Minella v. City of San Antonio, Tx
| Decision Date | 09 March 2005 |
| Docket Number | No. CIV.A. SA-03-CA246FB.,CIV.A. SA-03-CA246FB. |
| Citation | 368 F.Supp.2d 642 |
| Parties | Diana MINELLA, Plaintiff, v. CITY OF SAN ANTONIO, TEXAS, a Municipal Corporation,<SMALL><SUP>1</SUP></SMALL> Defendant. |
| Court | U.S. District Court — Western District of Texas |
Carla B. Morrison, Carla B. Morrison, P.L.L.C., San Antonio, TX, for Diana Minella, plaintiff.
Lowell F. Denton, Susan C. Rocha, Denton Navarro Rocha & Bernal, P.C., San Antonio, TX, for City of San Antonio, Texas, Edward. Garza, Mayor of City of San Antonio, Bobby Perez, City Council Member, John H. Sanders, City Council Member, Antoniette Moorhouse, City Council Member, Enrique Martin, City Council Member, David A. Garcia, City Council Member, Enrique M. Barrera, City Council Member, Julian Castro, City Council Member, Bonnie Conner, City Council Member, Carroll Schubert, City Council Member, David Carpenter, City Council Member, Terry Brechtel, City Manager, Martin, City Attorney, Municipal Civil Service Commission, Gilberto V. Tobias, Municipal Civil Service Commission Chairman, Juretta Marshall, Municipal Civil Service Commission Member, defendants.
Mayo J. Galindo, Attorney at Law, San Antonio, TX, for Lisa A. Gardner, Carrie Bond, Archie L. Stogsdill, Beatrice C. Hernandez, Herlinda C. Serna, amicuss.
Undisputed Confusion Clarified.
Prior to January 1, 1952, San Antonio operated under a so-called strong mayor system of government, though perhaps not to the extent of the Tweed Machine of New York City or the Pendergrast family of Kansas City. Nevertheless, San Antonio voters believed in 1951 it was time to change to council-manager governance. Before then, there was no civil service protection for city professionals, such as assistant city attorneys. For example, those who did not succumb to pressure to fix traffic tickets for the politically well-connected perceived their positions being lost shortly thereafter. One was a young traffic court judge named Samuel F. Biery. The council-manager system was implemented over time by city councilmen, attorneys and managers including Carlos Cadena, Mayo Galindo, Henry B. Gonzalez, Harvey L. Hardy, Gerald Henckel, Mike Machado, and Jack Skipper.
Following the sovereign voters' adoption of council-manager government, the Municipal Civil Service Rules and Regulations were approved in 19513 to prevent patronage abuses, those civil service concepts being reaffirmed in the city charter in 1977. In an example of history coming full circle, the people of San Antonio have now determined city professionals should not have civil service protection and perhaps once again be subject to the whims of supervisors or the politically powerful. See Proposition 3 (). But the people get just about the kind of government they deserve.4 Dutmer v. City of San Antonio, 937 F.Supp. 587, 589 (W.D.Tex.1996) () ("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.") (Biery, J.); HARVEY L. HARDY, A LIFETIME AT THE BAR: A LAWYER'S MEMOIR 102 (Vantage Press, Inc.1999) ("The biggest drawback to democracy is the intermittent phenomena of half-baked mass hysteria over issues of little or no importance in a well-balanced scheme of things.").
Plaintiff, an assistant San Antonio city attorney, was discharged on January 13, 2003, for insubordination after she violated City Attorney Andrew Martin's directive that she confirm she was no longer exercising the duties of a municipal court judge for the City of Live Oak while also acting as a municipal prosecutor for the City of San Antonio. Defendant denied plaintiff's request she be allowed to participate in the civil service process. The denial was based upon the voters' November 6, 2001, approval of Proposition Three, a charter amendment which removed civil service protection from certain positions, including the assistant city attorney position held by plaintiff. Plaintiff filed suit alleging, among other things, her rights to procedural and substantive due process were violated. Defendant denied any wrongdoing.
