Gordon v. City of Hous.

• Decision Date: 09 January 2015
• Docket Number: Civil Action No. H–14–3146.
• Citation: 79 F.Supp.3d 676
• Parties: Brent Trebor GORDON, Plaintiff, v. CITY OF HOUSTON, TEXAS, and Annise Parker, in Her Official Capacity as Mayor of the City of Houston, Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

79 F.Supp.3d 676

Brent Trebor GORDON, Plaintiff

v.CITY OF HOUSTON, TEXAS, and Annise Parker, in Her Official Capacity as Mayor of the City of Houston, Texas, Defendants.

Civil Action No. H–14–3146.

United States District Court, S.D. Texas, Houston Division.

Signed Jan. 9, 2015.

Jerad Wayne Najvar, Najvar Law Firm, Houston, TX, for Plaintiff.

Judith L. Ramsey, City of Houston Legal Department, Patricia Lynn Casey, Patricia L. Casey PLLC, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Plaintiff, Brent Trebor Gordon, brings this action against defendants, the City of Houston, Texas, and Mayor Annise Parker in her official capacity, for violation of rights protected by the First and Fourteenth Amendments of the United States Constitution. Gordon alleges that a temporal ban on soliciting and receiving contributions imposed on candidates for city elective office by Chapter 18, Article IV, § 18–35(a) of the City of Houston Code of Ordinances (“COH Ordinance § 18–35(a)”) “stifles core political activity and prevents candidates from raising funds to run effective campaigns, yet it does not further the only legitimate governmental interest relevant in this area, i.e., the prevention of corruption or its appearance.”¹ Gordon seeks declaratory judgment that COH Ordinance § 18–35(a) is unconstitutional on its face and as applied to him and to his potential contributors. Gordon also seeks to enjoin defendants from enforcing COH Ordinance § 18–35(a), nominal damages for violation of his constitutional rights, reasonable costs and attorney's fees.² Pending before the court are Plaintiff's Motion for Preliminary Injunction (Docket Entry No. 2), Defendants' Rule 12(b)(1) and 12(b)(6) Motion to Dismiss for Failure to State a Claim (Docket Entry No. 11), and Defendants' Motion for Summary Judgment (Docket Entry No. 15). For the reasons stated below, defendants' motions to dismiss and for summary judgment will be denied, and Gordon's motion for preliminary injunction will be granted.

I. Factual Background

The ordinance that Gordon seeks to have declared unconstitutional both on its face and as applied to him and his potential contributors, COH Ordinance ¶ 18–35(a), is found in the chapter of the City of Houston Code of Ordinances that governs Ethics and Financial Disclosure. The subject ordinance provides:

A candidate for city office at a city general election may neither solicit nor receive contributions except during a period commencing on the 1st day of February prior to the day of the election, and ending on the 4th day of March following the election date for the race that the candidate has entered. In the event that the candidate should be in a run-off election, the final date to receive or solicit contributions shall be the 4th day of April following the election date.

COH Ordinance § 18–35(a).³ The subject ordinance is one of several restrictions on solicitations and contributions that Chapter 18, Article IV of the City of Houston Code of Ordinances makes “applicable to all candidates and persons making contributions to candidates.” COH Ordinance § 18–31(a). Gordon's statement of definite intent to run for an at-large position on Houston City Council in the November 2015 election,⁴ makes Gordon a “candidate” for “city elective office” as those terms are defined in COH Ordinance § 18–2.⁵ Pursuant to COH Ordinance § 18–41, violations of all provisions of Article IV—including COH Ordinance § 18–35(a)—“shall be punishable as provided in section 1–6 of this Code.” COH Ordinance § 1–6 provides for a fine not exceeding $500, and also provides that “[e]ach day any violation of this Code or of any ordinance shall continue shall constitute a separate offense.”

