Joe Pool, III v. City of Houston

Case: 19-20828 Document: 00515613775 Page: 1 Date Filed: 10/23/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-20828 October 23, 2020
Lyle W. Cayce
Clerk
Joe Richard Pool, III; Trenton Donn Pool;
Accelevate2020, L.L.C.,
Plaintiffs—Appellants,
versus
City of Houston; Anna Russell, in her official capacity
as the City Secretary of the City of Houston,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2236
Before Graves, Costa, and Engelhardt, Circuit Judges.
Gregg Costa, Circuit Judge:
It is often said that courts “strike down” laws when ruling them
unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-
of-Erasure Fallacy, 104 VA. L. REV. 933, 936 (2018). Courts hold laws
unenforceable; they do not erase them. Id. Many laws that are plainly
unconstitutional remain on the statute books. Jim Crow-era segregation laws
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are one example.1 See Gabriel J. Chin et al., Still on the Books: Jim Crow and
Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.
ST. L. REV. 457 (highlighting the segregationist laws still present in the codes
of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v.
Aaron, 107 GEO. L.J. 1135, 1199 (2019) (noting that the Texas law
criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003),
remains in the state code).
The City of Houston contends that it’s being sued for one of these so-
called “zombie” laws. Its Charter allows only registered voters to circulate
petitions for initiatives and referenda, even though the Supreme Court held
a similar law unconstitutional twenty years ago. See Buckley v. Am.
Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999). This case thus
requires us to decide when the threat of continued enforcement is enough to
reanimate a zombie law and bring it from the statutory graveyard into federal
court.
I.
Houston is one of more than three hundred Texas cities with a home
rule charter. TERRELL BLODGETT, TEXAS HOME RULE CHARTERS 3
(2d ed. 2010). The Charter covers everything from the City’s power to
regulate crematories to its requirements for streetcar operators. Houston,
Tex., City Charter, art. II, § 15 (hereinafter CHARTER); id. art. IV,
§ 5. This case concerns the Charter’s rules for petition-based citizen
legislation.
Houston’s Charter allows “qualified voters” to place initiatives and
referenda on ballots through petitions.2 Id. art. VII-a, § 2; id. art. VII-b, §§ 2–
1
Some are trying to repeal such laws. See, e.g., Laura Vozzella, Virginia Panel Finds
Scores of Defunct, Racist Laws It Says Should Be Erased, WASH. POST, Dec. 6, 2019, at B1.
2
Initiatives propose new legislation, whereas referenda allow voters to uphold or
repeal a law already enacted by the City Council.
2
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3. These petitions must use a form specified in the Charter that requires
circulators to attest by notarized signature that they are “one of the
[petition’s] signers.” Id. art. VII-a, § 3. All signers must be “qualified voters
of the City of Houston.” Id. To be a “qualified voter,” a person must reside
in Texas and be “a registered voter.” Tex. Elec. Code § 11.002(a)(5–
6). As a result, the Charter effectively requires every person signing a
petition—including the circulator—to both reside in Houston and be
registered to vote there.
A product of the Progressive Era, Houston’s citizen petition process,
including the rules we have just described, dates back to 1913. CHARTER,
art. VII-b, § 1. In 1999, however, the Supreme Court held unconstitutional a
Colorado law providing that only registered voters could circulate petitions
for ballot initiatives. Buckley, 525 U.S. at 193–97. More than two decades
later, the voter-registration and residency requirements remain in the
Houston Charter.3
The plaintiffs, Trent and Trey Pool, are ineligible to circulate
petitions under the Charter’s qualified-voter provision. Neither is registered
to vote in Houston: Trent resides in Austin; Trey lives in California. Trent
is an avid petition circulator. In the past decade, he has petitioned in Texas
and other states for Jill Stein, Ted Cruz, and Donald Trump; he has
petitioned for medical marijuana referenda; and he has even petitioned for
the creation of new political parties. Trent has such a passion for petitions
that he runs a company dedicated to hiring professional circulators.4 Trey
3
Buckley did not decide the constitutionality of a residency requirement for petition
circulators, 525 U.S. at 197, and the City’s position on whether a residency requirement is
lawful is not clear. The district court did not think it necessary to resolve this issue because
the “residency requirement is subsumed within the voter registration requirement and the
two requirements cannot be separated.” Because the City does not appear to press the
residency requirement as a separate requirement, we follow the district court’s assumption.
