Updated location for the hearing discussed in the previous post:
Wednesday, June 13 at 3:30 p.m.
133rd Dist. Ct., Harris County Courthouse (11th Floor)
Houston, TX 77002
Updated location for the hearing discussed in the previous post:
Wednesday, June 13 at 3:30 p.m.
133rd Dist. Ct., Harris County Courthouse (11th Floor)
Houston, TX 77002
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.
Ct. at Law No. 2 133rd District Courtroom ( Fifth Eleventh Floor)
Houston, TX 77002
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.
The Texas Supreme Court today issued a decision (with no dissenters) ordering the City of Houston to place on November’s ballot the question whether the city’s recently-enacted “Equal Rights Ordinance” shall be repealed. Mayor Parker and the City Attorney’s office have been arguing that the petition was insufficient for various reasons (some of which I have written about before), and Council had refused to honor the petition claiming there were not enough signatures. However, the City Secretary had initially “certified” that the petition contained a sufficient number of valid signatures. The wrinkle was that the City Attorney had conducted his own review, overlapping with the Secretary’s, concluded the petition was insufficient, and the Secretary’s report to Council referred (but did not adopt) the City Attorney’s contrary finding.
The linchpin of the decision is the fact that the Charter vests the City Secretary alone with the duty to certify whether a petition contains a sufficient number of valid signatures. The Supreme Court’s analysis is pretty simple: because the Charter vests the Secretary with certification responsibility, and the Secretary’s report stated that she had certified a sufficient number of signatures, the Council’s duty to act (repealing the ordinance or putting it to a public vote) immediately kicked in. The Court conditionally granted a writ of mandamus ordering the Council to either repeal the ordinance itself or put it to a vote on the November 2015 ballot, which are the only two options available under the Charter once a sufficient petition has been certified.
This blog will cover this case going forward. If the City wants to challenge the validity of the petition, the Supreme Court states that the City has the duty to seek affirmative relief stopping the election process. However, this points up another thorny issue as to when it is appropriate for a court to enjoin an election process that has already begun. I suspect Mayor Parker will want to file an immediate original petition in district court.
The decision will be warmly received by petition groups across the State. Municipalities commonly throw up objections to petitions, claiming–often disingenuously–that signatures are invalid for various reasons. This decision will solve that problem, at least in cases where the official vested with certification duty (like the Secretary here) certifies the petition. Most charter petition procedures are written like Houston’s, where the Council’s duty to act becomes ministerial upon certification. However, if the official with certification authority acts like the City Attorney’s office did here, petitioners will still be required to go to court first.
Chronicle reporter Teddy Schleifer has an update on the First Amendment challenge NLF filed in November against the blackout period on fundraising for city offices in Houston (candidates cannot solicit or accept political contributions until February of the year of the election). A ruling on Gordon’s request for a preliminary injunction–which would permit him to fundraise immediately–is expected any day. An excerpt:
Gordon and his attorney, campaign finance lawyer Jerad Najvar, sharply disagree, charging that any campaign is feeble and futile until the candidate has the money to execute it.
“A candidate may decide that it would be counterproductive to make sporadic statements via social media before he has amassed enough resources to properly roll out a campaign,” Najvar said in court papers. “This is the kind of tactical decisions that candidates can make with their advisers, without the need for spitballing by government lawyers.”
The current blackout period, they say, is merely a “paternalistic” way for the powerful to insulate themselves from challengers and does little to prevent quid-pro-quo corruption by city officials. In Gordon’s eyes, a contribution is political expression, and Gordon has a constitutional right to serve as the vehicle for his donors’ opinions.
It appears this case will be around for a while, and I’ll be writing about it occasionally. Let me preface this post with an observation. I don’t appreciate the way the referendum petition organizers have presented this issue (the ERO ordinance) and their objections to it. I think there is a compelling case against such ordinances that can and must be made on traditional liberty and economic freedom grounds that does not require anyone to demean homosexuals or make the incendiary statements some of the organizers have. The kinds of arguments they have made against it not only miss the compelling point, but they are counterproductive and hurtful to a lot of people. More on all that later.
