Opinion
NO. 14-16-00123-CV
02-09-2017
THE CITY OF HOUSTON AND ITS CURRENT MAYOR, SYLVESTER TURNER, Appellants v. ALLEN MARK DACUS AND ELIZABETH C. PEREZ, Appellees
On Appeal from the 234th District Court Harris County, Texas
Trial Court Cause No. 2010-81591
MEMORANDUM OPINION
This is the second appeal in an election contest. Because the Supreme Court of Texas already has decided the substantive issues presented and its decision constitutes the law of the case, we affirm the trial court's grant of summary judgment in the election contestants' favor.
I. BACKGROUND
In 2010, a petition was circulated to amend the City of Houston's charter, and a sufficient number of qualified voters signed the petition to have the proposed amendment ("the measure") placed on the ballot. The measure required the establishment of a "Dedicated Drainage and Street Renewal Fund" to be funded from four sources, one of which was described as "[a]ll proceeds of drainage charges, which . . . shall be imposed in an equitable manner as provided by law to recover allocable costs of providing drainage to benefiting properties, with drainage charges initially set at levels designed to generate at least $125 million for fiscal year 2012." (emphasis added). In an election held on November 2, 2010, the measure was submitted on the ballot as Proposition 1, which provided as follows:
See TEX. ELEC. CODE ANN. § 1.005(12) (West 2010) ("'Measure' means a question or proposal submitted in an election for an expression of the voters' will.").
See id. § 1.005(15) ("'Proposition' means the wording appearing on a ballot to identify a measure.").
PROPOSITION NO. 1A majority of the voters participating in the election voted for the measure.
CHARTER AMENDMENT PROPOSITION
Relating to the Creation of a Dedicated Funding Source to Enhance, Improve and Renew Drainage Systems and Streets.
Shall the City Charter of the City of Houston be amended to provide for the enhancement, improvement and ongoing renewal of Houston's drainage and streets by creating a Dedicated Pay-As-You-Go Fund for Drainage and Streets?
Allen Mark Dacus and Elizabeth C. Perez ("the Contestants") challenged the election results by filing an election contest against the City and its mayor. The Contestants alleged, inter alia, that the ballot language submitting the measure was misleading. The City successfully moved for traditional summary judgment on the ground that the proposition was not misleading, and on appeal, this court affirmed the trial court's judgment. See Dacus v. Parker, 383 S.W.3d 557, 560 (Tex. App.—Houston [14th Dist.] 2012) ("Dacus I"), rev'd, 466 S.W.3d 820 (2015) ("Dacus II").
At that time, the Honorable Annise Parker was a party in her official capacity as the mayor of Houston. Her successor, the Honorable Sylvester Turner, has been automatically substituted pursuant to Texas Rule of Appellate Procedure 7.2(a).
The Supreme Court of Texas granted the Contestants' petition for review and reversed this court's judgment. See Dacus II, 466 S.W.3d at 822. The court concluded that the drainage charges to be imposed on benefitting real property was among the measure's chief features, and that Proposition 1 was misleading because it failed to mention the charges. See id. at 828. The court therefore reversed the judgment. Because the Contestants had not filed a cross-motion for summary judgment, the court remanded the cause to the trial court. See id. at 829.
On remand, the Contestants filed a motion for traditional summary judgment based on the law of the case. As an alternative ground, the Contestants argued that Proposition 1 was misleading as a matter of law because it did not mention the drainage charges, which were among the measure's chief features. In other words, the Contestants sought summary judgment on the grounds that (a) the Texas Supreme Court already had decided the issue in Dacus II, which became the law of the case; or (b) even if Dacus II did not constitute the law of the case, the trial court should reach the same result as Dacus II for the same reasons.
The trial court granted the motion without stating its reasons. In its final judgment, the trial court held the November 2, 2010 election on Proposition 1 to be void and ordered the City or appropriate authorities on its behalf to order a new election on the measure. See TEX. ELEC. CODE ANN. §§ 221.012(b); 233.011 (West 2010).
II. ISSUES PRESENTED
In its first issue, the City asserts that the trial court lacked subject-matter jurisdiction. The City argues in its second issue that the trial court erred in granting summary judgment in the Contestants' favor based on the law of the case. In the City's third issue, it contends that there is a question of fact about whether the drainage charges are one of the measure's chief features. We reach that issue only if we sustain the City's second issue and conclude that Dacus II did not establish, as the law of the case, that the ballot's language was misleading in that it omitted one of the measure's chief features: the requirement that the City impose drainage charges to benefitting properties.
III. SUBJECT-MATTER JURISDICTION
In an election contest, the trial court's jurisdiction "is limited to such subjects or grounds of contest as are expressly or impliedly authorized by the Election Code." Cohen v. Clear Lake City Water Auth., 687 S.W.2d 406, 407 (Tex. App.—Houston [14th Dist.] 1985, no writ). This jurisdiction includes "the entire process" of the election. See id. at 408. In particular, it includes the question of whether the ballot adequately described the measure being submitted to voters. Cf. Dacus II, 466 S.W.3d at 823. The district court has exclusive original jurisdiction in an election contest of a measure. See TEX. ELEC. CODE ANN. §§ 221.002(a), 231.001, 233.001 (West 2010).
