Hon. Lee P. BROWN, Mayor and the City of Houston, Petitioners, v. Rob TODD, Respondent.
No. 00-0061.
Supreme Court of Texas.
Decided June 21, 2001.
Rehearing Overruled Aug. 23, 2001.
Argued Oct. 2, 2000.
Chief Justice PHILLIPS delivered the opinion of the Court, joined by Justice HECHT, Justice OWEN, Justice BAKER, Justice HANKINSON, Justice O‘NEILL, and Justice JEFFERSON.
We must decide whether a citizen and a city council member have standing to challenge a mayor‘s authority to issue an executive order prohibiting city employees from discriminating based on sexual orientation. The court of appeals held that the citizen did not have standing but that the council member did. 9 S.W.3d 404. We conclude that neither plaintiff has standing. Therefore, we affirm in part and reverse in part the judgment of the court of appeals; and, without reaching the merits of either plaintiff‘s claim, render judgment dismissing the case because the trial court lacked subject matter jurisdiction.
I.
The Houston City Charter allows voters, by petition, to protest the enactment or enforcement of an ordinance or resolution of the city council. After gathering the required signatures, voters may file the petition with the council, which then must reconsider its action. If the council decides not to repeal the ordinance or resolution, it must then submit the issue to a public referendum. See generally
In 1984, the Houston city council approved an ordinance prohibiting discrimination based on sexual orientation in city hiring, promotion, and contracting. Thereafter, plaintiff Richard Hotze and other private citizens organized a campaign to repeal the ordinance. They submitted a proper petition to the City, and the council declined to repeal the ordinance. At the resulting election in 1985, the voters rejected the anti-discrimination ordinance, 198,563 to 44,706. Hotze alleges that he voted against the ordinance.
On February 16, 1998, Houston Mayor Lee P. Brown issued executive order EO 1-8, “prohibit[ing] discrimination or retaliation on the basis of sexual orientation and [providing] in all city programs and in all related activity equal employment and economic opportunity at every level of municipal government without regard to sexual orientation.” Under the City Charter, the mayor has the power to enforce laws and ordinances and to prescribe rules “necessary or expedient for the general conduct of the administrative department.”
On February 25, 1998, nine days after the Mayor issued the executive order, Hotze and Todd sued Mayor Brown and the City (collectively, the City), seeking a declaration that EO 1-8 is invalid and temporary and permanent injunctions against its enforcement. Hotze and Todd contend that the Mayor‘s executive order both nullified the 1985 election and usurped the city council‘s authority. The City moved to dismiss for lack of subject matter juris
The court of appeals affirmed. 9 S.W.3d at 407. It unanimously held that Todd had standing and affirmed the injunction. Id. at 413. By a divided vote, it also affirmed the trial court‘s judgment on Hotze‘s lack of standing. Id. at 411; id. at 415 (Amidei, J., dissenting). Both Hotze and the City seek review in this Court.
II.
We must first decide whether we have jurisdiction over this interlocutory appeal. This lawsuit, initiated by a joint petition of co-plaintiffs seeking identical relief, has proceeded from its inception as a single case. After the trial court dismissed Hotze‘s claim for lack of standing, he could have sought a severance so that the dismissal against him would have been an appealable final judgment. In that event, both the court of appeals and this Court would unquestionably have had jurisdiction over his claim.
Even without a severance, the court of appeals nevertheless asserted jurisdiction over Hotze‘s interlocutory appeal by construing the trial court‘s dismissing Hotze‘s claim for lack of standing as “effectively den[ying] the temporary injunction, thus bringing his appeal within [Texas Civil Practices and Remedies Code] section 51.014(a)(4)” (allowing appeal from interlocutory order granting or refusing temporary injunction). 9 S.W.3d at 408. The court of appeals then treated the City‘s claims as cross-points without considering whether they had an independent jurisdictional basis. 9 S.W.3d at 411-14.1
Both the City and Hotze petitioned for review. Hotze alleges jurisdiction under
The City‘s jurisdictional allegation is without merit.
Todd contends that the City‘s failure to allege a proper jurisdictional basis means that this Court cannot review its claims. We disagree.
