1/2/2015 2:35:50 PM

Chris Daniel - District Clerk Harris County

Envelope No. 3637973
By: KATINA WILLIAMS
Filed: 1/2/2015 2:35:50 PM

Case No. 2014-44974

v.
Annise D. Parker, Mayor; Anna Russell,
City Secretary; and City of Houston
Defendants.

In the District Court of

Harris County, Texas

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Jared Woodfill; Steven F. Hotze;

F.N. Williams, Sr.; and Max Miller
Plaintiffs,

152nd Judicial District Court

DEFENDANTS MOTION FOR BENCH TRIAL

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Subject to and without waiving the City of Houstons jurisdictional challenge in its Plea

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to the Jurisdiction, the City of Houston, Annise D. Parker, Mayor, and Anna Russell, City

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Secretary (Defendants) move for this Court to hold a bench trial on the merits of this action.

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Because the subject matter of this litigation concerns an important step in the referendum

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election process, this lawsuit must be considered an election contest under Texas law, even

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though Plaintiffs have chosen not to label it as such. As the right to a trial by jury does not

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extend to election contests, this Court should hold a bench trial to resolve all disputed issues in

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this matter.

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Factual and Procedural Background

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Plaintiffs Jared Woodfill, F.N. Williams, Sr., and Max Miller filed this action on August

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5, 2014, challenging the City of Houstons determination that Plaintiffs HERO referendum
petition did not contain enough valid signatures to trigger the Houston City Charters referendum
election process. Orig. Pet; First Amend. Orig. Pet. Plaintiffs original petition did not contain a
jury demand. Instead, Plaintiffs filed a separate jury demand on August 28, 2014.
Plaintiffs claim to have brought this lawsuit to force the Defendants to obey the City
Charter and the consequences which flow therefrom. First Amend. Pet. at 10. To that end, they
have requested declaratory and mandamus relief to force City Secretary Anna Russell to

complete her ministerial and mandatory duty to review the ERO Referendum Petition upon
filing, and to compel Mayor Annise Parker to fulfill her ministerial and unconditional
obligation[ ] to accept both the Petition and the consequences flowing from there. First Amend.
Pet. at 7-8 & n.2. If Plaintiffs prevail, those consequences would almost certainly include a

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referendum election on HERO held in November 2015.

On November 26, 2014, Defendants filed a motion for partial summary judgment, in
which they sought legal rulings with respect to the threshold legal requirements necessary for

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petition pages and signatures to be valid. To the extent that disputed issues remain after the

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resolution of that summary judgment motion, those issues should be resolved by this Court.

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Because Plaintiffs lawsuit asserts that an election should be held, involves the election process,

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and invokes the Texas Election Code, it is in substance an election contest under the Texas

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Election Code. Because the right to a jury trial does not extend to election contests, Defendants

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now move for this Court to hold a bench trial to resolve any remaining disputed issues.
Argument

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At issue in this lawsuit is whether the Plaintiffs have satisfied the first step in the City of

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Houstons referendum election processthe submission of a referendum petition with a

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sufficient number of valid signatures. Because the substance of this litigation concerns a

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component of the referendum election process, this action must be considered an election
contest under Texas law, even though Plaintiffs have chosen to label it as one seeking
declaratory and mandamus relief. As the constitutional right to a jury trial does not extend to
election contests, this Court should hold a bench trial to resolve all disputed issues.
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Plaintiffs lawsuit is an election contest.

Chapter 231 of the Texas Election Code, entitled Contest in District Court Generally,
applies to any election contest of which the district court has jurisdiction. Tex. Elec. Code
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 231.001. The Election Code does not define election contest, but the Texas Supreme Court
has explained that the term encompasses both challenges to events on election day itself as well
as disputes involving facts which existed before an election. Dickson v. Strickland, 265 S.W.
1012, 1018 (Tex. 1924). This includes, among other things, issues regarding the preparation of

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the polls or polling places, the manner in which the ballots may have been prepared, as well as
various other things which of necessity precede an election. Id. Thus, an election . . . is not a
single event, but a process, and that entire process is subject to contest. Id. (emphasis in

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original).

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Consistent with Dickson, the Fourteenth Court of Appeals has explained that an election

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contest is meant to include any type of suit in which the validity of an election or any part of the

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elective process is made the subject matter of the litigation. Cohen v. Clear Lake City Water

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Auth., 687 S.W.2d 406, 408 (Tex. App.Houston [14th Dist.] 1985, no writ) (emphasis added)

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(citing Dickson). An election contest therefore includes a challenge to any part of the entire

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process by which amendments to the municipal code are voted on, enacted, and made

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effective. In re Robinson, 175 S.W.3d 824, 827 (Tex. App.Houston [1st Dist.] 2005, orig.

