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.