Todd recognizes that the one statutory provision that the City could plausibly have argued to confer jurisdiction is section 22.225(c). That subsection provides that
We reject Todd‘s suggestion that we do not have jurisdiction over the City‘s appeal. As we have repeatedly recognized, if our jurisdiction is properly invoked on one issue, we acquire jurisdiction of the entire case. Randall‘s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 643-44 (Tex. 1995); Stafford v. Stafford, 726 S.W.2d 14, 15 (Tex. 1987); Harry Eldridge Co., 371 S.W.2d at 879; United Am. Ins. Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160, 161-62 (1960); Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 213 (1958) (citing older cases). Unquestionably, we have jurisdiction to hear Hotze‘s appeal from the effective denial of his request for a temporary injunction because his standing was the issue that prompted the dissenting opinion.
Further, under section 22.225(c), this Court has jurisdiction to review “a civil case brought to the court of appeals from an appealable judgment of a trial court in which the justices of the courts of appeals disagree on an issue of law material to the decision....”
III.
We now consider whether Hotze has standing to bring his case. No Texas court has ever recognized that a plaintiff‘s status as a voter, without more, confers standing to challenge the lawfulness of governmental acts. Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large. Blum v. Lanier, 997 S.W.2d 259, 261 (Tex. 1999); Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984) (citing cases). This limitation inheres in the nature of standing. “The standing requirement2 stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision.” Texas Ass‘n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Both these provisions require an actual, not merely a hypothetical or generalized grievance. Id. at 444. In particular, our separation of powers article,
Hotze contends that he possesses an injury distinct from the general public because he voted in the 1985 referendum, his vote was for the prevailing side, and Mayor Brown‘s executive order negated his vote. We conclude that this proposed rationale for standing is too broad because the injury he identifies is not unique to him. Indeed, it is shared by all living Houstonians who were among the 198,563 electors who actually voted against the proposed ordinance. In no way does Hotze‘s status as a voter give him an interest sufficiently peculiar to satisfy our standing requirements.
This Court has never recognized standing on the basis of the results as opposed to the process of an initiative election. In Blum v. Lanier, for example, we held that a qualified voter who signed an initiative petition has standing to challenge the form in which a referendum is put to the citizens. 997 S.W.2d at 262. Because he objected to the ballot description of the proposed charter amendment, we concluded that the voter could seek to enjoin the referendum election. Id. We relied on our earlier decision in Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1951), in which we affirmed a writ of mandamus requiring municipal authorities to hold a voter-initiated election after the requisite number of signatures were collected, concluding that the signers had a justiciable interest in their proposed ordinance being submitted to the people for a vote. 244 S.W.2d at 648. We extended that principle in Blum to give the complainant not merely an interest in the election being held, but also in having it validly conducted. 997 S.W.2d at 262, 264.
Blum and Glass are narrow holdings, affording petition signers the right to challenge the referendum process but saying nothing about the right to protect the referendum results from subsequent changes. They are consistent with the judiciary‘s limited role in elections disputes, which provides a remedy to undo elections tainted by fraud, illegality, or other irregularity. Blum, 997 S.W.2d at 262; De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519, 524 (1938). But Hotze does not allege impurity in the 1985 vote process. Rather, relying on Taxpayers’ Association of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655 (1937), he seeks to invoke the results of a long-completed, validly executed election to enjoin the Mayor‘s action, which he claims effectively overturned the people‘s vote. The plaintiffs in Taxpayers sought to enjoin the results of a referendum in which Houston voters had approved an ordinance setting minimum salaries for certain city officers. Id. at 656. The plaintiffs argued that only the city council, not the voters, had the authority to approve the ordinance. Id. We denied the injunction, after noting that “[n]o issue [was] raised to the regularity of the election in any of its stages.” Id. at 656. We concluded that the Charter initiative and referendum power affords voters the same authority to legislate as the council and that setting salaries for public officials and employees is a legislative power. Id. at 657. We noted further that because the people‘s initiative and referendum power is reserved, not granted, to them, “such charter provisions should be liberally construed in favor of the power reserved.” Id.
Hotze contends that part of “liberally construing” his referendum power includes recognizing his standing to shield his “no” vote from disturbance by the executive branch. We disagree. In Taxpayers, we “liberally construed” the initiative power by refusing to enjoin the enforcement of a voter-adopted ordinance. Id. at 657-58. But Hotze exercised the full breadth of his referendum power when he was allowed to vote in the untainted 1985 election to repeal the ordinance. Under our precedents, Hotze does not have standing to protect his “no” vote from future action.
