1

2 3

4

5 6

7

8

9

10

11

12

14

15 16

17

REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES

TRIAL COURT CAUSE NO. DC-09-07085~D

) ) ) ) )

BRANCH ) DISTRICT f ) )

HI CHARD FLEMING

IN THE DISTRICT COURT

VS.

DALLAS COUNTY, TEXAS

CARROLLTON-FARMERS INDEPENDENT SCHOOL ET AL.

95TH JUDICIAL DISTRICT

STATUS CONFERENCE

18

19 On the 3rd day of September, 2009, the

20 following proceedings came on to be held in the

21 above-titled and numbered cause before the Honorable,

22 Judge Ken Molberg Presiding, held in Dallas, Dallas

23 County, Texas.

24 Proceedings reported by computerized stenotype

25 machine.

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00391

1

AJ?PEA.RANCES

2 MR. DERRELL COLEMAN SBOT NO. 04558550

3 West & Associates, L.L.P.

320 South R.L. Thornton Freeway

4 Suite 300

Dallas, Texas 75203

5 Telephone! (214) 941-1881

Attorney for Mr. Fleming

7 MR. ROBERT E. LUNA SBOT NO. 12693000

8 Law Offices of Robert E. Luna, p.e. 4411 North Central Expressway

9 Dallas, Texas 75205

Telephone: (214) 521-8000 - Fax e (214) 521-1738

10 Attorneys for Carrollton-Farmers Branch ISD

6

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

MS. PAULA BENNETT SBOT NO. 24064824 McKnight

4807 Gaston Avenue Dallas, Texas 75246 Telephone: (214) 528 -4191

Attorney standing in for Darlene Ewing

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00392

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
"\
t.
.jr
,_._i"'" I N D E X

PAGE

Appearances '" '" , + .. .. 02

Commingled Argument. . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . .. 04

Reporter's Certificate 24

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 ~ F: (214) 653-7991

00393

./""},:!c.\
i, } 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~ PROCEEDINGS

THE COURT: I figured given the filings,

excuse me, of last time that there might be further

filings particularly aimed at the injunctive request that

Mr. Fleming has made, and I note that apparently I was

correct in that. lIve been

haven't had a time, a

chance; we've been in hearings all morning -- to read

through everything you filed today.

But I have been looking at primarily your

second amended brief in support of respondent's plea to

the "jurisdiction, etc. That is why I changed it,

because I anticipated those filings.

Tell me, Mr. Luna, in a nutshell why this

Court does not have mandamus jurisdiction and it is

exclusive in the Court of Appeals. I've read the El

Paso case, and ITm not really impressed at all with that

case. But is there anything a little more solid other

than it appeared that the Court just wanted that one

person to win that thing?

MR. LUNA: Your Honor, of course I know at

our last hearing I tendered to you the statute.

THE COURT: Right.

MR. LUNA: The Court advised that you were

very well aware of that particular statute.

THE COURT: Right.

Dea na I<:. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00394

1
2
3
4
5
6
7
8
9
10
11
12
"·"'0\ 13
t
_ •. ~'il
14
15
16
17
18
19
20
21
22
23
24
25 MR. LUNA: And it seems that the wording of

the statute places that jurisdiction in the appellate

courts and having to do with election issues only.

THE COORT: But it doesn't place it -- it

doesn't place it exclusively, so, you know, it says they

maY1 if I recall the statutory

MR. LUNA: Your Honor's memory's absolutely

perfect. The word is "may." And then we have the one

Appellate Court opinion that says of course that that is

an exclusive jurisdiction.

THE COURT: Okay. What else -- do we have

anything else out there

and, franklYl Mr. Luna, I have

not had time to look at it and I intend to this weekend --

anything else that -- I don't want to be critical of the

court, but what I -- without trying to sound critical,

anything more authoritative than that ~- than that El Paso

court opinion?

MR. LUNA: Your Honor, while it's not in

the brief itself, we did go back and follow the

legislative history back of that statute. And we'd be glad to tender it to the Court, but the legislative

history does start off and it does use that language that

that jurisdiction would be exclusive jurisdiction within

those courts.

And that's how it starts out, and so all

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00395

1

I mean, that -- that is just so clear[ so

of our statutes from that point tend to come out of that

2 original legislative history.

3 4

THE COURT: Okay.

MR. LUNA: So we think that -- that -- and

5 while that court, I don't believe, cited to the

6 legislative history either, we do have it available. And

7 so we think that that's some additional evidence that that

8 was what was intended as well as the Appellate Court

9 opinion. And, of course, on the opposite side[ there's

10 nothing that says the other way, to the other side of

11 that.

12 THE COURT: . Well, perhaps that's because

.. """."'"\ " .. ~,i

13

it's so apparent, if you know what I mean. One of the

14 one of the real concerns I have here, and I think you

15 picked up on it, and I'll let your opposing counsel

16 address this in a moment, we have on the one hand this

17 this very -- what I consider a very broad statutory

18 command when it comes to injunctions and enjoining matters

19 relating to the election process.

20 And my previous opinion cites the

21 provision, I believe it's 273.081, yeah, a person being

22 harmed or in danger of being harmed by a violation of

23 the Election Code is entitled to appropriate injunctive

24 relief, etc., etc., etc.

25

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F; (214) 653-7991

00396

1

absolutely clear, yet we have this wealth of appellate

2 authority that prevented me from doing anything.

3 Because it said, well, forget the statute. It really

4 doesn't mean what it says. Once an election is

5 complete, the vote is complete, then this statute

6 doesn't apply.

7 And the only way you can attack a -- a

8 threshold qualification like residency or one of the

9 others is through a writ of quo warranto. Now, you

10 know, I totally disagree with that, but those are my

11 superiors telling me that.

12 And the Fifth Court of Appeals told us

13

14 isn't that -- the previous iteration of this case, the

that very strongly in the Parnell case, I think, because

15 Ingram case, wasn't it just on all fours basically with

16 the Parnell case?

17

MR. LUNA: No. And Your Honor is raising

18 excellent questions obviously. Parnell really is -- is

19 not on all fours at all with this case, because it, of

20 course, had to do with standing, which lQ not an issue

21 here.

22 23

THE COURT: Right.

MR. LUNA: And also, in our case, we

24 have -- we have a specific statute which addresses a very

25 narrow administrative remedy available in a post-election

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F; (214) 653-7991

00397

1

process.

