ACCEPTED

14-15-00396-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/5/2015 3:37:54 PM
CHRISTOPHER PRINE
CLERK

NO. 14-15-00396-CV

IN THE COURT OF APPEALS

FOR THE FOURTEENTH DISTRICT OF

FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
5/5/2015 3:37:54 PM
TEXAS
CHRISTOPHER A. PRINE
Clerk

AT HOUSTON

JARED WOODFILL AND F.N. WILLIAMS, SR.,

Appellants,
v.
ANNISE D. PARKER, MAYOR; ANNA RUSSELL, CITY SECRETARY;
AND CITY OF HOUSTON,
Appellees.
APPELLEES RESPONSE TO EMERGENCY MOTION FOR
EXPEDITED BRIEFING SCHEDULE AND DECISION

TO THE HONORABLE COURT OF APPEALS:

Appellees, Annise D. Parker, Mayor; Anna Russell, City Secretary; and the
City of Houston (together, the City), file this response to Appellants Emergency
Motion for Expedited Briefing Schedule and Decision.1

Appellants are Jared Woodfill and F.N. Williams, Sr. Although four Appellants were listed on
the original notice of appeal, an amended notice of appeal was subsequently filed in the trial
court to clarify that there are only two Appellants in this proceeding.

INTRODUCTION
Appellants motion should be denied because the expedited schedule they
demandwhich would require this Court to issue a decision just 24 days from
nowis unnecessary, unrealistic, and unfair.
First, Appellants proposed schedule is unnecessary. Contrary to Appellants
vague assertions, this case will not in any way become moot in the absence of
emergency relief. Notwithstanding Appellants political preferences, nothing in the
City Charter gives them any legal right to submit the Houston Equal Rights
Ordinance, known as HERO, to voters during the first election cycle after the
ordinance was passed. To the contrary, the City Charter is clear that there is no
right to an election until after a petition has been declared valid under the
applicable City Charter provisions, and after the City Council has responded to the
valid petition by conducting a second vote in which it decides whether the
ordinance will be repealed. If Appellants are successful after those steps have
occurred, they will have the right to place HERO on the ballot at that time. That
right can be fully enforced by an appeal that proceeds in an orderly manner.
Appellants proposed schedule is not only unnecessary, but wildly
unrealistic. Their 24-day timeframe would leave the clerk and court reporter
without sufficient time to prepare the voluminous record, especially since, to the
Citys knowledge, Appellants have neither requested nor paid for the record. The

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24-day timeframe would also leave the City without sufficient time to adequately
brief the numerous and complex issues in this case, and would leave this Court
without sufficient time to draft a comprehensive opinion addressing those issues.
Even if this Court were to satisfy the 24-day deadline, its efforts would likely
accomplish nothing because the remainder of the processwhich, according to
Appellants, will include proceedings before the Supreme Court, the trial court, and
City Councilcannot reasonably be expected to conclude by August 18, 2015, the
date that Appellants have identified as the statutory deadline to place HERO on the
2015 ballot.
Finally, Appellants proposed schedule does not afford due process to the
City. As just one example, Appellants have given themselves at least several weeks
of additional time to begin preparing their brief while delaying the proceedings up
to this point. In contrast, Appellants proposed 24-day timeframe would leave the
City with only a few frenetic days to attempt to adequately respond to that brief.
Because Appellants proposed schedule is unnecessary, unreasonable, and
unfair, their motion should be denied.
FACTUAL BACKGROUND
In May 2014, the residents of the City of Houston, acting through their duly
elected representatives, overwhelmingly passed HERO by a City Council vote of
11 to 6. HERO prohibits discrimination on the basis of sex, race, age, marital

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status, military status, religion, disability, genetic information, pregnancy, sexual

orientation, or gender identity. An early draft of the ordinance provided that
businesses open to the public could not deny a transgender person entry to a
restroom consistent with his or her gender identity. As part of an attempt to
compromise with HEROs opponents, however, that provision was deleted before
HERO was passed by City Council.
Appellants, who oppose HEROs attempt to curtail discrimination against
LGBT Houstonians, led an unsuccessful petition drive to try to force the City to
repeal HERO or force a referendum vote on the ordinance. Contrary to Appellants
contention, City Secretary Anna Russell did not validate the petition.
Displeased with this decision, Appellants sued the City and demanded a jury
trial. Following extensive discovery and pre-trial motions, the case was tried over a
period of two full weeks, after which the jury deliberated for an additional week. In
a resounding victory for the City, the jury found that:
64 out of 98 petition circulators did not sign and subscribe the
required circulators affidavit oath at the bottom of each page of
the HERO referendum petition page, as required by the Houston
City Charter;
12 out of the 13 petition circulators identified in the jury charge
submitted referendum pages that included forgery;

