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#LopezvRivera: Court compels deposition of homeowner where 23 people registered to vote

The New York Times recently provided the nation with a glimpse into the unfortunate political corruption that residents of Texas’s Rio Grande Valley have suffered under for far too long. In a January 12 story, the Times covered the suicide of Alfredo Lugo, President of the Donna ISD school board, which occurred days after three “politiqueras”–the familiar term for the Valley’s unique type of campaign workers–were arrested and charged in a vote-buying scheme in support of certain Donna school board candidates during the 2012 elections. As the report states, abuses by politiqueras and candidates in the Valley are widespread and extend beyond buying votes, to include various forms of voter fraud, especially with respect to mail-in ballots.  (See these additional reports by The Monitor and KRGV, including links to the federal charging documents.)

Hidalgo County DA Rene Guerra is quoted by The Times as stating that vote-buying is hard to prove and he doesn’t have the manpower to pursue illegalities in the 2012 Donna elections. However, criminal prosecution is only one enforcement tool available to right election improprieties.  Candidates themselves have tremendous power–and in fact are the only persons with legal standing under Texas law–to prosecute an election contest which can establish illegal votes and permit a court to either conduct its own recount or call a new election.

One such case is currently pending in Hidalgo County district court and moving toward a February trial.  Letty Lopez lost a campaign for Weslaco City Commission (District 5) by 16 votes to incumbent Lupe Rivera.  Lopez has never held elective office and is part of a slate of candidates who campaigned on transparency, among other things.  While Lopez and Rivera each received the same number of votes on Election Day (85), and Lopez received many more in-person early votes than Rivera, Rivera racked up a large enough margin in ballots cast by mail to make up the difference and claim a 16-vote victory.  Red flags were immediately apparent, however, including a single-family residence in District 5 that claimed 23 registered voters.  Lopez retained Najvar Law Firm and filed an election contest on November 18. (NLF is the author of this blog.)  You can find Lopez’s FIRST AMENDED PETITION here.  Lupe Rivera is represented by Gilberto Hinojosa of Brownsville, the current chair of the Texas Democratic Party.  This case presents a critical opportunity to achieve justice in a case of apparent voter fraud, including allegations of non-resident voting and various illegalities with mail-in votes handled by the Rivera campaign, and this week has been particularly instructive.

Lopez, of course, subpoenaed the homeowner of the residence boasting 23 registered voters. He failed to appear for his deposition, necessitating a motion to compel and court hearing.  Hinojosa threatened NLF with sanctions if we proceeded with the motion to compel, claiming that the process server had actually served the homeowner’s son by mistake.  We were confident our process server had served the correct person, and proceeded with the hearing on Wednesday, January 22.  The hearing proved to be very informative.

Lopez called her process server to the stand, who testified in great detail about how he went to the home in question and spoke with the homeowner, who confirmed he was the correct individual. The server testified that the homeowner and his wife both personally accepted their respective subpoenas.

Questioning the server on cross, Mr. Hinojosa pointed to a man sitting in the front row of the courtroom wearing dark sunglasses, and asked if this was the man who had actually been served.  The server answered no, the man he served was much older.  When Hinojosa was done, Najvar called the (as yet unidentified) man to the stand.  Citing no rule, Hinojosa objected that Najvar couldn’t call a witness to testify unless he knew the witness’s name. In response, Najvar turned to the man, still seated in the audience, and asked his name.  The man sat silent, looking straight ahead.  Hinojosa again objected, stating that the unidentified man was under no obligation to answer the question since he was not under oath.  To summarize, Mr. Hinojosa’s position was that the man Hinojosa had hauled to court to try and undercut Lopez’s process server’s testimony did not have to identify himself because he was not under oath, and could not be called to the stand unless Najvar was aware of his name.

The court overruled the objection and required the man to take the stand.  Upon questioning, he revealed his name, identifying himself as a son of the man who was the target of the subpoena, and claimed that he was the one who received the subpoenas for both of his parents.  He acknowledged that he was more than 30 years younger than his father.  Najvar re-called the process server, who again disputed the man’s testimony and explained in detail how he had personally served both of the individuals subpoenaed.

The court found the process server to be credible, the man proffered by Hinojosa to be not credible, and concluded that the homeowner had been personally served.  Consequently, the court granted Lopez’s motion to compel, ordering the deposition to occur Monday, January 27 at 9 am.

