Opponents of the ordinance, including a large number of Houston pastors, gathered thousands of signatures on the petition and submitted them to the city for validation in July. They say city officials acted outside of their charter-defined authority in disqualifying a portion of the signatures. City officials have denied the charge and said petition organizers "came to court with unclean hands."
At least a dozen attorneys for the city and the lone attorney representing local pastors agreed to the January trial date in the 152nd District Court on Friday (Aug. 15) but not before accusations of wrongdoing were leveled by both sides during questioning by Judge Robert Schaffer.
Schaffer, who heard arguments in the lawsuit against the city by opponents of the ordinance, will preside over the jury trial in January. The lawsuit filed Aug. 5 by representatives of the No UNequal Rights Coalition alleges the city's petition certification process, which resulted in the disqualification of more than half the petition pages, was unlawful and indiscriminate. They sought an injunction to overturn the city's invalidation of the petition and to force a citywide vote on the ordinance. Attorneys for the city argued no misconduct occurred on the part of city officials but charged that petition circulators were guilty of wrongdoing.
City officials claim the petition gathering process was fraught with irregularities resulting in the disqualifications.
"There are multiple incidences of fraud and non-compliance," Geoffrey Harrison, an attorney with the Susman Godfrey law firm representing the city, told the judge.
Religious overtones interjected into the proceedings and comments to the media punctuated the battle over the ordinance which gives civil rights protection to individuals based on their sexual orientation and gender identity.
City Attorney David Feldman said following the hearing that local law firms were hired to help with the case and that some offered their services pro bono. He justified hiring the additional legal assistance because "we have some pretty powerful opponents."
"You're right!" someone shouted from the crowd of plaintiffs' supporters, most of whom represented churches working to repeal the ordinance.
Feldman quipped, "They're powerful in terms of their relationship with God."
Andy Taylor, of Andy Taylor and Associates, was the lone representative arguing for the plaintiffs, while at least 12 attorneys representing the defendants -- the city of Houston, Mayor Annise Parker and city secretary Anna Russell -- sat across the table from him and two of his clients. Looking toward the opposing counsel, Taylor referenced David meeting Goliath at the start of the hearing.
Before formal proceedings began, Schaffer pressed Taylor to justify an injunction when a trial on the merits of the case was inevitable.
Taylor argued that the plaintiffs represent all Houston residents harmed by the city's actions. The summary disqualification of petition signatures by the city attorney's office was not "legally appropriate" and, therefore, stymied the opportunity for Houstonians to vote on the matter, Taylor said.
Taylor accused Parker of thwarting efforts to put the issue to a vote, claiming "her agenda is more important than their right to vote."
Parker, a lesbian who in January travelled to California with her longtime partner Kathy Hubbard to get married, has said passage of the ordinance was personal because it was about her. LGBT advocates have rallied in support of the mayor and the fight for the ordinance.
Trying the merits of the case is exactly what Taylor told the court he wanted, as it will determine whether city administrators, Parker and Feldman in particular, acted outside the purview of the city charter in disqualifying more than half of the petitions.
"The charter is very specific," Taylor told Schaffer. "Our legal case is we did all those things, and Anna Russell so found we did."Opponents of the ordinance circulated petitions calling for a referendum in June. Within 30 days 55,000 signatures were collected, and 31,000 were pre-verified by petition organizers and submitted to the city secretary July 3.
Before petition pages were expunged from consideration, Russell's office had validated 17,846 out of 19,177 signatures, a 93 percent validation rate and more than enough to call for a vote on the ordinance. Feldman's office, however, reviewed all 5,199 petition pages for proper submission criteria and found "irregularities" with 2,750 pages. In so doing, Russell was left roughly 15,000 signatures to inspect for validation, more than 2,000 shy of the required number to call a referendum. In a letter dated Aug. 1 to city council, Russell stated there were not enough valid signatures to certify a referendum.
"They have fabricated their entire case on a house of cards that has already fallen," Harrison said of the petition gathering process.
Plaintiffs argued Feldman did not have the authority to dismiss the pages and that Russell's initial validation of signatures should stand. Taylor told the judge he had evidence showing the criteria Feldman used to dismiss some pages were not drawn from the city charter and were inconsistently applied. He cited one petition page signed and circulated by Houston city councilman Oliver Pennington that had been dismissed because the councilman had used his common name, Oliver, and his legal name, Olin, on the same page.
Taylor also argued the charter article requiring all petition circulators be city of Houston registered voters is unconstitutional, citing U.S. Supreme Court and circuit court rulings.
Repeal of that mandate alone would clear thousands of signatures for validation and "catapult us beyond the required number," Taylor said.
Among the plaintiffs are pastors, para-church leaders and citizens who have opposed the Equal Rights Ordinance since its introduction by Parker in April. The ERO, passed by city council in May, provides civil rights protections to individuals already covered by city, state and federal law and adds sexual orientation and sexual identity to the list of protected qualities.
As Taylor began presenting evidence for his case, Schaffer asked opposing counsel to meet him in his chambers. Following the brief recess, Schaffer declared both sides agreed to a trial on the merits of the case. The ordinance, which was suspended with the submission of the petitions, will remain suspended pending the outcome of the trial.
"We got everything we wanted," Taylor told reporters following the hearing.
A win for the plaintiffs in January would put the matter before the city council which could then repeal the ordinance or call for a vote during the next general election in November 2015.
Parker, who was out of town, did not release a statement on the hearing, but Janice Evans, chief policy officer and director of communications for the mayor, said in an email to the Southern Baptist TEXAN, "The petition validation process was fair and legal. The plaintiffs simply didn't meet the City Charter and Texas Election Code requirements for a voter referendum. From the beginning, we have been confident that the city's process would be upheld by the courts. Today's decisions in two courtrooms are further affirmation of that belief."
In case of an unfavorable ruling by Schaffer, Taylor had also filed suit in the 14th State Court of Appeals asking the court require the city secretary to present her initial validation certification to city council. Justices William Boyce, Tracy Christopher and Martha Jamison remanded the case back to the 152nd District Court.
A press release from the Houston Area Pastors Council, an organization representing more than 300 area churches and an opponent of the ordinance, hinted there may be additional legal action to come that could place the ordinance on the November 2014 ballot.
Bonnie Pritchett is a correspondent for the Southern Baptist TEXAN (www.texanonline.net), newsjournal of the Southern Baptists of Texas Convention.
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