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World’s worst pastors file suit against Austin’s equal rights ordinance

Exactly what you’d expect from these jerks.

A Houston-based religious nonprofit behind the so-called bathroom bill is suing the City of Austin over its anti-discrimination hiring ordinance. The U.S. Pastor Council filed suit in a federal district court late last week, alleging the city rule’s lack of exemptions for churches or other religiously affiliated groups violates state and federal law.

The suit asks the court to block the enforcement of the ordinance on behalf of its 25 member churches in the Austin area “because these member churches rely on the Bible rather than modern-day cultural fads for religious and moral guidance, they will not hire practicing homosexuals or transgendered people as clergy.”

In a June letter to the Austin City Council, Executive Director David Welch reasoned that the ordinance didn’t provide wide enough berth for religious exemption – and that Catholic churches refusing to hire women as priests or “homosexuals as clergy” would be violating the city law.

“These are the stingiest religious exemptions we have ever seen in an anti-discrimination law,” Welch wrote. “It is inexcusable that you would purport to subject a church’s hiring decisions to your city’s antidiscrimination ordinance.”

In a written statement today, the city defended its anti-discrimination ordinance.

“The ordinance reflects our values and culture respecting the dignity and rights of every individual,” said city spokesperson David Green. “We are prepared to vigorously defend the City against this challenge to the City’s civil rights protections.”

There’s a copy of the lawsuit embedded in the story. This is all transparent bullshit, but that’s par for the course with these clowns. The good news is that the good guys aren’t worried about this, or the accompanying state lawsuit that was also filed.

Texas Values, another conservative Christian organization, filed a separate, broader lawsuit in state district court, also on Saturday, seeking to invalidate the ordinance as it applies to both employment and housing decisions.

[…]

Texas Values’ lawsuit also invokes the Texas Religious Freedom Restoration Act, which says that, in general, governments cannot “substantially burden a person’s free exercise of religion.”

“The city of Austin’s so-called anti-discrimination laws violate the Texas Religious Freedom Restoration Act by punishing individuals, private businesses and religious nonprofits, including churches, for their religious beliefs on sexuality and marriage,” Jonathan Saenz, the president of Texas Values, said in a statement to The Texas Tribune.

[…]

“These lawsuits certainly highlight a coordinated effort among people who want to target LGBTQ people in court,” said Paul Castillo, a senior attorney at Lambda Legal, an advocacy firm for LGBTQ rights.

Castillo said he has not examined Texas Values’ suit but that the city of Austin “is on solid legal ground” in the U.S. Pastor Council lawsuit.

“In order to walk into court, you have to demonstrate some sort of injury,” Castillo said. “It doesn’t appear that the city of Austin is enforcing or has enforced its anti-discrimination laws in a way that would infringe upon these religions.”

He added that the timing of the lawsuits is “certainly suspect” as groups attempt to politicize LGBTQ issues ahead of the upcoming legislative session.

Jason Smith, a Fort Worth employment lawyer, said he expects both lawsuits to “go nowhere.” He points to former Supreme Court Justice Anthony Kennedy’s opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which Smith said made it clear that religious beliefs do not justify discrimination.

Still, he said people should be “worried by the repeated attempts to limit the Supreme Court’s announcement that the Constitution protects gays and lesbians.”

There is currently no statewide law that protects LGBTQ employees from discrimination, but San Antonio, Dallas and Fort Worth have nondiscrimination ordinances similar to Austin’s. Smith said the other cities will be watching how the lawsuits in Austin unfold and that some cities may even file briefs to make the court aware of their positions.

Good to know, but as always it all comes down to what the judges make of it. I guess I have more faith in the federal courts at this point than our state courts, at least at the higher levels, but we’ll see. ThinkProgress has more.

Dallas County gets the Harris County treatment in its bail lawsuit

We have a precedent, even if everything is still a work in progress.

Taking a cue from the rulings on Harris County’s bail-setting practices, a U.S. district judge in Dallas issued a temporary order Thursday evening saying the county’s post-arrest procedures routinely violate inmates’ constitutional rights. The judge gave the county 30 days to change its ways.

U.S. District Judge David Godbey in Dallas said that the county has to stop the practice of imposing pre-set bail bond amounts, which often keep poor defendants locked up for days or weeks while letting wealthier ones go free, without individual consideration if arrestees claim they can’t afford it. He sided with the plaintiffs’ allegation that the county uses “wealth-based detention.”

“Wealthy arrestees — regardless of the crime they are accused of — who are offered secured bail can pay the requested amount and leave,” Godbey wrote. “Indigent arrestees in the same position cannot.”

[…]

Godbey relied heavily on Harris County rulings from the federal district court and the appellate court. He said the cases had the “same roots” — despite Dallas’ lawsuit also including felony defendants whereas Harris only involves those accused of misdemeanors — and concluded that doing anything other than what the appellate court ruled in Harris would “put the Court in direct conflict with binding precedent.”

“Broadly, those procedures include ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decision-maker,’ he wrote, quoting the higher court’s ruling.

See here for some background, and here for an earlier story on how bail hearings have been done in Dallas. You know where I stand on this, and we both know that Dallas County has Democratic leadership, and thus I hope more than enough incentive to find a settlement. Some long overdue change is coming, and it is in everyone’s best interests to embrace it. The Chron and the Observer have more.

Dallas lawsuit over candidate eligibility officially mooted

From the inbox:

On Thursday, September 20, 2018, the Fifth Court of Appeals issued an Order in Dallas County GOP v. Dallas County Democratic Party, stating that any relief related to the November election is moot, and that the appeal, therefore, is limited to the propriety of dismissal under Rule 91a and attorney’s fees. Chad Baruch of Johnston, Tobey Baruch Law Firm, one of the attorneys for the Dallas County Democratic Party (the “Democrats”), explained: “This means, effectively, that only the attorney’s fees issue will be considered by the Appellate Court. The case is over as to the November ballot and the eligibility of the candidates.”

During the 2018 Primary, the Dallas County Republican Party (the “Republicans”) filed suit against the Democrats, asking the trial court to remove over 100 Democratic candidates from the ballot. The Republicans claimed that the candidates’ applications were not valid because they had not been personally signed by the Dallas County Democratic Party Chair. Upon review of the pleadings, and after a hearing on the merits, the trial court found that “the Texas Election Code does not impose a manual signature requirement” as alleged by the Republicans. The Court held that the Republicans claims are “moot,” that their party “lacks standing,” and that such claims should be dismissed as “lacking a basis of law.” The trial court also held that the Democrats were entitled to recover, from the Republicans, attorney’s fees in the amount of $41,275.

Carol Donovan, Chair of Dallas County Democratic Party stated, “During this election season, the Republican Party has been filing frivolous lawsuits against Democrats to try to remove candidates from the ballot. It appears that the Republicans are afraid to let the voters decide what persons they want to represent them. Thankfully, the rulings of the courts support democracy.”

See here, here, and here for the background. I didn’t find any news coverage of this, but the case is No. 05-18-00916-CV at the Fifth Court of Appeals, and a link to the court’s order is here. The relevant bits:

Appellants and appellees filed letter briefs as directed. The parties agree that any relief sought regarding the November 6, 2018 general election, including preparation of the ballot and what candidates may or may not appear on the ballot, will be mooted by the election schedule.

Appellants affirmatively state that they “do not request relief related to the general election” and “only seek to appeal relief related to the lower Court’s decision on subject matter jurisdiction; 91(a), and the mandatory attorney’s fees.” Appellants further state that their appeal seeks this Court’s ruling on five issues that are not mooted by the election schedule and relate to the propriety of the lower court’s dismissal under Rule 91a and the award of attorney’s fees.

Appellees concede that appellants may appeal the fees award and that the fees issue is not moot. Appellees did not address, however, whether they dispute appellants’ ability to appeal the propriety of dismissal under Rule 91a.

So, even though the late-in-the-day appeal still sought to argue that DCDP Chair Carol Donovan needed to sign the candidate petitions, in the end all that was argued was whether the case was properly dismissed, and how much is owed to the DCDP in attorneys’ fees. This is what you call ending with a whimper. At least it’s one less thing to worry about before voting begins.

Now how much would you pay to fix Houston’s sewer system?

We may be about to find out.

Federal and state authorities sued the city of Houston over its long-running struggle to limit sewage spills on Friday, marking the beginning of the end of a years-long negotiation that could force the city to invest billions to upgrade its sprawling treatment system.

