The Texas Republican Party on Thursday sued Mayor Sylvester Turner and Houston First Corp. for canceling the party’s in-person convention that was scheduled for next week in downtown Houston.
The lawsuit, filed in Harris County state district court, alleges that Turner erred when he invoked a “force majeure” clause of the contract between the Texas GOP and Houston First, the city’s public nonprofit that operates the George R. Brown Convention Center. The Republican Party also is suing Houston First President Brenda Bazan and the city of Houston.
Turner, who ordered Houston First to cancel the convention on Wednesday, said the clause allows one side to cancel over something that is out of its control, including “epidemics in the City of Houston.” In its petition filed Thursday, the GOP said Turner simply does not want to hold the convention, thus failing to meet the force majeure standard.
“Houston Mayor Sylvester Turner’s use of the force majeure clause is just a pretext to his intent to treat the Republican Party of Texas differently than other groups, such as those we have seen from recent protests in the city of Houston,” the party said in a statement Thursday. “It should go without saying that a political viewpoint cannot be the basis for unequal treatment.”
Turner said he called off the convention based on concerns about Houston’s recent COVID-19 surge and input from various medical professionals. A spokeswoman for the mayor said he would address the lawsuit at a 3 p.m. news conference.
In the lawsuit, Texas Republican Party officials are seeking a temporary restraining order that would allow the convention to continue as planned and damages due to Turner’s “anticipatory breach of contract,” including the cost of all losses and the “increased costs of handling the Convention elsewhere.”
The party argued that Turner and Houston First violated the “equal rights clause” of the Texas Constitution, and that Gov. Greg Abbott stripped Turner’s power to cancel the convention in one of his COVID-19 executive orders.
See here for the background, and here for a copy of the lawsuit. I’d love to hear from any of the attorneys out there about the merits of this one. I can’t remember where I saw this now – probably Twitter, my brain is mush – but Jared Woodfill (who is of course the plaintiffs’ attorney for this, along with fellow genius Briscoe Cain) said he was going to try to get a hearing today and secure a temporary block on the cancellation. I can imagine that happening, at least long enough for a judge to make a preliminary ruling. (UPDATE: Per a press release from the Texas GOP received at 7:30, they were indeed denied a motion to block the cancellation. They will appeal directly to the Supreme Court. Stay tuned.) Beyond that, who knows? Insert giant shrug emoji here. Texas Lawyer and the Trib have more.
UPDATE: Jasper Scherer tweets about the TRO denial. Apparently, there’s a second lawsuit as well, by Steven Hotze, because of course there is. Both motions were denied.
UPDATE: An updated Chron story, with more details on the TRO denials. Also, too, this:
The mayor also encouraged party officials to move their convention to Montgomery County, where County Judge Mark Keough offered to host the event and vowed “there will be no last-minute changes.”
“I think Judge Keough in Montgomery County is more than happy to host the 6,000 delegates (there),” Turner said. “I think they should go to Montgomery County.”
Seems like a match made in heaven to me.
Not everyone in Montgomery County welcomes the idea of hosting the Republican Convention – I would say 30% don’t want it would be a very low estimate There is also a problem in that the largest indoor space/arena in Montgomery County holds around 5,000 people (there are some outdoor spaces that hold >6000: but it is July in Texas). Mayor Turner’s suggestion that the RPT take up our **** County Judge’s offer just gives me one more reason to dislike him despite the fact he is a fellow Democrat.
Marc, I get that not everyone in Montgomery County is on the Trumo train. But Montgomery County asked for the convention. It neatly solves a problem for Turner.
Montgomery Co. voted 72-22 for Trump in 2016, and provided him with a 104,000 vote margin (the highest for Trump of any county in the entire country). Beto only got 27 percent there, easily the worst result of any top 15 county for the Democrats.
If the RPT is going to demand that to go ahead with an in person convention, it makes sense that Montgomery, Comal, Bell, Kaufman, Ector, Midland, Lubbock, or Amarillo hosts it. If the county judge in Comal had asked for it, Turner would have said..”fine, go there”.
I’ll wager that 30% or more of the residents of the city of Houston would love for the Republican state party convention to proceed as planned at the George R Brown. What does that have to do with the price of tea in China?
The people who get to make the decisions are the elected officials granted that authority by voters. And all Turner can really say is “you can’t hold your super-spreader event here during a public health crisis.”
If Montgomery County’s elected officials are eager to get them some extra diseases, all Turner can do is shrug. I’m sure that he’ll feel a momentary twinge of mild regret at the thought of the people in Montgomery County who don’t like him.
LEGAL IMPLICATIONS OF RELOCATING THE SUPER-SPREADER FESTIVAL
Well, if the GOP’s principal legal claim is for breach of contract (their lawyers don’t seem to be able to make up their minds), they can mitigate their alleged damages by holding the convention in Montgomery County. At least they will be mitigating something, even it its not the spread of COVID-19.