CLC v. Reisman: Appellants’ Reply Brief opposing Texas’s attempt to justify a 60 day ban on PAC speech

The arguments made by the State of Texas, attempting to defend section 253.037(a) of the Election Code, are truly remarkable and borderline frivolous.  The provision requires any group organized based on common principle (instead of, for example, fidelity to an identified candidate) to (a) register, (b) collect contributions from ten persons, and (c) wait 60 days, all before spending more than $500 even on their own, independent speech (“independent expenditures” in constitutional jargon).  The State’s arguments are, thankfully, entirely foreclosed by decades of Supreme Court precedent.  But they deserve more attention and discussion, and this blog will delve into them more deeply and explain just how dim a view at least some attorneys at the Texas Attorney General’s office have of the First Amendment rights of Texans to organize for political advocacy.

In a nutshell, Texas is arguing that the plaintiffs before the Fifth Circuit (three “general purpose” political committees and a nonprofit 501(c)(4)) have no business complaining about a waiting period on their speech, because Texas generously affords multiple “choices” for the exercise of First Amendment rights, and plaintiffs should have either spent money through a nonprofit organization or registered as “specific purpose” committees to support identified candidates. Appellants’ reply brief responds to these dubious arguments.

REPLY BRIEF HERE

Catholic Leadership Coalition, Inc. v. Reisman: Texas Ethics Commission files its brief

In Catholic Leadership Coalition, Inc. v. Reisman (background here), the Attorney General’s office filed its brief for appellee David Reisman and the other members of the Texas Ethics Commission on December 5, arguing, among other things, that Texas PACs can be required to wait 60 days after registering with the State before spending any money (at least, any in excess of $500).  NLF’s brief on behalf of appellants (three Texas general purpose committees and one 501(c)(4), namely the Catholic Leadership Coalition, Texas Leadership Institute for Public Advocacy, Friends of SAFA Texas, and Texas Freedom PAC), arguing that the First Amendment prohibits such prior restraints on speech, is here.

Appellants’ reply brief is due December 23.

ICYMI: McAllen’s KGBT TV Report Prior to Last Week’s Palmas v Sanchez Hearing

Nadia Galindo with KGBT Channel 4 interviewed Hidalgo Councilman Guillermo Ramirez and attorney Jerad Najvar prior to last Friday’s temporary injunction hearing in Palmas v. Sanchez.

captureKGBT420131024

Najvar objected to procedural deficiencies with the Plaintiffs’ petition, and the judge rescheduled the hearing for November 1, allowing the plaintiffs to amend.  In the meantime, as Defendants pointed out, the court had no further authority to extend the temporary restraining order, so S to N Transport was able to finally begin running its buses–competing directly with Councilmember Franz’s STS Transportation–picking up passengers at the Hidalgo-Reynosa International Bridge and transporting them to McAllen.

NLF Is Proud to Sponsor Grassroots Republican Training This Saturday in Houston

Najvar Law Firm is proud to support this event for grassroots conservatives, in conjunction with the Houston Young Republicans and Texas Federation of Hispanic Republicans.  Each of those organizations is hosting training sessions Saturday, Aug 24, and then the participants are invited to The Burger Shack Grill in Katy for a free milkshake and networking with fellow activists.

Grassroots training Flyer for Aug 24-2

More Background as to Hidalgo Politics Preceding Franz v. Ramirez

 In November 2012, the newly-formed Community United faction, which had broken off from the long-empowered Concerned Citizens, unseated three Hidalgo school board trustees and “rocked the city’s political machine.”  One of those unseated was Rudy Franz, who lost to Alvin Samano. The article continues:

With the razor-thin win, Community United now controls Hidalgo’s largest employer and a $39.4 million budget.

Traditionally, well-paying school jobs have been an important tool for the Concerned Citizens, who made strategic hires to curry favor and blunt opposition. The newly elected Community United majority has pledged to hire based on merit, not political connections.

“You should be able to keep your job because of your ability or experience, not because of what side of any political party you’re on,” said Samano, who spent 21 years working for Hidalgo schools before leaving amid political turmoil.

But as it turned out, three of the losing candidates sued, alleging illegal voting, and two of these trustee elections were ruled invalid:

[Visiting District Judge Manuel] Bañales ordered new elections for Place 4 and Place 6 after hearing testimony about illegal voting during the November 2012 school board election. In both contests, the number of ballots cast by non-residents exceeded the margin of victory.

A blunder by the Hidalgo County Elections Department further complicated the case. County workers mistakenly allowed some Precinct 63 residents — the precinct isn’t part of the Hidalgo school district — to cast ballots.

Pursuant to court order, the special elections in these two races was held again on May 11, 2013. It was during the campaign for these seats that gave rise to the legal dispute between Ramirez and Sanchez–the two councilmembers now aligned with Community United–and Rudy Franz, discussed here.  The candidates aligned with Community United ended up winning both seats again in the special elections.