Cross-motions for summary judgment were filed. Both before and after voters approved Proposition Three, ordinances were passed which required city council to take action, either by order or separate ordinance, stating the effective date of the amendments.5 In the previous summary judgment proceeding leading to this Court's order of September 9, 2004, defendant did not suggest nor present any evidence an order or separate ordinance was passed setting forth the effective date of the charter amendments. Instead, defendant maintained canvassing the votes alone was sufficient to implement the election results and, therefore, the language requiring council to set an effective date was surplusage. This Court disagreed and found that, because council had not entered an order or separate order stating an effective date, the amendment removing civil service protection never took effect under the very rules established by the city. Order Regarding Cross-Motions for Summary Judgment (docket no. 59).
In a motion for new trial, defendant abandons its surplusage argument and admits "the Court is correct in stating that canvassing alone is not sufficient to put the amendments into effect." For the first time, defendant argues the language in the ordinances requiring council to set an effective date for the charter amendments conflicts with state law. Defendant also for the first time now provides evidence supplementing the summary judgment record with Ordinance 96399. This ordinance adopts the "Annual Consolidated Operating and Capital Budgets for the City of San Antonio for the Fiscal Year 2002-2003." Defendant asserts Ordinance 96399 establishes the city did in fact take action by separate ordinance thereby making Proposition Three effective. Because there appears to be no reason for defendant not to have raised these arguments and summary judgment evidence sooner, and because no reason for the delay is given, a strong argument can be made that the city waived its right to raise these new legal theories. A district court is within its discretion to summarily deny a motion for new trial based on summary judgment arguments and evidence not previously presented. RLI Ins. Co. v. Maxxon S.W. Inc., No. 03-10660, 2004 WL 1941757, at *5 (5th Cir. Sept.1, 2004). This is especially true in the absence of a reason why the arguments and evidence were not raised sooner. Id. Nonetheless, in the interest of justice and because the underlying issue will ultimately have to be addressed in this or other litigation (see Gardner v. City of San Antonio, Cause No.2003-CI-11520, now pending in the District Court of Bexar County, 408th Judicial District), the Court will consider defendant's motion for new trial.
Language in Ordinances 94375 and 94956 provides the charter amendments would become "effective when the City Council enters an order stating an effective date of the propositions" and "when the City Council takes separate action by separate ordinance stating the effective date of each prospective proposition." On rehearing, defendant argues this language is invalid because it conflicts with state law, particularly section 9.005(b) of the Texas Local Government Code. TEX. LOC. GOV'T CODE ANN. § 9.005(b) (Vernon 1999). Section 9.005, which controls the adoption of charter amendments by a municipality, is silent on the issue of setting a separate effective date. See id. § 9.005. However, subpart (b) provides:
A charter or an amendment does not take effect until the governing body of a municipality enters an order in the records of the municipality declaring that the charter or amendment is adopted.
Id. § 9.005(b). Defendant contends, because section 9.005(b) states an amendment "does not take effect until" it is adopted, the amendment necessarily takes effect when it is adopted. Therefore, defendant maintains, "the charter amendments were put into effect when the council entered an order declaring the majority of the voters adopted the charter amendment in Ordinance No. 94956." Accordingly, defendant concludes, language in the ordinances calling for city council to take separate action setting forth an effective date is in conflict with state law and, therefore, invalid.
Plaintiff maintains there is no conflict. Section 51.072(a) of the local government code, plaintiff notes, gives a municipality "full power of local self-government," TEX. LOC. GOV'T CODE ANN. § 51.072(a) (Vernon 1999), and neither section 9.005(b) nor any other provision of the code specifically restricts a home rule municipality's power to insert "effective date language" in an ordinance. See id. Given the broad authority granted to, and considering the lack of legislative limitations upon, a home rule municipality, plaintiff maintains city council was within its authority under state law when it imposed the setting of a separate effective date for the charter amendments. Therefore, plaintiff concludes, there is not a conflict and the language contained in the ordinances is valid.
Putting aside the question of whether the 2001 council wrote and passed an invalid ordinance, defendant's own submissions contradict its statement that council "acted consistently with the belief and...
To continue reading
Request your trial
-
Texas Democratic Party v. Scott
...can keep it."17 Time will tell.Defendant's motions to dismiss are GRANTED.It is so ORDERED.APPENDIX ISee Minella v. City of San Antonio , 368 F. Supp. 2d 642, 644 (W.D. Tex. 2005) ; Save Our Aquifer v. City of San Antonio , 237 F. Supp. 2d 721, 722-23 & n.3 (W.D. Tex. 2002); Perkins v. Alam......