In its first issue, the City asserts that the district court lacked subject-matter jurisdiction because this case is not an election contest, but instead is a challenge to "the post-election implementation of the charter amendment" that the Contestants lack standing to assert. The City is mistaken.
In their live pleading, the Contestants allege that Proposition 1 was misleading because it omitted one of the measure's chief features. In their summary-judgment motion, the Contestants argued that the proposition failed to "identify the measure by its chief features, showing its character and purpose," because "the measure published in the newspaper . . . mentioned drainage charges as a key funding source, but the drainage charges were not mentioned in the ballot language at all." Thus, Contestants contest the election on the ground that the ballot was misleading. Neither in their live pleadings nor in their summary-judgment motion have the Contestants mentioned the City's implementation of the charter amendment or its passage of an ordinance addressing drainage charges. The trial court is not deprived of jurisdiction over this election contest merely because additional steps were taken after the election to implement the measure, and the City cites no authority that voters can bring an election contest challenging the sufficiency of a ballot description only in the rare case in which the measure itself is self-executing.
Because the sole issue before us is whether the ballot language complied with the standard set forth in Dacus II, we express no opinion about whether, in the absence of an election, the City could have taken the same steps to impose drainage charges.
We accordingly overrule the City's first issue.
IV. SUMMARY JUDGMENT
A movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If the movant initially establishes a right to summary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
The Contestants moved for summary judgment on two grounds, but we need discuss only one: the law of the case. Under the law-of-the-case doctrine, "questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages." Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) (quoting Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). In Dacus II, a court of last resort decided the first appeal in this election contest. Thus, unless some exception to the law-of-the case doctrine applies, the case is governed by the questions of law decided in Dacus II. We therefore begin by identifying the questions of law that already have been answered.
In Dacus II, the Texas Supreme Court explained that even voters already familiar with the measure to be voted on can be misled by ballot language that fails to sufficiently describe the measure. See Dacus II, 466 S.W.3d at 825-26. To prevent voter misunderstanding from arising at the polling place, the ballot must "substantially submit[] the question . . . with such definiteness and certainty that the voters are not misled." Id. at 826 (quoting Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57, 12 S.W. 165, 165 (1888)). To satisfy this requirement, "the ballot must identify the measure by its chief features, showing its character and purpose." Id. at 825 (emphasis omitted). As a matter of law, the ballot's description of the measure fails to meet this standard if (1) it affirmatively misrepresents the measure's chief features or its character and purpose, or (2) it omits "certain chief features that reflect [the measure's] character and purpose. See id. at 826.
The Texas Supreme Court then applied this legal ruling to the undisputed facts in this case, that is, the court compared the ballot's language (which is undisputed) to the proposed charter amendment's language (which also is undisputed). From that comparison, the court determined that "[t]he ballot did not identify a central aspect of the amendment: the drainage charges to be imposed on benefitting real property owners across the city." Id. Because the ballot omitted a chief feature of the measure, the court concluded that the ballot was misleading. See id. at 828.
The City maintains that Dacus II left "open [the] question of whether the ballot language was misleading," but that assertion cannot be reconciled with a plain reading of the court's opinion. The court's holding and reasoning were specific and unambiguous: "The City did not adequately describe the chief features—the character and purpose—of the charter amendment on the ballot. By omitting the drainage charges, it failed to substantially submit the measure with such definiteness and certainty that voters would not be misled." Id. at 829; see also id. at 826 ("[W]hen the citizens must fund the measure out of their own pockets, this is a chief feature that should be on the ballot, and its omission was misleading."). The court emphatically repeated this holding many times.
See id. at 826 ("[T]he ballot did not identify a central aspect of the amendment: the drainage charges to be imposed on benefitting real property owners across the city."); id. ("Because the ballot did not mention the charges, it fell short of identifying the measure for what it is—a funding mechanism and fiscal burden on benefitting property owners."); id. at 827 ("[I]n this case, the ballot withheld a central component of the charter amendment—the drainage charges—essential to the character of the amendment."); id. at 828 ("In neither case [cited by the City] did the governing authority so clearly fail to substantially submit the measure with such definiteness and certainty that voters would not be misled.") (emphasis added); see also id. at 830 (Guzman, J., concurring) ("The City's semantic obfuscation is particularly egregious here, considering that the ballot proposition at issue concerned a revenue-raising measure.").
