Harris v. The City of Houston

KING, M. Before EMILIO GARZA DeMOSS, Judges. Circuit GARZA, Judge: EMILIO M. Circuit appeals challenge the These consolidated enjoin district court’s refusal of a residential area Houston’s annexation Kingwood. Finding that we can no known as they longer grant plaintiffs the relief re- below, vacate the district court’s quested we prior remand with instructions orders and the case as moot. dismiss I Houston, In (the discussing pos- “City”) began Texas affluent, sibility annexing relatively non- area north of minority-dominated residential Throughout “Kingwood.” City, known as City mayor met with various year, representatives Kingwood, subject. hearings various Council held 11, 1996, Council en- On December annexing King- separate acted ordinances utility abolishing its thirteen dis- wood and following day. tricts —effective the 23, 1996, City requested December On from the De- preclearance of the annexation (“DOJ”), § pursuant to partment of Justice (‘Voting Act of 1965 89-110, Act”), 79 Stat. 439 Rights P.L. No. (codified et Nichols, at 42 Secrest, Lau- as amended U.S.C. D. Eric Ronald J.R. Secrest, on Beck, seq.). The held a & Batey, ra Nicole Redden elec- resulting runoff Houston, TX, Plaintiffs-Appellants February unrelated to the 15—both tion cases. both injunction Because the requesting issue of annexation.1 DOJ did addition to implementing the annexation and all February grant preclearance until property actions such as the seizure permitted Kingwood residents were not provision of certain basic services to elections. participate in these U.S.C. See residents, Almanderez, Phillips, (holding that no Utility (collectively Harris and the Districts precleared). parties until takes effect “plaintiffs”) requested that the court district appeal, agree that as of the date stay January the annexation at least until the fully has been ac- annexation of preferably election and until some final deci- complished, and no further obstacles remain sion could be reached on the state-law claims elec- residents alternative, Utility Districts. tions. plaintiffs requested that if the annexation forward, special went election scheduled suit, instituted October be- enjoined for 18th be until the accomplished actually fore the the an- permit received King- and could nexation, brought many was different wood residents to vote. The also injuries alleging different as well as requested declaratory relief to the effect that separate causes of action. The one common City’s actions were unconstitutional and group denominator for the was their unani- invalid under state law. At no time did injunction request mous relief —an plaintiff request damages, nominal or com- against the annexation and all efforts to im- pensatory, any plaintiff nor request did plement Mary it. Almanderez Thomas special the district court invalidate the elec- plaintiffs”), Phillips (“minority minority resi- tion or dismantle the annexation once accom- City, alleged pur- dents of the that both the plished.2 pose and effect of the annexation were to Following evidentiary hearing, the dis- residents, minority dilute the votes of vio- plaintiffs’ request trict court pre- denied lation Act and the Fif- liminary injunctive relief and dismissed the Kingwood’s teenth Amendment. thirteen Utility claims of the Districts for lack of utility namely County Harris Utili- districts — standing. Utility Harris and the Districts 1, 2, 3, 4, 5, 8, ty Districts Nos. and 10 and order, (“appellants”) appealed from this but County Municipal Utility Harris Districts case, arguments before we heard 93, 262, 350, (collectively, Nos. and 356 “Utili- judgment deny- district court entered a final “Districts”) ty Districts” or —claimed ing plaintiffs. appellants all relief to the December 11 ordinances exceeded the subsequently appeal, filed second notice of statutoiy authority annexation as set out in unopposed and on their motion we consoli- various sections of the Texas Local Govern- appeal dated the first from the district Harris, ment Code. John D. a resident of preliminary injunction court’s denial Kingwood, alleged permitting the annex- appeal the second from the district court’s go ation to forward before the elec- final City. favor of the deprive tion would him of his vote minority plaintiffs appealed neither from the violation of the Fourteenth and Fifteenth relief, preliminary injunctive denial of nor Amendments. from the district final judgment. court’s requested proposed election was held to fill a vacant at- the relief as a result of those large City pro- Council seat and to consider findings always enjoin stay was same— posed nance, proposed charter amendment and a ordi- implementation annexation and its until the elec- placed both of which were on the ballot tion or at least until a determination of the mer- by petition City residents. The run-off elec- Simply by phrasing its state-law claims. February tion in was Council seat. appellate their new claims for relief in terms of annexation, “voiding” opposed to disan- plaintiffs' complaint 2. The second amended does annexation, nexing undoing does not elim- request "enjoin that the district court the annex- plaintiffs sought only inate the fact that the implement ation and all efforts to the annexation injunction stay they or a below. Had wished to pleadings, plain- as void ab initio.” In other relief, bring any they other claim for could have request tiffs that the district court find the annex- complaint. moved to amend their ation void or declare it void under state law. Yet 1986) (holding plaintiffs appeal from the de allegedly regarding the discrim- Their claims preliminary injunctive inatory impact of the annex- nial of purpose ation, Voting Rights Act as styled suspension under the of a license moot once the Amendment, revoked); are there- Fifteenth permanently well as the Brown v. license us.3 fore not before New and Checkers Union Orleans Clerks U97, Local No. 590 F.2d Cir.

