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Andy Taylor

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.

City loses appeal of procedural argument in term limits lawsuit

Stay with me, because this is going to take a bit of explaining.

calvin-on-term-limits-for-dads

A state appeals court on Thursday rejected the city’s procedural challenge to a lawsuit that could force Houston’s mayor and city council members to revert to three two-year terms, from the two four-year terms voters approved in November 2015.

The Texas First Court of Appeals ruling did not address the merits of the underlying case, which centers on whether the city’s ballot language was misleading.

Rather, the court’s decision marks an incremental step in what is likely to be a lengthy appeals process that plaintiffs hope could trigger municipal elections as early as this fall.

Austin election lawyer Buck Wood, however, said he considers November mayoral and city council elections improbable, given the speed with which courts typically move.

[…]

The appellate court’s ruling affirms state District Judge Randy Clapp’s decision last year to reject Houston’s procedural challenge, which sought to get the case thrown out.

Clapp was not considering the substance of the case at the time, though he tipped his hand by calling the city’s ballot language “inartful” but not “invalid.”

Mayoral spokeswoman Janice Evans said Thursday the city attorney’s office is considering whether to appeal the procedural decision to the state Supreme Court.

If the trial court’s 2016 procedural decision holds, the case likely would return to Clapp for a hearing on the substance of whether Houston’s term limits ballot language obscured the nature of the vote by asking whether voters wanted to “limit the length for all terms.”

See here for the background. Where this gets confusing is that the original story didn’t explain all of what was happening in that first hearing. There was a motion by the plaintiffs for summary judgment, which was denied. That was the win for the city, as now a trial is required to settle the question of whether the ballot language was misleading or not. The rest of it was about procedural matters: Whether plaintiff’s attorney Eric Dick properly served the city notice of his lawsuit, whether the court had jurisdiction to hear the case, and whether attorney Andy Taylor could intervene to assist Dick. District Court Judge Clapp ruled against the city’s motion to dismiss on these matters. The city appealed that ruling, and the First Court of Appeals upheld Judge Clapp.

The city can appeal this ruling to the Supreme Court. If they do and they win, the lawsuit will be dismissed. If they lose, or if they choose not to appeal, the matter will be returned to Judge Clapp’s court for a trial on the merits of the lawsuit. The plaintiffs are hoping to get a ruling in time for there to be city elections this November; they claim August is the deadline for that, though I’d argue that more time would be needed for real campaigns to occur. However, as the story notes, even if the plaintiffs win, there’s no guarantee that city elections would follow as a result. What might happen instead is that the city would have to put a differently-worded term limits referendum on the ballot. That maybe could happen this November, or it might happen in 2018. Or even later than that, depending on how long it takes to get a ruling and how long the appeals of that ruling take. Remember how long it took to get a Supreme Court decision in the Renew Houston lawsuit? The 2010 referendum was subsequently voided more than a year ago, and yet here we are, with no new election for it in sight. Mayor Turner has joked that it will be up to his successor to get the term limits issue straightened out because it won’t be settled till after his eight years in office. I’m not sure he’s joking about that.

Senate whinefest about ballot propositions

Spare me.

crybaby

Members of a state Senate committee called Monday for changes in Texas law to prevent cities from thwarting or blocking citizen petition drives, a key issue for conservative and tea party groups in Houston and other cities in recent years.

At a meeting of the Senate Intergovernmental Relations Committee, members made it clear they support changes to ensure that ballot language is not deceptive or misleading and to keep cities from using outside law firms already doing city business to drag out legal proceedings against citizen petitioners.

Representatives of Texas’ approximately 300 home-rule cities cautioned against making changes to the current process or tipping the laws too far in favor of citizen groups, saying that could dilute local control in favor of state mandates.

Tension between citizen activists and local officials who often are the targets of their ire has been bubbling across Texas in recent years, thanks to a boost of tea party activism. Much of the testimony at Monday’s hearing centered on contentious petition drives and ballot fights in Houston, including the city’s controversial drainage fee levied more than decade ago and the repeal of Houston’s equal rights ordinance, known as HERO, in 2015.

[…]

Austin lawyer Andy Taylor, who fought the City of Houston before the Texas Supreme Court on ballot issues such HERO and the city’s drainage fee, told the committee how citizens who have had to go to court on their petition drives have had to pay hefty legal fees even though they won the legal battles.

Taylor testified that the cost of one case alone totalled $650,000. Bruce Hotze, a Houston businessman who has fought the City of Houston in another case, said he has spent well over $350,000 and the case is not over yet, because the city will not implement a charter change approved by voters.

Witnesses testified that other issues include petition signatures being invalidated in questionable ways, and cities using outside attorneys to increase the costs to citizen petitioners, a move that could discourage them from pursuing an action the city leadership opposes.

Let’s remember three things:

1. Andy Taylor’s fight over the drainage fee has been about nullifying the petition-driven referendum that was approved by the voters. The claims about “confusing language”, which were rejected by a district and appeals court before finally being bought by a credulous and activist Supreme Court, were raised after the election, by people who didn’t like the outcome.

2. That same Supreme Court put the anti-HERO referendum on the ballot without considering a lower court ruling that the petition effort had been rife with petition sheets that did not meet state law and widespread forgery. It never even held a hearing to allow an argument from the city, but ruled solely on a motion from the plaintiffs.

3. Apparently, this entire hearing occurred without anyone mentioning the Denton fracking referendum, in which yet another petition-driven referendum that was ratified by the voters was nullified, first by a judge and then by legislators like Paul Bettencourt.

The point here is that this isn’t about process, and it sure isn’t about The Will Of The People being stifled. It’s about the voters doing things that state Republicans don’t like. It’s about cities having a different vision and priorities for themselves than Greg Abbott and Dan Patrick and the Legislature do. Abbott et al don’t accept the authority of the federal government, and they don’t accept the authority of local government. That’s what this is about.

City wins first round of term limits ballot language lawsuit

It’s round one, of course, but it’s still a win.

calvin-on-term-limits-for-dads

The ballot language Houston voters used to change term limits for elected officials was “inartful” but not “invalid,” a state district judge ruled Wednesday, a move that nonetheless left the plaintiffs claiming victory ahead of an expected appellate battle.

[…]

Much of the debate before Judge Randy Clapp, a Wharton County jurist appointed to hear the case, focused on procedural matters: Whether Dick properly served the city notice of his lawsuit, whether the court had jurisdiction to hear the case, and whether attorney Andy Taylor could intervene to assist Dick.

Clapp acknowledged higher courts would not be bound to his view of whether the ballot language was misleading or omitted key facts, the tests under the law.

Still, he ruled in the city’s favor, having described his thoughts in an exchange with Taylor.

“My personal feeling at this point is, the omission part is pretty weak,” he said, noting case law says ballot items need not be comprehensive. “But the misleading part is, I think, the stronger allegation you make because of the choice of words involved.”

That Clapp ultimately did not find the ballot language unlawful was less important than his decision to rule on all motions before him on Wednesday, Taylor said, because the case will move to the appellate courts all at once. That will limit the city’s ability to, as Taylor views it, “run out the shot clock” by relying on procedural delays to push the case past November 2017, when the next city election would be held if the terms reverted to two years.

“The thing that was the most important here was that we get a ruling from the trial court so that we can go up to the appellate court where this is ultimately going to be decided,” Taylor said. “We’re confident the appellate courts will rule that this ballot language was both deceptive and misleading.”

See here, here, and here for the background. You have to admire Andy Taylor’s ability to declare that a loss is a win. Clearly, he missed his calling as the coach of a sports team. Anyway, as far as the timing goes, for Taylor and Dick to actually get a win, I think you’d need to have a final ruling by no later than a year from now, probably more like by next February. I mean, the filing deadline for a November of 2017 election would be around Labor Day, so in theory you could go as late as mid-July or so for a filing period, but that doesn’t leave people much time to fundraise. If someone wanted to run for Mayor, for example, or even for an At Large Council seat, they’d want to get started a lot sooner than that. Is next April enough time for an appeals court and the Supreme Court to rule? I guess we’ll find out.

UPDATE: KUHF has more.

Lawsuit against Uptown line dismissed

We haven’t heard the last of this, of that you can be certain.

A judge has dismissed a lawsuit challenging a dedicated bus lane project in Houston’s Uptown area, but the ruling is not a final resolution of the dispute.

State District Judge Brent Gamble on Thursday dismissed the lawsuit filed by Cosmopolitan Condominium Owners Association against the Metropolitan Transit Authority. The dismissal did not specify why the lawsuit should not go forward, although Gamble indicated previously that unresolved questions made the lawsuit premature.

Both sides, however, said they viewed the dismissal as a step in their favor.

“It is my hope that now people will come together to make this the best project it can be,” said Metro chairman Gilbert Garcia.

Jim Scarborough, a Cosmopolitan resident and leader of the opposition to the bus lanes, said critics would have preferred that the judge halt the project. However, he said, the dismissal paves the way for Texas Attorney General Ken Paxton’s office to determine if another challenge is valid.