The City characterizes the court's language as obiter dictum. Again, we disagree. The Supreme Court of Texas has defined "dictum" as
[a]n opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; . . . an opinion of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point.Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 399 (Tex. 2016) (quoting Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1126 (1913)). The court's ruling in Dacus II that the ballot language misled voters by omitting one of the measure's chief features was not obiter dictum, because it embodies the court's resolution of the appeal:
Because the proposition omitted a chief feature—part of the character and purpose—of the measure, it did not substantially submit the measure with such definiteness and certainty that voters would not be misled. Accordingly, the proposition was inadequate, and summary judgment should not have been granted in the City's favor.Dacus II, 466 S.W.3d at 828. Indeed, the court's ruling that the ballot language is inadequate could not be dictum, because the court stated, "we base our decision solely on the failure of the proposition to present the measure's chief features and its character and purpose." Id. at 828-29 (emphasis added).
There is no room for doubt. The question of whether the ballot language misled voters by omitting one of the measure's chief features calls for a yes-or-no answer, and the state's highest civil court has answered that question in the affirmative. The City expressly acknowledged this holding in its response to the Contestants' summary-judgment motion, stating, "The City recognizes that the Supreme Court held that the ballot language was inadequate because it did not include 'a chief feature' of the amendment, information that 'drainage charges would be imposed on benefitting real property owners across the city." The resolution of that question in Dacus II bound the trial court in its consideration of the Contestants' summary-judgment motion, and it binds us in analyzing the issues presented on appeal.
To avoid this result, the City contends that the Texas Supreme Court "was not empowered" to decide that the ballot language misled voters by omitting one of the measure's chief features, because the court "cannot simply decide a fact issue when one lands in its lap." Here, however, there is no fact issue, because the facts were undisputed. The parties agree about the language used in the measure and the language used in the ballot. Thus, the determination of whether the ballot language omitted one of the measure's chief features was not a question of fact, but a question of law. Cf. Grant Prideco, Inc. v. Empeiria Conner L.L.C., 463 S.W.3d 157, 160 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (explaining that if the summary-judgment issue is based on undisputed, unambiguous facts, then the issue can be decided as a matter of law).
In arguing that there is a fact issue, the City relies on a single sentence from Justice Guzman's concurring opinion in Dacus II: "A fact issue exists as to whether the City's ballot language omitted a chief feature of a measure and thereby deprived voters of the opportunity to make a fully informed decision." Dacus II, 466 S.W.3d at 831 (Guzman, J., concurring). Elsewhere in her concurrence, however, Justice Guzman stated, "I further agree that by not describing the nature of the drainage charges, the ballot language omitted a chief feature of the proposition . . . ." Id. at 829 (Guzman, J., concurring). In any event, we are bound by the decision of a majority of the court. Cf. GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 756 n.2 (Tex. App.—Beaumont 2014, pet. denied) (rejecting the appellees' characterization of a case's holding where the characterization was based solely on a nonbinding concurring opinion); Live Oak Cty. v. Lower Nueces River Water Supply Dist., 446 S.W.2d 14, 20 (Tex. Civ. App.—Beaumont 1969, writ ref'd n.r.e.) (explaining that a concurring opinion "does not constitute the law of the case").
Under the same heading, the City asserts that the Contestants failed to file a cross-motion for summary judgment before Dacus II was decided and that the Contestants have to live with that choice. That is true as far as it goes. Until the Contestants filed a motion for summary judgment, the trial court could not render summary judgment in the Contestants' favor. Because the trial court could not have reversibly erred by failing to render a judgment that was never requested, the appellate courts also were unable to render judgment in the Contestants' favor. The Texas Supreme Court accordingly remanded the case to the trial court "because only the City moved for summary judgment." Id. at 829. On remand, however, the Contestants moved for traditional summary judgment, and showed in their motion that they were entitled to judgment under the law of the case.
We accordingly overrule the City's second issue.
The City argues in its third issue that there is a question of fact about whether the imposition of drainage charges was a "chief feature" of the charter amendment that reflected its character and purpose, because such charges were actually imposed through an ordinance passed four months after the election. As we have just discussed, however, Dacus II established that drainage charges were one of the measure's chief features. Because we have concluded that Dacus II constitutes the binding law of the case, we do not further address the City's third issue.
Because the City did not mention the law-of-the-case doctrine in its summary-judgment response or in its opening brief on appeal, the Contestants argue that the City waived its complaint that the trial court erred in granting summary judgment on that ground. Although the City did not use the words "the law of the case," we disagree that the City waived this challenge. Both in the trial court and on appeal, the City has maintained that whether the ballot's failure to mention drainage charges misled voters is a question of fact. Because the Supreme Court of Texas does not decide questions of fact, the City reasons that the court could not and did not resolve that question in Dacus II, and that the opinion's language purporting to do so is mere obiter dictum. The gravamen of all of these arguments is that Dacus II does not dictate the answer to the question of whether the ballot's language misled voters by failing to mention one of the measure's chief features—or in other words, Dacus II is not the law of the case.
V. CONCLUSION
For the reasons stated in Dacus II, we affirm the trial court's judgment holding void the passage of Proposition 1 in the November 2, 2010 election and requiring the appropriate authorities to hold a new election on the measure.
/s/ Tracy Christopher
Justice Panel consists of Chief Justice Frost and Justices Christopher and Jamison.