Houston’s “failure to properly operate and maintain” its 6,700 miles of sewer pipes, nearly 400 lift stations and 40 treatment plants caused thousands of “unpermitted and illegal discharges of pollutants” due to broken or blocked pipes dating back to 2005, the suit states. The city also recorded numerous incidents when its sewer plants released water with higher than allowable concentrations of waste into area waterways, the filing states.

The lawsuit by the Department of Justice on behalf of the Environmental Protection Agency and the Texas Commission on Environmental Quality wants a judge to force Houston to comply with the Clean Water Act and Texas Water Code — typical orders include upgrading pipes, ramping up maintenance and educating the public on how to avoid clogging city pipes — and to assess civil penalties that could reach $53,000 per day, depending on when each violation occurred.

[…]

The filing was spurred by the intervention of a local nonprofit, Bayou City Waterkeeper, which announced in July that it planned to sue the city over the same violations and which filed its own lawsuit on Friday mirroring the EPA’s claims. It states that the city has reported more than 9,300 sewer spills in the last five years alone.

“The city’s unauthorized discharges have had a detrimental effect on, and pose an ongoing threat to, water quality and public health in the Houston area and have caused significant damage to the waters that Waterkeeper’s members use and enjoy,” the nonprofit’s filing states.

Waterkeeper’s July announcement was required by the Clean Water Act, which mandates that citizens or citizen groups planning to sue under the law give 60 days’ notice, in part to allow the EPA or its state counterparts to take their own actions.

See here for the background. This has been going on for a long time, and the city has been in negotiation for a resolution to this. How much it will all cost remains the big question. The one thing I can say for certain is that no one is going to like it. As a reminder, consider this:

Upon taking office in 2004, former mayor Bill White locked utility revenues into a dedicated fund, raised water rates 10 percent, tied future rates to inflation, and refinanced the debt. That was not enough to prevent the debt mountain from risking a utility credit downgrade by 2010, when former mayor Annise Parker took office, so she passed a 28 percent rate hike.

Remember how much some people bitched and moaned about that rate hike? Get ready to experience it all again.

Distributing the VW settlement money

Good for some, less good for others.

Texas cities will soon get millions of dollars to help clean up air quality, but Houston officials say the plan for distributing all that money isn’t fair.

The money is coming from a settlement in the Volkswagen (VW) emissions cheating scandal. Local governments will be able to use the money to reduce emissions from their vehicles and other equipment.

The Texas Commission on Environmental Quality (TCEQ) plans to give the biggest chunk of the money – more than $73 million – to the San Antonio area, mainly because that city is closer than others to getting in line with federal pollution rules it’s currently violating.

Under the state’s plan, the Houston area, which has worse air quality, would get about $27 million.

The City of Houston says about a quarter of the cheating VW cars that were in Texas were driving in the Houston region.

“So we deserve at least a quarter of those funds, because we’re the ones that were harmed,” said Kris Banks, a government relations assistant with Houston Mayor Sylvester Turner’s office.

See here, here, and here for some background. Mayor Turner expressed his disenchantment with the amount allocated to Houston in a press release; you can see all of the city’s documentation on the matter here. The full TCEQ plan for the VW Environmental Mitigation Trust is here, or you can save yourself some time and read the Texas Vox summary of it. The TCEQ is still accepting feedback on the draft plan through October 8, so send them an email at VWsettle@tceq.texas.gov if you have comments. The Rivard Report has more.

Voter ID lawsuit officially ends

That’s all there is, at least until the next atrocity.

Still the only voter ID anyone should need

A federal judge formally dismissed the lawsuit challenging the Texas voter ID law Monday, the final step in a yearslong fight that will allow the state to enforce a weakened version of the 2011 statute.

At the urging of Texas Attorney General Ken Paxton, U.S. District Judge Nelva Gonzales Ramos of Corpus Christi issued a two-sentence order dismissing the case in light of April’s decision by the 5th U.S. Circuit Court of Appeals that upheld the law.

Lawyers for the minority voters, Democratic politicians and civil rights groups that challenged the law had argued that Paxton’s request for a dismissal was an unnecessary step because there was nothing left to decide — except for assessing legal fees and costs — after the 5th Circuit Court’s decision.

See here for the background. Like I said, we’re going to need a political solution to this problem. Maybe with a different Supreme Court we could keep pushing this via litigation, but I expect we all understand that’s not the world we currently inhabit. First we have to create that world, and that gets us back to my initial point. There is still an effort to put Texas back under preclearance, but even if that happens (spoiler alert: it almost certainly won’t) it won’t change what has already occurred. It can only affect what may be yet to come. The road forward starts with winning some elections. This November would be an excellent time for that.

Southwest Key sues city over permit for child detention warehouse

Screw them.

The Austin-based nonprofit trying to open a shelter to house migrant children east of downtown sued the city of Houston Friday, alleging a discriminatory, baseless and politically motivated campaign to prevent it from opening the facility.

Southwest Key Programs alleges in the lawsuit, filed in federal court in Houston, that the city is “manipulating” its permitting process, invalidating previously issued permits without due process and refusing to conduct inspections or issue new permits. The suit claims these actions are discriminatory based on some combination of the city’s opposition to federal immigration policies, interest in “political gain” or the race, color, national origin, ancestry, alienage or immigration status of the unaccompanied minors who would be housed there.

The lawsuit asks a court to grant Southwest Key monetary damages and declare that it can proceed with its plans to open the facility.

“The city of Houston has ignored its own regulations, and past practices, and has knowingly misrepresented the facts to the state of Texas to deny Southwest Key a license to open the facility,” Southwest Key said in a statement released Friday. “City officials bent the rules and broke the law for the sole purpose of advancing the mayor’s political agenda.”

[…]

“The city is only interested in the safety, security and well-being of children and will continue to enforce all building codes and regulations designed to accomplish that purpose,” Mayor Sylvester Turner said in a statement. “Southwest Key has repeatedly been asked to provide plans that meet existing building codes for the intended use of the facility at 419 Emancipation Street in Houston. They have failed to do so. Hopefully, they will realize that they are not exempt and must follow the rules like everyone else. We continue to wait for them to respond. In the meantime, we will review the pleading and respond accordingly.”

See here and here for the background, and here for the Mayor’s statement. I have no idea if Southwest Key’s claims have any validity, and to be honest I don’t care. Southwest Key can go fuck themselves.

Partisan statewide judicial elections upheld

I’d totally forgotten about this lawsuit.

A federal judge has rejected a race-based challenge to the way Texans fill seats on the state’s highest courts.

U.S. District Judge Nelva Gonzales Ramos of Corpus Christi handed the state of Texas a win Wednesday, writing that its current method for electing judges to the Texas Supreme Court and the Court of Criminal Appeals does not violate federal safeguards for voters of color.

The system does dilute the power of Hispanic voters, Ramos wrote. But it’s not clear that “race rather than partisanship” explains why Hispanic voters’ preferred candidates tend to lose at the polls.

Seven Hispanic voters and a community organization sued the state in 2016, arguing that Texas’ statewide judicial election system violates the federal Voting Rights Act because it weakens Hispanic voters’ political clout and keeps them from electing their preferred candidates. Both high courts have been entirely dominated by Republicans for more than two decades, and both courts remain overwhelmingly white.

[…]

The plaintiffs had proposed that Texas adopt a single-member district approach, carving up the state geographically to allow for Hispanic-majority voting districts. In her Wednesday ruling, Ramos conceded it would be possible to remedy the Hispanic voters’ “electoral disadvantage” by switching to single-member elections. But she declined to order that change because the voters had failed to prove that the obstacles they faced to electing their preferred candidates were “on account of race.”

See here, here, and here for the background. It was an interesting argument, though as commenter Mainstream pointed out in that middle update it would have been a challenge to draw districts to try to remedy the problem if the judge had found for the plaintiffs. At some point – maybe this year! – Democrats are going to break through at the statewide level, and that could easily scramble the arguments that would apply now. I don’t know if the plaintiffs intend to appeal, but it seems to me they’ve already faced the court most likely to be amenable to them. It’s not going to get any easier from here.

The hearing for the lawsuit to kill Obamacare

Here we go again.

It’s constitutional – deal with it

At the hearing Wednesday, Texas aimed to convince U.S. District Judge Reed O’Connor to block the law across the country as it continues to fight a months- or years-long legal case that could land before the U.S. Supreme Court.

