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Supreme Court rules HERO must be repealed or voted on

Ugh.

PetitionsInvalid

The Texas Supreme Court ruled Friday that Houston City Council must repeal the city’s equal rights ordinance or place it on the November ballot.

The ruling comes three months after a state district judge ruled that opponents of Houston’s contentious non-discrimination ordinance passed last year failed to gather enough valid signatures to force a repeal referendum.

“We agree with the Relators that the City Secretary certified their petition and thereby invoked the City Council’s ministerial duty to reconsider and repeal the ordinance or submit it to popular vote,” the Texas Supreme Court wrote in a per curiam opinion. “The legislative power reserved to the people of Houston is not being honored.”

The city’s equal right ordinance bans discrimination based not just on sexual orientation and gender identity but also, as federal laws do, sex, race, color, ethnicity, national origin, age, religion, disability, pregnancy and genetic information, as well as family, marital or military status.

Houston City Council has 30 days to repeal the ordinance or place it on the November ballot.

[…]

A “disappointed” Parker said she thought the court had erred in its “eleventh hour ruling” and said her team was consulting with the city’s pro bono outside counsel on “any possible available legal actions.” She said the ordinance resembles measures passed by other major U.S. cities and many local companies.

“No matter the color of your skin, your age, gender, physical limitations, or sexual orientation, every Houstonian deserves the right to be treated equally,” Parker said. “To do otherwise, hurts Houston’s well-known image as a city that is tolerant, accepting, inclusive and embracing of its diversity. Our citizens fully support and understand this and I have never been afraid to take it to the voters. We will win!”

You can read the opinion here. To be clear, this was not an appeal of the trial court verdict that declared the number of petitions collected to be insufficient. It’s a ruling on a writ of mandamus filed last August to force the city to accept the City Secretary’s initial count, which only looked at registrations and didn’t consider whether petition pages were proper or whether any signatures had been forged. I personally think it’s perverse to ignore the findings of widespread forgery and general not following the rules, which to me just rewards bad actors, and if that’s what they were going to do they could have issued this ruling back in April and given the city and the HERO defenders more time to prepare for a campaign. As with the ReBuild Houston ruling, I’m having a hard time seeing this as anything but political in nature. It’s a screw job and there’s not much we can do about it.

As to what happens next, I don’t have any faith in the “possible available legal actions” the Mayor alluded to in her statement, so we’ll see what Council does on Wednesday. It’s theoretically possible that the decision could be made to repeal the ordinance and then try again next year, so as not to disrupt this year’s election and have to run a campaign on little time. That obviously requires electing a “good” Mayor, and it of course gives the haters another shot at collecting repeal petitions, this time with full knowledge of the boneheaded mistakes they made last year. I don’t know that I’d go that route, but it is an option.

Regardless of that decision, this will have an effect on the Mayor’s race, and thus on the rest of them. I’ve been asking about HERO in the At Large races where I’ve done interviews, but in the context of it being a settled issue. I’m going to have to put a note on most of them to indicate I did them before today’s ruling was made, as there’s no convenient fence-straddling position any more. Where one could have said something to the effect of “well, I didn’t support it then, but it’s the law now and I don’t see any reason to repeal it” before, now everyone needs to give a straight up keep-or-repeal answer. Five Mayoral candidates – Sylvester Turner, Steve Costello, Adrian Garcia, Chris Bell, and Marty McVey – are known HERO supporters. One – Ben Hall, of course – is not. One – Bill King – has been a fence-straddler. If the repeal referendum is on the ballot, how will you vote? If the decision is made to pass the question to the next Mayor and Council, what will you do? Everyone needs to ask that of all their candidates. I assure you, in the interviews I have left to do, I will be asking.

In the meantime, you should assume that this will be on the ballot, and you should do whatever you can to ensure it doesn’t get repealed. HOUEquality is your one stop shop for information and ways to help. Lane Lewis in his role as HCDP Chair has sent out emails vowing support for HERO. Find something you can do to help and do it. The Trib, Hair Balls, Think Progress, TPM, and Texas Leftist have more.

