NDO petition fight heads to Texas Supreme Court

The Houston Chronicle reports that opponents of the local non-discrimination ordinance passed by the Houston City Council have taken their case to the Texas Supreme Court. Specifically, they are seeking an emergency order to force the issue onto this November’s ballot, following a contentious referendum petition effort.

As I recently explained, a controversy has erupted over the NDO –which codifies existing Federal and State anti-discrimination statutes (protecting against race, sex and religion, for example) onto local law, as well as extends new protections for LGBT individuals– following an effort to override the City Council, which approved the ordinance 11-6 last May. Under city law, such an ordinance could be placed upon the ballot for a referendum if enough signatures are gathered within 30 days. Opponents claimed they acquired more than enough signatures, but most of them were disqualified, either for not being properly registered to vote or not living within the city limits of Houston. City Secretary Anna Russell originally determined the signatures to pass the threshold, just barely, but a subsequent independent investigation by City Attorney David Feldman reversed this ruling. Feldman specifically challenged the validity of any signatures on a petition page circulated by an improperly registered circulator.

This is the crux of a legal argument made against the initial decision by Feldman and Mayor Annise Parker to not humor a referendum on this topic. Originally, the opponents filed in State District Court, and received a temporary restraining order by ancillary Judge Jeff Shadwick (R-55th). However, this order was lifted when the case went to the court of Judge Robert Schaffer (D-152nd), and mandamus was denied by the Court of Appeals. As I had understood the mutually agreed upon result to be, a longer hearing would be held on the matter in January 2015, and the issue would not be on the ballot this year. City officials have even stated that the full deadline to place things on a November ballot is August 18th, which is now in the past.

Evidently, plaintiff Jared Woodfill did not get the memorandum. He is seeking, as expedited as possible, mandamus from the Texas Supreme Court, ordering the City to certify Russell’s –and not Feldman’s or Parker’s– petition decision, thus placing this matter on a ballot. Woodfill, a former Chairman of the Harris County Republican Party, evidently is not sold by the whole “deadline to place on the ballot” idea. Go figure.

Those sagacious followers of this publication I always reference will indubitably know I am skeptical of the life of the NDO if it is ever put up on a referendum. Young people and other socially liberal cohorts just don’t get off their butts on go to a voting booth. They’re just lazy, come election day; there’s no way around it. Opponents of this ordinance, though, and other broadly Tea Party aligned groups, would figuratively walk over hot coals in order to vote.

I had thought, however, that the best chances the NDO would have would be if the referendum were held this November, as opposed to next November or next May. However, its chances would be based on an aggressive and effective campaign to save the NDO. Given that it’s nearly Labor Day and such a campaign is not existent, those bets would surely be off.

All in all, my main point is that this is a mess, and while the Texas Supreme Court may be unpredictable, there is nothing to say the partisan nature of the court should lead it to intervene. The two Courts of Appeals in the Houston area are, sans one Democrat, completely filled with Republicans, and they pointedly denied mandamus. Thus, there is no reason necessarily to think that anything rash will occur. But I’ve been wrong before.

A summer of HERO

Note: For whatever reason, I felt like writing what I saw fit as a timeline. I promise there is some original commentary in here, so if you are not inclined to read my overview, just skip about five paragraphs down.

This is the blog post I have been waiting all summer to write. Once again, I apologize for not attentively following this issue in print since May. As I explained back then, I have been employed this summer in public relations projects involving ongoing issues at City Hall (the word “lobbying” has been brought up by detractors of mine on a number of occasions, though it remains to be said that I am not a registered lobbyist nor have I done anything that would necessitate such a designation). Thus, I voluntarily decided to withdraw myself from commentating on other ongoing issues. However, considering the issue I was working on has had a final council vote (check my Facebook page for my personal thoughts on that matter–largely positive!!), and my employment has shifted to PR/marketing aimed toward the general public, my conflicts have been removed.

The obvious updates since I stopped writing on this issue in May is that the non-discrimination ordinance passed (duh!). While the initial draft of the bill only required those private employers with more than 50 employees to adhere to the law, an amendment by Councilmember Robert Gallegos (D-District I) was offered that lowered the threshold to 15 employees. In review, the law prohibits discrimination against a person in private or public employment, as well as public accommodations, on the basis of the plethora of demographic groups protected on Federal law (race, sex, religion, etc),  in addition to sexual orientation and gender identity. City Hall can’t fire you for being black, Doe & Doe (Attorneys at Law) can’t fire you for being transgendered and Acme Anvils can’t put a sign on their front door that says “Gays not welcome.” In addition to the Gallegos amendment, Councilmember Jerry Davis (D-District B), under blessing of the Mayor, nixed a specific provision detailing the rights of transgendered persons to use the bathroom of their gender identity, not necessarily their biological sex. It is worth noting, however, that under the broad language of the ordinance, that same bathroom language is in effect still valid.

