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SOS advisory lawsuit continues

From Day Two of testimony:

Still the only voter ID anyone should need

Despite a glaring error in the original data that questioned the citizenship status of tens of thousands of registered voters, a state elections official defended the investigation in federal court Wednesday, saying some potential illegal activity has been uncovered and blaming several county officials for problems that have arisen.

Keith Ingram, head of the Elections Division at the Texas secretary of state’s office, said 43 people on the list of suspect voters contacted his agency and asked to have their voter registration canceled because they were not U.S. citizens.

“I believe some have voted,” he told U.S. District Judge Fred Biery during a hearing into efforts by civil rights groups and an affected voter to halt the investigation as an error-riddled effort that improperly singles out naturalized citizens.

An additional 37 people asked to be removed from the state list of registered voters but gave no reason for the request, Ingram said.

[…]

Under questioning by opposing lawyer Chad Dunn, Ingram admitted that his agency’s original list of 95,000 suspect voters included about 20,000 people who had shown proof of citizenship to the Department of Public Safety.

Ingram blamed the mistake on the DPS, saying officials originally indicated that the information was not reliable because it was self-reported by the 20,000 people, only to later say that each registered voter had provided the DPS with proof of citizenship.

Asked by Dunn if his agency had publicly acknowledged that “the 95,000 figure is wrong and ought to be reduced,” Ingram said it had not.

Ingram also blamed officials in several counties for jumping the gun by immediately sending investigation letters demanding proof of citizenship to registered voters on the suspect list, saying they failed to heed warnings from his office that the names needed to be investigated first.

Ingram acknowledged that state officials were aware that the list included an unknown number of naturalized U.S. citizens because of shortcomings in citizenship data provided by the DPS.

See here for more from Day One of the trial, in which we first observed the state strategy of blaming the local county administrators for this fine mess we’re in. Sure seems to me that a lot of this could have been avoided if 1) the SOS had been more clear in its advisory to counties that there were likely a lot of false positives, 2) SOS wannabe David Whitley hadn’t stoked the fire by immediately referring the whole known-to-be-deeply-flawed list to the Attorney General, and 3) the SOS had at least backed off its initial and highly problematic “95,000 suspect voters” claim. The fact that we’re here in federal court tells you all you need to know about that.

In the meantime, there was a bit of drama in that courtroom.

A federal judge weighing whether to block Texas’ effort to investigate the citizenship of tens of thousands of people on its voter rolls said he wants to hear from a secretary of state employee who abruptly resigned from the office.

Betsy Schonhoff ran a nearly yearlong effort to match the state’s voter lists with databases at the Department of Public Safety for people who had obtained driver’s licenses when they weren’t citizens.

But she has not been served a subpoena, and there is evidence that she has been “evading service for five days,” said Chad Dunn, a lawyer for Julie Hilberg, a naturalized citizen whom the investigation flagged for review.

U.S. District Judge Fred Biery made it clear he wanted to hear Schonhoff’s testimony in his San Antonio court, saying he knows U.S. marshals “who are very good at finding people.”

“She’s going to be here,” he said.

Late Wednesday, the Texas Attorney General’s office pushed back on the plaintiff’s characterization of efforts to reach Schonhoff.

“It’s our office’s understanding that, despite not having been served, the former employee of the Secretary of State’s office is willing to voluntarily appear at the next scheduled hearing and will do so,” Marc Rylander, a spokesman for the office said in a statement.

That next hearing will be today, and I for one would also like to hear what Ms. Schonhoff has to say.

Later in that first story, we learn that the lawsuit filed in Corpus Christi by MALDEF on behalf of seven naturalized citizens has been consolidated with this one. The third lawsuit, filed in Galveston by a coalition of civil rights groups who had initially demanded that the advisory be rescinded, will also have a hearing today following a phone conference on Wednesday to address a state request to fold this into the current suit as well. That’s pretty common – there were many lawsuits relating to the 2011/2013 redistricting that were eventually all joined into one action – but the plaintiffs may oppose the motion and there may be reasons to keep them separate. We shall see. In the meantime, MALDEF has already come out swinging.

Lawyers for two Texas naturalized citizens who landed on the state’s list of “potential noncitizen voters” are re-urging a federal court to block state and county attempts to remove people from voter rolls before their clients lose their right to vote next week.

In a Thursday filing, Nina Perales of the Mexican American Legal Defense and Education Fund told U.S. District Judge Fred Biery in San Antonio that the “situation is urgent and requires the Court’s immediate intervention.”

“If they do not comply with the purge letter’s demand and provide proof of U.S. citizenship they will lose their right to vote on March 2, 2019,” the filing says.

The two clients, identified as Jane Doe #1 and John Doe #1, received letters in late January from Smith County, where they are registered to vote, asking them to verify their citizenship within 30 days or be taken off the voter rolls. Jane Doe #1 is a college student who has an internship in Austin through the end of May and can’t return home to procure the documents, according to the filing.

John Doe #1 said “he does not want to be treated like a second class citizen” simply because he is naturalized and “will not go through Smith County’s additional steps and requirements” because he has already proven his citizenship, the filing said.

You can see that brief here. I’m hopeful that the plaintiffs can get a favorable ruling, though whether it would stand up on appeal is a more fraught question. I’ll be keeping an eye on this as always.

First day in court for SOS advisory lawsuits

First day for the first lawsuit, one of three filed against that bogus SOS advisory.

Still the only voter ID anyone should need

A federal judge in San Antonio will hear arguments Tuesday in one of three legal challenges to the state’s initiative to purge tens of thousands of Texans from voter rolls who officials claim are not U.S. citizens.

U.S. District Judge Fred Biery will hear a request by a group headed by the League of United Latin American Citizens seeking a court order to block the plan. LULAC and others say many of the people targeted by the rollout were wrongly placed on the purge lists.

The state, in court records, defends the initiative as necessary. The hearing could last much of Tuesday, and possibly into Wednesday, but the judge is not expected to issue an immediate ruling.

[…]

LULAC’s suit said the initiative amounts to a discriminatory “witch hunt” targeting mostly Hispanic voters, in violation of the federal Voting Rights Act. The Campaign Legal Center joined the suit, adding constitutional concerns. The groups also filed a request to turn it into a class-action lawsuit for others who might be wronged.

The Mexican American Legal Defense and Educational Fund later filed a separate suit in Corpus Christi, which contends that state officials singled out naturalized citizens because they were born outside the country. A coalition of other groups — MOVE Texas Civic Fund, Jolt Initiative, League of Women Voters of Texas and the NAACP of Texas — filed a third lawsuit in Galveston to prevent the purge, saying Texas officials are treating those who have been naturalized as second-class citizens. Both lawsuits are pending.

See here for more on the LULAC lawsuit, and here and here for the other lawsuits. The Trib filed a story later in the day with more details about what happened so far.

Facing three federal lawsuits challenging the legality of Texas’ efforts to review the citizenship of 98,000 registered voters, a top lawyer for the state opened up his defense in one of the cases by claiming the state had not made any mistakes or imposed unconstitutional burdens on certain voters in rolling out the review. Actually, he argued, it was certain county election officials who had acted “contrary to state law.”

In a federal courthouse Tuesday, Assistant Attorney General Chris Hilton repeatedly questioned why two local election officials — Kerr County Tax Assessor Bob Reeves and Blanco County Tax Assessor Kristen Spies — immediately sent voters who were flagged by the state letters demanding that they prove their citizenship in order to remain on the voter rolls. Hilton said counties should have first reviewed their lists to determine whether they had reason to believe a voter was ineligible.

The two voter registrars told the court their staff was simply following the state’s instructions — laid out in an official election advisory — on how to determine if those individuals were in fact U.S. citizens and therefore eligible to vote. In her reading of the state’s advisory, in which state election officials repeatedly noted they had worked to provide counties with “actionable information,” Spies said she believed that meant “that we should work the list.” She was echoed by Reeves, who indicated the state’s decision to flag those voters gave them enough reason to move forward with those notices.

[…]

Hilton contended the secretary of state had merely told counties they had the choice to investigate the voters or take no action — not immediately send out notices.

“Unfortunately, Mr. Reeves, I think your staff has acted contrary to state law,” Hilton told Reeves, who oversees the county’s voter rolls and whose staff sent out 68 proof-of-citizenship letters the day the county received its list of voters from the state.

[…]

Chad Dunn, one of Hilberg’s attorneys, followed Hilton’s questioning by projecting a copy of the secretary of state’s advisory onto a large screen in the courtroom and reading from the part of the document that indicated that state officials “believe” the data they provided “can be acted on in nearly all circumstances.”

“Is a reasonable reading of that sentence that this list of voters is ready to be sent notices without any further steps?” Dunn asked.

“Based on this, yes,” Reeves responded.

Dunn then asked what effect a combination of that advisory and the statements made by top Republican officials about supposed voter fraud had on Reeves’ understanding of whether he needed to send those notices.

“To the best of my knowledge, that’s why my office sent that out,” Reeves said.

Classy move by the state, blaming the local officials for the SOS’s actions. The case continues today, and we probably won’t get an immediate ruling. And whatever happens here, those other lawsuits are out there as well.

A lawsuit against bail reform

That would be a No from me.

A Harris County judge has sided with lawyers for the Harris County Sheriff’s Office and a slate of new Democratic judges vying to loosen misdemeanor bail rules this weekend, rather than grant a request of three bail bond companies that would have delayed the start of the proposed revisions .

The companies argued Thursday that the court-ordered bail reform — believed to be a key step in a lengthy legal fight over the pre-trial detention of poor, low-level offenders — would jeopardize their Houston bail bonds business.

“They won’t get to write as many bail bonds as they did before and they won’t make as much money as they did before,” said Allan Van Fleet, a lawyer representing the judges.

[…]

The reform, the companies argue, violates state law because it would guarantee many defendants a specific type of bail without first providing them individual hearings before a judge, and because it would require the sheriff to reject some bonds that otherwise would be valid under state law, among other reasons.

