Pool v. City of Hous.

• Decision Date: 23 October 2020
• Docket Number: No. 19-20828,19-20828
• Citation: 978 F.3d 307
• Parties: Joe Richard POOL, III; Trenton Donn Pool; Accelevate2020, L.L.C., Plaintiffs—Appellants, v. CITY OF HOUSTON; Anna Russell, in her official capacity as the City Secretary of the City of Houston, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

978 F.3d 307

Joe Richard POOL, III; Trenton Donn Pool; Accelevate2020, L.L.C., Plaintiffs—Appellants,

v.CITY OF HOUSTON; Anna Russell, in her official capacity as the City Secretary of the City of Houston, Defendants—Appellees.

No. 19-20828

United States Court of Appeals, Fifth Circuit.

FILED October 23, 2020

Jerad Wayne Najvar, Esq., Austin M.B. Whatley, Najvar Law Firm, P.L.L.C., Houston, TX, for Plaintiffs - Appellants

Collyn Ann Peddie, Suzanne Reddell Chauvin, Esq., City of Houston, Legal Department, Houston, TX, for Defendants - Appellees

Before Graves, Costa, and Engelhardt, Circuit Judges.

Gregg Costa, Circuit Judge:

It is often said that courts "strike down" laws when ruling them unconstitutional. That's not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy , 104 VA. L. REV . 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example.¹ See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH. ST. L. REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO. L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), remains in the state code).

The City of Houston contends that it's being sued for one of these so-called "zombie" laws. Its Charter allows only registered voters to circulate petitions for initiatives and referenda, even though the Supreme Court held a similar law unconstitutional twenty years ago. See Buckley v. Am. Constitutional Law Found., Inc. , 525 U.S. 182, 193–97, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court.

I.

Houston is one of more than three hundred Texas cities with a home rule charter. TERRELL BLODGETT, TEXAS HOME RULE CHARTERS 3 (2d ed. 2010). The Charter covers everything from the City's power to regulate crematories to its requirements for streetcar operators. HOUSTON, TEX., CITY CHARTER , art. II, § 15 (hereinafter CHARTER ); id. art. IV, § 5. This case concerns the Charter's rules for petition-based citizen legislation.

Houston's Charter allows "qualified voters" to place initiatives and referenda on ballots through petitions.² Id. art. VII-a, § 2; id. art. VII-b, §§ 2–3. These petitions must use a form specified in the Charter that requires circulators to attest by notarized signature that they are "one of the [petition's] signers." Id. art. VII-a, § 3. All signers must be "qualified voters of the City of Houston." Id. To be a "qualified voter," a person must reside in Texas and be "a registered voter." TEX. ELEC. CODE § 11.002(a)(5–6). As a result, the Charter effectively requires every person signing a petition—including the circulator—to both reside in Houston and be registered to vote there.

A product of the Progressive Era, Houston's citizen petition process, including the rules we have just described, dates back to 1913. CHARTER , art. VII-b, § 1. In 1999, however, the Supreme Court held unconstitutional a Colorado law providing that only registered voters could circulate petitions for ballot initiatives. Buckley , 525 U.S. at 193–97, 119 S.Ct. 636. More than two decades later, the voter-registration and residency requirements remain in the Houston Charter.³

The plaintiffs, Trent and Trey Pool, are ineligible to circulate petitions under the Charter's qualified-voter provision. Neither is registered to vote in Houston: Trent resides in Austin; Trey lives in California. Trent is an avid petition circulator. In the past decade, he has petitioned in Texas and other states for Jill Stein, Ted Cruz, and Donald Trump; he has petitioned for medical marijuana referenda; and he has even petitioned for the creation of new political parties. Trent has such a passion for petitions that he runs a company dedicated to hiring professional circulators.⁴ Trey Pool does not have the same experience with petitions as Trent, but he does want to circulate petitions in Houston.

One such petition spawned this lawsuit. A 2019 petition sought to put an ordinance on the Houston ballot that would limit campaign contributions from City contractors to candidates for municipal office. The Pools wanted to help collect signatures for this "anti-pay-to-play" initiative. But the Charter's petition form, with its qualified-voter requirement, prohibited them from legally circulating the petition. They emailed the City of Houston Legal Department, providing notice of their desire to circulate petitions and intent to sue for relief. The City responded the following day but indicated that it had not yet determined its position on the Charter requirements’ enforceability.⁵ The Pools immediately filed a complaint in federal court, mounting facial and as-applied challenges to the Charter.