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proceeding)) (quoting Dickson).1

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Relying on the Supreme Courts decision in Dickson, and its own decision in Cohen, the

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Fourteenth Court of Appeals in Tatum v. Collier held that the trial court had jurisdiction under

The Supreme Courts broad definition of election contest is consistent with other provisions
of the Election Code. For example, the provisions of the Election Code that govern campaign
contributions apply not only to the election itself, but also to the circulation and submission of a
petition to determine whether a question or proposal is required to be submitted in an election.
See Tex. Elec. Code 251.001(19) (defining measure); id. 253.096 (governing contributions
in election on measures); see also Cook v. Tom Brown Ministries, 385 S.W.3d 592, 602 (Tex.
App.El Paso 2012, pet. denied) ([A]n election to recall an elected officer of the City of El
Paso, including the circulation and submission of a recall petition, constitutes a measure under
the Election Code.).
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the Election Code to decide whether a referendum petition contained a sufficient number of valid
signatures to place a disincorporation measure on the ballot in an election. No. C14-87-00870CV, 1989 WL 111365, at **1, 3 (Tex. App.Houston [14th Dist.] Sept. 28, 1989, no writ).
Recognizing that an election contest includes any part of the elective process, the court

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concluded that the trial court had jurisdiction over the validity of the citizens [referendum]
petition as it was an issue that affected the very existence of the election. Id. at *3; see also Tex.
Jur. Elections 390 ([T]he Election Code should not be read as restricting a courts inquiry to

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matters occurring only on election day; thus . . . the trial court will have jurisdiction over the

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validity of a citizens petition as it is an issue that affects the very existence of an election.).

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In substance, Plaintiffs lawsuit raises the same issues addressed in Tatum. It must

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therefore be considered an election contest. Just as in Tatum, Plaintiffs challenge the

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determination that the HERO referendum petition did not contain a sufficient number of valid

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signatures to trigger the election process. The validity of the HERO referendum petition is an

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issue that affect[s] the very existence of a referendum election, Tatum, 1989 WL 111365, at

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*3, as HERO may be placed on the ballot only if the challengers first present a referendum

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petition in the form and manner required by the City Charter with a sufficient number of valid

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signatures. Houston City Charter Art. VII-b, 3. The submission of a valid referendum petition

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is as much a part of the elective process as any other step in the City Charters referendum
procedures. As Plaintiffs acknowledge, the only question in dispute in this case is whether the
HERO referendum petition has the necessary number of valid signatures to place HERO on the
ballot for the Houston voters to decide. First Amend. Orig. Pet. at 12.
The conclusion that Plaintiffs lawsuit is an election contest is further confirmed by the
fact that the Texas Election Code governs the merits of this dispute. Section 277.002 of the

Election Code establishes the requirements affecting the validity of individual petition
signatures, many of which are now in dispute. In addition, Section 277.004 requires that the
petition pages comply with the additional requirements set forth in the Houston City Charter,
including the circulators affidavits requirements. Tex. Elec. Code 277.002, 277.004.2

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Whether the HERO referendum petition contains a sufficient number of valid signatures will
therefore be determined by the Election Code, which incorporates the City Charters
requirements.

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Plaintiffs lawsuit is in substance an election contest, and this Court should treat it as

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such. Plaintiffs strategic behavior in labeling their lawsuit as one seeking declaratory and

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mandamus relief cannot obscure the fact that the substance of Plaintiffs claims is an election

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contest. Under Texas law, the substance of a claim, not its label, controls. Jones v. Landrys

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Seafood Inn & Oyster Bar-Galveston, Inc., 328 S.W.3d 909, 913 (Tex. App.Houston [14th

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Dist.] 2010, no pet.); see Nguyen v. Kim, 3 S.W.3d 146, 150 (Tex. App.Houston [14th Dist.]

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1999, no pet.) ([I]n determining the nature of a pleading, we look to the substance of the plea

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for relief, not merely the form of title given to it.); Tex. R. Civ. P. 71.

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Plaintiffs lawsuit is similar to another case in which lead plaintiff Jared Woodfill was

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involved (albeit as a defendant). In Risner v. Harris County Republican Party, 444 S.W.3d 327

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(Tex. App.Houston [1st Dist.] 2014, no pet.), Judge George Risner filed suit against the Harris
County Republican Party, asking the court to enjoin the Republican party from certifying a
Republican candidates name for a place on the primary ballot. The claim by Judge Risner is
similar to the Defendants assertions herethat the candidates petition did not meet the
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Section 277.004 incorporates [a]ny requirements for the validity or verification of petition
signatures in addition to those prescribed by this chapter that are prescribed by a home-rule city
charter provision that was in effect as of September 1, 1985. The Houston City Charter,
including Sections VII-a and VII-b, was enacted in 1914.
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applicable legal requirements. The suit was brought as an election contest, specifically under
Section 273.081 of the Election Code, which provides: [a] person who is being harmed or is in
danger of being harmed by a violation or threatened violation of this code is entitled to
appropriate injunctive relief to prevent the violation from continuing or occurring. Id. at 337,

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citing Tex. Elec. Code 273.081.

Plaintiffs here are alleging (incorrectly) that their petition has met all applicable
requirements, and that Defendants actions are in violation of the City Charter. Although

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Plaintiffs avoid citing to the Election Code, their claim involves alleged harm to them from what

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they seek to portray as a violation of the City Charters election rules, and the Election Code

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incorporates all City Charter requirements when determining the validity of petition signatures.