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 6 out of the 16 petition circulators identified in the jury charge

submitted referendum pages that included non-accidental
defects;
12 out of the 13 petition circulators identified in the jury charge
signed affidavit oaths that were not true and correct.
Viewed through the lens of the jurys verdict, Appellants referendum
petition contains barely more than 2,000 valid signaturesa small fraction of the
17,269 signatures needed to validate the petition. The trial court could have, and
should have, signed a take-nothing judgment based solely on the verdict. Instead,
over a period lasting more than 60 days, the court conducted three post-verdict
hearings, reviewed Appellants various objections, and rendered a series of rulings
regarding the validity of many petition signatures. The outcome, however,
remained the same: the referendum petition did not contain enough valid signatures
to trigger the referendum process. On April 17, 2015, the court signed a takenothing judgment.
For approximately two weeks after the judgment was signed, Appellants did
nothing to initiate an appeal. Then, Appellants abruptly filed an emergency
motion to expedite, arguing that the entire appellate process in this Court should be
completed within 24 days from today.

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ARGUMENT
I.

Appellants proposed schedule is unnecessary.

Appellants assert that this matter will somehow become moot if their

demand for expedited relief is not met. (Mot. at 6-7.) That is not true. Although
Appellants imply otherwise, the City Charter does not confer any right to submit
an ordinance to voters in the first election cycle after the City Council passes the
ordinance. Instead, the City Charter confers a right to submit an ordinance only in
the next city general election after a petition is filed, after the petition has been
declared valid under Article VII-b, Sections 2(a) and (b) of the City Charter, and
after the City Council has responded to the valid petition by conducting a second
vote in which it decides whether to repeal the ordinance. Specifically, the City
Charter provides:
Immediately upon the filing of such petition the City
Secretary shall do all things required by section 2(b) of
this Article [certifying the petition if it is valid].
Thereupon the Council shall immediately reconsider such
ordinance or resolution and, if it does not entirely repeal
the same, shall submit it to popular vote at the next city
general election . . . .
HOUSTON, TEX., CITY CHARTER art. IV-b, 3. In the event that Appellants are
successful after the steps set forth in the City Charter have occurred, they will have
a right to place HERO on the ballot at that time. That right can be fully enforced

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through an orderly judicial process, making it unnecessary for this Court to

accommodate the breakneck schedule that Appellants demand.
Moreover, when considering Appellants contention that time is of the
essence, the Court should consider that the purported emergency is largely of
Appellants own making. Appellants demanded a jury trial but agreed that it would
not start until January 19, 2015, a date they later asked the trial court to postpone
until January 26, 2015. When the jury reached its verdict, Appellants did not ask
the trial court to expedite the proceedings or quickly sign a judgment, and more
than 60 days elapsed before the final judgment was signed. Then, approximately
two more weeks elapsed before Appellants filed their notice of appeal and sought
expedited relief in this Court. Remarkably, to this day, Appellants have requested
neither the clerks record nor the reporters record, and have not made any
arrangements to pay for either portion of the record. If Appellants had not delayed
the proceedings for many weeks in the trial court, there would be no need for them
to demand a 24-day timeframe in this Court. It is unnecessary for this Court to
make up for Appellants delays by rushing the appellate process.

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II.

Appellants proposed schedule is wildly unrealistic, if not downright

impossible.
Appellants contend that the appellate process in this Court, which has barely

started, must be completed within the next 24 days. Appellants proposed schedule
is wildly unrealistic, at best.
First, Appellants proposed schedule fails to account for the preparation and
filing of the voluminous record. Appellants have not yet requested either the
clerks record or the reporters record, and have not made any arrangements to pay
the district clerk or the court reporter. The reporters record alone contains
voluminous testimony from the two-week jury trial and numerous exhibits, as well
as several lengthy hearings that were conducted by the trial court and transcribed
for this Courts review.
Second, Appellants proposed schedule would deprive the City of an
adequate time to prepare its brief. Appellants have an advantage in this regard, as
they were able to start preparing their brief as soon as the trial court made its posttrial rulings more than a month ago, or at the latest when the trial court signed its
final judgment more than two weeks ago. In contrast, the City cannot start
preparing its brief until it has analyzed Appellants brief and determined how best
to respond. The City would be forced to toil around the clock in a hurried attempt
to prepare a quality brief that would to be helpful to the Court.