Because Metro’s 2003 referendum authorized the transit agency to build light rail rather than buses along Post Oak, opponents have challenged the use of Metro funds for the project. Paxton’s office was asked by State Senate Transportation Committee Chairman Robert Nichols, R-Jacksonville, to determine if the project violates what voters approved.

“We are pushing forward to the AG’s opinion,” Scarborough said. “There is no doubt in terms of our opinion what he is going to say.”

The dismissal by Judge Gamble received the case after another judge recused herself because of contact with a Metro lobbyist, is unlikely to end the opposition. Because Metro’s 2003 referendum called for light rail rather than buses along Post Oak, opponents have challenged the use of Metro funds for the project. That question has been posed to Attorney General Ken Paxton, who has not issued an opinion yet on the matter.

See here and here for the background. Judge Gamble received the case after another judge recused herself because of contact with a Metro lobbyist, which just adds a touch of absurdity to the whole thing. The irony of using the ballot language from 2003 to force the construction of light rail is not lost on me. Does Rep. Culberson know about this? I can’t figure out if this tactic makes the people behind this more clever than I might have thought, or just less subtle. I mean, we have all noticed that Metro isn’t actually paying for this construction, right? I don’t know why the 2003 referendum would even apply here, but then I’m not a super-genius like Andy Taylor, so what do I know? We’ll get that AG ruling in a few months, and one way or the other I expect we’ll wind up back in court. According to the story, the Uptown Management District hopes to have a contractor named by February; utility work along Post Oak began earlier this year and technical design of the bus lanes is expected within 60 days. Time is getting short to stop this.

Endorsement watch: The state propositions

There are seven constitutional amendments awaiting your vote on the November ballot. The Chron evaluates them.

Constitution

Proposition 1

The amendment would boost homestead exemption amounts for school district property taxes from $15,000 to $25,000. It also would reduce the amount of taxes that could be levied on the homesteads of elderly and disabled Texans and would prevent public officials from reducing or eliminating already-approved property tax exemptions. In addition, it would keep the state from charging a transfer tax on the sale of the property.

Proposition 2

This amendment extends the property-tax exemption for spouses of deceased veterans who were 100 percent disabled. Voters approved a similar exemption in 2011, but that one applied only to spouses of veterans who died on or after Jan. 1, 2010. The current proposal eliminates the date restriction.

Proposition 3

This proposal would repeal the requirement that state officers elected by voters statewide reside in the state capital.

Proposition 4

This proposal authorizes the Legislature to permit professional sports teams to raise money through raffles during games for charity.

Proposition 5

This amendment would authorize counties with a population of 7,500 or less to perform private road construction and maintenance, raising the population cap from the current 5,000.

Proposition 6

This amendment “recognizing the right of the people to hunt, fish and harvest wildlife subject to laws that promote wildlife conservation” is the most ridiculous on the ballot.

Proposition 7

In an effort to address the state’s huge transportation needs, this amendment would require the Texas comptroller each year to dedicate the first $2.5 billion of vehicle sales use and rental taxes to the General Revenue Fund, dedicate the next $2.5 billion to the State Highway Fund and split between the two funds all revenue above that. The plan will generate an estimated $3 billion per year by 2020.

Not much to go on there, I admit. VoteTexas has the full statement of each amendment, and public radio station KUT in Austin has been doing a series of reports on each proposition; they’ve done one through five as of yesterday, so check back again later for the last two. The Chron opposes numbers 3 and 6 and supports the others. I’m “not just no but HELL NO” to those two, I’m leaning No on one and seven, and I’m fine with #s 2, 4, and 5. Kevin Barton argued against Prop 7 a few days ago. If you know of any good arguments for or against any of these, leave a link in the comments.

One side note: Proposition 1, which is basically a tax cut (and significant spending increase, not that anyone in our Republican leadership would ever admit to that), has an actual campaign behind it, as it is considered a top priority for the real estate industry and the Texas Association of Business. As such, I received a pro-Prop 1 mailer at home last week. You may note that the HERO referendum is also called Proposition 1. It’s City Proposition 1, whereas this is State Proposition 1, and it appears at the end of the ballot while the tax cut referendum is up front, but they’re both still Proposition 1. I can’t help but think that a few people will be moved to vote for the latter on the belief that they are voting for the former, or at least something related to the former. I can’t imagine there will be many people like this, but the number is surely greater than zero. Given that, I suppose it’s a good thing that the city lost its fight to word the referendum in such a way that a No vote was a vote in favor of HERO. So thanks, Andy Taylor, for seeing through the Mayor’s nefarious ploy and ensuring that this little bit of luck would favor the pro-HERO side. I’ll be sure to drink an elitist craft beer, served with quinoa chips and organic, locally sourced salsa, in your honor.

And now we have a lawsuit over HERO repeal ballot language

Oh, for crying out loud.

RedEquality

Last month the Texas Supreme Court suspended the Houston Equal Rights Ordinance, more commonly known as HERO, and ordered City Council to either repeal the non-discrimination measure or put it up for a public vote.

On Wednesday council voted 12-5 for the latter, and in November Houston voters will be asked this question at the polls:

“Shall the City of Houston repeal the Houston Equal Rights Ordinance, Ord. No. 2014-530 which prohibits discrimination in city employment and city services, city contracts, public accommodations, private employment, and housing based on an individual’s sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information gender identity or pregnancy?”

That question, according to the coalition of pastors and conservative activists that have been fighting HERO tooth-and-nail since it went before council last spring (even though religious groups are exempt from having to follow the law), is deliberately confusing and not the same as a public vote on HERO. On Friday, Andy Taylor, one of the attorneys who first sued the city over HERO alongside Steve “Men Who Lose Their Testicles Can’t Read Maps” Hotze (who later dropped out of the suit), filed yet another legal challenge against the city in hopes of changing the wording of the ballot measure.

In a motion filed with the state supreme court Friday, Taylor points to the city charter language related to ballot referendums: “…such ordinance or resolution shall not take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.”

That’s the legal basis for Taylor’s petition to change the ballot language – that voters should vote “yes” or “no” on HERO, not “yes” or “no” on whether to keep it.

[…]

Ultimately, it appears the anti-HERO coalition fears the ballot language could harm their chances of success at the polls. “This is a legal recipe for an electoral disaster,” Taylor writes. “Voters will be confused, because someone who is against the proposition cannot vote against, and vice-versa.”

It’s unclear why Taylor and his coalition still feel they haven’t won the HERO-ballot battle and keep heading to the courts. The public now has the opportunity to cast a vote on other people’s rights, which is what Taylor and other opponents have wanted all along. Is the current ballot language (do you or do you not think HERO should stand?) really so confusing as to spoil the anti-LGBT contingent’s chances at the polls?

Mayor Parker’s statement is here. I’m convinced that the only language that would be acceptable to Taylor and his band of idiots is “Do you or do you not want to protect your children from a bunch of filthy perverts?” But hey, maybe they’ll get the Supreme Court to save their sorry asses again.

In the meantime, while we wait for that foolishness to be adjudicated, there’s this:

Boosters of big sporting events in Houston are nervous about the fight over the equal rights ordinance.

Opponents of the ordinance have succeeded in putting the issue on the November ballot. Now, some HERO supporters are calling upon the NFL to move the 2017 Super Bowl out of Houston if the ordinance is repealed. The online petition was launched by a blogger and it has dozens of signatures.

“Well, I think if Houston is ever perceived as an intolerant, bigoted place, it will greatly diminish our opportunities to bring sporting events to town,” admitted Sports Authority Chairman J. Kent Friedman.

Houston’s Super Bowl Committee had no comment.

The NFL reportedly considered moving a Super Bowl out of Arizona over legislation that would’ve offered legal protections to businesses that discriminated against gays. That never happened, because the governor vetoed the bill.

HERO opponents say it’ll never happen here either.

“That’s simply a red herring. That’s simply what they tried to do in Indiana and Arkansas and the Religious Freedom Restoration Act,” said ordinance opponent Jared Woodfill. “It basically shows that they are going to do anything and everything they can to skew the issue.”

“I think it’s a real threat,” said KHOU 11 Political Analyst Bob Stein. “Now, how it plays with the voters is very interesting. It could conceivably become one in which voters have a backlash against it, see it as a — how can I say this? — a threat.”

Via PDiddie, the blogger in question. The petition is here, and it surely can’t hurt to sign it. How likely it is that the NFL might actually move a Super Bowl that would be 14 months out at the time of the vote if it goes badly I couldn’t say, but it would certainly make it a lot harder, if not downright impossible, for Houston to win bids on other big events, and I would predict with absolute certainty that some events that are currently on the calendar would be canceled, just as they were in Indiana after they passed that ill-advised “religious freedom” law. There’s a good reason why the Greater Houston Partnership supports HERO – this is the norm in the business world, and it’s a base condition for companies that want to recruit top talent. Anyone who thinks repealing HERO would not have negative repercussions is not living in the real world. You can like HERO or not, you can like the way Mayor Parker got it passed or not, and you can be like Dave Wilson and obsess all you want about the genitalia of every person who enters a women’s bathroom if you want, but the prevailing reaction to the loss of HERO will not be good for Houston. Texas Leftist has more.