II. Defendants' Motions to Dismiss

Defendants argue that this action is subject to dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).⁶

A. Rule 12(b)(1) Does Not Require Dismissal

Defendants argue that this action is subject to dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because

Gordon lacks standing because he can show no more than a “subjective chill” of his First Amendment rights as a potential candidate—he cannot show a personal stake in the outcome of the controversy so as to “warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.”⁷

1. Standard of Review

Federal Rule of Civil Procedure 12(b)(1) governs challenges to the court's subject matter jurisdiction. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Association of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir.1998). “Courts may dismiss for lack of subject matter jurisdiction on the basis of (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Clark v. Tarrant County, Texas, 798 F.2d 736, 741 (5th Cir.1986). Rule 12(b)(1) challenges to subject matter jurisdiction come in two forms: “facial” attacks and “factual” attacks. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). A facial attack consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence that challenges the court's jurisdiction based solely on the pleadings. Id. A factual attack challenges the existence of subject matter jurisdiction in fact—irrespective of the pleadings—and matters outside the pleadings—such as testimony and affidavits—are considered. Id. Because defendants have cited evidence outside the pleadings in support of their Rule 12(b)(1) motion to dismiss, the motion is a factual attack, and the court's review is not limited to whether the complaint sufficiently alleges jurisdiction. Gordon, as the party asserting federal jurisdiction, bears the burden of showing that the jurisdictional requirements have been met. Alabama–Coushatta Tribe of Texas v. United States, 757 F.3d 484, 487 (5th Cir.2014). When facing a challenge to subject matter jurisdiction and other challenges on the merits, courts must consider the Rule 12(b)(1) jurisdictional challenge before addressing the merits of the case. Id.

2. Gordon Has Standing

(a) Applicable Law

“Article III of the Constitution limits federal ‘Judicial Power,’ that is, federal-court jurisdiction, to ‘Cases' and ‘Controversies.’ ” United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). “[T]he requirement that a claimant have standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”National Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir.2011) (quoting Davis v. Federal Election Commission, 554 U.S. 724, 128 S.Ct. 2759, 2768, 171 L.Ed.2d 737 (2008) ). Thus, Gordon must have standing to proceed. To establish standing, Gordon must show that: (1) he has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury-in-fact is fairly traceable to the defendants' conduct; and (3) a favorable judgment is likely to redress the injury-in-fact. Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir.2014). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

(b) Application of Law to the Facts

Defendants argue that Gordon lacks standing to pursue this action in federal court “because he cannot link the [challenged o]rdinance to any harm.”⁸ Defendants argue that Gordon has failed to establish standing because

Gordon can show no harm that [is] traceable to the Defendants' challenged behavior and likely to be redressed by a favorable ruling. Gordon complains his freedom of speech is restricted because Section 18–35(a) of the Code precludes him from soliciting and receiving campaign contributions prior to February 1, 2015. However, the limitation on his free speech is self-imposed. Gordon chooses not to speak and chooses not to self-fund his campaign at this stage. (Ex. 1 at 21:10–20). The Ordinance does not prohibit Gordon from campaigning, including making speeches, meeting with voters, and speaking on social media websites like Twitter and Facebook. (Ex. 1 at 74:13–17, 19:4–22:4). Nor does the Ordinance preclude Gordon from expending undisbursed funds from his prior campaign for City Council At–Large Position 2.⁹

Asserting that self-censorship is a harm that can be alleged without actual prosecution, Gordon argues that he has standing because he has alleged an

intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed. by law ... That is, Gordon desires to immediately solicit and receive contributions related to his campaign for City of Houston City Council at large, and at present six individuals have verified their intent to immediately contribute to Gordon's campaign, but these contributions have not been solicited, made or accepted because such activity is proscribed by Houston's contribution blackout period.¹⁰

(1) Injury–in–Fact

The First Amendment to the United States Constitution declares that “Congress shall make no law ... abridging the freedom of speech.” United States Constitution, Amendment I. The Supreme Court has observed that “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 898, 175 L.Ed.2d 753 (2010), and that “[t]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” Id. (quotations omitted). “In First Amendment pre-enforcement challenges, chilling a plaintiff's speech is a...