The Pools sought a preliminary injunction allowing them to collect signatures for the anti-pay-to-play petition as well as a declaratory judgment that the Charter's voter-registration and residency provisions are unconstitutional, permanent injunctive relief against enforcement of those provisions, and nominal damages. The Pools also filed an emergency motion for a temporary restraining order (TRO), which would allow them to circulate the petition through the deadline of July 9, 2019.

The court granted a TRO, allowing the Pools to circulate the petition for the next week. It compared the Charter's voter-registration requirement to the Colorado law at issue in Buckley . The court concluded, however, that the Pools had not demonstrated an injury sufficient to support standing with regard to future petitions.

With the restrictions enjoined, Trent collected forty signatures before the deadline. Those were not enough as the petition lacked enough signatures to put the initiative onto the ballot.

A month later, and without a request from the parties, the district court dismissed the Pools’ remaining claims. The court thought that plaintiffs had conceded that the case would be over once the 2019 petition deadline passed.⁶ In fact, the Pools continued to seek future relief, including a permanent injunction. The Pools brought this to the court's attention in a motion for reconsideration. But the court, citing the expiration of the deadline and its earlier ruling that the Pools had not shown a sufficient interest in circulating future petitions, concluded that there was no longer a live controversy.

II.

Although the City now concedes that the qualified-voter requirement is unconstitutional, the question is whether the Pools may obtain a permanent injunction preventing its enforcement. The answer turns on two related but distinct justiciability doctrines: standing and mootness. We review those legal questions de novo. Ctr. for Individual Freedom v. Carmouche , 449 F.3d 655, 659 (5th Cir. 2006) (standing); Libertarian Party v. Dardenne , 595 F.3d 215, 217 (5th Cir. 2010) (mootness).

A.

The dispute over standing focuses on the injury requirement. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "[C]hilling a plaintiff's speech"—and circulating petitions is speech, see Buckley , 525 U.S. at 186, 119 S.Ct. 636 —"is a constitutional harm adequate to satisfy the injury-in-fact requirement." Justice v. Hosemann , 771 F.3d 285, 291 (5th Cir. 2014) (quoting Hous. Chron. Publ'g Co. v. City of League City , 488 F.3d 613, 618 (5th Cir. 2007) ). This special standing rule for First Amendment cases recognizes that people should not have to expose themselves "to actual arrest or prosecution" in order to challenge a law that infringes on speech. Id . (quoting Steffel v. Thompson , 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ). But not just anyone has standing to bring such a suit. Plaintiffs like the Pools must show that they are "seriously interested in disobeying, and the defendant seriously intent on enforcing, the challenged measure." Id. (quoting Int'l Soc'y for Krishna Consciousness of Atlanta v. Eaves , 601 F.2d 809, 815 (5th Cir. 1979) ); see also Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (describing chilled speech as a sufficient injury when it arises from a fear of enforcement that is not "imaginary or wholly speculative").

The easier question is the first half of that inquiry: whether the Pools have shown a likelihood that they will continue to engage in the protected activity. At least for Trent, that is the case.⁷ Trent has circulated petitions since at least 2008, runs a company devoted to circulating petitions, and says he wants to circulate petitions in Houston in future cycles. The 2019 anti-pay-to-play petition was not his first involvement with Houston petitions. Trent organized signature collections in support of the last referendum to reach the ballot, one seeking to undo the Houston Equal Rights Ordinance (HERO) that the City Council enacted in 2014. Trent's "past enthusiastic participation in the political process" lends credence to his stated desire to circulate future petitions. Justice , 771 F.3d at 291. Like the Justice plaintiffs whose demonstrated history of financial contributions to Mississippi ballot initiative campaigns gave them standing to challenge that state's disclosure requirements, id ., Trent's deep connections to the petition process means he has a concrete interest in this issue and is not just manufacturing a lawsuit.

The harder question is whether there is a sufficient threat of future enforcement of the qualified-voter requirement. This is where most attempts to challenge a zombie law in federal...