NO. 2017?83302 PATRICK LANCTON, .IOHN IN THE DISTRICT COURT OF FRANCO, LUKE MANION, BRIAN WILCOX, GABE DOMINGUEZ, and RYAN LEE, Pininri?s, v. HARRIS COUNTY, A ANNA RUSSELL, in her Official Capacity as City Secretary of the City of Houston, Embm?mtmimt??imf??wG-?t??im?m Defendant. JUDICIAL DISTRICT FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER CONDITIONALLY QANTING WRIT OF MANDAMUS The abovemcaptioned cause was called to trial on March 12, 2013. All Parties and. their attorneys appeared and announced ready. The case was tried to the Com without ajury. Based on the evidence at trial, the patties? briefing, and the Court?s determination of the credibility of the witnesses based in part on the Court?s observation of their demeanor and conduct while giving testimony, the Court makes the following Findings of Fact and Conclusions of Law in accordance with TEX. R. CIV. P. 296-299a and issues the Order stated at the end of this document: I 1. FINDINGS OF FACT 1. Respondent Anna Russell is the City Secretary for the City of Houston. She has held this of?ce for about 46 years. She currently supervises eight employees who assist her in perfonning her duties as City Secretary.1 2. On or about April 20, 2017, the City Secretary received a petition to amend the Charter of the City of Houston to include a provision concerning 401(k) plans (?the 401(k) 1 For the purposes of these Findings of Fact and Conclusions of Law, the Court will. refer to Ms. Russell by her 1 Petition?). 3. In July 2017, Petitioners Patrick ?Marty? Lancton, John Franco, Luke Manion, Brian Wilcox, Gabe Dominguez, and Ryan Lee signed a petition titled, ?Petition. for a City of Houston Charter Amendment to Require Parity in the Compensation. Provided to Houston. Firefighters Compared to Houston Police Of?cers" (?the Pay-Parity Petition?). 4. 1When reviewing and. counting valid signatures for ballot petitions, including petitions for charter amendments, the City Secretary and her staff follow a policy of reviewing one ballot petition at a time in the order in which ballot petitions are ?led. So, if she has received more than one ballot petition, she will complete work on the ?rst-?led petition. before she begins working on the second~?led petition. The City Secretary does not have her staff review more than one petition at a time even though she could assign some staff members to work on one petition while other staff members work on another petition. 5. Additionally, when reviewing and counting valid signatures for ballot petitions, including petitions for charter amendments, the City Secretary and her staff follow a policy of only reviewing ballot petitions and counting signatures in their spare time. In other words, the City Secretary and her staff do not devote any time to reviewing ballot petitions and. counting valid. signatures until they have completed all other pending duties and tasks of the City Secretary. 6. The City Secretary has made exceptions to these policies for ballot petitions that have a statutory deadline for certification. In the past, when she has received a ballot petition that was governed. by a. statutory deadline, the City Secretary moved that petition to the front of the list of ballot petitions, reprioritized her staff members? work, and even requested. overtime and additional. resources from the City of Houston to ensure that her of?cial title, ?the City Secretary.? 10. ll. 12. 13. 14. of?ce completed its duty to review the ballot petition, count valid signatures. and make the relevant certifications to City Council by the statutory deadline. Consistent with her standard policies of reviewing ballot petitions one at a time and only during spare time: the City Secretary began counting and verifying signatures on the 401(k) Petition in May 2017. As of March 12, 2013.. she and. her staff had not completed her work on the 401(k) Petition. As of March 12. 2018, the only work that the City Secretary and her staff have performed on the Pay-Parity Petition is to begin numbering signature pages. Numbering signature pages is not a material step in ful?lling the City Secretaryis duty to review and count valid petition signatures. The City Secretary has not sought authorization. for any member of her staff to work overtime to complete work on the Pay-Parity Petition. The City Secretary?s Office has not received authorisation for overtime work on anyr task since at least July l. 7, 2017. In executing her various duties and responsibilities as City Secretary. Ms. Russell prioritizes all other duties of her of?ce above reviewing and counting signatures on ballot petitions. She and her staff only perform their ballot-review and signature-counting duties when they have completed all of their other pending duties and tasks. The preponderance of the evidence shows that the City Secretary has the knowledge, abilityg and personnel to count and verify the number of valid signatures on a ballot petition and report to City Council within 30 days of receipt. The preponderance of the evidence shows that when motivated by a statutory deadline, the City Secretary and her staff can review a ballot petition and count valid signatures 15. 16. 17. 13. 19. 