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More on the red light camera return

Here’s the Chron story about the reinstatement of the red light cameras. A couple of points that need to be made:

Wednesday’s announcement provoked the full fury of Paul Kubosh, a lawyer who helped lead the petition drive to get the cameras banned. When reached for comment, he did not even wait for a question. “Start typing!” he said, and launched into a rant criticizing the decision.

“The mayor is going to ask for your vote in November. How can you possibly give her your vote when she does not respect yours?” Kubosh said. “She is not following the will of the citizens of Houston, she is following her own conscience.”

Kubosh repeated his accusation that the city shopped the suit in federal court in hopes of an unfavorable ruling that would compel it to turn the cameras back on.

[…]

Parker made the announcement flanked by Police Chief Charles McClelland and Fire Chief Terry Garrison, who both insisted that the cameras make the streets safer. Gary Blankinship, president of the Houston Police Officers Union, agreed.

“It’s good news because they reduce injuries,” Blankinship said. “The data clearly shows that serious injury accidents are reduced in those intersections when the cameras are there.”

Given that the issue is why the cameras were turned back on after the voters rejected them, the question about safety is completely beside the point. That issue was extensively debated last year, and the pro-camera forces lost. You can believe whatever you want about red light cameras and safety – the data is at best inconclusive, and nobody’s mind is going to be changed by another rehashing of the same arguments. In my opinion, bringing this up at all undermines the Mayor’s stated reason for turning the cameras back on, which is that we are basically forced to do so pending the appeal of the judge’s ruling, because it is a reminder of the losing campaign for the cameras.

As for Kubosh’s ranting, the irony is that if you accept the judge’s ruling – which is right here and is quite clear and concise and really ought to be read by everyone expressing an opinion about it – Mayor Parker should not have urged Council members to vote to put this referendum on the ballot in the first place. She should have told them to vote against it and provoked the fight we are now having last August. It was at the insistence of Mayor Parker and City Attorney David Feldman that Council “supinely ignored – over the voices of some of its members – their responsibility”. If the Mayor ever chooses to directly respond to Kubosh, that should be the first thing she points out.

Now of course not everyone – certainly not most camera opponents – accept the ruling. When it gets appealed, and I do believe the appeal will be allowed to proceed, we’ll get to argue about why Judge Hughes was right or wrong to rule as he did. Some people, including Kubosh and a few of my commenters, have argued that it never should have been Judge Hughes to rule at all, that this case should have been heard by a state judge and not a federal one. I’m not qualified to address that point, but having read the ruling I don’t see why a state judge would have seen it any differently. I recommend you look at JJ’s comment, which addresses that issue, among others. If someone would like to explain to my non-lawyer self why the federal court was the wrong venue, I’d love to hear it. In the meantime, I’ll say again – read the ruling. It’s the only thing that’s relevant at this point.

UPDATE: Today’s Chron story discusses the choices the city faced after the election:

The city of Houston might have been able to shut off its red-light cameras within four months of voters demanding it in last November’s elections, but the Parker administration opted not to use an escape clause that would have meant more than $3 million in continuing costs while the clock ran out.

Eight months later, the city continues to grapple in court with the company that operates the cameras and contends that damages could reach $20 million over the life of the contract if the controversial devices are not reactivated.

Faced with that potential liability, Mayor Annise Parker declared on Wednesday that the cameras soon would resume issuing citations.

Instead of using its four-month escape clause in November, the city declared that the election immediately voided the contract and ordered Scottsdale, Ariz.-based American Traffic Solutions to shut off the cameras within days. Litigation ensued, of course.

And we know how that went. I’m going to step out on a limb here and suggest that people’s opinion of the city’s decision will correlate pretty tightly with their opinion of the cameras in the first place.

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17 Comments

  1. Ron in Houston says:

    In general I tend to reject conspiracy theories; however, I’m beginning to wonder about a lot of things with this issue. For instance, why in the heck would the city commence litigation that could backfire like it has? Why all the political double speak? Is it a conspiracy? I don’t know, but I’m beginning to wonder.

