On March 3, Judge Lowe denied a request for an injunction to stop the upcoming vote on red light cameras in Arlington, stating “This court is not making a ruling about the validity or void-ability of the election in question. It’s premature for the court to consider the election in question.”
Unless a successful appeal is filed, the scheduled May 9 vote will occur. The big winners here are Faith Bussey, Kelly Canon, all the petition gatherers, the citizens of Arlington, and Robert Rivera (the only City Council member on the right side of this issue). The big loser was American Traffic Solutions.
WHY ATS FAILED.
ATS sought an injunction. Typically, injunctions are an order by a court to prevent a change from the status quo. Injunctions are often filed as an emergency request to stop an action that would result in an irreparable harm. For example, a court might issue an injunction to stop an old and irreplaceable tree from being cut down. In such cases, a successful law suit would not be able to fix the problem, because old trees are not easily replaced.
In this case, there is no real immediate danger. If the Arlington City Council has its way, the voters will support red light camera enforcement, and the election has no impact. And even if a majority of voters support the effort to eliminate cameras, ATS can find a patsy to sue the City and the legal fight can commence. Legal parlance for this condition would be to say that, until the election has been held and the outcome certain, the suit is not ripe.
PARTICIPATION BY CITIZENS FOR A BETTER ARLINGTON
Norred Law, PLLC filed a Plea in Intervention in this case on behalf of Faith Bussey and Citizens for a Better Arlington, the official group that collected and presented the petitions. (An intervener is a party that has a special connection to a law suit but is not a named party, and must file documents with the court in order to participate in the suit’s proceedings.)
We filed our Plea in Intervention in this suit because many cities have thrown these cases deliberately, and because the goals of the city are not necessarily the goals of the petition gatherers. Our involvement means a second team of eyes looks at the case and offers differently nuanced arguments.
For example, we offered the argument that the City Council voted to put the question on the ballot willingly, and if the petition was found to be powerless, that fact was irrelevant. We (meaning Kelly Canon) also discovered that Jody Weiderman was not a registered voter at the time of the suit’s filing, and provided the City with that proof.
ARLINGTON PROPERLY DEFENDED ITS POSITION.
I am pleased to report that the City’s representative, Robert Fugate, did an outstanding job, and deserves praise for his work. I specifically mention this here because I am so often critical of my home town and those who run it that when possible, praise should be given.
(It is an interesting point that Mr. Fugate is our office’s opposition on the Open Carry suit. This is why your attorney may not be as much of a jerk to the opposing attorney as you like him to be – you never know with whom you may be working in the next case.)
ATS CAN CHALLENGE THE ELECTION.
Judge Lowe did not rule on the validity of the election, as noted by articles written by both the Arlington Voice and the Star-Telegram regarding the hearing. He’s only said that the election will go on. The ATS attorney has stated that he will appeal this ruling, but I have seen no indication of that appeal. ATS has a far better chance after the election, when the fun picks up again.
As the ATS attorney pointed out, ATS has won a number of these suits. I’ve looked several of them, but I would not say that I’ve done an exhaustive study (yet). They tend toward an argument that some of these elections constitute illegal referendums (“referenda” for you logophiles) which are not allowed under a city’s laws. These are not trivial arguments that one can just brush aside, but none of the suits are controlling precedent over a Tarrant County district court, and I don’t see ATS winning this case after the election either.
SOME CITIES APPEAR TO HAVE THROWN THEIR CASES.
Cities who are sued over this process are in a strange situation. The city councils want to keep the red light cameras, or the petitions would not have been necessary. But then when sued by ATS, the city is responsible for defending the petition and the election…which it did not want to have.
At first blush, it appears that in many of these suits, the city being sued deliberately chose to lose. An examination of those suits find really weak judgments when compared those written after a well argued case. As an exercise, one can read through two opinions on injunctions by federal district judges and see a substantial difference; Judge O’Connor’s citation-rich, 26-page opinion issued after the Open Carry injunction hearing is heavy reading, but one can zip through Judge Hughes’ six-page opinion in the City of Houston case (with meager citations) very quickly. The average observer might walk away wondering if the City of Houston really defended its case before Judge Hughes. There just isn’t much there. On the down side for ATS, this kind of opinion is not very persuasive to other judges. (Judge O’Connor is judge in the federal Northern District of Texas; Judge Hughes sits in the Southern District of Texas.)
ATS OFTEN LOSES IN THE REAL WORLD AFTER IT WINS IN COURTS.
Another interesting observation is that opponents of red light cameras don’t always have to really win their suit to have the cameras removed. ATS operated red light cameras in Houston from 2006 until 2011, winning in court its suit in 2010. In spite of that win, the Houston City Council voted to end the program, after apparently feeling the heat from its citizens. Similar stories can be seen in College Station and Baytown, where ATS won, but the cameras came down.
THINGS TO KNOW:
1) The City of Arlington makes a monthly payment of $110k for the 23 cameras, posted at 19 intersections. ATS does not make any more money by pulling in more tickets, but the City does.
2) The City makes about $2M/year. It justifies the program by saying that it pays for another nine or so police officers.
3) Many of the other suits concerned cities who had pretty heinous contracts. Arlington’s contract specifically states that it can escape with a notice.
4) Many of the other suits concern cities with initiative and referendum (I&R) processes; Arlington has no I&R process.
The law suit was filed on February 25 by Jody Weiderman, a patsy for American Traffic Solutions (ATS). We know he’s merely a patsy for ATS because he testified that he is not paying for his representation, and stated that he does not know who is paying his attorney fees. However, his attorney, Andy Taylor, has represented American Traffic Solutions in many cities, including Baytown and Houston. He’s also advised pro-camera city administrations which oppose anti-red light camera petitions efforts in Sugar Land.
Because good media stories should be rewarded, I wanted to point out this great story on that issue discussing Brooksville, Florida, which outlines how Taylor helped form what can only be described as a classic astroturf organization, Keep Florida Roads Safe, that he used as a tool to sue Brooksville, FL.
WHAT HAPPENS NOW.
If everything goes as it is expected, there will be no appeal prior to the election, and if there is, I suspect we’ll swat it down pretty easily. The election will be held on May 9, and will pass with something like 65%+ in favor of taking down the cameras. THEN, ATS will make another pass to stop the suit, and it may go all the way to the Texas Supreme Court. So stay tuned and keep your powder dry. And be sure to give your thanks to Faith Bussey, Kelly Canon, all the petition gatherers, and even Robert Rivera, the only member of the City Council who is on the right side of the issue.