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45 Comments

  1. Katy Anders says:

    It doesn’t really make any sense. The process in Houston is set up in a way where, even if it 100% certain that our City Secretary counted wrong, we still have to go forward with a vote once the senile old woman certifies?

    To be clear: City Secretary Anna Russell has been working for the city for sixty-three years. If she hasn’t learned the process for certifying petitions or if she has forgotten the process, she needs to retire.

  2. Jules says:

    Wow. Clearly a lot of the fault lies with former City Attorney Feldman. I support HERO but Feldman with this huge fumble along with the screw up on the ballot language for the Rain Tax has really cost the city. Happy he’s gone. Certainly not worth the ridiculous raise Parker gave him.

  3. John says:

    Wow, some fairly insulting and offensive ageism and sexism in that first comment. “Senile old woman”? Really? Just imagine similar insulting language used to describe an old gay man… Would it be allowed to remain?

  4. voter_worker says:

    Assuming this ends up on the November ballot, it instantly becomes the “Donald Trump” of our City election. All other issues, even potholes, flooding and the budget, will be reduced to a mere sideshow obscured by the intensity and passion that will be devoted to this, which will be the only litmus test that counts with many voters. Then there will be the national attention. Houston will be the new Indiana. I expect the Change.org petition to the NFL imploring it to re-locate Superbowl 2017 if HERO loses to be in my in-box within a week.

  5. Jules says:

    John I agree. Very insulting. That’s what my “wow” was for.

  6. Mainstream says:

    The personal attack on Anna Russell is uncalled for. A careful reading of the court decision indicates they have re-interpreted what her certification of sufficient numbers means, despite the examples of forgery and mistakes on the forms submitted.

    I suspect each of the nine Supreme Court justices accepted donations from one of the parties suing the City, Dr. Steven Hotze, although some are closer allies of his than others.

    Matt Murphy (running for At Large 4) has issued an emphatic statement that he will vote “no” on HERO, and arguing there is a problem with pedophiles entering the bathrooms attacking young children.

  7. Jules says:

    Anna Russell certified the numbers before the bad signatures were found. The City should have repealed HERO or put it on the ballot at that time. Anything that happened after the City Secretary certifying the petition is irrelevant. That is the ruling and I believe the Texas Supreme Court made the correct ruling based on the facts.

  8. Ross says:

    From my reading of the decision, it is clear that the City Secretary had no clue as to how the petitions should be certified. Her office apparently just counted the names until the appropriate total was reached. That’s when the City Attorney intervened. Apparently, the Texas SC thinks there should be no method to correct an obvious error by a city official. on something like this, the Secretary should have sought counsel from the City Attorney prior to starting the certification process.

  9. Jules says:

    The City Attorney clearly did a terrible job. His intervention consisted of him having Ms Russell add a paragraph stating what he thought to her certification. That accomplished nothing. The City Attorney caused they delay in the process to repeal or place on the ballot by misinforming the Mayor and Council of their duty.

  10. voter_worker says:

    Anna Russell’s office has verified numerous petitions over the years without a lot of controversy. Former City Attorney Feldman must have felt that an adequate number of deficiencies existed in the submitted petition to justify making a bet that his office could build a case to override Russell’s certification, and win in court. In hindsight it looks like a bad bet. I hope the ballot language is crystal clear and immune from further challenge regardless of the outcome. A razor-thin margin, while unlikely, could result in challenges based on that and qualifications of those who vote, based on City residency. There is the potential for an unusually high number of provisional ballots from those who think they reside in the City, but do not. It’s going to be ugly.

  11. joshua ben bullard says:

    Mayor Parker swatted a hornets nest,The Tx supreme court said that the citizens rights were not being granted and they should have been allowed to vote on it when the city secretary certified,when i read that former city attorney david feldman had made some type of executive intervention =i knew he was way out of his league,i have always thought that the mayor and feldman were playing games with the peoples right to vote on an item , and to ad injury to insult the mayor makes some ass-a-nine comment , below the belt shot ,at the Tx supreme courts ruling ,That was insulting, and she was way out of line for saying it, yet i was not surprised she said something like that and made such poor choice in adherence to a legal ruling, as LAW.What parker should have said was ” the Tx supreme court has ruled and i shall adhere to their ruling as the leader of the city of houston”. parker should know better than to take a shot at the Tx supreme court before she leaves her key on her desk and slips out the back. ,i wouldnt be surprised if steven kirkland advised the mayor to say something so in lieu of the law.

