BISD's election ruling expidited to 9th court of appeals
Friday, Oct. 4, petitioner candidates for the Beaumont Independent School District Board of Trustees filed an appellant brief with the 9th Court of Appeals to go along with a proposed mandamus also before the court requesting that their names be added to any forthcoming BISD election ballot as uncontested candidates for the respective trustee seats as ordered by the very same court earlier this year.
Attorneys for BISD requested additional time to file a response – a request that was denied by the 9th Court justices as BISD lawyers were ordered to answer to the expedited proceedings by 5 p.m. Wednesday, Oct. 9.
Petitioners Marcelino Rodriguez, Donna Forgas and Linda Gilmore are asking the court to not only reconsider a court ruling handed down last month by Jefferson County District Court Judge Donald Floyd that allowed BISD to move forward with a November election without the petitioning candidates being placed on the ballot, but they are also seeking a writ of mandamus to declare BISD’s actions out of line with the legal procedure of the election code.
Rodriguez, Forgas and Gilmore had previously prevailed in a 9th Court of Appeals case this past April wherein the three candidates for the BISD school board were ordered placed on the May 2013 election ballot as uncontested contenders since the current trustees holding those seats (Woodrow Reece, Terry Williams and Zenobia Bush) failed to timely file to retain their seats on the Board of Trustees. Since the April ruling by the 9th Court, BISD has plowed through changes in districting maps, demographers, attorneys, election orders and jurisdictional court venues – but has not changed its ballot to reflect the ruling of the 9th Court. BISD attorneys contend that the 9th Court’s earlier ruling is now moot since legal maneuvering extended litigation well past the May 2013 election date. Attorneys for the petitioning candidates say that the only reason the May election did not happen was due to BISD’s stall tactics, and that the school district’s finagling should not allow them to prevail in an area where the courts had already ruled against BISD.
According to the petitioner filings, penned by local attorneys Vann de Cordova, Mike Getz, Hubert Oxford IV and Michael Truncale, the ruling majority of the board of BISD is a group on a mission.
“Suffice it to say, the BISD Board majority’s continuing action to protect three incumbent trustees at the unlawful expense of (the petitioners) and Beaumont voters alike is Machiavellian,” in that “the end justifies the means,” the attorneys wrote. In the petitioners’ application for mandamus, the court is called upon to settle a dispute: “Are we are a ‘nation of laws,’ or instead a nation of elected officials above the law?
“Despite the belief of some, BISD trustees neither own nor have title to their respective public offices no matter how long or short they may have held the same. The Board positions are held in public trust, subject to the statutes of this state.”
It is the petitioners’ position that BISD has been purposely delaying a lawful election to give preference to trustees already in office over those who were granted reprieve from the Court of Appeals in April.
“As an intended consequence of BISD’s unlawful acts,” the mandamus request states, “it should come as little surprise to the Court that (petitioners) herein have been and are wrongfully being denied their rights under the Texas Election Code to be either (1) placed on the November 5, 2013 election ballot as uncontested candidates, or (2) declared elected to office. (Petitioners), all judicially confirmed candidates in the election BISD ordered February 21, 2013, have suffered and will continue suffering individual, particularized harm as a result of BISD’s refusal and failure to exercise its non-discretionary statutory duty to place the(m) on the ballot at the next trustee election as uncontested candidates and also by BISD’s failure and refusal to declare (them) elected to office.
BISD attorneys respond stating that petitioners are “far outside the bounds of established law.” According to BISD, the petitioners “fail to identify any ministerial obligation imposed on BISD,” and “Whatever rights the Court’s prior decision may have given with respect to a May 2013 election, it gives them no rights with respect to a different election under a different election map held at a different time because of a material change in circumstances.” In short, BISD says, the petitioners’ “claims are moot.”
Petitioner attorney Hubert Oxford IV said his clients have come to at least one agreement with BISD counsel in that the Shelby County v. Holder verdict handed down by the United States Supreme Court makes federal intervention on behalf of BISD moot, but the two sides remain at odds over whether the claim is “moot” due to May 2013 having come and gone by this point.
“In their response brief, BISD appears to finally realize that the United States Supreme Court’s opinion … does have the effect of making the actions of the DOJ and D.C. Court void,” Oxford said. “But they’ve mistakenly asserted that the plaintiffs have failed to timely appeal a May order by the D.C. Court, asserting that it was a final judgment when in reality it was an injunction – a delay, if you will. Therefore, throughout their entire brief, BISD incorrectly relies on the fact they were somehow given authority to cancel the election.
“Unfortunately for them, they’re wrong. BISD never had the authority to cancel the election. The injunction just delayed it from happening – it postpones what is supposed to happen. That’s the weird concept. The May election was just the day the election was supposed to happen. As a result of all the shenanigans – if BISD had not canceled their election, there wouldn’t be a question about what election we’d be having in November.
“The election that was supposed to happen in May needs to happen at a later point. They can’t just draw up a new map, and a new election, to bypass this Court. They canceled the election so they didn’t have to comply and then they say that the order doesn’t apply because the election was canceled.”
In addition to the mandamus relief sought by the petitioners, the group has also appealed Judge Floyd’s recent ruling, asserting, “Honorable Donald Floyd, Judge Presiding 272nd Judicial District Court, Jefferson County, Texas, wrongfully found against the appellants when he denied their injunction and other relief and adopted verbatim the proposed order submitted by the BISD. The order signed by Judge Floyd destroys the election process that the BISD set in legal motion on Feb. 21, 2013, and validates the incumbents’ illegal distortions that were solely designed to keep them in office after they failed to place their names on the ballot.”
Petitioning attorney Mike Getz said that the 9th Court will most likely be the last stop on the court cases affecting the upcoming BISD Board of Trustees election.