Separation of Powers and the Wild World of Hidalgo City Politics

I said in a previous post that I’d be interested in finding out what could possibly have justified a Hidalgo County district court’s temporary restraining order–granted at the request of a member of the Hidalgo City Council (Rudy Franz)–prohibiting two other members of the Council from exercising their duties as elected officials and voting on certain matters before the Council. (Documents are linked below.)

Specifically, the TRO prohibits Councilmembers Guillermo Ramirez and Gustavo Sanchez from “participating in an act of retaliation specifically the voting on any item in the City of Hidalgo that relates to the business operations…of [Councilmember Franz].”  You see, Franz operates a bus company and a taxi company, and he apparently is interested in preventing the Council from granting a permit to a new company, S to N Transportation, which would be in competition with Franz’s operations. The 275th District Court granted the temporary restraining order (TRO) on July 22 and set a hearing for Monday, August 5. As reported by The Monitor:

With the one-page document, Rudy Franz paralyzed the City Council and blocked a new bus company, which met all Hidalgo’s permit requirements, from serving the Hidalgo-Reynosa International Bridge. Mayor Martin Cepeda called the incident a black eye for Hidalgo.

Of course the TRO–by definition–is temporary; the hearing Monday will determine whether the injunction shall remain in force while the litigation proceeds. I have reviewed Franz’s “emergency motion” seeking the TRO, which includes affidavits from Franz and a few other witnesses, and the court’s ex parte order (there was no response by defendants to the motion, although they have filed an answer to the underlying suit.).

While the documents evidence a fascinating world of Hidalgo politics, there is nothing stated in Franz’s motion that would appear to provide any basis for protecting Franz’s businesses from competition.  Perhaps more importantly (and the point on which this blog will focus), even if there were some substantive basis for protecting Franz’s business, pursuant to separation of powers principles, a court does not have the authority to enjoin city council members from voting on matters before the Council.

The underlying lawsuit, filed by Franz in May, alleges that he was defamed by the defendants as they pushed for their desired slate of candidates in school board elections.  The political factions in Hidalgo are the “red team” (Concerned Citizens of Hidalgo) and “blue team” (Community United). According to the affidavits submitted by Franz, the two defendant Councilmembers changed their allegiances from the red team to blue and began urging folks to vote with the blue team in the school board elections. (This Monitor story by Dave Hendricks gives more background.) The various affidavits, submitted by folks in the community, all basically state that Defendants Sanchez and Ramirez contacted them and urged a vote for the blue team because Franz had been “stealing” for 30 years, they were tired of it, and the blue team meant change. Citing “slander,” Franz says he was compelled to sue.

After the suit was filed, Franz alleges, the defendants began pushing items on the city agenda that would harm Franz’s business interests. Franz says that (i) he and his wife operate the “only two towing companies in” Hidalgo; (ii) as retaliation for Franz’s lawsuit, “and as a political vendetta[,] the two defendants passed an ordinance specifically drafted to hurt my towing business”; and (iii) the defendants were pursuing “an agenda item on the City of Hidalgo Regular Meeting to specifically destroy my transportation business.”  Franz alleges a “systematic and ongoing political retaliation,” and Defendants “have acted under color of law to attack [Franz’s] economic interest and valuable property right.”  He alleges that “[t]hese actions are violations of my Freedom of Speech, Freedom of Association and are violations of the Texas Constitution[.]”

There is no support for the substantive rights asserted; Franz merely cites to section 19 of the Texas Constitution, providing in relevant part that no citizen may be deprived of “property” without “due course of…law.”  But this does not advance Franz’s claim that he has any cognizable property right implicated by a proposal to permit a competing transportation company.  Injunctions are proper sometimes to prevent irreparable harm to a cognizable business interest, but the operative term there is cognizable. Franz doesn’t have a right to operate a de-facto towing and transportation monopoly in the city.

In order to secure the extraordinary remedy of an injunction, one is required to show a likelihood of success on the underlying claim.  Franz’s motion cited absolutely no city ordinance, other law, or contract that gives him a government-protected monopoly on the transportation business in Hidalgo. Without any substantive right against competition, he has no basis for a cause of action, and on that basis alone, the TRO should not have been granted. (While the Open Meetings Act (TOMA) does allow courts to issue injunctions against violations of TOMA, and while Franz’s motion makes a passing reference to the Act, there are no facts provided to establish any violation and the motion does not otherwise cite the Act. The terms of the TRO reveal that it was not directed at a TOMA violation, as it prevents voting on matters related to Franz’s business, regardless of compliance with TOMA.)