    I don’t know that Hughes’ ruling is wrong per se. However, for reasons why he perhaps should not have made that ruling see this Wikipedia article on abstention: http://en.wikipedia.org/wiki/Abstention_doctrine

  2. The question is, assuming one wants to defend the vote, what would be the advantage to you for filing a federal suit for what is typically a state court issue? Declaratory judgements and contract disputes are handled in district court. Corporations (even out of state corporations) that do business in Texas agree to Texas laws. Knowing that filing the suit allows ATS to challenge the results of the election what benefit did you receive for going to federal court that would outweigh that risk? I can’t think of one.

    Compare what COH has done to what Baytown has done and ask yourself who positioned themselves best to defend the vote. Yes, I know that we did a different process and the facts are a little different, but Baytown waited for ATS to turn off the cameras instead of telling them to, waited for ATS to file suit in district court and actually coutersued ATS for breach of contract for not following local laws and ordinances. They also are suing ATS claiming lost revenue from ATS turning off the cameras. Our hearing about the validity of the election was put off by judge Miller until October, he also refused an injunction from ATS and refused to allow them to harrass and depose petition organizers. He also hasn’t even set a court date for the breach of contract suit from ATS filed in February or ordered the cameras turned back on. Things might go the same way for us, but I would rather take my chances with an elected Dem state judge than a federal judge when I want someone to hear whether or not a popular election should be overturned or not.

  3. JJ says:

    Byron – if Houston had filed in state court, ATS could have just removed the case to federal court under “diversity” jurisdiction. Yes, Texas laws govern, but the “venue” does not have to be state court. The US Constitution worried that state courts would be biased against people from other states, so it provides for federal court jurisdiction over state law matters when the case is local versus out-of-state.

    I haven’t followed the Baytown case, but it sounds interesting. I wonder why ATS didn’t remove to fed court? Maybe they liked the state judge they (randomly) drew and we’ll have to see whether that strategic decision works or not. I agree that Baytown is likely to get preferential treatment, but I suspect you and I will differ on whether that is right or not!

  4. JJ says:

    “I’m going to step out on a limb here and suggest that people’s opinion of the city’s decision will correlate pretty tightly with their opinion of the cameras in the first place.”

    Not me!  I like the cameras, but Parker totally screwed up and showed a lack of not only principles, but respect for law, and the guts to do what’s right.  At every stage thus far.  I also think she is highly likely to resort to deception whenever it is an option, as City Hall watchers have noticed over the last 18 months.   She should have said “no” to the 20k signatures at the beginning.  But she wanted an easier way out, pass the buck to the voters, hope it turns out.  It didn’t.  Now there are, what?, 120k voters on record against cameras.  In my view, Parker and 13 of 14 on City Council decided to ask the voters, even when they didn’t have to (and at the time there were more than a few around City Hall saying “Clutterbuck is probably right but it takes too much leadership to do what’s right”) and now they should honor that vote.  

    I’ll skip all the original post-vote decision making, but again, absolutely terrible, and Parker again avoided making hard decisions. She always wants someone to bail her out.  And Judge Hughes does.  Since she didn’t get her “cover” from the voters, she now uses the cover given by the judge.  But CM Clutterbuck is again the fly in the ointment, a pro-camera person, an anti-referendum person, now quoted in the Chron as saying the City still needs to honor the voters’ message.   I don’t think she phrased it this way, but I think that is right because the City ASKED the voters!  (again, I am against asking because I think representative govt overall works better and, really, are red light cameras the most important issue, such that the people should legislate directly???  Of course not, it was just someone’s personal hobby)

    But again, Parker ducks and weaves and says “we have no choice”.  She even babbles nonsense about having a 2nd referendum!  She proves time and again on this issue that she is a terrible leader.  And I think finally a few citizens are beginning to notice what everyone at City Hall, and those of us who watch City Hall, have known now for quite a few months.