Hotze next points to City Charter, article VIIb, section 9, which provides that any ordinance adopted by popular vote may be amended or repealed only by popular vote. He urges that the same rule should apply when voters rescind an ordinance even though the Charter is silent on this point. We disagree. Just because citizens can shield positive enactments from repeal or amendment by the city council or the mayor does not mean that they have standing perpetually to bar future action on rejected proposals, or non-enactments. A successful “no” vote may memorialize public opinion on an issue at a particular time and place, but the rejection of a proposal by a public referendum is not an enactment of positive law that can be shielded from subsequent modification.
Finally, we are not persuaded by Hotze‘s reliance on federal legislative standing cases to support his position. Hotze asserts that, as a voter in the 1985 referendum, he became a legislator. See Blum, 997 S.W.2d at 262 (citing Glass, 244 S.W.2d at 649) (recognizing that “[c]itizens who exercise their rights under the initiative provisions act as and ‘become in fact the legislative branch of the municipal government.‘“). Then he contends that, as a legislator, he has standing to challenge the Mayor‘s executive order, relying on the United States Supreme Court‘s decision in Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939).
The Coleman plaintiffs were twenty Kansas senators who lost a vote to defeat a proposed amendment to the federal Constitution because the lieutenant governor cast the tie-breaking vote for the amendment. 307 U.S. at 436. The legislators challenged the lieutenant governor‘s right to vote on the ground that he was not part of the “legislature,” as required by Article V of the United States Constitution. Id. at 446-47. The Supreme Court concluded that the plaintiffs had an adequate interest for standing purposes because their “votes against ratification have been overridden and virtually held for naught although [they] would have been sufficient to defeat ratification.” Id. at 438.
Hotze contends that, like the senators in Coleman, all people who voted against the ordinance in 1985 had their votes “overridden and virtually held for naught” by the Mayor‘s 1998 executive order. But neither Hotze‘s nor anyone else‘s vote was nullified. In fact, the votes were given full effect and were sufficient to defeat the proposed ordinance, which did not go into effect. The Mayor‘s later order did not operate as a direct, contemporaneous nullification of votes like the lieutenant governor‘s deciding vote in Coleman.
Even if Coleman were on point, its effect has been undermined by the Supreme Court‘s recent decision in Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997). In Raines, the Court held that six members of Congress who voted against legislation authorizing a presidential line item veto did not have standing to challenge the act‘s constitutionality. Id. at 830. The Court concluded that Coleman “provides little meaningful precedent,” id. at 824, and “stands, (at most) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue on the ground that their votes have been completely nullified.” Id. at 823 (internal references omitted) (emphasis added); see Chenoweth v. Clinton, 181 F.3d 112, 116 (D.C.Cir.1999) (“Although Coleman could be interpreted more broadly, the Raines Court read the case to stand only for [this] proposition“), cert. denied, 529 U.S. 1012 (2000). To accept Hotze‘s argument, we would have to conclude that the 1985 referendum and the 1998 executive order operate together as “a specific legislative act,” ignoring the reality that they were two independent acts of two different branches of city government, occurring thirteen years apart. Therefore, we conclude that Hotze lacks standing to seek a judicial remedy for his claim.
IV.
Next, we consider whether Todd has standing as a member of the city council to challenge the Mayor‘s executive order. Todd contends that under the City Charter, the city council has final authority to approve civil service commission personnel policies for city workers, which the mayor‘s general authority to prescribe rules for the administrative department cannot displace. He asserts standing because the Mayor, by issuing an executive order prohibiting discrimination based on sexual orientation in all city programs and
The standing doctrine identifies those suits appropriate for judicial resolution. Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990). As we explained above, under Texas law, standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff and “a real controversy between the parties, which ... will be actually determined by the judicial declaration sought.” Texas Workers’ Compensation Comm‘n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995); see also State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).