Citing rising health care premiums, Texas says such an injunction is necessary to preserve state sovereignty and to relieve the burden on residents forced to purchase expensive insurance coverage. California counters that temporarily blocking or ending the law would cause more harm to the millions of people insured under it, particularly the 133 million people the state says enjoy the law’s protections for pre-existing conditions. The U.S. Department of Justice, which has taken up many of Texas’ positions in the case, nonetheless sided with California, arguing that an immediate injunction would throw the health care system into chaos.

[…]

Inside the courtroom, where protesters’ shouts were inaudible, Darren McCarty, an assistant attorney general for Texas, argued that “the policies, the merits of the ACA are not on trial here” — just the legality. In that legal argument, McCarty leaned heavily on a 2012 U.S. Supreme Court decision on Obamacare, which upheld the law by construing the “individual mandate,” a penalty for not purchasing insurance, as a tax that Congress has the power to levy. Texas argues that after Congress lowered that fee to $0 in a slate of December 2017 tax cuts, the fee is no longer a tax and thus no longer constitutional. With it must go the rest of the law, the state claims.

“There is no more tax to provide constitutional cover to the individual mandate,” McCarty said. “Once the individual mandate falls, the entire ACA falls.”

California countered that a tax can be a tax even if it doesn’t collect revenue at all times. And, attorneys for the state claim, even if the individual mandate is unconstitutional, the court should let lie “hundreds of perfectly lawful sections,” argued Nimrod Elias, deputy attorney general for California.

The case will likely turn on that question of “severability”— whether one slice of a law, if ruled unconstitutional, must necessarily doom the rest. O’Connor, who nodded along carefully throughout the hearing, lobbed most of his questions at the California attorneys, and many of them focused on whether the various pieces of Obamacare can be unentangled.

Elias said that in the vast majority of cases, the Supreme Court acts with “a scalpel, not a sledgehammer,” leaving in place most of a law even if one provision must be struck. The Texas coalition pointed to a more recent case in which the high court struck an entire law based on a narrow challenge.

O’Connor — a George W. Bush-appointee who has ruled against Obamacare several times, albeit on narrower grounds — also honed in on the question of legislative intent. Texas argued that the individual mandate was a critical piece of the law’s original version. But California argued that in 2017, in gutting the individual mandate without touching the rest of the law, lawmakers made it clear they wanted the law to persist without that provision.

“Would the legislature prefer what is left in statute to no statute at all?” Elias questioned. “We know what Congress intended based on what Congress actually did.”

See here and here for some background. Justin Nelson was at the hearing as well, pressing his attack on Paxton for his ideological assault on so many people’s health care. That really deserves more coverage, but the fact that most everyone outside of Paxton’s bubble thinks his legal argument is ridiculous is probably helping to keep the story on a lower priority. (Well, that and the unending Wurlitzer shitshow that is the Trump administration.) I mean, I may not be a fancypants lawyer, but it sure seems to me that eight years of Republicans vowing to repeal Obamacare plus the entire summer of 2017 trying to repeal Obamacare plus the abject failure to repeal Obamacare would suggest that the Republicans did not intend to repeal Obamacare with the bill that they finally did pass. If they could have they would have, but they couldn’t so they didn’t. I don’t know what else there is to say, but we’re going to have to wait till after the November elections – wouldn’t be prudent to do that before people voted, you know – to find out what this hand-picked judge thinks. Ken Janda, the Dallas Observer, and ThinkProgress have more.

The city has its own bail lawsuit

It’s not going well.

Houston city officials intentionally destroyed evidence, wiping crucial data from the computer drives of top police commanders that is potentially relevant to a lawsuit about the detention of suspects beyond the 48-hour deadline for a magistrate hearing, a federal judge has ruled.

U.S. District Judge Kenneth M. Hoyt’s rare ruling last week means that if the case goes to trial, jurors will receive an “adverse instruction” about the records destruction. The jury must infer as fact that authorities destroyed evidence, knowingly and routinely detained people more than 48 hours without a probable cause hearing, and acted with deliberate indifference to the fact that they were violating defendants’ constitutional rights, the judge ruled.

The judge did not accuse the city of destroying evidence specifically to help it gain an advantage in the lawsuit, but the action is a blow to any defense the city could mount.

[…]

The 2016 class-action lawsuit challenged the city’s treatment of thousands of people jailed for days after warrantless arrests between January 2014 and December 2016. The complaint accuses officials of false imprisonment and alleges that they violated defendants’ constitutional rights to equal protection and a determination of probable cause by a judge. The case was brought by Civil Rights Corps and the Texas Fair Defense Project — the groups that led the landmark suit challenging Harris County’s bail practices — and lawyers from the Houston firm Kirkland & Ellis LLP.

The suit was filed after the January 2016 arrests of Juan Hernandez, who was held 49 hours before seeing a magistrate on an assault charge, and James Dossett, who spent 59 hours in custody before facing a hearing officer via videolink on a charge of possession of a controlled substance. After a week in custody, Hernandez pleaded guilty. Authorities ultimately dropped the charges against Dossett when police failed to prove he had drugs.

The lawsuit also cites arrests in which defendants were held for more than 10 days before receiving a probable cause hearing. Overcrowding at the county jail creates a bottleneck at the city facility, the suit said.

The plaintiffs’ lawyers argued that the city had a “broad, longstanding, and consistent policy of refusing to release warrantless arrestees” even when more than 48 hours had passed since their arrests, and that the city failed to provide thousands of records relevant to this policy and practice.

See here for some background, and here for an earlier Chron story (embedded in this one and the basis of that post) on the subject. I’m appalled by what’s in this story, which I don’t think can be adequately explained by simple incompetence on the city’s part. There needs to be a serious investigation of who was responsible for what, and consequences to follow. This is unacceptable at every level. The city needs to throw itself on the mercy of the court and make an extremely generous settlement offer to the defendants.

“Fetal remains” law tossed

Very good.

U.S. District Judge David Alan Ezra struck down a Texas law on Wednesday that would have required hospitals and clinics to bury cremate fetal remains, causing another courtroom setback for state leaders and anti-abortion groups.

Under Senate Bill 8, passed in 2017, health care facilities including hospitals and abortion clinics would be required to bury or cremate any fetal remains — whether from abortion, miscarriage, stillbirth, or treatments for ectopic pregnancy regardless of patients’ personal wishes or beliefs. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. At the time Sparks said it was vague, caused undue burden on women and had high potential for irreparable harm.

Over the course of a nearly 30-minute hearing at a federal court in Austin on Wednesday, Ezra gave a synopsis of the ruling, calling the case “a very emotional topic.” The requirement would have been challenging for health providers, in part because it would be difficult to find medical waste vendors willing to participate. In addition, Ezra expressed wariness about the state having to reach out to private cemeteries to help with fetal remain disposals.

“The implementation of this law, as I have pointed out, would cause and, if allowed to go into effect, would be a violation of a woman’s right to obtain a legal abortion under the law as it stands today,” Ezra said.

[…]

Multiple doctors and health advocates who testified said women often don’t ask what happens to their fetal tissue, since they assume it’ll be treated like medical waste. Providers also said they have experienced challenges trying to find medical waste vendors willing to work with their clinics. A top reason, they said, is that vendors are unwilling to endure backlash and harassment from anti-abortion advocates.

See here, here, and here for the background. I’m terribly amused by the fact that the zealotry of the anti-abortion movement was cited as a reason that this law they supported is illegal. If there’s a Greek goddess of irony, she’s pouring herself a glass of wine right now. Of course the state will appeal, and we know that the Fifth Circuit and soon SCOTUS are places where hope goes to be strangled in a back alley. But until then we have this, so let’s celebrate while we still can. The Observer has more.

DACA lives another day

But don’t relax just yet.

A federal district judge on Friday denied the state of Texas’ request that the Deferred Action for Childhood Arrivals program be put on hold after Texas and nine other states sued to halt the Obama-era program.

DACA was launched in 2012 and grants recipients a renewable, two-year work permit and a reprieve from deportation proceedings for immigrants who were brought to the United States while they were children. U.S. District Judge Andrew Hanen said the states could likely prove that DACA causes the states irreparable harm. But Hannen wrote that the states delayed in seeking the relief for years. He added that there was an abundance of evidence to show that ending the program “was in contrary to the best interests of the pubic.”

His decision means that hundreds of thousands of the program’s recipients can continue applying to renew their status — for now.

“Here, the egg has been scrambled. To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country,” Hanen wrote.

[…]

The case will now likely proceed to the 5th Circuit Court of Appeals, said Nina Perales, MALDEF’s vice-president of litigation, who argued the case earlier this month.