4
Trent Pool’s company, Accelevate2020 L.L.C., is the third Plaintiff in this suit.
We refer to the Plaintiffs collectively as “the Pools.”
3
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Pool does not have the same experience with petitions as Trent, but he does
want to circulate petitions in Houston.
One such petition spawned this lawsuit. A 2019 petition sought to put
an ordinance on the Houston ballot that would limit campaign contributions
from City contractors to candidates for municipal office. The Pools wanted
to help collect signatures for this “anti-pay-to-play” initiative. But the
Charter’s petition form, with its qualified-voter requirement, prohibited
them from legally circulating the petition. They emailed the City of Houston
Legal Department, providing notice of their desire to circulate petitions and
intent to sue for relief. The City responded the following day but indicated
that it had not yet determined its position on the Charter requirements’
enforceability.5 The Pools immediately filed a complaint in federal court,
mounting facial and as-applied challenges to the Charter.
The Pools sought a preliminary injunction allowing them to collect
signatures for the anti-pay-to-play petition as well as a declaratory judgment
that the Charter’s voter-registration and residency provisions are
unconstitutional, permanent injunctive relief against enforcement of those
provisions, and nominal damages. The Pools also filed an emergency motion
for a temporary restraining order (TRO), which would allow them to
circulate the petition through the deadline of July 9, 2019.
The court granted a TRO, allowing the Pools to circulate the petition
for the next week. It compared the Charter’s voter-registration requirement
to the Colorado law at issue in Buckley. The court concluded, however, that
the Pools had not demonstrated an injury sufficient to support standing with
regard to future petitions.
5
Within a week, however, the City informed the Pools that it would not enforce
the Charter’s voter-registration requirement.
4
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With the restrictions enjoined, Trent collected forty signatures before
the deadline. Those were not enough as the petition lacked enough
signatures to put the initiative onto the ballot.
A month later, and without a request from the parties, the district
court dismissed the Pools’ remaining claims. The court thought that
plaintiffs had conceded that the case would be over once the 2019 petition
deadline passed.6 In fact, the Pools continued to seek future relief, including
a permanent injunction. The Pools brought this to the court’s attention in a
motion for reconsideration. But the court, citing the expiration of the
deadline and its earlier ruling that the Pools had not shown a sufficient
interest in circulating future petitions, concluded that there was no longer a
live controversy.
II.
Although the City now concedes that the qualified-voter requirement
is unconstitutional, the question is whether the Pools may obtain a permanent
injunction preventing its enforcement. The answer turns on two related but
distinct justiciability doctrines: standing and mootness. We review those
legal questions de novo. Ctr. for Individual Freedom v. Carmouche, 449 F.3d
655, 659 (5th Cir. 2006) (standing); Libertarian Party v. Dardenne, 595 F.3d
215, 217 (5th Cir. 2010) (mootness).
A.
The dispute over standing focuses on the injury requirement. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “[C]hilling a
plaintiff’s speech”—and circulating petitions is speech, see Buckley, 525 U.S.
at 186—“is a constitutional harm adequate to satisfy the injury-in-fact
requirement.” Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014)
6
The court reasoned that during the TRO hearing, “the parties agreed that
Plaintiffs’ claims would be moot at the expiration of the circulation period,” but the parties
only agreed that preliminary injunctive relief would be moot at that point.
5
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(quoting Hous. Chron. Publ’g Co. v. City of League City, 488 F.3d 613, 618 (5th
Cir. 2007)). This special standing rule for First Amendment cases recognizes
that people should not have to expose themselves “to actual arrest or
prosecution” in order to challenge a law that infringes on speech. Id.
(quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). But not just anyone
has standing to bring such a suit. Plaintiffs like the Pools must show that they
are “seriously interested in disobeying, and the defendant seriously intent on
enforcing, the challenged measure.” Id. (quoting Int’l Soc’y for Krishna
Consciousness of Atlanta v. Eaves, 601 F.2d 809, 815 (5th Cir. 1979)); see also
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979)
(describing chilled speech as a sufficient injury when it arises from a fear of
enforcement that is not “imaginary or wholly speculative”).