To guide our decision on this issue of first impression for Texas, we may look to the similar federal standing requirements for guidance. Texas Ass‘n of Bus., 852 S.W.2d at 444. “To meet the standing requirements of Article III, [a] plaintiff must allege personal injury fairly traceable to the defendant‘s allegedly unlawful conduct and likely to be redressed by the requested relief.” Raines, 521 U.S. at 818-19 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) (emphasis in Raines). The United States Supreme Court has “consistently stressed that a plaintiff‘s complaint must establish that he has a ‘personal stake’ in the alleged dispute” and that the injury suffered is “concrete and particularized.” Id. at 819 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Todd claims that, as a city council member, he has suffered an injury distinct from the general public. He asserts that the Mayor, by issuing EO 1-8, exceeded his administrative authority and encroached on the council‘s expressly allocated power to approve all civil service commission rules for city employees. On the one hand, Todd‘s purported injury is distinct because he does not seek merely to make the Mayor follow the law but to follow the law defining his mayoral authority vis-à-vis the council‘s authority. See Raines, 521 U.S. at 832 (Souter, J., concurring) (noting that members of Congress have more direct and tangible interest in loss of legislative power than general citizenry does).
On the other hand, Todd‘s injury as a city council member is vague and generalized, not personal and particularized. Todd does not and cannot challenge the anti-discrimination policy‘s actual operation because it does not apply to him.4 Nor does he sue as a representative of constituents who face actual or threatened injury because of the policy. Cf. City Council v. City of Pittsburgh, 155 Pa. Cmwlth. 328, 625 A.2d 138, 143 (1993) (discussing standing of city council members as representatives of their districts’ residents). The only injury Todd asserts is that the Mayor acted outside of his authority and usurped the council‘s authority. And even in that assertion, he is not suing
V.
Because neither Hotze nor Todd has standing to challenge the Mayor‘s 1998 executive order, we reverse the court of appeals’ judgment that Todd has standing, affirm its judgment that Hotze lacks standing, and render judgment dismissing all claims for want of jurisdiction. In so doing, we express no opinion on the merits of the underlying claim.
Justice ENOCH filed an opinion concurring in part and dissenting in part.
Justice ENOCH, concurring and dissenting.
In 1985 the people of Houston spoke. Exercising a power reserved to them under the City Charter, they rejected an ordinance enacted by the city council. Some years later, Houston‘s mayor resurrected the substance of that rejected ordinance in an executive order, effectively overriding the expressed will of Houston‘s citizens. The question the Court considers today is whether a qualified voter, who voted in the election that defeated the ordinance, has sufficient interest in the power of his vote to challenge the mayor‘s action. The Court says no. I disagree.
The path to Richard Hotze‘s standing is straightforward. To establish standing,
The Court floats a variety of reasons to avoid this simple, and correct, result. But none of these reasons holds water.
First, the Court posits that Hotze‘s standing analysis is too broad because Hotze shares his injury with other voters.5 But the fact that a particular injury may be shared among several individuals doesn‘t deprive those who share it of standing. If that were true, no plaintiff in a class action or mass tort case would have standing. The injury here is peculiar to voters in the 1985 referendum. It does not extend to the general public at large, nor even to all registered voters in Houston. But those voters who are harmed, even if there are nearly 200,000 of them, have an interest they may sue to protect.6
The Court suggests that any interest in election results extends only to “a direct, contemporaneous nullification of votes,” and that Hotze‘s vote was given effect in 1985 because the ordinance did not go into effect.11 It seems to me that the mayor‘s executive order is just as effective a nullification, regardless of when it happened. It further seems to me that, under the City Charter, the results of the 1985 referendum must stand until the people choose to undo them. But that is not the question. The question, for standing purposes, must be whether there was a nullification at all, not whether it happened a day, a month, or a year after the original election. The length of time between the referendum and the executive order may be relevant to the merits of Hotze‘s challenge, but it should not control whether Hotze, or any other voter, has a sufficient interest to bring a claim.
Finally, the Court incorrectly concludes that the U.S. Supreme Court‘s decision in Raines v. Byrd undermines Hotze‘s position. In fact, Raines preserved the relevant holding in Coleman v. Miller that supports Hotze‘s argument: “our holding in Coleman stands ... for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”14 Here, Hotze, acting as a legislator, voted on a specific legislative act. That act was defeated, but later revived by the mayor‘s executive order. The substance of the defeated act went into effect. The mayor‘s order thus completely nullified the referendum votes. Hotze‘s claim falls squarely within those recognized by Coleman and Raines.
I agree that the Court has jurisdiction in this case. And I concur with the Court that city council member Rob Todd does not have standing. His is the type of injury Raines rejected as insufficient to establish standing—a general injury to the institutional effectiveness of the City Council.15