She said she disagreed with Hanen’s assertion that the way DACA was implemented violated the federal Administrative Procedures Act, which governs how federal regulations are made, and said Paxton’s predictions that Texas will succeed are overshadowed by Friday’s decision.

“The question that was presented to the court was decided in our favor. General Paxton can make predictions about what will happen later in this case,” she said. “But General Paxton lost today and DACA recipients won today. We have three federal court injunctions keeping DACA alive right now. Texas was hoping that Judge Hanen wold enter an injunction going in the other direction and Judge Hanen declined to do that.”

See here for the background. The state has 21 days to file an appeal to get the Fifth Circuit to grant the injunction it sought, and the court will proceed with the case after that. You know how I feel about this. I’m not going to guess what may happen from here, but at least nothing has been screwed up yet. The court’s order is here, and Daily Kos has more.

Going for Section 3

I wouldn’t get my hopes up, but Lord knows this is desperately needed.

The voters of color, civil rights groups and Democratic lawmakers who have long challenged the validity of Texas’ political maps were dealt a bruising loss earlier this year when the U.S. Supreme Court signed off on most of the state’s current political boundaries and pushed aside claims that state lawmakers had intentionally discriminated against voters of color when they drew the maps.

But a crucial question remained in the case: Would the state’s opponents ask the courts to force Texas back under federal oversight of its electoral map drawing, given previous maps that federal judges ruled discriminatory?

Their answer came Wednesday in a series of brief court filings in which some of the plaintiffs in the case indicated they wanted to press forward on those high stakes efforts.

[…]

In approving the state’s current maps, the high court in June wiped out a ruling by a three-judge federal panel in San Antonio that found the maps, which were adopted in 2013, 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 in 2011 first embarked on redrawing the state’s maps following the 2010 census.

Though the plaintiffs lost on their challenge to the state’s current maps, groups that challenged the maps pointed to some of those 2011 violations in indicating to the San Antonio panel that the issue of a return to federal oversight was not yet settled in the case.

See here for the background. I want to be clear that I agree with everything the plaintiffs are saying. I just don’t believe that the courts will lift a finger to do anything about it. The lower court might go along with it, since they previously ruled that the Republicans had discriminated in drawing the maps, but there are no circumstances I can imagine where SCOTUS will uphold that. It’s just not going to happen. The only possible recourse would have to come from Congress. That’s what we need to push for and work for in the next two elections.

In the meantime, there is now one item on the to-do list.

Before 45 days pass in the next legislative session, Texas lawmakers must begin fixing discriminatory issues with the way in which North Texas’ House District 90 was drawn.

In a brief order, a three-judge panel based in San Antonio told lawmakers they needed to address racial gerrymandering violations in the district — the only exception the U.S. Supreme Court made when it signed off on the state’s embattled political maps earlier this year. HD-90, which is occupied by Democratic state Rep. Ramon Romero, was deemed an impermissible racial gerrymander because lawmakers illegally used race as the predominant factor in deciding its boundaries.

Opponents of the state’s maps had previously indicated to the court that they wanted to revert the district to its 2011 version, a suggestion the state said it opposed and that the panel said it disagreed with.

On Thursday, the panel ordered lawmakers to redraw the district — either in a 2018 special legislative session that would need to be called by the governor or at the start of the 2019 legislative session. If a proposal isn’t introduced within the first month and half of the session, the judges said they would undertake the “unwelcome obligation” of fixing the district.

That’s fairly small potatoes, but it needs to be done and I for one would be interested to see what happens if the court winds up having to do the deed itself. As a reminder, the voter ID litigation is over, so this is the only court action left relating to the original 2011 legislative atrocities. The DMN has more.

Nelson attacks Paxton over Obamacare lawsuit

Good.

Justin Nelson

The Democrat challenging Ken Paxton is denouncing the attorney general for suing to wipe out the Affordable Care Act‘s health care protections for Americans with pre-existing conditions.

Justin Nelson, a Houston attorney, plans to hold a rally outside the federal courthouse in Ft. Worth where Paxton’s team will argue its case next week. He’s also launched a webpage urging Texans to share how axing the ACA, also known as Obamacare, will affect their access to health care.

“Paxton is leading the charge to take away pre-existing condition protections not just from all Texans but from all Americans and that is so wrong,” Nelson said in a video message Monday. “We’ve started the hashtag, #MyPreExisting, and on this website you can click on the button below and record your video. Tell us how you are affected in this life and death issue.”

Nelson’s campaign website also includes a list of common pre-existing conditions, like arthritis, sleep apnea and pregnancy. Texans with these conditions and many others could see higher health care costs if the Obamacare protections are rescinded.

[…]

About 27 percent of non-elderly Texans — or around 4.5 million people — have pre-existing conditions that could result in them facing difficulty obtaining insurance if Obamacare is overturned, according to the Kaiser Family Foundation. More than 52 million Americans fall into this category, 20.7 million of whom live in the 20 states suing to end the pre-existing condition protections.

In addition to Texas, officials from Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin are parties to the Obamacare lawsuit.

See here and here for the background. You can feel however you want to feel about Obamacare and Ken Paxton and whatever else, but something that would affect this many people in such a direct fashion ought to be part of the discussion in an election year. Good for Justin Nelson for doing that.

Trump administration seeks to dismiss MALDEF lawsuit over Census citizenship question

It’s hard to keep all these Census lawsuits straight.

As multiple court fights over the addition of a citizenship question to the once-a-decade census heat up, the Trump administration is working to keep several Texas groups representing Latino and Asian residents on the sidelines.

In a late Friday filing, attorneys for the U.S. Department of Justice asked a Maryland-based federal judge to toss a lawsuit filed by the Mexican American Legislative Caucus and the Texas Senate Hispanic Caucus — among other Texas-based organizations — that’s meant to block the controversial question from appearing on the census questionnaire in 2020.

Those groups allege that the addition of the citizenship question is unconstitutional because it will lead to a disproportionate undercount of Latino and Asian residents, non-citizens and their family members. Justice Department lawyers responded by challenging the plaintiffs’ standing to dispute the federal government’s decision to ask about citizenship status, and they argued it was unlikely the plaintiffs would be able to prove that the question would be harmful to them.

“The relief sought in this suit — an order barring the Secretary of Commerce from collecting demographic information through the decennial census — is as extraordinary as it is unprecedented,” the Justice Department attorneys wrote in the filing.

[…]

Throughout the almost 100 pages of legal briefs filed with the court on Friday, attorneys for the Trump administration sought to undermine those undercount concerns, repeatedly describing them as “too attenuated and speculative” to provide those challenging the inclusion of the question with firm legal standing.

A drop in responses and the alleged potential fallout “would be not be fairly traceable to the Secretary’s decision but would be attributable instead to the independent decisions of individuals who disregard their legal duty to respond to the census,” they wrote.

The Trump administration hasn’t had much success in fending of legal challenges to the citizenship question. As of this week, judges have greenlighted five federal lawsuits despite the administration’s objections.

[…]

In its Friday response, the Trump administration put forth several of the same arguments it presented in the Maryland suit [U.S. District Judge George] Hazel already ruled could move forward and even offered a rebuttal to what DOJ lawyers described as the judge’s “misguided” analysis.

See here for more on this lawsuit. In addition to the one in Maryland noted in the story, the lawsuit in New York was allowed to proceed as well. Given that the plaintiffs have discretion over where they file, you’d think that would bode well for this one as well.

Using one civil rights law to negate another

You have to give them credit for evil creativity, I guess.

A majority-black county in rural Georgia announced a plan last week to close seven of its nine polling places ahead of the November election, claiming the polls cannot continue to operate because they are not compliant with the Americans with Disabilities Act.

The move sparked instant opposition from voting rights advocates, who have threatened legal action if Randolph County follows though with the plan. Activists are also scrambling to collect enough signatures to stop the effort before Friday, when the election board will make a final determination.

The racial implications of the closures have generated significant attention. The county is over 61 percent black, and one of the polling locations that would be shuttered serves a precinct where more than 95 percent of voters are African American. Had the U.S. Supreme Court not gutted the Voting Rights Act in 2013, the closures would most likely have been blocked by the Department of Justice.

But the method in which the county is justifying the closures has generated less attention. Republican lawmakers and election administrators in Randolph County are not the first to use the federal Americans with Disabilities Act (ADA), intended to protect the nation’s disabled communities, as a pretext to disenfranchise minority voters.

The good news is that the subsequent public outcry eventually caused county officials to cancel this plan. I make note of this for two reasons. One is that under the Obama administration, Harris County was sued for having voting locations that violated the ADA, with election observers being dispatched in 2016 to monitor the situation. The last update on the lawsuit I had was from 2017, and earlier this year the Trump administration announced there would be no observers this year. I have no idea where any of this stands now.