When all was said and done, the ordinance passed 11-6. Councilmembers Davis, Ellen Cohen (D-District C), Richard Nguyen (R-District F), Ed Gonzalez (D-District H), Gallegos, Mike Laster (D-District J), Larry Green (D-District K), Stephen Costello (R-At Large 1), David Robinson (D-At Large 2) and C.O. Bradford (D-At Large 4) voted in favor. Councilmembers Brenda Stardig (R-District A), Dwight Boykins (D-District D), Dave Martin (R-District E), Oliver Pennington (R-District G), Michael Kubosh (R-At Large 3) and Jack Christie (R-At Large 5) voted against.

Opponents of the ordinance congregated around claims of “religious liberty,” claiming that if being gay went against one’s religious views, being forced to accommodate someone would be immoral to them. They came back with a vengeance, circulating petitions to force a referendum on this bill. A few weeks ago, they submitted 50,000 signatures, far more than the required 17,000 to require a referendum. However, proponents of the ordinance independently verified all the signatories, and found the petitions riddled with violations of the rules. While there were surely many signatories who were not City of Houston voters, thousands more were discounted because the distributors of the petition for that page was not properly credentialed, which invalidated all the signatures on said page. Under such strict scrutiny, Mayor Annise Parker and City Attorney Dave Feldman held that the non-discrimination ordinance (now colloquially known as HERO, or the Houston Equal Rights Ordinance, by the way) would not be challenged on the ballot. Opponents expeditiously marched to the courthouse.

After a little bit of jockeying back and forward between State and Federal court, the dispute landed in (State Civil) 55th District Judge Jeff Shadwick’s court. A Republican, he placed a temporary restraining order on the enforcement of the law (redundant, for what it’s worth, because Parker had already enjoined enforcement) and scheduled a hearing on the validity of the petitions for August 15th. August 18th is the deadline, as I understand it, for something to be placed on the ballot this November.

My first and most obvious stipulation is that I am absolutely overjoyed that this measure passed, and I think that Houston is all the better for it. In an ideal world, there shouldn’t even be the 15 employee threshold (though certainly an exception for religious institutions and non-profits). That being said, there are some legitimate arguments against this proposal. Persuasive to me? Absolutely not. But legitimate nonetheless.

I think the best argument there was centered on the ordinance’s sheer unpopularity in the general public. In my opinion, this runs hand and hand with some major fumbles on the part of the Mayor. First and foremost, she made the ordinance nearly 100% about the LGBT community, when the ordinance was about everyone. Indubitably, rights for LGBT people are unbelievably important and even as a standalone issue should be fought for relentlessly, but so should Civil Rights for African-Americans and Hispanics, as well as protections by age, veterans status, disability and religion, to name a few. Perhaps the worst moment was when she addressed a commentator at public session by noting that the ordinance was “personal” for her. Simply put, it’s not about her. It’s about everyone. And by claiming it is about her and the LGBT community, she provides unneeded fodder for detractors to overturn the ordinance in a referendum.

Additionally, criticism was misplaced, and that is a huge understatement. The amount of nastiness directed toward Councilmember Brenda Stardig in particular was simply appalling. I will be the first to admit that I disagreed with Stardig’s vote, but that does not justify personal rhetorical attacks. Her office’s Facebook page was overrun with mean-spirited comments and she was singled out by a couple of commentators. Stardig never said she would support a non-discrimination ordinance and her constituency was overwhelmingly opposed. I fail to see the controversy here.

Like Stardig, all but two of the Councilmembers who voted no made no such earlier promise, and by-and-large came from constituencies opposing this ordinance. The two big exceptions were Dwight Boykins and Jack Christie.

With Christie, I can’t say I’m surprised. He had been utterly non-committal throughout last year’s campaign about supporting such an ordinance, even in response to incessant queries by his two opponents (Disclosure: one of them, James Horwitz, is my father), who were both big supporters of a non-discrimination ordinance and same-sex marriage. For some reason, last election cycle the GLBT Caucus was figuratively in love with Christie, not only endorsing him but campaigning for him vigorously against two liberal Democratic opponents. I don’t want to say, “I told you so,” but…you know the rest. It’s definitely not Christie’s fault, though. He would only say that he supported a non-discrimination ordinance in very broad terms, and one could tell the bulk of his issues revolved around lowering the employee threshold to 15. It’s the fault of those who voted for him, expecting him to do something different. Don’t blame a politician for voting one’s district, but definitely don’t do so for voting one’s conscious–when the evidence previously pointed to the conclusion. It comes off as naive.