I just returned from watching the hearing. A few key developments:
1. The plaintiffs withdrew their request for a temporary injunction, and agreed to set trial for January 19, 2015. This development apparently arose after it was clear the court did not see any immediacy to justify an emergency injunction. There was no immediacy because (1) the City stipulated that it would suspend the ordinance until trial on the merits, and (2) apparently the plaintiffs did not dispute the City’s contention (made in its response) that if plaintiffs’ petition is indeed valid and the City refuses to repeal the ordinance, the referendum would be placed on the November 2015 ballot, not November 2014. The City may be right on that point, but there is room to argue the statute is ambiguous.
2. Andy Taylor, the plaintiffs’ attorney, raised the argument I posted on this blog this week that it is a violation of the First Amendment to require a petition circulator to be a registered Houston voter. I think this argument goes another step. If it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction, it’s unconstitutional to require the circulator to sign the petition that she is only eligible to sign if she is a registered voter. In other words, even for those circulators who are registered Houston voters, it is improper to reject pages submitted by that circulator on the ground that she did not sign the petition as a signatory (as opposed to signing as a circulator). The city rejected some pages because the circulator was not a registered Houston voter, but it rejected many more because (it says) the circulator did not sign the petition as a signatory. I think Buckley means the City may not throw out signatures on either of those grounds, not just the first.
3. The Fourteenth Court of Appeals apparently has denied plaintiffs’ request for mandamus on the grounds that the plaintiffs have an adequate remedy at law in the district court. The case page for that is here, but the court of appeals hasn’t posted the order yet.
4. The City showed up with 14 lawyers on its pleadings and probably half were in the courtroom. They threatened in writing and orally that they would seek attorneys fees from the plaintiffs. I think the plaintiffs will prevail, and the certainly should prevail on the constitutional argument under Buckley. I think they should amend their petition to state this constitutional claim under 42 USC 1983 (federal civil rights action), and seek attorneys’ fees from the City under 42 USC 1988. See, e.g., Pruett v. Harris County Bail Bond Bd., 356 S.W.3d 103 (Tex. App.–Houston [1st Dist.] 2011) (illustrating fee award in state court for prevailing plaintiff under 42 U.S.C. 1988). The City’s legal team came in with an air of unnecessary pomposity, and their response reads the same way. Fourteen lawyers from premier law firms is clearly overkill for the taxpayer, and if the plaintiffs establish that the City is paying fourteen lawyers to defend a charter provision that is clearly unconstitutional under an unequivocal Supreme Court case that has been on the books since 1999 (and followed by many other cases), the City should have to pay for it. Time will tell.
A few days ago I posted my analysis concluding that the City of Houston’s requirement that referendum petition circulators sign the petition themselves is likely unenforceable, because it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction. See Buckley v. Am. Const’l Law Found., 525 U.S. 182 (1999). Charles Kuffner points out that in Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013), the Fifth Circuit upheld the Texas statute requiring “volunteer deputy registrars” (“VDRs”) to be Texas residents (and appointed as VDRs under a perfunctory statutory process), and wonders what gives. How are there different results in these similar circumstances?
It’s a smart point. First, there is a distinction between a residency requirement and a requirement to be a registered voter. Buckley has some discussion about how the registered-voter requirement may be more of a constitutional burden than a bare residency requirement, and in Voting for America the Fifth Circuit began by pointing out that a state residency requirement for petition circulators had been upheld by the Eighth Circuit. See 732 F.3d at 389 (citing Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001)). However, the plaintiffs challenging the voter registrar residency requirement argued that Buckley’s rule should apply to strike down the residency requirement as applied to VDRs who transport completed voter registration applications to the elections officials. The Fifth Circuit squarely addressed the argument, but rejected it:
At oral argument, [the voter registration organizations] urged the court to draw a close parallel to the Supreme Court’s reasoning in Meyer, 486 U.S. at 422, 108 S.Ct. 1886, finding that the circulation of initiative petitions was a matter involving the core political speech rights of the circulators under the First Amendment. The analogy is improper. The circulation and submission of an initiative petition is closely intertwined with the underlying political ideas put forth by the petition. The petition itself is the protected speech. Moreover, the very nature of a petition process requires association between the third-party circulator and the individuals agreeing to sign. In the voter registration context, the underlying expressive conduct (encouraging democratic participation and voting) does not implicate a third-party’s right to process the application. Voter registration applications are individual, not associational, and may be successfully submitted without the aid of another. Here, the actual expression is not being limited.