“We have a constitutional right to make our living by bail bonds and if they want to amend the way the things are, they can do that but it still has to be by state law,” said Kevin Pennell, who represented Set ‘Em Free Bail Bonds, A Better Bail Bond and Advantage Bail Bonds in the county suit filed Thursday.

Eightieth Civil Court Judge Larry Weiman countered the argument before he denied the order.

“Doesn’t the court have to balance the constitutional right of the defendants, those who are arrested and charged with a crime,” Weiman asked, before resetting the temporary injunction hearing to March 11.

I’ll bet tobacco farmers used to make a pretty good living, too. I don’t know about you, but I’m not sorry for the societal and legal changes that led to the decline of that profession. There will still be a need for bail bonds going forward. There just won’t be as much of a need for them. That is as it should be. A hearing to review the proposed settlement in the original lawsuit will be on March 8. We’ll see where we stand then.

Texas Central gets an adverse court ruling

Hard to say how much effect this will have.

The planned high-speed rail project from Houston to Dallas hit a big obstacle last week in rural Leon County when a judge there declared the project’s backers did not have authority to force landowners to sell or provide access to properties.

Opponents of the rail project on Monday cheered the ruling as a death knell for the line — albeit one that will take years to savor and finalize.

“This project cannot be finished without eminent domain and the project is completely off track,” said Blake Beckham, the Dallas lawyer who has represented opponents of the Texas Central Railway project.

Company officials said Monday many of the opponents’ claims and the significance of the ruling were exaggerated.

“Texas Central is appealing the Leon County judge’s decision and, meanwhile, it is moving forward on all aspects of the train project,” the company said in a statement.

The heart of many of the legal fights, and Monday’s decision, center on whether the company is, in fact, a railroad. Backers since 2014 have insisted the project — using Japanese bullet trains to connect Houston and Dallas via 90-minute trips as 220 mph — is a railroad and entitled to access to property to conduct surveys and acquire property via eminent domain.

“Texas has long allowed survey access by railroads like Texas Central, pipelines, electrical lines and other industries that provide for a public good and a strong economy,” the company said.

Opponents have insisted that since the company does not operate as a railroad, owns no trains and has not laid a single piece of track. it is not eligible for the access.

“Simply self-declaring that you are a railroad … does not make it so,” said Kyle Workman, one of the founders of Texans Against High-Speed Rail.

Judge Deborah Evans of the 87th District Court agreed, issuing an order Friday that found Texas Central and another company it formed “are not a railroad or interurban electric company.”

[…]

The ruling covers Freestone, Leon, and Limestone counties where the line is planned.

In previous court cases related to land access in Harris County and Ellis County, the company has been denied access or dropped its request in the face of mounting questions from the court or opponents.

“They have lost every single legal interaction,” Beckham said.

Texas Central disputed that in a statement.

“A judge in Ellis County said trials should be held on survey cases for three local property owners,” the company said. “The judge did not rule on the merits of those cases, instead only saying they should proceed to trial.”

See here and here for some background. We’re still very early in the legal process, with some procedural rulings but nothing decided on the merits yet. It will be years before the courts sort it all out, and nothing will be settled until the Supreme Court weighs in. In the meantime, there will be further attempts by members of the Lege to put roadblocks in Texas Central’s way. KUHF has more.

Whitley’s “apology”

He can do a lot better than this. He should do a lot better than this if he wants to get confirmed.

Still the only voter ID anyone should need

Facing an uncertain path to confirmation after ordering a deeply flawed voter citizenship review that seemingly focused on naturalized citizens, Texas Secretary of State David Whitley is apologizing to state lawmakers for the way his office bungled its rollout of the review — but he is still holding firm behind the overall effort.

In a letter sent to state lawmakers late Wednesday, Whitley largely defended the review efforts as a legally sound exercise, and he did not admit that his office had erred when it mistakenly threw into question the eligibility of tens of thousands of U.S. citizens or when it sent counties lists of voters it knew very likely included naturalized citizens.

Instead, Whitley vaguely admitted there were some shortcomings to the data his office used to flag almost 100,000 registered voters for citizenship reviews and noted his office should have devoted more time to “additional communication” with local and state officials to “further eliminate anyone from our original list who is, in fact, eligible to vote.”

“After close consultation with the Texas Department of Public Safety (DPS), the counties, and members of the Texas Legislature, I have discovered that additional refining of the data my office provides to county voter registrars, both in substance and in timing, is necessary to ensure a more accurate and efficient list maintenance process,” Whitley wrote in the letter obtained by The Texas Tribune.

[…]

In his letter to lawmakers, Whitley said his announcement “could have been communicated better” by including “more substance” from the advisory his office sent out to counties detailing the release of the data and “by emphasizing my goal to ensure that no qualified voters are removed from the rolls.”

“I recognize this caused some confusion about our intentions, which were at all times aimed at maintaining the accuracy and integrity of the voter rolls,” Whitley wrote. “To the extent my actions missed that mark, I apologize.”

You can click over and see the letter if you want – I see no real value in that, given the clear lack of substance. Nothing about this should inspire any confidence in David Whitley’s ability to do the job. At the very least, we deserve an explanation of how this shoddy list was constructed, why there were no controls in place to properly vet it, why it was referred to the AG’s office despite these obvious shortcomings, and what is being done to prevent anything like this from happening again. Oh, and an apology to the people who have been wrongly accused. Come back after that and then we can talk.

In the meantime:

The confusion and chaos caused by Texas’ bombastic voter fraud allegations has manifested in almost every element of the fallout.

The latest example is a voter purge notice sent out by one Texas county that lacked basic contact information or even an official letterhead.

The notice left one citizen mistakenly flagged by the stake feeling “very worried” and a “sense of fear,” according to court documents filed Monday.

[…]

In Wood County, those notices went out with the space left blank where the phone number of the local elections office should have been. The notices also lacked the response form the recipients were asked to use to reply, and there was no letterhead on the notices.

A woman in the court docs known as “Jane Doe #2” — who received the notice despite being naturalized in March 2018 and voting legally in that year — recounted in a declaration her frustration and her “sense of fear,” given that she could not tell if the letter was fake or real.

“I questioned whether I had done something wrong, or if somebody was trying to prank me.” Jane Doe #2 wrote in the declaration. “I did not know where to go or who to call to receive answers to my questions.”

She first tried to call the county clerk’s office, where the staff member who answered her call said the letter might be fake and that the person whose name was on the notice didn’t work for the county clerk, according to Jane Doe #2’s statement. She finally got in touch with the county elections administrator, Lisa Wise, who explained that the notices had been sent out without the contact information by mistake. Jane Doe #2 eventually traveled to meet Wise in person and showed Wise a copy of her naturalization certificate.

This was part of a filing by MALDEF in their lawsuit against the SOS. What would David Whitley say to Jane Doe? What he has said so far is completely inadequate.

Time again to talk judicial elections

Here we go again, like it or not.

In the wake of a midterm election that swept some 20 Republican appellate judges out of office, Texas Supreme Court Chief Justice Nathan Hecht called on the Texas Legislature to reform a system he called “among the very worst methods of judicial selection.”

“When partisan politics is the driving force and the political climate is as harsh as ours has become, judicial elections make judges more political, and judicial independence is the casualty,” Hecht told both chambers of the Legislature on Wednesday morning in his biennial address, a wide-ranging speech that touched on judicial salaries, technology and bail reform. “Make no mistake: A judicial selection system that continues to sow the political wind will reap the whirlwind.”

In recent history, partisan judicial elections have played well for Texas’ majority party; the state’s two high courts, in which justices run statewide, comprise all Republicans, as they have for two decades. But last year, as turnout surged in urban areas and voters leaned heavily toward the straight-ticket voting option, Democratic judges were swept onto the bench on the coattails of candidates like Beto O’Rourke. All told, Hecht said, in the last election, Texas’ district and appellate courts “lost seven centuries of judicial experience at a single stroke.”

“Qualifications did not drive their election,” Hecht said. “Partisan politics did.”

It wasn’t a new criticism, nor was it the first time Hecht has made such a call. Justices on Texas’ two high courts have been among the most vocal critics of a system that requires justices to run as partisan figures but rule as impartial arbiters, and the state has been challenged in court over the practice. But the call took on new significance after a shattering judicial election for Texas Republicans, who lost control of four major state appeals courts based in Austin, Houston and Dallas. Judges and lawyers who practice before those courts have fretted not just about the startling shift in judicial philosophy, but also the abrupt loss of judicial experience.

Hecht called on lawmakers to consider shifting to a system of merit selection and retention elections — or to at least pass legislative proposals that would increase the qualification requirements for judicial candidates.

You know how I feel about this, so I won’t belabor the point. I don’t doubt that Justice Hecht is sincere But:

1. Republicans have had complete control of Texas government since 2003. That’s eight regular sessions, and however many special sessions, in which they could have addressed this but chose not to.

2. Hecht and former Justice Wallace Jefferson have spoken about this before, but if anyone was talking about it before 2008, when Democrats first started winning judicial races in Harris County, I’m not aware of it.

3. The judges who were voted out may well have been experienced, but that doesn’t mean they’d make better judges than the candidates who replaced them. And the main consideration people had was voting for change. Maybe as part of the party in power, Hecht should given that a little more consideration.

Anyway. Until someone proposes an actual system to replace the one we have, one that takes into account the inherent politics of the process and deals with it in a way that truly enables merit and produces a judiciary that reflects the population it judges, it’s all just noise to me.

(Justice Hecht also had some loud and laudable words in favor of bail reform, which I appreciate. Go read the rest of the story for that.)

Paxton asks for summary judgement to end DACA

Not much coverage of this, and I’m not sure what that means.

Best mugshot ever

Texas Attorney General Ken Paxton on Monday asked a federal judge to strike down Obama-era deportation protections for immigrants whose parents brought them to the United States illegally as children.

In a motion filed in Brownsville federal court, Paxton asked U.S. District Judge Andrew Hanen to follow through on his ruling in August, when Hanen determined that the Obama administration did not have the authority to implement the Deferred Action for Childhood Arrivals program.

At the time, however, Hanen declined to issue an injunction blocking enforcement of DACA.

