See Chronicle story here.
Here’s Charles Kuffner’s post, with related links, about the Early to Rise ballot initiative to raise taxes through the Harris County Department of Education to fund an education program. He tees up a few potential issues for litigation in this controversial proposal regarding the procedures for getting an initiative on the ballot this November:
There’s already a dispute over how quickly the signatures must be certified. Calaway says Tax Assessor Mike Sullivan has five days to randomly verify a subsample of the signatures. Sullivan and County Judge Ed Emmett say he has until the deadline for putting items on the ballot, which is August 26. That’s also the deadline for the Attorney General to render an opinion that would be relevant and timely. At the behest of Judge Emmett, County Attorney Vince Ryan has submitted a request for an AG opinion that asks “whether the Harris County Judge is authorized to deny a petition to order an election to levy and collect an equalization tax for the Harris County Department of Education and related questions”. (Sen. Dan Patrick has also requested an opinion.) You can hear all the attorneys limbering up in the background as they prepare for the inevitable lawsuit.
I have been informed by the state court clerk that there was no hearing yesterday regarding the temporary restraining order entered previously against two Hidalgo councilmen, as the case was removed to federal court. (See here: Notice of Removal Franz v Ramirez.) Initial hearing set for Oct. 9 before Judge Crane.
Unless some other order has been entered that I’m missing, the TRO has expired and the two councilmembers are no longer prohibited from voting.
See WSJ here ($) (Campaign Finance Board’s Staff Seeks to Deny Liu Public Funds, Aug. 2, 2013). For anybody who thinks public financing of election campaigns (through matching funds or otherwise) sounds like a good idea, this story should illustrate why the public financing “treatment” will inevitably be much, much worse than any perceived “disease” of money in politics.
Appropriately, here it is a Democratic candidate who may be denied funds, and unions supporting his campaign are criticizing the power of the campaign finance bureaucracy.
ICYMI (as I did): This Monitor editorial from July 30 is right on point:
Franz claims that Ramirez and Sanchez had a vendetta when the duo voted last month to amend a Hidalgo ordinance that allows a third tow truck company — one that isn’t owned by Franz or his family — into the rotation for non-consent towing for the Hidalgo Police Department.
Regardless their motives, Ramirez and Sanchez should be congratulated for such action. To allow an elected member of city government to control a potentially lucrative monopoly on city business would be an abrogation of duty for any council.
The paper goes on to say Franz should withdraw his injunction request and stop holding the city hostage. Assuming Franz doesn’t have a sudden change of heart, the court should withdraw the injunction anyway, because it is totally illegal.
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.
[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.
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.
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.
Franz’s “Emergency Motion” is here: 071213 Rudy Franz Defamation Lawsuit TRO and Affidavit
Court Order here: 072213 Hidalgo Rudy Franz Temporary Restraining Order