10 stopping with the election. And each time I hear you talk

situation.

2

THE COURT: Right. The disqualific

11 about it, you talked about the -- the election process and

3 you're talking about the disqualification?

4

MR. LUNA: Yes, sir. Yes, sir.

5

THE COURT: But that applies -- when you

6 say a narrow statute, it's not narrow at all. It

7 applies to all kinds of elections.

8

MR. LUNA: Oh, absolutely. But narrow in

9 the sense of timing, because Your Honor is sort of

12 the date of the election.

13

14

THE COURT: Right.

MR. LUNA: This statute gives a very narrow

15 window. And it says after the poll is closed, so it's

16 clearly after the election, and before a certificate of

17 election is issued, then this administrative process can

18 take place. So there's a very specific statute, which is

19 a post-election process, which is different than the

20 Parnell cases and the other cases the Court confirmed.

21

THE COURT: So what we get here is I go

22 back to my previous befuddlement on this -- it's not

23 befuddlement at all. It's the -- the lack of coherence.

24

25

We have a situation whe re there's something wrong in the

Deana K, Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00398

1

under that specific statute.

Let1s assume for a minute that

2 Mr. Fleming never resided in the district, and somebody

3 sues after the vote is closed to enjoin him from taking

4 his seat. And the Appellate Courts tell me and tell all

5 the District Courts or whoever else might have

6 jurisdiction that they cannot wade into the process,

7 that the election is essentially sacrosanctr even though

8 we can prove it right here in this courtroom whether he

9 was or was not a resident of the district.

10 And we can't touch that, but one person

11 later on -- you know, the election's important except

12 when it isn't. You follow me there?

13

MR. LUNA: Absolutely, Your Honor, and I

14 don't profess to know why the legislature passes the laws

15 that they do.

16

THE COURT: God knows.

17

MR. LUNA: So--

18

(Laughing)

19

MR. LUNA:

setting that aside, the only

20 thing I can tell you is that we attempt to follow the

21 Constitution and the laws that we're given and follow them

22 correctly. And that particular process is a post-election

23

process for one person, the presiding election officer,

24

whoever that may be in different elections, to take action

25

Deana K. Adams

Official CQurt Reporter, 95th District Court T: (214} 653~6747 - F: (214) 653-7991

00399

1

And, of course, Your Honor, in our

2 briefs! we talk about how when the information comes to

3 your attention that the presiding officer shall take

4 action. So we shift from a may and so forth to an

5 absolute shall, and that statute shall take action based

6 on the public records.

7

THE COURT: What about the contention that

8 your client waded or -- the President of the board waded

9 outside the public record to make that determination?

10

11 know, what's the definition of is.

MR. LUNA: Well, then you get into! you

{:'::~.";..;.,,~..:\

_~,_,.r';'i';'

12 13

14

15 16

THE COURT: Right.

MR. LUNA: W~ get back

THE COURT: Where have I heard that before?

,

(Laughing)

17 definitions of what is a public record.

MR. LUNA: So we get back to the

18

19

20

21

22

23

24

25

THE COURT: Right.

MR. LUNA: Now, you can view that several different ways,· but several courts of appeals have said a

public record, for our purposes, we're going to use the

definition in the Public Information Act as to what is a

public record.

And under that act, everything that comes

within -- comes within a governmental agencyTs

Deana K. Adams

Official Court Reporter, 95th District Court T; (214) 653-6747 - F: (214) 653-7991

00400

oo,·'Co,,,;
j, 1
!
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 knowledge, possession, so forth, use, it becomes a

public record. We think that if that's the correct

definition, everything there is a public record.

If you want to adopt a -- an opinion

different than the Courts of Appeals and a

more restrictive definition, then not all of the items

may fit under that. But even if you take

the restrictive definition, Your Honor, there's still

sufficient information there to make that type of

administrative determination.

In fact, there's very little that the

parties disagree on factually. We all agree that that's

the resident's address. We all agree that that he was

allowed to apply for the ballot. There's just virtually

little factually, Your Honor, that the parties disagree

ont except the ultimate conclusion, which is whether or

not he was a resident of the district for six months.

THE COURT: Yeah. Well, again! it's

it's extremely puzzling why -- despite some of the

statutory commands, why this court and no court can make

certain determinations with respect to anything involving

an election! but one person can It.

So that -- that looks to be the state of

the law, and, frankly, I -- Mr. Luna, I think you know

the Court's personal attitude about this. I think about

Deana K. Adams

Official Court Reporter! 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00401

10

1

THE COURT: Mr. Coleman
MR. COLEMAN: Yes, sir.
THE COURT: -- how are you?
MR. COLEMAN: 11m doing fine. How are you?
THE COURT: Fine, thank you. Have you had half of the cases you read, the court figures out who

2 they want to win, and then they figure out how to get

3 there. So, you know, it's really, really frustrating.

4 Is it -- am I correct that there has been

5 a special election called?

6

MR. LUNA: Yes, Your Honor. That has been

7 called.

8

THE COURT: And I assume it'sl what,

9 November?

MR. LUNA: November the 3rd, the general

11 election date.

12

13

THE COURT: And when was that done?

MR. LUNA: Very recently, within the last

14 few weeks.

15

THE COURT: Why canlt the -- well, and the

1.-&

16 Court can't weigh in on that either in your viewpoint, can

17 it, Mr. Luna?

18

MR. LUNA: The -- I can only tell you what

19 the cases say, Your Honor, and the cases say -- the cases

20 indicate nothing.

21

22

23

24

25

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00402

1

THE COURT: It seemed to me that case just

the opportunity to look at your opposition's second

2 amended brief in support of the plea to the jurisdiction!

3 etc., that was filed at, oh, about 10 o'clock this

4 morning?

5

MR. COLEMAN: Your Honor, I picked it up

6 out of my mailbox on the way here, and, nOr I haven't. I

7 just opened the envelope since I got to the courthouse.

8

THE COURT: Okay. Well, I think you see

9 now why the Court stopped a full evidentiary hearing

10 today, because, you know, it was just apparent something

11 else would be coming.

12

13

MR. COLEMAN: Yes, Slr.

THE COURT: What do you have to offer me in

14 response to what Mr. Luna has told me? Which -- what

15 Mr. Luna has told me is that based on the case law that

16 the courts are essentially powerless to do anything with

17 respect to an election.