    So, my view is that the 20k signatories should have been shooed away, and the judge has confirmed that.  Rightly so.  But now the City has 120k who have spoken.  Misguidedly, I think (and by the way, the mostly right wing anti-camera nuts should marvel ar how it was that largely left wing African-Americans are the ones who handed them this victory), but nevertheless that now should be honored.  Sure, the City “can” use the judge’s decision to ignore the voters.  But I don’t think it is right to do so.  That bridge was crossed — and burned — when the “referendum” was put on the ballot as an “charter amendment”.

  5. Craig says:

    Kuffster,

    I know you’re not a lawyer, but please buddy, if you don’t know, ask someone.

    The “concise opinion” is based on a terrible interpretation of basic legal principles. There is direct caselaw out of Texas state courts that specifically allows charter amendments to be passed via the Texas State Local Government Code. This very issue has been addressed before. Texas state courts are THE authority in Texas state law, which federal judges are supposed to follow in interpreting state law. They can’t, according to the 10th Amendment, just make up law for Texas. Directly on point case law should not be ignored, or if it is, it should be distinguished. None of that happened in that oh-so-concise interlocutory ruling.

    The Texas Local Government Code specifies in Section 9.004 of the Local Government Code:
    “(a) The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality’s qualified voters for their approval at an election. The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.”

    If you read that second sentence, it contains the word “shall” which means that the city was REQUIRED BY LAW to put the charter amendment on the ballot.

    Judge Hughes’ ruling, in effect, said that because Houston is a home-rule city and therefore can largely decide it’s own affairs, Texas can’t tell it how to run its affairs. The problem with this twisted logic is evident when we consider that it was HOUSTONIANS telling Houston how to run its affairs, not the State of Texas. They simply used a method to call an election that is contained within the State Local Government Code, but it was not as if Austin was telling Houston whether to have the cameras or not (though there have been bills in the legislature which would have done exactly that and WOULD BE enforceable if passed, demonstrating that the State DOES have the power to supersede the municipality). States in the United States have power that is referred to as plenary power – meaning that they can do almost anything. Municipalities do not have this same power.

    The 30 day limit in the City Charter for gathering signatures to revoke a law made sense back in 1904, but in 2011 the number of signatures that must be gathered is so large as to be impossible within the 30 day time frame. There is effectively no method to revoke laws under the City of Houston charter.

    But it is a principle most dear to Americans that all power of government comes from the consent of the governed.

    Right now the mayor is scrambling for ANY reason to keep the cameras, from being contractually bound, to being bound by the federal judge’s opinion which SHE sought (knowing that he would rule as he did), to simply not wanting to pay millions in damages that could have been avoided by her own actions. She could have prepared to exit the contract when she knew the charter amendment was on the ballot. She could have negotiated a settlement. She could have paid damages and ended the contract with 120 days notice back in November. She could have asked her crack legal team if there was a way to end the contract. There were any number of solutions she avoided so as to be able to keep the cameras.

    The concept of being contractually bound into a now illegal contract is inherently wrong. Imagine a contract formed before marijuana was illegal to deliver 10 pounds of marijuana a week. After marijuana has been made illegal, specific performance of the marijuana contract CANNOT be required under the contract, and in fact CANNOT be performed at all. This is the exact situation with the cameras. Continued operation of the cameras in the face of their illegality is not allowed. Of course, the city should move for an injunction to stay Hughes’ decision, but won’t because BOTH THE CITY AND THE CAMERA COMPANY WANT THE CAMERAS. This incidentally, makes the whole suit invalid, as it a basic premise of American law that “Federal courts may not render advisory opinions, which lack an actual dispute between two adverse parties.” Because both parties are on the same side, Hughes’ decision is completely irrelevant. Hughes did not allow the Kuboshes to intervene in the lawsuit, where there would ACTUALLY be someone in the suit who opposed red light cameras, a decision currently on appeal to the 5th Circuit, where they will almost undoubtedly require Hughes to put Kubosh into the suit as the requisite adverse party.