II 1979) (holding appeal defendants’ “[tjhis injunction moot because grant of an qualify “To as a case fit for federal- controversy no order adjudication, ‘an actual court could fashion review, stages parties”); relationship extant at all see must be ” complaint FDIC, merely Corp. at the time the is filed.’ Dev. 986 F.2d also Oakville Arizona, (1st Cir.1993) English 611, v. ap Arizonans an (holding 613 that for Official 43,-, 1055, 1068, 117 S.Ct. 137 520 U.S. peal becomes moot once circumstances dic (1997). con 170 Whether an actual L.Ed.2d longer grant tate that the court can no mean stage litiga troversy remains at this relief) cases). (collecting At that ingful question tion is a that we resolve de novo.4 point, no of the court can affect the order 510, 516, 114 Holloway, v. 510 U.S. See Elder rights parties regard to the re (1994) (not 1019, 1023, 127L.Ed.2d 344 Odegaard, quested relief. See DeFunis v. be ing questions generally that of law “must 1704, 1705, 312, 316, 40 94 S.Ct. appeal”). de novo on resolved (1974) (noting “starting L.Ed.2d 164 point” analysis an of mootness is the for matter, it be As an initial we find are proposition “familiar that ‘federal courts request yond dispute that a that can power questions without to decide generally upon hap moot relief becomes rights litigants in the case not affect the sought enjoined. to be pening of the event them’”) (quoting North v. before Carolina See, 27, e.g., Westergren, 908 F.2d Garza v. Rice, 244, 246, 402, 404, 404 92 S.Ct. 30 U.S. (5th Cir.1990) (holding plaintiffs request 29 (1971)). Applying general 413 L.Ed.2d injunction stay contempt proceed an a hand, the claims of the rule to the case at “[bjecause contempt proceeding ing moot prospective relief appellants for occurred”); has Int’l Union N. Seafarers in and the election are annexation Servs., Inc., v. Marine 820 Am. National part has been a Cir.1987) deed moot. (5th (“[Ojnce 148, F.2d 151-52 half; year a and a since the for almost plaintiff sought action that the to have en subsequent Febru 1997 election and occurred, joined is mooted be has ease run-off, gone ary the entire Council has of this court could affect the cause ‘no order impedi through cycle, with no parties’ injunction rights with ”) participation. The Con Kingwood’s ment to upon (quoting to review.’ we are called enjoin, sought to stitutional harms Hams Honig v. Students the Cal. Sch. Blind, 148, 149, any, gone; come and there were have 471 105 S.Ct. indeed U.S. T., enjoin al (1985)); simply that which has Marilyn we cannot 85 L.Ed.2d 114 (5th Evans, ready place. Inc. 803 1384 Cir. taken v. F.2d dispute § issue. See Any relating that we must address the claims 5 of the us, Orleans, given a Joseph City Act are also not before that three- New 110 F.3d specif- judge panel pursuant § (5th 1997) was convened to 5 (noting Cir. that we must examine ically 42 U.S.C. to address those claims. See sponte jurisdiction, even when basis of our sua (authorizing appointment § 1973c three- Ruhrgas, necessary). Marathon Oil Co. v. Cf. judge adjudicate court to claims of 5 viola- banc) ("The Cir.1998) (en (5th F.3d tions). three-judge panel hearing held a requirement jurisdiction that be established as its order three December issued ‘spring[s] from the nature and threshold matter later, days stating had that no violations of judicial power of the United States' limits of the party appealed from this deci- occurred. No exception.'") without and is ’inflexible and sion. Swan, Mansfield, (quoting C. & L.M.R. Co. 510, 511, 28 L.Ed. 462 U.S. Although appellants allege reply in their (1884)). brief that the has raised the issue of moot- appeal, they time on do not ness for first given plaintiff the Districts nevertheless raise we had the benefit of the Hams and arguments attempt in an to demon requested several doubt as whether certain ongoing, of an live con strate the existence alleged fact ease or correct First, appellants cite troversy. Vieux wrong. Owners, Residents, Property & As Carre light, Viewed in this contains Vieux Carre socs., Brown, 1436, 1446 Inc. v. 948 F.2d support appellant’s for the notion we Cir.1991), proposition that “a suit is may requested fashion relief not below only moot it can be shown that a court when keep order to a suit viable. To the extent ‘theoretically grant’ relief.” In cannot even language may broad in Vieux Carre might attempt to demonstrate how we such, necessarily be read as limited claims, “theoretically” remedy for find a cases, see, explicit holdings e.g., our in other appellants suggest that we order T., Marilyn (rejecting 803 F.2d at 1384-85 or, alternative, annexation undone plaintiffs suggestion that mootness

