Dutmer v. City of San Antonio, Tex.

• Decision Date: 19 August 1996
• Docket Number: Civil Action No. SA-95-CA-764.
• Citation: 937 F. Supp. 587
• Parties: Helen DUTMER, Plaintiff, v. CITY OF SAN ANTONIO, TEXAS, Defendant.
• Court: U.S. District Court — Western District of Texas

937 F. Supp. 587

Helen DUTMER, Plaintiff, v. CITY OF SAN ANTONIO, TEXAS, Defendant.

Civil Action No. SA-95-CA-764.

United States District Court, W.D. Texas, San Antonio Division.

August 19, 1996.

Christian Joe Gros, San Antonio, TX, for plaintiff.

William Wendell Hall, Fulbright & Jaworski, San Antonio, TX, Renee A. Forinash, Fulbright & Jaworski L.L.P., San Antonio, TX, for defendant.

ORDER

BIERY, District Judge.

A case of first impression addressing the legality of term limits for council members of Texas home rule cities¹ presents this issue:

Motivated by frustration with their political institutions, can citizens of a Texas home rule city legally trade a part of their birthright (the less fettered power to choose their rulers) for a mess of pottage (de facto government by unelected albeit capable and dedicated career public servants)?

Invoking the account of Esau² and for the reasons stated below, this Court answers in the affirmative.

It is appropriate to begin with what this matter is not: a political philosophy debate about the merits and demerits of term limits. On this, reasonable minds have differed since the founding of the Republic. Compare Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in VI THE WRITINGS OF THOMAS JEFFERSON 385, 389 (Andrew Lipscomb & Albert Bergh eds., 1903) ("I dislike and strongly dislike in the new Constitution the abandonment, in every instance, of the principle of rotation in office....") with THE FEDERALIST No. 53 (James Madison) ("No man can be a competent legislator who does not add ... a certain degree of knowledge ... acquired by means of ... actual experience in the station which requires the use of it.") with THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 632-33 (Max Farrand ed., 1937) (Elbridge Gerry of gerrymandering fame listed "the duration and re-eligibility of the Senate" as reason for not signing Constitution); cf. David Broder, Washington Post Writers Group, The Problem of Term Limits, DALLAS MORNING NEWS, February 9, 1994, at 25A ("Moving legislation ... takes experience, the one commodity that the term-limits are determined to eliminate from legislative bodies."); GEORGE F. WILL, RESTORATION: CONGRESS, TERM LIMITS AND THE RECOVERY OF DELIBERATIVE DEMOCRACY 3 (1992) (term limits necessary to restore government to competence); Rick Casey, SAN ANTONIO LIGHT, July 12, 1990 (opposing term limits because of too much power with city staff); T.R. Fehrenbach, THE SAN ANTONIO EXPRESS NEWS, May 22, 1994 (term limits are "our best long-range hope for incisive reform of government."). Indeed, the sovereign people of the United States exhibited ambivalence on the issue by electing Franklin Roosevelt four consecutive times to the presidency, but shortly thereafter imposed a two-term limit through appropriate processes of amending the Constitution.³

Moreover, this Court is not sitting in loco parentis to decide whether unlimited or limited service on a city council results in better government for the citizenry. If history judges the term limits movement an idea whose time should not have come, the evolutionary experiment called democracy includes the right to make mistakes and, ultimately, delivers just about the kind of government voters deserve. On a personal note, this author finds inconsistency between the ideal of a well-informed electorate choosing its leaders and the reality of lazy reliance on term limits in lieu of the vigorous exercise of the right to vote for which so many paid so much. But of course it is not an ideal world. Further, it is doubtful that supporters of term limits seek to fly on commercial airships piloted by rookies to be intellectually consistent with their philosophy about the piloting of the ship of state.

What is before the Court is City of San Antonio Ordinance 73584 ("the Ordinance"), amending the city charter to include a term limitations provision,⁴ and its legality in relationship to other higher constitutional and statutory provisions, both state and federal. The City of San Antonio is a home rule city. TEX. CONST. art. XI, § 5. As a general proposition, citizens of home rule cities may write their basic rules so long as charter provisions do not conflict with higher law. Id. For example, a city charter clearly could not prevent women from voting in city elections in contravention of the Nineteenth Amendment to the United States Constitution. This Court is petitioned to make the initial judicial determination of that relationship.

