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No Early To Rise on the ballot

Place your bets on the outcome of the litigation.

Harris County Judge Ed Emmett said Monday he would not place a 1-cent property tax on the November ballot intended to buoy area pre-schools, prompting a lawsuit by a local nonprofit that suppliedtens of thousands of signatures on a petition asking him to do so.

Emmett, a critic of the effort since it launched at the beginning of summer, said the ballot language on the petition does not comply with a certain chapter of the Texas Education Code.

[…]

Citing a seven-page legal opinion by a private lawyer, Emmett conceded that the antiquated law still is applicable, because a section of the education code says it is, but said that the ballot language on the petition is too specific about both the nature of the proposed tax – specifically, that it says the tax would be “additional,” on top of the education department’s current 1-cent taxing authority – and how it would be used.

“Describing the requested tax as ‘additional’ is a significant departure from the statute because there is no authority in Chapter 18 for more than one tax,” Emmett said at a news conference on Monday, the last day items could be placed on the Nov. 5 ballot. “If early childhood expenditures can be controlled by the general public through a tax election, then why not vocational educational, agricultural education, adult education, special education or any other source of educational programs that the public imagination might run to?”

Emmett said he could not change the ballot language because it would be different than the language on the petition that people had signed.

His lawyer, William Bednar, who drafted the opinion, confirmed that if the language had been different – meaning less restrictive – Emmett would have had to order the election.

See here for more on the dispute over the law. Judge Emmett’s decision is not a surprise, though honestly neither direction would have been a surprise. One reason why Judge Emmett received legal advice from a private lawyer is that he did not receive an opinion from the AG’s office prior to the announcement. You can search the Attorney General’s opinions and see for yourself if you want. You can get a little peek at the legal advice Judge Emmett got on Chron reporter Kiah Collier’s Twitter feed. It won’t tell you much, but it’s more than what the AG had to say. This too is not a big surprise, since the opinion process is usually measured in months, but in this case it meant Emmett had to go out on his own. For the third non-surprise of the day, the Early To Rise folks announced immediately afterward that they were filing suit. Here’s their press release.

“Because we believe the law requires the county judge to place this issue before the voters, we will be filing a petition for a writ of mandamus in behalf of the registered voters who signed the petition requesting relief from the Court of Appeals,” said attorneys Richard Mithoff and Russell Post, who are representing Jonathan Day in behalf of registered voters who signed the petition seeking to put the issue on the ballot.

“This is not about Judge Emmett. He is a committed and conscientious public official,” Mithoff said. “This is not about the wisdom of the early childhood initiative: voters may disagree about whether revenue should be raised for this project.”

“This is about the law,” he said.

The Texas Legislature has authorized voters to petition for an election to authorize their government to levy and collect taxes for educational purposes. The requirement to invoke this procedure represents a high hurdle–requiring the support of 10% of voters from the last gubernatorial election. We have now validated more than twice that number.

Under these circumstances, the Texas Legislature has mandated that a county judge has no discretion to second-guess the will of the people. Rather, “the county judge . . . shall immediately order an election.” This command is unambiguous and unequivocal; it must be enforced.

Therefore, this initiative should be put before the voters to decide if early childhood education is something they want to invest in.

Emmett is quoted in that Chron story saying he expected to get sued no matter what he decided. As I’ve been saying that this will ultimately be decided in court, I believe him. I will note that I received an advisory about Mithoff’s press conference an hour before Emmett’s presser was scheduled to begin, so I’d say it’s a fair conclusion that Early To Rise knew which way the wind was blowing.

[The lawsuit] implores Emmett to order the election immediately, and requests the court make a decision by Sept. 16 “assuring sufficient time to satisfy the printing deadline for” the election.

I have no idea which way the courts will go. I’m not sure this will be truly settled in time for the election – I suspect that no matter what happens, there will be more to come afterward. What do you think will happen?

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10 Comments

  1. Paul kubosh says:

    I am a petition gathering prophet.

  2. Don Whitley says:

    My bet is that the mandamus will be denied. Even the Court of Appeals should understand that the meaning of the proposed ballot language purports to do more than the statutorily require language would have done and thus fails go meet the statutory requirement of being substantially (in substance) the same as in the statute. I would still be hesitant to risk money on how the court would decide except that by properly construing the statute, the good Republicans on the court will be able to both stop a tax increase and prevent money from going to help poor children.

  3. joshua ben bullard says:

    In my opinion=the appeals court will reverse and render judge ed,heres why,the law doesnt allow the judge to take action on a post-result after his clerical duty is executed,the biggest mis understanding is made by the judge himself=in this capacity he is truly 98% ceremonial and 2% goverment,not the other way around,the appeals court will find that since the tax collector mike sillivan certified the signatures then that mandates ed emmett to order the placement=in lay terms,because the judge sent the application for signature review to mike sullivan’s office to be certified he no longer has the legal authority to refuse the ballot placement=judge Ed would have had to raise the objection prior to sending the signatures to sullivan=which he did not,thus the law at that point is automated.

    dont blame me,I just read to many law books over my lifteTime,
    the appeals court will order this on the ballot,Theres no doubt in it,
    bullard ben joshua

  4. Fred Lewis says:

    The law in Texas is clear: if citizens summit timely the required petition signatures, the measure must go on the ballot, regardless of its legality or any other issue. Why? Because until the voters approve the measure, there is no binding law for the Courts to review. In short, the Courts don’t issue advisory opinions on possible laws. Since the County Tax Assessor certified the campaign had the required signatures, the County Judge failed to do his duty and place the Early to Rise measure on the ballot. The Courts will mandamus the County Judge to put it on the ballot. The voters still are sovereign.

  5. Paul kubosh says:

    Fred, I am never afraid if a vote. In fact I think anytime there is a petition drive like this one it is good for the citizens. It makes people nervous when citizens get active. It seems like the county judge took a page out of the Parker playbook on denying the will of the people. Imagine the current state of affairs both of our leaders agree on how to handle a petition drive. Just ignore it. Finally let me just say you will not get any help out of the courts, I can promise you that.

  6. […] the Kuff covers the decision by Harris County Judge Ed Emmett to reject the petitions submitted by pre-kindergarten advocates to get a referendum on the ballot this […]

  7. […] the Kuff covers the decision by Harris County Judge Ed Emmett to reject the petitions submitted by pre-kindergarten advocates to get a referendum on the ballot this […]

  8. […] the Kuff covers the decision by Harris County Judge Ed Emmett to reject the petitions submitted by pre-kindergarten advocates to get a referendum on the ballot this […]

  9. Don Whitley says:

    Hate to say I told you so. Not really.

  10. […] copy of their full statement is beneath the fold. See here for the last update and here for most of my other posts on this. It seems clear to me that they […]

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