Pastors file a lawsuit over HERO

I have three things to say about this.

PetitionsInvalid

Organizers of the anti-Houston Equal Rights Ordinance petition have filed suit against Mayor Annise Parker, saying she and unnamed “conspirators” unconstitutionally rejected valid petition signatures and “smothered the Citizen Referendum Petition in the crib.” (Gotta love a lawsuit whose opening salvo includes infanticide imagery!).

Filed by four pastors, the suit comes on the heels of a Texas Supreme Court finding that Houston City Council should have put the HERO ordinance to referendum. The court suspended the ordinance and ordered Council to either repeal it or put it on the November ballot.

The pastors were against the Houston Equal Rights Ordinance because, as their attorney Andy Taylor explains in a weird footnote, “that label is deceptive and false. Far from creating equality, ‘HERO’ creates special rights, not equal rights, for biological males to enter the public restrooms reserved for adult women, adolescent girls, and infants.”

The pastors are seeking compensation for civil rights violations, as well as court costs.

The suit alleges that “as a result of the hard work of all concerned, a successful referendum petition drive produced over 54,000 signatures on the Citizen Referendum Petition,” but that Parker and then-City Attorney David Feldman “wrongfully inserted themselves into the process…dared the public to challenge their decision in court if they did not agree with their rejection of the [petition], and arrogantly and illegally refused to obey their mandatory duties under the Houston City Charter.”

Moreover, the pastors say that Parker “[ran] roughshod over her veteran colleague City Secretary Anna Russell” and “trampled the voting rights of over a million voters in the fourth largest city in the United States of America in an unprecedented and colossal violation of every Houstonian’s civil rights.”

Here’s the Chron story on this, and here’s what I have to say:

1. These pastors are suing for court costs incurred in the lawsuit that they filed and lost to get the repeal referendum on the ballot. Usually, the losing side in a lawsuit bears the burden of court costs, including for the winning side. That Supreme Court ruling that will force HERO onto the ballot this fall was not a reversal of the district court ruling that declared the petition effort had fallen short, it was a ruling on a writ of mandamus that sought to bypass the district court entirely. I’m honestly not sure what the status of that case is now – there is an ongoing appeal as of last report – and I’m not a lawyer, but I don’t see why the losers in that lawsuit deserve any compensation for it.

2. That claim of 54,000 petition signatures is laughably inaccurate. They did claim to have “collected” that many petitions at the time, but after doing their own “verification” process, that number had dropped to 31,000. That was the total that was the starting point for all subsequent disputes. For them to make that “54,000 signatures” claim when they themselves threw out 23,000 of them before they even signed over their boxes should give you some idea of how ridiculous they are.

3. Or to put it another way, they continue to lie like cheap rugs about the whole thing, not just about their signature total but about what the law is and who we should be afraid of. They have lied, continuously and shamelessly, throughout this process – and largely gotten away with it in the reporting, too – to the point where one ought to be wondering “Isn’t lying, like, a sin?” The amount of lying, by professional religious people and those who abet them, remains the most amazing thing about this to me. It’s no wonder to me that the petitions that they did turn in were found to be so riddled with forgeries and other failures to comply with the law.

One would think based on all that that this latest effort would get laughed out of court, but at this point my faith is a little strained. Here’s Mayor Parker’s statement about this lawsuit. Council is set to have a vote affirming HERO today, which will put it on the ballot as expected. I’ll have more on that tomorrow.

Lawsuit filed over Uptown line

All things considered, I suppose this was inevitable.

A homeowner’s association is suing Metro over its involvement in plans to run bus lanes along Post Oak Boulevard, saying the project puts the agency at odds with a 2003 referendum that included adding a rail line along the corridor.

The lawsuit was filed Monday just minutes after Mayor Annise Parker and the Uptown management district cheered the start of the $192 million project, lauding it as an example of Houston’s transit future. The plan calls for adding two dedicated bus lanes – one in each direction – along the center of Post Oak. Special lanes also would be added along Loop 610 between a future Bellaire Transit Center and the Northwest Transit Center near Interstate 10.

“It’s about taking our signature retail boulevard and making it something that’s not a traffic-choked freeway,” Parker said.

“The time is now,” Metro Chairman Gilbert Garcia said.

A block away, opponents called the project illegal, saying Metro has no authority to participate when voters in 2003 approved light rail for the Post Oak corridor. As part of the lawsuit, Sen. Robert Nichols, R-Jacksonville, has requested an opinion from the Texas Attorney General’s office as to the legality of Metro’s involvement. Nichols chairs the senate’s transportation committee.

“We’re asking all these government agencies, ‘don’t be arrogant,’ ” attorney Andy Taylor said. “Hold tight and make sure that what you’re doing is in the public interest.”

See here for some background. Rule #1 of politics around here: If Andy Taylor is on your side, you’re on the wrong side. (*) And much more often than not, the side that’s gonna lose.

Metro submitted a similar inquiry to then-Texas Attorney General Greg Abbott last year at the request of the Texas Department of Transportation. The state agency was wary of offering funds for the elevated lanes along Loop 610 if it meant jumping into a lengthy, bitter debate surrounding light rail in the area. So at TxDOT’s request, Metro sought to clarify whether an agreement with the state agency, which specified the bus project “will not support a rail component,” put Metro in conflict with its 2003 referendum. To be clear, Metro would be operating the buses, not funding the construction of the actual lanes. The project pulls heavily on Uptown tax increment reinvestment zone funds and some U.S. Department of Transportation grant money.

The agency told the Attorney General’s office it no longer needed an opinion when TxDOT said its concerns had been eased and the agreement was not necessary. That was in part because federal lawmakers approved a fiscal 2015 spending plan, including language inserted by Rep. John Culberson, R-Houston, that forbid any federal money from going to rail projects along Post Oak north of Richmond, and Richmond west of Shepherd.

[…]

In the lawsuit, Taylor said that voters have consented only to light rail along the corridor and that any work specific to bus rapid transit should wait until the Texas Attorney General’s office issues a response to Nichols’ request. Taylor is representing the Cosmopolitan Condominium Association, which sits along Post Oak, and Jim Scarborough, a vocal opponent of the project and property owner in the area.

Scarborough has led opponents, largely business owners, who say the bus plan will disrupt the flow of traffic on Post Oak and discourage drivers from wanting to traverse the bustling corridor. At town hall meetings and news conferences, they’ve also said that the plan is a real estate deal disguised as a transit project that benefits some Uptown board members whose companies are in the right of way. Some of those companies will receive payments for their land from the TIRZ in order to widen Post Oak.

Taylor dismissed any notion that the lawsuit amounted to a last-ditch effort to thwart the project rather than a substantive suit.

“Metro should immediately announce its abandonment of the project, admit that it violates Metro’s contract with the voters, and, should it desire to pursue light rail, then, in accordance with its recent agreement with Congressman John Culberson, go back to the electorate with a new referendum on whether light rail should be approved on Post Oak Boulevard,” Taylor said in the lawsuit.

A “last-ditch effort to thwart the project rather than a substantive suit” is pretty much how I’d describe it. There’s nobody involved with that lawsuit that actually wants a light rail line to be built, they just want to force Metro into a no-win position. I am hopeful that a judge will give this litigation the lack of respect it deserves.

(*) Case in point. Those were dark, dark days.

New litigation against ReBuild Houston

To be expected at this point.

A class action lawsuit has been filed against the city, seeking to reimburse residents who pay the drainage fee that helps fund ReBuild Houston, the multibillion-dollar streets and drainage improvement program that voters narrowly approved in 2010.

The lawsuit comes on the heels of a Texas Supreme Court ruling issued Friday that found that the ReBuild ballot measure failed to disclose the cost of the drainage fee to the public. The case has been sent back to trial court, where plaintiffs expect a swift victory and legal experts said it’s likely a judge will honor the Supreme Court ruling.

Andy Taylor, attorney for the plaintiffs in that case, is also behind Wednesday’s class action suit. The named plaintiff, or class representative, is resident Elizabeth Perez, one of the plaintiffs in the original ReBuild suit.

In order for the class action suit to move forward, a judge must agree that there is a group of similarly disadvantaged people, constituting a “class.” Taylor is attempting to include all residents who receive a water bill to which the drainage fee is tacked on every month. His argument hinges on the idea that property owners were “under duress” when they paid the drainage fee because they could have their water shut off if they failed to do so.