And two is that in a world where people with evil intentions are not running the place, there is a much better, fairer, and more equitable solution to this kind of problem, and that’s to take all reasonable steps to make these voting locations accessible to all. The federal government could allocate funds to facilitate this, or it could fund the whole damn thing if it wanted to. Frankly, given the various atrocities committed by Republicans nationwide in the name of making it harder for some people to vote, something like this should be part of a comprehensive program by Democrats when they regain control over government (please, please), along with an updated Voting Rights Act, an updated National Voter Registration Act, redistricting reform, a serious review and upgrade of the nation’s voting machines and elections security, and so on and so forth. We’re supposed to be a democracy, let’s act like it and make it easier for everyone who is eligible to participate in it.

Dallas County “discrimination against white voters” lawsuit dismissed

It was always a silly idea.

A federal judge Thursday dismissed a landmark lawsuit that accused Dallas County commissioners of discriminating against white voters.

The lawsuit sought to dismantle the boundaries the county uses to elect commissioners, claiming that the lines dilute the voting strength of white residents.

U.S. District Judge Sidney Fitzwater said it’s possible for white voters to successfully claim voting rights discrimination, but he ruled that lawyers for the plaintiffs in Anne Harding vs. Dallas County didn’t prove their case.

He wrote that given the political makeup of Dallas residents of voting age, and the geographical distribution of Anglo Republicans, it isn’t possible to know if a GOP candidate could be elected in a second district.

“In other words, because plaintiffs have failed to produce any evidence at trial that the Commissioners Court could have created two performing districts for Anglo Republicans, the logical result is that [defendants] did not dilute the [Anglo Republican] vote,” Fitzwater wrote.

He continued: “In fact, if anything, the evidence shows that plaintiffs’ voting power has been strengthened, rather than diluted, by the concentration of Anglos in [Precinct 2] where they can reliably elect a Republican candidate. Accordingly, the court finds that plaintiffs have not proved their vote dilution claim.”

[…]

During the trial, the plaintiffs offered alternative boundaries that their experts contended would have resulted in two conservative Republicans on the Commissioners Court.

But Fitzwater was swayed by testimony from Democratic strategist Matt Angle, who drew the 2011 map. Angle said it wasn’t a given that voters in the two “Anglo” districts the plaintiffs sought would elect a Republican to the court.

Fitzwater’s opinion states that under the plaintiffs’ plan, white voters would be split between the existing Republican district and another one, opening the door for Democrats to control every seat on the Commissioners Court.

“There are not a sufficient number of Anglo Republicans to elect a Republican candidate in more then one commissioner district,” Fitzwater wrote.

See here and here for the background. A copy of the decision is embedded in the story. I’m dubious about the assertion that white voters could successfully claim voting rights discrimination – to say the least, I think the bar for that is going to be very, very high – but I’m not going to worry about that right now. The plaintiffs have a month to decide if they’re going to appeal. Good luck with that.

Appeals court allows city to post video of pay parity hearing

Probably doesn’t matter much at this point, but there it is.

Mayor Sylvester Turner

A Texas appeals court on Thursday ordered a state district judge to rescind his temporary restraining order requiring the city of Houston to remove video from its website that depicted a public city council committee hearing over a proposal to grant firefighters “pay parity” with police.

District Judge Kyle Carter should not have blocked the city from posting the video of the committee hearing because it is not clear the meeting constituted illegal electioneering, as the Houston firefighters union had alleged, the 14th Court of Appeals justices ruled.

That restraining order had expired last week anyway, said Cris Feldman, an attorney for the firefighters union, adding that the decision does not preclude a court from coming to the same conclusion that Carter did after further hearings in the case.

[…]

The section of state law banning local governments from using public funds to advocate for or against ballot measures was not intended to restrain public discussion of such issues, the justices wrote Thursday.

“It was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting,” the nine-page opinion states. “Public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the city’s website may be to re-publish statements supporting or opposing the charter amendment.”

See here for the background, here for the Mayor’s statement, and here for a copy of the opinion. As noted, the TRO had expired on August 14, and the Chron posted their own copy of the video shortly after Judge Carter handed down his opinion, so this is all mostly academic. It may mean something after the election when the lawsuits over the wording of the referendum gets filed, but until then it’s mostly a warm-up exercise.

Fifth Circuit upholds dismissal of campus carry lawsuit

Not a surprise.

The 5th U.S. Circuit Court of Appeals on Thursday upheld Texas’ campus carry law, delivering another clear victory to the state in a longshot, long-running lawsuit brought by University of Texas at Austin professors opposed to the law.

In July 2016, three professors claimed that a 2015 state law that allows licensed gun-owners to carry concealed weapons into most public university buildings would have a “chilling effect” on free speech in their classrooms. But a federal district judge threw out their case in July 2017, saying the professors didn’t present any “concrete evidence to substantiate their fears.”

Accepting that logic and advancing it yet further, a three-judge panel on the appeals court this week rebuffed the professors’ free speech claim as well as two other constitutional challenges they had made.

Like the lower court, the 5th Circuit panel found that the professors lacked standing to challenge the law because they had not sufficiently shown how it might harm them.

“[The professors] cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license holders will intimidate professors and students in the classroom,” Judge Leslie Southwick wrote for the unanimous panel.

See here for the background. The plaintiffs’ lawyer is talking about appealing to the Supreme Court, which strikes me as unlikely to succeed, even in the alternate universe of a SCOTUS with Merrick Garland and not-Brent-Kavanaugh. Some problems have to be solved via the ballot box, and this sure seems like one of them.

Woodfill and Hotze take their next shot at same sex employee benefits

Here we go again.

Anti-LGBTQ activists are again asking a Harris County judge to halt benefits for the same-sex spouses of Houston city employees, according to a recently filed motion.

The motion for summary judgment in Pidgeon v. Turner, a five-year-old lawsuit challenging the benefits, states that the city should not subsidize same-sex marriages because gay couples cannot produce offspring, “which are needed to ensure economic growth and the survival of the human race.”

The motion also asks Republican Judge Lisa Millard, of the 310th District Family Court, to order the city to “claw back” taxpayer funds spent on the benefits since November 2013, when former Mayor Annise Parker first extended health and life insurance coverage to same-sex spouses. And the court filing suggests that to comply with both state and federal law, the city should eliminate all spousal benefits, including for opposite-sex couples.

The motion for summary judgment was filed July 2 by Jared Woodfill, an attorney for Jack Pidgeon and Larry Hicks, two Houston taxpayers who initially brought their lawsuit in December 2013. Woodfill, a former chair of the Harris County Republican Party, is president of the Conservative Republicans of Texas, which is listed by the Southern Poverty Law Center as an anti-LGBTQ hate group.

In his motion for summary judgment, Woodfill asserts that although the U.S. Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in June 2015, that decision does not require the city to treat same-sex couples equally.

“Obergefell does not require taxpayer subsidies for same-sex marriages — any more than Roe v. Wade requires taxpayers subsidies for abortions,” Woodfill’s motion states.

Alan Bernstein, a spokesman for the city, said it will respond to the motion “in a timely fashion.”

“The City hopes the Judge will be persuaded by the law,” Bernstein said in an email. “The Legal Department defers to the arguments it will make in response.”

See here for previous coverage, and here for the last update. It’s hard to know what will happen here because the basic goal of the lawsuit is so ridiculous and harmful, and the immediate reaction of any decent person who hears about it will be “but marriage is marriage and why would anyone want to do that?” The sad and scary fact is that some people are like that, and that includes some judges. Did I mention that the judge in this case, Lisa Millard, is up for re-election in August? Sonya Heath is her opponent. There’s never been a better time to elect some better judges. Think Progress has more.

Partial halt to bail lawsuit order

Here comes the Fifth Circuit again.

A majority opinion by Circuit Judge Jerry E. Smith halted part of an order by Chief U.S. District Judge Lee H. Rosenthal which compelled certain defendants to be released immediately on no-cost bail in cases where a person with the money, arrested on the same charge, would be immediately released. Defendants must have an individualized bail determination made by a judge within 48 hours, the ruling says. The newest member of the appeals court, a Trump appointee, Judge Kyle Duncan, concurred with his holding.

They said that despite Rosenthal’s “well-intentioned effort to comply,” the instruction allowing immediate release to qualified poor defendants “easily violates the mandate, which explicitly found that individualized hearings would remedy the identified procedural violations.”