In Monday’s motion for summary judgment joined by seven other states, Paxton asked the judge to end the program and block the federal government from issuing or renewing any more DACA permits to young immigrants.

Congress, not the president, has the authority to determine federal immigration law, he said.

“Whatever its policy merits, DACA is clearly unlawful, as this court has already held,” Paxton’s motion said. “Underlying the program is a limitless notion of executive power which, if left unchecked, could allow future presidents to dismantle other duly enacted laws. The court must not allow that to occur.”

[…]

If Hanen agrees to issue an order ending DACA, he would be in conflict with federal judges in California and New York who have blocked the Trump administration’s effort to end the program in 2017. DACA remains in force while appeals in both cases proceed.

See here and here for the background. The Statesman was the only news outlet with a story on this, which may mean there’s little chance it will go anywhere or it may mean we’re all so distracted by the eleventy jillion other news stories out there that no one is paying much attention to Paxton’s latest stunt. SCOTUS just declined to take up the Trump administration’s appeal of lower court rulings keeping DACA in place, which you’d think might give pause to even a Paxton-friendly judge. I’m never quite that optimistic. Anyway, I’m noting this for the record so when something happens I’ll be able to refer to this at that time.

(And a day later, he’s petitioning to have abortion and transgender health protections “wiped permanently” from Obamacare. I think he feels emboldened after having survived re-election. But don’t worry, I’m sure he’d use those new powers he wants responsibly.)

Three times a lawsuit

Hat trick!

Still the only voter ID anyone should need

A group of civil and voting rights organizations is suing the state’s chief election officers and local election officials in five counties, claiming Texas’ voter citizenship review efforts are unconstitutional because they intentionally target naturalized citizens and voters of color.

In a lawsuit filed Monday in a Galveston federal court, the MOVE Texas Civic Fund, the Jolt Initiative, the League of Women Voters of Texas and the Texas NAACP allege that the state’s move to flag tens of thousands of voters for review using faulty data violates the equal protection clause of the U.S. Constitution. They claim the effort places an undue burden on the right to vote and treats naturalized citizens differently than those born in the county.

The groups also allege that the state violated the Constitution and the federal Voting Rights Act by acting at least in part with the goal of discriminating against voters of color when it advised counties to verify the citizenship status of the voters it flagged.

The lawsuit against Texas Secretary of State David Whitley, Director of Elections Keith Ingram, and local election officials in Galveston, Blanco, Fayette, Caldwell and Washington counties is the third one filed against state officials since Jan. 25, when the state announced that it was sending counties a list of approximately 95,000 registered voters who told the Texas Department of Safety they were not citizens when they obtained their driver’s licenses or ID cards.

[…]

In their complaint, the plaintiffs — represented by the ACLU of Texas, the national ACLU, the Texas Civil Rights Project, Demos and the Lawyers’ Committee for Civil Rights Under Law — argue that Whitley “declined to include safeguards” in the process that would ensure naturalized citizens weren’t erroneously included on the list.

“The right to vote is a fundamental and foundational right, possessed equally by U.S. born and naturalized citizens,” the complaint reads. “The Secretary of State’s purge treats those who have been naturalized as second-class citizens whose right to vote can be uniquely threatened and burdened solely because at some point in the past, these individuals were not U.S. citizens.”

See here and here for the scoop on the other lawsuits, and here for a copy of the complaint. I had speculated in yesterday’s post about Lawsuit #2 that we could get this one as well, as the groups representing these plaintiffs had had specifically said they would sue if the SOS didn’t back all the way off. Gotta follow through when you say stuff like that, so folks will know you don’t mess around. At this point, we’re waiting to see what the courts will say. In an ideal world, they will force the state to do what these plaintiffs asked in the first place, which is to get their crap together before they put out baloney like this. Here’s hoping. On a related note, Mayor Turner released a statement urging Harris County Tax Assessor Ann Harris Bennett to reject the SOS advisory, which you can find here.

Second lawsuit filed over bogus SOS advisory

Keep ’em coming.

Still the only voter ID anyone should need

A group of Latino voters is suing top state officials who they allege unlawfully conspired to violate their constitutional rights by singling them out for investigation and removal from the voter rolls because they are foreign-born.

Filed in a Corpus Christi-based federal court on Friday night, the suit alleges that the decision by state officials to advise counties to review the citizenship status of tens of thousands of registered voters it flagged using flawed data runs contrary to the 14th Amendment of the U.S. Constitution and the federal Voting Rights Act because it imposes additional requirements to register to vote on naturalized citizens.

Joined in the suit by several organizations that advocate for Latinos in Texas, the seven voters suing the state all obtained their driver’s license before they became naturalized citizens and subsequently registered to vote.

Their lawsuit — which names Republican Gov. Greg Abbott, Texas secretary of state David Whitley, attorney general Ken Paxton and one local official as defendants — asks the court to halt the state’s review and block officials from taking any action against them based on their national origin. It also asks Whitley to refrain from targeting new citizens for voter purges and to withdraw his current list “unless and until it acquires information that the voters are currently ineligible to vote.”

[…]

One of the plaintiffs — Julieta Garibay — has confirmed with Travis County election officials that she is on the list they received from the state. Five others believe they were included on the state’s list. Another plaintiff — Elena Keane — received a notice from Galveston County stating “there is reason to believe you may not be a United States citizen” and asking for proof of citizenship within 30 days to remain on the voter rolls.

Two days later, Keane received a second letter stating she had received the first letter in error.

Here’s the latest on that first lawsuit. This one was filed by MALDEF on behalf of the voters. The ACLU of Texas and the Texas Civil Rights Project have threatened to sue if the SOS doesn’t rescind the advisory, so we may get a third filing before all is said and done. Keep at it and don’t let up, I say. The Chron has more.

Bail reform settlement looks to be a go

Excellent news.

Chief U.S. District Court Judge Lee H. Rosenthal on Friday offered initial support for new bail rules proposed by Harris County, signaling the three-year lawsuit challenging the county’s cash bond system soon may reach its conclusion.

The settlement of the case, which Harris County has spent more than $9 million defending, would seal victory for the poor misdemeanor defendants who brought the suit and allow Rosenthal and both legal teams to turn their attention to a similar lawsuit challenging the county’s felony bail system.

“We’ve actively been talking to each other,” said Neal Manne, an attorney representing the poor defendants. “I think we’d be ready in a month to come back to the court with a final, permanent order.”

For the first time in a federal court hearing, all the parties in the misdemeanor suit stood in agreement Friday afternoon about how the case should be settled. In an unusual scene in Rosenthal’s 11th-floor courtroom, the attorneys in the once-contentious case urged Rosenthal to sign off on new bail rules proposed by the newly elected slate of Democratic misdemeanor judges.

[…]

Rosenthal, who in 2017 agreed Harris County’s bail system was unfair to poor defendants, suggested waiting to see how well the new bail rules work in practice before issuing her approval. With the opening of the new joint processing center for inmates, the judge said minor, unforeseen problems may need to be addressed.

“The devil, in the broader issues, is in the day-to-day,” Rosenthal said. She ordered the parties to return March 8.

Allan Van Fleet, the attorney representing the misdemeanor judges, agreed that the revised bail system will require each part of Harris County’s criminal justice apparatus to cooperate.

“The judges are committed, with the sheriff, the DA, the plaintiffs, that we’re going to work together to get the best system that anybody can come with,” Van Fleet said.

See here for the previous update. We’re headed in the right direction, and we know where we’re going. It’s a new day.

Orlando Sanchez files $1 million lawsuit against water-pourer

Oh, good grief.

Orlando Sanchez

The former Harris County treasurer has sued a man for $1 million after water was poured on his head during a news conference about HISD in December.

Orlando Sanchez, who lost his re-election campaign in November, filed suit on Thursday against Steve Striever.

Sanchez and his attorney said that Striever assaulted Sanchez by “offensive physical contact” during the news conference on Dec. 28, and that he “knew or reasonably should have believed that Orlando Sanchez would regard the contact as offensive or provocative.”

“It’s not about the physical damage, it’s about the bigger effect the damage has,” Sanchez’s attorney Hector G. Longoria said. “It’s the visceral reaction it causes.”

[…]

The $1 million includes relief for past and future mental anguish, according to the lawsuit. The amount would ultimately be for the jury to decide, Longoria said.

Sanchez also demanded a jury trial and requested that Striever turn over material relevant to the incident, including any videos, documents, texts, or phone calls about the press conference or pouring water on Sanchez’s head.

See here for the background. I’ll say again, Steve Striever is an idiot who should at the least have been charged with some form of misdemeanor assault. But a million dollars? For “past and future mental anguish”? I don’t even know what to say to that. But hey, at least ol’ Orlando got his name in the newspaper again. At this rate, he’ll surpass his total coverage from twelve years as Treasurer in no time.

SOS advisory lawsuit update

Add another plaintiff, litigate till done.

Still the only voter ID anyone should need

A naturalized citizen — who immigrated to Texas from the United Kingdom and is a registered voter — is joining a Latino civil rights group in suing top Texas officials after her voter registration was flagged by the state for a citizenship check.

Signing onto a lawsuit filed by the League of United Latin American Citizens, Atascosa County resident Julie Hilberg on Friday alleged that Texas Secretary of State David Whitley’s move to question the legality of tens of thousands of registered voters in Texas was an unconstitutional, discriminatory burden on the right to vote.

Hilberg — who also joined the League of United Latin American Citizens in its claims that Whitley and Attorney General Ken Paxton have violated a provision of the federal Voting Rights that prohibits the intimidation of voters — added her name to the suit, but she is also seeking to represent all of the legitimately registered voters who appear on the state’s list as a plaintiff class.

“The burden imposed by Defendant Whitley’s new voter purge program — both the current list of 95,000 registrants flagged for potential removal and the plan to continue this practice on a monthly basis — imposes a severe and plainly discriminatory burden on naturalized citizens who wish to exercise their right to vote,” the complaint reads.

[…]

After learning about the citizenship checks in the news, Hilberg on Thursday went to the local elections office with her naturalization certificate in hand to figure out if she was among those voters.