we invalidate the results of the 18th by granting request avoided for relief not subsequent February run-off. election and court), first addressed the district as well arguments only illustrate not a fatal These recent, Supreme stinging Court’s Carre, misconstruction of Vieux but also an rebuke of the Ninth Circuit Arizonans for inadequate recognition of our role in resolv English. Official ing, reviving, legal disputes. rather than Carre, preservation opening paragraphs opin The of that Vieux an historic (the speak ion society “Society”) brought clarity unmistakeable suit (the Army Corps Engineers “Corps”) present case: alleging Corps that the had authorized the competence Federal courts lack to rule aquarium park construction of an on the definitively meaning legisla- on the of state Mississippi proper riverfront without tion, may they adjudicate challenges nor procedures consultation mandated showing state measures absent a of actual National Historic Preservation Act impact challenger. The Ninth Cir- (“NHPA”), seq. 16 U.S.C. 470 et Vieux cuit, hand, sight the case at lost of these Carre, Society 948 F.2d at 1439-40. The limitations.... “sought judgment declaring Corps initiating plaintiff, Maria-Kelly [The F.] comply process, must with the historic review Yniguez commenced and maintained her sought injunction keep and also certain individual, repre- suit as an not as a class parties non-federal from proceeding with the employee sentative. A state at the time project.” Following riverfront Id. at 1440. complaint, Yniguez she filed her voluntari- remand, appeal the substance of ly employ left the State’s in 1990 and did purposes, which is irrelevant for our the dis- allege she would seek to return to a moot, trict court light dismissed the suit as post. public departure position Her park acquarium the fact that the were private sector made her claim for “virtually complete.” Id. at 1441. We re- prospective Nevertheless, relief moot. finding versed the district court’s of moot- plea Ninth Circuit held that a for nominal ness, noting although possible that it was damages Yniguez’s could be read into com- forcing Corps perform a review case, plaint to save the and therefore under the NHPA would result in no “mean- pressed on to an ultimate decision.... relief,” ingful possible it was also that review Ninth The Circuit had no warrant might, under NHPA standards even at this proceed did. The ease had lost the date, “implement[ation] late result in the [of] justiciable essential elements of a contro- measures, small, great mitigation versy and should not have been retained effects, any, some or all wrought adverse adjudication on the merits the Court park.” Granting Id. at 1446-47. Appeals. relief of NHPA review was therefore “theo- imag- English, retical” not in the sense that we had Arizonans S.Ct. at for Official possibilities ined beyond requested meaningful 1059. No distinction from those Arizo- complaint, but English rather the sense that nans exists on facts for Official case, just with a direction to dismiss’.” and remand us. The before only' prospective English, relief 520 U.S. at sought Arizonans Yniguez, like for Official they appeal, just Yniguez, -, like (quoting 11 at 1071 United below.5 On complaint Inc., 36, 39, into” their that we “read suggest Munsingwear, States pro- (1950)). and then requests for relief 104, 106, additional 95 L.Ed. 36 We As adjudication on the merits. to an ceed depart practice from that see no reason noted, however, we have Supreme Court January- court’s order of here. district proceed in a fashion. warrant” to such “no denying preliminary re controversy” requirement of “case and dismissing the claims lief to the formality nuisance III is no mere Article Utility standing, Districts for lack of —a away setting down to before to be brushed City, judgment final in favor of the and its interpretation. constitutional the business of 20,1997, to the extent issued November by requesting began this suit appellants judgment address the claims such order and certain, relief, can no and because we specific appellants, are therefore VACATED relief, the case is moot.6 longer grant REMANDED with instructions and the case to DISMISS AS MOOT. Ill DeMOSS, Judge, dissenting: Circuit becomes moot “When a civil case REPRE- NO TAXATION WITHOUT adjudication, estab appellate pending ‘[t]he is no more fundamen- system ... SENTATION —there practice ... in the federal lished democracy.1 American Our principle below tal or vacate the is to reverse potential plaintiffs have a requested that in fact appellants here to those fact that injunction constitutionally protected "right” declaratory to an to vote in a relief in addition appeal rights dismissal. Re- cannot save their are funda- given election. Because declaratory a suit quests sustain statutory mentally and not constitutional in ori- "challenge ongo- only ... some when the claims Popular Party, gin, Rodriguez Democratic see "merely policy” ing underlying than at- rather 1, 9, 2194, 2199, 72 L.Ed.2d U.S. 102 S.Ct. 457 City tacking] an isolated ... action.” Hous- ("[Tjhis of (1982) Court has often noted that 628 HUD, (D.C.Cir.1994); 24 F.3d 1429 ton v. right the of the Constitution does not confer McCorkle, Engineering Super Tire Co. see also one, vote, upon any right suffrage and that the to 1694, 1700, 115, 125-26, 94 S.Ct. 416 U.S. se, constitutionally protected right”) per is anot (1974) declaratory (holding that for L.Ed.2d 1 omitted), (citations quotation marks and internal mootness, is suffi- "[i]t to a suit from save plain language the of Harris cannot refute litigant show the existence of cient that the statutory providing that certain U.S.C. governmental definite action immediate and legal boundary changes effect” with have “no adversely policy affected and continues that has pre- conferring until regard the franchise to interest") added). (emphasis present a to affect by Attorney the extent the General. To cleared appeal appellants make no claim on argues his to vote arises not that that Harris "policy,” City or even has a defective annexation boundary-changing the statute but from from a City any policy with that the argument governance, is foreclosed fact of annexations at all. Tuscaloosa, City 439 U.S. by Holt Civic Club of 383, 389, (1978) 60, 69, argues 58 L.Ed.2d 292 that his constitutional 99 S.Ct. 6. Harris also "capable repetition yet argument of extraterritorial ex- ("Appellants’ fall within the that claims evading exception requires doc- municipal powers review” mootness concomi- tension of “[sjome clearly possibility exists trine because the franchise extension of tant extraterritorial implement voting City much.”). future that proves too obtaining changes affecting Plaintiffs without a Alternatively, did have consti- even Harris denying again requisite preclearance, Plaintiffs City elections tutionally protected to vote in and also rights to vote and run in elections” their preserved January his he could have as of that is correct in its assertion because "if op- damages by requesting as even nominal suit rights voting issue becomes moot once a request resting completely posed held, type of harm to relevant election is then injunctive relief. clearly limited duration that is of such Plaintiffs litigation complet- likely to be moot before is it is See, para. 1 Independence e.g., attempt of thinly to conflate Har- The Declaration veiled ed.” (U.S.1776), in Essential Founding Works minority plaintiffs of the ris’ claims with those ed., (Leonard Kriegel, Bantam ap- minority plaintiffs unavailing; have not Fathers 1964) despotic (criticizing British Books pealed, Moreover, their claims are not before us. and George imposing Taxes on us III "[flor monarch may and the idea that elections come Consent”); appellate without our opportunity go for effective Dickinson, Letters with no John (1768), in Essential Pennsylvania only compelling, but is so review seem a Farmer (2) revolutionary stay a a fought war se- of annexation until after the im forefathers blessings principle, pending of that and the a cure the and decision on the merits (3) claims; plaintiffs’ in resulting birth of this nation marked the state-law junction government by era of beginning of a new of the election until so (4) vote; people. Kingwood residents could declaratory judgment a ac I Consequently, as resident of Houston tions were defective under the federal Con disappointed am that this most fundamental stitution and invalid under state law. See by principle disregarded the Hous- has been Majority Op. majority pro at 188. The then City Attorney. ton Council and its plaintiffs’ requested ceeds to characterize the Kingwood annexed on De- of Houston (1) particular ways: prelimi relief in three -just in time to ensure that cember 1996— (2) relief; nary injunctive relief; declaratory could collect taxes from (3) monetary majority relief. The entirety of residents for the 1997. This an- then concludes that because the annexation part was not consensual on the nexation already place, have taken ease Kingwood, the residents of as this lawsuit so plaintiffs’ request is mooted failure to 18, 1997, January clearly indicates. On injunctive anything other than relief of City of Houston held a election to preemptive requested nature. The declara municipal to vote on allow its citizens several tory judgment majority is deemed Kingwood, issues.2 But residents who had controversy be insufficient to create a ease or just Houston, become residents were not plaintiffs because the alleged have not con permitted participate important in those injury tinuing from a defective annexation public decisions Houston. De- policy. Majority Op. (citing See at 191 n. 5 mocracy failed. residents were McCorkle, Super Eng’g Tire Co. v. beginning yet on taxed had no 115, 125-26, 40 L.Ed.2d 1 polls voice at the 18. Thomas (1974), Dep’t Houston v. Hous surely grave! Paine turned over in his Dev., ing & Urban F.3d disappointed my I am colleagues also (D.C.Cir.1994)). now think that this case is moot. Of course This ease is not moot. The suffi- provide prospective we are unable to ciently request permanent articulated injunctive plaintiffs originally relief that the relief, remedial request sought. But the asked for other declaratory judgment justiciable, and even provide, relief which the courts can and the ambiguity plead- some can be found serious constitutional violations asserted in ings, request for “all further relief to According- this case demand consideration. they may which justly show themselves to be ly, respectfully I dissent. compel entitled” should this Court to liberal- ly pleadings construe their a fashion con- I. live, continuing sistent with a controversy. declaring plaintiffs’ claims to be moot, panel majority that observes A. (1) following relief has sought: been an in- junction against plaintiffs plainly annexation and The asked the district implementation (namely, “enjoin efforts seizure of court to ... the Annexation as void property providing services); municipal Op. Majority ab initio.” at n. 2. The supra regulated by any power at taxed or on earth but our

Works Founding Fathers, (noting, denouncing own”). in the course of the Town- Acts, shend that "Those who are taxed without consent, expressed by their own their original)); themselves or (1) 2. The issues on the ballot included election of representatives, (emphasis are slaves." member, (2) at-large City an Council a referen- Summary View A Jefferson, cf. Thomas request raising City's dum to an ordinance (1774), in Essential Rights of British America (3) wage, request minimum a referendum to supra at 112— Works Founding Fathers, limiting gov- an amendment to the Charter (warning the British that the Americans taxing authority. ernmental proposed would not tolerate that "it be our properties within our own territories be shall injunction prevent sively request for an entirely on its in- hinges majority’s opinion an action which has request the commencement of plea as a terpretation of this already happened, vacating this case on exclusively. The injunctive relief prospective extraordinary plain- grounds mootness is opines that the fact that majority dodge.3 appellate claims “phrasfed] their new tiffs annexation, as ‘voiding’the in terms of B. undoing the an- disannexing or opposed to moot, majority

