipal transportation regulation.

NLF is looking to hire a full time associate. This position requires an individual with the highest demonstrated academic achievement and an aggressive, problem-solving attitude. Research and writing skills are essential. Given that we are a small firm, after demonstrating the requisite skill, you can expect to be trained and tasked with significant responsibility much sooner than at a larger firm.

This practice is the antithesis of the typical volume-based business. We prosecute (and defend) a relatively small number of cases and administrative matters, but they are each unique and demanding. The work is intellectually rigorous and demands serious research and creative thinking. You must be self-driven and motivated to shape the law on these issues.

This position is open immediately. Applications welcomed from recent JD graduates and attorneys with a few years’ experience. (Also interested in interviewing 2Ls/3Ls as part-time clerks.)

Desired Skills & Experience

JD required; excellent research and writing; self-driven; persistent; passionate about the issues

Starting salary 55-65K first year.

Email me with your resume, law school transcript, and at least one writing sample.

San Antonio Appellate Court to Decide Important Case Documenting Systematic Manipulation of Assisted Voters and Indications of Ballot Box Stuffing

From a Najvar Law Firm press release, August 23, 2018:

Case Pending Before San Antonio Court of Appeals Presents Opportunity to Restore Election Integrity in South Texas

Everyone who lives in the Rio Grande Valley knows that the systematic manipulation and exploitation of vulnerable voters, through both mail-ballot schemes and assisted voting at the polls, is a fact of life in local elections.  The trouble is proving it and finding someone to enforce the law, even-handedly.  Najvar Law Firm is representing Leticia Galvan and Martie Garcia Vela, two Democratic candidates contesting the results of the March 2018 primaries in Starr County, a border county west of McAllen, Texas.  Galvan ran for County Judge against long-time incumbent Eloy Vera; Garcia Vela ran for an open seat on the 229th District Court.  After five days of sworn testimony in open court, the trial record documents the manipulation of elderly and other vulnerable voters voting early in person in perhaps more detail than has been available ever before. The San Antonio Court of Appeals is expected to decide by August 29 whether new elections will be ordered.

A five-day trial was held in April 2018, featuring testimony from poll workers, the Starr County elections administrator and several of his staff, candidates, voters, and two poll watchers who spent a combined minimum of 70-80 hours observing the conduct of assisted voting at the Rio Grande City Courthouse polling site.  The evidence and arguments are all summarized in detail in Contestants’ brief to the Fourth Court of Appeals, unsealed just this week by the Court of Appeals.  Some of the highlights from trial include the following, all established through clear testimony that went uncontradicted:

Abuses of “assisted” voting

  • Poll watcher Monica Pena, who observed 7-8 full days of early voting (from the time the polls opened to the time they closed) testified that she saw between 40 and 70 (and sometimes up to 100) voters voting curbside with assistance each day. These voters would typically arrive in the same vehicle with the assistant.  About half the time a voter received assistance voting from a vehicle, the process began with the assistant telling the voter—sometimes with a “nudge”—to “remind” the clerk that the assistant would help.  Pena testified that “in some occasions they almost seemed coached by whoever…brought them in.  Uh, and they would nudge them…to remind them, ‘ask for me, ask for me.’”
  • Pena testified that “for the most part,” the assistant, not the voter, would receive and complete the ballot. (“They would just swear in the assistant, they would provide the assistant with the ballot. Observing them they would close the doors to the vehicle, and on many if not all occasions they would be filling out the ballots.”).
  • Pena observed that sometimes it appeared to be “just a pattern of filling out….whatever party they were with,” even voting based off of a sample ballot in the vehicle, without any observable conversation between the assistant and the voter (which would be required if the assistant were actually asking the voter whom the voter wished to vote for).
  • On many occasions, the assistants would “tote” numerous voters to the polling place at once in the same vehicle, and on such occasions Pena said that the assistants would not read the ballots, and she overheard them telling voters, “No, no, no…No, not that one,” or “ ‘Con ese candidato no,’ which means not with that candidate, he’s not with us or they are not with us.”
  • Norma Lopez, a military veteran who served tours of duty overseas, filled in as a watcher one day for Monica Pena, and observed the same things. She testified that she was troubled by the exploitation of elderly voters that she witnessed.  Lopez is not typically active politically, but when she heard that this case was filed, she contacted Leticia Galvan via Facebook and reported her experience.
  • Lopez happened to be inside the polling place at one point when one of the women who had been observed assisting repeated voters outside in the manner described above came inside with a voter she referred to as “Panchito.” Panchito asked the election clerk for a Republican ballot, but the “assistant,” Ester Ayala (a Starr County employee who testified she was volunteering to help County Judge Eloy Vera in the campaign) immediately said, “No Panchito, you are not voting Republican, you are voting Democrat.”  Lopez was standing right there, as was the presiding judge, and Lopez told the judge, “She can’t do that!”  But instead of ensuring Panchito had the ability to vote the ballot of his choice, the judge told poll watcher Lopez to “back off,” and gave Panchito the Democratic ballot.  Lopez then remained watching as Panchito told Ester, “well you fill it out because I don’t know who you want me to vote for.”
  • Both poll watchers complained repeatedly to the election judge and clerks, to no avail. They became so frustrated by the lack of action that they stopped complaining.
  • It is now impossible to identify which voters were assisted, and by whom. While Election Code 64.032(d) requires that poll workers record the assistant’s “name and address on the poll list beside the voter’s name,” the poll workers refused to do so, at the direction of Elections Administrator John Rodriguez.