The easier question is the first half of that inquiry: whether the Pools
have shown a likelihood that they will continue to engage in the protected
activity. At least for Trent, that is the case.7 Trent has circulated petitions
since at least 2008, runs a company devoted to circulating petitions, and says
he wants to circulate petitions in Houston in future cycles. The 2019 anti-
pay-to-play petition was not his first involvement with Houston petitions.
Trent organized signature collections in support of the last referendum to
reach the ballot, one seeking to undo the Houston Equal Rights Ordinance
(HERO) that the City Council enacted in 2014. Trent’s “past enthusiastic
participation in the political process” lends credence to his stated desire to
circulate future petitions. Justice, 771 F.3d at 291. Like the Justice plaintiffs
whose demonstrated history of financial contributions to Mississippi ballot
initiative campaigns gave them standing to challenge that state’s disclosure
requirements, id., Trent’s deep connections to the petition process means he
has a concrete interest in this issue and is not just manufacturing a lawsuit.
7
Only one plaintiff is needed to establish standing for each form of requested relief.
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017).
6
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The harder question is whether there is a sufficient threat of future
enforcement of the qualified-voter requirement. This is where most attempts
to challenge a zombie law in federal court would fail. Without any indication
that the government is planning to enforce a law after a similar one has been
held unconstitutional in a binding decision, there would be no objective fear
of continued enforcement.
But two features of this case render the Pools’ concern about future
enforcement reasonable. To begin, even though the Pools filed this case
twenty years after Buckley, the petition form still obligated circulators to
swear they are “qualified voters of the City of Houston.” CHARTER, art. VII-
a, § 3. The City counters that this requirement remained on the form because
it can be changed only by amending the Charter, which itself requires a
successful referendum. But that does not explain why the City failed to
inform the public during the two decades following Buckley that it would no
longer enforce the qualified-voter provision even if it had to remain in the
Charter.
Since the filing of this case, the City finally has tried to give that notice.
It inserted an “Editor’s note” below the offending Charter provisions
indicating that “the City will accept petitions circulated by individuals that
are not residents of the City or are not registered to vote in the City,” with a
link to a revised form for nonresidents. CHARTER, art. VII-a, § 3; id. art. VII-
b, § 2. It is unclear who, or what body, approved the new form. Regardless,
when the Pools filed their complaint, they had no assurances that the City
would refrain from enforcing the qualified-voter provision. That is what
matters for standing. Friends of Earth, Inc. v. Laidlaw Envt’l Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (explaining that standing focuses on the
plaintiff’s interest “at the commencement of the litigation”). Indeed, if the
City is correct that Buckley means the Pools had no reasonable fear the
qualified-voter law would be enforced, then there would have been no
standing to obtain the TRO the court issued. Whether the postsuit addition
7
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of the “Editor’s note” means there is no longer a live controversy is a
question of mootness we will address later.
Second, there is an objective basis for believing that the City has
attempted to enforce the unconstitutional Charter provision since Buckley.
In 2014, the last time that an initiative or referendum petition made it onto
the ballot, the City deposed petition organizers—including Trent Pool—
about the validity of signatures they collected in view of the Charter’s
petition-form requirements. Although concerns about the qualified-voter
requirement were not the focus of the litigation that arose out of the HERO
referendum, there are some indications that it was an issue. During the
HERO litigation, the City argued that “[b]ecause the circulator’s affidavit is
an express requirement of the City Charter, if a page does not contain a
proper circulator’s affidavit then, as a matter of law, the signatures on that
page are invalid and may not be counted.” It stressed that petitions must “be
signed and verified ‘in the manner and form’ set out in the City Charter.”
And, of course, the qualified-voter requirement was listed on those petitions.
Most on point, the City questioned Trent about whether he, as someone not
eligible to vote in Houston, had “sign[ed] any [affidavits] on petition pages”
and had gathered signatures alone or “arm in arm” with other circulators.
Why would Trent’s proximity to circulators who were qualified Houston
voters matter if the City were not concerned about that requirement? Given
the concerns the City raised during the immediate predecessor to the anti-
pay-to-play petition, the Pools had reason to believe the City would be
“seriously intent” on continuing to enforce the qualified-voter requirement.
Justice, 771 F.3d at 291 (citation omitted).
