Tuesday, February 5, 2013

Judge Defines"Shall" as Meaning "It is Suggested"

There was a court case recently where one of our citizens sued the city over not properly holding a charter change election. There were a few main points to the case the first of which was that proper notifications were not publish. The second was a campaign run out of the Richardson Chamber of Commerce the supported the charter changes. Even though the taxpayers support the Richardson Chamber of Commerce, and they are a nonprofit, they decided to get involved in politics to support the city government.

When there is an election certain requirement “must” be met. Sec. 9.004 (c) dealing with charter amendments states “Notice of election SHALL BE published …” and also gives the when and how many times of the publication of this information. The Richardson city attorney handling the case admitted the city did not follow this requirement and argued that “shall be” was directory rather than required. The judge sided with the city attorney and said that “shall” really doesn’t mean what it means. Rather, it means that they should just consider following the law and the words “shall be” really mean you should kind-of, sort-of do it because it is really only advised by election law, not required.
After making his ruling, he asked the city attorney something to the effect of “you are going to do the publication right next time, Right?” to which the city attorney nodded her head and said yes, we will.
I thought the case was a slam-dunk. It was obvious the city did not follow the law. It appears that words do not mean what they actually say, but rather what you want them to mean.
The judge also noted that the city did do more than what was required by law. So maybe the next time you get a traffic ticket for speeding, you can use the defense the city used. When the officer gets ready to write you that ticket for speeding, make sure and remind him of all the laws you did not break. For instance, when you were going 80mph through that school zone, carefully note that you were on the correct side of the road after all, and you didn’t actually run down any kids, didn’t hit any other cars or pedestrians. But most importantly, remind the cops of this court case where the judge found that written laws are really nothing more than suggestions.
Here are a few defintions and statutes
(a)  The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election.  The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.
(b)  The ordinance ordering the election shall provide for the election to be held on the first authorized uniform election date prescribed by the Election Code or on the earlier of the date of the next municipal general election or presidential general election.  The election date must allow sufficient time to comply with other requirements of law and must occur on or after the 30th day after the date the ordinance is adopted.
(c)  Notice of the election shall be published in a newspaper of general circulation published in the municipality.  The notice must:
(1)  include a substantial copy of the proposed amendment;
(2)  include an estimate of the anticipated fiscal impact to the municipality if the proposed amendment is approved at the election; and
(3)  be published on the same day in each of two successive weeks, with the first publication occurring before the 14th day before the date of the election.
Newspaper of General Circulation
A "newspaper of general circulation” is a newspaper that is:
issued at least once a week (daily newspapers are included in this description);
intended for general distribution and circulation; and
sold at fixed prices per copy per week, per month or per year, to subscribers and readers without regard to business, trade, profession or class.
Basically, any daily or weekly newspaper that is sold to the public in general is a "newspaper of general circulation."


  1. In a nutshell you are saying that CDH lost her case at the District level? Prior comments by folks very critical of the city had been pretty confident that she would prevail.


  2. It was on Cheri to prove her case:

    (1)Ms. Duncan-Hubert, as the election contestant, bears the burden of proving the elements of her case by clear and convincing evidence.

    Texas Courts do not like to overturn elections:

    (3)Texas Courts abhor overturning election results, as this disenfranchises the will of the voters.

    Cheri did prove that the city violated election code:

    (7)The notice published on October 19, 2007 in the Dallas Morning News did not meet all of the requirements set out in the Texas Government Code 9.004(c).

    As such the law requires the election to be overturned:

    (4)To set aside the outcome of an election, the contestant must prove by clear and convincing evident (1) that a violation of the Election Code occurred and, if the election code provision that was violated is directory, the contestant must also prove by clear and convincing evidence (2) that the violation materially affected the outcome.

    The judge finds that “Election Laws” are directory even though they are mandatory:

    (20)General election laws, even though mandatory in form, are to be construed as directory in the absence of fraud or in the absence of some statutory provision voiding the election for failure to comply with the specific statue.

    The judge finds that “must” and “shall” parts of the election law to be optional:

    (22)Texas Government Code 9.004(c) provisions regarding publication pf notice of the Election are directory and not mandatory and accordingly, the city’s failure to comply with the requirements of that section would not void the election, absent clear and convincing proof of its material effect on the election outcome.

    In other words-The city did not comply with required law and the judge said to hell with enforcing what the law actually says.

    Citizens, just bend over and take it.

    I hope the city officials are proud of themselves. How can they expect the citizens to follow mandatory law if they don’t follow the law themselves?

