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14th Court of Appeals

Endorsement watch: 14th Court of Appeals

More judicial races. We have a long way to go with these.

Justice, 14th Court of Appeals District, Place 3: Jerry Zimmerer

This primary race presents voters with a choice between two candidates who each offer different strengths.

Jerry Zimmerer, who earned two Master of Law degrees from University of Houston Law Center in addition to his law degree from South Texas College of Law, considers this judicial bench an academic job. He has spent close to 25 years in private practice, and yet the candidate had trouble touting any cases where he fought for justice or had a lasting impact on jurisprudence in Texas.

His opponent, Joseph R. Willie II, is a retired dentist and Navy veteran in addition to being a lawyer, and he pointed to several significant appellate cases where he successfully advocated for the innocent and underdogs. However, Willie’s law license twice suffered a fully probated suspension imposed by the State Bar of Texas for running afoul of professional codes. At the end of the day, it’s hard to endorse someone with blots on his record even if he evinces the passion for the law that Willie demonstrates.

Our nod goes to Zimmerer, 63, who switched parties decades ago, noting that the Republican Party “has left me as it has left a lot of people.”

[…]

Justice, 14th Court of Appeals District, Place 8: Michele Barber Chimene

Michele Barber Chimene, our choice for Democratic nominee, has 25 years of experience practicing appellate law and has handled more than 50 civil appeals. It’s preferable that candidates have appellate experience for this bench, as the rules governing appeals are different than the rules of civil procedure that govern trials.

Chimene, 60, is a University of Houston Law Center graduate and started her career as a geologist. She is admitted to practice before the U.S. Fifth Circuit Court of Appeals and the U.S. Supreme Court, and told the Houston Chronicle editorial board that she firmly believes the Legislature should make the law, and the judiciary should just apply it.

Chimene’s Q&A is here, and a Q&A for her opponent Meg Poissant is here. They’ve split a couple of group endorsements, while Zimmerer has received all of the ones that have been given out in his race. His opponent doesn’t appear to have any web presence, which would have been a problem for me in any event. There was also a Republican race endorsement at this link, if you’re into that sort of thing.

Judicial Q&A: Margaret Poissant

(Note: As I have done in past elections, I am running a series of Q&As for judicial candidates in contested Democratic primaries. This is intended to help introduce the candidates and their experiences to those who plan to vote in March. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Margaret Poissant

1. Who are you and what are you running for?

My name is Margaret Poissant and I am running for 14th Court of Appeals Place 8.

2. What kind of cases does this court hear?

The 14th Court of Appeals hears both civil and criminal appeals of cases tried in 10 counties in Texas, with the exception of death penalty cases.

3. Why are you running for this particular bench?

I am running for this bench because Texas needs independent thinkers with strong experience in several areas of the law to ensure justice for all Texas citizens. Justices should work hard, be fair, and follow the law.

4. What are your qualifications for this job?

My qualifications for this very important position are detailed on my website, poissantforjustice.com, and include my experience in hundreds of cases, both civil and criminal, (primarily civil cases in Harris County), which has given me a strong understanding of various legal issues; Martindale-Hubbell ratings for highest ethical standards by my peers and by judicial rating; trial and mediation experience, as well as the handling of hundreds of cases without resort to litigation; my understanding of community issues and volunteer work, including assisting SN 22 with the drafting of city ordinances to submit to the City of Houston; and bar licenses in both Texas and New York. I have run two businesses successfully.

5. Why is this race important?

This race is important because the rulings by the 14th Court of Appeals affects all citizens in the State of Texas.

6. Why should people vote for you in the primary?

People should vote for me because I am well grounded, have the necessary experience to perform the job, have a strong ethical background, am respected by my peers, and will follow the law. I have support for my candidacy by individuals in Texas and my peers.

Judicial Q&A: Michele Chimene

(Note: As I have done in past elections, I am running a series of Q&As for judicial candidates in contested Democratic primaries. This is intended to help introduce the candidates and their experiences to those who plan to vote in March. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Michele Chimene

1. Who are you and what are you running for?

My name is Michele Chimene. I’m a long-time resident of Houston, Katy, and Sugar Land. I am running for Place 8 on the Fourteenth Court of Appeals. The Fourteenth Court is the intermediate court, hearing civil, criminal, and family appeals in 10 counties centering around Harris County.

2. What kind of cases does this court hear?

This court hears criminal, civil, and family law appeals from the trial court. It also hears special cases called “original proceedings.”

3. Why are you running for this particular bench?

I am running for this bench because, as a 25-yr appeals lawyer, I read the opinions that are issued by the incumbent, and I believe that he sometimes deletes parts of the law, substituting in his own words instead of the law, to make the results of the case different than they would be if the actual law was applied. I believe that the law should be predicable and fair, with a “level playing field” for everyone.

4. What are your qualifications for the job?

I have been an appellate attorney for twenty-five years. While I also have trial experience, I believe that experience as an appellate attorney, researching the law and writing common sense arguments clearly and understandably is the best experience for becoming an appellate justice. I also believe that I am a good listener, and that everyone who comes into my court will get listened to politely and courteously.

5. Why is this race important?

Because the Texas Supreme Court and Court of Criminal Appeals do not hear every case that petitions them. For many cases in this large chunk of Texas, the Fourteenth Court will be the highest court that hears them, and their final chance to receive unbiased justice. Voters should not skip voting in this race, because it is a chance to elect someone who is not a professional politician but who has the legal skills to give the thousands, (yes, thousands), of parties who come before her during her term the predictable, law-based justice they seek.

6. Why should people vote for you in the primary?

Experience and character matter. My twenty-five years of appellate experience are more relevant experience than the incumbent had before he was elected to the bench. Most candidates for the Court of Appeals come to the Court with only civil case experience. My broad experience includes all the types of law the court handles. Additionally, my prior career as a geologist gives me the technical background that will be helpful to the Court as it takes on technically-challenging cases. My character matters. I will follow the law as long as the Constitution allows, and if Texas law differs from the Constitution, I will follow the Constitution. Our country was founded as a nation of laws. We need to get back to that. I will be predictable.

Paxton still pushing for a new judge

Still, he persisted, I guess.

Best mugshot ever

Texas Attorney General Ken Paxton’s lawyers are not giving up in their bid to get a new judge in his securities fraud case.

Earlier this month, Judge George Gallagher ordered Paxton’s trial be moved to Harris County from Collin County, where Paxton lives, after prosecutors argued Paxton and his allies had tainted the jury pool there. Paxton’s team wrote Friday to Harris County District Clerk Chris Daniel requesting that he assign the case to a new judge. Paxton “has not and will not give” his permission for the current judge to follow the case to Harris County, Paxton’s lawyers wrote to Daniel.

The letter, which was filed in court Monday, is the latest development in a standoff between Paxton’s team and Gallagher, whose spokeswoman said last week he will remain on the case. The spokeswoman, Melody McDonald Lanier, also said Gallagher does not need to rule on a motion Paxton’s lawyers made earlier this month that amounted to their initial request for a new judge.

In the letter to Daniel, Paxton’s lawyers continued to cite a part of the Texas Code of Criminal Procedure that says a judge ordering a change of venue may only continue to preside over the case with the consent of both sides. Gallagher, who is from Tarrant County, has been presiding over the case since its early days in 2015.

See here and here for the background. I know that the District Clerk assigns district court judges in new cases, but this is a continuation of a previous case, and it’s one where the judge was assigned from another county after the original judge recused himself. Is there anything in existing law to suggest that the District Clerk has the authority to assign a new judge after the venue was changed to the Clerk’s county? I have no idea, and based on the prior reports, this is something no one has asked for before. I’m kind of wondering why Team Paxton hasn’t gone to the 1st or 14th Courts of Appeals with this request; maybe he wants to show that he exhausted all other avenues first. Whatever the case, I have to assume the question will eventually wind up there. And I have to wonder, is this all worth it? Do they really think they’ve been screwed by Judge Gallagher so far, and that the risk of making things really awkward in his court is worth the possibility of getting a different judge, one who may not have any more tolerance for his lawyers’ tactics? Again, I have no idea. But it sure is fun to watch. The Chron has more.

Paxton wants a new judge

He may not get his wish.

Best mugshot ever

The judge presiding over Attorney General Ken Paxton’s criminal trial plans to remain on the case, regardless of Paxton’s request for a new judge, his spokesman said.

“He anticipates remaining the judge,” District Judge George Gallagher’s spokeswoman Melody McDonald Lanier told the Houston Chronicle Thursday.

Paxton’s criminal defense team requested a new judge after Gallagher moved Paxton’s criminal trial to Harris County from Paxton’s home of Collin County, a move the attorney general’s lawyers opposed. Special prosecutors argued the attorney general’s allies had worked to poison the jury pool there.

Lawyers representing the embattled Republican attorney general said in a motion Tuesday they would refuse to sign off on a procedural move to to keep Gallagher with the case at it moves to Harris County.

Asked for comment about Paxton’s motion to remove him as the case’s judge, Gallagher’s spokeswoman said “He can’t comment because he is the judge and he anticipates remaining the judge.”

[…]

“As far as I know, there is nothing in the Code of Criminal Procedure that addresses what is to happen if the defendant or defense counsel withholds the consent to which article 31.09 refers,” said George Dix, a law professor at the University of Texas at Austin, referring to the code Paxton cited in his motion. “No case, as far as I know, has addressed the meaning of this provision.”

See here and here for the background. As the DMN notes, what Paxton is asking for is basically unprecedented.

It’s quite possible no one else has ever asked for what Ken Paxton wants now.

This week, after Judge George Gallagher moved the attorney general’s upcoming criminal trials from Collin to Harris County, Paxton asked for a new judge. He cited a state law that’s meant to be procedural, a way for Gallagher to maintain the original case number and continue to use his own court reporter and clerk when the proceedings move to Houston.

But Paxton’s attorneys have interpreted the law to also require their client’s “written consent” for Gallagher to continue presiding over the case.

Paxton didn’t give his consent. He’s the first to refuse to do so and ask for a new judge in the process, experts said.

[…]

If Paxton’s motion is granted and upheld on appeal, it could set a precedent that will allow any criminal defendant or prosecutor to use the same tactic and get a new judge if a case is moved. But it’s unclear how likely that is to occur.

If Judge Gallagher denies the motion, the Chron story suggests any appeals would be heard by either the 5th Court of Appeals in Dallas or the 1st or 14th Court of Appeals in Houston. I don’t think this is likely to affect the proposed trial calendar, but as noted we are in unprecedented territory here. Already the entertainment value of this proceeding is off the charts, and we’re still five months away from jury selection.

ReBuild re-vote?

It could come to that, but it’s not clear to me that it has to.

The funding scheme for ReBuild Houston, the city’s street and drainage repair initiative, remains in limbo after a state appeals court agreed Thursday that the 2010 charter referendum creating the program is void.

The Texas 14th Court of Appeals ruling affirms an October 2015 trial court decision ordering the city to call a new election on creating a dedicated pay-as-you-go fund for street and drainage projects.

The case does not appear to affect the city’s ability to continue charging a drainage fee, however, since City Council authorized collection of the monthly fee in a separate ordinance in April 2011.

Instead, voiding the 2010 charter election, essentially, removes the restrictions placed on how the city uses the drainage money it takes in, such as the ban on using those dollars to issue new road bonds or other debt. The court rulings have not led the city to alter how it uses the fee.

Andy Taylor, the plaintiffs’ attorney, said he believes Thursday’s ruling could lead to another vote on what he and many conservatives call the “rain tax” as early as November.

“The request to amend the city charter and seeking voter approval to impose a rain tax,” he said, “is going back on the ballot.”

Houston is considering whether to ask the appellate court to reconsider, or appeal to the Texas Supreme Court, among other options, mayoral spokeswoman Janice Evans said in a statement.