18

MR. COLEMAN: Well, I don't agree with -- I

19 don't agree with that assessment of the case law. The

20 only case that cited -- that even remotely bears precedent

21 is that El Paso case. And as I pointed out in my brief,

22 there's no logic, there's no reasoning, there's not any

23 application of basic statutory rules of construction that

24 the court applied in reaching that conclusion.

25

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00403

1

kind of rewrote the Texas Constitution without even

2 acknowledging its existence.

3

MR. COLEMAN: Well, Your Honor, it

4 puzzles -- it's certainly puzzling that any statutes or

the

5 any varied interpretation of the statutes would leave one

6 person with so much authority over the results of a

7 lawfully called election. And while Mr. Luna is -- he

8 fairly characterized the idea that we don't disagree on

9 many facts.

10 11

12

13

THE COURT: Right.

MR. COLEMAN: However, we do disagree on a

few very important facts, and one of those is the

definition of public records. The records that

14 Ms. Chaffin relied upon, many of them were documents and

15 letters that were solicited from experts. And the only

16 the only records that were truly public records did not

17 even exist until after the election was completed, or I

18 would say as far as we know did not exist until on or

19 about May 6th, three days before the election.

20 And the statute does say may, Your

21

Honor. It -- it

it's not a logical conclusion that

22 the Court should be prohibited from exercising

23 jurisdiction over cases like this. Because it would

24 effectively cut off the right to have a -- have any kind

25 of evidentiary trial on a mandamus action, because the

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00404

)

1

2

Court of Appeals --

THE COORT: Right. And that's one of the

3 things that is almost so implausible in the context of how

4 our entire system is set up. Because your Appellate

5 Courts are not fact-finding bodies, and they cannot make

6 factual determinations unlike a trial court.

7 So what it means is there's all this

8 flowery language that's being interpreted to deprive the

9 trial courts of jurisdiction, yet what that in essence

10 means is that the issue can never be judicially

11 determined even in the Appellate Courts.

12

13

MR. COLEMAN: I think itTs a much more

logical and reasonable interpretation to -- to interpret

14 that may to mean what it says, may, which means they may

16

15 or the District Courts may.

THE COURT: There1s undoubtedly an argument

17 under Article 5, Section 8 of the Constitution which

18 which gives the Court mandamus juris -- this Court

19 mandamus jurisdiction, in my view. I guess one can

20 concoct an argument, because it does say original

21 jurisdiction.

22 And then it has a phrase in there -- I

23 forget exactly how it's written, I've read it many

24 times -- it says unless another court has been given

25 original jurisdiction. Now, certainly it seems to me

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00405

1

that doesn't automatically deprive this Court of

2 original jurisdiction! if the Court of Appeals has

3

already

has given original jurisdiction by statute,

4 because in that case, you could never have concurrent

5 jurisdiction.

6

MR. COLEMAN: I agree. And even the

7 statute itself lit uses the term "may" in reference to the

8 Court of Appeals or the Texas Supreme Court --

9

10

THE COURT: Right.

MR. COLEMAN: -- which by interpretation

11 could mean that they both have concurrent jurisdiction.

12 And I believe there's some case law under where that's

o

13

been tried, and the Supreme Court has decided that they

14 probably don't have original jurisdiction.

15 But be that as it may, the statute on its

16 face looks to give concurrent jurisdiction to the

17 Supreme Court or the Appellate Court. And I -- I do

18 agree with your interpretation of Article 5, Section 8,

19 and I've cited that in my reply.

20

THE COURT: The

the School District

21 and Ms. Chaffin are telling me that I cannot enjoin that

22 November 3rd election, that I have no authority to do

23 so.

24

MR. COLE~JAN: Your Honor, that seems to be

25 an implausible interpretation of the Constitution and the

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00406

1

Government Code, because Mr. Fleming in -- and other

2 citizens clearly have to have some remedy by way of

3 injunctive relief.

4

THE COURT; And certainly the Parnell case

5 would not apply to -- to that stage, because at that

6 point, no election has been held yet, I mean, to prohibit

7 injunctive relief, so that line of cases would not apply_

8 I guess one of the things I'm wondering

9 is if the principal of the Parnell case is so powerful

10 as the Chief Justice wrote in that opinion, why -- why

11 doesn't it cover all the phases of the election process

12 post-election, if you follow me?

13

And, anyway, as y'all both know, this is

14 a subject that interests me a great deal given the fact

15 that I'm about the only judge up here -- well, I'm the

16 only one who's had 33 years of election law practice-and

17 frankly dealt with these provisions many times in the

18 past and have never quite understood how they can ever

19 be reconciled, and they can't be.

20

21

MR. COLEMAN; Yes, sir.

THE COURT: So, you know, I'm going to have

22 to do my best in f o Ll.owi.nq what my superiors have told me

23 to do, and I'm going to do that. It's going to take me

24 the weekend to do it, because this just deserves that type

25 of attention. It's that importantr and everybody here

Deana K. Adams

- Official Court Reporter, 95th District Court T: (214) 653-6747 ~ F: (214) 653-7991

00407

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
,;
24
25 also knows my view that Mr. Fleming got a raw deal on this

thing.

MR. COLEMAN: Your Honor, I would just ask

for some leave to read the motion to amend, the most

recent amended pleadings and reply to those documents.

THE COURT: I'll need you to do that by

Tuesday, because 11m going to set this for hearing, if

hearing is necessary, sometime late next week. If we're

going to take evidence, I'm going to set the evidentiary

matter off.

If I decide I can't do it, then you will

know before you get here that we're not going to have a

hearing.

MR. COLEMAN: Okay.

THE COURT: But, yes, you have leave to

respond to that.

MR. LUNA; Your Honor, I was just -- I

heard counsel say that it was implausible that injunctions

would not be issued with regard to elections. But the Supreme Court of Texas, that's what they say in the Blum

versus Bob Lanier case in 1999.

I'd be glad to give it to the Court, but they say that the City reSponds to the trial court

correctly and dismissed Blum's request for injunction

relief, because a District Court cannot enjoin an

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

i a

00408

1

THE COURT; Let me have that, so I don't

election, submitting so forth that we agree that Blum

2 had no right to enjoin the scheduled election. It's a

3 well-settled separation of powers. The judiciary's

4 deference to the legislative branch require that

5 judicial power not be invoked to interfere with the

6 elective process.

7 So although counsel may think itTs

8 implausible--

9

THE COURT: No, no, I know.