nexation, that this ease is the fact that the To find does not eliminate plaintiffs’ request stay only injunction or a also determines plaintiffs sought preserve a declaratory judgment does not Majority Op. at 188 n. 2. This inter- below.” provided controversy. explanation plaintiffs’ complaint does not live pretation of the appellants make no claim on scrutiny. is that “[t]he withstand appeal that the has a defective annex- court to plaintiffs asked the district ‘policy,’ even that the has ation or initio.” “enjoin ... the Annexation as void ab to annexations at all.” policy with “enjoin” require; means: “To com- The verb Majority Op. 191 n. at mand; require per- positively To direct. simple. not so applicable law is son, injunction, perform, or to writ involving circum- inquiry in a case mootness from, some act.” Blaok’s abstain or desist inception of ed.1990). Dictionary between the stances “Void” Law final is the lawsuit and the time of decision “Null; ineffectual; having nugatory; means: case-specific. generally 13A intensely See unable, effect; legal binding no force Wright al., law, et Federal PraC- AlaN support purpose for which was Charles ” ed.1984). (2d § 3533.3 means: tice and Procedure Id. at 1573. “Ab initio intended.” Wright’s leading treatise notes As Professor act; from the first beginning; “From the summary: Thus, para- inception.” at 6. from the Id. question is whether it re- The central

phrase, the asked district appropriate provide a declaration from actions mains require desist rights perhaps some additional rem- because the an- implementing the annexation nexation, edy. question to this is con- inception, legal The answer from its had inventiveness, careful request in- trolled remedial binding effect. That force circumstances, and majority’s proposed present distinguishable from the assessment undoing predictions of the future.... As “disannexing or wise formulations of aspects justiciability, the measures Majority Op. n. 2. Be- other at 188 annexation.” not, not be taken factual of mootness should plaintiffs’ request cause the for relief it, alone. Account also must judgments exclu- majority has characterized mootness, principles of and that analysis sought lishes no new of the relief in this case panel majority does not control this case. amply decision demonstrates that the weight placed on the decision in more Arizonans case, present continue to In the Arizona, English v. U.S. 117 520 initially alleged for Official impact the from the of suffer 1055, (1997), L.Ed.2d than that 137 170 challenged Kingwood residents have violations. Majority Op. at 189-91. In case will bear. See King- authority City’s the annexation of the wood, case, plaintiff Yniguez the contended Arizonans Kingwood, they live in and continue to provision that that Arizona’s stale constitutional City governance. subject Former English and in no other "the State 'shall act in challenges; utility districts raised similar ” job language’ her meant that "she would lose they no property seized and now serve has been immediately other if she did not City provides or face sanctions services to function because the Spanish serving speaking the impact, City’s refrain from while Kingwood. the created actions, English, 117 S.Ct. State.” once allegedly did not vanish Arizonans unlawful for Official XXVIII, (quoting accomplished art. a new at 1060 was and the annexation Const, Ariz Thus, 3(l)(a)). trial and the Between the time of was held. unlike the round of elections appeal, single plaintiff treatment of the case on who defused the liti- Ninth Circuit's in Arizonans Yniguez job by removing no the work envi- gation left her with the state. There was herself from case, plain- gave these established, longer any would be fired or rise to the threat that she ronment which which, injuries longer alleged punished worked for the tiffs have because she no nothing day, they have done to this and was because the controver- continue state. The case moot disappear. injuries to sy completely estab- to cause those had vanished. Arizonans 194 importance parties’ resolving dispute of the of the interest the over the

taken interests, possibility though practical election even the that future events there was remedy change specifically alleged facts or violations. may generate new the issues, difficulty sensitivity the and of and Even in the framework outlined the remaining impact or risk the issues. Less majority, plain- it is less than clear that the impact future should be demanded if of declaratory judgment tiffs’ action is not a live at stake. vital interests are More be controversy. The absence of a written demanded, hand, if on the other a court is “policy” concerning simply annexations not asked to resolve issues are difficult or necessary determinative.4 Were it to identi- sensitive, lest a mistaken harm one, however, fy “policy” the relevant parties both the and others. The useful- City’s complete municipal be the exercise of present adjudication is also ness under- authority over as a result of the prospect mined future annexation, putatively accomplished in accor- dispute may provide new facts that better dance with Texas law.

illuminate or even the issues. The balance of factors leans favor of attempts Id. at 300-01. The treatise exercising jurisdiction plaintiffs’ trace ap- over the categories “changed peal out several of these cir- declaratory from denial of Super Engineering Tire cumstances” cases. relief. There are remedies available. For McCorkle, 115, 1694, example, Co. v. 416 U.S. 94 S.Ct. could be ordered to refund (1974), Supreme 40 L.Ed.2d Court case taxes to the disenfranchised voters for the upon by majority, example portion is an year during relied of the which the party, vote, engaged case which once in a denied them the or the action, activity required relevant course ceased that could be to resubmit the referenda pendency during appeared of the lawsuit but 18 ballot to a likely interrupted continue the course of new election. Parties on both sides of upon culmination legal pro- litigation conduct continuing have a interest Wright ceedings. supra, determining See 13A legality City’s al., of the annex- et 3533.3, case, present at 281-84. strategies impact ation and their however, only changed rights. likely circumstance is These issues again are to arise annexation, election, again contested expand continues to place. Analyzing referenda have taken outlying and annex areas. See Storer v. Brown, 724, plaintiffs’ case terms of the state-law n. 94 S.Ct. claims, (1974) continuing impact they is that n. (apply- L.Ed.2d must live with consequences ing capable-of-repetition-yet-evading-review actions, analysis which the contend were to determine that an election chal- vires, moot, ultra pursuant taken lenge despite incorrect inter- was not the fact that the pretations occurred, already state’s election and annex- election had because “the respect, statute, ation laws. In this the case is more understanding construction of the akin to Wirtz v. Local operation, possible Glass Blowers of its constitutional Association, application, U.S. 19 limits on its will have the effect (1968), L.Ed.2d 705 simplifying which suit was challenges, future thus increas- brought ing set aside an election timely of union the likelihood that filed cases can officials. A new adjudicated held”); uncontested election was before an election is lawsuit, during progress held Spears, but Backus 677 F.2d 398 n. 3 Cir.1982). Supreme Moreover, Court held that the suit plaintiffs’ interests moot paramount because fulfillment of the relevant stat- importance: are of the vindication depended upon utes legal appli- their fair and rights. fundamental constitutional cation, parties and the continuing thus had a squarely presented The issue has been determinations, Dep’t Housing 4. Houston v. & Urban of these mootness as well as the Dev., (D.C.Cir.1994), upon by 24 F.3d 1421 relied other factors set out in the text which counsel majority, declaratory deals with mootness, against a determination of that case is agencies purpose invalidating federal for a inapposite. disputed policy. case-specific Given the nature

195 behind a mootness debated, parties games now order to hide and the thoroughly majority’s opinion dismissing posi- The opposing dismissal. adjudication of them await then, declaratory judg- grounds is therefore this case on mootness Plainly, tions. is not moot. indefensible. aspect of this case ment Having that this case is not concluded