See here and here for the background, and here for Mayor Turner’s statement. I say there will not be another vote this November, for the simple reason that there’s nothing to compel Mayor Turner to put another referendum on the ballot, and the city can continue with the legal proceedings for now. I’d also agree with Prof. Richard Murray, quoted in this KUHF story on the ruling, in that if there were another vote, a reworded Renew Houston proposition would almost certainly win again, because who at this point is going to vote against money for drainage and flood mitigation? (Also, as Prof. Murray noted, black voters were modestly against Renew Houston in 2010. I strongly suspect they’d be much more in favor of a similar proposal put forward by Mayor Turner.) But as the story notes, City Council voted to implement Renew Houston in 2011, and this lawsuit has nothing to do with that. There’s nothing to stop Mayor Turner from having Council affirm the program, or to just state that the matter was decided by Council and we’re all just arguing over semantics at this point. Honestly, what we’re really fighting about at this point is whether Andy Taylor gets to decide the wording on all our city referenda or not. That’s a fight I’m happy to keep having, but let’s be clear on what the stakes are. Campos has more.

Precinct analysis: Brazoria County

I had some time to spare, so I spent it with the canvass reports from Brazoria County. You know, like you do. Here’s what I was able to learn.


        Trump   Clinton   R Avg   D Avg   Weber    Cole
=======================================================
Votes  36,572    15,127  37,036  14,996  37,917  14,678
Pct    68.58%    28.23%  71.18%  28.82%  72.09%  27.91%


        Trump   Clinton   R Avg   D Avg   Olson  Gibson
=======================================================
Votes  36,219    28,073  39,026  26,713  40,179  26,178
Pct    54.08%    41.92%  59.37%  40.63%  60.55%  39.45%


        Trump   Clinton   R Avg   D Avg   Thomp   Floyd
=======================================================
Votes  40,666    30,564  43,599  29,181  44,713  28,505
Pct    54.83%    41.21%  59.95%  40.05%  61.07%  38.93%

Votes  32,125    12,636  32,462  12,528
Pct    69.23%    27.23%  72.15%  27.85%

Brazoria County is part of two Congressional districts, CDs 14 and 22, and two State Rep districts, HDs 25 and 29. The latter two are entirely within Brazoria, so the numbers you see for them are for the whole districts, while the CDs include parts of other counties as well. The first table splits Brazoria by its two CDs, while the second table is for the two HDs. Incumbent Republican Randy Weber was challenged by Democrat Michael Cole in CD14, while Republican Pete Olsen was unopposed in CD22. The second group of numbers in the first table are the relevant ones for CD22; I didn’t include Olsen because there was no point (*). There were no contested District or County Court races, so the “R Avg” and “D Avg” above are for the four contested district Appeals Court races; these are the 1st and 14th Courts of Appeals, which as you know includes Harris County.

The second table is for the State Rep districts. In HD29, incumbent Republican Ed Thompson faced Democrat John Floyd, while Republican Dennis Bonnen was unchallenged in HD25. You can sort of tell from the tables and I can confirm from the raw data that HD29 mostly overlapped CD22, and HD25 mostly overlapped CD14. As I have done before, the percentages for the Presidential races are calculated including the vote totals for Gary Johnson and Jill Stein, which is why they don’t add to 100%. The other contested races all had only two candidates.

Still with me? If so, you can see that HD29 was much more interesting than HD25, and was where basically all of the crossover Presidential votes were. Trump lagged the Republican baseline in HD25, but those voters mostly either skipped the race or voted third party. Viewed through the Presidential race, HD29 looks like a potentially competitive district, but if you pull the lens back a bit you can see that it is less so outside that, and that Thompson exceeded the Republican baseline on top of that. It would be nice to point to this district as a clear opportunity, but we’re not quite there. There is another dimension to consider here, however, and that is a comparison with the 2012 results:


       Romney     Obama    Cruz  Sadler   R Avg   D Avg   Weber Lampson
=======================================================================
Votes  35,571    13,940  34,618  13,865  33,931  14,444  33,116  14,398
Pct    70.82%    27.75%  69.34%  27.77%  70.14%  29.86%  69.70%  30.30%


       Romney     Obama    Cruz  Sadler   R Avg   D Avg   Olsen  Rogers
=======================================================================
Votes  35,291    20,481  34,879  19,879  34,466  20,164  35,997  17,842
Pct    62.49%    36.27%  62.14%  35.42%  63.09%  36.91%  66.86%  33.14%


       Romney     Obama    Cruz  Sadler   R Avg   D Avg   Thomp   Blatt
=======================================================================
Votes  40,170    22,480  39,657  21,866  39,203  22,204  40,642  21,388
Pct    63.32%    35.44%  62.86%  34.66%  63.84%  36.16%  65.52%  34.48%

Votes  30,692    11,941  29,840  11,878  29,194  12,404
Pct    70.95%    27.60%  69.45%  27.64%  70.18%  29.82%

In 2012, Randy Weber was running to succeed Ron Paul in the redrawn CD14, which had a nontrivial amount of resemblance to the old CD02 of the 90s, which is how former Congressman Nick Lampson came to be running there. He ran ahead of the pack, but the district was too red for him to overcome. Pete Olsen was challenged by LaRouchie wacko Keisha Rogers, Ed Thompson faced Doug Blatt, and Dennis Bonnen was again unopposed. I threw in the numbers from the Ted Cruz-Paul Sadler Senate race in these tables for the heck of it.

The main thing to note here is that HD29 was a lot more Republican in 2012 than it was in 2016. Ed Thompson went from winning by 31 points in 2012 to winning by 22 in 2016, with the judicial average going from nearly a 28 point advantage for Republicans to just under a 20 point advantage. Total turnout in the district was up by about 11,000 votes, with 7K going to the Dems and 4K going to the Republicans. That still leaves a wide gap – 14K in the judicial races, 16K for Ed Thompson – but it’s progress, and it happened as far as I know without any big organized effort.

And that’s the thing. If Democrats are ever going to really close the gap in Texas, they’re going to have to do it by making places like HD29, and HD26 in Fort Bend and the districts we’ve talked about in Harris County and other districts in the suburbs, more competitive. If you look at the map Greg Wythe kindly provided, you can see that some of the blue in Brazoria is adjacent to blue precincts in Fort Bend and Harris Counties, but not all of it. Some of it is in Pearland, but some of it is out along the border with Fort Bend. I’m not an expert on the geography here so I can’t really say why some of these precincts are blue or why they flipped from red to blue in the four years since 2012, but I can say that they represent an opportunity and a starting point. This is what we need to figure out and build on.

(Since I initially drafted this, Greg provided me two more maps, with a closer view to the blue areas, to get a better feel for what’s in and around them. Here’s the North Brazoria map and the South Brazoria map. Thanks, Greg!)

(*) – As noted in the comments, I missed that Pete Olsen did have an opponent in 2016, Mark Gibson. I have added the numbers for that race. My apologies for the oversight.)

Races I’ll be watching today, non-Legislative edition

vote-button

This is my companion to yesterday’s piece.

1. SBOE district 5

I’ve discussed the SBOE races before. This particular race, between incumbent Ken Mercer and repeat challenger Rebecca Bell-Metereau, is the one that has the closest spread based on past performance, and thus is the most likely to flip. If it does flip, it would not only have a significant effect on the SBOE, which would go from 10-5 Republican to 9-6, with one of the more noxious members getting ousted, it would also cause a bit of a tremor in that this was not really on anyone’s radar going into 2016. Redistricting is supposed to be destiny, based on long-established voting patterns. If those patterns don’t hold any more, that’s a big effing deal.

2. Appeals courts

I’ve also talked about this. The five courts of interest are the First, Fourth, Fifth, 13th, and 14th Courts of Appeals, and there are multiple benches available to win. I honestly have no idea if having more Democrats on these benches will have a similar effect as having more Democrats on the various federal appellate benches, especially given that the Supreme Court and CCA will most likely remain more or less as they are – I would love to hear from the lawyers out there about this – but I do know that having more Dems on these benches means having more experienced and credible candidates available to run for the Supreme Court and CCA, and also having more such candidates available for elevation to federal benches. Building up the political bench is a big deal.

3. Edwards County Sheriff’s race

Jon Harris is an experienced Democratic lawman running for Sheriff against a wacko extremist in a very Republican county, though one with a small number of voters. This one is about sanity more than anything else.

4. Waller County Sheriff’s race

I’ll be honest, I didn’t have this one on my radar until I read this Trib story about the race, in which the recent death of Sandra Bland is a factor. Waller County went 53-46 for McCain over Obama in 2008, though the Sheriff’s race that featured a problematic Republican was a lot closer. It was 58-41 for Romney, which is close to what it was statewide. Democratic challenger Cedric Watson will have to outperfom the countywide base to defeat incumbent Glenn Smith, it’s mostly a matter of by how much he’ll have to outperform.

5. Harris County Department of Education, Precinct 2

There aren’t any at large HCDE Trustee positions up for election this year, so I haven’t paid much attention to them. This race is interesting for two reasons. One, the Democratic candidate is Sherrie Matula, who is exceptionally qualified and who ran a couple of honorable races for HD129 in 2008 and 2010. And two, this is Jack Morman’s Commissioner’s Court precinct. A win by Matula might serve as a catalyst for a strong candidate (*cough* *cough* Adrian Garcia *cough* *cough*) to run against Morman in 2018.

6. HISD District VII special election

You know this one. It’s Democrat Anne Sung versus two credible Republicans and one non-entity who hasn’t bothered to do anything other than have a few signs put up around town. One key to this race is that it’s the only one that will go to a runoff if no one reaches 50% plus one. Needless to say, the conditions for a December runoff would be very different than the conditions are today.

7. HISD recapture and Heights dry referenda

I don’t think any explanation is needed for these.

What non-legislative races are on your watch list for today?

Judicial Q&A: Candance White

(Note: I ran a series of judicial Q&As for Democratic candidates in contested primaries earlier this year. I am now doing the same for the candidates who were unopposed in March, which includes most of the sitting incumbent judges. As always, this is to help you the voter know a little bit more about the candidates on your ballot. I will be publishing these in the order I receive them. You can see the Q&As and interviews I did for the primaries on my 2016 Election page.)

Candance White

Candance White

1. Who are you and what are you running for?

My name is Candance White. I am a judicial candidate for the 14th Court of Appeals Place 2.

2. What kind of cases does this court hear?

The 14th Court of Appeals hears all civil and criminal appeals cases with the exception of death penalty cases and post habeas corpus.

3. Why are you running for this particular bench?

I believe a diverse perspective is need on this court to ensure the community at large is represented. I want to ensure that the law is interpreted fairly and objectively without bias or prejudice. I also believe that real experience in the area of child welfare and adult welfare is needed on this court as this court hears these types of cases.

4. What are your qualifications for this job?

I have my undergraduate degree from Texas A&M University, my JD from University of Texas School of Law, and my Masters in Law (LLM) from the University of Houston Law Center. I have served as a Municipal Court Judge for the City of Houston. I handled a very large docket and am able to manage a court room. I have very strong analytical and written skills. I have helped to prepare over 75 appellate briefs and worked on appellate oral arguments. I have handled civil litigation, criminal defense, family law matters, elder law, and practiced before regulatory boards and commissions.

5. Why is this race important?

The Appellate court provides opinions on what constitutes error in cases. These opinions guide and define the legal parameters for cases involving both civil and criminal issues. The cases heard by this court will impact every area of every citizen as it guides both civil and criminal matters.

6. Why should people vote for you in November?

I am a sound decision maker. I will work to ensure the law is applied fairly without bias. I will ensure that a large portion of the community is represented on the bench if elected where currently there is no representation. I am a hard worker who is dedicated to ensuring fairness and access to justice for all.

Endorsement watch: More courts

The Chron has a bunch of judicial race endorsements to make, beginning with the First and 14th Courts of Appeals.

1st Court of Appeals, Chief Justice: Sherry Radack

Both Republican incumbent Sherry Radack and challenger Jim Peacock strongly agree that service on this bench constitutes a great honor. That honor should go to Radack, 65, for another term, although Peacock came as close any challenger has to convincing us that the breadth of his experience as a litigator and the need for more philosophical diversity on the court would justify a switch. But ultimately, it’s hard for us to vote to unseat a sitting justice who is doing a good job, which Radack is.