See here for the background. Is there a form I can fill out to attest that I’d sooner have an arm gnawed off by wombats than consent to be legally represented by Andy Taylor? Because while I have no doubt that there are many homeowners who would like to get a refund on their drainage fees, there are plenty – like me and the commenter on this Chronicle story – who are happy to have paid a few extra bucks each month to help fund infrastructure improvements, however imperfectly they were done. If Andy Taylor tries to claim that all homeowners were coerced into paying the fee, then he deserves to lose, because he sure as hell doesn’t speak for me.

A later version of the story suggests Taylor’s actions are indeed odd.

In order for the class-action suit to move forward, a judge must agree that there is a group of similarly disadvantaged people, constituting a “class.” Taylor is attempting to include all residents who receive a water bill, to which the drainage fee is tacked on every month. His argument hinges on the idea that property owners were “under duress” when they paid drainage fees because they could have their water shut off if they failed to do so.

City Attorney Donna Edmundson called the class action lawsuit “very premature” because the trial court case over the legality of the ReBuild ballot measure hasn’t been resolved. Without establishing that the fee is illegal, Taylor’s class action suit would be moot.

“This presupposes we’ve lost,” Edmundson said. “We haven’t lost on remand yet. We still get our day in court. The charter amendment has not been struck.”

Stanford law professor Deborah Hensler said Taylor’s case is ambitious because he is not only seeking to halt the fee, but also to reimburse residents going back five years. The sheer logistics involved in repaying residents and the financial hardship to the city could factor into a judge’s decision even if the legal case is sound, Hensler said.

“Most judges are sensitive to the size of the damages,” Hensler said.

Well, no one has ever said Andy Taylor doesn’t reach for the stars. He seldom gets there, but he does reach. We’ll see what a judge makes of it.

On a related note, I went and checked the Facebook pages and Twitter feeds of each of the five candidates for Mayor who had not made a statement about the Supreme Court ruling as of my previous post. Here’s Sylvester Turner’s statement, posted on June 15 at 11:44 AM. The other four – Chris Bell, Adrian Garcia, Marty McVey, and most puzzling to me Steve Costello still had nothing to say on the subject as of last night. I will ask again: What are you waiting for?

No HERO ruling quite yet

There was a hearing, but still no ruling quite yet.

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Opponents of the city’s legally embattled equal rights ordinance say they collected about 200 more valid petition signatures than they need to trigger a repeal referendum, a figure a district court judge will consider this week as he issues the final ruling in what has a been a lengthy and complicated case.

At a hearing Monday morning, Judge Robert Schaffer said he intends to rule by the end of the week.

[…]

Though the two sides still adamantly disagree on whether the petition was valid, their respective signature tallies are closer together than ever before. The city’s motion for judgment, submitted Friday, leaves the plaintiffs with 16,619 signatures, short of the 17,269 signatures they need.

Andy Taylor, attorney for the plaintiffs, said he intends to submit a count Monday afternoon that credits opponents with about 17,500 valid signatures. He is challenging some of Schaffer’s rulings as to whether certain signatures were legible, among other issues.

Schaffer will now review both motions, reconsidering legibility and challenges to whether or not circulators who signed the petition also signed as voters, as required by City Charter. The plaintiffs also said there were examples of the city eliminating signatures belonging to voters who lived in city limits at the time they signed the petition but have possibly since moved out of Houston.

The city’s attorneys have also argued that plaintiffs are incorrectly matching circulator signatures with those of voters on the petition.

“I feel I was conscientious in what I was doing and how I did my tally,” Schaffer said. “But I’m not perfect and I don’t have a problem or an issue with going over a few more to see if I might have missed one.”

See here for the background. Man, I wish I knew what Judge Schaffer’s tally is, but we’ll have to wait till he’s ready to tell us. HouEquality fills in some details.

When last we checked there were over 5,000 signatures that the City had deemed illegible, and on Friday of last week we were told that opponents were lacking sufficient signatures by about 660. At today’s hearing the attorney for the opposition, Andy Taylor, was attempting to make the argument that some individuals who had been declared invalid because they did not reside within the City of Houston, had simply moved since the time they signed the petition.

Judge Schaffer reminded Mr. Taylor that he had absolutely no evidence to support that claim and when pressed on it Taylor admitted that he was making an assumption to that end.

We have continued to see opponents of HERO moving the goal posts when it comes to this trial. After demanding a trial by jury, which they got, they are now pretending as if the jury’s verdict has no bearing on the final tally. To be clear, the jury uncovered widespread forgeries in the submitted petitions, among other problems. It is easy to see why the Plaintiffs want to ignore the jury’s findings.

The numbers as we know them today are as follows:

The City of Houston is saying they have been able to confirm 16,619 signatures, 650 fewer than required to trigger a referendum vote.

The HERO opponents are not offering a firm number on their count. They are stating that they have validated at least 17,500 (231 over the requirement) and as many as 25,000 signatures – again, they would not offer an actual count.

I’m trying really hard to temper my expectations. That said, the fact that Andy Taylor did not have an exact number as the city did as well as his desperate-sounding attempt to argue that several hundred people might have moved since signing the petition makes me think the plaintiffs have lost and they know it. They’re just making as much noise as they can to make the city look like bullies. One can certainly argue that petitioners deserve a fair amount of latitude, and that in general courts should err on the side of people asking for access to the ballot box. I have expressed such beliefs myself, and I think there should be a fairly lenient standard for counting signatures. On the other hand, one can quite reasonably argue that the plaintiffs have been given a lot of latitude, yet even with that they’re still trying to conjure up new ways for signatures that have been rejected to be accepted instead. The requirements for petition pages to be deemed valid are not burdensome, but these guys failed to meet them despite having the resources to pay circulators and a high-priced attorney like Andy Taylor. Furthermore, while I do believe that in general access to the ballot should be fairly easy to accomplish, we are talking here about an effort to single out a group of people and restrict their rights. The plaintiffs deserve zero sympathy for that. I hope so hard that they get the verdict they have earned. Towleroad has more.

Still counting HERO repeal petition signatures

After more than a month, we finally have an update on the signature counting from the HERO repeal petition trial.

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The first publicly disclosed tally since the heated trial surrounding the city’s equal rights ordinance wrapped up last month leaves opponents of the law about 3,000 valid petition signatures shy of triggering a repeal referendum, though 8,500 more signatures are still in question and will decide the case.

[…]

For the past month, attorneys on both sides have been counting signatures using [Judge Robert Schaffer]’s rulings. As expected, they have come to different conclusions; the city contends the opponents again failed, while opponents say they have plenty more valid signatures than they need.

But attorneys on both sides agree that the legibility of circulator signatures on certain pages, affecting 8,500 total signatures, will now decide the case.

The plaintiffs argue that legibility should not be a factor.

“We can’t empower the government with the right to be the judge, jury and executioner on whether somebody has a right to vote based on penmanship,” said Andy Taylor, attorney for the plaintiffs.

The city, however, contends that if they can’t determine who a circulator is based on their signature or printed name, all the other signatures collected on that page should be discarded, per city charter and the judge’s ruling.

“The plaintiffs are mounting every desperate challenge they possibly can to try to overcome the effect of the jury’s verdict and the effect of the judge’s post-verdict rulings,” said Geoffrey Harrison, lead attorney for the city. “The plaintiffs lost at trial. They lose on the law. They lose on the facts. But they are prolonging this process by refusing to accept reality.”

Taylor said he’s reviewed the signatures thrown out on legibility grounds, and he believes the judge will agree with him that many are legible.

[…]

It was Schaffer’s ruling several weeks ago that further complicated the case. More than one month ago, the jury found that many high-volume signature-gatherers made mistakes in signing and subscribing the pages they collected, often failing to both print and sign their names at the bottom of the page. After that ruling, city attorneys said barely more than 2,000 petition signatures were valid.

But Schaffer’s ruling was more lenient, requiring only a legible signature or printed name. Under that interpretation, Harrison said the plaintiffs now have between 14,000 and 15,500 valid signatures, still shy of 17,269.

See here for the background, and here for Judge Schaffer’s ruling. Basically, the city is not counting any of these 8,500 signatures because the circulators’ names are illegible. If they were counted, that may put the plaintiffs over the top; the plaintiffs certainly think so. Via HouEquality, the plaintiffs filed a post-trial motion arguing that these circulators’ signatures could be determined by comparing them to petition signatures elsewhere, or if all else failed by tracking down the notary public affidavit for them. They concede that could cause time issues, since the city has 30 days to validate the signatures, and it’s not clear that the city is required to take such a step. For that matter, it’s also not clear that the city is required to do the detective work of comparing hard-to-read circulator signatures to petition signatures to try to find a match. If these circulators had printed their names in addition to scrawling them like they were supposed to, this wouldn’t even be an issue. Judge Schaffer’s ruling that either a signature or a printed name is sufficient is why we’re here arguing over how to tell whose chicken scratch belongs to whom. The plaintiffs argue in their brief that they were able to match signatures to other signatures in pages representing over 8,000 of the 8,510 that are still in limbo. Now it’s back to Judge Schaffer to decide, and he says he’ll have a ruling in early April. Given the forgeries and other problems that had been found before, I’m not sure how much more benefit of the doubt these guys deserve. We’ll see what the judge thinks. KUHF and Hair Balls have more.