C. moot, plain- I now turn to the merits of the them com- Finally, concluded tiffs’ ease. further relief to by asking for “all plaint justly enti- they may show themselves

which II. why phrase like There is a reason tled.” plaintiffs alleged proposed that “the The complaint. The federal put into a this is Kingwood area would vio- annexation of the system of “notice operate under a courts Fifteenth Amend- late the Fourteenth and Gibson, 355 pleading.” Conley U.S. See ments of the United States Constitution be- 99, 103, 41, 47-48, 2 L.Ed.2d 80 78 S.Ct. deny abridge it would or cause (1957). long plain it is what claims the As rights of John Harris and other has and what relief plaintiff has asserted rejecting this residents.” In the course of magic a failure to recite words sought, been claim, the court found there is no district Cfi, preclude e.g., Federal should not relief. re- credible evidence of racial animus with Corp. Ins. v. Texas Real Savings & Loan Kingwood. The spect to the annexation of Counselors, Inc., 955 F.2d 261 Estate trial that credible “[t]he court determined Cir.1992) (plaintiffs pleadings, requesting establishes that the an- evidence relief, general, “any other both pursued legitimate financial nexation entitled,” justly would be which it improper policy reasons and not for an unarticulated claim construed to include discriminatory purpose.” The racially dis- interest). prejudgment correctly that the an- trict court determined Moreover, Rules of Civil Pro- the Federal discriminatory nexation was not motivated Supreme precedent of the Court cedure and intent, plaintiffs’ Fifteenth and therefore the specifically prohibit our Court from dismiss- claim is foreclosed.5 But Amendment plain- ing grounds case on the of the Four- allegation of a broad violation “enjoin ... court to tiffs asked district Amendment, however, remains as teenth ” rather as void ab initio the Annexation in this case. completely viable and valid claim or asking than the court “disannex” been declared to be “[Ejvery right final to vote has offensive conduct. “undo” the generally accepted as a “fundamental” to which the and is grant shall the relief purposes of the Fourteenth right is enti- party in whose favor it is rendered Sims, Reynolds v. tled, Amendment. See party even if the has not demanded 1377-78, 554-55, 1362, 533, 84 S.Ct. pleadings.” Fed. R. U.S. party’s relief in the such (1964).6 Supreme Court should not L.Ed.2d 506 54(c). P. federal court “[A] Civ. “a citizen abundantly clear that claim be- has made it meritorious constitutional dismiss a constitutionally protected right par remedy complaint one rather cause the seeks equal basis with ticipate in elections on plainly appropriate one.” Holt than another Tuscaloosa, jurisdiction.” Dunn v. other citizens 439 U.S. Civic Chib (1978). Blumstein, 330, 336, 92 383, 387, 405 U.S. S.Ct. 58 L.Ed.2d S.Ct. (citing Evans v. Corn they 31 L.Ed.2d plain what relief made man, 419, 421-22, 90 S.Ct. play word 398 U.S. seeking, and we should are "Undeniably the United protects against the Constitution of de- Amendment The Fifteenth qualified protects right citizens of all abridgment vole “on ac- States nial race, color, freely to vote previous vote.... condition of count of amend, Voting choice is of essence xv. The candidate of one's U.S. servitude.” Const, society, authority restrictions on democratic Rights Act draws its constitutional govern- representative right strike at the heart of Rome v. the Fifteenth Amendment. See 554-55, States, at Reynolds, at 377 U.S. ment.” United (1980). 1377-78. 64 L.Ed.2d 119 196 (1970);

1752, 1754-55, 26 L.Ed.2d 370 it did because a election to fill the v. Free Sch. Dist. No. 395 vacancy Kramer Union required by Council was 621, 626-28, 1886, 1889-90, 89 S.Ct. 23 law, U.S. state see Loe. Gov’t Code Ann. Tex. (1969); Cipriano City (Vernon Hou- L.Ed.2d 583 § Supp.1998), 26.045 and the date of ma, 701, 706, 1897, 1900, 89 S.Ct. 23 U.S. law, see, regulated by the election was state (1969); Harper Virginia L.Ed.2d 647 41.001(a) (Ver- e.g., § Tex. Eleo.Code Ann. Elections, 663, 667, State Bd. 383 U.S. 1986). Furthermore, non contends 1079, 1081, 16 (1966); S.Ct. L.Ed.2d 169 Car- law, Kingwood that under federal voters Rash, 89, 93-94, rington v. participate prior could not in an election to 775, 778, 779, (1965); 13 L.Ed.2d 675 preclearanee. See U.S.C. 1973c. The 1381). Reynolds, 377 U.S. at 84 S.Ct. at get taking could not before right participate pro- The to in elections as annexation, final action on the and would by tected the Fourteenth Amendment in- practicable not be to have at- right municipality’s cludes the bona fide tempted to time the annexation to allow for municipal residents to vote in elections for preclearance because the amount of time See, representatives. e.g., Carrington, 380 by Department needed of Justice Fi- varies. U.S. at 85 S.Ct. at 779. nally, City says it would have also been 11, 1996, Kingwood impracticable On December was an- undesirable or delay annex- by nexed Houston. On ation or the effective date of annexation until Kingwood Houston held election which City’s after the election because the taxes are permitted participate. residents were not property assessed based on the value of hold- voting rights The residents’ were ings on and therefore the end thereby compromised. impairment year only practical is the time to annex right residents’ constitutional territory.7 nothing There is which is “nar- to vote must be reviewed under the strict rowly “compelling” tailored” or about Kramer, scrutiny standard. at See U.S. City’s position. 626-27, 1889-90; generally at see Rotunda, E. Nowak & Ronald D.

John Con- A. (4th ed.1991). 14.31 stitutional Law scrutiny requires Strict that the restriction of City’s point voting rights first —that justified right constitutional a nar- contingent upon preclearance are uncon- —is See, rowly compelling tailored state interest. vincing implies because it that a fundamental Meno, e.g., Messer v. 130 F.3d right constitutional opera- limited Cir.1997). tion of a protecting aspect federal statute one City’s position right. of that satisfy does not strict reliance on scrutiny. Voting Rights misplaced contends first that Act is no because Sec- implicated tion 5 of right fundamental because no Act does not preclearanee purport affirmatively permit vote accrued until elections to Secondly, place obtained. claims that it take participation by with less than full option had no but to conduct the eligible election as all prohibition voters.8 The Act’s My quarrel fication, standard, City's timing prerequisite, is not with the practice, or reap annexation procedure so as to maximum tax bene- purpose does not have the and will fit, City's subsequent but rather with the refusal denying abridging not have the effect of or newly to accommodate the color, annexed residents’ right to vote on account of race or or in right to vote. guarantees contravention of the set forth in 1973b(f)(2) title, section of this unless provides, pertinent part: Section 5 person until the court enters such political shall be denied the Whenever a State or to vote subdivision ... for failure comply qualification, prerequisite, shall dard, or with such enact seek to administer ... stan- standard, Provided, practice, practice, procedure procedure: or or That standard, qualification, prerequisite, different such from that in force or effect on practice, procedure may November 1964 ... such State subdivi- or be enforced with- sion proceeding qualification, pre- institute an action in the out United such if the standard, requisite, practice, States District Court procedure for the District of Colum- declaratory judgment quali- bia for a legal that such been submitted chief officer or prior preclear general election of the was scheduled elections states that to certain ance, right days be denied the to person “no shall for November more than 270 comply” failure to with some away, special vote for and therefore a election was voting process. 42 political in a unit’s U.S.C. required vacancy. to fill this Though language § this has been 1973c. filling to the With vacant seat on newly prohibit annexed voters construed Council, timing requirement the the participating in an election after annex specified § Local Government Code 26.045 po ation and before because of special that election shall be held on an “[t]he upon infringement tential the to vote prescribed uniform authorized election date through affecting vote dilution those citizens by the Election Code that occurs before the municipality prior in who resided to an general enough election and that allows time Matthews, nexation, see Perkins v. required to hold the election in the manner (1971), 27 L.Ed.2d 476 by law.”9 The authorized uniform election way requires proceeding statute in no “(1) Saturday are: in dates the third Janu- old, pre-annexation an election based on the (2) (3) ary; May; Saturday the first denying boundaries and the voters in the (4) Saturday August; second the first newly-annexed area the to vote. See Tuesday Monday after the first in Novem- Va., Blacksburg, Duncan Town of 41.001(a) § ber.” Tex. Elec.Code Ann. (W.D.Va.1973). F.Supp. This is evi (Vernon 1986). explained has not both from the text of Section 5 and the dent why special this Court election could supremacy hierarchical of Fourteenth Saturday not have been on first held Amendment-protected voting rights over May following the annexation rather than the voting rights. Voting Rights Act-created Saturday January, third which Saturday May date selected. The first