10

~4R. LUNA: -- that's what the

11

THE COURT: Ifm familiar with that

12 case. Is that -- is that an extra copy of it?

13

MR. LUNA; Yes, sir.

14

15 have to print it out. You know we have to pay for our own

16 paper now back there in the back, so -- yeah. lIm

17 familiar with -- with this and several other cases that

18 say that.

19 And I keep coming back to that first·

20 statute where they -- these folks talk about the

21 legislature indeference to the executive branch and the

22 legislative branch. And then I've got a statute here

23

that says the District Courts can basically issue

24

injunctions throughout all phases of anything covered by

25

the Election Code, and nobody tends to bring that up, so

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00409

1

2

anyway.

What -- what else do we have? When are

3 y'all available? What's your best date, do you know

4 offhand? We have a holiday next week I hear. You know

5 how you look next week, your calendars look?

6

MR. LUNA: Well, Your Honor, if it's an

7 evidentiary hearing, of course, we also have witnesses

8 that we have to check with

9

10

THE COURT: Right.

MR. LUNA: -- and I would simply have no

11 idea about their availability for next week. Of course

12 we'd also like to file our documents with the Court.

13'

Under the Business Records Act, we need 14 days to do

20

14 that, unless the Court gives us leave to file them in less

15 time than that.

16

17

18

19

20

21

22

THE COORT: You don't have any problem

expediting anything that we do, do you?
MR. COLEMAN: No, sir.
THE COURT: That's fine, Mr. Luna.
MR. LUNA: And the Court would like -- are
you talking about the 11th or the 18th? THE COURT: I was actually talking about

23 the 11th[ not a nice day.

24

25

MR. LUNA: Personally, I'm available on the

Deana K. Adams

Official Court Reporter[ 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00410

1

THE COURT: What about you, counsel?

MR. COLEMAN: Yes, sir. I'm available on

4 5

THE COURT: Why donTt we

MS. BENNETT: Excuse me, Your Honor. My

6 name is Paula Bennett. I'm appearing on behalf of Darling

7 Ewing who injured herself today. And she's available on

8 the afternoon of the 11th but not in the morning.

9

THE COURT: . Okay. What1s -- is she all

10 right?

11

MS. BENNETT: Apparently I think she blew

12 her knee out or did something to her knee, so I think

13

she's going to be okay, but she wasn't able to make it

14 here today.

15

THE COURT: Give her my regards.

16

MS. BENNETT: I will.

17

THE COURT: How about two olclock, is that

18 all right?

19 20

MR. COLEMAN: Yes, sir.

MR. LUNA: Yes, sir.

21

THE COURT: I mean, if we run up to it and

22 we have a conflict, call Karin, and we'll move it to the

23 following week, or whatever you agree on that works with

24 my schedule, we'll do it, if that works better.

25

MR. LUNA: And what is the Court setting at

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00411

2

MR. LUNA: Is Dallas courts all spelled

1 two o'clock?

THE COURT: I'm setting, for lack of a

3 better term, 11m setting the temporary injunction

4 hearing --

5

MR. LUNA: Okay.

6

THE COURT: the injunction hearing.

MR. LUNA: All right, sir.

7 8

THE COURT: And I'm setting the mandamus

9 hearing, too.

10

MR. LUNA: All right. We have also a

11 motion to dismiss directed toward the declaratory

12 injunction. Would the Court also consider that at that

13 time?

14

THE COURT: I will, and I tend to -- I

15 haven't delved into that, but I tend to agree with you on

16 that. I mean, obviously, if I don't have jurisdiction to

17 do anything I don't have jurisdiction to deal with a dec

18 action.

19 So any other case law on the points that

20 I've raised that you can cite to me, counsel, would be

21 appreciated. And let me give you my e-mail address, and

22 if you send something to me bye-mail, you must send it

23 to the other side at the same time. It's

24 kmolberg@dallascourts.org.

2S

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00412

25

1

THE COURT: Okay. 2:00 p.m., unless I hear

out?

2

THE COURT: Yes.
MR. LUNA: Is there a space in between?
THE COURT: No.
MR. LUNA: All right, sir.
THE COURT: And I don't mean you have tOr 3

4

5

6

7 you know, do a formal brief or anything -- letter or

8 anything. If you just want to draw my attention to

9 something in particular that -- that you think is

10 important before that hearing, then feel free to do so.

MR, COLEMAN; Yes, sir.

11 12

MR. LUNA: You said cases. Should we also

13

submit the legislative history which we --

14

THE COURT: I'd love to read the

15 legislative history --

16

MR. LUNA: You bet.

17

THE COURT:

of that. I really would.

18 It might be boring to some people, but a guy like me would

19 love that stuff. Anything else?

20

MR. LUNA: No, sir.

21

22 otherwise from you that you want to change itl 2:00 p.m.

23 on September the 11th, which is a Friday.

24 (End of proceedings)

Deana 1<. Adams

Official Court Reporter, 95th District Court T; (214) 653-6747- F: (214) 653-7991

00413

1
2
3
4
5
6
7
8
9
10
11
12
?~~=:1~ 13
J
., _ .. , .... _.~Jl
14
15
16
17
18
19
20
21
22
23
24
25 STATE OF TEXAS

COUNTY OF DALLAS

I, Deana K. Adams, Official Court Reporter in

and for the 95th District Court of Dallas County, State

of Texas, do hereby certify that the above and foregoing

contains a true and correct transcription of all portions

of evidence and other proceedings requested in writing by

counsel for the parties to be included in this volume of

the Reporter's Record in the above-styled and numbered

cause, all of which occurred "in open court or in chambers

and were reported by me.

I further certify that this Reporter's Record

of the proceedings truly and correctly reflects the

exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $l~fL~~C:nd was

paid/will be paid by ~(I, (k\Ck't:u,M') WITNESS MY OFFICIAL HAND this 1~day of

'a(~h~ 9r.fa . ~Mlk\L!\lk

Deana K. Adamsy Texas CSR 7939 Expiration: 12/31/09

Official Court Reporter

95th Judicial District Court 6-00 Corrunerce Street

6th Floor, East Tower Telephone: (214) 653-6747 Facsimile! (214) 653-7991 Dallas, Texas 75202 deanaadams4@yahoo.com

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 ~ F: (214) 653-7991

00414

From: Burns, Bobby

Sent: Friday, September 04,2009 11:38 AM To: Fshor

Subject: FW: C-FBISD: Fleming v. C-FBISD; Transcript fm Status Conference Hrg - Sept. 3, 2009

Jo,

More information for Frank.