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Third, Appellants proposed schedule would presumably preclude oral

argument. In addition to the City Charter and the Texas Election Code, this case
implicates issues that will affect not only this case, but many other cases for
decades to come.
Fourth, Appellants proposed schedule would leave inadequate time for this
Court to give the issues the deliberative analysis they deserve. Appellants will
undoubtedly argue under a broad array of legal theories that the trial court undercounted the number of valid petition signatures. In response, the City will not only
rebut those arguments, but argue in addition that even if the trial court did undercount certain valid petition signatures, any error was harmless because the trial
court also over-counted some invalid petition signatures. Some of the parties
arguments will be legal in nature, including arguments based on the U.S.
Constitution; others will be procedural, including the Citys contention that the
trial court should have signed a take-nothing judgment based on the verdict alone;
and some of the arguments will turn on this Courts view of the evidence,
including more than 8,000 signatures that the trial judge personally reviewed and
classified as either legible or illegible. The parties will continue to debate other
hotly contested issues as well, including the allocation of the burdens between the
parties and the standards of review that apply in this unusual appeal. This Court
cannot be expected to analyze the briefs, review the clerks record and reporters

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record, study the applicable law, and prepare a thorough and correct opinion in a
few days.
Fifth, Appellants proposed schedule fails to account for the parties right to
file motions for rehearing. Although the Texas Rules of Appellate Procedure
provide that the Court may deny the right to file motions for rehearing in appeals
that are accelerated by statute, there is no such rule that governs appeals like this
one. See TEX. R. APP. P. 49.4. If the Court were to deny the right to file motions for
rehearing in the absence of a rule, the Court would be denying itself an important
opportunity to correct any errors that might understandably find their way into an
opinion drafted in haste.
Appellants concede that their proposed deadlines are brisk (Mot. at 7), but
claim they are no different from the briefing schedules in certain unidentified
redistricting cases. Here, Appellants compare apples and oranges. Unlike
redistricting cases, this case involves a two-week jury trial, multiple constitutional
and statutory interpretation issues, and the review of tens of thousands of petition
signatures. There is no realistic chance that this appeal could be taken from its
infancy to its conclusion in the next 24 days.
Finally, even if this Court were to issue a decision within the next 24 days, it
is unlikely that its herculean efforts would come to any good. Even if this Court
were to issue a decision by the end of May, there is no guarantee that the Supreme

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Court would hasten the petition and briefing process and issue a decision by the
end of June. And even if the Supreme Court were to meet Appellants deadline,
rule in their favor, and remand the case to the trial court by the end of June, there is
no guarantee that the trial court would be able to conduct any necessary further
proceedings with the necessary speed. If the trial courts judgment were reversed,
on remand the court would be required to apply the decisions of this Court and the
Supreme Court to the referendum petition, which contains more than 35,000
signatures, plus approximately 19,000 signatures that the petition organizers
themselves crossed out before delivering the petition. That process could easily
take more than a month, leaving little time for the City Council to vote on
repealing the ordinancea process that Appellants admit could take a couple of
weeks or perhaps longer. (Mot. at 6.) In addition, the federal issues involved
could cause resort to a petition for writ of certiorari to the U.S. Supreme Court.
Thus, no matter how quickly this Court acts, the chances are remote that the
process could be completed by August 18, 2015, the date that Appellants have
identified as the statutory deadline to place HERO on the 2015 ballot.
III.

Appellants proposed schedule would give them tactical advantages at

the expense of the Citys due process rights.
Finally, Appellants proposed schedule would unfairly give Appellants a

series of tactical advantages at the expense of the Citys due process rights.

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As an initial matter, Appellants proposed schedule would give them a

significant advantage in preparing their brief. Appellants have had every
opportunity to work on their brief for the last month or moreever since the trial
court announced post-trial rulings making it clear that the City would prevail. At a
minimum, Appellants have had every opportunity to work on their brief for more
than two weeksever since the trial court signed the final judgment. Moreover,
Appellants can continue working on their brief while the district clerk and court
reporter scramble to prepare the record. By delaying the filing of their notice of
appeal, Appellants have given themselves extra time to prepare their brief, leaving
the City with an impossibly short time to analyze that brief and prepare an
adequate response.
Appellants brush off this concern by noting that Appellees have three major
law firms working on the case. (Mot. at 7.) But the size of the Citys pro bono
legal team is not a sufficient reason to dispense with the Citys due process rights.
Moreover, while there are undoubtedly some advantages to a sizable legal team,
speed is not necessarily one of them. After all, a solo practitioner can act as quickly
as he or she needs tomuch as a single trial judge can act more quickly than a
panel of three judges, who in turn can act more quickly than an en banc court of
nine judges.