“In normal circumstances absent fraud, the failure to properly record the assistant’s information would not invalidate the votes,” said attorney Jerad Najvar, representing Contestants.  “But where there is fraud in the election—and here there was fraud by the assistants who unlawfully assisted and the poll workers who failed to prevent violations of the code—the failure to record this information should invalidate the affected votes, because it prevents an audit of the election.”

Ballot Box Security Failures and Indications of Stuffed Ballots

  • Boxes of ballots from multiple election sites contained stacks of sequentially-numbered ballots, “stuck together” as if pulled from a paper stack, unsigned by the presiding judge (who is required to randomize and then sign each ballot before offering them to voters).
  • To understand the implications of finding ballots in such a manner, one must understand the way the Starr County voting machines work. Starr County utilizes paper ballots, and after the voter fills in the ballot, he or she feeds it into an M-100 precinct ballot scanner, which tabulates the votes at the polling site as the ballot then falls into an attached ballot box.
  • An election judge testified that she knows from ten years of election experience that the M-100 will alternate flipping ballots to the right and left side of the ballot box as they are scanned in.
  • Thus, if a ballot box contains stacks of ballots, sequentially numbered, “stuck together,” and unsigned by the presiding judge, it is clear that those ballots were not scanned through the machine by successive voters. There can be no explanation other than as someone’s attempt to cover up a fraud, as if they had manipulated the electronic results on the machines during the election and then, when they realized a recount was requested (requiring the ballot boxes to be opened), they placed the ballots in the box to cover up the fraud.
  • Yet, as with the failure to record the assistant’s information next to the voters, election officials did not keep required records of the numbers to the seals on the M-100s and ballot boxes, preventing any audit of manipulation of the equipment.
  • Further, when a box that was not properly sealed was discovered during the recount, a sheriffs’ deputy made an official report, and testified that an elections official was trying to “act like” the seal was not open when it was obvious to the deputy and others that it was open. Elections Administrator John Rodriguez walked away from the area and did not return to the recount that day, and never followed up with the sheriff’s department to investigate.

Early Voting Ballot Board

  • The Early Voting Ballot Board, responsible for processing all mail-in ballots to determine whether each ballot will be accepted or rejected, had five members, and three of them were statutorily disqualified from serving on the Board because they are Starr County employees and County Judge Eloy Vera was an opposed candidate on the ballot.
  • Additionally, each member of the Board was reviewing her own stack of ballots and deciding unilaterally whether each ballot would be accepted or rejected, as opposed to reviewing them as a board.

After a five-day trial in April, a vising district judge held that Contestants had failed to prove by clear and convincing evidence that the election was invalid.  (The trial court’s judgment and findings are found in the appendix to Appellants’ brief as Tabs A and B.)

“The trial court erred in failing to recognize that the undisputed facts in this case established fraud as a matter of law in various phases of the election,” said Najvar, “which means that the statutory violations by election officials, including failure to record the assistants’ information and failure to record ballot box seal numbers, require a new election.  If the Court of Appeals orders new elections based on these violations, it will go a long way to restoring election integrity in South Texas, and will send a message that the laws that are meant to protect vulnerable voters—our elderly and infirm family members—cannot be ignored and abused.”

The Fourth Court of Appeals has indicated that it will decide the case by August 29.  It initially set the case for oral argument, indicating that the Court is interested in one or more issues in the case.  However, Galvan and Garcia Vela asked the Court to expedite its decision, including by foregoing oral argument if necessary, so that time remains to conduct new primary elections (before the General Election in November) in the event the Court rules in their favor.