Supreme Court hears Renew Houston appeal

Last stop of the litigation train for the plaintiffs that have sued to overturn the Renew Houston referendum, on the grounds that the voters were misinformed about what they were voting for.

Two lower courts have sided with the city, and the case has now landed in the state’s highest court, where attorneys for both sides made their arguments before the nine justices.

First was Andy Taylor for the plaintiffs.

“The problem here is you can’t tell when you go into the ballot box and say, I’m going to vote for this, that in fact you just opened up your pocket book and said, my property can be hit with this cost,” Taylor said.

On the ballot, the proposed charter amendment known as Proposition 1 made no mention of a fee, other than saying it’s a dedicated pay-as-you-go fund.

Robert Heath represented the City of Houston. He said newspaper postings and general media coverage on the proposition was sufficient to inform voters.

He acknowledged that probably not everyone paid attention.

“Just as when we assume or presume the people know the law, that people really don’t know all the law,” Heath said.

See here for the last update. I will make two points: One, the “ballot language was misleading” claim is the same losing argument that the litigants against the 2003 Metro referendum made about the Universities line and the so-called “Westpark corridor”. It was rejected then, and I see no reason why it would not be rejected now. Two, it’s pretty well established by now that many voters have no idea who they’re voting for in many elections. (Two words: Dave Wilson.) Why should referenda be held to a higher standard than that? We should know by summertime, when the Supreme Court is expected to make its ruling.

Judge Schaffer makes his ruling on the HERO repeal petitions

I was expecting this to happen Monday, but apparently Judge Robert Schaffer handed down his ruling about which HERO repeal petition signatures were valid and should be counted on Monday.

PetitionsInvalid

Judge Robert Schaffer ruled on which types of signatures can be counted on the petition seeking to overturn the controversial ordinance.

According to the city charter, people gathering signatures, also called circulators, have to sign each page of collected signatures to certify that people signed in their presence. If they fail to do so, all signatures on that page are invalid.

Maybe the most significant finding by the judge is that the pages of those circulators who printed their name within an oath but did not sign underneath, are deemed valid.

Lawyers for the city argued during the trial that those should not count.

That part of the ruling is what makes Andy Taylor, lawyer for the plaintiffs, optimistic.

“It doesn’t matter if you print your name or if you sign your name, as long as it’s your authentic handwriting and you intended to validate the petition when you signed it under oath, that’s good enough,” Taylor says.

But the judge will not count signatures submitted by 12 circulators who gathered a high volume of signatures.

See here and here for the background. Before I go any farther, can someone please explain to me why KUHF appears to be the only local news outlet covering this story? As far as I can tell, the last Chronicle story was on February 13, when the jury verdict was handed down. That was a big deal as it established the facts of the case, but it is Judge Schaffer’s ruling that determines which signatures actually get counted. You’d think that might be worth a blurb or a mention on the teevee, but other than KUHF the only outlet that I can see that had a story was the Christian-oriented World Magazine:

“What it looks like is we go over the top,” plaintiffs’ lawyer Andy Taylor told me in a phone interview Monday. “I’m prayerful that we have enough.”

During a Feb. 19 hearing called by Schaffer to outline the questions he would address in his ruling, defense attorney Geoffrey Harrison pressed Schaffer to adopt the most restrictive interpretation of the Houston City Charter in order to nullify the petition. Schaffer repeatedly rebuffed Harrison and said he would be guided by the jury decision but not bound by it.

“We never had any intention of accepting the jury’s ruling as is,” Schaffer told Harrison during the hearing. “I am going to accept petitions I believe were signed and subscribed. I have said all along that I will.”

While the jury accepted the defense’s restrictive argument mandating petition circulators “sign” and “subscribe” the document’s oath, Schaffer, citing appellate court rulings as his guide, gave a much broader interpretation of that requirement. A single, legible signature—print or cursive—at the bottom of the page sufficed to complete the circulator’s oath, he ruled.

The city’s attorneys argued the jury’s finding of forgery, even if only on one page, should discredit all of a circulator’s work, which could include multiple pages. But Schaffer ruled only the names shown as forgeries—most often “family units” where one family member signed for others—should be dismissed.

Taylor admitted Schaffer’s ruling on one or two other key issues could make the plaintiffs’ victory a narrow one. With both sides recounting the petition signatures—using the jury’s and judge’s rulings as the validation criteria—the process could produce disparate numbers and require clarification from Schaffer. Taylor expects to have a final number in about two weeks.

“Given the judge’s directions provided to the lawyers, I expect the court will apply the law to the verdict and issue a final judgment confirming that the petition failed,” Parker said Monday. “The plaintiffs are expected to appeal any outcome that is not in their favor. That will be unfortunate for the city because the majority of Houston wants this divisive fight to be over so that we are able to provide equal rights protections for all of our residents.”

A copy of Judge Schaffer’s ruling is here, which I found via the HOU Equality Facebook page; they too were expecting a Monday ruling. Taylor’s optimism and the story’s angle kind of elides a big deal for the plaintiffs, namely that all petition pages gathered by the 12 circulators whose pages were found to contain forgeries and whose affidavit oaths were not found to be “true and correct” will be tossed. I wish I had some idea what proportion of the signature pages were the responsibility of these 12, but I don’t. I suspect this will take a big chunk of otherwise verifiable signatures out of play, but who knows? Maybe these pages contained the bulk of the signatures that had been disqualified the first time anyway. We won’t know till everyone shows their hand in two weeks or so. Whatever numbers everyone comes up with, an appeal will follow. Texas Leftist, from whom I got the KUHF link, has more.

More on the HERO repeal petition jury verdict

KUHF has a good look at What It All Means.

PetitionsInvalid

“It’s tough to predict,” said Teddy Rave, an assistant professor at the University of Houston Law Center.

“It looks like the jury pretty much split the baby. They answered some questions in favor of the plaintiffs and some in favor of the city. And now it’ll be up to the judge to apply the answers that the jury gave to the signatures on the petition to try to figure out which ones are valid and how many of them are valid and whether that will get across the threshold.”

The jurors were asked to consider six different questions.

For example, in Question 1, they had to determine which of 98 different petition gatherers “signed and subscribed” their oath. Without a valid oath, all signatures that person gathered are invalid.

The jury said “no” for about two-thirds of them.

But [Andy] Taylor, the plaintiffs’ lawyer, argued that says nothing about what the judge will end up ruling on that question.

“As long as you substantially comply with the purpose of the law, then the vote counts,” Taylor said.

He said as long as someone signed or wrote their name anywhere on the page, their intent is clear.

[Geoffrey] Harrison, the city’s lawyer, disagreed.

“People who sign where they’re supposed to legibly identify their name but fail to sign to actually take the oath — that’s the fundamental problem,” Harrison said.

See here for the background. What you need to see is the copy of the jury charge embedded in the KUHF story link. It gives a good idea of just how shoddy the effort of the petition collectors was. For example:

– To the question “Which if any of the following Circulators signed and subscribed the Circulator’s oath in the Referendum Petition?”, where “subscribed” means “to sign one’s own name” at the bottom of the pages, the answer for 64 of the 98 circulators was No. Among them were former Council candidates Philip Bryant, Kathy Ballard-Blueford Daniels, and Kendall Baker; pastor Steve Riggle, and former Harris County GOP Chair Jared Woodfill.

– The plaintiffs made a big deal out of the fact that the jury answered No to the question of whether any pages submitted by 13 different circulators contained fraud. But to the question of whether or not they contained forgeries, the answer for 12 of the 13 was Yes, and to the question of whether or not any of them contained “non-accidental defects”, the answer for 6 of 16 was Yes.

– Finally to the question of whether or not the circulators’ affidavit oaths were true and correct, the answer for 12 of the 13 was No. Interestingly, the one circulator for whom the answer was Yes was also the one circulator whose pages were found to contain no forgeries.

The big question is how many petition pages get knocked out as a result of all these errors, incompetencies, and forgeries. There was a meeting between Judge Schaffer and the attorneys on Thursday the 19th to discuss this very topic.

In the hearing, Judge Robert Schaffer sought input from the lawyers on what to base his final ruling on.

Andy Taylor represents the plaintiffs — pastors and conservatives who oppose the ordinance.

He said the judge will ultimately decide how many valid signatures there are left.

“There are multiple rulings that he’s going to have to make,” Taylor said. “Some of those rulings have subcategories and subparts. It’s very, very complicated.”

The jury found several instances on the petition where signature gatherers didn’t sign their oath correctly. They also found cases where the same person signed for others, and other defects. But it’s not always clear-cut when a signature is invalid.

Geoffrey Harrison, who represents the city, thinks otherwise.