Justice, 1st Court of Appeals,Place 4: Barbara Gardner

Plato imaged a world run by philosopher-kings, but Republican judge Evelyn Keyes is the closest that Houston gets. Our resident philosopher-judge, Keyes is a member of the prestigious American Law Institute, which helps write the influential model penal code. A graduate of University of Houston Law Center, Keyes also has a doctorate in philosophy from Rice University and a doctorate in English from the University of Texas. She’s penned numerous papers on legal philosophy, exploring the foundational underpinnings of our entire judicial system and arguing about the concept of justice itself.

Now Keyes is running for her third term – a “last hurrah,” she told the editorial board, before she is aged out under state law. If elected, Keyes will be forced to retire after four years of her six-year term and will be replaced by a gubernatorial appointment.

Justice, 14th Court of Appeals, Place 2: Kevin Jewell

This race for an open seat offers voters two very different candidates who would each bring great strengths in their own ways.

Republican Kevin Jewell, a graduate of the University of Houston Law Center, is board certified in civil appellate law and heads up the appellate practice at the Chamberlain Hrdlicka law firm. Jewell, 48, has spent his career practicing in appellate courts and his resume is practically tailor-made for this position.

Justice, 14th Court of Appeals,Place 9: Tracy Elizabeth Christopher

Justice Tracy Christopher is one of the “smartest, most reasonable judges” on this court. That’s not us talking – that’s her Democratic opponent, Peter M. Kelly, during a meeting with the editorial board. It is the kind of praise that should encourage voters to keep Christopher, a Republican, on the bench. A graduate of the University of Texas School of Law, Christopher, 60, is board certified in civil trial law and personal injury trial law, and served for 15 years on the 295th Civil District Court before her appointment to this bench in 2009. She’s received stellar bar poll ratings, and we were particularly impressed by her insight as to how the state Legislature has overridden common law in Texas, especially in medical malpractice and other torts.

And for the State Supreme Court.

Justice, Supreme Court, Place 3: Debra Lehrmann

Justice Debra Lehrmann, 59, has spent six years serving on the Texas Supreme Court and before that she was a Tarrant County family court judge for 22 years. In that time she has acquired a reputation as a hardworking and respected jurist with a record of success dating back to her days at University of Texas School of Law.

Her Democratic opponent and former judge of the 214th District Court in Nueces County, Mike Westergren, says that there needs to be more balance on the all-Republican court. Lehrmann agrees but they differ as to the nature of the deficit. Westergren argues for more ideological balance, while Lehrmann maintains the justices need to continue to challenge each other.

Justice Dori Garza

Justice Dori Garza

Justice, Supreme Court, Place 5: Dori Contreras Garza

What is Republican incumbent, Justice Paul Green, doing wrong on the Texas Supreme Court? According to his Democratic challenger, Justice Dori Garza, not much.

She told the editorial board that she’s not running against Green personally, but instead to provide greater diversity on the court.

The first in her family to receive a college degree, Garza, 58, attended night school at the University of Houston Law Center and in 2002 was elected to the 13th Court of Appeals, which stretches from Matagorda County south to the U.S.-Mexico border. She’s been re-elected twice and in 2010 was one of three candidates recommended by the Texas congressional delegation to serve as a federal judge in Corpus Christi.

If elected, she’ll bring different personal and ideological perspectives to a court that’s been critiqued as leaning in favor of corporations and state authority at the expense of everyday Texans.

Justice, Supreme Court, Place 9: Eva Guzman

It took 100 pages for the Texas Supreme Court to explain that our state’s school funding system was constitutional, if imperfect. But Justice Eva Guzman’s passionate concurrence should light a fire under Texas politicians who may think that winning at the Texas Supreme Court absolves them of any duty to improve our public schools.

They endorsed challenger Barbara Gardner over incumbent Evelyn Keyes because Judge Keyes will have to resign after four years due to the mandatory retirement age of 75. The main thing about both of these endorsement posts is that they basically like all of the candidates. They have a couple of clear preferences, but no races in which they consider only one candidate qualified. Consider that another piece of evidence to suggest that our oft-maligned system of partisan elections for judges maybe isn’t as bad as its frequently made out to be. My Q&A for Dori Garza is here, and I’ve got Q&As lined up for Jim Peacock and Candance White, so look for them soon.

City loses in appeal against firefighters’ pension statute

Here’s a pension fund-related litigation update for you.

Houston can’t overhaul a state-governed firefighter pension system that the mayor claims is pushing the city towards insolvency, a Texas appeals court ruled.

Houston sued the Houston Firefighters’ Relief and Retirement Fund in January 2014, seeking a declaration that a state law setting how the fund is operated, and giving the city no control over the amount of its contributions, is unconstitutional.

The city paid $350 million in pensions to firefighters, police and city workers in 2015, but its unfunded pension debt is $6 billion and growing.

A state judge sided with the fund in May 2014 and granted it summary judgment.

The city appealed, pressing its argument that the subject state law, passed in 1997, gives too much power to the pension fund’s board that is comprised of a majority of firefighters who are beneficiaries of the fund, and thus are inherently self-interested in maximizing firefighter pension benefits to the detriment of the city’s financial health.

The 10-member board is made up of six active or retired firefighter fund members who are elected by other firefighters, the mayor or an appointed representative of the mayor, the city treasurer and two citizens who are elected by the other trustees.

Houston claimed on appeal the state law violates the separation-of-powers principle in the Texas Constitution by delegating authority to a nonlegislative entity, the fund board.

The city cited Texas Boll Weevil Eradication Fund v. Lewellen. In that case, the Texas Supreme Court ruled in 1997 that a foundation established by the Texas Legislature to exterminate boll weevils that were threatening to destroy the Texas cotton industry unconstitutionally gave too much authority to the foundation to tax private farmers to pay for weevil killing.

But the 14th Texas Court of Appeals decided Thursday that the boll weevil foundation is fundamentally different from the pension fund board because the board includes public employees.

“The purpose of that [boll weevil eradication] foundation may be construed as protecting a private industry from a blight, albeit with an indirect benefit to the public. In contrast, eight of the 10 trustees of the fund’s board are current or retired public employees…We would have difficulty classifying the board as a private entity when the mayor and city treasurer also serve as trustees in order to administer benefits to public employees,” Judge John Donovan wrote for a three-judge panel.

The panel also rebuffed Houston’s argument that the state law is unconstitutional because it only applies to incorporated municipalities with a population of at least 1.6 million and a fully paid fire department. Houston is the only Texas city that qualifies.

The city claims the special treatment violates the Texas Constitution’s ban on the Legislature meddling in local affairs.

But the appeals court agreed with the fund’s contentions that Houston is uniquely dangerous for firefighters compared to the other four big cities in Texas—Austin, San Antonio, Dallas and El Paso—so sweeter pension terms are necessary to attract and retain firefighters.

See here for the background, and here for the ruling. There have been multiple lawsuits related in one way or another to the firefighters’ pension fund; it’s hard to keep track of them all because they go multiple months without any news. The city could appeal this to the Supreme Court, but I don’t think they will, for two reasons. One is that I doubt they’ll get a different outcome, and two is that while this lawsuit was filed by the Parker administration, the Turner administration has a much less contentious relationship with the firefighters, and is working on a pension fund deal with them. It would be a show of good faith, if not a bargaining chip, for the city to quit pursuing this lawsuit, and seek to settle or drop any other ongoing litigation for which the HFRRF is an opponent. The Chron story says the city “continues to believe the state statute is unconstitutional because it allows the firefighters’ pension fund to determine contribution levels”, and that the city intends to “seek further review”. We’ll see what happens.

UPDATE: Woke up this morning, and the following announcement was in my inbox: “Mayor Turner will unveil preliminary points of understanding with the Houston Firefighters’ Relief and Retirement Fund, the Houston Police Officers’ Pension System and the Houston Employees Pension System. The proposed plan will form the basis for a package of pension reforms that will be submitted for approval to the governing boards of the pension systems, City Council and the state legislature.” That’s happening today at 2 PM. So maybe this won’t have any effect on the negotiations one way or the other.

Transgender rights are about more than bathrooms

There’s also drivers licenses.

TDL_Sample

A Texas appeals court ruled last week that a transgender man isn’t entitled to change the gender marker on his driver’s license from “female” to “male.”

However, LGBT legal experts say they don’t expect the decision from the 14th Court of Appeals, which covers the Houston area, to have much practical impact, since so few local judges typically grant gender-marker changes in the first place.

Katie Sprinkle, a Dallas attorney who handles identification and gender marker cases, said some Democratic judges in Bexar, Dallas and Travis counties allow trans people to correct gender markers on their driver’s licenses and birth certificates if they provide proper documentation, including letters from doctors and therapists. Sprinkle also said the 14th Court of Appeals’ decision may be “persuasive,” but is not “binding,” on other jurisdictions.

“I don’t see anything in it that I think is going to change the status quo, because the status quo in 95 percent of the state is, they don’t do it anyway,” Sprinkle said. “Worst-case scenario, it goes up to the Texas Supreme Court, and they just put the kibosh on everything. There are at least several hundred thousand Texans that that could seriously adversely affect.”

[…]

Sprinkle said despite the appeals court’s decision, the petitioner still could reapply for a gender-marker change in another county — an option he told the Observer he now plans to pursue.

According to the pro-LGBT Movement Advancement Project, Texas is one of 13 states with the most onerous requirements for gender-marker changes on driver’s licenses, and one of four states with unclear policies when it comes to birth certificates.

This is one of those times when I find myself saying “what exactly is the problem here?” I don’t understand why a judge would have an issue with granting this request. There’s no excuse in 2016 for being ignorant of transgender people and their needs. Judges who can’t or won’t keep up with social change need to get off the bench.

And speaking of judges, here’s another one to keep an eye on.

U.S. District Judge Reed O’Connor has set a hearing for Friday on Texas Attorney General Ken Paxton’s bid to block the Obama administration’s recent guidance that said public schools should allow trans students to use restrooms according to their gender identity.

Paxton’s office, on behalf of 13 states, has requested a nationwide preliminary injunction against the guidance outlined in a May “Dear Colleague” letter issued by the U.S. Education and Justice departments. The states allege the administration has overstepped its bounds by attempting to rewrite federal law to ban discrimination based on gender identity without congressional action.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” Paxton’s office wrote in its initial complaint.

In response to Paxton’s complaint, the Obama administration has argued that the guidance isn’t legally binding, and questioned whether Texas has standing to challenge it, given that the case doesn’t involve a specific controversy over restroom access for trans students in the Lone Star State.

“Indeed, plaintiffs have identified no enforcement action threatened or taken against them as a result of defendants’ interpretations,” the federal government wrote. “Instead, they have alleged no more than an abstract disagreement with the agencies’ interpretation of the law.”

That’s Friday as in today. This is the second time that a Texas judge could have a national effect in a high-profile case. I’m hoping for a better outcome than the first time.

What it will take to win the District Court of Appeals benches

I’ve mentioned a couple of times that one place on the local ballot where Democrats could potentially gain some real ground is with the district Courts of Appeals. There are no competitive Congressional or State Senate races, the one competitive State House race in HD144 would be Democratic-favored in any Presidential year, and the countywide races have a greater dependency on the candidates themselves than any other contest. Republicans have done well in those races even as Democrats were winning district court benches, with the GOP successfully defending the offices of District Attorney and Tax Assessor in 2008 and 2012. The stakes are higher this year with the GOP hoping to keep the Sheriff’s office as well. Those races will get a lot of attention, with the outcomes less likely to be determined by partisan turnout levels.

The judicial races are where the candidates are mostly at the mercy of the blue/red mix. The wild card in those contests are for the 1st and 14th District Courts of Appeals, which encompass more than just Harris County. Jim Sharp broke through in 2008 to become the first (and so far only) Democrat in recent years to claim a spot on these benches, but several other races that year were fairly close, as each of the Democratic candidates carried Harris County. Republicans had a much easier time holding those positions in 2012, but the overall trend as well as the dynamic of this year’s Presidential contest suggests Dems may have a good shot at these. Let’s take a look at the numbers from the last two Presidential years and see if we can take a guess at what would need to happen for that to be the case.