Hilberg suspected she would be on the list because she had most recently renewed her driver’s license in 2014 — the year before she took her oath of citizenship at a naturalization ceremony in San Antonio. She had registered to vote in Atascosa County in June 2015, and then voted in several elections from 2016 to 2018.

When Atascosa County’s election administrator, Janice Ruple, confirmed Hilberg was on the list they had received from the state, Hilberg assumed any questions about her citizenship status would be resolved in that moment because Ruple knows Hilberg — and her citizenship status — personally, according to the complaint.

Instead, “Ms. Ruple was unable or unwilling to give Ms. Hilberg any information or assurances about whether her registration would be in jeopardy because her name was on Defendant Whitley’s list,” the lawsuit reads.

See here for the background. I don’t know what difference it makes from a legal standpoint to include a plaintiff who was directly affected, but I presume it can’t hurt. Ms. Hilberg was done wrong, and she deserves redress for it.

Bail lawsuit 2.0

This one will be tougher to tackle, but the principle remains the same.

A hard-fought battle to reform Harris County’s bail system has prompted a second civil rights action.

The legal team that successfully challenged the county’s bail practices for low level offenses on the grounds they unfairly detained indigents, filed a new federal class action suit this week tackling money bail for felonies, which results in thousands of poor defendants being locked up before trial or entering guilty pleas to avoid lengthy incarceration.

This new lawsuit, which hit the docket during the Martin Luther King Jr. Day holiday, claims the county is holding people unjustly, simply because they cannot afford to pay a cash bail. Currently, people arrested who can post a cash bond or hire a commercial bonding company can simply resume their lives as their cases proceed through the criminal docket.

The lawyers argue that pretrial release should not be contingent on how much money a person has. Its one of a number of lawsuits around the country, including one before a district judge in Galveston, attempting to topple bail systems that treat people differently based on their income.

“This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community,” the lawsuit argues. “Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children.”

[…]

The lawsuit noted there are human costs to keeping people in jail. Since 2009, the complaint stated, 125 people have died while awaiting trial in the county lockup, including a woman who committed suicide this month after she could not pay her original bail of $3,000.

“Now is the time for a new vision and a new era of collaboration and innovation,” the lawyers said in a joint statement to the Houston Chronicle. “We are confident that with the leadership of the county judge, the sheriff, the district attorney, the public defender, and the felony judges, all of whom have expressed their commitment to bail reform, we will be able to resolve this case without wasting millions of dollars of taxpayer money as happened in the prior case.”

Most of the key stakeholders struck a similar note in responding to the new lawsuit.

Tom Berg, first assistant to District Attorney Kim Ogg,said the office is glad to work with the parties toward “a fair, just and speedy resolution” and at the same time “responsibly conserve the county’s resources so that they go for the staffing needed for bail reform implementation and not litigation costs.”

County Judge Lina Hidalgo said the county aims to support public safety, fairness and a cost-effective, fiscally responsible system. She acknowledged that there’s a long way to go.

“We’ve got a system that in a way fails on all three fronts,” she said Tuesday. Hidalgo said the crop of newly elected officials seem dedicated to enacting these types of change.

The sheriff also mentioned safety concerns, saying felony bail improvements require careful examination. However, he lauded the idea of reforming what he has referred to as a “broken system.”

“I support all efforts to improve our criminal justice system that strike a smart balance between our duty to ensure public safety and upholding our American ideal that everyone is presumed innocent until proven guilty in court,” Gonzalez said. “I support equipping judges with the data they need to accurately measure each defendant’s unique risk of failing to appear in court and committing additional crimes before they stand trial.”

Of the three plaintiffs in this lawsuit, two were busted for drug possession and the other for DUI. There’s still a lot of non-violent inmates in the jail awaiting disposition of their case because they couldn’t scrape up a bond payment. As with misdemeanants, the ability to write a check to a bail bond agency has no correlation with whether you will show up for your court date or if you are likely to commit further crimes while out. Again, Robert Durst was out on bail. It makes sense to separate the genuine risks from the harmless shlubs. Will such a system be perfect? No, of course not. Some people who get out on a personal recognizance bond are going to turn out to have been bad risks. But again – I can’t say this often enough – people do that right now, under the current system. We just accept it as the way things are. Well, the way things are is capricious, unjust, and almost certainly unconstitutional, as the system for misdemeanors was as well. We’ll never have a better chance to design a better system. Let’s get to it.

MALDEF Census lawsuit in court

Census lawsuit #2.

In a federal courtroom in Maryland on Tuesday, lawyers representing the Mexican American Legislative Caucus, the Senate Hispanic Caucus and several Texas-based nonprofits that advocate for Latino and Asian residents will set out to convince U.S. District Judge George Hazel that the federal government’s decision to ask about citizenship status as part of the upcoming census is improper, because it will lead to a disproportionate undercount of immigrants and people of color.

The Texas legal battle has run mostly parallel to several other court fights across the country — and might not be decided before the New York case makes it to the U.S. Supreme Court — but it’s the only census case that could ultimately determine whether Trump administration officials conspired to deprive people of color of equal protection and representation.

[…]

What we’re referring to as the “Texas case” is actually two consolidated cases filed in Maryland — one of which was filed on behalf of more than a dozen plaintiffs, including Texas’ legislative Latino caucuses; legislative caucuses out of Maryland, Arizona and California; and several community organizations. La Unión del Pueblo Entero, a nonprofit organization based in the Rio Grande Valley, is the lead plaintiff.

Those plaintiffs are challenging the inclusion of the citizenship question on several fronts, alleging it violates the U.S. Constitution’s Equal Protection Clause, the Enumeration Clause and a federal law that governs federal agencies and their decision-making processes.

More broadly, they argue the citizenship question will lead to a disproportionate undercount of Hispanic and immigrant households, affecting areas of the country like Texas that are more likely to be home to members of those communities, and that officials’ decision to add the question was unconstitutional because it was based on intentional racial discrimination. They go further than other opponents in also alleging that Trump administration officials conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting immigrants for the apportionment of political districts.

The federal government, which has been unsuccessful in its repeated requests to dismiss the case, has argued the question is necessary for “more effective enforcement” of the federal Voting Rights Act and was added at the Justice Department’s request. But evidence that emerged through litigation indicated U.S. Commerce Secretary Wilbur Ross asked the Justice Department to make that request after he was in touch with advisers to President Donald Trump.

[…]

In the New York case, U.S. District Judge Jesse Furman scolded the Trump administration for “egregious” violations of the Administrative Procedure Act, the federal law the Texas plaintiffs are also citing, and described Ross’ decision to add the question as “arbitrary and capricious.” Furman, however, ruled there wasn’t enough evidence to prove that Ross had intentionally acted to discriminate against immigrants and people of color.

The Texas case is moving forward despite the New York ruling because it involves allegations that the courts haven’t addressed. The New York lawsuit — filed on behalf of a coalition of more than 30 states, cities and counties, including El Paso, Hidalgo and Cameron — didn’t include some of the legal claims opponents in Texas are leaning on.

See here and here for background on this lawsuit. The New York case was ruled entirely on statutory grounds, with the Constitutional claims put aside in part because there had been no deposition of Commerce Secretary Wilbur Ross. A ruling for the plaintiffs on the Constitutional claims would be a stronger and more expansive ruling, but given the SCOTUS that we have, it seems like a ruling we are less likely to get. You never know till you try, though.

And speaking of that New York case:

The Trump administration asked the Supreme Court on Tuesday to bypass its normal procedures and decide quickly whether a question on citizenship can be placed on the 2020 Census.

[…]

Normally, the Justice Department would appeal the decision to the U.S. Court of Appeals for the 2nd Circuit. But Solicitor General Noel J. Francisco said that would not leave enough time for a final ruling from the Supreme Court.

“The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time,” he told the court. “It is exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this Court by that deadline.”

Citing a Supreme Court rule, Francisco said the “case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

As this story notes, SCOTUS had a hearing to address the question of whether Secretary Ross could be deposed – they declined to allow it while the trial was happening – but since the New York court went ahead and made a ruling anyway, they have since canceled that hearing. I don’t know if they will take up the request for an expedited appeal, but it won’t surprise me if they do. (Rick Hasen, an actual expert in these matters, thinks they will.) That ruling was designed to stick to things this SCOTUS likes to uphold and away from things it likes to bat down, so who knows what they’ll do. NPR has more.

Bail lawsuit continues in Galveston County

Good.

A lawsuit alleging that Galveston County’s cash bail system favors wealthier defendants will continue after a recent ruling by a U.S. district court judge.

On Jan. 10, Judge George Hanks Jr. upheld Magistrate Judge Andrew Edison’s denial of the county’s motion to dismiss the lawsuit.

The ACLU of Texas and the Arnold & Porter law firm filed the suit in April 2018 on behalf of Aaron Booth, 37, of Galveston, who was arrested on felony drug possession charges but couldn’t afford to post his $20,000 bail — the minimum permitted under the county’s bail schedule for that charge.

The suit accuses county officials, including local judges and magistrates as well as District Attorney Jack Roady, of operating an arbitrary, two-tiered system of justice based on wealth, in violation of the constitutional right to counsel, the right to due process and equal protection under the law.

In addition to keeping the suit alive, Hanks agreed that the ACLU sufficiently argued that under the Constitution’s 6th Amendment, Booth and all defendants are guaranteed a right to counsel at any bail hearing.

Hanks also agreed that Roady, who controls the county’s bail schedule, was liable for his role in perpetuating a wealth-based detention system. Magistrate Edison had ruled that magistrate judges “always strictly adhere” to the bail amounts recommended by Roady.

[…]

A preliminary injunction hearing scheduled for Tuesday will give the ACLU the opportunity to present evidence that Galveston County has not done enough to reform its bail system.

“It’s still our burden to show that the facts are what we’ve alleged,” [Trisha Trigilio, senior staff attorney for the ACLU of Texas] said. “So we are presenting evidence that actually shows that an injunction is necessary.”

Galveston County Judge Mark Henry said he hoped Tuesday’s hearing would be the “end or beginning of the end” to the lawsuit. Henry said the litigation has hindered the county’s bail reform efforts, and said he was pleased to see individual magistrate judges and district judges dismissed as defendants.