In a dissenting opinion, Circuit Judge James E. Graves Jr. wrote that Rosenthal’s order corrects an inequity that is protected by the constitution.

“However thorough and fair it may be, an individualized hearing 48 hours after arrest cannot ‘fix’ the deprivation of liberty and equal protection suffered by an indigent misdemeanor arrestee who is automatically detained prior to that hearing ‘solely because [she is] too poor to pay’ a preset amount of secured money bail,” Graves wrote.

The majority wrote that Rosenthal’s orders were too expansive, straying from their earlier instructions to “narrowly tailor” her 2017 injunction to address certain deficiencies that were placing pressure on judges to move too quickly. Judges that the 14 judges who questioned this portion of Rosenthal’s ruling were likely to win on the merits, the ruling says.

See here for the background. I disagree with the Fifth Circuit’s ruling here, but again this is about the injunction, not the merits of the case. This is about how these courts will operate until a ruling on the merits is made or a settlement is reached. Or, you know, until we elect some better judges in November. Never forget that part. KUHF has more.

Dallas County Republicans still trying to knock all the Dems off the ballot

Here comes the appeal.

Dallas County Republicans will appeal a ruling that blocked efforts to remove scores of Democrats from the November election ballot.

A formal intent to appeal was filed Monday on behalf of Missy Shorey, the chairwoman of the Dallas County Republican Party, with the Fifth Court of Appeals in Dallas.

Shorey argues that Dallas County Democratic Party Chairwoman Carol Donovan did not properly certify candidate petitions and forward them to the Texas Secretary of State’s office. The lawsuit, originally filed in January, showed that Donovan did not sign 127 candidate petitions.

“The case was inappropriately dismissed,” local GOP lawyer Elizabeth Alvarez Bingham said in an email Tuesday night.

But Donovan said nothing had changed with the Dallas County Republican Party’s lawsuit.

“The trial court found the Republican Party’s lawsuit to be frivolous, and their appeal is frivolous as well,” Donovan said in a text message.

[…]

It’s unclear if the appeals court, which is majority Republican, will hear the case before the November general election.

“The case never had any merit,” said Buck Wood, a lawyer for about a dozen Democratic candidates that would be affected if the suit is successful. “It’s way too late to be doing anything. I don’t know why they filed an appeal.”

See here for the previous update. I can understand appealing the dismissal – as noted in the story, the judge did not elaborate on his reason for dismissing the case – but I don’t get waiting four months to file it. The lawsuit has always seemed to be tenuous at best, relying on a very strict reading of election law that nobody seems to adhere to at that level, with the penalty being quite extreme and falling on candidates who themselves did nothing wrong. I would also note that we are fast approaching a deadline for when absentee and overseas ballots have to be printed and mailed, so the court would have to act very quickly if it were going to take action (another reason why the delay in appealing puzzles me). I suspect nothing will come of this, but as always with courts you never can be sure.

The end of the voter ID fight

I guess that’s it.

Still the only voter ID anyone should need

After seven long years of litigation, opponents of Texas’ voter ID law say the case is over.

In a court filing on Wednesday, opponents of the law requiring Texas voters to present photo identification to vote told a federal district judge that the case was settled and that they would not pursue any other remedies or changes to the law they first challenged in 2011 as discriminatory against voters of color.

Because neither party in the case asked for rehearing or attempted to kick it up to U.S. Supreme Court, “the substantive merits and remedy phases of this long-standing case are over,” they wrote.

The filing follows the state’s June request to U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to reconsider previous findings that the state’s voter ID law was enacted to purposefully discriminate against Hispanic and black voters. That request came two days after the U.S. Supreme Court ruled that Texas lawmakers did not intentionally discriminate when they signed off on congressional and state House maps in 2013 — a decision that Texas argued “cast irremovable doubt” on previous decisions against the voter ID law.

[…]

In Wednesday’s filing, opponents of the law asked the court to dismiss the state’s request because there was nothing left to pursue in the case given the 5th Circuit’s ruling that the changes made to law in SB 5 were “an effective remedy” to the original 2011 law that was deemed legally defective.

They also described Texas’s arguments that “new Supreme Court precedent has somehow changed the standard for discriminatory intent that this Court applied in prior holdings” as “frivolous.” The only remaining issues in the case are fees and costs related to the litigation, according to the plaintiffs.

See here and here for the background. We may still be sparring over legal fees when the 2021 Lege convenes with the task of drawing the next decade’s districts, but that’s not going to affect what anyone has to do to vote. As we’ve seen quite a bit lately, this is going to require a political solution. At the federal level, with a new Congress and a new President, a new Voting Rights Act can be passed. At the state level, the voter ID law can be repealed, though at what point the conditions would apply that would allow for that is unclear, to say the least. But this is where we are and where we’ll need to go.

Rape kit lawsuit dismissal will be appealed

To be expected.

Two women who on Friday lost a lawsuit against the City of Houston and a variety of officials over a rape kit backlog will file an appeal, an attorney for the women announced in a news release on Tuesday.

[…]

[Attorney Randall] Kallinen has argued in court that the backlog was “a violation of the due process, equal protection and unreasonable search and seizure clauses of the Texas and United States Constitutions.”

In a news release last Friday, the City of Houston pushed back against those claims, saying that “the plaintiffs did not allege any violations of rights guaranteed by the Constitution, nor did they raise any other legal grounds to hold Houston and its current and former officials responsible.”

The city also argued that there was no longer a rape kit backlog, rendering the women’s legal claims “six years too late.” Two private laboratories eliminated that backlog in 2013 and 2014, the Chronicle previously reported.

In an interview, Kallinen pushed back against this argument, arguing that the women were not aware their rape kits had any problems until police contacted them and that “the statute of limitations should be delayed” as a result, citing what he called “the discovery rule.”

See here for the background. I have no expertise on the legal questions being raised here. My primary interest is in ensuring that we never have another rape kit backlog like this again. It’s shameful enough that it has happened before (twice, in fact). There’s no excuse for it ever happening again.

The DACA hearing

I don’t know about this.

The state of Texas will continue to incur irreparable financial harm if an Obama-era immigration program isn’t halted immediately, attorneys for the state argued in Houston on Wednesday.

But lawyers representing nearly two dozen recipients of the Deferred Action for Childhood Arrivals program countered by saying Texas sat back for six years and did nothing, and its attorneys have yet to prove the harm the state claims it has faced since the program was implemented in 2012.

Those were just two of the arguments presented to U.S. District Judge Andrew Hanen on Wednesday after Texas Attorney General Ken Paxton sued the Trump Administration in May to end the 2012 program, which protects immigrants brought into the U.S. as children from deportation and allows them to obtain a two-year work permit.

[…]

MALDEF and New Jersey said Texas could have filed suit in 2012 or amended its 2014 complaint aimed at DAPA to also include DACA, but instead waited six years to take action. They also argued that while DAPA would have benefitted more than 4 million people, DACA has a much smaller pool of potential applicants. Nina Perales, MALDEF’s vice-president of litigation, said there are only about 702,000 DACA beneficiaries in the country today.

The state of Texas defended its timing by arguing it was waiting for the DAPA outcome to come down and was subsequently encouraged by President Trump’s announcement in September 2017 that DACA was going to be phased out.

Perales also argued against Texas’ assertion that the coalition of states suing to end the program have spent hundreds of millions of dollars to provide DACA recipients with education, health care and law enforcement services. She said the plaintiffs also cite in their evidence the cost of unaccompanied minors who came to the country after 2014, while DACA applies only to people who were in the country from 2007 or before.

She made a similar counter argument to Texas’ claim that it has spent vast sums of money providing healthcare to only DACA recipients.

“What Texas does is it estimates the cost of serving undocumented individuals statewide and applies it to DACA,” she said. “Undocumented immigrants are eligible for a few state funded programs but they are eligible for those regardless of DACA or not.”

She added after the hearing that the evidence actually shows that Texas benefits from DACA recipients working and participating in society.

Throughout Wednesday’s proceedings, Hanen peppered both sides with questions, often interrupting the attorneys and pressing them for more evidence to justify their claims. He also asked the attorneys to submit by Monday a brief on whether DACA violated the federal Administrative Procedures Act if applicants are subject to individual discretion. Hanen ruled in 2015 that DAPA violated the APA, which governs how federal regulations are made

Perales said after the hearing that she was pleased by the judge’s desire for more details.

“The judge was very patient, he allowed each side to get up and make its arguments,” she said. “I was encouraged by the judge’s curiosity and interest in additional questions.”