Thank you,

BB

Dr. Bobby C. BUTI1S

Superintendent

C-FB ISD

972 968-6101

This message contains information which may be confidential and protected by law. Unless you are the addressee you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received this message in error, please advise the sender by reply e-mail and delete the message. This email may contain the thoughts and opinions of the employee sending the message and may not represent the official policy of the CarrolltonFarmers Branch Independent School District. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses.

From: Daniel D. Bohmer [mailto:Bohmer@txschoollaw.com] Sent: Friday, September 04, 2009 11:33 AM

To: Chaffin, Lynn; Burns, Bobby; Hyatt, Mark

Cc: Robert Luna; Joe Ball; dewing1624@aol.com

Subject: C-FBISD: Fleming v. C-FBISD; Transcript fm Status Conference Hrg - Sept. 3, 2009

Ms. Chaffin, Dr. Burns, and Mr. Hyatt:

00415

For your records, attached please find a copy of the transcript from yesterday's "Status Conference" hearing. Please feel free to contact our office with any questions. Thanks.

Daniel D. Bohmer

Law Offices of Robert E. Luna, P.C. 4411 North Central Expressway Dallas, Texas 75205

Phone (214) 521-8000

Fax (214) 521-1738 bohmer@txschoollaw.com

Disclaimer: This message and all attachments are confidential and may be protected by attorney-client and other privileges, and is intended only for the use of the individual or entity to which it is addressed. This message contains information from the Law Offices of Robert E. Luna, P.C., which may be privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, copying of this communication is strictly prohibited. You must delete this message and any copy of it (in any form) without disclosing it. If you have received this communication in error, please notify us immediately by replying to this e-mail. Unless expressly stated in this e-mail, nothing in this message should be construed as a digital or electronic signature. Thank you for your cooperation.

IRS Circular 230 Disclosure (U.S. Federal Tax Advice): To ensure compliance with the requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Tnis n"G-~':Sd(~~: G~}nt~1~ns information wluch may t}t:: G(.Hyf~(i(:ntlaj anC1 pro{-ectf?d by ~avv Unif::s~, YOU ar~':~ l.hf a.ddn=s~·M:~f~· you H12iY not lJ'~t::,~ (.:GP.y Of di~;ck';S{:: to anyone trH~ flH;~'3;S2\~(:~ or ~1ny irdorrnatlCn <::onhlined in H1e fne::;s(J~:U:~. if you h3V;:~ r;2G-f:ive~j tnis rni,:::~:;sa~.j<;~ in error. rJle;:.1~;e (.H1l{i~:;t;"~ th.[:·~ ~'~{::n('h::r by repiy f;··-·rnai[ ~~nd delete tne rnesf~a~:~e. Tj'H~; ernal~ rn:1y c0nb:~in {he ih0UGl1b anrJ npln(X)S ~")f rhf; enH.!~Gyee send~:'1f1 tne messaqe arH.i rn~3y net rcpn·:l~·~enl the Gltci<'lI ~)Oi!(:.y ofti1e C~:arfjiltrJn·F~1EwH::rs E~tar"ch !rv.iep<::~ndent S{J10{)j Df~;trkL E··rr'<Hi ii~~nsrnrssH;n G8nnot be gU~if<~nt~;e{j to bf.1 g(CU('fJ Of error-tree a~~ infon~laij(]n c()uiti b(~ ijlt~?f<~f~ptf;(L GDHuptef~ if)S!. d€*sti oyed. ar five j gt~; (J~ incomplete, (F contam V;fU3~~S.

00416

1
2
3
4
5
6
7
8
9
10
11
12
" 13
14
15
16
17
18
19
20
21
22
23
24
25 REPORTERtS RECORD VOLUME 1 OF 1 VOLUMES

TRIAL COURT CAUSE NO. DC-09-07085-D

) ) ) ) )

BRANCH } DISTRICT, ) )

RICHARD FLEMING

IN THE DISTRICT COURT

vs.

DALLAS COUNTY, TEXAS

CARROLLTON-FARMERS INDEPENDENT SCHOOL ET AL.

95TH JUDICIAL DISTRICT

STATUS CONFERENCE

On the 3rd day of September, 2009, the

following proceedings came on to be held in the

above-titled and numbered cause before the Honorable, Judge Ken Molberg Presiding, held in Dallasl Dallas

CountYI Texas.

Proceedings reported by computerized stenotype

machine.

Deana K. Adams

Official Court Reporter, 95th District Court T! (214) 653-6747 .; F: (214) 653-7991

00417

(') 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 APPEAlU\NCES

MR. DERRELL COLEMAN SBOT NO. 04558550

West & Associates, L.L.P.

320 South R.L. Thornton Freeway Suite 300

Dallas, Texas 75203 Telephone: (214) 941-1881

Attorney for Mr. Fleming

MR. ROBERT E. LUNA SBOT NO. 12693000

Law Offices of Robert E. Luna, P.C. 4411 North Central Expressway Dallas, Texas 75205

Telephone: (214) 521-8000 - Fax: (214) 521-1738 Attorneys for Carrollton-Farmers Branch ISD

MS. PAULA BENNETT SBOT NO. 24064824 McKnight

4807 Gaston Avenue Dallas, Texas 75246 Telephone: (214) 528-4191

Attorney standing in for Darlene Ewing

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00418

1

INDEX

2 PAGE

3 Appearances. . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . .. 02

4 Commingled Argument .......• + • • • • • • • • • • • • • • • • • • • • • • •• 04

5 Reporter's Certificate ....•...........•............ _ 24

6

7

8

9

10

11

12

13

14 15

16 17

18

19 20 21 22 23 24 25

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00419

1

THE COURT: Right.

PROCEEDINGS

2

THE COURT: I figured given the filings,

3 excuse mel of last time that there might be further

4 filings particularly aimed at the injunctive request that

5 Mr. Fleming has made, and I note that apparently I was

6

correct in that. I've been

haven't had a time, a

7 chance; we've been in hearings all morning -- to read

9 through everything you filed today.

9 But I have been looking at primarily your

10 second amended brief in support of respondent's plea to

11 the jurisdiction, etc. That is why I changed it,

12 because I anticipated those filings.