20. within 30 days of receipt. The preponderance of the evidence shows that when the City Secretary decides to make reviewing a ballot petition. and counting valid signatures a priority, she and her staff can review a ballot petition and count valid signatures within 30 days of receipt. The statutory deadline for the City Council to pass an ordinance placing the Pay-Parity Petition?s proposed charter amendment on the ballot for the November 7, 2017 uniform election was August 21, 2017. The promoters of the Pay-Parity Petition submitted it to the City Secretary on July 17, 2017?35 days before the August 21 deadline. The City Secretary did not take any af?nnative steps to count and verify the number of valid signatures on the Pay?Parity Petition before the August 21 deadline. Thus, the City Secretary did not report her determination of the number of valid signattu?es on the Pay- Parity Petition to City Council before the August 21, 2017 deadline, and the City Council did not pass an. ordinance placing the charter amendment proposed by the Pay-Parity Petition on the ballot for the November 7, 2017 election. May 5, 2013 is a uniform election date. For the Pay-Parity Petition?s proposed charter amendment to be submitted for voter approval at the May 5, 2018 election, the City Council. must have passed an ordinance ordering the election by February 16, 2013. The City Secretary did not take any affinnative steps to count and verify the ntunber of valid signatures on the Pay-Parity Petition before the February 16 deadline. Thus, the City Secretary did not report her determination. of the number of valid signatures on the Pay-Parity Petition to City Council before the February 16, 2018 deadline, and the City Council did not pass an ordinance ordering an election regarding the charter amendment 22. 23. 24. 25. 26. proposed by the Pay?Parity Petition on the May 5, 2013 election. As of the day of trial. the City Secretary had. not taken any material affirmative steps to review the Pay-Parity Petition and count and verify the number of valid signatures on that petition. As of the day of trial, 238 days had. passed. since the City Secretary received. the Pay- Parity Petition. Two deadlines for ordering an election on the Petition?s proposed. charter amendment have passed during that time. November 6. 2018 is a uniform election date. For the Pay?Parity Petition?s proposed charter amendment to be submitted for voter approval at the November 6, 2018 election. the City Council must pass an ordinance ordering the election by August 20, 2018. By following her current policies of (I) only counting one ballot petition at a time, and. (2) performing all other duties and tasks of her office before working on reviewing ballot petitions, the City Secretary has stretched. the process of reviewing the 401(k) Petition and. counting valid signatures on that petition for over 10 months, and there is little certainty as to when she will complete her work. on that petition. As a result, if the City Secretary continues to follow her current policy and does not begin. reviewing the Pay-Parity Petition until she completes her work on. the 401(k) Petition, she will not completeher review of the Pay?Parity Petition and her count of valid. signatures by the August 20, 2013 deadline for City Council to order an election. on. the proposed. Charter amendment on the November 6, 2018 uniform election. date. Likewise, if the City Secretary continues to follow her current policy and only has her staff work on the Pay-Parity Petition after completing all of their other work, she will not complete her review of the Pay-Parity Petition and her count of valid signatures by the 27. 28. 29. 30. August 20, 2018 deadline for City Council to order an election on the proposed. charter amendment on the November 6, 2013 uniform election date. Additionally, if the City Secretary continues to follow her current policies and does not begin reviewing the Pay-Parity Petition until she completes her work on the 401(k) Petition?and then only has her staff work on the Pay-Parity Petition after completing all. of their other work, she will not complete her review of the PaynParity Petition and her count of valid signatures by the August 20, 2013 deadline for City Council to order an election on the proposed charter amendment on the November 6, 2013 uniform election date. May 4, 2019 is a uniform election date. For the Pay-Parity Petition?s proposed. charter amendment to be submitted for voter approval at the May 4, 201.9 election, the City Council. must pass an ordinance ordering the election by February 15, 2019. As a result, if the City Secretary continues to follow her current policy and does not begin reviewing the Pay-Parity Petition until she completes her work on the 401(k) Petition, it is unlikely that she will complete her review of the Pay-Parity Petition and her count of valid signatures by the February 15, 2019 deadline for City Council to order an election on the proposed charter amendment on the May 4, 2019 uniform election date. Likewise, if the City Secretary continues to follow her current policy and only has her staff work on the Pay-Parity Petition after completing all of their other work, it is unlikely that she will complete her review of the Pay-Parity Petition and her count of valid signatures by the February 15, 201.9 deadline for City Council to order an election on the proposed. charter amendment on the May 4, 2019 uniform election date. 31. 