2008

Race         Harris D  Harris R     Diff  Others D  Others R      Diff     Total
================================================================================
14th CJ       568,713   539,696  +29,017   199,332   258,576   -59,244   -30,227
1st Pl3       585,249   526,393  +58,856   209,510   250,194   -40,684   +18,172
1st Pl5       565,338   543,216  +22,122   198,502   259,452   -60,950   -38,828
14th Pl4      561,284   544,873  +16,411   194,751   261,775   -67,024   -50,613
14th Pl6      569,641   536,050  +33,591   198,463   257,779   -59,316   -25,815
14th Pl7      571,737   533,566  +38,173   198,849   257,265   -58,416   -20,245


2012

Race         Harris D  Harris R     Diff  Others D  Others R      Diff     Total
================================================================================
1st Pl2       567,793   572,351   -4,558   194,826   297,572  -102,746  -107,304
1st Pl6       565,699   572,594   -6,895   193,294   298,479  -105,185  -112,080
1st Pl7       565,258   572,326   -7,068   191,908   299,769  -107,861  -114,929
1st Pl8       560,865   575,397  -14,532   191,293   300,076  -108,783  -123,315
1st Pl9       567,466   570,529   -3,063   192,017   299,588  -107,571  -110,634
14th Pl3      580,356   557,224  +23,132   197,511   294,162   -96,551   -73,519
14th Pl4      555,639   580,450  -24,811   188,891   302,216  -113,325  -138,136
14th Pl5      557,972   578,436  -20,464   190,155   300,711  -110,556  -131,020
14th Pl8      575,206   562,417  +13,211   196,161   295,426   -99,265   -86,476

There are a couple of things going on here. The level of Democratic turnout in each year is roughly equivalent. The average dipped from 570,327 in 2008 to 566,250 in 2012, but that’a less than one percent. The Dem totals dropped a bit more in the other counties, falling from an average of 199,901 to 192,895, with the difference being exaggerated a bit by Jim Sharp’s showing in 2008. The bottom line remains that while the average Democratic candidate in these races received about 10,000 fewer votes in 2012, those totals didn’t affect the competitiveness of these races.

What did that were the Republican turnouts, which rose considerably in Harris and in the other counties, though for slightly different reasons. Republican voters in Harris County were far more likely to skip downballot races in 2008 than they were in 2012. It was the same way in 2004, with about ten percent of their Presidential voters disappearing for races like these, while Democratic voters were far more persistent about filling out their ballots. That pattern changed in 2012, with Rs and Ds about equally likely to fill the whole thing in. Some of that is no doubt the effect of straight-ticket voting, but there were still over 400,000 voters in Harris county who didn’t vote straight ticket in 2012. Maybe it was increased partisanship, maybe it was people absorbing the local message to vote all the way down, but whatever the case, it had an effect. As for the other counties, the increases are basically the result of population growth in Fort Bend, Galveston, and Brazoria Counties. Put the two together and you can see the effect.

Obviously, that makes winning these races this year a challenge, but I believe it can be done. Republicans have little to no prospect for growth in Harris County, and having Donald Trump at the top of the ticket is more likely to be a drag than an asset. Democrats need to put up a decent margin in Harris County, and they ought to be able to, but that won’t be enough. There needs to be some help in Fort Bend, Galveston, and Brazoria for there to be a fighting chance. I don’t know what is going on in those counties to try to boost turnout, though I know Fort Bend Democrats have been pretty active in recent years. I may be the only person in the state obsessing about these races as attainable targets for this year – these are low-visibility contests that have no immediate impact – but they represent an opportunity that we don’t often get, and it’s not like there are a bunch of legitimately exciting legislative or Congressional elections to focus on. The point I’ve been trying to make is that this is a good year to be thinking about other parts of the political bench, which includes county offices and judicial races. Remember, these appellate court positions come with six-year terms, so anyone who wins this year could if they chose run for a statewide bench in 2018 or 2020. There’s no downside to any of this, but we have to be aware of it first.

Another view of Democratic goals for 2016

Sounds about right.

vote-button

Some Democrats say Clinton has a chance at winning a majority in Texas, where interest is heightened because U.S. Housing and Urban Development Secretary Julián Castro has been mentioned as a possible Clinton running mate. Castro said Friday that he isn’t being vetted as one.

They’re looking for Trump’s rhetoric to help unite Democrats behind their presumptive nominee after her hard fight with U.S. Sen. Bernie Sanders of Vermont, although signs of division still exist.

“We’re going to win. It’s going to be bigger than what Obama was able to do when he ran in Texas,” said state Rep. Senfronia Thompson, D-Houston. “Donald Trump has done one thing for us. He’s united us.”

Others simply are hoping for some progress, given the steep hill ahead of Democrats who last won a statewide election in 1994. The last time a Democratic presidential candidate lost to a Republican by only single digits in Texas was in 1996, when President Bill Clinton defeated Republican Bob Dole nationally and Reform party candidate Ross Perot got 7 percent of the vote.

“I think that the best that Democrats can hope for this cycle is that we’re getting better,” said Democratic strategist Colin Strother. “What Democrats can hope for this cycle is that everybody gets a little more engaged … that they get out there and start busting their knuckles and building our list and improving our fundamentals.”

Rice University political scientist Mark P. Jones put some parameters on what “better” could look like for Democrats.

“‘Better’ is keeping Trump’s victory in the single digits, and taking back somewhere around a half-dozen state House seats, taking back Congressional District 23 and turning Harris County blue,” Jones said.

In Harris County, he said, that means reclaiming the sheriff’s office, flipping the district attorney and tax assessor-collector offices and sweeping the overwhelming majority of countywide judicial elections.

That’s basically in line with what I suggested previously. On a great day, Dems could pick up two or three more House seats, and it’s not crazy to suggest that Fort Bend County, where Barack Obama won 48.5% of the vote in 2008, could be flipped, but they got the basics. I will note again that an under-the-radar opportunity for Dems is in the district Court of Appeals races. Here’s Texas Lawyer on this possibility:

But political experts who’ve taken a closer look at judicial races in Texas believe there’s one very important set of elections where Trump and his bombastic behavior could do some serious damage to his party’s ballot mates.

If a Trump effect is going to be felt anywhere in Texas, they believe it’s most likely to occur on Republican-held intermediate courts of appeals based in large Texas cities. Those races draw a pool of a mix of voters from both urban and suburban counties. And the split between Democrat and Republican votes have grown much closer in those courts in recent years.

Two simple things have to happen for the Trump effect to upset a down-ballot races in Texas, according to Cal Jillson, a Southern Methodist University political science professor who had studied the state’s voting trends for years.

First, Democrats in urban counties have to come out and vote at full strength to vote against him. And second, Republican voters who are turned off by the bigoted and often offensive candidate have to stay home on Election Day in November.

“When you think about Texas’ major cities, the inner cities are blue, the inner ring suburbs are purple and the outlying suburbs are red,” Jillson said. And the biggest problem for Republicans can be found in the purple suburbs, where stalwart Republicans may be turned off by Trump, he said.

“Two thirds of Republicans didn’t vote for Trump, but most are making their peace with him. And the money people are coming back to Trump,” Jillson said. “But … for a party to be competitive, they have to pull 90 percent of their electorate. And if you’re only pulling 85 percent up to 90 percent, you’ll lose. And that will effect congressional races and some state races.”

And the best place to watch the Trump effect in action on election night might be Houston’s First and Fourteenth Courts of Appeals and Dallas’ Fifth Court of Appeals. Those courts, which have six seats up for grabs, are based in solid Democratic counties but are surrounded by numerous smaller red counties that have made those courts safe seats for Republicans for more than two decades.

The Trump effect has Democrats believing they now have the best shot ever for electing a complete slate of candidates to the Houston and Dallas courts of appeals. Democrats mounted a complete sweep of trial court races in Dallas County in 2006 and nearly took all of those seats in Harris County in 2008.

Those aren’t the only ones to watch. Dems lost a seat on the 13th Court of Appeals in the 2010 debacle, for example. That bench, held by 2008 Supreme Court candidate Linda Yanez, is up for re-election this year, and Dems have an experienced candidate in a judicial district that gave over 58% of the vote to a Democrat in 2008. There are Democrats running for Republican-held benches on the 4th (anchored in Bexar County) as well. The 13th should be the easiest pickup, with perhaps the 4th being next, and the 1st, 5th, and 14th more challenging still, but those are all opportunities that should be watched. The weeds get deeper from here, but you get the idea. There are available gains and attainable goals. We need to define what we want and figure out how we want to get them.

Appeals court reverses Ashby damages award

It’s kind of amazing to me that the Ashby Highrise saga is still a newsmaker.

Sue me!

In a major ruling that could stymie future legal challenges against developers, a state appellate court has reversed a key portion of the 2014 judgment awarding damages to residents opposed to the controversial Ashby high-rise.

Neighbors of the residential tower proposed for 1717 Bissonnet at Ashby had claimed it would reduce the value of their homes, intrude on their privacy and create a slew of other problems. A judge in Houston two years ago concluded there was no way to legally stop the project.

But he said the residents were entitled to $ 1.2 million in damages, even though construction had yet to begin.

The eagerly awaited opinion filed Thursday in the 14th Court of Appeals is a big win for the Houston development community and it brought the partners involved a sense of vindication as they prepare to move forward with the project.

“A decision to uphold damages in this type of case would have set a dangerous precedent for urban growth and economic prosperity, not just in the city of Houston but throughout the state of Texas,” Matthew Morgan of Houston-based Buckhead Investment Partners said Friday. “We are grateful to the Texas Court of Appeals for making it clear that zoning by nuisance law is not how things get done in Houston, Texas.”

The reversal applies to damages awarded to 20 homeowners near the site at 1717 Bissonnet and Ashby where Buckhead has been planning a 21-story residential tower the company said it still plans to build in the leafy neighborhood near Rice University.

[…]

Thursday’s opinion also reversed the ruling that the developers would have to pay the homeowners’ legal fees.

The appeals court affirmed the remainder of the judgment, including the trial judge’s refusal to grant an injunction halting the project.

In recent years and likely a result of the earlier Ashby ruling, property owners in Houston’s urban core have filed lawsuits to stop developers from building.

If the court had upheld the damages, it would have set a precedent for future cases, said Matthew Festa, a professor at Houston College of Law who specializes in land-use issues and who testified for the developers’ side during the December 2013 trial.

“Basically it would have hung a million-dollar price tag on the building permit,” he said.

A copy of the decision is here. The original ruling was made in 2014, and we are past the tenth anniversary of this case. As the story notes, the residents could try again after the thing gets built and it is shown to lower their property values, but who knows if that will ever happen? Despite the setback, as a Swamplot commenter notes, they’ve delayed the project well past the real estate boom time in Houston, and if nothing else bought themselves at least a decade of not having this highrise as their neighbor. Not that bad an outcome no matter what happens next, really.

Will the Ashby highrise ever get built?

Who knows?

Sue me!

Penelope Loughhead’s house in the leafy neighborhood near Rice University abuts the land where, nearly a decade ago, a proposed high-rise sparked a land-use battle that resonated citywide and throughout the local development community.

This week marks two years since a judge ruled the proposed Ashby tower could go forward after a monthlong trial and jury verdict that agreed with residents that the 21-story tower would be a nuisance to surrounding property owners. The judge agreed to some of the roughly $1 million in damages jurors assessed against Houston-based Buckhead Investment Partners but denied residents the permanent injunction they were seeking to halt the project.

Yet the 1.6-acre lot sits empty as both sides await a decision on their appeals.

“It feels like we’re in limbo,” Loughhead said. “We’re in the dark. We know they are allowed to build, but no ground has been broken.”

The developers declined to comment, citing the ongoing appeals process. They did not answer questions about the status of the project, although they previously told the Chronicle that the construction was moving along despite the appeal.

[…]

Attorneys for both sides made their cases during an appellate hearing in September. A decision could come down any day, attorneys say.

In documents filed with the 14th Court of Appeals, the attorney for the developers, Raymond Viada, argued against the damages that jurors awarded 20 residents who live near the Ashby project’s 1717 Bissonnet address. He wrote, in part, that the developers altered plans for the project after the jury’s decision and before the injunction hearing. Therefore, the project discussed in trial, which was ruled by the jury to be a nuisance, was no longer what his clients were proposing.