B. sixty days would have allowed the full needed City’s point is also unconvinc- second Department of Justice to act on the ing merely how because describes preclearance application from December painted into corner itself and as result filing, the date of its and then an 40,000 nearly the franchise to voters. denied seventy-two days preclear- additional after contention state law re- ance to tend to the administrative details of quired to hold the election on Janu- the election.10 ary simply Peavy, 18 is not true. John previous occupant open City It Texas statute Council should be noted this seat, resigned July requires that with his the election be scheduled “enough resignation upon to be effective the election allow time to hold the election Log. qualification required by Tex. of his successor. The next manner law.” Gov’t appropriate municipality vacancy official State occurred in other of such or sub- entire if the at-large position, vacancy. Attorney fill the division to the and the Attor- General special shall bo held on an authorized ney interposed objection election General has not submission, prescribed by uniform election date the Elec- sixty days within after such general shown, tion Code occurs before elec- upon good expe- cause to facilitate an enough tion and that allows time to hold the approval sixty days dited within after such required hy election in the manner law and submission, Attorney General has affirma- shall be conducted in the manner as the same tively objection indicated that such will not be municipality’s general except pro- made. by provisions appli- vided of the Election Code (emphasis supplied). § 42 U.S.C. 1973c special cable to elections to fill vacancies. (Vernon Supp. 26.045 Tex Loc Gov't Code Ann. pertinent provides, entirety: 9. The statute in its 1998) (emphasis supplied). vacancy governing body If a occurs on municipality population with a 1.5 Although throughout of million I refer here and days opinion application Department or more and more than remain be- of Jus- general by § preclearance required fore the date of the next election of tice for the governing body, governing time-consuming option members of the also had the more body applying shall order a election in the dis- District Court for United States occurred, vacancy trict in which the or in the the District of Columbia. See 42 U.S.C. 1973c. (Vernon posed or resolution shall be sub- Supp.1998). ordinance § 26.045 Ann. Code upon to be voted “in the man- mitted without alteration holding of elections Surely, the holding election. elec- at such by law” means required ner Constitution. See U.S. violate the tions that City VTIb, § 2. art. Houston Charter Const, VI, § 2. art. City that these refer- contends While 18, on issues on the ballot: enda had to be considered were two other There authority controlling rais- law shows this City’s taxing examination of limiting the case of wage in Houston. Both the case. Just as minimum not to be ing the member, at-large a of council with placed electing the ballot as result a new were on issues Texas law support respect of each referen- to the charter amendment signature drive “to sufficiency petition enough of the time be allowed requires dum.11 The City Secretary of the law.” by comply requirements with other was verified each issue 9.004(b) (Ver- Log. 6,1996. Anna Russell on December Tex. Gov’t Code Ann. 1986). supra, explained As the Constitu- non taxing authori- limitation on proposed voting rights protections of constitute tion’s of a charter amendment. ty took the form City requirements of law with which the timing of on to the referenda respect With provide comply. If Texas law did not must amendments, provides: Texas law charter clause, unconstitution- escape this it would be shall ordering the election The ordinance ease, applied voting rights where al as this on the election to be held provide for the reason, very infringed. And for that were pre- election date authorized uniform first provide Charter does not because on the Election Code or scribed accommodating any apparent mechanism for municipal next of the earlier date problems legal which be en- external general general presidential election or scheduling of certain elec- countered date must allow election. The election 2(c) tions, Vllb, is uncon- its Article Section comply other re- time to with sufficient quirements applied as in this case. Strict stitutional must occur on or law and scrutiny applies legality to test day the date the ordi- the SOth after after certainly scheduling provision, and there was adopted. nance is refusing legitimate government interest (Vernon 9.004(b) Tex. Ann. Loo. Gov’t until delay submission of the referenda 1986)(emphasis supplied). Thus, preclearance was obtained. empowered proceed with these was not timing of the referendum With prior to because mini- referenda regarding ordinance proposed Kingwood residents’ con- action violated the provides that wages, mum Charter certified, rights. stitutional once the issue had been council, days receipt ten after within C. thereof, provided in except otherwise apparent that once the annexation Chapter, pass such ordi- It shall either alteration, passed finally was nance without ordinance or resolution 12,1996, reading December vote at a on second on popular submit it to the election, thirty City something was with held within of Houston faced which must be thereof; choice as to whether it should days ordering a Hobson’s after the date of however, on which provided, other munic- hold the election subject sixty days matter of this case. The law ipal election within is the is to be held crystal 1971that petition pro- said has been clear since filing after the Living Wage orga- cam- campaign Vote On October 11. A called Tax '97 was forcing purpose plan signa- on paign nized for the referendum to collect kicked off. The was prohibit a measure that would Council raising the mini- tures to force a referendum on raising and certain fees without the taxes per wage $6.50 A in Houston to hour. mum plan permission announced of voters. The was 30,000 signatures approximately petition with peti- on On November October to the on November was turned over 20,000 presented signatures tion with over City. boundary Changing Department lines annexations of Justice to occur. If enlarge city’s eligible which number of Department gave pre-clear- Justice ance, voters also constitutes the the election would then have been held practice procedure re- “standard May on 3 with all residents of the spect voting.” Clearly revision of Houston, including King- the residents of boundary lines has an effect wood, being permitted to vote. On the other (1) ways: by including two certain voters hand, Department if the of Justice refused outside, city leaving within the others preclearance, either the annexation could may it determines who vote in the munici- repealed have been and an election held (2) not; pal election and who it dilutes pre-annexation boundaries, based on or the weight the of the votes of the voters to election could have been rescheduled for a whom the franchise was limited before the later compliance date to allow time for with annexation, “right suffrage and the of can Department other mandates of the of Justice. by be denied a debasement or dilution of proceed second alternative was to with weight just the of a citizen’s vote as effec- January the election as scheduled on 18 and tively by wholly prohibiting the free permit newly-annexed the King- residents of exercise franchise.” to wood vote that election. This alterna Perkins, 400 U.S. at at put City tive would the in technical noncom (quoting Reynolds, 377 at U.S. 84 S.Ct. pliance Voting Rights with the Act and would 1378). Consequently, City certainly at the given minority have the in this case (or legal knew reasonably its counsel should grounds injunction stay to holding the known) completion have the of annex- See, e.g., Lopez such an election. v. Mon produce duty responsi- ation would the Cal., terey County, bility part City comply of the to (1996). 347, 136 L.Ed.2d 273 Depart If the provisions the terms and of Section 5 of the ultimately ment of Justice determined that Voting Rights regarding preclearanee Act preclearance the annexation met require voting changes by Department the of Justice. ments, injunction, issued, the if one had process of annexation of offi- lifted, would have been and the election cially began passage with the of the annex- would have been scheduled for a new at date reading ation ordinance on first on October qualified which all the voters in the application 1996. While it is true that an permitted Or, would have been if vote. no preclearanee cannot be submitted injunction sought, had been the election Department passage of Justice until final actually place which took would have been ordinance, City certainly the annexation the Department validated because the of Justice (or legal knew its counsel should have did, fact, ultimately preclear the annex known) ultimately would Perkins, 396-97, ation. at U.S. Cf. required any be before election could held scenario, S.Ct. at 441. Under this if the newly-annexed which the included area. The Department of Justice had determined that 18,1997 special January election on was obvi- satisfy require the annexation could not ously City during scheduled the time Act, Voting Rights injunc ments of the process being that the annexation was final- tion, any, would have been continued ized, part with clear awareness on the effect until the took whatever action was completion that final of the annexation Department mandated of Justice as process undoubtedly occur before the being necessary preclearanee. to secure If end of December 1996 so that the annexation issued, injunction had the election itself applicable purposes would be for tax as of subject being would have been declared January the tax assessment date of noncompliance Voting invalid for with the finally Once the annexation ordinance was ' Rights Act. See id. passed, had three choices.