“If the judge does use the jury’s verdict as a framework for the judge’s decision, this case is over for the plaintiffs,” he said. “They lose and it’s not close.”

We’ll see about that. Judge Schaffer is expected to make his ruling on Monday. The more that get tossed, the fewer pages for the city to re-count valid signatures (“valid” meaning registered voters in the city of Houston), and obviously the better the chance that there won’t be enough of them. This is, as they say, a big effing deal.

HERO repeal petition trial wraps up

There actually wasn’t all that much testimony in the HERO repeal petition trial. On Tuesday, former City Attorney David Feldman took his turn on the stand.

PetitionsInvalid

City Secretary Anna Russell originally found enough valid signatures but did not verify the way each page was certified. When Feldman examined the pages himself, he testified, problems were immediately apparent.

The incendiary language at the top of each petition page, attacking and misconstruing the ordinance, he said, took up so much room that the legally required oath, signature and notary lines were crammed together at the bottom of the page, Feldman said, leading many signature gatherers to err in verifying their pages.

“I believe today, as I did then, that the petition is not valid,” he said afterward.

The plaintiffs’ attorney, Andy Taylor, called Feldman’s testimony a “non-event” that “added nothing” to the city’s case.

“He and his legal team for the mayor spent all of the time trying to disqualify innocent voters from being counted in the petition rather than … trying to qualify and save their status as innocent voters,” Taylor said.

That argument comprised a key portion of his cross-examination of Feldman, in which Taylor suggested no city official knew how many valid signatures were on the pages that were not rejected. Taylor repeated that, as of December, there were 19,470 names on valid pages, which he said meant the accurate tally would be over the threshold.

Feldman countered that officials had verified all signatures on valid pages and found the tally short.

“Yes,” Feldman said. “We did the analysis.”

See here for the prior update, on Mayor Parker’s testimony. I wish I had a better feel for how things have gone, but there’s not a whole lot of other coverage out there. Feldman was not the only witness to testify on Tuesday.

As part of its defense case, the City of Houston called Janet Masson to the witness stand. She’s a forensic document examiner — with a background in handwriting analysis — who studied each of the 5,100 pages of the petition. Masson testified that she found several irregularities. For example, she said many of the signatures appear to be duplicates.

Geoffrey Harrison is the attorney for the City of Houston. He explained the importance of Masson’s testimony in an interview outside of the courtroom.

“She is showing hundreds of pages by hundreds of pages and hundreds of signatures by hundreds of signatures that there is fraud, forgery and clearly non-accidental defects,” Harrison said.

The plaintiff’s attorney, Andy Taylor, argued during the trial that even though some signatures may be duplicates, they should be counted as valid at least once, and not thrown out entirely.

Much as it pains me to agree with Andy Taylor, I don’t think it’s unreasonable for a duplicated signature to count once, if it is otherwise valid. It would be nice to know why there are so many apparent duplicates – it sure sounds to me like Taylor is admitting that there are a bunch of them – and their presence absolutely calls into question the integrity of the petitions that were submitted as a whole. Some level of sloppiness is to be expected in a petition process, but at some point you have a credibility problem.

And speaking of such things.

Attorneys defending the city of Houston’s contentious equal rights ordinance concluded their case Wednesday by alleging rampant fraud in the petition opponents filed in hopes of forcing a repeal referendum on the law, and targeting pointed questions at the lead plaintiff, attorney and conservative activist Jared Woodfill.

Among the 5,199 pages petitioners submitted to the city last summer was one containing the names of Woodfill, the former longtime head of the Harris County Republican Party, and his wife, Celeste Woodfill. Woodfill printed his name in the oath at the bottom of the page to affirm both signatures were correct and collected in his presence. Testimony focused on whether Woodfill may have penned the signature next to his wife’s name and whether Woodfill’s printed name at the bottom of the page constituted a signature for the purposes of swearing an oath.

[…]

In questioning Woodfill on Wednesday, city attorneys drew on a December deposition in which his answers left some doubt as to whether his wife’s signature was authentic. The mark looked “messier” than he expected, Woodfill recalled Wednesday. Pressed on the point by one of the city’s attorneys, Alex Kaplan, Woodfill said he filed paperwork correcting his deposition immediately after speaking with his wife, and said flatly, “I did not sign for my wife.”

“I corrected that and then I talked to her about it, all right? My oath is true,” he said. “I assure you she signed it. You’re insinuating she didn’t sign it.”

The plaintiffs’ attorney, Andy Taylor, responded by calling Celeste Woodfill to the stand. She acknowledged her petition signature and her signatures on other public documents the city attorneys displayed differed greatly, but she said, “There is no doubt in my mind, that is my signature,” and had a ready explanation.

“I was holding my 30-pound son in one hand and trying to sign with the other,” she said on cross examination. “Breakfast, getting the backpacks packed, it’s a totally different situation … than sitting at a table. Any mother would understand.”

I suppose if the petition page were a loose piece of paper, and you didn’t have a hand free to hold it down as you signed it, it could be messy. On the other hand, if the petition page were on a clipboard, as is usually the case for petitions, it would be stationary as you signed it, so your signature would look normal. I say this as someone who did a lot of things one-handed back when my kids were little.

Believe it or not, that was the end of testimony in the case. Both sides made their closing arguments yesterday.

Andy Taylor, attorney for the plaintiffs, painted the trial as pitting desire of the people to vote against an all-powerful City Hall. Gesturing to the city’s many pro bono lawyers, Taylor referenced the bible.

“Help us beat Goliath,” Taylor said. “Help us beat City Hall.”

Geoffrey Harrison, attorney for the city, was less theatrical in his closing. Instead, he walked jurors through some of the pages they will be asked to consider and determine if, for instance, a circulator both printed their name and signed the bottom of the page.

“The plaintiffs have tried throughout this case to skirt the law,” Harrison said. “We don’t get to pick and choose what rules we follow.”

If nothing else, this confirms my theory of the litigation, and why the plaintiffs were so adamant about putting this before a jury: The facts are not on their side. They hope to win by appealing to emotions. Maybe it’ll work, I don’t know. I certainly hope the jury was impressed by the evidence of fraud and forgery. We’ll have to wait till they’re ready to tell us.

Supreme Court to hear Renew Houston lawsuit

Jeez, I’d forgotten this was still a thing.

In a lawsuit filed after the election, three Houston property owners allege the ballot language was misleading.

“You would have thought if you voted for this thing that it was a one-time, one-year tax,” said Andy Taylor, one of the attorneys for the plaintiffs, “when in fact it is a permanent tax forever in an amount that is literally hundreds of millions if not billions of dollars over time.”

A spokesperson for the city of Houston did not respond to requests for comment.

Both the trial court and the appeals court sided with the city, saying it wasn’t required to lay out specifics of the measure on the ballot.

The last update on this was in July of 2012, so you can see why it had slipped my mind. I don’t know why the Supremes would see this any differently than the district court or the 14th Court of Appeals, but you can never be too sure. Oral arguments are scheduled for February 24. Lord only knows how long it will take for a decision after that.

(And yes, that’s the same Andy Taylor that is litigating on behalf of the HERO haters. All lawyers wind up representing unsavory characters from time to time. Andy Taylor seeks them out.)

Front and center with the fraud allegations

The city goes on offense as it defends the equal rights ordinance at the repeal petition trial.

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In his opening argument in court Tuesday, Alex Kaplan, an attorney for the city, said the petition is “full of problems.”

“It is precisely these kinds of cases where there are high public passions where the rules must be followed,” Kaplan said.

Andy Taylor, attorney for the plaintiffs, said any claims of fraud are untrue and the city’s argument is “laughable.” He said “well-intentioned voters from time to time didn’t follow all the rules” but there was no fraud.

“They’re talking about ticky-tacky deficiencies like we’re missing a comma or our signatures are hard to read,” Taylor said. “Give me a break. Did our forefathers die in battle so that commas could prevent their children from voting?”

[…]

University of Houston law professor Richard Alderman said it is common in such cases for signatures to be challenged and thrown out, and the case ultimately will be a numbers game of how many valid signatures remain. Still, Alderman said, substantiated fraud claims could influence jurors’ perception of the case.

“If the city were to allege five or six problems and the jury believed one or two, then when they’re on the fence they’re more likely to believe one of the others,” Alderman said.

City attorneys focused heavily on claims of fraud in a lengthy motion, filed this month, asking state District Judge Robert Schaffer to rule on important pieces of the case before it even began. Schaffer largely declined to do so, allowing jury selection to begin Monday and opening arguments to be given Tuesday.

Still, the filing cited depositions of people who gathered signatures in arguing the effort was tainted by “fraud, perjury, and other dishonest acts.”

According to the city, some of those involved in the petition drive admitted signature gatherers had an incentive not to follow the city charter because they were paid by the signature, regardless of validity. Others involved said residents signed for people other than themselves.