Voting for America, Inc., 732 F.3d at 390 (quoting the previous motions panel in the same case that had granted a stay of the district court’s injunction, at Andrade II, 488 Fed.Appx. at 898 n. 13 (emphasis added)). The Fifth Circuit continued:
Buckley and Meyer are further distinguishable because those cases involved laws that specifically regulated the process of advocacy itself, dictating who could speak (only unpaid circulators and registered voters) or how to go about speaking (with name badges and subsequent detailed reports). Thus, the Colorado law had “the inevitable effect of reducing the total quantum of speech,” limiting “the number of voices who will convey [Plaintiffs’] message and the hours they can speak and, therefore, limit[ing] the size of the audience they can reach.” Meyer, 486 U.S. at 422–23, 108 S.Ct. at 1892.
Id. at 390.
I think there are some distinctions between initiative/referendum petitions and voter registration drives for some purposes, but the court’s rationale in Voting for America is not terribly persuasive. One can argue that persuading folks to vote is just as important to one’s cause or message as persuading a voter to sign a petition. So it seems to raise the same speech concerns. If the government’s concern is making sure VDRs are amenable to legal service, then the state could do that by requiring them to designate an agent for service, providing their residence address, etc. just as the Buckley court noted in the petition context. Thus, to my mind, to the extent there is an inconsistency in these two lines of cases, it is Voting for America that gets it wrong. And there are other cases holding residency requirements for petition circulators are unconstitutional burdens on First Amendment rights. See, e.g., Libertarian Party v. Judd, 718 F.3d 308 (4th Cir. 2013). That does not foreclose the distinction the Fifth Circuit draws, however, in the voter registration context.
I note that the plaintiffs on Monday filed an original petition for writ of mandamus (posted by Big Jolly) in the Fourteenth Court of Appeals, which does not challenge the constitutionality of the requirement for circulators to sign the petition. It appears to raise the same arguments as the state petition. The plaintiffs might have wanted to file in both courts simultaneously to ensure that at least one court has jurisdiction. This is not an easy question–depending on how the courts view the factual posture of the situation, the court of appeals may be the only court with jurisdiction to issue relief. If that’s the case, then you can’t wait for the district court to decide that and encourage you to file in the court of appeals, because by then the clock will have expired. So the plaintiffs are smart to file simultaneously in both courts. But I think challenging the circulator requirements should be the focus of this case, because Buckley is clear. I think the state district court could declare the law on that issue, and issue an order requiring the city secretary (or the city, through whomever has the delegaged authority) to tell the City Council whether the petition requirements are met in the absence of the requirement that circulators sign the petition. The court of appeals may have the jurisdiction to issue the same opinion and order in the mandamus proceeding.
*This post was updated to clarify that Voting for America upheld a bare residency requirement, not a requirement to be a registered voter.
The Houston City Attorney has argued that thousands of signatures on the referendum petition submitted to repeal the Equal Rights Ordinance are invalid under the Charter for several alleged defects. While it is unclear whether the City Attorney even has the authority to override the Secretary’s determination that the petition was valid (the primary issue raised at present in the plaintiffs’ emergency lawsuit to validate the petition), this post addresses another issue that may prove determinative, even if the City Attorney establishes that he has authority to review the petition himself.
The City Attorney’s memo leaves much to be desired in terms of clarity. For example, the first category of defective pages states that “Legal was not able to confirm that the circulator also validly signed the petition.” This purported defect, according to the City Attorney, affected 347 pages with 2,694 signatures. It is not immediately clear, at least from the memo itself, whether this means the signatures within this category are allegedly invalid because the City Attorney could not verify whether the circulator signed at all, or that the circulator’s signature was not “valid” because though she signed, she was not a registered Houston voter.
The Houston Chronicle reported that:
Most pages were thrown out because those who collected names for the petition were not registered Houston voters or did not sign the petition themselves. Those errors invalidated more than 2,000 pages with about 11,300 signatures
While we lack clarity as to exact numbers, it appears that given a blatant constitutional infirmity with part of the circulator requirement, and the structure of the language of the relevant charter provision, the requirement that the circulator be a petition signatory herself may be unenforceable. If so, at least those 2,694 signatures in the City Attorney’s first category, and possibly many more, would be effective.
Under the Houston City Charter, only “qualified voters” of the City may sign a recall petition, Charter art. VIIa, § 2, and in this context, the Texas Election Code defines “qualified voter” as “registered voter.” § 277.0021. This same requirement applies to the referendum petition filed by the opponents of the City’s Equal Rights Ordinance, because referendum petitions must be “signed and verified in the manner and form” required for recall petitions. Charter art. VIIb, §§ 2, 3. So, one must be a registered Houston voter to sign a referendum petition.