See here, here, and here for some background. I think we can take it on faith that Paxton’s arguments are more pretext than anything else, but there’s a reason he picked this court and this judge for this lawsuit. We just had a ruling from another federal court that ordered DACA to be restarted, so if Paxton wins here we’re on a direct course to the Supreme Court, and who knows what from there. ThinkProgress, Mother Jones, and Daily Kos have more.

Bail practices lawsuit hearing

We so need to be done with this.

More than a dozen Harris County misdemeanor judges contend that public safety would be imperiled if they followed an “untenable” new pretrial release order by a Houston federal judge who has found the current county bail system unconstitutional.

An appellate lawyer representing 14 county court-at-law judges, all who are Republicans, argued before an appeals court in Houston Tuesday that Chief U.S. District Judge Lee H. Rosenthal’s revised instructions overstepped the narrow directions she was given in June by the federal appeals court to fine tune elements of her initial order. The revision afforded liberties that the appeals court did not mandate, allowing people arrested on certain offenses be released as promptly as those who are able to secure money bail, the judges’ lawyer argued.

“Since the Magna Carta money bail has been seen as sufficient surety and wealth is an inevitable factor…when that surety is money bail,” said Charles Cooper, a Washington D.C. lawyer representing the judges.

Many of the judges won’t be on the bench much longer to oversee the new bail policies, since seven are not seeking re-election this fall.

An attorney for the indigent defendants argued that Rosenthal’s order did not stray from the U.S. Fifth Circuit Court of Appeals instructions, nor does it create “irreparable harm” for the courts and the public. The courts can impose “unaffordable bail” if they can justify it, he said.

“A period of ‘wealth based detention’ is OK, but you have to show that you’re serving some interest,” said Alec Karakatsanis, who represents the indigent defendants in the class action suit.

See here for the most recent update. Just a reminder, this is all about the initial injunction. The case itself has not been heard, just the request for a restraining order, which is what is being appealed. Also as a reminder, we can ensure that there are no future plaintiffs for this lawsuit in November. You know, in case you needed another reason to vote. A three-judge panel will rule on this request, and we’ll see where we go from there.

One federal court orders DACA restored

But hold on, because there’s another ruling to come.

A federal judge on Friday upheld his previous order to revive an Obama-era program that shields some 700,000 young immigrants from deportation, saying that the Trump administration had failed to justify eliminating it.

Judge John Bates of the U.S. District Court for the District of Columbia gave the government 20 days to appeal his decision. But his ruling could conflict with another decision on the program that a federal judge in Texas is expected to issue as early as [this] week.

[…]

Bates ruled in late April that the administration must restore the DACA program and accept new applications. He had stayed his decision for 90 days to give the Department of Homeland Security, which runs the program, the opportunity to lay out its reasons for ending it.

Kirstjen Nielsen, the homeland security secretary, responded last month, arguing that DACA likely would be found unconstitutional in the Texas case and therefore must end. She relied heavily on the memorandum that her predecessor, Elaine Duke, had issued to rescind the program and said the department had the discretion to end the program, just as the department under Obama had exercised discretion to create it.

Bates, who was appointed by President George W. Bush, did not agree. He called the shutdown of the program “arbitrary and capricious” and said Nielsen’s response “fails to elaborate meaningfully on the agency’s primary rationale for its decision.”

That’s the good news. The bad news is that federal judge Andrew Hanen will have a hearing in Houston on Wednesday the 8th on the Paxton lawsuit that seeks to put an end to DACA, and everyone seems to think that Hanen will (as has been his custom) give Paxton what he’s asking for. Which will force the matter to SCOTUS, and Lord only knows what happens next. I have more on the Texas case here and here, and see Mother Jones and ThinkProgress for more on the DC court’s ruling.

Rape kit backlog lawsuit dismissed

Interesting.

A federal judge has dismissed a 2017 lawsuit two rape victims filed against Houston’s current mayor and police chief and five sets of predecessors, among others, for allowing a backlog of rape kits to accumulate over decades without being tested, arguing that failure ensured the plaintiffs’ attackers were on the street when they otherwise could have been behind bars.

Both women were raped by serial offenders whose DNA had long been in police databases, but who went unidentified until Houston paid two private laboratories to erase its backlog of more than 6,000 untested kits in 2013 and 2014.

The plaintiffs sought damages, saying city officials violated their rights to due process and equal protection, and that officials illegally took her property and violated her personal privacy and dignity under the Fourth Amendment.

U.S. District Judge Vanessa Gilmore dismissed the case, saying the suit had not been filed quickly enough and that the plaintiffs’ claims did not cover rights guaranteed by the Constitution.

See here for the background, and here for the Mayor’s press release. Not clear at this time if the plaintiffs intend to appeal the ruling, but that’s always a possibility. The city is working to eliminate another backlog, and I very much hope that includes a more long-range plan to prevent backlogs from occurring in the future. The city – and the county, and the state, and Congress – should not need to be coerced into doing this properly.

Firefighters file suit over handling of pay parity proposal

I figured we’d have to wait till after the eventual vote on the firefighters’ pay parity proposal for there to be litigation over it, but no.

Mayor Sylvester Turner

The union representing Houston firefighters sued Mayor Sylvester Turner and a City Council member on Monday, alleging the officials are improperly using public resources to oppose a “pay parity” ballot initiative.

The Houston Professional Fire Fighters Association accuses Mayor Turner and Council Member Dave Martin, who represents Kingwood, of campaigning against the ballot initiative, which would tie firefighter pay to that of Houston police officers of comparable rank and seniority.

The union argues it is a violation of the Texas Election Code and is asking for an injunction that would prohibit the officials from “continuing to post such political advertising on the City of Houston website.”

The mayor’s declined to comment Monday evening.

See here for the background. On Tuesday, they got a result.

Judge Kyle Carter agreed with the Houston fire union’s argument that the city council’s July 26 budget committee meeting constituted an act of illegal electioneering against the proposal and that public resources, essentially, had been used to present and post a political advertisement. The Houston Professional Fire Fighters Association sued Mayor Sylvester Turner and Councilman Dave Martin, who chairs the budget committee, over the issue on Monday.

“There is a fair way to go about voicing your opposition and creating a campaign against a certain resolution and then there’s an unfair way,” Carter said in delivering his Tuesday morning decision. “Much of the hearing, I thought, was informative and served its purpose. However, there was a good portion of the hearing that … went beyond the pale.”

He did not elaborate on what comments he thought went too far.

Carter ordered attorneys for the city and the fire union to discuss what portions of the tape could be returned to the city website after the offending portions were redacted. The order, as issued, is valid through Aug. 14.

[…]

Buck Wood, an Austin-based public law attorney who helped pass Texas’ first open meetings and open records laws in 1973, said he had never heard of such a ruling in his 50 years of practice.

“Making your position known in a public forum is the essence of what the open meetings law is all about. Not only that, assuming it gets filmed by the city, it’s an open record and you can go get it under the public information act. That’s the whole idea,” Wood said. “The fact that they don’t like what the mayor and the council are saying doesn’t make any difference. That’s content censorship. I never heard of such a thing.”

Joe Larsen, a Houston lawyer with 25 years of experience in open meetings and open records law, agreed. Larsen said he can see such a committee discussion being problematic if its agenda was not posted properly or if the issue being discussed was irrelevant to the committee’s focus, but he said he cannot otherwise envision a way in which such a hearing could constitute electioneering.

“I don’t see how it could be,” he said. “What’s wrong about people taking a public position? How do you restrict your public officials on what they’re going to discuss? That can’t be the right result.”

“That is the equivalent of a 25 percent pay raise for firefighters which the city cannot afford,” Turner said. “The public has a right to listen to the public hearing and we will vigorously challenge the judge’s ruling.”

Not really sure what the practical effect of this ruling is. I mean, how much traffic do those committee hearing videos get? There was an earlier version of this story in which the Mayor referred to the proposal as “the equivalent of a 25 percent pay raise for firefighters which the city cannot afford”, a quote he repeated later on KUHF. The firefighters may have gotten this ruling – which the Mayor says he will appeal – but Turner get the opportunity to keep making his case against the firefighters in the news. Not sure that’s a great tradeoff for the firefighters.

Census lawsuit proceeds

Good.

A federal judge in New York on Thursday allowed a lawsuit challenging the addition of a citizenship question to the Census to move forward. U.S. District Judge Jesse Furman’s decision rejected the Trump administration’s request to dismiss the lawsuit, which was brought by numerous states and localities.