Now, Dwight Boykins is a whole other story. Throughout the campaign, he triumphantly touted his support for LGBT rights and has n0t at all been hesitant about any of it. Simply put, he lied. I understand that he thought his district was against it, but if you think like that, don’t talk to interest groups day in and day out about how you think LGBT rights should be a civil rights issue. Both are good enough selections, but you can only choose one. Boykins attempted to choose both, and as such, now appears for what he is: a giant hypocrite.

But perhaps one of the biggest disappointments in all this has been the Mayor. Simply put, she was a “sore-winner.” Instead of being gracious in victory and moving on to the referendum (which will be the real battle), she kept harping on bumping the margins up on the final vote. Even after the final vote, she showed favorites to the ordinances proponents and snubbed the opponents in discourteous and unprofessional ways.

In a City Council meeting in late June, Kubosh even made a comment at Council about how he should agree with the Mayor more often, so that “he too might get his bottle of wine.” At this point, coos and shrieks from council staff could be heard throughout the room. Obviously, I was curious as to what he was referencing, so I asked around. It turns out that the Mayor bought cheap bottles of red wine for all the Councilmembers who voted with her on the NDO, conspicuously snubbing those who did not. That type of antic –giving little treats in a very obvious fashion to your allies after they vote with you– is reminiscent of the petty, sophomoric tactics used by second-rate lobbyists, not the decorum expected of the Mayor.

But all this is just semantics, which in the grand scheme of things is rather unimportant. Probably the most egregious error in this whole process was the Mayor not focusing on the almost mandatory referendum. At the end of the day, the fact is that the City Secretary has noted that the number of valid signatures are above the minimum. Furthermore, when it comes to the jurisprudence of the matter, strict requirements for those circulating petitions to be registered voters are likely too onerous to stand up in court. A referendum is coming, and the best scenario is for it to be in November 2014. If it happens in May 2015, it will almost certainly fail. It is happens in November 2015, it will also likely fail, and could negatively affect City elections vis-a-vis progressive candidates.

But enough about just negative sentiment. At the end of the day, the courageous men and women at the GLBT Caucus and other interests did yeoman’s work in advancing this positive piece of legislation. I’m a bit of pessimist and a cynic, so I will also find things to gripe about, but that does not change the reality that a very good ordinance passed, an even stronger one than San Antonio’s! The process may have been muddied, and the long road is not even over yet, but if this holds up in a referendum, it will be Mayor Annise Parker’s lasting legacy as Mayor. It will be a darn good one.

As always, my fellow bloggers have provided awesome commentary on this issue. Brains & Eggs, Dos Centavos, Off the Kuff and Texas Leftist all give great perspectives on the left, while Big Jolly Politics and Rhymes with Right do the same on the right.

HFD union sues City

UPDATE: Further hearing on the matter is set for March 7th.

The Houston Chronicle reports that the Houston Fire Department’s union (Local 341) has sued the City over the recent brownouts in coverage going around the City. Last Thursday, a Council Committee voted to compel the Fire Department into managing a large budget deficit (predominantly caused by excessive overtime pay through a generous union contract) through their own means. Accordingly, after Mayor Parker gave the nod to this course of action, the Fire Department announced they would begin rolling blackouts of service throughout the city, grounding ambulances for example, such as what happened this weekend.

Today at noon, the Firefighter’s Union sought a temporary restraining order from Judge Elaine Palmer (215th Civil District Court), which was then summarily denied. City Attorney David Feldman, Houston’s key counsel on legal issues, laughed off the suit as frivolous, proclaiming “This is not what the courthouse is for.”

Rather than Chief Terry Garrison, who must retain some semblance of a working relationship with Mayor Parker, this push has largely been driven by Bryan Sky-Eagle, the Firefighter’s Union President. In comments first reported by KPRC, Sky-Eagle noted he believed this would be an ongoing effort, albeit he made his comments before Judge Palmer denied his request for a temporary restraining order.

Click here to read more, including a statement by Mayor Parker!