32. 33. 34. Additionally, if the City Secretary continues to follow her current policies and does not begin reviewing the Pay?Parity Petition until she completes her work on the 401(k) Petition?and then only has her staff work on the Pay-Parity Petition after completing all (If their other work, it is unlikely that she will complete her review of the Pay-Parity Petition. and her count of valid signatures by the February 15, 2019 deadline for City Council to order an election. on the proposed charter amendment on the May 4, 2019 uniform election date. The next scheduled municipal general election is set for November 5, 2019. For the Pay? Parity Petition?s proposed charter amendment to be submitted for voter approval at the November 5, 2019 election, the City Council must pass an ordinance ordering the election by August 19, 2019. As a. result, if the City Secretary continues to follow her current policy and does not begin reviewing the Pay-Parity Petition until she completes her work on the 401(k) Petition, it is unlikely that she will complete her review of the Pay-Parity Petition and her count of valid signatures by the August 19, 2019 deadline for City Council to order an election on . the proposed chatter amendment on the November 5, 2019 municipal general election. date. I Likewise, if the City Secretary continues to follow her current policy and only has her staff work on the Pay-Parity Petition after completing all of their other work, it is unlikely that she will complete her review of the Pay-Parity Petition and. her count of valid. signatures by the August 19, 2019 deadline for City Council. to order an. election on the proposed charter amendment on the November 5, 201. 9 municipal general election date. 36. 37. Additionally, if the City Secretary continues to follow her current policies and does not begin reviewing the Pay-Parity Petition until she completes her work on the 401(k) Petition?and then only has her staff work on the Pay-Parity Petition after completing all of their other work, it is unlikely that she will complete. her review of the Pay-Parity Petition and her count of valid signatures by the August 19, 2019 deadline for City Council to order an election on the proposed charter amendment on the November 5, 2019 municipal general election date. Ballot petitions such as the charter-amendment petition at issue here are a means for citizens to assume the role of the legislative branch of a city. Failure to review such petitions and count signatures thwarts citizens" rights to exercise a governmental power reserved to them. Citizens? power to petition to amend a city charter is memorialiaed in the statutes of the State of Texas, and the ministerial duty to review and count signatures is imposed by state law. In light of these rights and statewide policies, the ministerial duty to review charternamendment petitions, count valid signatures, and certify the number of valid signatures to City Council has a higher priority than that accorded to it by the City Secretary in this matter. The City Secretary?s failure to take any steps towards reviewing the Pay-Parity Petition and counting valid signatures in the more than 238 days that have passed since she received the petition in July 2017 was not reasonable, nor was it in compliance with. her ministerial. duty. Considering the importance of Petitioners? interests in having their proposed charter amendment submitted for voter approval and the City Secretary?s demonstrated ability to count and verify signatures on ballot petitions within 30 days, it was unreasonable for the City Secretary to fail to review the Pay-Parity Petition, count 33. 39. 40. 42. the number of valid signatures on the petition, and report her findings to City Council before the August 21, 2017 deadline for City Council to order an election on November 7, 2017. Considering the importance of Petitioners" interests in having their proposed. charter amendment submitted for voter approval and the City Secretaryis demonstrated ability to count and verify signatures on ballot petitions within 30 days, it was unreasonable for the City Secretary to fail to review the Pay-Parity Petition, count the number of valid signatures on the petition, and report her ?ndings to City Council before the February 16, 2013 deadline for City Council. to order an election on May 5, 2013. Adhering to her current policies of 1) only counting one ballot petition at a time, and 2) performing all other duties. and tasks of her of?ce before reviewing ballot petitions is unreasonable, does not facilitate the performance of the ministerial duty to review ballot petitions and certify the number of valid signatures to City Council, and does not protect citizens? reserved power to legislate by referendum. The City Secretary failed to comply with her ministerial duty. The City Secretary continues to fail to comply with her ministerial duty. The City Secretary has not established by a preponderance of the evidence that she will comply with her ministerial duty in time for the August 20, 2018 deadline to order an election on the charter amendment to appear on the ballot for the November 6, 2018 uniform election. 