First, City might The third alternative which the changed could have special date of the have then-scheduled election chosen was one which the May actually holding 1997 to there- chose: 18,' allowing preclearanee denying right sufficient time for but Voting Rights Act its Kingwood to vote citizens under residents of newly-annexed important newly-annexed citizens under the Fourteenth It is note in the election. purely require vote a mora- Amendment. Those duties denial of implemented with- City, during which it of all elections torium on the conduct idea of the authority. This unconstitutional date of period following out valid the effective required by nor the preclearanee action was has been ob- course of annexation until by the federal district decision result tained satisfaction of Department of Justice. by the nor regret Act. I that the “mootness” decision nothing in the record this case There is my colleagues precludes this Court from ad- and who made the deci- shows when which adopting that dressing and rule. newly-annexed deny citizens sion vote. The annexation D. says nothing denying about ordinance itself City opinion claims that the of a three- citizens of the area to right to vote to the the Indianola, City judge court in Dotson v. annexed, of there is no other ordinance and (N.D.Miss.1981), F.Supp. gives it au- by City in this record adopted the Council deny thority the to vote to the new subject. And as was this which addresses view, my In the reli- Kingwood residents. by grant pre- the of ultimately demonstrated City language in is ance of the Dotson Justice, of by Department the clearance misplaced. completely fact, was, grounds or basis for there in newly-annexed denying the voters very straightfor- facts in Dotson are in this election. Had Kingwood area to vote 1965, 1966, May May September In ward. waited, Kingwood City simply residents the 1966, 1967, July City the of Indianola - participate. able to would have been completed of various areas of annexations City by the of Houston error of land to its boundaries. Each of these annex- categorized as harmless. certainly can not be eligible ations added new voters to the elec- 40,000 qualified registered and There were toral base for Indianola. Indianola conceded who could and in area voters the it had never obtained of permitted to vote should have been required of these annexations as Sec- election. implemented and tion 5. Indianola relied options foregoing which the the three Of upon municipal these annexations in the elec- passage of the annex- City upon final had 1968,1969,1973, tions conducted and 1977. ordinance, permit- only one which ation persons residing In elections each of these simultaneously satisfy City to its ted -the newly-annexed participated areas both as Act to obligations under voters and candidates. obligations preclearance and its under seek In October the Assistant United City Amendment and its own the Fourteenth Attorney Rights for the Civil States General voting rights of its Charter12 to enforce correspondence Division initiated with the was the first one de- newly-annexed citizens Indianola, city attorney notifying the spe- postponing the then-scheduled scribed: preclearanee un- required annexations these May 1997 to cial election city requested to der Section 5. The nothing this case which 1997. There is necessary submit the documentations City “compelling” inter- shows that the had Attorney General to review these annex- only holding special est in election essentially ations. The of Indianola common sense and Good responded requests. never these policy require a sound constitutional August Department of Justice governmental entity recognize a rule that annexation, city attorney, asking again wrote to the power it it when exercises the of previously requested additional informa- obligations existing to both its duties and Houston, I, ("[W]hen part of and the inhabit- be a See art. 2b Charter Houston rights [providing shall be entitled to all such for the extension of ants ordinance thereof sup- ...(emphasis privileges boundary other Houston] limits of the citizens finally passed territory plied)). the said so annexed sháll Dotson, F.Supp. quoted at 403. It is this Nelson Dotson and tion. In October residents, citizens, language upon which the of Houston adult other black seeking brought an action relies. qualified voters declaratory and extrapo- For the of Houston to now of Indianola because

mayor and aldermen language in quoted late from the Dotson a corporate to the limits the four annexations authorizing deny it general rule unilateral- in 1965-67 Indianola which had occurred ly newly-annexed Kingwood the voters precleared. never been had is, my to vote area the humble setting aside the 1977 mu- sought an order opinion, preposterous. quoted language scheduling nicipal elections and qualify holding precedential cannot as a with city new officials. At the choose jurisdiction in this case. The value opinion, the Dotson the incumbent time of three-judge court convened to address a had been elected in mayor and aldermen Voting violation of 5 of the claimed Section the five aldermen resided and four of Essentially, Rights extremely Act is limited. the annexed areas. panel hearing a the district court Section During of this consideration matter challenge charged determining wheth- court, city attorney three-judge for Indi- complained the action taken er represented anola to the court “that all the voting change within constitutes preelearanee information requested ha[d] 5; does, meaning of Section Attorney General of been submitted must then determine whether 1,1981.” May as of While the United States preclearance has received under the terms of three-judge court declined to void the the Perkins, 383-84, 5. See 400 U.S. at 91 Section special call a election be- 1977 elections and If S.Ct. at 434. the answer to the first general the election for these offices no, cause question yes question is is and the second would “be conducted November 8 and De- jurisdiction three-judge panel give to the year,” it the cember 10 of did issue th[at] may plaintiffs temporary the such relief as be prospective injunctive following statement as necessary preclearance re- to allow for the relief: See, 396-97, e.g., view. id. at 91 S.Ct. at 441.