“We’ve been trying to get these things done for years,” Henry said. “Government moves notoriously slow, I think we’ve been about as fast as we can be.”

See here for the background. It should be clear to everyone where this is going, given the rulings in the Harris County case. One presumes it’s just a matter of how long it takes to get there.

Fifth Circuit does it again

Another terrible ruling by a terrible judge on a terrible court.

Right there with them

A federal appeals court has lifted a lower court order that blocked Texas from booting Planned Parenthood out of Medicaid, potentially imperiling the health care provider’s participation in the federal-state health insurance program.

A three-judge panel on the U.S. 5th Circuit Court of Appeals ruled Thursday that Sam Sparks, the federal district judge who preserved Planned Parenthood’s status in the program in February 2017, had used the wrong standard in his ruling. The appeals court sent the case back to him for further consideration.

The case stems from a long-running flap over a misleading video released in late 2015 by the anti-abortion group Center for Medical Progress, which suggested that abortion providers at Planned Parenthood sold fetal tissue for profit. The sting video included edited clips of Planned Parenthood officials discussing the use of fetal tissue for research. A string of investigations that followed the video’s release were unable to confirm its claims, but it energized a crusade against the health care provider and sparked outrage from the state’s Republican leadership.

[…]

In February 2017, a federal judge in Austin ruled that Texas clinics affiliated with Planned Parenthood could continue to care for patients under the state’s Medicaid program. The state’s arguments, Sparks wrote in a 42-page ruling, were “the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program.”

But a panel on the conservative-leaning appeals court said Thursday that Sparks had used the wrong standard in his ruling, taking the arguments as a novel, or “de novo,” review and by “giving no deference” to the findings of the state agency that opted to expel Planned Parenthood in the first place. The Office of Inspector General, an arm of the state’s health and human services agency charged with rooting out fraud and abuse, claimed the videos “showed “that Planned Parenthood violated state and federal law.”

“OIG is the agency that the state of Texas has empowered to investigate and penalize Medicaid program violations. The agency is in the business of saying when providers are qualified and when they are not,” Judge Edith Jones wrote. “It is [odd] to claim that federal judges, who have no experience in the regulations and ethics applicable to Medicaid or medical practice, much less in regard to harvesting fetal organs for research, should claim superior expertise.”

See here for the background. Of course Edith Jones would insist that we have to take seriously the lying video of lying liars when it suits her agenda. She’s as predictable as the sunrise. Now we go back to district court and try again to knock down the bullshit. What an utter disgrace.

We really are about to do away with the old cash bail system

I have four things to say about this.

The new slate of Democratic judges has approved a drastic revision to Harris County’s bail system that could serve as a model for a settlement in the historic lawsuit in which a federal judge found the county’s judicial rulings unjustly relegated poor people arrested on minor offenses to jail because they couldn’t afford costly bonds.

The 15 new court-at-law judges and new presiding Democrat who was not up for election voted Wednesday on the new bail protocol that will affect thousands. They have spent weeks hammering out a plan with the sheriff, the district attorney and county leadership and will ask the federal court this week to implement it as a foundation for a settlement.

County Court at Law Judge Darrell Jordan, the presiding judge, estimates that 85 percent of people arrested on misdemeanors will now qualify to be released after arrest on no-cash bonds, with a few exceptions for people who must await a hearing – for up to 48 hours – for bond violations, repeat drunken driving offenses and domestic violence charges. At that point, they may also qualify for personal recognizance bonds.

“What it means is that no one will be in jail because they cannot afford to get out,” Jordan said. “The only people who will be detained and have to speak to a judge are a very small subset who will be processed through the Harris County Jail and those carve outs are aligned with best practices from around the country.”

The change was widely celebrated.

“It’s a big day for Harris County,” said attorney Allan Van Fleet, who represents the judges in the federal lawsuit. “It will make Harris County safer and more equal and provide more efficient processing of people accused of misdemeanors.”

1. Elections have consequences. I almost can’t believe this is actually about to happen.

2. Just a reminder, many of the people now in the jail are there awaiting trial. They have not been convicted of anything. Many others like them in the past never were convicted of anything, and many more pled guilty to something so they could get out. This will ensure there are far, far fewer people like them in the future.

3. The question of who was in jail awaiting trial and who was not was always largely about financial wherewithal, not about risk and danger to society. Remember, Robert Durst was granted bail.

4. One hopes that having far fewer inmates, many of whom don’t need to be there, will allow us to do a better job of ensuring the safety of those inmates, and enabling the jail to meet state standards. No more inmate suicides, please. We really need to do better than that.

Trump administration opposes Section 3 oversight

I mean, duh.

In the latest about-face on voting rights under President Donald Trump, the U.S. Department of Justice no longer supports efforts to force Texas back under federal oversight of its electoral map drawing.

In legal filings this week, the Justice Department indicated it would side against the voters of color, civil rights groups and Democratic lawmakers who want a three-judge federal panel in San Antonio to require Texas to seek pre-approval of its legislative and congressional maps, given previous maps that the federal judges ruled discriminatory.

“The United States no longer believes that [federal supervision] is warranted in this case,” federal attorneys said in their filing to the court.

[…]

Under the Obama administration, the Justice Department sided with those challenging the state’s maps as discriminatory. But last year, Deputy U.S. Solicitor General Edwin Kneedler joined state attorneys in convincing the U.S. Supreme Court that Texas’ current congressional and state House maps, which were adopted in 2013, were legally sound.

In approving the state’s current maps, the high court in June wiped out a ruling by the San Antonio panel that found the maps were tainted with discrimination that was meant to thwart the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office. But seemingly left untouched were previous findings of intentional discrimination at the hands of the state lawmakers who first redrew the state’s maps in 2011.

The state’s opponents are now pointing to some of those 2011 violations in asking the San Antonio panel to consider returning Texas to federal guardianship of its maps.

“In a jurisdiction like Texas, which has consistently engaged in intentional discrimination since its inception, and which year after year attempts to sharpen and hone its ability to violate the law in more covert and artful ways, the Constitution’s promise of equal protection under the laws requires the imposition” of federal supervision, the opponents said in a November filing.

See here for the background. The only reason the Trumpies hasn’t opposed this before now is because there hadn’t been a filing by the plaintiffs before. They’re consistent when it comes to opposing voting rights, that’s for sure. As you know, I don’t have any faith in SCOTUS to do the right thing, but you can’t get what you want if you don’t ask for it.

Plaintiffs win in Census citizenship question lawsuit

Very good news.

A federal judge on Tuesday blocked the Trump administration’s plan to add a citizenship question to the 2020 census, with an opinion that found the move by Commerce Secretary Wilbur Ross violated the Administrative Procedure Act.

Furman’s decision, if not overturned by a higher court, is a monumental victory for voting rights activists and immigrant advocates, who feared the question would spook immigrant participation in the census. An undercount of those populations would shift political representation and governmental resources away from those communities, in favor of less diverse, less urban parts of the country. Furthermore, there were strong hints that the citizenship data procured would then be used to exclude non-citizenships from redistricting — a long-sought goal of conservatives that would boost Republicans’ electoral advantages.

In his 277-page opinion, U.S. District Judge Jesse Furman in Manhattan said that Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”

[…]

The case was a consolidation of two lawsuits — one brought by the ACLU and the other by a multi-state coalition — and is among some half dozen cases across the country challenging the decision, which was announced last March. Furman’s case was he first to go trial and he is the first judge to reach a decision on the merits.

It is also an issue already headed to the Supreme Court, so it is unlikely that Furman’s word will be the last one. After the Trump administration fought tooth and nail Furman’s order that Ross be deposed for the case, the Supreme Court blocked the deposition and scheduled a hearing on whether Ross’ motive for adding the question should play a role in the case for February.

Furman said that his decision Tuesday was based solely on the so-called administrative record — the official record that administration put forward justifying its process of coming to a decision on the question.

By basing his ruling only on the administrative record, Furman segregated his findings from the contentious issue at the heart of dispute the Supreme Court will hear next month.

“Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were,” he said.

While ruling with the challengers on the Administrative Procedures Act claim, the judge did not find a constitutional due process violation, as the challengers alleged.

“In particular, although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination,” he said. “To be fair to Plaintiffs, it is impossible to know if they could have carried their burden to prove such discriminatory intent had they been allowed to depose Secretary Ross, as the Court had authorized last September.”

His opinion took a not-so-veiled swipe at Justice Neil Gorsuch, who wrote, when the dispute over deposing Ross was at the Supreme Court at an earlier stage, that there was nothing wrong with a new cabinet secretary “cutting through red tape.”

“[A]lthough some may deride its requirements as ‘red tape,’ the APA exists to
protect core constitutional and democratic values,” Furman wrote. “It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures — in short, it ensures that agencies remain accountable to the public they serve.”

See here for the previous update. Though you wouldn’t know it from the slavish devotion our state leaders pay to Donald Trump, this ruling is very good for Texas. There will of course be an appeal and as noted this will surely make its way to SCOTUS, but for now this is a big win. ThinkProgress, Slate, and Mother Jones all have good analyses of the opinion, so go check ’em out.

Omnibus lawsuit against Texas abortion laws begins

Gotta say, I’m less optimistic about this now than I was when it was filed.

State attorneys and lawyers representing reproductive rights groups argued in federal court Monday over whether a sweeping lawsuit challenging more than 60 Texas abortion regulations should move forward.

U.S. District Judge Lee Yeakel told state attorneys that their 73-page argument confused him. He also expressed confusion about what reproductive rights groups were arguing over.

“This needs to be something not that the court understands but the public understands,” Yeakel said. “I find this case difficult to understand with the status of the record.”

[…]

Stephanie Toti, senior counsel at the Lawyering Project and lead attorney for the reproductive rights groups in the case, said during the hearing that “once upon a time, Texas started off with a reasonable regime to regulate the system of abortion.”

“The system has become so burdensome that it’s increasingly difficult for patients and providers to navigate,” Toti said.