  3. Oh puh-lease! Quit your whining!

    Bend over and take it? Yeah right. The citizens have already been bending over and taking it from this idiotic lawsuit.

    I hope that the city goes after cdh for every penny and paperclip that was spent on this.

    She named Steve Mitchell directly. Now this guy has to, for the rest of his life, answer yes to "have you ever been party to a lawsuit" and spend time explaining the idiocy. Oh yes he was mayor, you will drone on... Obviously someone in management dropped the ball.

    They broke the law.. waaaah! Well go complain to your representatives that there is no named remedy. You all know just as well as I do that if the election was held again the outcome would not change.

    What do you expect the judge to do? If there is no named remedy in the law do you simply expect the judge to invent one? Really? So it would be only proper for him to impose a remedy not named under law (unlike a traffic ticket) but not okay for him to dismiss it on the grounds it is immaterial? Huh? So the only acceptable outcome is a remedy not named under law just because it happens to agree with your politics?

    If the judge invalidated the election, then the city would simply appeal and argue that the judge had no legal grounds to throw out an entire election especially since the margins were massive. The appeals court would say, yes indeed! More time and money wasted.

    You guys need to give it a rest.

  4. Anon 4:05, spoken like a person who has not read the judgment, lacks common sense and lacks a decent understanding of the English language.

    The penalty for being in violation of the election code is the overturning of the election which was clearly stated in the judgment. With little doubt, there will be an appeal and the appeal will overturn this ruling. The city administration is responsible for the waste of tax payer money. But what the heck, it is other people's money to them!
    You go and get 'em, cdh.

  5. Interesting. At the trial, the city said "shall" means "must" as far as the rental inspection ordinance is concerned.

    "the owner of the rental unit shall request the building official conduct an inspection and make the rental unit available for inspection by the building official."

    So based on this judgment, landlords should consider following the ordinance, but they don't really have to, as long as they do it right next time.

  6. Ripped off from Steger.... The guy who actually quotes legal opinions.

    "The courts have held that the election laws, even though they may be mandatory in form, are construed as directory in the absence of fraud or unless the departure or irregularity has effected or changed the results of the election. Whiteside v. Brown, 214 SW.2d 844 (Tex.Civ.App 1948, error dis.); Minthorn v. Hale, 372 SW.2d 752 (Tex.Civ.App 1964 no writ)."

    I hardly think this means one can violate traffic laws or registration ordinances. Like I said in the 4:05 message, you guys want the judge to invent a remedy.

  7. Ripoff from Steger? What are you talking about. Are you saying Steger ripped off something from this blog, or someone here ripped off something from Steger's blog?

    Steger did posting that quote you mention Feb 6 at 9:32 pm. The anonymous here posted it on February 5, 2013 at 1:37 PM. I think he got it from the link in this post.

    Just curious.

  8. dc-tm
    Anon (Feb 8, 10:26am) was simply stating that what HE included in HIS post, HE had "ripped" off from Steger's post on The Wheel. I didn't interpret that statement as anything other than attribution of the source of his quote.


  9. JM, thanks. I totally misunderstood his the intention of his comment.

  10. "you guys want the judge to invent a remedy."

    What does that mean? He already invented a remedy.

  11. >I hardly think this means one can violate traffic laws or registration ordinances. Like I said in the 4:05 message, you guys want the judge to invent a remedy.
    February 8, 2013 at 10:26 AM<

    As far as the rental registration ordinance is concerned, it's THE CITY that is not following the ordinance. An inspection can take place only "with the occupant's permission." Some occupants said NO to the inspectors as well as at the city council meeting.

    We aren't asking the municipal judge to invent a remedy; we want him to follow the law(ordinance)!

    The visiting judge hired by him didn't even show the whole inspection part of the ordinance to the jury!!

  12. Jelly Medula,
    CDH did win the case. However, the judge chose to legislate from the bench. Instead of registering a ruling that would turn the world upside down, he decided to admonish the wrong-doers and let it go unpunished. Such is the legal system in north Texas, where one entrenched law firm is on contract with virtually all the governing bodies and manages to find ways to sway court rulings by recipients of political support. Of course, there's no way to "prove", and it's virtually impossible to prosecute their perfected method. But it works fairly consistently. And, here is a glowing example.

  13. Anon F14, 9:23am
    It would seem like the outcome determines who won the case. CDH may have won on a minor point but she lost on a whole bunch of other minor points and the outcome certainly didn't favor her did it?