Viada wrote that the developers, who have already invested $14 million in the project, changed plans to reduce lighting from the garage, place planters on the amenity deck to add privacy and reconstruct its foundation to limit the impact of damage to surrounding homes. He wrote that the developers expect to net $72 million in profit if the project is not stopped.

See here for all the Ashby blogging you can stand. As I said the last time, it really boggles the mind to realize how long some lots in extremely desirable parts of town have been empty. The old Robinson Warehouse, Allen House, The Stables, and Ashby sites have been fallow for going on ten years. They remained unbuilt through a multi-year real estate boom that was especially hungry for inside-the-Loop properties. Now, in the midst of a low-oil-price downturn, it’s hard to imagine any of them changing status any time soon, and that’s without taking the Ashby lawsuit appeals process into account. I keep thinking that one of these days something will change, but all I’ve gotten for my trouble is that much older.

Endorsement watch: What Brown can do for you

The Chron picks its favorite among the challengers in HD27.

Steve Brown

Steve Brown

[Rep. Ron] Reynolds, a three-term incumbent, was named Freshman of the Year by the House Democratic Caucus at the end of the 2011 session; two years later he landed on Texas Monthly’s “Worst” list. This year he needs to attend to his own problems while someone else takes on the task of representing District 27. The district covers most of Missouri City and parts of Houston and Sugar Land.

Challenging the incumbent are first-time candidate Angelique Bartholomew, 46, a certified mediator and director of compliance for a medical firm; Chris Henderson, 30, an assistant district attorney in Galveston County who also is running for the first time; and Steve Brown, 40, a former White House intern who owns a public affairs firm. The former Democratic Party chairman of Fort Bend County, Brown also worked as a budget analyst for then-state Rep. Sylvester Turner and was the Democratic nominee for a seat on the Texas Railroad Commission in 2014.

Our choice for the Democratic primary is Brown. With 15 years of experience in politics and public affairs, including an unsuccessful run for the District 27 seat in 2006, he’s conversant with issues that resonate in this diverse, fast-growing district, including education and school finance, health care and economic development.

My interview with Steve Brown is here, and with Angelique Bartholomoew is here. The Chron has been pretty harsh on Reynolds lately – they begged people to challenge him after he was sentenced to jail time for barratry – so it was just a matter of who they liked. They had some good options here.

And as long as we’re discussing candidates the Chron doesn’t like:

Candance White brings a broad perspective and a wealth of experience to her quest to secure the Democratic party’s nomination for [Justice, 14th Court of Appeals District, Place 2]. White, 49, who graduated from the University of Texas School of Law and obtained a master’s in law from the University of Houston Law Center, began her career as an environmental lawyer. She has worked in private practice, served as a city of Houston municipal court judge, as an attorney for Adult Protective Services and as the inter-regional managing attorney for both Adult Protective Services and Child Protective Services. Currently, White serves as the Child Welfare Director for Protective Services for Harris County. “I know how to make complex decisions. I make them every day,” White told the editorial board. Her record is even more impressive when compared to that of her primary opponent. Former state appellate court judge Jim Sharp – booted out of office by voters following an episode of bullying behavior – lacks the necessary temperament to hold judicial office. Primary voters should unite behind White and give her a chance to serve on this important bench.

That was from last week. Strictly speaking, Sharp lost a general election in which all Democratic candidates for the 1st and 14th Courts of Appeal were defeated, so the Chron is assuming facts not in evidence. Be that as it may, it was clear who they were going to pick in that race.

Filing deadline highlights

I’m taking a look at interesting bits from the state and Harris County Democratic Party filings. You can see the latter here; there isn’t a page dedicated to this on the TDP webpage (why?) but via this press release we find the SOS candidate filing report, which once filtered for Dem only gives us what we want, albeit in a not-so-pretty package. We soldier on nonetheless. Here are the things that caught my eye.

Federal

– In addition to the three candidates with whom you may be familiar, your choices for President in Texas include Calvis L. Hawes, Keith Judd, Roque “Rocky” De La Fuente, Star Locke, and Willie L. Wilson. Hawes, Judd, and Locke are themselves from Texas.

– Democratic candidates filed for 30 of the 36 Congressional seats, the exceptions being 8, 11, 13, 19, 32, and 36. Of those, only 32 could be considered on the horizon of competitive, so no great loss. Incumbent Democrats facing primary challengers are Beto O’Rourke (CD16), Henry Cuellar (CD28), Eddie Berniece Johnson (CD30), and of course Gene Green (CD29), who like Johnson has two opponents, both named Garcia (Adrian and Dominique). There are seven candidates for the open CD15. Former Rep. Pete Gallego, trying to take back CD23, has a primary opponent to overcome first. Frequent candidate A.R. Hassan is one of two hopefuls for CD22. And hey, remember Ray Madrigal, the guy who ran against Wendy Davis in the gubernatorial primary in 2014? He’s a candidate for CD27, along with two other folks.

Statewide

– Your candidates for Railroad Commissioner are former State Rep. Lon Burnam, 2014 Senate candidate Grady Yarbrough, and Cody Garrett.

– All of the statewide judicial offices have candidates: Mike Westergren, Dori Contreras Garza, and Savannah Robinson, for places 3, 5, and 9 on the Supreme Court; incumbent Judge Larry Meyers (remember he switched parties last year), Betsy Johnson, and Robert Burns, for places 2, 5, and 6 on the Court of Criminal Appeals. I think you have to go back to 2002 to find the last time we had all such slots filled.

SBOE

– I guess first-term SBOE member Martha Dominguez decided not to run for re-election, because she didn’t file for it. Dominguez was more than a little flaky about running after her surprise win in the 2012 primary (why she was in the primary if she was reluctant to run for November remains a mystery), so no great loss here. Three candidates – Georgia Perez, Joe Fierro, Jr., and Lynn Oliver – are on the ballot to replace her.

– Two familiar names are back, Rebecca Bell-Metereau in SBOE5, and Judy Jennings in SBOE10. Both good candidates (you can search my archives for the interviews I did with them in 2010 if you are so inclined), with perhaps better chances of winning this time.

– There are three candidates for SBOE6 in Harris County – Jasmine Jenkins, Dakota Carter, and Michael Jordan. I know nothing about any of them at this time.

District appeals courts

– We seem to have these covered for Harris and the other counties in our two appellate districts:

Chief Justice, 1st Court of Appeals – Jim Peacock.
Justice, 1st Court of Appeals District, Place 4 – Barbara Gardner.
Justice, 14th Court of Appeals District, Place 2 – Candance White and Jim Sharp. Yes, that Jim Sharp.
Justice, 14th Court of Appeals District, Place 9 – Peter M. Kelly.

That appears to be a full slate, unless there are any unexpired terms I’m not aware of. DA candidate Morris Overstreet ran for Chief Justice of the 1st Court in 2010. Peter Kelly is a neighbor of mine, so that’s cool.

– There’s a contested primary for Justice, 13th Court of Appeals District, Place 3, in South Texas, which had been held by 2008 Supreme Court candidate Linda Yanez; she lost it in a heartbreaker in the 2010 debacle. One of the candidates is Leticia Hinojosa, whom those with long memories may remember as Rep. Lloyd Doggett’s primary opponent for the re-redistricted CD25 in 2004. Everything old is new again.

State Senate

– You know about the TMF-Menendez rematch in SD26. Another “rematch” is in SD19, where Sen. Carlos Uresti faces Helen Madla, widow of former Sen. Frank Madla, whom Uresti ousted in 2006. Let me just say that as much as I love the city of San Antonio, I’m glad I’m not living there this primary season.

– Sen. Eddie Lucio also has a primary opponent, O. Rodriguez Haro III.

– Virginia “Jennie Lou” Leeder is running for SD24, the seat vacated by Troy Fraser. She won’t win, but at least someone is running. No one filed for the other open Senate seat, Kevin Eltife’s SD01.

State House

– By my rough count, Dems fielded candidates in 90 of the 150 State House districts, which I believe means they are challenging 38 Republican incumbents. Offhand I don’t know how that compares to other years. Some districts where I would have liked to have seen a challenger include 17, 32, 45, 132, and 138. Easier said than done, I know. The Dallas County Democratic Party put out a release touting the fact that all of their districts have a Dem running in them. Good on them for that.

– Incumbents with primary challengers, according to the SOS: Toni Rose (HD110), Ina Minjarez (HD124; she won a special election late in the session, so no shock here), Alma Allen (HD131), Gene Wu (HD137), Ron Reynolds (HD27; he has three opponents), Sergio Munoz (HD36), and Mary Gonzalez (HD75; she is facing former Rep. Chente Quintanilla). According to the HCDP page, you can add Jessica Farrar (HD148) and Hubert Vo (HD149) to that list, with both of their opponents being hot messes. Farrar faces Dave Wilson – yes, that Dave Wilson – while Vo draws minor Mayoral candidate Demetria Smith. Pass the Advil.

– Open seat report: Three candidates in HD116 (vacated by TMF in his Senate quest), two in HD118 (Joe Farias; son Gabe won the special election to fill out his term), six in HD120 (Ruth Jones McClendon), three in HD139 (Sylvester Turner), seven in HD49 (Elliott Naishtat), and two in HD77 (Marissa Marquez).

– Other contested races: HD117 (Philip Cortez tries to win back the seat he won in 2012 and lost in 2014; he faces San Carlos Antonio), and HD144 (Mary Ann Perez tries to do the same but first faces Cody Ray Wheeler and Bernie Aldape). Also of note, Lloyd Criss (father of former Judge and 2014 candidate Susan Criss) tries his luck in HD23, which he once represented some years back.

Harris County

– There are twelve contested judicial races. These are mostly for Republican-held benches, but incumbent Elaine Palmer drew two challengers. Guess I better start sending out those judicial Q&As.

– Those 12 judicial races are for district and county courts. There are also four contested JP races. Incumbent Richard Vara (Precinct 6, Place 1) has an opponent, and incumbent Hillary Green (Precinct 7, Place 1; she is the estranged wife of outgoing Controller Ronald Green) has seven (!) opponents, including 2012 HCDP Chair candidate and 2013 Mayoral candidate Keryl Douglas.

– There are 26 people running for 8 Constable positions. Incumbents Alan Rosen (Precinct 1) has two opponents; Chris Diaz (Precinct 2) has three; Henry Martinez (Precinct 6) has four; and May Walker (Precinct 7) has one.

– Sherrie Matula, who had a couple of good runs for State Rep in HD129 prior to the 2011 redistricting, is a candidate for HCDE in Precinct 2, while Marilyn Burgess is running in Precinct 4. There are no At Large HCDE spots on the ballot this year.

– Commissioner El Franco Lee is unopposed, while former Council candidate Jenifer Rene Pool and Eric Hassan square off for the right to challenge Steve Radack in Precinct 3.

…And I do believe that’s a wrap. There may be some late additions or corrections – the SOS page may not have full information from the county parties, for instance – but this is a decent overview. There are a few names on the ballot that I wouldn’t mind seeing disappear, and trying to make sense of all these races and candidates will be a monumental task with not a whole lot of time to accomplish it, but overall this is a good thing. Much better to have a plethora of candidates than a dearth in a democracy.

Woodfill is still pursuing his anti-same-sex benefits lawsuit

From the inbox and the febrile mind of Jared Woodfill:

RedEquality

Last year Houston Judge Lisa Millard granted a temporary injunction and ordered Houston Mayor Annise Parker and the City of Houston to immediately stop recognizing same-sex ‘marriages’ and stop providing benefits to the same-sex couples married in other states. Judge Millard stated, “This court does not legislate from the bench” and ordered the injunction to stay in place until a trial date of December 2015. I filed the lawsuit on behalf of Larry Hicks and Pastor Jack Pidgeon. The City of Houston has appealed Judge Millard’s opinion. Mayor Parker is arguing that the United States Supreme Court’s recent decision regarding same-sex marriage justifies her unilateral decision to use your tax dollars to fund same-sex benefits. I believe the City of Houston and Mayor Parker are wrong. The recent marriage decisions addressed a new right for same-sex marriage, but did not establish an entitlement for financial support at taxpayer expense. Consistent with the same dichotomy that resulted in the abortion decisions, which established an individual right to abortion but an equally strong right by the States to deny public funding for abortion. Accordingly, we have responded to Mayor Parker’s unlawful use of your tax dollars and filed a responsive brief. The brief can be accessed by clicking here. I am hopeful that the Houston Fourteenth Court of Appeals, like Judge Millard, will once again make it clear that Mayor Parker’s executive actions to force the funding of same-sex benefits on the people of Houston are illegal. It is time for Mayor Parker to stop wasting tax dollars on issues that have already been resolved by Texas voters and Texas state courts. I will keep you posted on the progress of this litigation.