Reproductive rights groups also argue that the state’s “A Woman’s Right to Know” booklet for patients is medically inaccurate. The suit targets a University of Texas System policy barring students from getting credit for internships and field placements at institutions that provide access to abortions.

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health Alliance, said in a news release that the organization is “proud to lead another legal challenge in Texas.”

See here for the background. As the story notes, this lawsuit was filed in June, with the main argument being that the Whole Women’s Health SCOTUS ruling of 2016 made a bunch of previously-passed laws illegal as well. It seemed like a great idea at the time, right up until Anthony Kennedy decided to hang up his robe. Be that as it may, the hope here is to get at least a partial injunction from the district court, and see where we go from there. For that, we’ll have to wait on Judge Yeakel. The Chron has more.

Appeal of bail injunction dropped

Elections have consequences, and thank goodness for it.

Less than a week after the new jurists were sworn into office, Harris County’s misdemeanor judges on Monday withdrew their appeal in the landmark lawsuit over local bail practices that a federal judge said unfairly targeted poor people accused of crimes.

The historic litigation began in 2016, when attorneys and civil rights groups sued the county on behalf of defendants jailed for days because they couldn’t afford bond on low-level offenses. Though Chief U.S. District Judge Lee H. Rosenthal said the practice was unconstitutional and amounted to wealth-based detention, so far the county has spent more than $9 million in legal fees to fight the case, according to Harris County Precinct 1 Commissioner Rodney Ellis.

But many saw the Democratic wave in November’s elections as a sign of change ahead – and Monday’s court filings look to be one of the first indicators of that shift.

“It’s going to be a new day,” Neal Manne, attorney for the plaintiffs, said in November just after the ballot-box sweep. And now, according to Judge Darrell Jordan – the one misdemeanor judge who did not lose his bench in the last election – the parties have already begun hashing out a settlement they hope to have in place in the next few weeks.

“Our goal is have this accomplished by February 1, 2019,” Jordan told the Houston Chronicle.

One of a series of documents filed in recent days, the two-page motion simply lists the names of the new judges – who automatically replaced their predecessors as defendants in the suit – and asks that the case be dismissed. The court granted the motion and dismissed the appeal by mid-day.

[…]

Mike Fields, the one outgoing judge who supported the lawsuit, lauded the move as a “great first step” toward reform.

“Quite frankly, it’s overdue,” he said. “I remain convinced that fighting against bail reform was a mistake and, I believe, part and parcel of why the citizens of Harris County voted for such a sweeping change in our political landscape. Hopefully, this issue will, finally, be put to bed and taxpayer money better spent going forward.”

[…]

Meanwhile, the Harris County Attorney’s Office issued a statement expressing confidence in the possibility of a settlement.

“The County Attorney’s Office supports the newly-elected judges in their effort to resolve this case on terms they find acceptable,” County Attorney Vince Ryan said in a statement. “This is a case about judicial discretion.”

The next hearing, in Rosenthal’s court, is slated for Feb. 1.

Out-fricking-standing. The new judges are now represented by a pro bono attorney, instead of the high-priced guy that had been arguing the case in court. What this means is that the injunction will remain in place while the settlement is hashed out, with no further briefs or arguments or whatever else before the Fifth Circuit. (The last update I had on this was from August; I don’t think there was any other business on the agenda, but if there was it’s now moot.) Perhaps once we get this settlement in place we can stop outsourcing inmates once and for all. Now we need the city of Houston to get its act together and follow the county’s lead. Bottom line is that this, as much as anything, is what I wanted from the 2018 election. Well done, y’all.

Anti-Obamacare ruling appealed

The big non-Mueller story to follow for 2019.

Best mugshot ever

The Democratic coalition of states battling Texas over the fate of the Affordable Care Act has formally begun the process of challenging a Dec. 14 decision ruling the law unconstitutional in its entirety.

California Attorney General Xavier Becerra, who’s leading the charge, filed a notice of appeal Thursday morning before the U.S. 5th Circuit Court of Appeals. The blue states will ask the federal appeals court to overturn last month’s ruling from U.S. District Judge Reed O’Connor, who declared that President Barack Obama’s signature health care law is unconstitutional after Congress in December 2017 gutted one of its major provisions, the individual mandate.

The notice of appeal marks the next stage of what is expected to be a long-running litigation process that could reach the U.S. Supreme Court. A Texas-led coalition of 20 states kicked the process off nearly a year ago by suing the federal government to kill the law; after the Justice Department sided partially with Texas, the California-led coalition of states stepped in to defend Obamacare in court.

“The wheels start turning as of now,” Becerra said on a press call Thursday morning.

See here and here for the background. Every legal scholar with a shred of integrity has denounced this ruling as ridiculous, but we all know that what matters is what five members of SCOTUS think is legal. One story I read about this noted that the coalition of states defending Obamacare picked up an ally after the 2018 election, the new Attorney General of Colorado. One can only wonder what might be happening today if we could have added a new Attorney General of Texas to this. Alas, we’ll have to file that under What Might Have Been.

Ridiculous anti-Obamacare ruling remains on hold

It is what it is.

Best mugshot ever

The federal judge in Texas who ruled the Affordable Care Act unconstitutional said today that the law can stand while his judgment is under appeal.

In his order issuing a stay and final partial judgment in the controversial case, U.S. District Court Judge Reed O’Connor reiterated that he believes the entire ACA cannot stand without its individual mandate penalty, which Congress zeroed out last year. O’Connor argued that appellate judges will agree with his judgment, but said it should not take effect while the case is being appealed. “[M]any everyday Americans would otherwise face great uncertainty,” he wrote.

The judge’s order means that Obamacare will likely remain the law of the land for at least another year. Depending on how the appeals proceed, it also tees up the possibility of a Supreme Court ruling on the case in 2020, during the presidential campaign.

[…]

In his new filing, O’Connor expanded his reasoning for siding with the conservative states seeking to strike down Obamacare, arguing that they have standing to bring the case. This point has been disputed, because the conservative states have struggled to show how the ACA has harmed them.

O’Connor also stressed that “courts must refrain from resolving policy disputes” created by Congress. His conclusions were widely panned, including by conservative legal scholars who maintain that O’Connor continues to misread the law and is engaging in the same judicial activism that he decries.

“I’ve been very critical of Judge O’Connor’s severability analysis, but the standing analysis in these opinions may be even worse — and that’s saying something,” tweeted Jonathan Adler, a Case Western Reserve University law professor who was a legal architect of another major ACA challenge. “I will be gobsmacked if O’Connor’s opinion survives review in the Fifth Circuit.”

O’Connor also noted that four other counts remain unresolved — signaling that even if the appeals court overturns his ruling, conservative states could find further paths to weaken the ACA. The remaining issues include challenges under the Administrative Procedures Act and the Fifth and 10th amendments.

See here for the background. Basically everyone has panned this ruling as legally unsound – I’m being kind here – and most people believe that the ruling will be reversed. I have less faith in the Fifth Circuit than that, but we’ll see. In the meantime, we can’t get a Congress and a President who are committed to providing health care for all soon enough.

Paxton prosecutors take their shot at a do-over

Good luck.

Best mugshot ever

In a fiery filing that amounts to a legal Hail Mary, the attorneys appointed to prosecute Texas Attorney General Ken Paxton implored the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yielded “a patently absurd result.”

The Texas Court of Criminal Appeals ruled in November that a six-figure payment originally approved for the special prosecutors was outside legal limits — a move that boosted Paxton and threatened to derail the case against him, as the prosecutors had indicated they might withdraw if they could not be paid. A month later, the prosecutors have asked the court to reconsider their decision in a crucial case “where the ‘x’ axis of justice and the ‘y’ axis of politics intersect.”

Rehearing, they argued in a filing last week, is critical for ensuring that the high court’s proceedings “appear fair to all who observe them.” [Read the filing here]

[…]

In the Dec. 21 filing, prosecutor Brian Wice wrote that the prosecutors “would never have accepted the formidable task of prosecuting the Texas Attorney General over the last three-plus years had they been able to look into the future and discern that their pay would come within a coat of paint of minimum wage.”

From the opening sentence, the 18-page filing doesn’t mince words.

“If you’re fortunate enough to be Texas Attorney General Ken Paxton, you can lawfully create and endow a defense fund to pay for an armada of top-flight legal talent that most defendants can only dream of to defend yourself against three felony offenses,” Wice wrote.

In the motion for rehearing, which includes references to Atticus Finch, Shakespeare, Gilbert & Sullivan and the impending “Sword of Damocles,” the prosecutors implore the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yields “a patently absurd result” that would pay the special prosecutors “unconscionable” rates.

Letting the ruling stand, Wice argued, would allow any local government in Texas “to derail what it sees as an unjust prosecution by de-funding it.” And that type of funding dispute can be influenced by major political players, he suggested.

“Make no mistake,” he wrote. “While it was the Commissioners who prevailed in this Court, Paxton first recognized that the best, indeed, the only way to derail his prosecution was to de-fund it by challenging [prosecutors’] fees three years ago.”

See here and here for the background. I mean, the prosecutors are 100% right on the merits, and they lay it out with utter clarity. I maintain that the Legislature can and should fix this by making the state pick up the tab for prosecutions like this, but that won’t help here, even if we could be sure that a bill to address this would pass. We need the Court to do the right thing, which they failed to do the first time around. It’s either that or they show that they don’t care about the law when one of their own is on the sharp end of it.

Recapture reinterpretation lawsuit update

This is a bit in the weeds, so bear with me.

Houston ISD likely will keep an additional tens of millions of dollars more in property tax revenues each year following a widely expected Texas appeals court decision Friday.

Judges from the state’s 3rd District Court of Appeals ruled against two small school districts and a nonprofit that sued the Texas Education Agency over its re-interpretation of statutes related to “recapture,” the state’s method of redistributing tax revenues from property-wealthy districts to property-poor districts. The ruling means that property-wealthy districts, such as HISD, will face lower “recapture” payments back to the state moving forward.

HISD officials projected the ruling would result in the district keeping an additional $51 million in 2018-19. District leaders expected the Texas Education Agency to win the lawsuit, so the already factored the $51 million in revenue into the current budget. As a result, the district will not see a windfall that can be spent on additional costs.