The judge said that the court has jurisdiction to review Commerce Secretary Wilbur Ross’s decision to add the question, rejecting the administration’s arguments that Ross could be insulated from judicial review.

Furman said that while Ross indeed had the authority under the Constitution to add the question, the judge concluded that the exercise of that authority in this particular case may have violated the challengers’ constitutional rights.

At this stage of the proceedings, Furman is required to assume the challengers’ allegations are true, and he must draw any inference from those allegations in the challengers’ favor. In doing so on Thursday, Furman said that the challengers “plausibly allege that Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect. ”

See here, here, and here for the background. Nothing really new here, just another chance for me to say that this absolutely was motivated by discrimination and that it would be very nice to have it halted by the time the counting actually begins. Daily Kos and NPR have more.

Business groups file brief opposing Paxton’s anti-DACA lawsuit

This is good.

A federal lawsuit by Texas officials earlier this year seeking to order the end of the federal immigration program called the Deferred Act for Childhood Arrivals, or DACA, will have “immediate, irreparable injury” to Texas businesses and cost the state’s economy billions of dollars, according to a coalition of pro-business organizations.

Seven Texas-based chambers of commerce, two pro-business consortiums and four prominent companies – including Southwest Airlines – filed an unprecedented court brief late Saturday asking a federal judge in Houston to reject Attorney General Ken Paxton’s argument that the DACA program be ended and dismantled.

Lawyers for Vinson & Elkins, which represents the business coalition that includes the Texas Association of Business, argue that Paxton’s case – if successful – would significantly damage their operations, deprive them of much needed work expertise and cost the state of Texas tens of thousands of jobs and hundreds of millions of dollars in tax revenues.

[…]

The business organizations point out that DACA was initiated by the Obama Administration in 2012, but the fact that Texas and the six other states suing waited until 2018 to challenge the program is a major legal argument in favor of keeping the status quo.

“The States waited almost six years after the announcement of the DACA guidelines before challenging them in Court, despite challenging similar initiatives implemented after DACA in 2015,” V&E lawyers argue. “Since an injunction is an equitable remedy, it may be denied on the basis of laches if an unreasonable delay by the party seeking injunctive relief works to the disadvantage or prejudice of another party.

“The States’ delay has substantially impacted businesses in Texas, who have, as described above, come to rely upon Dreamers as valued employees, customers, and fellow members of the business community and now stand to incur significant costs if DACA is enjoined,” the brief states. “The States’ delay also undercuts any claim they have to immediate, irreparable injury, since they have been living with the status quo for six years.”

See here, here, and here for the background. I’ll be honest, when I first saw the story headline, I assumed this was another one of those meaningless tut-tut gestures from the Texas Association of Business towards their vassals in the state GOP. They were the masters of the mild statement of disapproval that was never accompanied by any tangible action but always got them some cheap publicity long before Jeff Flake ever complained about Donald Trump on Twitter. This at least has the chance to do something tangible, so kudos to them for that. Having said that, let’s be clear that this is very much a political problem as well as a legal one. If you’re not working towards a Democratic Congress and the election of Justin Nelson as Texas AG, you’re not really trying to solve it. Anyway, there will be a hearing in Houston on August 8, so we’ll see if this has any effect. The Chron has more.

“Fetal remains” trial ends

Now we wait for a ruling.

State and reproductive rights attorneys wrapped up a five-day trial in federal court on Friday that will determine whether a Texas law requiring health providers to cremate or bury fetal remains can go into effect.

U.S. District Judge David Alan Ezra told attorneys on Friday that he has “not made up my mind on how I’m going to rule on this case” and is awaiting written closing arguments due on Aug. 3.

He’s expected to rule around the end of August.

The law at the center of the case is Senate Bill 8, passed in 2017, which requires the burial or cremation of fetal remains. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. Sparks said that rule was vague, caused undue burden on women and had high potential for irreparable harm.

Throughout the five-day trial, a wave of patients, health providers, state agency officials, bioethicists, cemetery directors and religious leaders flowed through the witness stand.

Before dismissing attorneys Friday morning, Ezra rattled off a list of questions and concerns he wanted both sides to answer in his closing arguments, including: What authority does Texas have to pass laws around giving dignity to the unborn? What would happen to women’s access to care — for abortions and miscarriages — if health providers did not have a facility to handle fetal remains? And how many facilities — secular or otherwise — have committed to helping with burials and cremation?

Ezra noted that the case is unique because state attorneys waived the argument that SB 8 protects the health or safety of patients and plaintiff’s attorneys waived arguments about costs to patients and providers.

The dynamics involved “makes this case extremely unique in many ways and makes finding precedent all the more difficult because those issues are generally not only present in these kind of abortion-related cases — they’re often paramount in those cases,” Ezra said.

See here for the background. The judge’s questions, which the Observer examined in more detail, are the key to the case. During the trial, there was testimony by Blake Howard Norton, the daughter of State Rep. Donna Howard, about how she felt coerced by the Catholic hospital where she was going through a miscarriage into making a decision about disposing of the fetus, and there was more useless testimony from paid state witnesses who lacked any expertise in the subject matter and the law. I feel like the judge is skeptical of the law, but we’ll see what he has to say about it. The Chron has more.

Another homeless feeding lawsuit dismissed

Not the end of the story, though.

A state district judge this week dismissed a lawsuit a local activist filed last year against Houston’s ordinance regulating the charitable feeding of the city’s homeless, but the case is proceeding on with a new plaintiff.

Phillip Paul Bryant’s original lawsuit had said the 2012 law infringed on his ability to live his Christian faith by limiting how he could care for the poor, but city attorneys argued Bryant lacked the legal standing to challenge the law, as he had not been cited under it.

The ordinance requires advocates to obtain permission from property owners – public or private – before giving away food to more than five people in one setting.

A new plaintiff, Shere Dore, was added to the case last week, and the updated court filings describe a Christmas Eve 2016 incident in which the city allegedly confiscated food Dore was trying to give to the homeless.

I did not blog about this at the time the lawsuit was filed, but here’s a Chron story about it. You may think that finding a plaintiff who had actually been harmed by the law would be a pretty basic thing, but if you read all the way through either of these stories and note who the plaintiff’s attorney was, you can understand why this piece of jurisprudence may have gotten overlooked. I might also argue that if the first relevant violation of the law didn’t occur until over four years after it had been passed, then maybe it’s not really that onerous. But we’ll see about that when the suit gets re-filed.

New frontiers in strip club tax collections

A new-ish development in a decade-long battle.

Glenn Hegar

Dozens of “bikini bars” from Houston to San Antonio are suing the state after the Texas Comptroller accused them of skirting the so-called pole tax on nude entertainment and slapped them with seven-figure fees, according to the lawsuits.

The fight focuses on the state definition of nude, which includes any part of the buttocks or a woman’s breast below the top of the areola.

And in federal court, the clubs are questioning why they are taxed for bikini-clad performers, but not concert halls or sports venues that host cheerleaders and musicians wearing thongs or cleavage-baring tops.

“If they aren’t doing it to them, they shouldn’t be able to do it to a topless club or a bikini bar,” said attorney Casey Wallace, who is representing the Texas Entertainment Association, which brought the federal lawsuit in 2017.

The Comptroller’s office said it follows the law and determines which clubs should be taxed by looking at their social media posts and marketing. The office also sends inspectors inside to see what dancers are wearing.

“The agency is just trying to apply this in a common sense way,” said Ray Langenberg, Special Counsel for Tax Litigation for the Texas Comptroller of Public Accounts. “If they are called topless clubs, the claim they are not wears a little thin.”

The fees are being contested in a state appeals process by 34 clubs across Texas, including a dozen in the Houston area. At least 27 more clubs have filed lawsuits, including 14 clubs based in Houston, according to the Comptroller’s Office.

The lawsuits referenced in this story were filed last year; I’m not really sure why this is a story now, though perhaps there’s a court date about to happen. Be that as it may, it was back in 2014 that the State Supreme Court upheld the $5-per-customer fee, for which the original bill was passed in 2007. I’m not qualified to parse the legalities of what constitutes “nudity” in this context, but I do think that trying to apply it retroactively for a decade’s worth of collections is excessive. I mean, when the state reached a deal with Amazon in 2012 to start collecting sales taxes, part of the deal was that the state would quit trying to collect back taxes. Why does Amazon deserve a better deal than bikini bars? Assuming that the Comptroller is properly interpreting the law in the first place, which is not a sure thing, surely there would be room for a compromise.