However, jurisdiction, Indianola cannot continue to Given this narrow and limited precedential precatory upon post- the value of the state- hold elections based uncleared city panel rights until ment the Dotson as to the of limits. Unless and annexation in City post-Act residing of its “citizens such annexed areas” the obtains clearance greatly in seems diminished to me. case annexations accordance Section voting rights newly-annexed the of all future elections must be conducted on concerns they city they citizens who were disenfranchised when the basis of the boundaries as in unprecleared participation the annex- were excluded from an elec- existed before made, That the three- residing ations were and citizens tion. issue was not before Dotson, may judge nor was it participate such annexed areas not court convened elections, municipal three-judge previously the court con- future either before litigation.13 vened in this electors or as candidates. Moreover, subject options under the statutes. the distinctions between the two was various city legion. newly-annexed four of the aldermen resided cases are In Dotson the In Dotson five vote; permitted present the which had been annexed without areas had been case, in the areas case, preclearance; mayor newly-annexed the nor the areas were denied the in our neither Kingwood. City city any City right the itself. In the Council member resided in to vote Dotson history attempted preclearance of never to secure until af- In Dotson there was demonstrated Act; Rights actually non-compliance Voting court with the ter the lawsuit was before the later; here, City years City of thirteen the filed there is no evidence whatsoever some history non-compliance. preclearance papers shortly had a of Fi- after the final annex- Houston vole, nothing preclearance process nally, significantly, and most there is ation and the opinion the underway the the Dotson which would indicate that at the time asked for contesting validity ques- the the elections in in that case were relief. Dotson themselves, plain- regularly primary gen- the annexations nor that the were scheduled of tion case, elections; asserting any ques- claim or tiffs in Dotson were eral in this election, special timing as distin- under the Fourteenth Amendment tion was a of which they properly were thus whether not dis-

E. initially below. missed The district City’s to hold the decision claims, noting to address these declined violated both United special election issues the state-law raised would render City’s char- own Constitution and States initio, void ab and therefore annexation with the choices of disenfranchis- ter. Faced brought must be in the name of the claims rescheduling ing the residents quo proceeding. in a state warranto15 election, deny chose to subsequently claims state-law were dis- 40,000 newly-annexed residents missed. vote. firmly by a line It has been established only way prevail could Supreme precedent Court that “[t]he Texas residents’ of the denial issue only proper attacking validity method for voting rights would to show some suffi- city’s territory by quo annexation of gov- ciently compelling narrowly tailored proceeding, warranto unless the annexation of re- ernment interest. The inconvenience wholly void.” Co. v. Alexander Oil scheduling the not meet election does (cit- (Tex.1991) Seguin, 825 S.W.2d require- high standard. With Elliott, ing 476 S.W.2d Hoffman law, of state I would hold that ments (Tex.1972) curiam); (per Graham City’s satisfy scruti- conduct does not strict Greenville, 67 Tex. 2 S.W. ny, statutory options available given Yoakum, (1886); Kuhn v. 6 S.W.2d this result. To the extent that the avoid (Tex. App.1928, judgm’t Comm’n required have Charter be construed to adopted)). proposed in- the referendum on the wage place prior take crease minimum Supreme compiled The Texas Court boundaries, new compendium following of circumstances in applied. I it is unconstitutional as which annexation had been held void rath- Harris, therefore conclude that John merely er than voidable: sought resident to vote who and private Historically, challenges of annex- run elec- for office ation ordinances have been sustained and tion, proved a of constitutional violation following the ordinance held void in the aspect magnitude. I would reverse this territory an instances: annexation ex- court’s remand the district and to limitations; ceeding statutory size appropriate rem- the district court so that an attempted territory annexation of within edy could be fashioned. corporate municipali- of another limits ty contiguous or which was not with its III. limits; an attempted own annexation in case, remaining boundary claims in this which the of the annexed territo- raised utility plaintiffs, ry using description district concern not close did con- City’s power Kingwood.14 to annex The mer- tained in the The common ordinance. trait closely its of claims exam- in these cases is the municipality these need not be whether presented authority delegat- ined because the to issue exceeded annexation appeal plain- power is Legislature. Court on whether or not the ed to claims, standing bring political tiffs have annex is branch- committed Literally, "by guished Voting authority.” from iheir claims under what Black’s Law Rights seq., § supra, Act of 42 U.S.C. 1973 et purpose at 1256. "The of a Dictionary, authority which derives its from the Fifteenth quo proceeding question warranto Amendment. person corporation, including a munici- pality, public to exercise franchise office.” minority plaintiffs alleged voting 14. The below Seguin, Alexander Oil Co. v. 825 S.W.2d rights violations and Fif- under the Fourteenth (Tex.1991). 436-37 § teenth Amendments plaintiffs appeal Act. These did not from the below, judgments their claims and therefore are not before our Court. legislative trict court’s of relief as to all government; it is a denial es of state other than Harris. prerogative. (citations omitted). The violations

Id. at 438 suggest do not

alleged beyond completely

this annexation authority granted the annexation

bounds of

by the state. irregu- plaintiffs allege following strategic part- negotiate failure to

larities: nership agreement with the districts (Tex. HOLLYWOOD FANTASY 43.0751(b) (Vernon § Loc. Gov’t Code Ann. CORPORATION, Plaintiff-Appellee, September Supp.1998)); annexation before (Tex. Ann. Loo. Gov’t Code 43.0751(m) (Vernon Supp.1998)); fail- GABOR, Defendant-Appellant. Zsa Zsa plan provide adequate service (Tex. ure No. 93-8199. (Ver- 43.056(a), (g) Code Ann. Loc. Gov’t Supp.1998)). allegations non None of these Appeals, Court of United States city’s authority fundamental strike the Fifth Circuit. merely point Kingwood. They annex questions procedure or how to an- —when Aug. nex, but not if the could annex. utility plaintiffs’ allega-

Each of the district subject proper quo warranto

tions is

proceeding. The court’s initial reac- district correct, certainly

tion the state law properly

claims were dismissed.

IV. respectfully not moot. I dis-

This case is my colleagues’ opposite conclusion.

sent merits, I

On the would conclude that Harris and other

right of Plaintiff John participate in

Kingwood residents to vote and election was violated. fundamental, truly to vote is of Houston

therefore the decision during period between

to hold an election preelearance deny

annexation and right to at

residents of vote

such election constituted a violation rights.

Kingwood residents’ constitutional would, therefore,

I reverse the relief to

of the district court which denied Harris, I

Plaintiff and would remand John portion of this case to the district appropriate declaratory fashioning relief. plaintiffs’ complaints are merit-

The other therefore,

less, would, I affirm the dis-

Case Details

Case Name: Harris v. The City of Houston

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 12, 1998

Citation: 151 F.3d 186

Docket Number: 97-20138, 98-20001

Court Abbreviation: 5th Cir.