The case is Leticia Garza Galvan and Martie Garcia Vela v. Eloy Vera and Baldemar Garza, No. 04-18-00309-CV, pending in the Fourth Court of Appeals.  The court’s case page is here, reflecting the status of the case and links to the documents.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of the Najvar Law Firm, PLLC in Houston. He successfully litigated an election contest in Hidalgo County in 2014, Letty Lopez v. Guadalupe Rivera, proving 30 votes were illegally cast in a Weslaco race, including instances of ballot by mail fraud.

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Hearing Wednesday June 13: District Court to Decide City of Houston’s Attempt to Prohibit Testimony in Suit Challenging Billion Dollar Pension Bond Deal

FOR IMMEDIATE RELEASE                                                                      Contact: Jerad Najvar

Hearing Wednesday as City of Houston Seeks to Avoid Depositions of Its Employees Regarding Pension Bond Lawsuit 

HOUSTON, TEX.—On Wednesday, June 13, at 3:30 pm in the Harris County District Courthouse, the district court will hold a hearing to consider the City of Houston’s attempt to avoid producing key witnesses to answer questions regarding the billion dollar bond measure from November 2017 that has been challenged as materially misleading to the voters.

Concerned Houston taxpayer James Noteware filed a lawsuit in December challenging the City’s use of deceptive language on the November ballot with regard to Proposition A, which asked voters to approve a billion dollars in additional city debt for the Mayor’s pension plan.  The lawsuit argues that the ballot was materially misleading because, while it correctly disclosed that the City would issue the pension bonds and levy taxes to pay for them, it conveniently omitted the fact that those taxes would not be subject to the default limits in the city charter, including the limit on the annual growth of property taxes. This effectively created a massive exception to the charter limits without telling voters.  Although the bonds have been issued, Noteware’s lawsuit, if successful, will protect the property tax cap and nullify the City’s authority to tax outside of the cap or other charter limits.

Noteware has subpoenaed two witnesses from the City of Houston to discuss issues related to the lawsuit.  One is Melissa Dubowski, a high level employee of the city finance department whom the City itself actually put forward as a witness in an earlier hearing in the case, when it wanted her to testify about why the pension deal had to close without delay before the end of 2017.  Documents produced in discovery now reveal that the City actually had three more months to finish the deal under its contracts with the pensions, but the City shoveled all the money out the door and has now used that fact to argue that the case is moot. Now that Noteware wants to ask his own questions of this witness rather than relying solely on the self-serving affidavit the City drafted for her, the City suddenly claims her testimony is not relevant.

Documents also now reveal the disconcerting fact that Mayor Turner all along has planned to use city utility fees to pay a portion of the costs of the bonds.  This may explain how Mayor Turner was able to campaign on the claim that “no new taxes” would be required to pay the bonds off, which accumulate to approximately $1.8 billion with accrued interest through 2047:  if utility fees are not technically a “tax,” then perhaps the Mayor’s “no new taxes” claim was technically accurate while being materially deceptive.  The failure to tell voters that they would be hit on their utility fees as well as their property taxes is another reason why the November ballot was materially deceptive. Noteware has requested the City to produce a witness who can explain what authority the City has—if any—to use utility and other such enterprise or special fund revenues to pay the bonds.  The City’s official response to the Court claims unabashedly that they have such authority, and they did not have to tell the voters about such plans at the time of the vote.

The hearing details are as follows, and Noteware and counsel will be available for questions afterward:

Wednesday, June 13 at 3:30 p.m.

Harris County Ct. at Law No. 2  133rd District Courtroom (Fifth Eleventh Floor)

201 Caroline

Houston, TX 77002

SEE NOTEWARE’S MOTION TO COMPEL RESPONSES HERE

SEE THE CITY OF HOUSTON’S RESPONSE HERE

The case is Noteware v. Turner, No. 2017-83251, presided over by visiting judge Mark Morefield of Liberty County.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of Najvar Law Firm, PLLC in Houston. He secured a federal-court judgment in 2014 striking down Houston’s former campaign “blackout period,” which prohibited candidates from fundraising until the last nine months before an election.

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Texas Prop 4 and Separation of Powers

When I initially heard about Prop 4 (S.J.R. 6 from the 85th Reg. Session) on the November ballot, I was concerned that it encroached too far on the judicial sphere and imperiled the ability of plaintiffs to get relief from unconstitutional laws.  However, after reviewing it, the amendment only requires the notice and “waiting period” before a final judgment is entered, and does not encroach on a court’s ability to enter injunctive relief against an unconstitutional state law.

