Pool v. City of Hous.

• Decision Date: 22 February 2022
• Docket Number: Civil Action No. H-19-2236
• Citation: 586 F.Supp.3d 603
• Parties: Joe Richard "Trey" POOL, III, et al., Plaintiffs, v. CITY OF HOUSTON, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

586 F.Supp.3d 603

Joe Richard "Trey" POOL, III, et al., Plaintiffs,
v.
CITY OF HOUSTON, et al., Defendants.

Civil Action No. H-19-2236

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

Signed February 22, 2022

586 F.Supp.3d 606

Jerad Wayne Najvar, Austin Michael Bryan Whatley, Najvar Law Firm PLLC, Houston, TX, Paul A. Rossi, Impg Advocates, Inc., Mountville, PA, for Plaintiffs.

Collyn Ann Peddie, City of Houston Legal Dept., Lori Jane Yount, Suzanne R. Chauvin, City of Houston, Houston, TX, for Defendants City of Houston, Anna Russell.

Lori Jane Yount, Suzanne R. Chauvin, City of Houston, Houston, TX, for Defendant Pat J. Daniel.

MEMORANDUM AND OPINION

Lee H. Rosenthal, Chief United States District Judge

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Plaintiffs Trent Pool, Trey Pool, and Paul Jacob want to circulate petitions to place initiatives and referenda on City of Houston election ballots. The Houston City Charter allows only "qualified voters" to sign and circulate petitions. See HOUSTON , TEX. , CITY CHARTER , art. VII-b, §§ 2(a) (initiative), 3 (referendum); art VII-a, § 3. A "qualified voter" must be both a resident of Houston and registered to vote in Houston. The plaintiffs are neither. Under the Charter, they cannot circulate petitions in Houston.

The plaintiffs argue that the Houston Charter unconstitutionally prohibits them from circulating petitions, with no compelling reason to do so. The plaintiffs rely on Buckley v. Am. Constitutional Law Found., Inc. , 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), which held unconstitutional a Colorado law requiring petition circulators to be registered voters in Colorado. The Court held that the registration requirement burdened "political speech," in violation of the First Amendment. The plaintiffs seek an injunction and a declaratory judgment that the City of Houston has, through its Charter, violated the First and Fourteenth Amendments by requiring circulators to be qualified voters, even though the Supreme Court held a similar law unconstitutional 20 years ago.

The defendants—the City of Houston and the Secretary of the City of Houston (together the "City")—agree with the plaintiffs that the qualified-voter requirement is unconstitutional. In response to this lawsuit, the City Council enacted Ordinance 2020-1033. That Ordinance states that "the City of Houston accepts petitions circulated by individuals who are not registered to vote in the City, provided the circulators complete the ‘Affidavit for Circulators Who Are Not Registered Voters of the City of Houston.’ " (Docket Entry No. 95, at 14). The Affidavit form states that an individual "who is not registered to vote in the City of Houston" may circulate petitions in Houston, provided that he or she: (1) agrees to "subject [him or herself] to the jurisdiction of the Courts of Texas in connection with any allegation of fraud or misrepresentation associated with the circulation of any initiative, referendum, or recall petition or the collection of signatures for any initiative ... in the City of Houston"; (2) represents that he or she has "never been convicted of the crimes of fraud or misrepresentation"; and (3) agrees to "make [himself or herself] available in person in Houston, at [his or her] own expense, within 72 hours of a request by the City of Houston concerning matters encompassed by [the] affidavit." (Id. , at 15).

The City argues that the plaintiffs’ claims for declaratory and injunctive relief are moot because the newly enacted Ordinance ensures that the City will not enforce the allegedly unconstitutional Charter provisions. The plaintiffs disagree. They argue that the City Council did not have the authority to enact an ordinance

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that conflicts with the City's Charter, and that an invalid ordinance does not moot their claims. The plaintiffs also argue that—even if the Ordinance is valid—the Ordinance's requirements for nonregistered voters to appear in person within 72 hours of a City request imposes an unconstitutional burden on the plaintiffs’ ability to circulate petitions. The plaintiffs also dispute the validity of the Ordinance provision that requires them to swear that they have never been convicted of crimes of fraud or misrepresentation. The plaintiffs also seek nominal damages, and one plaintiff, Liberty Initiative Fund—an organization that helps to circulate petitions—seeks compensatory damages.

The City of Houston moved to dismiss the plaintiffs’ second amended complaint. (Docket Entries Nos. 65, 68). The plaintiffs responded and moved for summary judgment on their claims for declaratory and injunctive relief. (Docket Entries Nos. 76, 85). Based on the motions, responses, and replies, the record, and the applicable case law, the City's motion to dismiss is granted in part and denied in part, and the plaintiffs’ motion for summary judgment is granted in part and denied in part.