    Finally, I write all of this as a liberal. As one other poster noted, MANY MANY liberals opposed the cameras. This is not a Republican/Democrat issue. This is an everyone issue. The massive spike in accidents when the cameras were installed and the subsequent decrease in accidents since the cameras were turned off speaks for itself. The cameras are dangerous. They rake in millions of dollars at the expense of our safety. Yet the mayor is committed to keeping her money-makers going. If another candidate (or more) does not enter the mayoral race, I will not be shocked if Houston elects its first Republican mayor since Jim McConn. Unlikely, but now possible. Way to go Parker.

  6. JJ says:

    Three simple things for Craig.

    1) you TOTALLY ignored the part of the opinion where he held it wasn’t a charter amendment, and just labeling it thus doesn’t make it so. Obviously if Kubosh’s charter amendment was to change the City Council terms into 4 years rather than two, then the opinion would have allowed it. I’ll take Kuffner for my lawyer any day!

    2) a referendum got signatures in 30 days in 1985 to overturn a non-discrimination ordinance for gays, so your argument that 1904 laws are too old to be followed doesn’t really work; nice try, though

    3) you need to study where the for/against votes came from (see below); lots of liberal neighborhoods support cameras; lots of conservative neighborhoods do too. Huh, funny how facts get in the way. You are 100% right that it isn’t a Republican/Democrat issue, though.

    —–

    But mostly I post to take Kuffner up on his idea that the “fight” should have been last August. Below is an analysis of what might have happened if Mayor Parker hadn’t gone down the wrong path of telling Council that they had no choice but to punt on the issue and call a referendum, but had instead asked the CMs to actually serve as “representatives” who serve their constituents. Gee, what a novel idea. And just for fun, we will use the hindsight of how the vote came out. I found it interesting, but of course I have beaten this dead horse to the point that he is nothing but soup…

    The neighborhood/race/party breakdowns are from this blog, back in a November 2010 post.
    http://offthekuff.com/wp/?p=32535

    Neighborhoods in favor of red light cameras:
    —–
    Heights, 52% Anglo-Dem
    Meyerland, 59% Anglo-Dem
    Rice U, at a big 64% Anglo-Dem
    Montrose, 55% Anglo-Dem
    Clear Lake, but only a very weak 50% Anglo-Rep
    Galleria, 59% Anglo-Rep
    Garden Oaks, but a weak 51% Anglo-Rep
    River Oaks, at a big 62% Anglo-Rep
    Sharpstown, 55% Anglo-Rep
    Spring Branch, 54% Anglo-Rep
    Memorial, at a big 61% Anglo-Rep

    Against red light cameras (showing against %, not for):
    —–
    Acres Homes, 68% African-American-Dem
    UH/TSU, 64% African-American-Dem
    Fifth Ward, at a huge 72% African-American-Dem
    Sunnyside, 70% African-American-Dem
    Hobby, 58% Hispanic-Dem
    East End, with the weakest 53% Hispanic-Dem
    Near Northside, 56% Hispanic-Dem
    Alief, 55% Multi
    Kingwood, 56% Anglo-Rep

    So, based on “following the will of the voters,” the Council breakdown, with district CMs first, then at-large, would be as follows

    For cameras (7, so need 1 more to win):
    —–
    Clutterbuck, assuming she votes to represent her district rather than taking the city-wide position that she has taken once the illegal referendum results came in
    Pennington
    Stardig
    Hoang, mixed but Sharpstown gives 55% support

    Lovell, assuming her Montrose ties trump. included to support the Mayor
    Costello, inclined to support the Mayor

    Mayor, given all of her actions

    Against cameras (6, so need 2 more):
    —–
    Johnson
    Adams
    Rodriguez
    Sullivan, Kingwood against trumps the toss-up Clear Lake