The plaintiffs alleged the Texas Education Agency improperly re-interpreted state law to include optional property tax homestead exemptions into “recapture” calculations for districts with wealthy property tax bases relative to their student enrollment totals.

A district court judge granted a temporary injunction in favor of the plaintiffs. However, the appellate court found the plaintiffs could not prove they were harmed by the re-interpretation because it did not cause a shortfall in the state’s Foundation School Program, the fund through which state money is distributed to school districts.

See here and here for the background. Back when we were all arguing about HISD making recapture payments to the state, HISD successfully managed to get the TEA to interpret the law over how such payments are calculated to take into account the Local Option Homestead Exemption (LOHE) that some districts like HISD offer. Taking the LOHE into account, which the TEA had not previously done, causes the recapture formula to produce a smaller bill for districts like HISD that use it. That’s where that $51 million figure comes from. A couple of smaller school districts, along with MALDEF, filed suit over this reinterpretation on the grounds that it would cost them money, which was in conflict with the Foundation School Program. The Third Court of Appeals has ruled that the smaller districts could not prove that they were harmed, so the TEA rule as now interpreted was upheld, which in turn saves HISD some money. Makes sense? Of course, if the Lege follows through on its latest plan to reform school finance, any or all of this could change in ways we don’t yet know. But for now, this is where we stand.

Restraining order lifted on firefighter pay referendum

Back to the planning stage.

Mayor Sylvester Turner

A state district judge on Tuesday dissolved a temporary restraining order blocking implementation of the voter-approved charter amendment granting pay parity to Houston firefighters and denied further attempts by the city and police union to delay the measure.

State District Judge Randy Wilson, ruling in favor of the Houston Professional Fire Fighters Association, decided that voters were informed of the amendment’s price tag — more than $100 million a year — before the election and approved it anyway. The measure, appearing on the November ballot as Proposition B, passed with 59 percent of the vote.

“While this Court is sensitive to the budget difficulties the Pay-Parity Amendment will produce, the Houston voters decided they would rather have pay parity,” Wilson wrote.

[…]

The latest ruling comes more than two weeks after the HPOU sued the fire union and city over the parity measure, contending the amendment, which would tie firefighter pay to that of police of corresponding rank and experience, is unconstitutional because it conflicts with a provision of state law requiring firefighters to receive comparable pay to that of private sector employees.

Wilson, ruling that the amendment does not conflict with state law, indicated the city had contradicted its argument in a separate case by claiming that no private sector jobs are comparable to those of firefighters.

The lawsuit has been underway since Nov. 30, when the police union filed the suit against the fire union and the city, and [Judge Kristen] Hawkins granted a temporary restraining order.

The city later filed a cross-claim against the fire union, a remedy available to defendants seeking to take legal action against a co-defendant. In its claim, the city argued that the charter amendment “directly conflicts with the collective bargaining process and guidelines for firefighter compensation” laid out in the Texas Local Government Code, and therefore is invalid. Ultimately, the police union and city sought an injuction and stay on the parity amendment.

As the lawsuit has played out, the separate case referenced by Wilson — filed by the fire union against the city after contract talks stalled last year — has reached Texas’ 14th Court of Appeals.

See here for the background, and here for the Mayor’s statement. Neither the HPOU nor the city plans to appeal at this time, so as things stand the city will need to figure out how to move forward with Prop B while the litigation plays out, as was the case with Renew Houston. It’s not going to get any more cordial from here, that much I know.

The ACA decision

Utterly ridiculous, and likely to be short-lived.

Best mugshot ever

A federal judge in Texas threw a dagger on Friday into the Affordable Care Act, ruling that the entire health-care law is unconstitutional because of a recent change in federal tax law.

The opinion by U.S. District Judge Reed O’Connor overturns all of the sprawling law nationwide.

The ruling came on the eve of the deadline for Americans to sign up for coverage in the federal insurance exchange created under the law.

Since the suit was filed in January, many health-law specialists have viewed its logic as weak but nevertheless have regarded the case as the greatest looming legal threat to the 2010 law, which has been a GOP whipping post ever since and assailed repeatedly in the courts.

The Supreme Court upheld the law as constitutional in 2012 and 2015, though the first of those opinions struck down the ACA’s provision that was to expand Medicaid nationwide, letting each state choose instead. No matter how O’Connor ruled, legal experts have been forecasting that the Texas case would be appealed and could well place the law again before the high court, giving its conservative newest member, Justice Brett Kavenaugh, a first opportunity to take part.

Not mentioned in this story, as it came out very quickly after the ruling was released late Friday afternoon (*), is that the judge also denied the plaintiffs’ request for an injunction. This means that the ruling, which is so absurd that even conservative legal experts who oppose the ACA were appalled by it. What happens next is a bit unclear – there will of course be an appeal, and this will almost certainly go to SCOTUS – but for now this is mostly a big legal turd in the punch bowl. Enjoy that health insurance while you can, sure would be a pity if something happened to it. The Trib, Nicholas Bagley, and Daily Kos, among many others, have more.

Spec’s sues TABC

Another lawsuit to watch.

The state’s largest liquor chain — Spec’s Wine, Spirits and Finer Foods — is suing the Texas Alcohol Beverage Commission for “abusive regulatory overreach” over an enforcement action that dragged on for almost two years before falling apart in administrative proceedings last year, court documents show.

The federal lawsuit, filed in Houston in late August but only recently unsealed, alleges that the TABC “wrongfully and maliciously” attempted to “extort” money from Spec’s by threatening to effectively shut the company down or by making the family-owned business fork over more than $700 million in civil penalties.

The TABC, citing the pending litigation, declined to comment.

In a stinging rebuke of the TABC last year, a pair of administrative law judges said the agency failed to prove dozens of allegations and chastised the agency for failing to disclose evidence to their own witness (and the court). The judges also called out the agency for “stacking” charges, a tactic commonly used to pressure defendants into a settlement. In the end, the judges recommended no fines be assessed against the liquor chain.

Now Spec’s is seeking an unspecified amount of money for damages that include lost profits, more than $1 million in attorneys fees and harm to its reputation. The lawsuit includes a request to impose exemplary, or punitive, damages — which are three times the amount of actual damages.

“Acting under color of law, [the TABC] threatened and pursued groundless allegations and enforcement actions,” the lawsuit says. “[The TABC] intentionally trumped up false claims in knowing violation of the law.”

The lawsuit also alleges the agency provided false testimony during the spring proceedings, which were the administrative equivalent of a trial.

The whole story is fascinating, and more than a little gross and enraging on the part of the TABC. Follow the links in the Trib story to see how all that went down last year. They’ve done a lot to clean up their operations, but stains like that don’t come out on their own. The TABC is in for a spanking from the legal system, and it’s one they have coming. The only question is how big the number will be.

Lawsuit filed over Driver Responsibility Program

This ought to be interesting.

A national civil rights organization on Wednesday sued Gov. Greg Abbott and four top officials at the Texas Department of Public Safety, arguing that the state’s Driver Responsibility Program traps many of Texas’ most vulnerable people in a cycle of debt and hardship.

“This unfair license suspension scheme particularly targets Texas’ most impoverished residents, who are often unaware additional charges are owed under the DRP,” says Phil Telfeyan, lead attorney in the case and executive director of Equal Justice Under Law, the organization behind the lawsuit. “Individuals who cannot pay will often lose their job and their home — becoming homeless — for a minor ticket that wealthier drivers simply pay and forget.”

The 66-page suit is filed against Abbott, DPS Director Steven McCraw, as well as DPS Chairman Steven Mach; Skylor Hearn, DPS’ deputy director of Administration and Services; and Amanda Arriaga, division director of the driver license division. The suit argues the Driver Responsibility Program violates the rights of the its plaintiffs to due process, unfairly impacts the state’s poorest residents, and violates their rights to equal protection under the law.

It is brought on behalf of four plaintiffs, ranging from a 75-year-old San Antonio resident, two U.S. Navy veterans and a man experiencing homelessness after he was unable to find adequate work without a license.

There’s a copy of the lawsuit embedded in the article. Equal Justice Under Law is of course one of the groups that has led the litigation against Harris County’s bail practices, so the state is going to have a real fight on its hands. They have filed similar suits in other states, and you can read their statement about this action here. The original intent of the DRP was to generate revenue for hospital trauma centers, and hospital groups have opposed killing this program on the very rational grounds that the Lege would simply not make up the funding to them if this were cut out. I sympathize with their plight, but there really is no justification for this, and it’s ridiculous that a state like Texas, with good financial resources, can’t help out the trauma centers without imposing an unfair and unequal burden on low income residents. It’s time for the DRP to go, and if the Lege won’t do it, the courts will need to. KUT, which notes that there are bills filed, by Democrats and Republicans, to do away with the DRP, has more.

Moving forward on Section 3

There’s still redistricting litigation action happening.

Late Friday afternoon, the coalition of voting rights groups that have fought the state for fairer legislative districts since the last round of redistricting in 2010 filed a pair of new briefs with the U.S. District Court for the Western District of Texas in Austin. They seek to have the state forced back into federal preclearance under the Voting Rights Act.

States subject to the VRA’s preclearance provision must seek and receive federal approval for any changes they make to any law that applies to voting. Texas has been free from the requirement since 2013, when the Supreme Court cleared the list of states subject to preclearance, but could be placed back on the naughty list if federal courts determine that the state is intentionally discriminatory in its voting laws.

The groups argue that returning Texas to preclearance status for at least the next five years is the only thing that will stop state legislators from drawing unconstitutional district boundaries during the state’s next round of redistricting following the 2020 elections.

“[T]his vital, but time-limited remedy — this Court’s imposition of a preclearance requirement and retention of jurisdiction — is the most statutorily appropriate and equitable action that can ensure the State’s next redistricting plans do not discriminate against minority voters, particularly in light of this Court’s identification of the recent intentional discrimination employed by the State in redistricting and the persistent pattern of discriminatory governmental action in Texas directed at minority voters for generations,” the plaintiffs write.

[..]