13

Tell me, Mr. Luna, in a nutshell why this

14 Court does not have mandamus jurisdiction and it is

15 exclusive in the Court of Appeals. I've read the E1

16 Paso case, and I'm not really impressed at all with that

17 case. But is there anything a little more solid other

18 than it appeared that the Court just wanted that one

19 person to win that thing?

20

MR. LUNA: Your Honor, of course I know at

21 our last hearing I tendered to you the statute.

22

THE COURT: Right.

23

MR. LUNA: The Court advised that you were

24 very well aware of that particular statute.

25

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

4

00420

1

MR. LUNA: Your Honor, while it's not in

MR. LUNA: And it seems that the wording of

2 the statute places that jurisdiction in the appellate

3 courts and having to do with election issues only.

4

THE COURT: But it doesn't place it -- it

5 doesn't place it exclusively, so, you know, it says they

6 maYI if I recall the statutory

7

MR. LUNA: ·Your Honor's memory's absolutely

8 perfect. The word is "may.1I And then we have the one

9 Appellate Court opinion that says of course that that is

10 an exclusive jurisdiction.

11

THE COURT: Okay. What else -- do He have

anything else out there

andl frankly, Mr. Luna, I have

('.0.)

.:»

12 13

not had time to look at it and I intend to this weekend --

14 anything else that -- I don't want to be critical of the

15 court, but what I -- without trying to sound critical,

16 anything more authoritative than that -- than that El Paso

17 court opinion?

18

19 the brief itself, we did go back and follow the

20 legislative history back of that statute. And we'd be

21 glad to tender it to the Court, but the legislative

22 history does start off and it does use that language that

23 that jurisdiction would be exclusive jurisdiction within

24 those courts.

25 And that's hOH it starts out, and so all

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653~6747 - F: (214) 653-7991

5

00421

1

I mean, that -- that is just so clear, so

of our statutes from that point tend to come out of that

2 original legislative history.

3

THE COURT: Okay.

4

MR. LUNA: So we think that -- that -- and

5 while that court, I don't believe, cited to the

6 legislative history either, we do have it available. And

7 so we think that that's some additional evidence that "that

8 was what was intended as well as the Appellate Court

9 opinion. And, of course, on the opposite side, there1$

·10 nothing that says the other way, to the other side of

11 that.

.'-~.")'.

.,-

\"",-",,';::"

12 13

it's so apparent, if you know what I mean. One of the

THE COURT: Well, perhaps that's because

14 one of the real concerns I have here, and I think you

15 picked up on it, and r'll let your opposing counsel

16 address this in a moment, we have on the one hand this

17 this very -- what I consider a very broad statutory

18 command when it comes to injunctions and enjoining matters

19 relating to the election process.

20 And my previous opinion cites the

21 provision, I believe it's 273.081, yeah, a person being

22 harmed or in danger of being harmed by a violation of

23 the Election Code is entitled to appropriate injunctive

24 relief, etc., etc., etc.

25

Deana K. Adams

Official Court Reporter I 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00422

(') 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 absolutely clear, yet we have this wealth of appellate

authority that prevented me from doing anything.

Because it said, well, forget the statute. It really

doesn't mean what it says. Once an election is

complete, the vote is complete, then this statute

doesn't apply.

And the only way you can attack a -- a

threshold qualification like residency or one of the

others is through a writ of quo warranto. Now, you

know, I totally disagree with that, but those are my

superiors telling me that.

And the Fifth Court of Appeals told us

that very strongly in the Parnell case, I think, because

isn't that -- the previous iteration of this case, the

Ingram caser wasn't it just on all fours basically with

the Parnell case?

MR. LUNA: No. And Your Honor is raising

excellent questions obviously. Parnell really is -- is

not on all fours at all with this case, because it/ of

course, had to do with standing, which is not an issue

here.

THE COURT: Right.

MR. LUNA: And also, in our case, we

have -- we have a specific statute which addresses a very

narrow administrative remedy available in a post-election

Deana K. Adams

Official Court Reporter,. 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00423

1
2
3
4
5
6
7
8
9
10
11
12
o 13
14
15
16
17
18
19
20
21
22
23
24
25 situation.

THE COURT: Right. The disqualific you're talking about the disqualificatiori?

MR. LUNA: Yes, sir. Yes, sir.

THE COURT: But that applies -- when you

say a narrow statute, it's not narrow at all. It

applies to all kinds of elections.

MR. LUNA: Oh, absolutely. But narrow in

the sense of timing, because Your Honor is sort of

stopping with the election. And each time I hear you talk

about it, you talked about the -~ the election process and

the date of the election.

THE COURT: Right.

MR. LUNA: This statute gives a very narrow

window. And it says after the poll is closed, so it's

clearly after the election, and before a certificate of

election is issued, then this administrative process can

take place. So there's a very specific statute, which is

a post-election process, which is different than the

Parnell cases and the other cases the Court confirmed.

THE COURT: So what we get here is I go

back to my previous befuddlement on this -- it's not

befuddlement at all. It's the -- the lack of coherence.

We have a situation where there's something wrong in the

process.

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

8

00424

1

setting that aside, the only

Let's assume for a minute that

2 Mr. Fleming never resided in the district, and somebody

3 sues after the vote is closed to enjoin him from taking

4 his seat. And the Appellate Courts tell me and tell all

5 the District Courts or whoever else might have

6 jurisdiction that they cannot wade into the process,

7 that the election is essentially sacrosanct, even though

8 we can prove it right her~ in this courtroom whether he

9 was or was not a resident of the district.

10 And we can't touch that, but one person

11 later on -- you know, the election's important except

12 when it isn't. You follow me there?

13

MR. LUNA: Absolutely, Your Honor, and I

14 don't profess to know why the legislature passes the laws

15 that they do.

16

THE COURT: God knows.

17

MR. LUNA: So--

18

(Laughing) MR. LUNA:

19

20 thing I can tell you is that we attempt to follow the

21 Constitution and the laws that welre given and follow them

22 correctly. And that particular process is a post-election

23 process for one person, the presiding election officer,

24 whoever that may be in different elections, to take action

25 under that specific statute.

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

9

00425

1

2 briefs, we talk about how when the information comes to

And, of course, Your HonoL, in our

3 your attention that the presiding officer shall take

4 action. So we shift from a may and so forth to an

5 absolute shall/ and that statute shall take action based

6 on the public records.