    #everywhere joshua ben bullard #gameon

  12. M@ says:

    Bullard…just curious; are you as critical of Cruz and Abbott for their recent remarks about the gay marriage ruling at the U.S. Supreme Court? Or are u just a political blow hard?

  13. Steffes says:

    My input to Hero decision (7 24 15) by Texas Supreme Court.

    For the 2013 mayoral race, I submitted 900+ signatures to place my name on the ballot. The Mayor refused my petitions, and would not place my name on the ballot. It was certainly wrong for her, as a candidate herself, to have the authority to deny an opponent a place on the ballot.

    The Texas Elections Commission, under the Texas Secretary of State, stated my petitions were valid. They do not expire.

    The City Secretary said she never saw my petitions.

    Evidently, the Mayor does not understand the City’s petition rules. It is the City Secretary’s duty to validate petition signatures.

    Steffes for Mayor of Houston

  14. byron schirmbeck says:

    I think it is easy to say this was a good decision or bad decision based on your opinion of the content of the issue. If we actually take a look at the nuts and bolts of the process and decision I think that is far more significant and interesting. What the court said is that the city charter says the city secretary is the final arbiter on the validity of the petition. That the city council has no authority to assume to role of the city secretary and that the council has an obligation by the city charter to do certain things once a petition is certified. Why would that be objectionable? Is that not what the charter says? The reason this exists is because the council is not objective on an ordinance they passed that petitioners want repealed. Isn’t that a good thing? Keep in mind the petition process is open to all people regardless of their political agenda and ideology. If the council passed an ordinance that most in here would find objectionable would anyone be making the argument that the council that passed the objectionable ordinance should have a chance to kill the petition even if the city secretary says it is valid? Or would the narrative be that the city council is ignoring the will of the people and violating their ministerial duties? The fact is a council with a vested interest in not allowing a petition to go ahead will often do what they can to try to kill the petition. We have seen this time and time again in other issues. In fact Feldman and Parker used pages from Andy Taylor’s playbook designed to throw out as many signatures as possible not just bad ones. By attacking the affidavit they threw out good and valid signatures along with questionable or bad ones.

    If the council felt that there were real problems with the petition and the city secretary did not fulfil her duties they do have other recourse but they aren’t allowed to stop the petition and assume the city secretary’s power according to the city charter. This section from the ruling is very accurate.

    “If the City Council cannot independently evaluate the petition as a predicate to its ministerial
    duty to act, then it may not decide for itself that the petition is invalid and force the petition
    organizers to sue. Faced with the City Secretary’s certification, the City Council had no discretion but to repeal the ordinance or proceed with the election process. If the City Council believed the City Secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the Charter and thereafter seek any affirmative relief to which it might be entitled. But the City Council did not do so. Instead, it refused to fulfill its
    ministerial duty, forcing the petition organizers to file suit. The mere existence of the City’s
    challenge to the petition does not negate the City Council’s duty to proceed with the political process unless that obligation is stayed by a court of competent jurisdiction. To hold otherwise would be to allow cities to freely shirk their obligation to follow through on properly certified petitions. Indeed, it would mean their obligation is not ministerial at all.”

  15. Paul Kubosh says:

    Byron, wells said. That is the whole point of the decision.

  16. Jules says:

    Charles, you say “It’s theoretically possible that the decision could be made to repeal the ordinance and then try again next year, so as not to disrupt this year’s election and have to run a campaign on little time. That obviously requires electing a “good” Mayor, and it of course gives the haters another shot at collecting repeal petitions, this time with full knowledge of the boneheaded mistakes they made last year. I don’t know that I’d go that route, but it is an option.”

    I’m not sure that this is an option at all. The ruling says it must be repealed or “submit it to popular vote at the next city general election.”. There is no option to repeal and then for Council pass the ordinance “next year”, this week or any time. For HERO to be a City of Houston ordinance, it must be voted on by the people. I also wonder if it isn’t submitted at the “next city general election” if it can be submitted at a later election?