Read Judge Millard’s order here.

To review the situation: In November of 2013, after SCOTUS knocked down the federal Defense of Marriage Act (DOMA), Mayor Parker issued an executive order declaring that spousal benefits for city employees extended to legally married (i.e., in other states) same-sex spouses. This was both in response to the deletion of DOMA and in recognition of the fact that the 2001 charter amendment limited benefits to “employees, their legal spouses and dependent children”. Pidgeon and Hicks, abetted by Woodfill, then filed a lawsuit challenging this, and got an initial injunction against it from Family Court Judge Lisa Millard. A second lawsuit was then filed by three City employees who would have benefited from Mayor Parker’s order, to force the action that she took. Both suits were then moved to federal court in December, where Judge Lee Rosenthal dropped the injunction against the city. The second plaintiffs, represented by Lambda Legal, moved to combine the two suits, which were eventually moved back to state court last August. Woodfill and pals filed another lawsuit in state court in November; I have no idea what happened to that one.

As far as I know, that was the last update until after the Obergfell decision, at which time the Lambda Legal lawsuit was formally dismissed for being moot. I would have assumed the same would have happened to the Pidgeon/Hicks lawsuit, but I have not seen anything to confirm or deny that. As for this current action, I have no idea what legal basis Woodfill thinks he has to draw a distinction between same-sex marriage and opposite-sex marriage – silly me, I thought the SCOTUS ruling was pretty clear on that point – but after what we’ve seen in the past few weeks, who knows what a Texas court might do. Any legal types out there who can explain any or all of this better than I can, by all means please do. I’ll keep my eyes open for any further developments.

Montgomery County “voter fraud” case update

Glad to hear this. The whole case is ridiculous.

A self-described “egghead,” Jim Jenkins accomplished his dream by founding his own microsystems company. He also takes satisfaction in being a Christian conservative who is unabashedly proud of his 11 grandchildren.

At the same time, the 64-year-old Woodlands resident acknowledges being “bullheaded” and willing to risk it all in a court battle that he says is about voting rights. But state prosecutors contend its about illegal voting.

The stakes are high: If Jenkins loses the fight, he could go to prison for three years.

The story began five years ago when Jenkins and others became concerned that the Woodlands Road Utility District was spending millions of dollars on road improvements without “any voter oversight.” So he led a voter revolt to take over the district’s board and then dismantle the organization. But since he and nine cohorts did not live within the district’s boundaries, they changed their voting addresses to a motel that was inside the district. Their plan ended with Jenkins and some of the others being convicted in 2013 for the felony of illegal voting.

Yet now Jenkins has scored his own legal victory, as the 14th Court of Appeals reversed his conviction and sent his case back to be retried.

“At the start I was offered probation, but I wouldn’t take it because I’m not guilty,” said Jenkins, a father of three who holds a master’s degree in electrical engineering from Rice University. “My motto is, ‘If you’re right, you fight.’ ”

Jenkins’ case reflects the strong opinions over roads and taxes in the politically conservative Woodlands, as well as uncertainty over the residency requirements of Texas’ election laws.

He is one of only a dozen people in the past decade to be prosecuted by the Texas attorney general for illegal voting and to receive a prison sentence, with most of those sentences amounting to days – not years, records show. Then-Attorney General Greg Abbott tweeted of Jenkins’ sentencing by a jury: “Another Voter Fraud Conviction leads to prison.”

[…]

Since the district’s creation in 1991, it has widened most of The Woodlands’ major arteries, added turn lanes, constructed bridges and improved signalization, said Mike Page, the road district’s attorney.

But Jenkins is disgusted by the district’s “spider web” boundaries that run and skip along thoroughfares to take in 2,475 acres of commercial properties. This includes entities such as Anadarko, Chevron Phillips and The Woodlands Mall while excluding all residential areas.

Jenkins contends that such gerrymandering is “disenfranchising” the public because residents have no vote or say on how the roads are developed. Although the commercial entities pay the property tax – 35 cents per $100 of assessed value – Jenkins believes that many of the costs associated with the projects eventually get passed onto residents.

To rectify the problem, Jenkins and nine cohorts decided to try to win a majority of seats on the road district board, which then had five members whom they believed had become too cozy with the community’s developers.

They then would pay off the debt, turn off the lights and shut the district down.

However, the road district’s elections are not typical by any measure.

Commercial business owners and their employees cannot vote. And although those filing to run as a board member do not have to reside inside the district, only those who claim a residence within its boundaries can cast ballots. And the district has virtually no residential areas.

“Last time I checked, the district had only four registered voters,” said Page, the attorney for the road district. “There’s a man, his wife and daughter living in an apartment attached to a building that’s inside the district. That homeowner, Dirk Laukien, was granted special permission for a residence in a commercial zone. He travels a lot. Then the fourth voter is the manager of Marriott’s Residence Inn who lives on the premises.”

Read the whole thing, it’s good stuff. I’ve noted this case before, and had a couple of conversations with Jenkins’ co-defendant, Adrian Heath. We’ve basically established that there’s no enforceable standard of residency for candidates, so it’s really unclear why the book was thrown at these guys. In searching for an image to use with this post, I came across this site that was put up in support of Jenkins et al. The base domain name and some of the links don’t work any more, but click around, there’s a lot of useful background on this case, which to my mind is more about Greg Abbott claiming a “vote fraud” scalp that didn’t involve Democrats of color than anything else. See also the Texas Election Law Blog, whose proprietor is a supporting player in this drama. I’m glad that Jenkins got a new trial, and I wish him and his co-defendants the best of luck in beating the rap.

No expedited appeal for HERO opponents

From HOUEquality, on May 13:

Today the 14th Court of Appeals denied HERO opponents’ request to force a trial in less than 30 days. The trial will proceed, but at a regular pace. This is another setback for opponents, but the case will still be heard by the Court of Appeals.

PetitionsInvalid

HERO opponents filed their request for an expedited appeal on April 30, nearly two weeks after the city prevailed in district court. I don’t know about you, but I think if part of my argument was that my case would somehow become moot if the appeals process took too long, I’d file that appeal a bit more quickly. The city responded on May 7, arguing that the plaintffs’ request was “unnecessary, unreasonable, and unfair”, and as you can see in the very brief ruling, the appeals court agreed. I don’t know what the appeals schedule will be, but I do know that unless there’s a ruling in place by about mid-August ordering a repeal referendum, there ain’t gonna be one this year. One hopes there will never be one, but this year is increasingly unlikely.

Oh, and it might help the plaintiffs’ case if they actually paid the appellate filing fee. I mean, it would be fine by me if they didn’t, as that will lead to a dismissal of their case. But if they do want their case to go forward, in however timely a fashion, this is a detail they might want to tend to. Just FYI.

Judicial Q&A: Kyle Carter

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates on the November ballot. This is intended to help introduce the candidates and their experiences to those who plan to vote. I am running these responses in the order that I receive them from the candidates.)

Kyle Carter

1. Who are you and what are you running for?

My name is Kyle Carter, and I am running for Chief Justice of the 14th Court of Appeals.

2. What kind of cases does this court hear?

This Court hears appeals from the criminal, civil, family, and juvenile courts of Harris County, and all appeals out of state district courts in the counties of Austin, Brazoria, Colorado, Chambers, Fort Bend, Galveston, Grimes, Waller and Washington.

3. Why are you running for this particular bench?

I am running for this bench because I want to help people. The 14th Court of Appeals hears cases from the District Courts in the ten-county region. The Court’s decisions shape the policy that affects the everyday lives of Texans. I have chosen the Chief Justice position on the 14th Court of Appeals because it is a leadership position. The Chief Justice hears appeals and writes opinions along with the other members of the Court, but also manages the Court’s budgetary matters. I believe that I would bring a different perspective to the Court of Appeals. I have served as a trial judge for the past five years, and I can bring that experience with me to the Court. Additionally, all current members of the 14th Court of Appeals are Republican. My election would add balance to the Court and offer a different set of ideas when dealing with legal and policy issues.

4. What are your qualifications for this job?

I have served as judge of the 125th District Court in Harris County since my election in 2008. During my time on the bench, I have made it a rule that everyone who enters the 125th District Court is treated with fairness, dignity, and respect.

In five years on the bench, I have handled over 7,000 cases and conducted over 180 bench and jury trials. Additionally, I have been honored by my colleagues to serve as chair to the Civil Court Committee on Special Dockets, as well as Secretary to the Civil Court Board of Judges.

I have also conducted numerous speaking engagements across the State of Texas, as well as to out of state audiences. I have spoken on a range of legal topics to the State Bar of Texas, the American Association for Justice and the Houston Trial Lawyers Association.

Most importantly, I am deeply committed to community service and outreach, and actively participate in numerous charitable organizations. I am most proud to work with students, and enjoy speaking at schools and educating youth on a host of different topics from government and civics to career opportunities. To that end, I have founded an organization called Judges At Work in Schools, which visits local schools and educates students about the judicial system, career opportunities, and the importance of higher education.

Prior to taking the bench, I served as a trial lawyer with the Carter Law Firm for over 8 years, working on cases with a variety of subject matters including commercial litigation, transactional law, corporate formalities and business development, securities litigation, personal injury and corporate compliance.

Additionally, I am honored to have served as general counsel to the Legislative Committee on General Investigating and Ethics for two sessions, as well as the Legislative Committee on Urban Affairs.

5. Why is this race important?

This race is important because the members of this Court determine the policy that affects the lives of all Texans. This race presents a great opportunity to elect a Chief Justice who brings a fresh perspective on issues. I believe in following the Constitution, protecting Texas families, and individual property rights. We need a Chief Justice that will work for all people.

6. Why should people vote for you in November?

I am the best person for this position because of my judicial philosophy to follow the law, and treat everyone who comes before me with dignity and respect. Additionally, I am the only candidate with any experience having served as a trial judge. Finally, I am a dedicated public servant who believes in community service.

As a current trial judge I work hard to ensure that all who come before me are treated fairly, and I am committed to making justice available to everyone regardless of race, gender, ethnicity, religion, and importantly, financial means. A judge should recognize that those with the most financial means often have better access to counsel and an ability to bear the expense of litigation. As a result, I have always maintained a fair courtroom where justice is available to all citizens regardless of financial means.

I want Texas to be the best possible place to live, work, and raise a family, and our judicial system is vitally important in making that a reality. As a husband, father, lawyer, and judge, I am aware of the many issues that affect everyday Texans, and I want to ensure that the system is fair to all. In conclusion, I believe that my experience, judicial philosophy, and commitment to fairness make me the best person for the position of Chief Justice of the 14th Court of Appeals.

HERO repealers try their luck with the Supreme Court

Because sure, why not?

PetitionsInvalid

Opponents of Houston’s equal rights ordinance have asked the Texas Supreme Court to force the city secretary to certify the signatures on a petition they submitted seeking to trigger a repeal referendum on the law.

Houston’s 14th Court of Appeals denied a similar request on Aug. 15, ruling that the emergency writ of mandamus would have the same result as a favorable ruling in the pending lawsuit opponents filed against the city earlier this month. The plaintiffs, the judges wrote, could appeal after a ruling comes down at the trial court level.

Trial in that case is set for Jan. 19.

The new filing with the Supreme Court, turned in late Tuesday, is similar to the group of conservative pastors and activists’ previous requests. It seeks to have the court force the city to suspend enforcement of the ordinance, to put the ordinance to another vote of the City Council and, if the council does not repeal it, to put the issue before voters.