The City analogizes to other zombie laws in arguing why the Pools
should not have standing to enjoin this one. At oral argument, its counsel
compared the qualified-voter requirement to bans on same-sex marriage that
remain on the books after Obergefell v. Hodges, 576 U.S. 644 (2015), even
though everyone knows they can no longer be enforced. The more apt
8
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analogy to this case would be if a state continued to list the ban on same-sex
marriage on the application for a marriage certificate and had questioned
some same-sex marriages in litigation.
Although there would not usually be a reasonable fear of continued
enforcement of a zombie law, the history of Houston’s qualified-voter
requirement we have recounted gives Trent Pool standing to seek an
injunction that would guard against continued chilling of his speech. This
zombie shows signs of life.
B.
But perhaps the City’s postsuit disavowal of the qualified-voter
requirement moots the Pools’ claim. Unlike standing analysis, mootness
accounts for such events that occur during the litigation. Ctr. for Biological
Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 425 (5th Cir. 2013). It
ensures that the plaintiff’s personal interest that “exist[ed] at the
commencement of the litigation (standing) . . . continue[s] throughout its
existence (mootness).” Id. (citations omitted). If intervening circumstances
make it impossible for the court to “grant any effectual relief,” the case is
moot.8 Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)
(quotation marks omitted).
At least based on the current record, the City’s addition of the
“Editor’s note” on its website does not moot this case. Voluntarily stopping
an unconstitutional practice renders a case moot only “if subsequent events
ma[k]e it absolutely clear that the allegedly wrongful behavior c[an] not
reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189.
(quotation marks omitted). While we “assume that formally announced
8
The City’s argument for mootness is that Buckley rendered the voter-registration
requirement a zombie law. But that focuses on something that happened before the lawsuit
was filed. We thus considered the impact of Buckley in the standing inquiry asking whether
plaintiffs had a reasonable fear of prosecution to show an injury.
9
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changes to official governmental policy are not mere litigation posturing,”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), it is not
clear the City made a formal policy change. There is no evidence that the
City Council approved the nonresident petition form published on the City’s
website, so we do not know how permanent—or legally effective—the new
form and editor’s note are.9 Spell v. Edwards, 962 F.3d 175, 179 (5th Cir.
2020) (“[A] case challenging a statute, executive order, or local ordinance
usually becomes moot if the challenged law has expired or been repealed.”).
Compare Freedom from Religion Found. v. Abbott, 955 F.3d 417, 425 (5th Cir.
2020) (holding that officials’ representations through legal counsel that their
behavior would change following a recent Supreme Court decision did not
moot case when no official policy retraction had occurred), with 13C
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 3533.7 (3d ed. Oct. 2020 update) (noting that “a permanent
policy change” can moot a dispute).
In ruling on the request for a permanent injunction, the district court
may consider whether to allow additional evidence concerning the legal
authority behind the new form and the extent to which it is binding. At this
stage in the litigation, however, the City has told us that the new form is
“irrelevant” to our analysis. On its own words then, the City has not met its
“heavy burden” of showing that the Pools’ challenges are moot. Friends of
the Earth, 528 U.S. at 189.10
9
The form itself indicates that it was prepared by the City of Houston Legal
Department—not an official policymaker—on September 17, 2019. Non-Resident/Non-
Registered Circulator Affidavit for Initiative, Referendum, and Recall Petitions Pursuant to
Article VII-a, VII-b of the City of Houston Charter, CITY OF HOUS. (Sept. 17, 2019),
http://houstontx.gov/citysec/elections/CircAffidForm.pdf.
10
Because we hold that the Pools have standing to pursue their claims for
declaratory and injunctive relief, we need not address whether their request for nominal
damages would alone be enough to keep the case alive. It is far from clear that the Pools
have such a claim for damages when the law was not actually enforced against them in 2019.
They instead brought this case to prevent their speech from being chilled. Contrast
10
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***
A reasonable concern that the City might enforce its unconstitutional
Charter provision has raised this zombie law from the statutory necropolis.
We therefore REVERSE the judgment dismissing this case and REMAND
for further proceedings.
Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 343–46 (5th Cir. 2017) (allowing a
plaintiff’s claim for nominal damages, based on a sanction she incurred, to survive after her
claims for equitable relief were mooted). If the Pools do have a claim for nominal damages,
whether that can save a case from mootness is before the Supreme Court. See Uzuegbunam
v. Preczewski, 781 F. App’x 824 (11th Cir. 2019), cert. granted, 2020 WL 3865254 (U.S. July
9, 2020).
11