City of Cleveland v. Keep Cleveland Safe

• Court: Texas Court of Appeals
• Writing for the Court: LEANNE JOHNSON, Justice
• Citation: City of Cleveland v. Keep Cleveland Safe, 500 S.W.3d 438 (Tex. App. 2016)
• Decision Date: 28 July 2016
• Docket Number: NO. 09-15-00076-CV,09-15-00076-CV
• Parties: The City of Cleveland, Niki Coats, in His Official Capacity as Mayor of the City of Cleveland and Angela Smith, in Her Official Capacity as City Secretary of the City of Cleveland, Appellants v. Keep Cleveland Safe, Appellee

500 S.W.3d 438

The City of Cleveland, Niki Coats, in His Official Capacity as Mayor of the City of Cleveland and Angela Smith, in Her Official Capacity as City Secretary of the City of Cleveland, Appellants

v.Keep Cleveland Safe, Appellee

NO. 09-15-00076-CV

Court of Appeals of Texas, Beaumont.

Submitted on September 24, 2015

Opinion Delivered July 28, 2016

John J. Hightower, David W. Olson, Olson and Olson, LLP, Houston TX, for Niki Coats, The City of Cleveland, Angela Smith and Kelly McDonald.

Andy Taylor, Andy Taylor and Associates, PC, Brenham, TX, Wallace B. Jefferson, Alexander Dubose Jefferson and Townsend, LLP, Austin TX, for Keep Cleveland Safe.

Before McKeithen, C.J., Kreger and Johnson, JJ.

OPINION

LEANNE JOHNSON, Justice

On December 16, 2013, Keep Cleveland Safe (“KCS” or “Plaintiff”) filed an “Original Petition and Application for Temporary Injunction and/or Permanent Injunction” (hereinafter “Lawsuit”) to stop the City of Cleveland (“the City”) from presenting an issue to the people for a vote at the May 10, 2014 election. The Lawsuit relates to the efforts of certain citizens calling for the City to allow the citizens of the City to vote on a proposed charter amendment regarding a prohibition on the use of photographic traffic signal enforcement systems or red light cameras (“Red Light Petition”).¹ The City, Niki Coats, in his official capacity as Mayor of the City, and Angela Smith,² in her official capacity as City Secretary of the City (collectively “Defendants” or “Appellants”), appeal the trial court's Final Judgment and permanent injunction enjoining the City from holding an election on the Red Light Petition. We dissolve the permanent injunction, reverse the judgment of the trial court, and dismiss the case.

BACKGROUND

The City is incorporated under Texas law and operates as a home-rule municipality. See Tex. Const. art. XI, § 5 ; see also Tex. Loc. Gov't Code Ann. § 51.072 (West 2008) ; Cleveland, Tex., Home Rule Charter (2014).³ In October 2009, the Cleveland City Council (“the City Council”) passed an ordinance authorizing and implementing a photographic traffic signal enforcement program. See Tex. Transp. Code Ann. § 707.002 (West 2011).

On August 19, 2013, the City Secretary received a document entitled, “Petition to Ban Red Light Cameras[.]” The Red Light Petition stated the following:

To the Mayor and City Council of the City of Cleveland (“City”), we, the undersigned voters of the City of Cleveland, Texas, under Section 9.004 of the Local Government Code, hereby petition for an election to amend the Charter of the City of Cleveland to add the following as a separate section to our Charter to read as follows:

The City of Cleveland shall not use photographic traffic signal enforcement systems to civilly, criminally, or administratively enforce any state law or City Ordinance against the owner or operator of a vehicle operated in violation of a traffic control signal, specified by Section 544.007(d) of the Texas Transportation Code, nor shall it collect any money from any recipient of a Notice of Violation issued, in whole or in part, in connection with the use of a photographic traffic signal enforcement system.

The Red Light Petition included a statement that each person who signed the Red Light Petition “must be a registered voter and reside in the City of Cleveland[.]” According to the language in the Red Light Petition, the petitioners filed it to require the City to place the matter on the ballot for an election to amend the Cleveland City Charter (“City Charter”) pursuant to section 9.004 of the Texas Local Government Code. Section 9.004 provides in part as follows:

(a) The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election. The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.

Tex. Loc. Gov't Code Ann. § 9.004(a) (West 2008).

On August 29, 2013, the City Council passed Ordinance No. 1029, wherein the City Council accepted the Red Light Petition and stated in part that “[t]he City Council finds and declares that the proposed charter amendment submitted by the voters in the Petition to Ban Red Light Cameras shall be submitted to the City's qualified voters at the next municipal general election on May 10, 2014.” The ordinance also directed the City Secretary “to publish notice of the election in accordance with Section 9.004(c) of the Texas Local Government Code [ ]” and prepare the ballots for the election.

