Blum v. Lanier, 070199

Decision Date01 July 1999
Citation997 S.W.2d 259
CourtTexas Supreme Court


CHIEF JUSTICE PHILLIPS delivered the opinion for a unanimous Court.

In an election to amend a city charter, the plaintiff attempted to enjoin the city from using allegedly misleading language on the ballot to describe the proposed amendment. While we do not address the merits of plaintiff's claim at this time, we must resolve two jurisdictional questions: (1) whether a district court has jurisdiction to enjoin a city from using allegedly vague and misleading language on the ballot describing the proposed amendment to the city charter initiated by petition, and (2) whether a qualified voter who signs the petition that initiates the election has standing to seek the injunction against the ballot proposition the city drafted.

The trial court, concluding that it lacked subject matter jurisdiction over this aspect of the election, declined to consider the plaintiff's request for injunctive relief. The court of appeals affirmed the dismissal on slightly different grounds, concluding that a voter who signed the petition lacked standing to seek injunctive relief against the city.1 ___ S.W.2d ___. We disagree with both lower courts and answer the two questions "yes." We therefore reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.

The Local Government Code authorizes qualified voters of a municipality to propose amendments to the city's charter. See TEX. LOC. GOV'T CODE 9.004(a). Under this authority, Edward J. Blum and over 20,500 other registered voters in the City of Houston signed a petition that proposed to amend the City's charter to "end preferential treatment" in the City's public employment and contracting. In full, the proposed charter amendment provided:

(a) The City of Houston shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment and public contracting.

(b) This section shall apply only to action taken after the section's effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide occupational based on gender qualifications which are reasonably necessary to the normal operations of a particular government activity.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the city.

(f) For the purposes of this section, "city" shall include, but not necessarily be limited to, the city itself, and any other political subdivision or governmental instrumentality of or within the city.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex color, ethnicity, or national origin, as are otherwise available for violations of then existing Texas anti-discrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with state law, the Texas Constitution, federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portion of this section.

On October 1, 1997, the Houston City Council adopted an ordinance under state law calling a special election on the proposed charter amendment for November 4, 1997, the same day as the City's general election. This ordinance recited the entire proposed charter amendment and provided the following description of the amendment for use on the ballot:

Shall the Charter of the City of Houston be amended to end the use of Affirmative Action for women and minorities in the operation of City of Houston employment and contracting, including ending the current program and any similar programs in the future?

Blum objected to this description and immediately sought mandamus and injunctive relief in district court against the Honorable Bob Lanier, Mayor,2 and the City of Houston. In his lawsuit, Blum asked the court to direct the City to submit the proposed charter amendment to the voters using paragraph (a) of the proposed amendment as the ballot description. Alternatively, he sought to enjoin the City from using "vague, indefinite language, which fails to give voters fair notice of the nature and substance of the proposed charter amendment." The City responded with a plea to the jurisdiction, alleging that the trial court lacked jurisdiction to enjoin any part of the election process. Furthermore, the City argued that mandamus was inappropriate because Blum had an adequate remedy at law through an election contest. The trial court agreed that it lacked jurisdiction to issue a temporary injunction, but concluded that it had jurisdiction to consider Blum's petition for writ of mandamus. The court thereafter denied mandamus relief, signing its order on October 8, 1997.

Blum filed an accelerated appeal, complaining only about the trial court's order denying injunctive relief for lack of subject matter jurisdiction. The City moved to dismiss the appeal on October 20, 1997, urging that Blum's petition for injunctive relief was moot because the election had begun. See, e.g., Skelton v. Yates, 119 S.W.2d 91, 91-2 (Tex. 1938)(election challenge moot once absentee voting has begun). The court of appeals denied this motion, concluding that the appeal was not moot under the "capable of repetition yet evading review" exception to the mootness doctrine. The court of appeals on its own motion, however, determined that Blum lacked standing to enjoin the City and affirmed the trial court's judgment for this reason. See generally Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-45 (Tex. 1993)(standing is an essential, unwaivable component of subject matter jurisdiction which court should consider on its own motion).

To establish standing in this case, Blum must demonstrate that he possesses an interest distinct from the general public such that the City's actions have caused him some special injury. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). In his trial court pleadings, Blum alleged that he was co-chair of the Houston Civil Rights Initiative, a private, nonprofit organization that spearheaded the petition drive. Although Blum did not allege in the trial court that he actually signed the petition himself, the City concedes in its brief to this Court that he was a signatory. The City argues, however, that the initiative petition does not otherwise distinguish Blum from any other petition signer and that signing the petition alone is not sufficient to give him a justiciable interest in the controversy. We disagree.

Citizens who exercise their rights under initiative provisions act as and "become in fact the legislative branch of the municipal government." Glass v. Smith, 244 S.W.2d 645, 649 (Tex. 1951). In this context, we have recognized that the signers, as sponsors of the initiative, have a justiciable interest in seeing that their legislation is submitted to the people for a vote. See id. at 648, 653-54. We have issued and affirmed writs of mandamus to compel municipal authorities to perform their ministerial duties with respect to initiatory elections. See Coalson v. City Council of Victoria, 610 S.W.2d 744, 745-46 (Tex. 1980); Glass, 244 S.W.2d at 648, 653-54. We thus conclude that those qualified voters who sign the petition have a justiciable interest in the valid execution of the charter amendment election, see Glass, 244 S.W.2d at 648, and as such have an interest in that election distinct from that of the general public. See Hunt, 664 S.W.2d at 324.

The initiative in this case was conducted under section 9.004 of the Local Government Code. That section grants the qualified voters of a municipality the right to petition their governing body to amend its charter. When the requisite number of qualified citizens sign such a petition, the municipal authority must put the measure3 to a popular vote. See TEX. LOC. GOV'T CODE 9.004(a). Although the petitioners draft the charter amendment, the municipal authority generally retains discretion to select the form of the ballot proposition4 that describes the proposed amendment. In this regard, section 52.072(a) of the Election Code provides:

Except as otherwise provided by law, the authority ordering the election shall prescribe the wording of a proposition that is to appear on the ballot.

Blum concedes in this Court that the City had the right to choose the ballot language under this section, but not the right to mislead the public about the nature of the proposed charter amendment. Although no statute or ordinance prescribes the proposition's form in this instance, Blum argues that the City's choice of language is nonetheless limited by the common law, which requires that the proposition identify the measure "with such definiteness and certainty that the voters are not misled." Reynolds Land & Cattle Co. v. McCabe, 12 S.W. 165, 165-66 (Tex. 1888); see also Bischoff v. City of Austin, 656 S.W.2d 209, 212 (Tex. App.--Austin 1983, writ ref'd n.r.e.), cert. denied 466 U.S. 919 (1984)(same); Wright v. Board of Trustees of Tatum Indep. Sch. Dist., 520 S.W.2d 787, 792 (Tex. Civ. App.--Tyler 1975, writ dism'd)(proposition should constitute a fair portrayal of the chief features of the...

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