Texas Supreme Court Grants Mandamus in Houston LGBT Ordinance Case

July 24th, 2015

The Houston Charter provides a very unique form of direct democracy.  If the City Council passes an ordinance, Houstonians may submit a referendum petition supporting its repeal. If the referendum is signed by the requisite number of voters, the City Secretary must certify those results. After the City Secretary certifies the results, the City Council must either repeal the ordinance, or place a repeal vote on the ballot in the following election. Through this mechanism, Houstonian voters are able to repeal laws passed by the City Council.

Last year the Houston City Council enacted the Houston Equal Rights Ordinance (“HERO”) which prohibits certain forms of discrimination against LGBT people. This Ordinance proved to be controversial, and many citizens mobilized to petition for its repeal. What happened next gets complicated.

The City Secretary determined that the petitioners had enough signatures, but the City Attorney (who is appointed by the mayor) conducted an independent review, and found that a majority of the signatures were void, and could not be counted. The leaders of the referendum movement then sought a petition in court to declare that enough signatures were collected, and the City Council must either repeal the ordinance, or place it on the November 2014 ballot. During this process, you may recall that the City (represented by Sussman Godfrey) sent subpoenas to several pastors, asking them for copies of their sermons. (Cooler heads prevailed, and after a motion to quash by ADF, those subpoenas were withdrawn). Also, the signatures of 50,000 people who signed the petition were posted online.

The trial court did not provide the referendum leaders with the relief they sought, and the court of appeals could not resolve the case in time for the November 2015 ballot. So the referendum leaders sought mandamus from the Texas Supreme Court. Today, without oral argument, the Court issued a Per Curiam decision granting mandamus, and ordered the city council to either repeal the ordinance, or put it on the ballot.

Despite the controversial nature of the case, the analysis was fairly routine.

First, the court held, that according to the law, only the City Secretary, not the City Attorney, has any role in certifying if the signatures are valid.

The Charter requires the City Secretary to “certify” her findings, and the only findings she expressly certified were her own.7 The City Attorney may, no doubt, give legal advice to the City Secretary, but he cannot assume her duties. Though the City Secretary’s report mentions the City Attorney’s findings, the City Secretary did not adopt the City Attorney’s findings as her own, review the substance of his findings herself, or certify the inadequacies to the City Council.

Second, once the City Secretary certifies the signatures are sufficient (as she did in this case), the City Council has a “ministerial” role of repealing the ordinance, or placing the issue on the ballot. There is no discretion.

Once the City Council received the City Secretary’s certification, it had a ministerial duty to act. According to the Charter, following the City Secretary’s certification, “the Council shall immediately reconsider such ordinance or resolution and, if it does not entirely repeal the same, shall submit it to popular vote at the next city general election.” Houston, Tex., Charter, art. VII-b, § 3. The Charter gives the City Secretary, not the City Council, the discretion to evaluate the petition. Simply put, the City Secretary’s certification started the process outlined in the Charter for reconsidering ordinances following a referendum petition, invoking the Council’s ministerial duty to carry out its obligations.8

Third, even if the City Council suspects that some of the signatures are invalid, they still have “no discretion to re-evaluate the petition.”

But what of the City Council’s complaints of forgery, false oaths, and the like? Although these issues were addressed at trial and are now pending before the court of appeals, we note that the City Secretary never claimed the referendum petition was plagued by forgery or perjury. Yet the City Council decided, of its own accord, not to act, disregarding the City Secretary’s certification that the petition had enough signatures. The Charter, however, gives the City Council no discretion to re- evaluate the petition; instead, it requires “immediate[]” action by the City Council following the City Secretary’s certification. To give authority to the “council to make the ultimate determination of sufficiency of the petition would commit the decision to a body that could not be considered impartial.” Howard, 589 S.W.2d at 750.9

Fourth, the only option once the City Secretary has certified the signatures is to repeal the ordinance, or put it on the ballot.

If the City Council cannot independently evaluate the petition as a predicate to its ministerial duty to act, then it may not decide for itself that the petition is invalid and force the petition organizers to sue. Faced with the City Secretary’s certification, the City Council had no discretion but to repeal the ordinance or proceed with the election process. If the City Council believed the City Secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the Charter and thereafter seek any affirmative relief to which it might be entitled. But the City Council did not do so. Instead, it refused to fulfill its ministerial duty, forcing the petition organizers to file suit.

In conclusion, the Court suspended the enforcement of the ordinance, and ordered the City Council to follow through on their ministerial duty.

The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance by August 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.

This issue will now be placed on the ballot for November 2015, as it is extremely unlikely the City Council will repeal a law they recently enacted.