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In addition, Appellants proposed schedule gives them a tactical advantage

by rushing this Courts decision-making process. If this Court resolves the appeal
after due deliberation in the normal course of events, it will likely reach the same
result the trial court reached following a two-week jury trial and several lengthy
oral hearings. Appellants may well believe that their best hope on appeal is to
pressure this Court to decide the case quickly, without sufficient deliberation and
without considering motions for rehearing, which could point out any mistakes that
might understandably result if the Court attempts to resolve such a complicated
appeal so quickly.
Finally, Appellants proposed schedule would afford them benefits outside
the judicial arena. The admitted purpose of Appellants proposed schedule is to
place HERO on the ballot during the current election cycle, rather than the next
election cycle. While their chances of prevailing during the 2015 election cycle are
slim, their chances of prevailing in later election cycles are even slimmer. Local
public opinion already favors equal rights for all Houstoniansincluding those
who identify as LGBTand with every election cycle, support for equal rights
continues to steadily grow.2 Appellants seek to rush the judicial process and place

The Kinder Houston Area Survey, which is conducted by Professor Stephen L. Klineberg at
Rice University, confirms that local residents support efforts to guarantee equal civil rights for
homosexual men and women by an overwhelming margin. Even with regard to the more
(continued)

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HERO on the ballot during the 2015 cycle to maximize their chances of a political
victory, not because they have any right to do so under the law. Of course,
Appellants political goals do not provide any valid reason to deviate from
standard appellate procedure. This appeal should be governed by the deadlines set
forth in the rules.
CONCLUSION
The expedited schedule that Appellants demand is unnecessary, unrealistic,
and unfair. Their motion should be denied.

controversial issue of same-sex marriage, local support has increased by 2 to 6 percentage points
during each of the last six two-year election cycles, and now exceeds 50 percent among Harris
County residents (who are more conservative, on the whole, than the City of Houston residents
who would be eligible to vote on HERO). See The Kinder Houston Area Survey, available at
http://kinder.rice.edu/has (last visited May 5, 2015).

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Respectfully submitted,
HAYNES AND BOONE, LLP
/s/ Lynne Liberato
Lynne Liberato
State Bar No. 00000075
Kent Rutter
State Bar No. 00797364
William Feldman
State Bar No. 24081715
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
lynne.liberato@haynesboone.com
kent.rutter@haynesboone.com
william.feldman@haynesboone.com
COUNSEL FOR APPELLEES,
ANNISE D. PARKER, MAYOR;
ANNA RUSSELL, CITY SECRETARY;
AND THE CITY OF HOUSTON

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Of Counsel:
SUSMAN GODFREY L.L.P.
Geoffrey L. Harrison
State Bar No. 00785947
Alex L. Kaplan
State Bar No. 24046185
Kristen Schlemmer
State Bar No. 24075029
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Facsimile: (713) 654-6666
gharrison@susmangodfrey.com
akaplan@susmangodfrey.com
kschlemmer@susmangodfrey.com
Counsel for City of Houston

CITY OF HOUSTON LEGAL DEPARTMENT

Donna L. Edmundson
State Bar No. 06432100
Judith L. Ramsey
State Bar No. 16519550
James Martin Corbett
State Bar No. 00783875
Patricia L. Casey
State Bar No. 03959075
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone: (832) 393-6412
Facsimile: (832) 393-6259
Donna.Edmundson@houstontx.gov
Judith.Ramsey@houstontx.gov
Jim.Corbett@houstontx.gov
Pat.Casey@houstontx.gov
Counsel for Annise D. Parker, Mayor

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FULBRIGHT & JAWORSKI LLP

Edward B. Teddy Adams, Jr.
State Bar No. 00790200
Andrew Price
State Bar No. 24002791
Seth Isgur
State Bar No. 24054498
Geraldine W. Young
State Bar No. 24084134
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone: (713) 651-5151
Facsimile: (713) 651-5246
Teddy.Adams@nortonrosefulbright.com
Andrew.Price@nortonrosefulbright.com
Seth.Isgur@nortonrosefulbright.com
Geraldine.Young@nortonrosefulbright.com
Counsel for Anna Russell, City Secretary

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CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure, I hereby certify
that a true and correct copy of Appellees Response to Emergency Motion for
Expedited Briefing Schedule and Decision was served via E-Service and email on
the following counsel of record on this 5th day of May, 2015:
Counsel for Appellants Jared Woodfill
and F.N. Williams, Sr.:
Andy Taylor
Amanda Peterson
ANDY TAYLOR & ASSOCIATES, P.C.
2668 Highway 36S, #288
Brenham, Texas

/s/ Lynne Liberato

Lynne Liberato

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