See here for the background. The depositions, detailed in the story, were first publicized by HouEquality, and I encourage you to click those two links and see the evidence for yourself. I tend to agree with Professor Alderman that the more credible allegations that the petition gatherers were egregiously sloppy, if not outright fraudulent, that the city can make, especially given the video evidence that they knew exactly what the rules were, the less sympathy a jury is going to give them. I’m very interested in seeing how they explain some of this stuff. And speaking of the jury:

On Monday, lawyers for HERO opponents said they wanted to be allowed to ask — directly — whether any potential jurors were lesbian, gay, bisexual or transgender. They argued that this was important information because they wanted to be sure jurors aren’t biased. In other words, they wanted to force potential jurors who might be closeted either to out themselves as LGBT or perjure themselves. Moreover, the folks who argue that LGBT people don’t face discrimination wanted to discriminate by keeping LGBT people off the jury.

The judge said no.

It’s increasingly hard to believe that that these guys can win – or that they think they can win – unless they have the playing field tilted in their favor. KUHF, Towleroad, Project Q, the Christian Examiner, and Media Matters have more.

Judge or jury ruling on HERO should come soon

From the other big lawsuit action on Friday.

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A district judge offered little insight Friday as to whether he will grant a jury trial to conservative critics who have sued the city over its controversial equal rights ordinance.

During a brief but lively hearing in the 152nd District Court in Houston, Judge Robert Schaffer said he will likely issue that decision Monday or Tuesday. Barring any delays, the trial is set to start Jan. 20.

Equal rights ordinance opponents are pushing to take the case before a jury instead of allowing Schaffer, as originally planned, to issue a decision from the bench. Attorneys for the city are strongly opposed to that format, saying it violates state election law to send the case to a jury.

[…]

Schaffer offered no definitive commentary on the jury trial issue, but it was clear that his decision will likely depend on whether or not he determines that the case qualifies as an “election contest” under state law. An “election contest” can only be decided by a judge, not a jury.

Andy Taylor, attorney for the plaintiffs, argued that an election contest requires an election on the issue to have already happened or be imminently scheduled to take place, neither of which has occurred.

“It is an impossibility for me to file an ‘election contest,’ ” Taylor said.

City attorneys, however, countered that state Supreme Court decisions as well as a recent Court of Appeals ruling define an “election contest” more broadly and include the lead-up to an election. In charging that the city incorrectly invalidated their petition, equal rights ordinance opponents are invoking the state election code, city attorneys argued Friday.

See here for the background. I don’t know how to evaluate these claims, as they’re pretty technical. To some extent, it shouldn’t really matter if it’s a bench trial or a jury trial. The facts are the facts and either the city followed the law in rejecting the petitions or they didn’t. I presume the HERO haters think they have a better shot playing on emotions, and they may be right. If the facts are against them, though, I think that can only take them so far.

And then there’s this, which I added as a late update to my Friday post:

Attorneys for the city last month filed a motion requesting a bench trial, but the plaintiffs say they have a “constitutional right to a trial by jury.” That motion and others are scheduled to be heard today, but we’ll have to wait until the trial, scheduled for January 19, for the truly good stuff, which includes allegations of forged signatures.

So far, most of the City’s challenges to the petitions’ validity has centered around technical — and pretty boring — matters like whether a page included a blank space for a circulators’ signature. What’s really intriguing, though, is the City’s more recent contention that many names were forged, and that Woodfill “is no stranger” to fraudulent petitions.

In motions filed last November, attorneys for the City cited a suit where Woodfill — then the chairman of the Harris County Republican Party — accepted “facially valid” election petitions that “turned out to involve ‘forgery, fraud, or other non-accidental defects discoverable only by independent investigation.”

No one has argued that Woodfill knew the signatures in that election were invalid at the time he accepted them, but attorneys for the City point out that the court didn’t buy Woodfill’s argument that “the truthfulness of a circulator’s affidavit is strictly a criminal matter.”

[…]

These allegations were enough for for plaintiff Steve “Birth Control Pills Make Women Less Attractive to Men” Hotze, to drop out of the suit — something the City’s attorneys say is evidence that “misconduct and non-accidental defects are so pervasive” throughout the petitions. Listen, it’s a bad sign when your co-plaintiff is Steve Hotze. But it’s a really bad sign when Hotze drops out from fear that he may not have a legally sound argument.

If it turns out that the haters submitted phony signatures, then having a jury trial surely won’t help them. Either way, the trial is expected to last four to six weeks (!) because there’s so much evidence to read through. If the haters get their way, I sure won’t envy anyone who gets picked for that jury.

County redistricting lawsuit costing a bundle

Redistricting is expensive, y’all.

Commissioners Court interim map

Harris County has spent nearly $1.3 million fighting a 2011 lawsuit filed by a group of Hispanic activists against the redistricting plan it adopted that year for its four county commissioner precincts.

The plaintiffs, led by Houston City Councilmen James Rodriguez and Ed Gonzalez, and represented by Chad Dunn, general counsel for the Texas Democratic Party, allege the map illegally dilutes Latino voting power in Precinct 2, on the east side.

The lawsuit went to trial in November, but U.S. District Judge Vanessa Gilmore has yet to rule in the case.

The county has spent $1,246,569.99 on the lawsuit, according to data from the county attorney’s office, with the bulk of that — $1.1 million — going toward billing for attorneys and paralegals. Houston-based firm Andrews Kurth is representing the county.

The county also paid that firm roughly $620,000 for the redistricting maps themselves, after the 2010 census showed shifts in population growth, forcing new lines to be drawn to make the four precincts equal at about 1 million residents each.

“Anytime there is contested litigation, the costs do mount,” said First Assistant County Attorney Robert Soard.

See here and here for the previous updates. I say there’s a pretty good argument for the county not pursuing any further appeals if they lose. There’s no principle at stake here, just Jack Morman’s electoral prospects. At the very least, if the county insists on continuing to litigate, they ought to demand a steep discount, if not an outright rebate, from Andrews Kurth. For one thing, you could say that if Andrews Kurth had done a better job advising the county on how to draw the map in the first place, we wouldn’t be in this mess today. For another, Andrews Kurth has already charged the county nearly double what Andy Taylor billed the state of Texas after the 2003 re-redistricting litigation. Sure, that was nearly ten years ago and costs do go up and all that, but Taylor wasn’t exactly cheap and Andrews Kurth has already made a bundle. It will be time for a little fiscal discipline if the county loses this round.

Red light cameras may get a Council vote

This ought to be interesting.

Houston’s red-light camera vendor said on Friday that Mayor Annise Parker is trying to turn the cameras off again, and it has asked a federal judge to stop her from doing so.

City Attorney David Feldman confirmed that the mayor is considering turning the cameras off as she prepares a resolution for a City Council vote on Wednesday, but he said Parker has not yet decided what that resolution will say.

[…]

If the city does turn the cameras off again, [ATS attorney Andy Taylor] said, it faces liability of up to $25 million for breach of a contract that runs through May 2014.

“The number is growing daily,” Taylor said.

Feldman said another possibility is that the resolution will call for a settlement of the ATS breach of contract lawsuit. He speculated that ATS had picked a public fight as a negotiating tactic.

If you’ve been listening to my interviews, you’ve probably noticed that there’s a lot of support among incumbent Council members and Council candidates for settling with ATS and getting the cameras taken down. Though Mayor Parker has the authority herself to turn the cameras on or off, putting a resolution up for a vote means giving Council a share of that responsibility. It’s good politics on the Mayor’s part, and also a good negotiating tactic. As it remains the case that the nuts and bolts of the contract and its dissolution are still being worked out with Judge Hughes, a Council vote will likely be more for spectacle than anything else. But it does ensure we all know where everyone stands.

One more thing:

“Now because of politics, they (city officials) have changed their mind. Now I guess the noise from the vocal minority is so loud that they just want it to go away,” Taylor said.

Some day I hope to learn the name of Andy Taylor’s home planet. You have to admire the gumption it must take to refer to a 53% vote share as a “vocal minority”, which I’m sure he said with a straight face. Thanks for never disappointing me, Andy.

Lawsuit filed to stop red light camera referendum

And now the fun really begins.

A federal lawsuit was filed Friday afternoon in an effort to prevent Houston residents from voting on whether to ban red-light cameras.

Multiple sources told KPRC Local 2 that the lawsuit was filed on behalf of a Houston resident and Keep Houston Safe, a political action committee.

The suit seeks to block the proposed charter amendment from being placed on November’s ballot on the grounds that it violates the city charter and would dilute minority voting strength, in violation of the Civil Rights Act of 1965.

Mary Benton had the early scoop on this. If you’re wondering what the Civil Rights Act of 1965 has to do with this, the short answer is “preclearance”. I quote from the lawsuit:

14. Chapter 9 of the Texas Local Government Code, governing the procedures for amending a city’s charter, has been amended by the Texas Legislature multiple times since the adoption of the 1965 Voting Rights Act. Multiple preclearance submissions were submitted by the State addressing legislative amendments, including changes to the number of signatures required to place a matter on the ballot; changes in the uniform date for charter amendment elections; and validating statutes for previous charter amendments. Most notably, what has not been precleared is the use of a charter amendment petition to circumvent or otherwise bypass express limitations or prohibitions adopted by voters and incorporated into a home-rule municipality’s city charter.