On to the separation of powers issue.  Even if Franz could establish with certainty that some proposed action of the council would harm his property rights, the district court had no authority to enjoin councilmembers from voting on a matter or otherwise inhibit the legislative process itself. In a seminal case from 1912, the Texas Supreme Court considered a claim that an injunction should issue against the canvassing of the results of an initiative election, which would “prescrib[e] the fares to be charged passengers of street railway companies operating in that city.”  City of Dallas v. Dallas Consol. Electric St. Ry. Co., 105 Tex. 337 (1912). The plaintiff was–not unlike Franz–a transportation company arguing that the ordinance approved in the election would harm its business interests, and asked the court to stop the canvassing process so that the allegedly-illegal provision would not become law. Relying on fundamental principles of the separation of powers, the Supreme Court correctly held that judicial authority was not properly directed at inhibiting steps in the legislative process.  The Court said:

The case is not one where the enforcement of an enacted and effective city ordinance is attempted to be enjoined because of its invalidity and prejudicial effect upon property rights. It is one where, upon such grounds, it is sought, in effect, to prevent by judicial remedy the enactment itself of an ordinance by enjoining the act which will put it in force. It is therefore necessary to the decision that there be clearly ascertained, determined, and respected that boundary line that separates political power and judicial authority and defines their respective limits.

Id. at 293-94 (emphasis added). The Court went on:

To interfere with the enactment of legislation is not within [the judicial] province. [Judicial] remedies lie ready, but at rest, until proper occasion demands their use. They are not available against void legislation enacted under color of authority until its enforcement…is attempted or threatened to the destruction or impairment of property rights. Until then in the eyes of the law there is no invasion of such rights, and without such invasion of rights there can be no lawful exercise of judicial authority.

In other words, there is no judicially-cognizable injury from the mere passage of a law; judicial power is implicated only when the law is enforced. These principles have long been applied to prevent courts from enjoining municipal bodies from enacting ordinances.  “The restraining of the passage of an ordinance is a legislative act, and such restraint cannot be exercised by the courts.”  City of Monahans v. State ex rel. Cook, 348 S.W.2d 176, 179 (Tex. Civ. App.–El Paso 1961, writ ref’d n.r.e.).  This is true even if an ordinance appears to be clearly invalid.  Although there is an exception where the “mere passage” of an ordinance would work an irreparable injury, that is a rare circumstance, and would not apply here.  (It is the actual operation of a competitor that stands to harm Franz’s business (and benefit everybody else), not the granting of a permit itself).

These principles are well-settled.  The Thirteenth Court of Appeals, which has jurisdiction over Hidalgo County, applied them in 2006 to hold that the lower court “had no authority to invade the legislative functions” of the City of Port Isabell “to the extent it sought to enjoin the future passage of annexation ordinances.”  City of Port Isabell v. Pinnell, 207 S.W.3d 394, 417-19 (Tex. App.–Corpus Christi 2006, no pet.).

The district court should let the injunction expire after the hearing Monday; if not, there will be solid grounds for an appeal so that the City of Hidalgo can get on with its business.

Update (more background): see this May 2012 story about how then-HIdalgo Police Chief Rosser effectively ended his career by stating publicly that Rudy Franz was the real power-broker in the city and that the council had denied vehicle permits that year to protect Franz’s business, despite the positive recommendation of Rosser that the companies met permit requirements.

White House Nominates Two to FEC

Friday President Obama announced two nominations to the FEC: Democrat Ann Ravel of California’s Fair Political Practices Commission, and Republican Lee Goodman, a campaign finance lawyer with the firm LeClair Ryan. Goodman is slated to replace Republican Donald McGahn, who has been a vigorous defender of free speech in his post as Commissioner (to the great consternation of the so-called “reform” community).  McGahn said in a statement: “As many well know, I have long desired to leave, but committed to stay to prevent the FEC from further trampling on our First Amendment and due process Rights.”

The Center for Competitive Politics issued a statement here.

Gov Perry Vetoes SB 722 Relating to Interpreters At the Polls

The Gov also vetoed SB 722, which would have allowed the authority conducting an election to select the interpreter who would assist a voter. An excerpt from Perry’s statement:

Ensuring the integrity of our state’s election process is a key component of providing a system of fair, open and honest elections. Under current law, if a voter cannot communicate with poll workers in a common language, the voter is entitled to use an interpreter of the voter’s choice who is a registered voter in that county. Often, this is a family member or other person in whom the voter personally has confidence.

SB 722 would allow the authority conducting the election to select the interpreter, thus subjecting the voter to someone with whom they are not familiar. While an interpreter selected by the voter could not be the voter’s employer, agent of the employer or agent of the voter’s labor union, there would be no such bar on interpreters appointed by the entity conducting the election. In an election where the entity is an employer of many voters, such as a school bond election, this could lead to the perception of undue influence, as an administrator or other person with authority over likely voters is allowed to be present at the polls.

Update: Reaction from supporters of the bill, who see things differently (via Houston Chronicle’s Texas Politics blog).