    Jones, assuming siding with African-Americans is her biggest concern; also anti-HPD
    Bradford, same but not anti-HPD, but has always been at every press conference called by the other three African-Americans

    Caught in the middle (one can give the Fors a win, but both have to go to the Againsts for them to win:
    —–
    Gonzalez, his Heights constituents are for but his Hispanic constituents are against (does it matter what Rodriguez’s Hispanic constituents want?), also inclined to support the Mayor

    Noriega, inclined to support the Mayor but often Hispanic-friendly

  7. Craig,

    I did ask, and thank you for answering. I appreciate the information. One thing I will quibble with is this:

    “The 30 day limit in the City Charter for gathering signatures to revoke a law made sense back in 1904, but in 2011 the number of signatures that must be gathered is so large as to be impossible within the 30 day time frame. There is effectively no method to revoke laws under the City of Houston charter.”

    I’m not a lawyer, but I do know that even an apparently obsolete law is still the law if it remains on the books. I actually agree with you that the 30 day window is too restrictive, but that doesn’t mean anything. It’s up to the voters to change that.

    Anyway, thanks again for the useful information. We’ll see what the appeals court has to say.

  8. Paul Kubosh says:

    J.J. 181,000 voters now on record. Not 120,000

  9. Greg Williams says:

    The issue isn’t the court ruling. The question is why are our politicians letting a corporation dictate policy to the citizens here? When a city attorney and council surrender your rights to a corporation’s blackmail, why isn’t there an immediate recall election? I’ll sign that petition. Whom did they bribe?

  10. mary t. says:

    Dear Craig: Kuff can defend himself, but as a regular reader I know he’s not a lawyer but raises the issues and asks the questions readers like myself who aren’t as politically savvy and plugged in wouldn’t know to ask and presents the issues and answers in a very understanding and thought-provoking way. (And he’s up and blogging way before I’ve had my first coffee in the morning, so I always know there’s something new and interesting.)

  11. byron schirmbeck says:

    JJ, like your comments, you have to understand the difference again with Baytown and ATS and COH and ATS. In COH the city initiated the suit. ATS didn’t have standing to challenge the ruling and didn’t (on the face of it) have a choice on where it ended up. Of course they could have done like they did in Baytown and enjoined with a local resident that wanted the cameras to challenge the election but they didn’t. COH laid down the cover to bring them in. In Baytown ATS sued the city, ATS intiated the suit not Baytown and they filed it in district court. If they could have filed it in federal they would have, but again, they didn’t. Definitely going to be interesting.

    A few other things that have gotten lost in the news was the fact that about half of ATS’s argument was actually thrown out by Hughes. He affirmed that the people do have a right to vote on “safety” issues such as this. This means other votes are underway like in Port Lavaca that has no time limit on referendum in their charter.

    Here’s my predictions for the next couple of weeks and months. Hughes denies the request to appeal his ruling, Parker comes out and instead of exercising the 4 month out or other options like extending the yellow lights, reducing the amount of tickets to reduce ATS’ cut she says it is just going to be cheaper to keep her. But if people want we can have the referendum after the contract is up in 2014 jsut wait till then. The city and ATS will once again taut their chosen stats on the effectiveness of the cameras, tell us how great it was that they made the tough decision to turn them back on, and why we need them to stay. ATS will once again foot the bill for the campaign trotting out dead bodies and first responders and we will all see those horrible TV ads once again. Then, people already sick of the whole thing and thoroughly disocuraged by not having their vote counted one time will just stay home and say it doesn’t matter anyway. Then the city and ATS can wave the election results around showing that people really do love the cameras.

    I think whichever way it goes there will be another proposition on the ballot so get ready for it all over again like it never happened. Sad thing is I think the entire sentiment will be more inclined to keep the cameras, not because they really like them, but because they were convinced we couldn’t afford to get rid of them, and even if they did their voice doesn’t matter so why bother to show up again.