    What does everyone think? The Mayor certainly should get good legal counsel on this matter, and not just listen to an attorney who says what she wants to hear. That hasn’t been working out for her or the city.

  17. byron schirmbeck says:

    Thanks Paul. Jules I would think if put to the voters in Houston that the ordinance would pass, which is why I find it odd that the city didn’t just take that route last year when it wouldn’t be an election issue for Mayor. Even Parker says they will win. Even if the council repeals it with the plans to pass it next year that doesn’t necessarily keep it off the ballot this cycle if I understand everything correctly on Wilson’s charter petition. Last I heard the judge agreed the city didn’t receive proper notice and put off a hearing on it. There is every possibility that the charter amendment petition could be on the ballot in November even if the city follows the referendum petition. That is unless there has been more developments on that I am unaware of. Perhaps Wilson will drop his suit in light of the decision on the referendum, who knows?

  18. Jules says:

    Of course Parker says it will pass. I’d like to think so too.

  19. Ross says:

    Jules, why wouldn’t the City be able to repeal the ordinance, then pass it again? There’s nothing in the decision that precludes that. The election requirement only kicks in if the ordinance isn’t repealed by the August date.

  20. Jules says:

    Ross, no, the election requirement does not “kick in” if Council doesn’t repeal it.

  21. Jules says:

    Say they do put it on the ballot and it fails. Can Council then pass the ordinance? I would think not.

  22. Ross says:

    Jules, the ruling states:

    “If the City Council does not repeal the ordinance by August 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election.”

    If Council repeals the ordinance, then passes it again after the election, there doesn’t seem to be a requirement to have an election unless a successful petition is raised. What language in the decision would require any future ordinance be put to a vote?

  23. Jules says:

    Right, there is the same deadline to repeal or place on the ballot. Either way Council must take action. There is no “kick in”.

    Where it says it must pass by a majority vote to take effect.

  24. Ross says:

    That only applies to the current ordinance. If the current ordinance is repealed, the decision has no future force. Any new election requirement would be due to a new petition submittal that meets the rules and is certified.

  25. Jules says:

    Ross are you a lawyer that specializes in municipal law? I’m not, but I have a feeling you’re not qualified to answer the question.

    Why don’t they just pass a “different” ordinance next week?

  26. Paul Kubosh says:

    Jules, I am not an “election law” lawyer. However, I agree with Jules in that City has two options. Repeal or put it on the ballot. If it is voted down then the City can pass a new one anytime they would like. This Mandamus is specific to this ordinance.

    That is why I prefer Charter Referendum as opposed to initiative. I believe people are polling and that will determine whether we vote or not. Of course I forget about the Mayor’s Ego. Everyone knows this is here baby and she wants this to be her legacy.

    If I was the Mayor I would put it on the ballot with language somthing like this..

    “Shall the City Pass an ordinance outlawing discrimination”

    For

    Against

    I think on that language is passes 60% 40%

  27. Ross says:

    Jules, I am actually a dog, but no one here can tell.

    This case is about the current ordinance. Period. unless you can point out the specific language that would apply this decision to another ordinance passed at a different time that has not been the subject of a petition, I am going to assume I am correct.

    This is a writ of mandamus, forcing the city to perform a specific action. It is not a generic “this law is unconstitutional/violates public policy/other reason for overturning due to nature of law” decision.

  28. Paul Kubosh says:

    “I am a dog” LOL, I needed a laugh. I meant earlier that I agree with Ross. He is a dog and I am an elephant seal.

  29. byron schirmbeck says:

    Some cities have a provision that any ordinance repealed by the actions of a petition cannot be reinstated by the council and neither can a substantially similar ordinance. Houston has no such provision that I am aware of. There is nothing to legally prevent the council from passing this same ordinance after an election even if it goes to the ballot and is voted down. The hope is that the council would not adopt anything the voters have specifically voted down. There is also nothing to prevent a referendum petition from being filed again if that were to happen. Not that anyone in Houston city hall listens to me but I think they should just put it up for a vote and let the chips fall where they may. I think it will pass and the whole issue will be dead.