Mayor Annise Parker already has agreed to suspend enforcement until a legal ruling is issued. Officials have said the deadline for placing items on the November ballot was Aug. 18, meaning a favorable ruling for opponents would appear to result in a vote in either May or November of 2015.

City Attorney David Feldman pointing to the appellate court’s denial of the similar mandamus filing, said opponents will face the same legal hurdles in going to the Supreme Court.

“It doesn’t change because the venue changes,” he said. “The law is still the same.”

Plaintiff Jared Woodfill said his side simply disagrees with the appellate court’s ruling and is hopeful the Supreme Court justices will see things differently.

See here, here, and here for the background. Remember, Woodfill et al are suing to get their referendum on the ballot. The writ of mandamus they have filed with the Supreme Court asks that the referendum be put on the ballot. You may wonder, as did Judge Shaffer and the 14th Circuit Court of Appeals, what the point of the lawsuit is if the mandamus gives them what they’re suing for. But like me, you probably don’t have the brilliant legal mind of Jared Woodfill. It doesn’t cost them anything but Andy Taylor’s exorbitant legal fees to ask, so what the hell. Texpatriate has more.

HERO repeal petition lawsuit set for January

There will be no HERO repeal referendum on the ballot this year, but depending on how the trial (and likely appeal) goes, there could be one next year.

PetitionsInvalid

Opponents of Houston’s equal rights ordinance dropped their request for a temporary injunction Friday that could have triggered a process to set a repeal referendum this November.

That means their lawsuit will not be heard until January 2015.

State District Judge Robert Schaffer early in the Friday injunction hearing questioned why the plaintiffs were seeking the same outcome via injunction as they are seeking in the lawsuit.

“If I grant the relief you’re asking for, isn’t that granting you everything you’re asking for in your petition?” Schaffer asked.

The announcement that the injunction request would be dropped came after Schaffer consulted with both parties in his chambers.

Also Friday, Houston’s 14th Court of Appeals denied a separate request from opponents to force the city secretary to certify the signatures on their petition and trigger a referendum.

A three-judge panel ruled that the emergency writ of mandamus plaintiffs sought would have the same result as a favorable ruling in their pending lawsuit that went before Schaffer’s court Friday. The plaintiffs, the judges wrote, could appeal after a ruling comes down at the trial court level.

See here, here, and here for the background. What Judge Shaffer was saying was that in the lawsuit the plaintiffs asked that the petitions be declared to be valid as part of their request for immediate injunctive relief, which is to say they were asking to be declared the winner before a trial took place. Now we’ll have that trial, and hopefully settle the issue once and for all. In the meantime, the city has agreed to continue not enforcing the ordinance pending the outcome of the trial. Mark your calendars for January 15. Jerad Najvar, who had previously made the case for the plaintiffs, Hair Balls, Lone Star Q, and LGBTQ Nation have more.

HERO repeal hopefuls try another venue

Whatever.

PetitionsInvalid

Conservative opponents of Houston’s equal rights ordinance have asked an appeals court to force the city secretary to certify the signatures on their petitions to force a repeal referendum on the November ballot.

Equal rights ordinance critics filed a request late Monday with Houston’s 14th Court of Appeals for an emergency writ of mandamus that would compel the city secretary to certify their rejected petition.

The filing marks the latest legal wrangling over the group’s lawsuit, already scheduled to be heard in state district court Friday. The suit claims City Attorney David Feldman illegally inserted himself into the petition verification process, throwing out entire pages of signatures based on notary and signature-gathering mistakes.

[…]

Jared Woodfill, one of the plaintiffs, said Russell’s original count should be validated. The writ of mandamus the group is seeking would compel Russell to verify signatures based solely on whether those who signed the petition are registered Houston voters and disregard the notary requirements Feldman considered.

“The people need to decide this as soon as possible,” Woodfill said.

If the group cleared the signature threshold, the ballot language immediately would go before City Council.

Feldman said the group’s filing largely mirrors the suit already pending in state court.

“They’re effectively trying to get two bites at the same apple,” Feldman said. “Substantively, we’re really dealing with the same issues.”

That’s what I think, too, but as always I Am Not A Lawyer, so don’t take my advice. In any event, the writ of mandamus is here, and the case information is here. If you look very closely at the Parties section, you might notice a small misspelling. For the record, this is Anise, and this is Annise. Slight difference.

One more thing:

Woodfill said the group has until the end of the month to get the issue on the November ballot. However, he said he anticipates that even if the court of appeals grants the group’s request, there will be a “battle” to meet that deadline.

I’ve noted this before, but according to the Secretary of State, the deadline for any referendum or measure to be put on a ballot is Monday, August 18, which is 78 days before the election. This is a matter of Texas law. I’m not sure what Woodfill thinks the deadline is or why, but I’m pretty sure it’s August 18.

Remember Ray Jones

PetitionsInvalid

So now that the HERO-haters’ petitions have been rejected by the city for not having enough valid signatures after all of the petition pages that were not compliant with the requirements of the city charter were thrown out, the story shifts to the courthouse. We don’t know exactly what the antis are going to claim but I think it’s fair to assume that they will assert that they city was too broad in its rejections and that at least some of the pages that were tossed should have been accepted. The rejections were for fairly technical reasons – the circulator didn’t sign his or her name, or there was a signature but no printed name, or the circulator was not a registered voter in Houston, and so on. There are many arguments one could make to get more signatures accepted, and if the haters’ legal counsel in their litigation is less incompetent than their counsel during the petition signing process was, they will make as many of them as they can and hope enough of them stick.

I’m not a lawyer and can’t really say what might or might not work, but I do know that the city has been down a road similar to this before, involving someone whose attempt to make it onto a ballot was rejected for narrow technical reasons and who didn’t settle for that answer. I’m thinking about Ray Jones, who was a candidate for District C in 2005, then tried to join the field of what ended up as nine candidates in the special election for At Large #3 in 2007, which was eventually won by Melissa Noriega. Jones, as is often the case with candidates, turned in his ballot application just before the deadline. Unfortunately for him, there was a problem with it, and the city rejected it, along with those of two other candidates. Here’s a report from the Chron about what the problem was.

Under the Texas Public Information Act, I got copies of rejected applications submitted by Ray Jones Jr., Greg Locke and Darryn Call. The city also released the form filed by Roy Morales, who is on the ballot.

Here’s what I found out about the four applications. You can download them here [PDF] and read along:

CALL: He didn’t complete the oath section. Leaving this blank is what city attorneys consider a “fatal” error. It’s the section in which candidates affirmatively swear that they’re submitting “true and correct” applications, and that they comply with all the requirements.

LOCKE: He got the oath part right, but he didn’t fill in his voter-registration number. This, too, is fatal because Article V of the City Charter requires that candidates be “qualified” voters.

[…]

JONES: He also didn’t complete the oath.

Jones got a call from the legal department about the error a few minutes before the deadline, but it was too late for him to submit a new form. He believes the city unfairly excludes candidates. He wrote [PDF] City Secretary Anna Russell and City Attorney Arturo Michel about it, too.

If you look at the forms in question, you see that the “oath” section is basically the part that you fill out and sign in order to get the document notarized. There’s blanks for your name, your county, and the office you’re seeking, then your signature, which is the one part everyone got right. I suppose it’s possible that a novice candidate might miss these places on the form, but you’d think a notary public would know to tell them to fill them in.

In any event, this is by any reasonable measure fairly small potatoes. The document is signed notarized, after all, and the missing information can be found or inferred from other boxes. One could certainly argue that the city might cut them some slack and err on the side of inclusiveness. The city for its part did try to contact Jones and get him to fix his mistake, but they weren’t able to reach him in time for him to do so – remember, he turned in his application on deadline day. After some back and forth in the press and an allegation that the city employee that received his document did not give him correct information about its accuracy, Ray Jones filed suit with the 14th Circuit Court of Appeals to get on the ballot. He got some sympathy from the Chron, but the city held fast. In their response, the city pointed out that his application was “defective on its face”, and they cited precedent in their favor:

The Court of Appeals of Waco held that an application that left blank the spaces of an oath/verification identical to the Jones application was defective and incomplete. The application failed to satisfy the “statutory requirements governing a candidate’s application.” In re Gibson, 960 S.W. 2d 418, 420-421 (Tex. App. – Waco 1998) (original proceeding); contra, Yapor v. McConnell, 597 S.W. 2d 555 (Tex. App. – El Paso 1980) (original proceeding). The court found that an official has the duty to review an application within five days and make a determination as to whether the application complies with all statutory requirements. If the application does not comply with the requirements of the Election Code, the application must be rejected. Tex. Elec. Code § 141.032 (e).

In Gibson, the candidate made the exact same errors as Jones by failing to fill in the blanks of the oath which is required by the Election Code . Tex. Elec. Code § 141.031(4)(K). Like Jones, the candidate in Gibson attempted to blame his omissions on the official that received his application or on the notary. In rejecting Gibson’s argument, the court held that “the completion of a candidate’s application rests primarily on the shoulders of the candidate.” Id. at 421. Statutory requirements are mandatory and the candidate must “ensure that the application strictly complies with state law.” Id. at 421.

The city ultimately prevailed, and an appeal to the Supreme Court also failed. Now again, I’m not a lawyer and I can’t say how the haters’ litigation will go. I don’t know if this case would be relevant to what they will put forth. My job is to remember stuff like this and bring it up at appropriate moments. The point I’m making is that just because these prohibitions may seem nitpicky doesn’t mean you’ll get any relief from a judge. Maybe there’s another precedent out there that would favor the petitioners, I don’t know. We’ll know soon enough how they plan to attack this. In the meantime, I say remember Ray Jones and the example he gave us. The Observer has more.

UPDATE: And the lawsuit has been filed. You can see a copy of it here, but the TL;dr version is that they claim Anna Russell’s is the One True Count, and none of the work done to invalidate individual pages means anything. I guess that’s one way of approaching this. The judge could rule as early as this morning.

Early To Rise referendum probably would have passed

For what it’s worth.

It’s one of those questions we always ask ourselves in love, life and politics: What if?

In this case, what if the Early to Rise campaign had gotten its one penny tax increase for early education on the ballot?

“The good news for them is it was support for this. The bad news, of course, is they’re not on the ballot.”

That’s Bob Stein at Rice University. He conducted the poll. He found about 49 percent of likely voters said they would support it.

“When you tell people would you like to spend money on early childhood, particularly for training the parents and childcare providers skill sets that would help children get ready for first grade, you can probably get close to 50 percent. This would have been a real battle.”

Stein says 35 percent of voters said they opposed it. About 15 percent weren’t sure.

Jonathan Day with the Early to Rise campaign says those numbers are very encouraging.

“There’s no such thing as an inevitable election result. But surely the numbers confirm that the support is available and with strong public support and a strong campaign, we could have won this election.”

But there will be no election.

Harris County Judge Ed Emmett refused to put the measure on the ballot.

“When this all came to me, you know, it kind of ties my stomach in a knot because I’m trying to sort all this out and you have people, you know, chewing on you from all sides. But at the end it became just a question of what does the law say.”

Emmett says the campaign was trying to use an outdated law to get it on the ballot.

BOR prints a guest post from Fred Lewis of Texans Together that blames Emmett for the Early To Rise initiative not being on the ballot. I think that’s a bit misguided – ultimately, it was the 14th Court of Appeals that settled the matter. I think it’s highly likely that we’d be in the same position had Emmett accepted the petitions and Early To Rise had been the defendant in the lawsuit that would have certainly followed. Judge Emmett did give a blueprint for what to do next time, and it seems for sure that there will be a next time.

[United Way Bright Beginnings] program manager Mitzi Bartlett says ten years of data show children who come here do better in school later on.

“We’re learning about consequences. We are learning so that when we go into the workplace, we can work well with others, we can problem solve and we know to try again. We’re all right if we make a mistake.”

She says it’s all right to try again.

And that is what early education advocates say they will do.