BACKGROUND

The plaintiff, Helen Dutmer, a citizen who has given many years of service to the community as a San Antonio City Council Member and Bexar County Commissioner, filed as a candidate for an additional term on city council in excess of that allowed by Ordinance 73584. City Clerk Norma Rodriguez, following her duty to enforce the city charter, disallowed the filing. Mrs. Dutmer challenges the enforcement of the Ordinance, contending it is in conflict with and therefore must legally yield to higher authority because:

1) the term limits provision to the city charter violates section 2 of the Voting Rights Act;

2) the term limits provision violates plaintiff's First and Fourteenth Amendment rights guaranteed by the United States Constitution;

3) the term limits provision is unconstitutional because it imposes an additional eligibility requirement which is not expressly provided by the Texas Constitution and the laws of the State of Texas.

The defendant City of San Antonio contends Mrs. Dutmer has no standing under the Voting Rights Act to challenge the term limits amendment and further argues it is not precluded by the Texas Constitution and the United States Constitution from amending the city charter to adopt term limits for elected city council members.

STANDARD OF REVIEW

Cross-motions for summary judgment have been filed. See FED.R.CIV.P. 56. When the parties proceed on the same material facts, a court will grant summary judgment only when the moving party is entitled to judgment as a matter of law. Bricklayers Int'l Union Local No. 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.1975); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). When faced with crossmotions, the court must consider each party's motion separately; each movant has the burden of presenting evidence to support its motion. Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988).

STANDING UNDER THE VOTING RIGHTS ACT

Notwithstanding preclearance of the term limits ordinance by the United States Department of Justice, Mrs. Dutmer asserts the provision violates section 2 of the Voting Rights Act. 42 U.S.C. § 1973b(f)(2). The purpose of the Voting Rights Act is to protect racial and language minorities against conduct from the majority which would abridge their right to vote. Thornburg v. Gingles, 478 U.S. 30, 43, 106 S.Ct. 2752, 2762, 92 L.Ed.2d 25 (1986); Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir.1989); see also Miller v. Johnson, ___ U.S. ___, ___, 115 S.Ct. 2475, 2483, 132 L.Ed.2d 762 (1995) (citing Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363-64, 47 L.Ed.2d 629 (1976)) ("The purpose of the Voting Rights Act has always been to ensure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.").⁵

Responding to plaintiff's voting rights allegation, the City of San Antonio contends Mrs. Dutmer is not a proper party and therefore has no standing to bring a voting rights claim. A party seeking to invoke federal jurisdiction must "allege facts demonstrating that she is a proper party to invoke judicial resolution of the dispute." United States v. Hays, ___ U.S. ___, ___, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (citing Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). There are at least three elements of constitutional standing:

*First, plaintiff must suffer an "injury in fact — an invasion of a legally protected interest, which is (a) concrete and particularized, and (b) actual and eminent, not conjectural or hypothetical."

*Second, there must exist a causal connection between the injury and the conduct of which is complained.

*Third, it must be likely, and not "merely speculative," that the injury will be redressed by a favorable decision.

Hays, ___ U.S. at ___, 115 S.Ct. at 2435 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136-37); see also Barnett v. Daley, 809 F.Supp. 1323, 1332 (N.D.Ill.1992).

The test for standing of a non-minority plaintiff in a Voting Rights Act cause of action was addressed in Newman v. Voinovich, 789 F.Supp. 1410, 1415 (S.D.Ohio 1992), aff'd, 986 F.2d 159 (6th Cir.), cert. denied, 509 U.S. 924, 113 S.Ct. 3041, 125 L.Ed.2d 727 (1993). Newman instructs that a plaintiff must show:

1) he or she has personally suffered or will suffer some distinct injury-in-fact as a result of defendant's putatively illegal conduct;

2) the injury can be traced with some degree of causal certainty to the defendant's conduct;

3) the injury is likely to be redressed by the requested relief;

4) the plaintiff must assert his or her own legal rights and interests, not those of a third party 5) the injury must consist of more than a generalized grievance that is shared by many; and

6) the plaintiff's complaint must fall within the zone of interests to be regulated or protected by the rule of law in question.

Newman, 789 F.Supp. at 1415 (citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-77, 102 S.Ct. 752, 757-61, 70 L.Ed.2d 700 (1982)); see also Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S.Ct. 2868, 2873-74, 49 L.Ed.2d 826 (1976) ("Federal courts must hesitate...