The signatures also must be verified in one of two ways. The first option is for each petition signer to sign the petition in the presence of a licensed notary or other “officer authorized by law to take acknowledgments and proof of deeds.” Charter art. VIIa, § 3; art. IX, § 3. This is plainly burdensome on the petition process; petition gatherers do not typically travel door to door with a notary. Alternatively, a petition circulator may complete an affidavit swearing that all of the signatures on a petition page were made in his presence on the date the signature indicates. Charter art. VIIa, § 3. The circulator, however, must be one of the signers of the petition. Id. Since only registered Houston voters may sign a petition, these provisions together mean that the Houston Charter requires that petition circulators also be registered Houston voters.
Here we have the blatant constitutional infirmity: the requirement that the circulator be a registered voter of the jurisdiction has been unconstitutional since the Supreme Court decided Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999).
Buckley held that circulation of an initiative petition constitutes core political speech, and that the registered-voter requirement as applied to petition circulators reduced the total quantity of speech by reducing the pool of potential circulators. 525 U.S. at 195-97. This burden was not justified, Buckley held, because the government could achieve its stated interest (in ensuring that circulators are amenable to legal process in order to police lawbreaking) by requiring that they simply file a statement of residence rather than actually being a registered voter. Id. at 197.
This holding has been applied in many other cases to strike down registered-voter requirements for initiative circulators, and has been extended to strike the same requirement as applied to petitions for a candidate to get on the ballot. This year, Congressman John Conyers successfully advanced this argument to force Michigan election officials to place him on the primary ballot after initially being declared ineligible because some of his circulators turned out to have not been registered voters. Moore v. Johnson, 14-cv-11903 (E.D. Mich. May 23, 2014).
[Interestingly, Gov. Rick Perry sued Virginia officials in 2012 seeking to be placed on the presidential primary ballot, arguing that the Virginia law requiring circulators to be registered voters was unconstitutional. See Perry v. Judd, 840 F. Supp. 2d 945 (E.D. Va. 2012), aff’d 471 Fed. App’x. 219 (4th Cir. 2012). That case was rejected on standing grounds; the court held that Perry was asking it to assume that he would have gathered enough signatures if he hadn’t been hindered by the requirement. The Perry case was distinguished by Moore v. Johnson.]
It is unclear how many petition pages the City Attorney has called invalid due to the determination that the circulator was not a registered Houston voter. However, it is clear a great number of pages were invalidated for an alleged inability to determine that the circulator had “validly” signed the petition himself. To the extent that any circulator has been deemed to have not “validly” signed the petition because the circulator was not a Houston registered voter, such determination is unconstitutional under Buckley, and those pages would be reinstated. But the issue may be even broader than that. The text of the circulator statement–provided in the charter itself (art. VIIa, sec. 3)–does not make any distinction between circulators who are registered Houston voters and those who are not. All circulators are required to affirm they signed the petition. If it’s unconstitutional to require a circulator to be a registered Houston voter, it’s unconstitutional to require circulators to affirm that they signed a petition which they are only eligible to sign if they are a Houston voter. The circulator statement may be facially invalid, unenforceable to the extent it requires any circulator to affirm they signed the petition.
A hearing is scheduled for Aug. 15. As of now, the plaintiffs’ petition alleges that the City Secretary has already validated the petition as sufficient and that interference from the City Attorney’s office does not excuse the city from following through with the consequences of certification. The petition doesn’t specifically challenge the substantive validity of the circulator requirement. But I suspect it will come up at the hearing.
The court has now posted online the response filed by Judge Emmett in opposition to the Early to Rise initiative proponents’ petition for mandamus. The petitioners’ reply is also available.
Here is the Early to Rise initiative proponents’ original petition for mandamus, along with the court’s letter requesting a response from the County by September 3. The case is styled In re Jonathan Day, et al., No. 14-13-00748-CV, in the 14th Court of Appeals in Houston.
County Judge Ed Emmett announced today the petition did not meet the legal requirements and would not be placed on the ballot.
There is talk of an imminent lawsuit, but it doesn’t appear anything has been filed today. As promised, Early to Rise has filed suit to force the issue onto the ballot, requesting a decision by Sept 16.