Hunt v. City of Longview

• Decision Date: 18 August 1995
• Docket Number: No. 6:95 CV 555.,6:95 CV 555.
• Citation: 932 F. Supp. 828
• Parties: James W. HUNT and Tony Powell, v. CITY OF LONGVIEW, et al.
• Court: U.S. District Court — Eastern District of Texas

932 F. Supp. 828

James W. HUNT and Tony Powell, v. CITY OF LONGVIEW, et al.

No. 6:95 CV 555.

United States District Court, E.D. Texas, Tyler Division.

August 18, 1995.

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Glenn Perry, Timothy Womack, Glenn Perry & Assoc., Longview, for plaintiffs.

David Brabham, Asst. Dist. Atty., Larry Schenk, Longview, E. Allen Taylor, Stephen Howard, Tim Sralla, Fort Worth, TX, for defendant.

MEMORANDUM OPINION AND ORDER

HANNAH, District Judge.

Pending before the court are Plaintiffs' Motion for Preliminary Injunction and Defendants' Motion to Dismiss. Upon careful consideration the court holds that Plaintiff's Motion for Preliminary Injunction is GRANTED and Defendants' Motion to Dismiss is DENIED.

Background

Plaintiffs James W. Hunt and Tony Powell are duly elected members of the City Council for the City of Longview, Texas. Defendants are the City of Longview, the Mayor of Longview, members of the City Council, the District Attorney for Gregg County, and the Attorney General for the State of Texas. Plaintiffs' lawsuit arises out of a qualification for holding office in the City of Longview which requires that office holders not be in arrears to the City of Longview. Section 2.03 of the City Charter, entitled "Council Qualifications," provides in pertinent part:

"The Mayor and each member of the City Council shall have the following qualifications:

* * * * * *

(e) Must not be in arrears in payment of taxes or other liabilities due the City of Longview."

Section 2.04 of the City Charter, entitled "Forfeiture of Office," provides in pertinent part:

"The Mayor or any Councilman shall forfeit his office if he:

(a) Lacks at any time during his term of office any qualification for the office prescribed by this Charter or by law."

The Home Rule Charter was adopted by the voters of the City of Longview and has been in effect since January 1, 1979.

No Mayor or Council member has ever been removed pursuant to Section 2.03(e), and no procedure is in place to determine or discover whether this particular qualification has been and continues to be met. When a candidate for city office intends to run for election, he or she must sign an unsworn statement that he or she is not in arrears to the City of Longview. After Plaintiffs were elected to the City Council, a local news reporter brought the suspected liabilities to the attention of the City Council. Plaintiffs dispute the allegation that they are in arrears to the City of Longview. It is alleged that Plaintiff Hunt has failed to pay the costs of work done by city crews in correcting code violations on property in which he has an owning interest and that Plaintiff Powell has failed to pay city property taxes on time.

On July 11, 1995, the Longview City Council took up as part of its agenda the matter of possible violations of Sections 2.03(e) and 2.04(a) of the City Charter by two of its members, Plaintiffs Hunt and Powell. On the same date, the City Attorney, after performing his own research and consulting the Secretary of State's Office and the General Counsel for the Texas Municipal League, provided the City Council with a memorandum analyzing Section 2.03(e) of the City Charter. The City Attorney's memorandum concluded as follows:

"Conclusions

Charter provisions similar to those found in Section 2.03(e) of the City Charter, requiring as a qualification for service on the City Council that a Councilmember not be in arrears in payment of taxes or other liabilities, have been found in violation of the Fourteenth Amendment to the United States Constitution."

The City Attorney's memorandum also stated that if a qualification for holding office under Section 2.03(e) is without legal authority, then forfeiture under Section 2.04 based upon that qualification would also be without legal authority.

