The plaintiffs suing the city of Houston over its charitable feeding ordinance have abruptly dropped a suit they filed over the issue, just hours after the judge in the case recused himself.
The ordinance, which requires property owners’ advance written permission for the charitable feeding of more than five people, was one of the most passionate issues debated at City Hall last year. City officials said the measure would help control litter associated with feedings of the homeless and allow for better coordination of such efforts. Opponents decried the ordinance as criminalizing charity.
Paul Kubosh, of the bailbondsmen Kubosh brothers who are reliable opponents of Mayor Annise Parker, was the plaintiff in the suit, filed in December, which alleged the ordinance is unconstitutional because it violates the Kuboshes’ Constitutional rights. The Kuboshes religious beliefs, the suit states, encourage them to share food with the homeless in ways that violate the ordinance.
The Kuboshes collected 34,000 signatures on a petition that sought to overturn the requirement only on city-owned land, not on private property. The city said they had turned in the petition too late for it to be voted on last fall, a move the Kuboshes said was against the law.
Several preliminary motions had been filed in the case by both sides, but last Tuesday the issue took an odd turn when U.S. District Judge Ken Hoyt recused himself from the case without offering a reason and, hours later, Kubosh’s attorney dismissed the suit.
Kubosh said he had to dismiss the case because the judge assigned to pick it up was U.S. District Judge Lynn Hughes, with whom the Kuboshes dealt in a similar episode in 2010 and 2011 in which they sought to intervene in a lawsuit related to the city’s red light cameras. The Kuboshes had led the ultimately successful charge to place the cameras on the ballot and have them rescinded.
“After litigating with the city in Judge Hughes’ court on things that deal with charter amendments and the people’s right to vote, I didn’t think it was in the citizens’ best interest, the people we’re trying to help, for us to continue in Judge Hughes’ court,” he said. “We couldn’t go back into that bear trap again. We’re not abandoning this, but we have to regroup.”
You may be saying to yourself “Wait, what lawsuit? I don’t remember a lawsuit being filed”. I didn’t remember one being filed, either, but it was filed just before Christmas.
The plaintiffs are members of Champions Forest Baptist Church and have given and shared food for free “with more than five people at a time on Houston public property” since about 2008.
According to the suit, the city passed the ordinance about six months ago and was not open to efforts to get it placed on the previous election’s ballot.
More than 34,000 people signed a petition in opposition of the ordinance, however, the city was not swayed, the original petition says.
The ordinance carries a jail sentence and a $200 fine for any violations.
The suit claims the ordinance is “unconstitutionally vague”, stating the term “those in need” has no clear definition and “in its broadest sense can refer to anyone.”
It additionally asserts that the complainants’ First, Fourth, Fifth and Fourteenth Amendment rights were infringed upon through the passing and implementation of the ordinance.
A jury trial is requested.
Attorney Randall L. Kallinen with the Law Office of Randall L. Kallinen PLLC in Houston is representing the plaintiffs.
The case number is 4:12-CV-3700, if you want to look it up. The only mainstream news coverage I found of this when I googled “Kubosh homeless lawsuit” was on KTRH. That and the timing of the suit is probably why you and I might not have heard of it before now. The last update I had in my blog was from August from when petition signatures were turned in to force a referendum on the ordinance. The problem was the timing – the ordinance had gone into effect on July 1, meaning the 30-day window for a repeal petition had passed, and on top of that the deadline for any item to be placed on the ballot was only a few days afterward, which gave the City Secretary very limited time to verify the signatures. This was the first I’d heard of anything relating to the ordinance since then.
Now as you know, in Judge Hughes’ ruling on the red light camera lawsuit, he wrote that that referendum should not have been on the ballot since it was an attempt to repeal an ordinance, which requires petitions to be submitted within 30 days of the ordinance going into effect. However, the city settled with the camera company before a final ruling went into effect, so that question was not actually settled. I sent an email to Paul Kubosh to ask if this lawsuit intended to bring that matter up again, but he said “No, we filed the lawsuit to try and get the ordinance declared unconstitutional. I did not attempt to re-litigate the charter amendment issue in Federal Court.” I asked for a comment about the status of this lawsuit, and this is what he said:
“We chose to dismiss the case. However, the issue is not over. Currently, we have not gotten any word from the administration as to the status of the petition count. They are ignoring the petition. I still think I have the remedy of Mandamus to force the City Secretary to count the signatures. This ordinance will die. Its just a matter of time.”
So there you have it.