  12. And the next step happens. Houston can’t appeal red-light ruling for now
    http://www.chron.com/disp/story.mpl/metropolitan/7645636.html

    Notice how when we look back at the path of everything that has happened that there is a chiseling away of the will of the voter, but we keep getting told, don’t worry it’s going to be better just a little bit further down the road, then it gets worse. Here is another example;

    City Attorney David Feldman said even though the city’s request was denied, he believes the judge is trying to bring the case to a speedy disposition, creating a final judgment that the city can appeal without asking Hughes for permission.

    In other words, don’t worry, the judge not allowing us to appeal is a good thing.

  13. Kenneth Fair says:

    JJ is correct on the federal court v. state court question. ATS is a Kansas corporation, so if the city had sued it in state court, ATS could have removed the case to federal court under its diversity jurisdiction granted by United States Code, Title 28, sections 1332(a)(1) and 1441(a). By bringing suit in federal court to begin with, the city merely avoided the delay that would have resulted from the removal process. Furthermore, if you know you’re going to end up in a lawsuit, there’s some procedural advantages to being the plaintiff; primarily, you get to go first in presenting your case to the factfinder.

    There is nothing inherently problematic about a federal court deciding questions of state law. Federal courts do this all the time. Under the doctrine of Erie Railroad Company v. Tompkins, a federal court deciding questions of state law under diversity jurisdiction is supposed to apply the state’s substantive law. This means that the federal court must follow the state’s statutes and the decisions announced by the state supreme court. Decisions of intermediate appellate courts (such as one of the fourteen state courts of appeal in Texas) are not binding on the federal court, but should not be disregarded unless the federal court “is convinced by other persuasive data that the highest court of the state would decide otherwise.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940).

    I have no comment on the correctness of Judge Hughes’ opinion, since I have not studied the issue carefully enough.

  14. Memorial Momma says:

    All this talk about chiseling away of the rights of voters sounds like a talking point that’s been circulated amongst those who would rather read cliff-notes than take the time to read the Judge’s 5 or 6 page opinion.

    Who’s legal opinion are you more likely to trust?

    A blog reader who does not seem to have a law degree or license?
    A traffic-ticket lawyer?
    Or a federal judge with 25 years experience?

    The Kuboshes were wrong at every step in this process. Everything they told the press, everything they told the voters, everything they told the council – has turned out to be dead wrong.

    And I fear that WE THE PEOPLE, of Houston, are going to have to pay $20 million to get out of a situation we never should have been in in the first place. OK, time to start deciding who are the next folks to get laid off… *sigh*

  15. […] I thought that the election should not have been held, on the grounds that Judge Hughes cited in his ruling. I agree with the decision to turn the cameras back on pending a ruling on what the city’s […]

  16. Longer yellow intervals will almost always reduce violations by MORE than ticket cameras. And, obviously, a driver who stops for the red light presents zero risk of causing an accident in the intersection. This is, and always was, about the revenue — collected at the expense of lower safety for all Houston citizens and visitors. Then you have elected officials that simply defy the wishes of the voters. Voters in Houston need to “clean house” at the next election and replace all these camera-supporting officials with ones that 1) put safety first in the traffic engineering and 2) respect the wishes of the voters. The science is on our website. James C. Walker, National Motorists Association, http://www.motorists.org, Ann Arbor, MI (frequent visitor to TX)

  17. byron schirmbeck says:

    One of the nation’s longer running camera programs, implemented by the same vendor just got unanimously voted out by the Los Angeles city council. Questionable, at best, safety results plus the word has gotten out that the $550 ticket is unenforceable Just like Houston (www.trashyourticket.com) There were about 38% of tickets issued unpaid before the election, I wager that will be over 50% after ignoring the vote. Question is how long before Houston goes down LA’s path and not be able to afford to keep them no matter how much they want to. http://abcnews.go.com/US/red-light-cameras-ticket-fines-voluntary/story?id=14176755