7

THE COURT: What about the contention that

8 your client waded or -- the President of the board waded

9 outside the public record to make that determination?

10

MR. LUNA: Well, then you get intol you

11 know, whatls the definition of is.

<A~)

, •• ,.~...;.fo

12

13

14

15

16

THE COURT: Right.

MR. LUNA: We get back

THE COURT: Where have I heard that before?

(Laughing)

MR. LUNA: So we get back to the

17 definitions of what is a public record.

18

19

20

21 22

23

24

25

THE COURT: Right.

MR. LUNA: Now, you can view that several

different ways, but several courts of appeals have said a

public record, for our purposes, vie I re going to use the

definition in the Public Information Act as to what is a

public record.

And under that act, everything that comes

wi thin -- comes ;'lithin a governmental agency IS

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

10

00426

1
2
3
4
5
6
7
8
9
10
11
12
/"", 13
( J
",~~ ...
14
15
16
17
18
19
20
21
22
23
24
25 knowledge, possession, so forth, use, it becomes a

public record. We think that if that's the correct

definition, everything there is a public record.

If you want to adopt a -- an opinion

different than the Courts of Appeals and a

more restrictive definition, then not all of the items

may fit under that. But even if you take

the restrictive definition, Your Honor, there's still

sufficient information there to make that type of

administrative determination.

In fact, there's very little that the parties disagree on factually. We all agree that that's

the resident's address. We all agree that that he was

allowed to apply for the ballot. There's just virtually

little factually, Your Honor, that the parties disagree

on, except the ultimate conclusion, which is whether or

not he was a resident of the district for six months.

THE COURT: Yeah. Well, again, it's

it's extremely puzzling why -- despite some of the

statutory commands, why this court and no court can make

certain determinations with respect to anything involving

an election, but one person can't.

So that -- that looks to be the state of

the law, and, frankly, I -- Mr. Luna, I think you know

the Court's personal attitude about this. I think about

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

11

00427

-,.<'.~~

( )

1

THE COURT: Mr. Coleman
MR, COLEMAN: Yes, sir.
THE COURT: -- how are you?
MR. COLEMAN: 11m doing fine. How are you?
THE COURT: Fine, thank you. Have you had half of the cases you read, the court figures out who

2 they want to win, and then they figure out how to get

3 there. So, you know, it's reallYI really frustrating.

4 Is it -- am I correct that there has been

5 a special election called?

6

MR. LUNA: Yes, Your Honor. That has been

7 called.

8

THE COURT: And I assume it1s, what,

9 November?

10

MR. LUNA: November the 3rd, the general

11 election date.

THE COURT: And when was that done?

12 13

MR. LUNA: ,Very recently, within the last

14 few it-leeks.

15

THE COURT: Why can't the -- well, and the

16 Court can't weigh in on that either in your viewpoint, can

17 it, Mr. Luna?

18

MR. LUNA: The -- I can only tell you what

19 the cases say, Your Honor, and the cases say -- the cases

20 indicate nothing.

21 22

23

24

25

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

12

00428

,. -'\
,} 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 the opportunity to look at your opposition's second

amended brief in support of the plea to the jurisdiction,

etc., that was filed at, oh, about 10 o'clock this

morning?

MR. COLEMAN: Your Honor, I picked it up

out of my mailbox on the way here, and, no, r haven't. r

just opened the envelope since I got to the courthouse.

THE COURT: Okay. Well, I think you see

now why the Court stopped a full evidentiary hearing

today, becauset you know, it was just apparent something

else would be coming.

MR. COLEMAN: Yes, sir.

THE COURT: What do you have to offer me in

response to what Mr. Luna has told me? Which -- what

Mr. Luna has told me is that based on the case law that

the courts are essentially powerless to do anything with

respect to an election.

MR. COLEMAN: Well, I don't agree with -- I

don't agree with that assessment of the case law. The

only case that cited -- that even remotely bears precedent

is that El Paso case. And as I pointed out in my brief,

there's no logic, there's no reasoningt there's not any

application of basic statutory rules of construction that

the 90urt applied in reaching that conclusion.

THE COURT: It seemed to me that case just

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

13

00429

1

kind of rewrote the Texas Constitution without even

3

2 acknowledging its existence.

4 puzzles -- it's certainly puzzling that any statutes or

MR. COLEMAN: Well, Your Honor, it

S any varied interpretation of the statutes would leave one

6 person with so much authority over the results of a

7 lawfully called election. And while Mr. Luna is -- he

8 fairly characterized the idea that we don't disagree on

10

9 many facts.

THE COURT: Right.

11

12

13

MR. COLEMAN: However, we do disagree on a

few very important factsr and one of those is the

the

14 Ms. Chaffin relied upon, many of them were documents and

definition of public records. The records that

15 letters that were solicited from experts. And the only

16 the only records that were truly public records did not

17 even exist until after the election was completedr or I

18 would say as far as we know did not exist until on or

19 about May 6th, three days before the election.

20 And the statute does say may, Your

21

Honor. It -- it

it's not a logical conclusion that

22 the Court should be prohibited from exercising

23 jurisdiction over cases like this. Because it would

24 effectively cut off the right to have a -- have any kind

25 of evidentiary trial on a mandamus actionr because the

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

14

00430

;"~"."\
t ~ 1
-, J:'-~
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 Court of Appeals

THE COORT: Right. And that's one of the

things that is almost so implausible in the context of how

our entire system is set up. Because your Appellate

Courts are not fact-finding bodies, and they cannot make

factual determinations unlike a trial court.

So what it means is there's all this

flowery language that's being interpreted to deprive the

trial courts of jurisdiction, yet what that in essence

means is that the issue can never be judicially

determined even in the Appellate Courts.

MR. COLEMAN: r think it's a much more

logical and reasonable interpretation to -- to interpret

that may to mean what it says, may, which means they may

or the District Courts may.

THE COURT: Therets undoubtedly an argument under Article 5, Section 8 of the Constitution which

which gives the Court mandamus juris -- this Court

mandamus jurisdiction, in my view. I guess one can

concoct an argument, because it does say original

jurisdiction.

And then it has a phrase in there ~- I

forget exactly how it's written, I've read it many

times -- it says unless another court has been given

original jurisdiction. Now, certainly it seems to me

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

1S

00431

3

MR. COLEMAN: Your Honor, that seems to be

1 that doesn't automatically deprive this Court of

2 original jurisdiction, if the Court of Appeals has

already

has given original jurisdiction by statute,

4 because in that case, you could never have concurrent

5 jurisdiction.

