Lee v. Smith

927 F. Supp. 205, 1996 U.S. Dist. LEXIS 7703, 1996 WL 303632
CourtDistrict Court, E.D. Texas
DecidedApril 16, 1996
DocketNo. 1:96-CV-0173
StatusPublished

This text of 927 F. Supp. 205 (Lee v. Smith) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Smith, 927 F. Supp. 205, 1996 U.S. Dist. LEXIS 7703, 1996 WL 303632 (E.D. Tex. 1996).

Opinion

MEMORANDUM OPINION

COBB, District Judge.

The Plaintiffs, Allan Lee, Martha Clark, and Glenda Dent, filed this action seeking to enjoin the City of Beaumont, and Rosemarie Smith, the City Clerk, from holding its election for city officers presently set for May 4, 1996, unless the ballot includes a referendum calling for a Citizens’ Police Review Board.

The City Charter of Beaumont has provisions by which a referendum (initiative) can be placed on a ballot if the required number of citizens sign valid petitions within sixty (60) days after a Notice of Intention to Circulate a Petition is filed with the City Clerk. Beaumont City Charter Art. XI, Section 2 (Charter).

On August 9, 1995, Plaintiff Lee filed a Notice of Intention, and he and others circulated petitions and filed them sixty-one days later, the 60th day falling on a Sunday. The Clerk received them on a Monday, and told the Plaintiff she would not certify them to the Mayor and City Council because the petitions were not timely returned and did not have the requisite number of valid signatures. Thus, the so-called first petition was never actually filed with the City Clerk.

The Plaintiff Lee apparently acquiesced in the Clerk’s decision, but doggedly pursued his effort to obtain the required number of [207]*207signatures of registered voters in Beaumont, and commenced a second petition drive on Monday, October 9, 1995, the day he attempted to submit the first petition. Lee returned the second petition on December 8, 1995, and the city accepted the petition as being timely filed.

On December 13, 1995, the Clerk notified Lee that the petition was insufficient as it was lacking some or all of the following:

1) a voter registration certificate number for each signature
2) a voting precinct number for each signature
3) the name, on each page of the petition, of the person circulating the petition
4) the addresses of some of the signers
5) the sworn statement containing the circulator’s name, address, voting precinct number, and voter registration number on each page he circulated.

In addition, the Clerk noted that the submitted petition was a photocopy and she requested that the original petition be submitted. (Defendant’s Exhibit D, Clerk’s Letter to Mr. Lee, dated December 13, 1995). Accordingly, the petition was found to be insufficient and was returned to the Plaintiff.

The Plaintiff retrieved the petition from the City Clerk on December 28, 1995. The ten day period for refiling the amended petition fell on Sunday, January 7, 1996. Plaintiff Lee filed the amended petition on Monday, January 8, 1996. The City Clerk assumed custody of the petition for review purposes. The Clerk’s office completed its review of the petition on Wednesday, January 17, 1996 (at approximately 4:30 p.m.). By letter dated January 22, 1996, the City Clerk notified the Beaumont City Council and Plaintiff Lee of the second amended petition’s insufficiency. The Clerk noted the petition, had been filed on the eleventh (11th) day after Mr. Lee retrieved the petition from the Clerk. Further, the Clerk reported her tabulation of the number of valid signatures contained in the petition as 2,485. To be valid, the petition must contain 3,395 signatures — this is a 910 signature deficit.

The Plaintiffs contend the City and its Clerk have violated the laws (42 U.S.C. § 1983) and Constitution of the United States (Amendments 1 and 14), citing an unconstitutional denial of ballot access.

Standards for Preliminary Injunction

In an effort to ensure the placement of the petitioned referendum on the May 4, 1996 ballot, the Plaintiffs seek a preliminary injunction. The purposes of a preliminary injunction are to preserve the status quo and to prevent irreparable injury pending final disposition of the case. Four factors are considered in awarding such relief:

1) Is there a substantial likelihood that the plaintiff -will prevail on the merits?
2) Is there a substantial threat that plaintiffs will suffer irreparable injury if the injunctive relief is not granted?
3) Does the threatened injury to the plaintiffs outweigh the threatened harm the injunction may do to the defendants?
4) Will the granting of a preliminary injunction disserve the public interest?

Buchanan v. United States Postal Service, 508 F.2d 259, 266 (5th Cir.1975). For the reasons discussed more fully herein, the Court finds that a preliminary injunction is not justified in this case.

ANALYSIS

The City of Beaumont, Texas is a home-rule city created pursuant to Article XI, § 5 of the Texas Constitution. The City Charter was originally adopted on December 6, 1947. The last amendments to the charter were adopted on April 5, 1986. Among the amendments adopted at that time were changes to the charter provisions governing initiative, referendum, and recall 1. The Plaintiffs assert in their complaint that these provisions of the City Charter do not apply as they are in conflict with state law and are therefore preempted. In their arguments to [208]*208this Court, the Plaintiffs highlight two sources of conflict. First, Plaintiffs aver that the signature validation and verification provisions contained in Texas Election Code2, Section 277 et seq. preempt the City Charter’s provisions. Second, Plaintiffs contend that Section 1.006 of the same code governs the submission of materials on a weekend or holiday and to the extent the charter does not allow more than sixty days, the state statute is controlling and would allow for submission on Monday. It is not necessary for the Court to make a ruling on either of these purported conflicts since the Plaintiffs have failed to carry their burden under either the state or the city election criteria. Because the Clerk tabulated the signatures and found there to be too few to make the petition valid, the timeliness submission question need not be further addressed.

The Plaintiffs have failed to demonstrate the substantial likelihood that they would prevail on the merits of their claim. First, if the Plaintiffs seek strict adherence to letter of the law, as they seem to argue, then substantially all of the petition signatures provided by Mr. Lee would be invalidated as they lack a voter registration number. This is a requirement of both the state statute and the City Charter and could be considered central to the signature validation process. However, “Texas courts have not always required strict compliance with the Election Code’s mandates regarding what will or will not invalidate voter petition signatures.” Reese v. Commissioners’ Court of Cherokee County, Texas, 861 S.W.2d 281, 288 (Tx.App. — Tyler 1993, no writ). The main factor considered in assessing how much deviation from the Code is permissible is to what extent the deviation will impair the ability to verify the eligibility of the signer. Id.

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Related

Reese v. Commissioners' Court of Cherokee County
861 S.W.2d 281 (Court of Appeals of Texas, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
927 F. Supp. 205, 1996 U.S. Dist. LEXIS 7703, 1996 WL 303632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-smith-txed-1996.