I see no reason why this wouldn’t pass next year, if the poll from this year is accurate. If you look at the poll data – click “Early Education” to see the details for this question – and you’ll see that Anglos disapproved by a modest amount, Hispanic approved by a larger amount, and African Americans approved by an overwhelming amount. I believe that would make for a successful effort in 2014, and with some potential tailwinds from Wendy Davis at the top of the Democratic ticket, prospects could be even brighter. I hope they work out some of the bugs that should have been worked out this year, get the wording right on the referendum, and take another crack at it next year.

HISD candidate sues to get back on the ballot

I missed this when it first happened.

Anthony Madry

Anthony Madry, a former administrator in the Houston Independent School District, filed a petition with the 14th Court of Appeals this week after HISD rejected his application to run for the school board.

A manager in the school board office, Veronica Mabasa, sent Madry a letter, dated Aug. 28, that she was rejecting his application under the state’s election law because it was incomplete.

Madry did not list the specific board seat that he was seeking on the application.

In his petition, Madry argued that he should have been given a chance to correct the omission. He submitted his application to the HISD board office on Aug. 21, five days before the filing deadline of Aug. 26.

State law says that applications must be reviewed within five days. The fifth day was the day of the filing deadline.

Attorneys for HISD said the district was correct in dismissing Madry’s application.

“Mr. Madry’s failure to identify the office he wished to run for, combined with his decision to file close to the filing deadline, is the reason that his application was properly rejected as required by law,” attorneys David Thompson and Lisa McBride said Thursday.

I generally don’t have a whole lot of sympathy for the candidate in these situations. The filing form is not complicated, and it’s not too much to ask to get it filled out correctly. Anthony Madry’s voter registration card lists him in HISD district 6. This is something a would-be candidate ought to know. And if state law gives school districts up to five days to review candidate filings, then it’s on the candidate to get those filings in more than five days before the deadline if they want to have a chance to fix any mistakes they might have missed. To the best of my recollection, previous candidates that have been disqualified for messing up their paperwork too close to the deadline have had no luck with the courts, but we’ll see. Here’s the court case information, if any lawyers want to armchair-quarterback it.

Early to Rise appeal denied

That pretty much wraps it up, for now at least.

A controversial 1-cent property tax to buoy local preschools will not be on the November ballot following a Houston appeals court ruling.

The 14th Court of Appeals, in an opinion issued late Thursday, rejected the Harris County School Readiness Corp.’s lawsuit to force County Judge Ed Emmett to put the tax before voters this fall. The three-judge panel dismissed the lawsuit.

[…]

“In the petition, relators ask this court to compel the Honorable Ed Emmett, Harris County Judge, to order an election in accordance with the ‘Petition to Authorize a One Cent Tax for Early Childhood Education,'” a three-judge panel wrote in the opinion.

The panel said the group failed to prove it was entitled to a writ of mandamus forcing Emmett to put the measure on the ballot. It did not elaborate in its two-page opinion.

The order is here. It’s pretty much “They asked us to do something, and our answer is No”.

The School Readiness Corp. said in a statement Friday that it “respectfully accepts the opinion,” but is “deeply saddened by the impact this decision will have on thousands of preschool children in Harris County.”

[…]

However, the group’s lawyer, Richard Mithoff, said he has told his clients “it would be very difficult if not impossible to get the matter on the ballot this time for the November election.”

As for future ballots, Mithoff said, the group “will assess all options.”

“What the campaign has clearly learned from this, what the leadership has clearly learned, is that there’s overwhelming support for funding early childhood education,” he said.

A 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 should try again next year. They had no trouble getting the signatures, they got support from school and law enforcement leaders, and even Judge Emmett admitted that if the language on their referendum had been a little different he would have had to put it on the ballot. That’s a fixable problem, and so is the fractious relationship between the School Readiness Corp and the County Judge, who would normally be inclined to support a pre-K expansion effort. If the School Readiness Corp can engage with Judge Emmett to the point where he’s at least neutral on their efforts rather than actively opposed, and they can improve and strengthen their model for oversight, I see no reason why they can’t be successful with this in 2014. I know they aimed for this year because their polling suggested that the electorate would be more favorable to them because the city of Houston and its Mayoral election would be the biggest component of it, but I’m sure they did their poll before the Astrodome referendum was on the radar, and who knows how that might wind up skewing things. The idea behind Early to Rise is compelling and worthwhile. They just need to work on the details. I would like to see them try again next year.

(more…)

Sanchez ends his Senate campaign

This news broke late Friday.

Leading Democratic U.S. senatorial candidate Ricardo Sanchez announced Friday that he’s ending his campaign to replace retiring Sen. Kay Bailey Hutchison.

In a statement issued by his campaign to supporters, Sanchez said anemic fundraising and the loss of his house to a fire had led him to conclude that a statewide campaign was “impractical for me at this time.”

“After extensive consultation with my family … I have decided to put family first and I will therefore end my campaign for the 2012 U.S. Senate seat as of today,” he said.

Well, that answers my question. Sanchez’s campaign never really got off the ground, and a month ago his house burned down, which is a tough thing for anyone to overcome. As we know, a lot of people were unhappy with his candidacy in the first place. This isn’t really a surprise.

“Politics abhors a vacuum. Someone will step forward,” said Jeff Crosby, a longtime Democratic consultant. “Someone will step in; who, I don’t know.”

Southern Methodist University political science Professor Cal Jillson said the situation Texas Democrats find themselves in is indicative of the party’s decade of electoral futility in statewide races.

“It is another sign of what people have been talking about for a decade, a very thin bench,” Jillson said. “You have some attractive young people in the Legislature and in city government … but they don’t have statewide name recognition.”

There’s always John Sharp, isn’t there? Surely he’s tanned, rested, and ready by now. I have no idea if anyone else will run. I don’t know how much it matters at this point. As to what Professor Jillson says, this is why I have been talking about making way for new blood. I disagree with him about the need for statewide name recognition, however, because almost no one currently serving at the state level had it beforehand. Rick Perry, Susan Combs, Todd Staples, and Jerry Patterson all came from the Lege. David Dewhurst was just some rich guy with no prior electoral experience before he ran for Land Commissioner. Most of the Railroad Commissioners we have had in the past decade or more were appointed to the position by the Governor before they won an election for the office. Only Greg Abbott, who was a Supreme Court justice before he was AG, had statewide experience. The fact is that when the state is ready to elect Democrats, it won’t matter much where those Democrats come from. What might speed that up is getting some Democrats who might like to run statewide into Congress and the State Senate, where their fundraising bases can be maximized. No matter how you slice it, though, the path to a statewide office involves a really big last step.

In other primary-related news, there were a few more filings in Harris County on Friday, with two races now having third candidates in them. In HD137, the seat being vacated by State Rep. Scott Hochberg, attorney Gene Wu has made his entry into the race. I’ve met Wu but don’t know a whole lot about him. I do know that the court-drawn HD137 has an Asian CVAP of 12.0%, which is third highest in the state behind HDs 26 (23.8%) and 149 (13.8%), wihch may add an interesting wrinkle to the race. All data is taken from here. In case you’re curious, the top ten districts in Plan H302 by Asian CVAP are as follows:

Dist County Incumbent Asian CVAP ========================================== 26 Fort Bend Open 23.8% 149 Harris Vo 13.8% 137 Harris Open 12.0% 66 Collin V Taylor 9.7% 112 Dallas Chen Button 8.4% 135 Harris Elkins 8.2% 115 Dallas Open 7.9% 27 Fort Bend Reynolds 7.8% 67 Collin Open 7.8% 129 Harris J Davis 7.3%

Obviously, that is subject to change. The other race with a third candidate now in it is HCDE Board of Trustees, Precinct 1, Position 6, the post now held by Roy Morales. This is not surprising when you consider that the Democratic primary will decide the outcome. The third candidate is Dr. Reagan Flowers, who according to her press release is “Founder and CEO of CSTEM (Communications-Science-Technology-Engineering-Mathematics) a non-profit focused on improving education for underserved and underrepresented children.” You can read some of her writings here. I look forward to interviewing all the candidates in this race so I can figure out which one to vote for.

Otherwise in Harris County, things are pretty well covered. It looks like all of the 1st and 14th District Court of Appeals seats have challengers. The main down note is that other than Keith Hampton’s challenge to Sharon Keller, there are no Democratic candidates for Supreme Court or CCA. I suppose we could get a late filing or two tomorrow, but that’s not terribly encouraging.

Finally, here’s a list of Democratic filings in Fort Bend. I don’t know offhand if they have any races unfilled or not – I’m not sure when their District Attorney position is up, for instance. Again, the legislative seats are subject to change at the whim of the court. As, of course, is the whole unified primary itself, as it requires fairly swift SCOTUS action to not be scuttled by the calendar. For now, we’ll all just pretend that won’t happen.

UPDATE The District Attorney office in Fort Bend is not up until 2014. All offices except Tax Assessor have Democratic candidates filed for them so far.

Endorsement watch: Appeals courts

I’ve regularly ragged on the Chron for their, um, casual attitude of late for getting endorsements done in a timely manner, so I must commend them for getting such an early start this year. They’ve covered the Governor and Railroad Commissioner races so far, and have now weighed in on the District Appeals Court races. Of the six, they went with two Democrats:

Place 8, 1st Court of Appeals: Robert Ray, a Democrat, is our choice to complete an unexpired term on this bench. Ray’s academic background as a psychologist and an undergraduate journalism major hold the promise of bringing a new and different perspective to the court. His work as a jury consultant gives Ray an appreciation for the work of juries that some contend is missing from the appeals courts.

[…]

Place 5, 14th Court of Appeals: Wally Kronzer, a Democrat, is board certified in appellate law and brings 22 years of experience practicing in that specialty to his candidacy for an unexpired term in this place on the court. Kronzer, a graduate of the University of Houston and South Texas College of Law, contends that his work in the less populous counties surrounding Houston gives him a perspective that is needed on this court. We agree.

Kronzer, a cancer survivor and longtime Little League coach, would bring strong legal background and life perspective to the bench.

Given the length of the ballot in Harris County this year – I’ve heard people say it’s the longest ballot ever, anywhere in America, thanks to all the judicial races – an early start is clearly called for. Let’s hope they maintain the pace.

Moody to run for Supreme Court again

Good news for Democratic statewide prospects.

A veteran state district judge who walked across Texas three years ago in pursuit of a seat on the state Supreme Court plans to go airborne next year for another shot at the high court.

Judge Bill Moody, of El Paso, plans to charter a blimp and make two daily stops in the state’s 70 most populated counties to grab the attention of voters. An amateur historian, Moody says no Texan has campaigned from a blimp before, although Lyndon Johnson created a buzz by using a helicopter during his 1948 U.S. Senate campaign.

The blimp idea came to Moody during a walk in the hot sun near the Johnson ranch east of Fredericksburg.

“I saw a blimp flying through the sky, and I said, ‘There might be an easier way to do this and to get out the message,’ ” he said Thursday from the state Capitol. “The blimp is important as a messaging tool.”

A Democrat, he hopes to break into the nine-member, all-Republican court.

Moody was the leading votegetter among Dems in 2006, collecting 1,877,909 tallies in a 51-45 loss to appointed Justice Don Willett. He collected a lot of newspaper endorsements along the way, which I believe helped him. Two Democratic judicial candidates from 2008 – Sam Houston and Susan Strawn – received a higher percentage of the vote than Moody did in 2006, so with his name ID and qualifications, he has a real shot next year.

Individual workers, home owners and consumers have lost nearly every case before the court when opposed by insurance and pharmaceutical companies, Moody said.

“These large political contributors have been so overpowering and loud in exercising their speech and influence before the Republican court that everyone else’s voices have been drowned out,” he said.

If you want to know who those big contributors are and who their beneficiaries were in the last election, read this report (PDF) from Texans for Public Justice.

According to Postcards (whose individual entry link is broken), Moody will run against Justice Paul Green. I don’t know yet who will run for the seat that was vacated by Justice Scott Brister, which has now been filled by Justice Eva Guzman of the 14th Texas Court of Appeals, but I’m sure someone will. For that matter, I’m sure someone will run against Guzman and whoever her appointed replacement is on the 14th Court in the Republican primary as well. And I know that whoever wins that latter primary will face Tim Riley, who ran against Tom DeLay in CD22 back in 2002, in the general election. I think that about covers it.