43. 44. 45. The City Secretary has not established by a preponderance of the evidence that she will comply with her ministerial duty in time for the February 15, 2019 deadline to order an election on. the charter amendment to appear on the ballot for the May 4, 201.9 uniform election. The City Secretary has not established by a preponderance of the evidence that she will comply with her ministerial duty in time for the August 1.9, 2019 deadline to order an election. on the charter amendment to appear on the ballot for the November 5, 2019 municipal. general election. To the extent that any Conclusion of Law is more properly characterized as a Finding of Fact, it is ADOPTED as such. 11. ConoLnsrons or Law As the ?nder of fact, the undersigned is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Preston Reserve, LL. C. v. Compass Bank, 373 652, 657 (Tex. App?Houston [14th Dist] 2012, no pet.) (citing City of Keller v. Wilson, 168 802, 819 (Teri- 2005)); see also Centerpoint Houston Else, LLC v. 5833 Wesrheimer, LP, No. 2016 WL 3269979, at *4 (Tex. App?Houston [1.St Dist] June 14, 2016, no pet). Cf: TEX. R. CW. P. 226a, Pt. This Court ?is not bound by the testimony of an interested witness merely because it is uncontradicted.? Ex Parse Rosser, 899 8.W.2d 382, 336 (Tex. App??Houston Dist] 1995, no wit). ?No one who has imbibed anything of the spirit and genius of our free government will ever question. the peerless value and sacred inviolability of the elective franchise. It will be guarded. with sleepless 'vigiiance by all who appreciate the blessings of free institutions.? Arberry v. Beavers, 6 Test. 457, 470 (1851). 10 '10. ll. 12. ?Citizens who exercise their rights under initiative provisions act as and. ?become in fact the legislative branch of the municipal government.m Blunt erier, 997 259, 252 (Tex. 1999) (quoting Glass v. ems-ace; 645. 649 (Tex. 1951)). power of . . . referendum . . . is the exercise by the people of a power reserved to them? and this power should be protected." In re Wood??, 470 473,, 475 (Tea. 2015) (orig. proceeding; per cariam) (qttoting Taxpayers?" Ass ?n v. City of Houston, 105 s.w.sd 555, 657 (Tex. 1937)). This Court has the authority to issue writs of mandamus. TEX. Gov?T CODE 24.011. writ of mandamus is appropriate to compel a public of?cial to perform. a ministerial act.? In re Roof, 130 414, 415-16 (Tex. App?Houston [14th Dist] 2004, orig. proceeding). ?[C]ity of?cials must their ministerial duties.? In re Wood??, 470 at 475. ?In connection with. the holding of an election, the writ may issue to compel a duty imposed. by law even if the one responsible for performing the duty is not a public official.? In re Roof; 130 at 416.- ?An act is ministerial when the law clearly spells out the duty to be performed by the of?cial with sufficient certainty that nothing is left to the exercise of discretion.? Id. The (301111: takes judicial notice of the provisions of the Charter of the City of Houston (?City Charter?) and the Ordinances of the City of Houston. The City Charter created the of?ce and. department of City Secretary. HOUSTON, TEL I CHARTER art. IV, sass. ll l. 3. The City Chatter assigns the following duties to the City Secretary: EL 13. Keep. record, and. preserve the minutes of thelCity Council,2 Maintain custody of the papers and records of City Council proceedings} Make certificates of City Couneil proceedings;l Endorse the date and hour of receipt of all. official documents and communications the City Secretary receives;5 Record all ordinances and keep a record book ofthem,? Issue certi?cates under the Texas Alcoholic Beverage Code and charge and collect fees for such certificates,7 Receive petitions for initiatives and referenda,8 When the City Secretary receives a petition for initiative or referenda, certify to city council the total vote cast in the preceding mayoral election and the number of valid signatures on the petition,"l and perform all things and acts usually done or necessary to be performed by secretaries or clerks of cities in connection with the business thereoffm and and perform such other duties, acts[,] and things as may he required of [her] by the mayor or city council.?I 1 2 Houston, Tex, CHARTER art. IV, ?2-57. 31o. 4 In. 510. a 2?59. In. 2-70. 7 ID. 2-72. 3m. art. 9 Io. 10 To. art. W, 2?67. 1' In. 1.2 14. The Texas Election Code assigns certain duties to the City Secretary as well, including to: a. Serve as the early-voting clerk for city elections,12 and b. Prepare the of?cial ballot for a city election. 13 15. Under Section 9.004(a) of the Local Govemrnent Code, the City Council ?shall submit a proposed charter amendment to the voters for their approval at an election.? if the amendment ?is supported by a petition? signed by a suf?cient ?number of quali?ed voters." Tex. Loc. Gov'r CODE. see also Elam v. Loafer, 997 259, 262 (Tex. 1999) (?When the requisite number of quali?ed citizens sign such a petition, the municipal authority must put the measure to a popular vote?). 