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Because Plaintiffs have brought an election contest, they are not entitled to a
trial by jury.

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much like Risner, and no jury is appropriate.

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Tex. Elec. Code 277.001, .002, .004. Pleading stratagems aside, this is an election contest,

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Because this lawsuit must be considered an election contest, Plaintiffs are not entitled to a

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trial by jury to resolve any disputed issues of fact. Unlike other civil litigation, election contests

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are not considered causes included within the Texas Constitutions guarantee of a right to a

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jury trial. See Tex. Const. art. 5, 10 (In the trial of all causes in the District Courts, the

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plaintiff or defendant shall . . . have the right of trial by jury . . . .). Instead, such actions are
proceedings specially created and controlled by the statutes which allow them. Hammond v.
Ashe, 131 S.W. 539, 539 (Tex. 1910) (orig. proceeding). For that reason, [t]he [constitutional]
guaranty . . . of the right of trial by jury does not apply to election contests. Id.; see also Halsell
v. Texas Water Commn, 380 S.W.2d 1, 16 (Tex. Civ. App.Austin 1964, writ refd n.r.e.)
([T]he right of trial by jury as guaranteed by the Constitution of Texas is limited to the right as

it existed at common law, or as provided by statutes, in effect when our Constitution was adopted
in 1876.) (citing Hammond).
Consistent with this limitation on the constitutional right to a jury, Section 231.005 of the
Election Code provides that [t]he district judge shall decide issues of fact in an election contest

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without a jury. Tex. Elec. Code 231.005. All previous election disputes in this state have been
resolved by a judge alone, without a jury. See, e.g., Woods v. Legg, 363 S.W.3d 710 (Tex.
App.Houston [1st Dist.] 2011, no pet.); Sepulveda v. Medrano, 323 S.W.3d 620 (Tex. App.

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Dallas 2010, no pet.) see also Frias v. Bd. of Trs. of Ector Cnty. Indep. Sch. Dist., 584 S.W.2d

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944, 949 (Tex. Civ. App.El Paso 1979, no writ) (The courts of this State have consistently

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held that in an election contest the contestants are not entitled to a trial by jury.).

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been tried to a jury in the State of Texas.

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Despite extensive research, Defendants have not found a single election dispute that has

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This case should be no different. Regardless of how Plaintiffs have labeled their claims,

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they have in substance brought an election contest pursuant to the Texas Election Code, and are

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not entitled to a jury trial to resolve any remaining disputed issues.

Conclusion

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Defendants respectfully request that this Court hold a bench trial in this action.

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Defendants respectfully request that the Court hold a bench trial to resolve all disputed
issues in this matter.

Respectfully submitted,

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By: /s/ Geoffrey Harrison

SUSMAN GODFREY L.L.P.
Geoffrey L. Harrison
gharrison@susmangodfrey.com
State Bar No. 00785947
Alex Kaplan
akaplan@susmangodfrey.com
State Bar No. 24046185
Kristen Schlemmer
kschlemmer@susmangodfrey.com
State Bar No. 24075029
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Facsimile: (713) 654-6666

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CITY OF HOUSTON LEGAL DEPARTMENT

David Feldman
David.Feldman@houstontx.gov
State Bar No. 06886700
Lynette Fons
Lynette.Fons@houstontx.gov
State Bar No. 13268100
Judith L. Ramsey
Judith.Ramsey@houstontx.gov
State Bar No. 16519550
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone: (832) 393-6412
Facsimile: (832) 393-6259
Attorneys for Annise D. Parker, Mayor

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Of Counsel:

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FULBRIGHT & JAWORSKI LLP

Edward B. Teddy Adams, Jr.
Teddy.Adams@nortonrosefulbright.com
State Bar No. 00790200
Andrew Price
Andrew.Price@nortonrosefulbright.com
State Bar No. 24002791
Seth Isgur
Seth.Isgur@nortonrosefulbright.com
State Bar No. 24054498

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HAYNES AND BOONE, LLP

Lynne Liberato
Lynne.Liberato@haynesboone.com
State Bar No. 00000075
Kent Rutter
Kent.Rutter@haynesboone.com
State Bar No. 00797364
William Feldman
William.Feldman@haynesboone.com
State Bar No. 24081715
Katie Dolan-Galaviz
Katie.Dolan-Galaviz@haynesboone.com
State Bar No. 24069620
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
Appellate Attorneys for All Defendants

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Geraldine W. Young
Geraldine.Young@nortonrosefulbright.com
State Bar No. 24084134
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone: (713) 651-5151
Facsimile: (713) 651-5246
Attorneys for Anna Russell, City Secretary

Certificate of Conference
I certify that I conferred with Andy Taylor, counsel for Plaintiffs, who stated that he is
opposed to the relief requested.

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/s/ Lynne Liberato

Lynne Liberato

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Certificate of Service
I certify that on January 2, 2015, a true and correct copy of this document properly was
served on the following counsel of record in accordance with the TRCP via electronic e-filing
and email by agreement with the parties.

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/s/ Lynne Liberato

Lynne Liberato

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