15. By accepting the Petition as a charter amendment petition, rather than the appropriate designation as a Referendum petition, Defendant has instituted a change in election-related policies and procedures that must be pre-cleared in accordance with S5 of the Voting Rights Act.

16. Because the Camouflaged Referendum has been improperly placed on the ballot, a potential for racial discrimination exists. More specifically, minority voters may lose their ability to ability to elect candidates of their choice in local, statewide, and federal elected offices.

You had me till that last sentence, but I suppose that’s the way VRA claims go. It’s just that seeing Andy Taylor – Andy Taylor! – give these arguments is fixing to make my head explode. Anyway, the suit asks for a three-judge panel, and all deliberate speed and so on. We’ll see what happens.

Red light camera opponents turn in their petitions

I was beginning to wonder if the anti-red light camera crowd was ever going to turn in their petition signatures, as it’s starting too get a little late in the game. They made their move on Monday, submitting 30,000 petition signatures (22,000 valid ones are needed) to City Secretary Anna Russell to get their proposition to ban the cameras on the ballot. As with everything else they do, this was not without controversy.

Mayor Annise Parker questioned whether there would be enough time for the city secretary to verify that the signatures are from registered Houston voters before an upcoming Aug. 24 election deadline.

Parker said the city secretary’s office would follow the same procedures used for Renew Houston, a group of engineers seeking voter approval for an $8 billion initiative to prevent flooding and shore up Houston’s infrastructure. Backers of that referendum turned in their signatures July 8, and they were verified July 30.

In a statement issued Monday afternoon, Parker said, “Citizens Against Red Light Cameras have turned these petitions in very late in the process and the Renew Houston petitions took three weeks to be certified. … If it takes just as long, it will not meet the deadline to be on the ballot this fall.”

Andy Taylor, a lawyer representing Keep Houston Safe, a political action committee formed to advocate for the cameras, also said the proposed referendum is illegal, citing a city ordinance that requires petitions for a vote to repeal a law be turned in within 30 days of when it takes effect.

“Who could possibly be against safety cameras that save children’s lives?” Taylor said. “This petition is too late. This petition is out of time and dead on arrival.”

[Paul] Kubosh noted that signatures for several other referendums put to voters in the past decade have been turned in either in August or September and still made it onto the ballot, including the 2001 charter amendment that authorized light rail and another that outlawed benefits for same-sex partners of city employees.

(Before anyone brings it up, yes, that’s my old friend Andy Taylor. Insert your own joke about politics and strange bedfellows.)

The ordinance that limits petition-driven repeal efforts to 30 days after the passage of the law in question is news to me. Here’s the relevant bit from the city charter:

Section 3. – Referendum.

If prior to the date when an ordinance or resolution shall take effect, or within thirty days after the publication of same, a petition signed and verified, as required in section 2-a hereof, by the qualified voters equal in number to ten per centum of the total vote cast at the Democratic Primary for the nomination of Mayor and Commissioners, next preceding the filing of said petition as hereinbefore provided, shall be filed with the Secretary, protesting against the enactment or enforcement of such ordinance or resolution, it shall be suspended from taking effect and no action theretofore taken under such ordinance or resolution shall be legal and valid. Immediately upon the filing of such petition the Secretary shall do all things required by section 2-b of this Article. Thereupon the Council shall immediately reconsider such ordinance or resolution and, if it do not entirely repeal the same, shall submit it to popular vote at the next municipal election, or the Council may, in its discretion, call a special election for that purpose; and such ordinance or resolution shall not take effect unless a majority of the qualified electors voting thereon at such election shall vote in favor thereof. (Added by amendment October 15, 1913)

I dunno. What that says to me is that if you can get your petitioning act together within 30 days, you can actually get the law in question suspended until everything gets sorted out. It doesn’t say to me that after 30 days you can never change or overturn a city law via the referendum process. (Whether that would be a good thing or not is a separate question.) I’m not a lawyer, but I’d bet money that if this article is used as justification for rejecting Kubosh’s petitions the matter will wind up in court, and I strongly suspect a judge would be sympathetic to Kubosh’s arguments. Seems to me that given how arduous and expensive the petition signature-gathering effort is, a 30-day deadline for action is a mighty high hurdle to clear. Maybe I’m missing something – again, I Am Not A Lawyer – but I don’t see how this is a fatal flaw for Kubosh.

On the other hand, the matter of verifying the signatures in time may be a significant issue. The controlling statute here is Section 3.005, subsection (c) of the Elections Code, which reads “For an election to be held on the date of the general election for state and county officers, the election shall be ordered not later than the 70th day before election day.” That’s August 24 in this case, which makes it the deadline for Anna Russell to say whether or not Team Kubosh has met the threshold. Kubosh’s claims about the light rail and same-sex benefits referenda are irrelevant, because Subsection (c) was added to the code in 2005. Prior to that, the deadline was 62 days before an election, which given that Election Day can be as late as November 8 meant a drop-dead date as late as September 7.

Actually, the effective deadline in this case is even earlier than the 24th. As Jim McGrath of Keep Houston Safe reminded me in an email, Council must authorize the referendum for the ballot, and the last Council meeting before the deadline is August 18. (It’s not on Council’s agenda for today.) That ain’t a lot of time to get the job done.

My take on this, therefore, is that it will come down to whether or not Russell certifies the signatures in time, assuming there are in fact enough valid ones. One presumes, given the Renew Houston example, that she will be examining each signature and not using statistical sampling, which she has the discretion to do but is not required to do. (It’s not clear to me she could do it in the six working days she has before the 18th even if she did use sampling.) I expect Kubosh to wail and gnash his teeth about this, and I won’t be surprised to see it come before a judge as well, but if so I expect he’ll lose just as Carole Keeton Strayhorn did back in 2006. Mary Benton has more.

Finally, you may have noticed at the end of the story a reference to an updated red light camera study that shows collisions have in fact decreased at red light-enabled intersections, which contradicts the initial study, done by the same authors. I will deal with that in a subsequent post.

Greens hire Andy Taylor

Dear Green Party: If you need to hire Andy Taylor to achieve your political goals, then you’re doing it wrong. I just thought you’d like to know that.

Who are these people?

As we know, there are vacancies in the US Attorney’s offices in the Southern and Western district offices in Texas, which will be filled by Presidential appointment. Normally, when the President is of one party and both of a given state’s Senators are of the other party, “the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President’s party.” That’s from a report last year by the non-partisan Congressional Research Service. Except that as Steve Benen noted, Texas’ Republican Senators have refused to honor this practice, and instead have insisted on sending to Obama candidates who have been screened by the committee he and Hutchison have always used for making nominations — a committee he admits is “heavily stacked with Republican lawyers.” Because, you know, it’s different when Democrats are in charge.

Well, as Todd Gillman reports, they have made one small concession:

Hutchison and Cornyn refused to cede control, though they did concede it was time to retool the screening panel – adding more Democrats and trial lawyers. They also promised to identify members, to let the public assess the panel’s caliber and balance.

Late Friday, Hutchison’s office finally provided a membership list. It’s hard to assess how the membership has changed, since they never provided a list of prior members. We do know that chairman Daniel Hedges of Houston is a holdover. We know that the previous vice chair, Colleen McHugh, is off the committee.

And, thanks to a 2001 Texas Lawyer report, flagged for me Sunday by a well-informed reader (thanks, well-informed reader!), we can report today that of 35 screeners back then, 12 serve on the new committee.

Beyond that, you’ll have to judge for yourself if Texas’ senators lived up to their promises.

I’ve reproduced the list beneath the fold. Two things stand out to me. One is that of the 31 names listed, two (2) are women. Who knew there were so few women in the state of Texas capable of offering a judgment about the qualities of a US Attorney candidate? I’m thinking that if Cornyn and KBH had such a hard time coming up with the names of women to serve on their committee, their committee may have an equally hard time coming up with the names of women as potential USAs. According to the State Bar of Texas Department of Research and Analysis, as of Dec. 31, 2006, 31 percent of the 71,470 in-state Bar members are female. But only seven percent of the Cornyn/KBH screening committee are. That ain’t right.

And two, one of the people on this list is Andy Taylor. Yes, that Andy Taylor. All I can say is that if any other member of this list is half the dishonest partisan hack Taylor is, then the whole thing should be thrown out. To borrow from William F. Buckley, I’d sooner have the candidate names be selected by the first 31 people in the Houston phone book. If that’s their idea of making this list more representative, they’re crazy.

Finally, as with Gillman, I don’t know the party affiliation of most of these people. If you can point it out for any of them, please do so. Thanks.

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