16. ?Election results are often in?uenced by unique and complex factors existing at a particular point in time, and those who petition for an election may have strong reasons for desiring a particular election date. The Local Government Code implicitly recognizes this interest by requiring charter amendment elections to be set Slum, 997 at 264. A proposed. charter amendment must be submitted by the City Council to the voters ?on the ?rst authorized uniform election date prescribed by the Election Code? or on the ?earlier of the date of the next municipal general election or presidential election.? ID. The statute also requires the ?election date? to ?allow suf?cient time to comply with other requirements of law and must occur on or after the date the ordinance is adopted.? ID. '2 TEX. ELEC. Coos 33.005. ?3 In. 52.002. 13 13. 19. 20. 21. 22. 23. 24. The Election. Code provides that the ?authorized-uniform election dates? are ?the ?rst Saturday in May? or ?the first Tuesday after the ?rst Monday in November.? CODE An election held on a uniform date ?shall be ordered. not later than the 73th day before election day.? ID. Election Code recognizes that the responsibility for verifying petition signatures typically rests with the city secretary.? In re Reef, 130 414, 416 (Tex. App.? I-louston [14th Dist] 2004, orig. proceeding) (citing TEX. ELEC. CODE 277.003). ?[W]hen a petition for a proposed charter amendment is presented, the City Secretary has a ministerial duty to verify that a suf?cient number of quali?ed yoters signed the petition.? In re Reg)?, 130 at 418. The ?ling of a. charternarnendment petition triggers this duty. In. re Wood??, 470 473, 476 (Test. 2015) (orig. proceeding; per cerium). The duties imposed by Section 9.004 of the Election Code are 'not discretionary. In re Rec]; 130 at 418. .To protect the Petitioners? right to a prompt election,? a ?reasonable" time to count signatures under these circumstances is a period that will allow the City Council. to decide to submit the proposed charter amendment to the voters on the ?first authorized unit-"opp, election date.? While there is no statutory deadline by which the City Secretary must count and verify signatures on a charter-amendment petition, she must neyertheless ful?ll her ministerial duty within a ?reasonable? time. Cathay dt Carrel! r. email, 45 956, 956 (Tex. 1932);. see also Arberry v. Beavers, 6 Test. 457, 472 (1351). See Hum, 997 at 265. 14 25. 26. 27. 23. 29. 30. TWhen city of?cials refuse to perform their ministerial duties and there is no adequate remedy by appeal, a court may issue a writ of mandamus to compel the city officials to perform their ministerial duties. In re Wood?ll, 470 at 475. When. city of?cials improperly refuse to act and when continued delay?including the time for appellate court review to conclude?will prevent voting on a charter amendment for an extended period of time, mandamus is a well?recognized and appropriate remedy. See, rag, id. at 430?31. I Whether the City Council will choose to set an election on any speci?c date is not a question before the Court; the only question is whether the City Secretary is in breach of a ministerial duty and thereby blocking the Council from making its decision. The City Secretary?s continuing failure to count signattufes and verify the suf?ciency of the PayuParity Petition constitutes a continuing failure to fulfill her ministerial. duty. The City Secretary has been and remains in default of her ministerial duty because she has not veri?ed the sufficiency of the Petition. As the Supreme Court said in In re Wood?ll, ?[t]he legislative power reserved to the people of Houston is not being honored.? Id. at 431. In such circumstances, mandamus is appropriate, ?lest the actions[?or as in this case, inaction?]of city of?cials ?thwart[] the will. of the public.? Id. (quoting Garrison v. City Councii, 610 744, 747 (Tex. . 1930) (orig. proceeding)). Plaintiffs are entitled to mandamus relief compelling Anna Russell in her capacity as City Secretary to begin verifying and counting valid signatures on. the Pay?Parity Petition. In re Roof, 130 414, 413?19 (Tea. App?"Houston [14?1" Dist] 2004, orig. proceeding) (holding that petitioners were entitled to mandamus relief compelling the 15 Galveston City Secretary to certify a charter~arnendn1ent petition to the governing body of the City of Galveston). I 31. To the extent that any Finding of Fact is more properly characterised'as a Conclusion of Law, it is ADOPTED as such. IlLOanan CDNDITIONALLY GRANTING A WRIT oF MANDAMUS Accordingly, the Court conditionally grants Petitioners? Amended Petition for Writ of Mandamus and directs Anna Russell, the City Secretary of the City of Houston, to forthwith ?il?ll her ministerial duty to review the PaymParity Petition, verify and count the valid signatures, and report her findings to the City Council of the City of Houston. The Court is eon?dent that Anna Russell will take action to comply, The Court will issue the writ if Anna Russell does not comply with her ministerial duty by 5:00 pan. on April 27, 2013. SIGNED at Houston, Texas this 20?? day of March, 2018. GM Hon. Dan Hinde Judge, 269?? Judicial District Court 15