The court holds as follows:

• The plaintiffs’ claims for declaratory and injunctive relief are not moot, because the City has not met its heavy burden of demonstrating that there is no reasonable possibility that the City will enforce the qualified-voter Charter provisions in the future.

• The plaintiffs have not demonstrated a need for injunctive relief, because there is no immediate threat that the City will enforce the Charter provisions against them. Instead, this court grants declaratory relief that the challenged Charter provisions are unconstitutional. This declaration will give the City an opportunity to enact or revise its current Ordinance, if it chooses.

• The plaintiffs’ state-law claim that the City Council violated the Texas Local Government Code by enacting Ordinance 2020-1033 is dismissed for lack of Article III standing.

• The plaintiffs’ constitutional challenges to Ordinance 2020-1033 are dismissed, without prejudice. The City must inform the court and the plaintiffs if it intends to amend or enact a new ordinance in light of this opinion, by no later than April 18, 2022 . The plaintiffs may amend their complaint with 21 days of the City's enactment of a new ordinance, if any, to raise any claims related to that ordinance.

• The plaintiffs’ claim for nominal damages is dismissed, because the plaintiffs have not plausibly alleged that their speech was chilled by the unconstitutional Charter provisions.

• And finally, Liberty Initiative Fund's claim for compensatory damages is dismissed, because the alleged damages are too speculative and attenuated from the City's alleged wrongful conduct.

The reasons are set out below.

I. Background

Under Houston's City Charter, circulators must submit a petition using a form that requires them to "attest by notarized signature that they are ‘one of the [petition's] signers.’ " Pool v. City of Houston , 978 F.3d 307, 309–10 (5th Cir. 2020) (quoting HOUSTON , TEX. , CITY CHARTER , art. VII-a, § 3). The Charter requires that "[a]ll [petition] signers must be ‘qualified voters of the City of Houston.’ " Id. at 310. "To be a ‘qualified voter,’ " the signer must "reside

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in Houston and be registered to vote there." Id. at 310. Trent and Trey Pool—residents of Austin, Texas and California, respectively—neither reside nor are registered to vote in Houston. Under the Charter's terms, they cannot circulate petitions in Houston.

In June 2019, the Pools and Accelevate2020—Trent Pool's company that hires professional circulators—filed this lawsuit against the City of Houston and its Secretary, seeking a temporary restraining order and a preliminary injunction preventing the City from enforcing the relevant Charter provisions so that they could collect signatures for a proposed "anti-pay-to-play" ordinance that they hoped to place on the 2019 Houston City ballot. They also sought a permanent injunction and a declaratory judgment that the Charter is unconstitutional because the qualified-voter requirement for circulators violated their First and Fourteenth Amendment rights. (Docket Entry No. 7, at 3).

The defendants, referred to together as the "City," conceded that the voter-registration requirement was unconstitutional. (Docket Entry No. 15, at 13). The district court granted a temporary injunction, allowing the Pools to circulate the "anti-pay-to-play" petition through the petition submission deadline of July 9, 2019, and enjoining the City of Houston and the Secretary from enforcing the qualified-voter requirements for "the petition to be circulated ... by [the Pools], Accelevate2020, and any circulators they hire, and from rejecting signatures on the petition because the circulator has not signed the affidavit required by the City Charter attesting to residency and voter registration." (Id. , at 18).

The court order noted that "[u]nder the City of Houston Charter, signatures for an initiative or referendum must be collected within a period of thirty days." (Id. , at 9). In August 2019, after the July 9, 2019, deadline to collect signatures had passed, the district judge then presiding over the case on its own dismissed the Pools’ claims and closed the case, because "[a]t the [TRO] motion hearing, the parties agreed that Plaintiffs’ claims would be moot at the expiration of the circulation period. The petition circulation period expired on July 9, 2019." (Docket Entry No. 20). In a motion for reconsideration, the Pools argued that the district judge erred in dismissing the case in its entirety, because they "continued to seek future relief, including a permanent injunction.... But the court ... concluded that there was no longer a live controversy." Pool , 978 F.3d at 312 ; (see also Docket Entries Nos. 26, 33). The Pools and Accelevate2020 appealed the dismissal.

In the time between the district judge's dismissal and the appeal, the City took steps to "disavow" the Charter's qualified-voter requirements for petition circulators. The City lacked the power to unilaterally amend its Charter to remove the offending provisions, because the Charter can be amended only...