At the July 11, 1995 meeting, the City Council passed resolutions censuring Councilmen Hunt and Powell for being in noncompliance with Section 2.03(e) of the City Charter, designating itself as relator pursuant to Chapter 66 of the Texas Civil Practices and Remedies Code, and asking the District Attorney of Gregg County to initiate quo warranto proceedings¹ to remove Hunt and Powell from the City Council. Hunt and Powell were present and were allowed to vote. The District Attorney informed the City Council that he would be willing to petition a state court for leave to file an information in the nature of quo warranto if the City Council would hire private attorneys to prepare all the documents and research necessary to do so. In other words, the District Attorney would sign the necessary papers, but would not expend any county resources to initiate and litigate the quo warranto proceedings. On July 25, 1995, the City Council held a closed discussion of the district attorney's proposal that the City pay the legal expenses of the impending litigation to remove Hunt and Powell. Hunt and Powell were not allowed to attend, participate in the discussion or vote on the matter. The participating members of the City Council voted to pay for the legal proceedings.

With the impending threat of removal from office, Plaintiffs filed suit in this court asking that Section 2.03(e) of the Longview City Charter be declared unconstitutional under the Fourteenth Amendment's Equal Protection Clause and First Amendment's Free Speech Clause. Accompanying this declaratory judgment action, filed on August 1, 1995, was Plaintiffs' Motion for Temporary Restraining Order and Motion for Preliminary Injunction. On August 2, 1995, the court granted Plaintiff's Motion for Temporary Restraining Order until August 11, 1995 at which time a preliminary injunction hearing would be held to determine whether the terms of the temporary restraining order should continue in the form of a preliminary injunction until the court could rule on Plaintiff's declaratory judgment action. The temporary restraining order prevented initiation of quo warranto proceedings as provided in section 66.002 of the Texas Civil Practice and Remedies Code until a preliminary injunction hearing could be held. The temporary restraining order was issued without notice as allowed by Federal Rule of Civil Procedure 65(b). At no time after its issuance did Defendants move to dissolve or modify the temporary restraining order pursuant to Rule 65(b).²

At the preliminary injunction hearing, the court first heard arguments on Defendants' Motion to Dismiss. Defendants argued that the court should abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). At the conclusion of the abstention arguments, the court informed the parties that it would not rule from the bench on the abstention issue and would take it under advisement. Thereupon the court ordered that the preliminary injunction hearing would continue on the merits. Defendants objected to continuing the hearing on abstention grounds. After the preliminary injunction hearing, the court extended the temporary restraining order seven days in order to consider and rule on Plaintiffs' Motion for Preliminary Injunction.

Analysis

The parties do not dispute that this court has jurisdiction to hear this declaratory judgment action challenging the constitutionality of a provision of the Longview City Charter under the First and Fourteenth Amendments. Defendants argue that despite having jurisdiction, this court should nonetheless abstain from hearing this matter invoking doctrines enunciated by the United States Supreme Court to preserve notions of federalism and comity. It bears noting that "The courts of the United States are bound to proceed to judgment and to afford redress to suitors before them in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction." Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 697-98, 37 L.Ed. 546 (1893) (citations omitted). "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404, 19 U.S. 264, 404, 5 L.Ed. 257 (1821). The right of a plaintiff to choose federal court when there is a choice cannot properly be denied. Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382 (1909) citations omitted). The Supreme Court has determined that there are some classes of cases in which the withholding of authorized equitable relief is appropriate because of the undue interference with state proceedings. However, abstention remains the exception, not the rule. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2326-27, 81 L.Ed.2d 186 (1984); Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Louisiana Debating and Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1489 (5th Cir.1995).

I. Abstention

Defendants move to dismiss this action based upon Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Abstention under Younger "is generally deemed appropriate when assumption of jurisdiction by a federal court would interfere with pending state proceedings, whether of a criminal, civil, or even administrative character." Word of Faith World Outreach Center Church, Inc. v. Morales, 986 F.2d 962, 966 (5th Cir.), cert. denied, 510 U.S. 823, 114 S.Ct. 82, 126 L.Ed.2d 50 (1993) (citations omitted). See also Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to state civil proceedings); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying Younger to state administrative proceeding which is judicial in nature). Younger abstention, however, is inappropriate when state legislative action is involved. See New Orleans Public Service, Inc. v. Council of City of New Orleans...