On December 16, 2013, KCS filed this Lawsuit. In pleadings filed by KCS in the Lawsuit, KCS described itself as “a specific-purpose political action committee created to oppose efforts to conduct a public referendum on the automated photographic traffic signal enforcement program that already has been properly enacted by the Cleveland City Council.”⁴ KCS requested that the trial court “declare that the enactment and repeal of local legislation relating to the use of photographic traffic signal enforcement systems has been withdrawn from the field in which the initiative/referendum process operates because the Transportation Code grants the exclusive authority to implement these systems to the ‘governing body of a local authority.’ ” KCS alleged that the City Council enacted an ordinance implementing the automated photographic traffic signal enforcement program, and the exercise of that authority had been “solely granted to the City Council by the Legislature, [and] should not be subject to revocation by referendum.” KCS asked the trial court to declare that the ordinance calling for the May 10, 2014 election “regarding the attempted revocation of the [photographic traffic signal enforcement program], whether it is called an initiative or a charter amendment or a referendum, is void and of no legal effect because it falls outside the power of initiative/referendum reserved for the citizen voters of the City.” KCS also sought a temporary and permanent injunction to enjoin the Defendants from conducting the May 2014 election as to the proposed charter amendment and to declare that the ordinance calling the election is inconsistent with section 707.002 of the Transportation Code.

On January 8, 2014, the Defendants filed a “Plea to the Jurisdiction or Alternatively, Original Answer[.]” The Defendants alleged that the trial court lacked jurisdiction and (1) KCS failed to plead facts demonstrating that KCS had standing to bring the suit, (2) KCS's claim for relief was not ripe and if the charter amendment election KCS sought to enjoin failed, the issue would become moot, (3) Defendants are entitled to governmental immunity, (4) the Real Party has been omitted and the “true name(s)” of Plaintiff should be substituted for Plaintiff, (5) KCS failed to plead facts showing it is entitled to sue or be sued or has the authority to bring the suit against the Defendants, (6) the petitioner for the charter amendment was a necessary party to the suit, and (7) KCS failed to allege facts showing that the City Council lacked the authority to call an election to amend the City Charter.⁵

On February 11, 2014, the City Council adopted Ordinance No. 1043 calling an election for May 10, 2014, for the purpose of electing individuals to certain City Council positions and also for accepting or rejecting a number of proposed charter amendments, including “Proposition No. Four[,]” the proposed charter amendment outlined in the Red Light Petition. On February 13, 2014, KCS filed its response to the Defendants' plea to the jurisdiction.

On February 19, 2014, the trial court conducted an evidentiary hearing on KCS's request for a temporary injunction. On March 11, 2014, the trial court entered an order granting KCS a temporary injunction, enjoining Appellants “from conducting an election on the [Red Light] Petition[,]” and setting the matter for trial.

On October 1, 2014, the trial court conducted a bench trial. All parties appeared through their attorneys and presented documentary evidence and arguments, without presenting any testimony from witnesses. On November 24, 2014, the trial court entered an order denying the Defendants' plea to the jurisdiction. The trial court then entered a Final Judgment granting the relief as requested by KCS, finding “that Plaintiff is entitled to permanent injunctive relief.” The trial court issued a permanent injunction, granted declaratory relief, and entered a Final Judgment with the following specific findings:

1. A document entitled, “The Petition to Ban Red Light Cameras” was submitted to the Cleveland City Secretary on August 19, 2013 (the “Petition”). The Petition seeks to mandate the City Council of the City of Cleveland, Texas, pursuant to Section 9.004 of the Texas Local Government Code, to call an election for the purpose of amending the Charter of the City of Cleveland (the “Cleveland Charter”). The Petition does not comply with Section 8.05 of the Cleveland Charter. Specifically, Section 8.05 of the Cleveland Charter sets forth the exclusive procedures under which the Charter may be amended. That provision is valid and enforceable as a matter of law. Section 9.004 of the Texas Local Government Code does not preempt Section 8.05 of the Cleveland Charter.

2. The Petition does not comply with any other provision of the Cleveland Charter, including Sections 9.01 and 9.02, which define the initiative and referendum powers of the citizens of Cleveland. The Petition does not constitute an initiative. The Petition does not constitute a referendum.

3. Because the Petition was not in compliance with the Cleveland Charter, the Cleveland City Council lacked the authority to call an election on

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