Feldman gets pay hike

The Houston Chronicle reports that David Feldman, the City Attorney of Houston (the municipal equivalent of the Attorney General), has received a hefty pay raise per an order from Mayor Annise Parker. Specifically, his pay was increased by 43%, from $244,000 to $350,000.

The raise drew the ire of many at City Hall, most notably City Controller Ronald Green. The Controller’s office ostensibly acts as some sort of financial watchdog over the City, which is typically most apparent when a Democratic Mayor faces off against a nominally conservative Controller. However, given that both Mayor Parker and Controller Green have similar political persuasions, I cannot recall a single other instance that they had such a high-profile disagreement that has bled over into the paper. Specifically, Green circulated a memo that criticized Parker for making this move unilaterally rather than consulting with Councilmembers first, as he alleged has been the precedent in previous circumstances.

While there is no precedent for an increase of this magnitude, it has been your policy to require salary surveys to justify such an increase. For the sake of transparency and consistency, a salary survey should be readily available for the public and council members,” Green said.

Click here to read what Councilmembers had to say!

Pidgeon case moved to Federal Court

Texpatriate has learned that the case of Pidgeon v. Parker, in which local Republican sued to block a recent City policy that extends full spousal benefits to same-sex spouses of municipal employees, has been removed to a Federal Court. The case, which was initially filed in a local Family District Court, resulted in the granting of a temporary restraining order by a Republican Judge (Lisa Millard), blocking the enforcement of the measure until a hearing next month. This meant couples that had already signed up under the new policy would be out of luck, prompting one such couple to sue the City of Houston in Federal Court themselves.

The Pidgeon case’s initial complaint dealt with Mayor Parker allegedly violating the Texas Constitution, Texas Family Code and the Houston City Charter. Thus, its placement in the Family District Court, as opposed to a Civil District Court that typically deals with constitutional complaints. City Attorney David Feldman has now responded by filing a notice of removal to place the case in Federal Court since it deals with substantial federal questions, including guarantees of equal protection and due process. Parker and Feldman first extended the aforementioned spousal benefits in response to the US Supreme Court’s decision invalidating the Defense of Marriage Act.

Click here to read more about the implications of this lawsuit!

GOP sues over benefits

The Houston Chronicle reports that that Harris County Republican Party has officially sued the City of Houston in response to a recent policy enacted that extends full spousal benefits to same-sex spouses. The policy, which was announced last month, simply allows City employees legally married in another state –irrespective of sexual orientation– to receive full spousal benefits from the City of Houston. Mayor Parker and her city attorney, David Feldman, have previously argued that this ordinance was justified because the Supreme Court, in striking down the Defense of Marriage Act, signaled that same-sex marriages should be recognized nationwide, no matter where they were performed.

This is significant because both Houston and Texas have some rather homophobic laws on the books. First, the Texas Constitution bans same-sex marriage as well both civil unions and domestic partnerships. Second, the City of Houston prohibits domestic partnerships by charter amendment. However, that charter amendment was significant because it specifically referenced those couples who were not married (approved in 2001, it occurred when gay marriage was not legal anywhere in the world). Now that marriages between same-sex couples are somewhat more ubiquitous throughout the country, including neighboring New Mexico, the intent of the amendment –though not the literal wording– has been challenged.

Click here to read more about the HCRP’s lawsuit!

Thou shall not be a Usurer, Part III

Nearly two weeks ago, Mayor Parker announced an ambitious plan to regulate Payday lenders. The proposed ordinance, which was largely crafted by City Attorney David Feldman, was modeled after other municipal ordinances currently in place throughout the State, including in Austin, Dallas, El Paso and San Antonio. The ordinance requires, among other provisions, the loan sharks usurers lenders register with the city and provide easy to understand, concise contracts. Additionally, certain interest rates are capped and predatory tricks are forbidden. The ordinance immediately received somewhat harsh pushback from the business community.

Since the State of Texas does not have uniform regulations on these stores, a legitimate concern exists that the passage of the regulation will simply drive the institutions en masse to just outside the City limits. Accordingly, the usurious and predatory tactics will persist, but the City of Houston would lose the tax base. Such a solution would not work for anyone, and is similar to the rationale I have used in the past to discourage municipalities or even smaller States from unilaterally raising the minimum wage too far off the national base value.

Anyways, as promised, Mayor Parker officially presented this ordinance to the City Council this morning, with a tentative vote planned for next Tuesday. Today, a fair share of City Councilmember expressed strong reservations with the measure while many more were quite supportive.

Click here to read more about who opposes this ordinance!