As it stands, they are seeking both specific performance of the contract (i.e, trying to force Houston First to forge ahead, and trying to get the court to order that by way of TRO (already denied) and temporary injunction). But they are also complaining of anticipatory breach, and want monetary damages (not yet incurred). They should at least plead for different forms of relief in the alternative, you would think. Not to mention make up there mind as to whether they there complaint is about contractual performance or something else.
CONTRACT DISPUTE OR LOCAL-GOVERNMENT INTERFERENCE WITH FIRST AMENDMENT RIGHTS?
I also wonder how governmental immunity will play out here. Assuming Houston First does not have immunity, it would seem to just be a contract dispute, perhaps with a declaratory judgment angle. But they are loudly complaining about Turner abusing his official authority and acting ultra vires and discriminatory motive, even though the convention was cancelled pursuant to the terms of the contract, rather than by executive action of the mayor.
Even assuming that the Mayor had a political agenda (or was driven by an evil anti-GOP animus as alleged), does it even matter to the dispute over how to construe and apply the force majeure clause when that clause expressly encompasses epidemics along with other disasters, such as floods and hurricanes?
And even if the constitution comes into play, surely the attendees are not similarly situated to the open-air George Floyd protesters; nor did the Mayor or Houston First have a contract with them.
Much rather, the spontaneous masses in the streets were themselves a force majeure of sorts.
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RPT should go to Montgomery County in my opinion. I know they say their is a facilities problem but all I see when I hear that is a lack of planning. They could go to a county that wants them there and in the meantime fire up their base. This is a total lack of imagination on their part.
Well said, Paul. The RPT has a total lack of imagination, among other things…
I’m thinking (the lack of) concern over the health of their attendees is the most glaring.
“….surely the attendees are not similarly situated to the open-air George Floyd protesters; nor did the Mayor or Houston First have a contract with them.”
The mayor PARTICIPATED in the pro-Democrat, St. Floyd demonstration. He, along with Al Green, She-Jack, Lizzie, and other Democrat luminaries all spoke as invited guests. That’s a ringing, active endorsement by Houston’s political leaders….the same leaders that are now trying to stop the RNC gathering.
One thing I do agree with Wolfgang with is, the Republicans, having sustained a loss at the hands of Mayor Turner, still have a duty to mitigate their damages.
Let’s say Hurricane Sylvester ripped the roof off the Republican’s play house. The Republicans would have a duty to mitigate their loss by tarping the roof to prevent further damage. Having said that, make no mistake, they have legitimate damages to claim. How many of the attendees have made non refundable hotel reservations? How many have booked non refundable plane tickets?
Re: “How many of the attendees have made non refundable hotel reservations? How many have booked non refundable plane tickets?”
Okay, there are potential monetary losses there (or savings, you could argue, if they go online), but that raises a number of issues …
The individual attendees are not signatories to the GRB license/lease contract, so how would they have standing if they sued in their own name? Hotze is running into that problem in his separate suit against Houston First Corp.
So, is there any basis to argue that they are third-party beneficiaries of that contract? I don’t know … sounds like a creative potentially nonfrivolous argument, if predicated on the special status of this particular convention client (a political party, not a dressupwackypalloozza organizer or a guru convening a how-to-get-rich-in-24-hours seminar), but I doubt that they are expressly identified as third-party beneficiaries in the contract itself (haven’t read the whole thing, admittedly).
Or can the Texas GOP assert their members’ damages as damages of their own, based on some sort of organizational/representational community-of-interests standing theory as opposed to just status as a party to the contract (irrespective of being a political party)? I suspect that convention goers are paying expenses out of their own pocket, so the damages relating to travel and accommodations would be theirs, individually.
BTW, in my opinion, the GOP’s legal argument in their election code mandamus in the Texas Supreme Court is much better, part from the being a forum full of receptive ears, albeit currently out of chambers. If the issue is resolved as a contract dispute in the Harris County court, it looks–to me– rather iffy.
I mean, does it matter what your motivation is if you exercise a cancellation provision in the contract that both parties did not have to agree to if they didn’t want to, or could have customized to depart from the standard boilerplate? And can’t you just cancel (ie breach) a contract and pay the damages without committing any other violation, not to mention when a contract has a liquidated damages provision?
And that specific performance thing? …. that’s an equitable remedy and an extraordinary one, and would have to be granted pronto via temporary injunction; so that would presumably require consideration of the countervailing public health interest of the community, not just the alleged urgency and need to hold the convention in the manner it was planned (rather than online or elsewhere). The alternatives modes of holding the convention (place, time, manner) would also undercut the case for court-ordered performance by Houston First, even if the GOP were to manage to constitutionalize the cancellation decision, which seems rather questionable also. Did the Mayor even have the authority to order Houston First to invoke the force majeure paragraph? I don’t know.
I am eager to see how the City Attorney and Houston First respond to the Election Code Mandamus. That looks more promising as an avenue for relief, since it covers both public officials and private actors, and has a legislative purpose that’s directly on point. Contract law, by contrast, has nothing to say per se about freedom of association or the importance of elections. In contract terms, it’s just one of many conventions based on a template-based contract, and none of the other ones are being held this year, I understand. So, no discrimination, it would seem, not to mention discrimination based on pachydermphobia.
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