“The Supreme Court held that the discriminatory intent of the 2011 legislature was erroneously imputed to the 2013 legislature, it left the findings of intentional discrimination as to the 2011 plans untouched, ‘express[ing] no view on the correctness of this holding,’” the plaintiffs, including the League of United Latin American Citizens and the Texas State Conference of NAACP Branches, write. “This Court’s findings of intentional discrimination in the 2011 Congressional and State House plans remain in place, and these findings — coupled with Texas’s persistent history of continued intentional discrimination — amply justify Plaintiffs’ request for relief under Section 3(c) [of the Voting Rights Act].”

See here and here for the background. The joint plaintiffs and Quesada plaintiffs’ petition for relief under Section 3 of the Voting Rights Act is here, the Task Force plaintiffs’ request is here, and every legal document associated with the case is here; scroll all the way to the bottom to see the most recent stuff. I haven’t seen any other news about these filings, so I guess this subject isn’t as sexy as it once was. Understandable, given the SCOTUS vandalism to the Voting Right Act, not to mention the likelihood of success, but this is still important. The state has till January 15 to respond. I’ll keep an eye on it.

Paxton sues San Antonio over “sanctuary cities” law

This is gonna be ugly.

Best mugshot ever

Texas is suing the city of San Antonio for an alleged violation of the state’s new anti-“sanctuary cities” law, in the state’s first enforcement action against a city under the controversial statue.

The lawsuit, filed Friday in Travis County District Court, centers on a December 2017 incident when San Antonio police discovered a trailer carrying 12 individuals from Guatemala who were suspected of being undocumented. The city’s police department charged the driver with smuggling of persons, but released the migrants without involving federal immigration authorities, as the new law requires, according to the state’s lawsuit.

The 2017 “sanctuary cities” law, known as Senate Bill 4, says police departments can’t bar their officers from questioning the immigration status of people they detain or arrest. It also punishes local government department heads and elected officials who don’t cooperate with federal immigration “detainers” — requests by agents to turn over immigrants subject to possible deportation

San Antonio’s police department policy states that officers will not refer individuals to Immigration and Customs and Enforcement unless they have a federal deportation warrant. That policy, the Texas lawsuit claims, “prohibits and materially limits the enforcement of immigration laws.”

The lawsuit seeks hefty civil fees from the city, including a $25,500 penalty for nearly every day that the city’s immigration procedures violated state law. The law went into effect Sept. 1, 2017 — meaning those fees could amount to some $11.6 million.

[…]

Paxton’s office has asked the court to issue an injunction requiring the city to comply with the new law, as well as assess major civil penalties against the city, police department and McManus.

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, slammed the lawsuit, claiming it had “three obvious purposes: to intimidate and frighten immigrants in the state of Texas, to pressure Texas localities to violate constitutional rights, and to attract public attention for Paxton from the nativist fringe.”

I don’t know why Paxton is filing a suit now over something that happened nearly a year ago. I mean, Republicans have been braying about this particular incident all along. Maybe he didn’t want to take action before the election, but you’d think this is the sort of thing the likes of Paxton would see as an asset. Bear in mind, there is also the lawsuit against the “sanctuary cities” law, which is still to be heard in court. There’s a lot of ways this could wind up going.

HPOU files first Prop B lawsuit

And away we go.

Courthouse officials were scrambling to find a judge Friday afternoon to hear a lawsuit by the Houston Police Officers Union against the city of Houston and the Houston Professional Fire Fighters Association, that seeks an immediate halt to implementation of a voter-approved ballot initiative that would give Houston firefighters “pay parity” to police officers of similar status.

The lawsuit, filed midday Friday in the 234th state district civil court, seeks to block “Proposition B,” arguing it amounts to an unconstitutional amendment to Houston’s charter, and was void from the start. After hearing initial argument by the police union lawyer to put on the brakes, State District Judge Wesley Ward indicated to lawyers he planned to recuse himself and needed to find another judge in the building who could take over.

Ward, a Republican who was voted out last month on the same ballot with Proposition B, reportedly told attorneys in chambers he had a conflict of interest because he planned to join a law firm where one of the attorneys on the case works.

[…]

The 25-page suit argues that the pay-parity charter amendment is unconstitutional because it “is preempted by and directly conflicts” with state law requiring that firefighters be paid to comparable private sector employment, as well as posing an “irreconcilable conflict” with state law because it ties firefighter compensation to those of other public sector employees, and further conflicts with state law because the two professions do not require “the same or similar skills, ability, and training.”

The measure “undermines and interferes with HPOU’s right to collectively bargain, because both HPOU and the City are forced to consider the economic effect of a third-party’s interjecting interests,” according to the lawsuit. The plaintiff’s attorneys also argued that the requirements of Prop B put the HPOU in the position of representing firefighters who had not chosen the union to represent them and who do not have the same responsibilities as police.

The suit also argues that Prop B runs contrary to local government code mandates that say police and fire departments are “separate collective bargaining units unless they voluntarily join together” for collective bargaining with a public employer.

Well, I don’t know what the city’s lawyers will tell them, but clearly HPOU’s attorneys are not hesitating. The ordinance that Council passed to accommodate Prop B is set to take effect on January 1, so I presume the cops are seeking to get a judge to put it on hold pending the litigation. That’s usually the way these things work. We’ll see now if the city joins this lawsuit or files their own; I presume the latter, though most likely in the end the two will be combined. December is already shaping up to be quite the month.

UPDATE: That was quick:

A state district judge Friday evening granted a temporary restraining order blocking the implementation of a voter-approved charter amendment requiring the city of Houston to grant its firefighters “pay parity” with police officers of similar rank and experience.

State District Judge Kristen Brauchle Hawkins granted the TRO Friday night at the request of the Houston Police Officers Union, which filed a lawsuit earlier in the day against the city and the Houston Professional Fire Fighters Association. The judge set a hearing for Dec. 14.

The fire union opposed the TRO request, but lawyers for the city did not.

Buckle up, y’all.

AG rules Confederate plaque can be removed

Let’s get a move on then.

Rep. Eric Johnson

The Texas Legislature or a state board chaired by Gov. Greg Abbott can remove a plaque in the Capitol honoring Confederates, Attorney General Ken Paxton said in a published opinion Wednesday, providing clarity to a longstanding question over who has the power to do so — and how it can be done.

The “Children of the Confederacy Creed” plaque, which asserts that that the Civil War was “not a rebellion, nor was its underlying cause to sustain slavery,” had been the cause of controversy for lawmakers for months. Several have called it offensive and historically inaccurate.

Last October, state Rep. Eric Johnson, D-Dallas, called for the plaque’s removal and submitted a formal request to do so to the Texas State Preservation Board, which is chaired by Abbott and includes four other Republican elected officials and one citizen representative. Johnson, whose office is near the plaque, renewed those calls on Wednesday, noting that his request was never approved.

“They could take it down before the end of business today,” he said in an interview. “There shouldn’t be any confusion that the method I’ve chosen to go about this is the right one.”

Abbott said following a meeting with Johnson last year that he would have the preservation board “look into” how to remove the plaque. Paxton’s opinion made clear that three groups could make that decision: the Legislature, the Texas Historical Commission or the preservation board.

And any legislator can submit a form to request the removal of a “monument or memorial” — as Johnson did — and submit it to the preservation board, Paxton said. The curator of the Capitol, who works for the board, can approve the change — or the board has the discretion to do it itself.

See here and here for the background. Rep. Johnson is correct that he has done all the right things, and he has every reason to expect that the Preservation Board, under Greg Abbott’s direction, will follow through. And when they don’t – because honestly, no one should expect Greg Abbott to show leadership or do the right thing when it doesn’t advantage him – he will surely file a lawsuit. That can all be easily avoided, if Greg Abbott does his job. We’re all waiting.

Buc-ee’s and Choke Canyon settle

Our long animal mascot-based intellectual property litigation nightmare is finally over.

Popular Texas convenience store chain Buc-ee’s and Choke Canyon, a competing store that was found by a federal jury to infringe Buc-ee’s beaver logo, agreed Thursday to dismiss the lawsuit, meaning the damages portion of the trial won’t take place.

The damages portion of the trial was slated to begin in May 2019, but according to court records the parties attended mediation on Oct. 9 and entered a settlement agreement resolving all outstanding claims. On May 22, jurors found in favor of Buc-ee’s on all claims after hearing four days of testimony, agreeing Choke Canyon’s logo of a cartoon alligator wearing a cowboy hat was too similar to Buc-ee’s logo of a cartoon beaver wearing a baseball cap.

Charles Hanor, who represents Choke Canyon, told Law360 on Thursday the terms of the settlement are confidential and declined to comment further. Buc-ee’s general counsel, Jeff Nadalo, issued a statement to Law360 that the settlement meant Choke Canyon “surrendered its federal trademark registration of the offending logo, removed all offending logos and products and has paid substantial damages to Buc-ee’s.”

In the joint stipulated dismissal filed by the parties in federal court in Houston on Thursday, the stores told the court they had agreed to dismiss with prejudice all remaining claims.

“The permanent injunction the court entered on Aug. 3, 2018 will remain in full effect,” the brief filing reads. “Buc-ee’s and Choke Canyon each shall bear their own costs, expenses and attorneys’ fees.”

That injunction, issued by U.S. District Judge Keith P. Ellison, bars Choke Canyon from using its cartoon alligator logo on store-branded products, in advertising, or in any other capacity — including color and black-and-white versions of the logo, and versions of the logo with and without Choke Canyon text surrounding the mascot.

Hanor had told Law360 at the time it would cost Choke Canyon more than $100,000 to comply with the judge’s order. Choke Canyon has already put to use a new logo, this one featuring a cartoon cowboy who is winking and wearing a cowboy hat.

See here, here, and here for some background. For you law nerds, the case is Buc-ee’s Ltd. v. Panjwani et al., case number 4:15-cv-03704, in the U.S. District Court for the Southern District of Texas. Choke Canyon had been planning to appeal, based on some evidence the judge didn’t allow and other factors, but in the end decided this was the better way to go. I wish them the best of luck in their non-animal-logo future.