  30. Jules says:

    The charter says that the ordinance must pass by a vote. Don’t have the language in front of me right now. This whole petition thing is just a joke if Council can just pass another HERO ordinance.

  31. Paul Kubosh says:

    Jules, you are correct. That is why the best thing to do is a Charter Amendment.

  32. Jules says:

    Not convinced. The ordinance is the content, not the number.

  33. byron schirmbeck says:

    Jules, what you are referring to is this part “Thereupon the Council shall immediately reconsider such ordinance or resolution and, if it does not entirely repeal the same, shall submit it to popular vote at the next city general election, or the Council may, in its discretion, call a special election for that purpose; and such ordinance or resolution shall not take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.” It is easy to see how the city would make the argument that a new ordinance isn’t “such” ordinance if they were intent on pushing it through later after a vote against it. I think it would be difficult to win an argument that the issue itself in any form will be off the table in perpetuity for all future councils. I would imagine that the correct interpretation would mean that particular ordinance and that particular election.

  34. Jules says:

    Disagree. The only way it will become an ordinance is if sometime in the future it is on the ballot and passes.

  35. byron schirmbeck says:

    That would have to be litigated. If I can see their way out a city attorney being ordered to find a way sure could as well. If they are intent on ignoring a direction of the voters at the ballot box I have a hard time seeing them not making the argument whether or not we agree with it. I doubt we will ever find out though, if it goes to the ballot it will probably pass, if it fails by a good margin I would imagine the council wouldn’t want to bring it up again.

  36. […] autograph. I think everyone would agree that the one sure beneficiary of Friday’s Supreme Court ruling is Hall, who is the one Mayoral candidate with any visibility who is full-on for repeal. He’s […]

  37. Jules says:

    The mayor and her lawyers can come up with some questionable stuff, no doubt about that.

    We won’t have long to wait to see if it will be on the ballot, the last scheduled Council meeting before the deadline is Aug 12, so that agenda will be out on Aug 7.

    Assuming you guys are correct (which I absolutely do not think) and Council can repeal it, wait until after the election and then pass the ordinance again, why would they have to wait until next year?

    What about “such ordinance or resolution shall not take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof” says “or just repeal it and wait until after the next election, but in a different calendar year” to you?

  38. Katy Anders says:

    Obviously, I was angry about the decision and should have chosen my words more carefully. But the sentiment is correct. If she can’t do her job, she needs to go.

    Yes, she has undoubtedly certified petitions before. Were those done correctly, or was this the only one caught because of the political controversy and high-profile nature of the drive? Have they been checking all along?

    We KNOW there were not enough valid signatures for it to be certified, and yet it was. I’ll retract my disagnosis of what caused Russell’s problem, but not the blame cast.

  39. […] the Kuff decries the Supreme Court ruling that will force a vote on whether or not to repeal Houston’s Equal Rights […]

  40. Ross says:

    Jules, “such ordinance or resolution” refers only to the disputed item that is the subject of the petition, not every similar ordinance that is proposed in the future.

  41. Jules says:

    Disagree. Hope you aren’t giving advice to Parker.

  42. byron schirmbeck says:

    Jules, I don’t think it says that at all, also don’t think that they have to wait for a year or technically even until after the election. Do I think that would happen? No, but if you look at other limiting language in charters that specifically prohibit the council from over riding a citizen vote on an initiative or referendum it says something to the effect of the council is prohibited from proposing the same or a substantially similar ordinance, usually for a specific time like 5 years. There is no such provision in the Houston charter. Barring actions of future deliberate bodies has to be a very specific and carefully worded restriction that is not what the Houston charter is on that subject. This is one of the specific reasons why charter amendment petitions are done because to overturn it would require a public vote as charter election.

  43. Jules says:

    Ugh. That actually makes sense.

    We will find out soon if it’s on the ballot or repealed. I’m guessing ballot.

  44. […] for the background. I suppose the good news, if you want to call it that, is that thanks to that awful Supreme Court ruling, we’re going to have a HERO repeal vote anyway, so what difference does this make at this […]

  45. […] the Kuff decries the Supreme Court ruling that will force a vote on whether or not to repeal Houston’s Equal Rights […]