Texas Government Code sec. 402.010, passed in 2011, requires that, where a party to litigation challenges the constitutionality of a state “statute,” the court must provide notice of the challenge to the Texas Attorney General’s office.  Further, “[a] court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after the date notice required by Subsection (a) is served on the attorney general.”  The idea is to ensure the State has notice of any court challenges to state statutes so that the State may intervene to defend it, if it wishes to do so. In most civil cases, when a party is challenging the constitutionality of a state statute, the plaintiff will be suing the appropriate state official or institution, the Attorney General’s office will be involved in the defense, and this provision is not triggered.  However, it is not uncommon for cases to arise in which a party brings a constitutional challenge to a state statute where the State is not a party.  One prime example: the Texas Election Code authorizes a candidate or PAC to sue a political adversary for alleged illegal contributions or expenditures. See Tex. Elec. Code 253.131-.32. Those cases arise with some regularity, and the party sued often raises (with good reason) constitutional objections to the statutes at issue. A recent example is the Texas Democratic Party’s lawsuit against King Street Patriots, a nonprofit organization which the TDP alleged had violated various Election Code provisions, with KSP arguing (successfully) the statutes could not be applied to it. See King Street Patriots v. Tex. Democratic Party, 521 S.W.3d 729 (Tex. 2017).

The notice-and-waiting-period requirement in Gov’t Code sec. 402.010 would apply in such a case, but it was held unconstitutional as a violation of the separation of powers by the Texas Court of Criminal Appeals. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Court had previously recognized that part of the “core judicial power” is the power to “enter final judgment based on the facts and the law,” and held that “the 45–day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.” Id. at 29. The Legislature responded with S.J.R. 6, which essentially says that, despite the express separation of powers provision in the Texas Constitution, the Legislature is authorized to do what it did in section 402.010. The proposed constitutional amendment expressly provides that section 402.010 will be “validated and effective” if Prop 4 is approved at the polls, and will apply to any challenges filed beginning in 2018.

If Prop 4 is approved, it should not at all harm the ability of plaintiffs to get timely relief from unconstitutional statutes. The 45-day waiting period limits only the court’s ability to “enter a judgment holding the statute unconstitutional.”  The word “judgment” has a particular meaning, and includes only the final disposition in a case, disposing of all parties and claims. A “judgment” is therefore different than other orders a court may enter on a party’s motion, such as TROs, temporary injunctions, and anything else short of a final judgment. See, e.g., Lindley v. Flores, 672 S.W.2d 612, 614 (Tex. App.–Corpus Christi 1984). The statute (sec. 402.010) actually makes this more apparent since it uses the term “final judgment” (whereas the constitutional provision says “judgment”), but the word “final” is not necessary, as there is only one type of “judgment” in Texas practice, and any temporary order (such as an injunction prohibiting the government from enforcing the offending statute while the litigation is pending) would not be subject to the 45-day waiting period.

This reading is the only legitimate interpretation of S.J.R. 6, based on its plain text (and that of sec. 402.010), and it is further supported by the federal counterpart to S.J.R. 6.  Federal Rule of Civil Procedure 5.1 imposes a similar waiting period, stating that the party and the court must provide notice to the attorney general of a constitutional challenge and permit same to intervene within 60 days, and during that 60 days, the court “may not enter a final judgment holding the statute unconstitutional.” The federal advisory committee’s note explains that “[p]retrial activities may continue without interruption during the intervention period, and the court retains authority to grant interlocutory relief.” Senator Zaffirini, the sponsor of S.J.R. 6, expressly justified the amendment as the state counterpart to the federal rule.

A couple of takeaways:

First: it is clear from the language of the amendment (and the statute that it would resurrect) that Prop 4 will not establish any hindrance whatsoever to a Texas court’s ability to enter timely and effective relief against an unconstitutional Texas statute through entry of a TRO or temporary injunction. This is true regardless of whether the sponsors and those who voted for the amendment in the Legislature would be surprised to hear that. Therefore, I don’t think it presents any problem, and is good policy to notify the AG of such challenges.

Second: the Texas Constitution is entirely too easy to amend. This exercise does point up a danger that the Legislature could someday draft an amendment that does real violence to the principle of separation of powers. While a bad constitutional amendment, if passed, would mean that the thing accomplished would by definition be consistent with the constitution (as amended), the constitution should not be amended in ways that undermine sound principles of separation of powers. (For example, if the Lege proposed an amendment to authorize imposing the waiting period on even preliminary orders like temporary injunctions.) Legislators have a duty to guard against this, and voters have a duty to pay attention and reject bad amendments when they are proposed.