6

MR. COLEMAN: I agree. And even the

7 statute itself, it uses the term "may" in reference to the

8 Court of Appeals or the Texas Supreme Court --

THE COURT: Right.

9 10

MR. COLEMAN: -- which by interpretation

11 could mean that they both have concurrent jurisdiction.

12 And I believe there's some case law under where that's

13 been tried, and the Supreme Court has decided that they

14 probably don't have original jurisdiction.

15 But be that as it may, the statute on its

16 face looks to give concurrent jurisdiction to the

17 Supreme Court or the Appellate Court. And I -- I do

18 agree w~th your interpretation of Article 5, Section 8,

19 and I've cited that in my reply.

20

THE COURT: The

the School District

21 and Ms. Chaffin are telling me that I cannot enjoin that

22 November 3rd election, that I have no authority to do

23 so.

24

25 an implausible interpretation of the Constitution and the

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

16

00432

4

THE COURT: So, you know, I'm going to have

1 Government Code, because Mr. Fleming in -- and other

2 citizens clearly have to have some remedy by way of

3 injunctive relief.

THE COURT: And certainly the Parnell case

5 would not apply to -- to that stage, because at that

6 pointl no election has been held yet, I mean, to prohibit

7 injunctive relief, so that line of cases would not apply.

8 I guess one of the things I'm wondering

9 is if the principal of the Parnell case is so powerful

10 as the Chief Justice wrote in that opinion, why -- why

11 doesn't it cover all the phases of the election process

12 post-election, if you follow me?

13 And, anyway f as y' all both know, this is

14 a subject that interests me a great deal given the fact

15 that I'm about the only judge up here -- well, I'm the

16 only one who's had 33 years of election law practice and

17 frankly dealt with these provisions many times in the

18 past and have never quite understood how they can ever

19 be reconciled, and they can't be.

MR. COLEMAN~ Yes, sir.

20 21

22 to do my best in following what my superiors have told me

23 to do, and 11m going to do that. It's going to take me

24 the weekend to do it, because this just deserves that type

25 of attention. It's that important, and everybody here

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

17

00433

1
2
3
4
5
6
7
8
9
10
11
12
(:) 13
14
15
16
17
18
19
20
21
22
23
24
25 also knows my view that Mr. Fleming got a raw deal on this

thing.

MR. COLEMAN: Your Honor, I would just ask

for some leave to read the motion to amend, the most

recent amended pleadings and reply to those documents.

THE COURT: 1111 need you to do that by

Tuesday, because Ifm going to set this for hearing, if

hearing is necessary, sometime late next week. If we're

going to take evidence, I'm going to set the evidentiary

matter off.

If I decide I canlt do it, then you will

know before you get here that we're not going to have a

hearing.

MR. COLEMAN: Okay.

THE COURT: But, yes, you have leave to

respond to that.

MR, LUNA: Your Honor, I was just -- I

heard counsel say that it was implausible that injunctions

would not be issued with regard to elections. But the

Supreme Court of Texas, that!s what they say in the Blum

versus Bob Lanier case in 1999.

I'd be glad to give it to the Court, but

they say that the City responds to the trial court

correctly and dismissed Blum's request for injunction

relief, because a District Court cannot enjoin an

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

lS

00434

1
2
3
4
5
6
7
8
9
10
11
12
(C~) 13
"""'ll'
14
15
16
17
18
19
20
21
22
23
24
25
,
;'i
If.
",,~<i~.~. election, submitting so forth that we agree that Blum

had no right to enjoin the scheduled election. It's a

well-settled separation of powers. The judiciary's

deference to the legislative branch require that

judicial power not be invoked to interfere with the

elective process.

So although counsel may think it's

implausible --

THE COURT: No, no, I know.

MR. LUNA: -- that's what the

THE COURT: 1'm familiar with that

case. Is that -- is that an extra copy of it?

MR. LUNA: Yes, sir.

THE COURT: Let me have that, so I don't

have to print it out. You know we have to pay for our own

paper now back there in the back, so -- yeah. I'm

familiar with -- with this and several other cases that

say that.

And I keep coming back to that first statute where they -- these folks talk about the

legislature indeference to the executive branch and the

legislative branch. And then I've got a statute here

that says the District Courts can basically issue

injunctions throughout all phases of anything covered by

the Election Code, and nobody tends to bring that up, so

Deana K. Adams

Official Court Reporter, 95th District Court T! (214) 653-6747 - F: (214) 653-7991

19

00435

1

2

anyway.

What -- what else do we have? When are

3 y'all availabte? What's your best date, do you know

4 offhand? We have a holiday next week I hear. You know

6

5 how you look next week, your calendars look?

MR. LUNA: Well, Your Honor, if it's an

7 evidentiary hearing! of course, we also have witnesses

9

8 that we have to check with

10

THE COURT: Right.

11 idea about their availability for next week. Of course

MR. LUNA: -- and I would simply have no

13

12 we'd also like to file our documents with the Court.

Under the Business Records Act, we need 14 days to do

20

14 that, unless the Court gives us leave to file them in less

16

15 time than that.

THE COURT: You don't have any problem

18

17 expediting anything that we do, do you?

MR. COLEMAN: No, sir.

19

20

THE COURT: Thatfs fine, Mr. Luna.

MR. LUNA: And the Court would like _.- are

21 you talking 'about the 11th or the 18th?

22

23 the 11th, not a nice day.

THE COURT: I was actually talking about

24 2S

)

MR. LUNA: Personally, I'm available on the

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00436

oY"'~ ~-~ ....
\. '1>,
l 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 THE COURT: What about you, counsel?

MR. COLEMAN: Yes, sir. I'm available on

THE COURT: Why donlt we

MS. BENNETT: Excuse me, Your Honor. My

name is Paula Bennett. I'm appearing on behalf of Darling

Ewing who injured herself today. And she's available on the afternoon of the 11th but not in the morning.

THE COURT: Okay. What's -- is she all

right?

MS. BENNETT: Apparently I think she blew

her knee out or did something to her knee, so I think

shels going to be okay, but she wasn't able to make it

here today.

THE COURT :' Give her my regards.

MS. BENNETT: I will.

THE COURT: How about two o'clock, is that

all right?

MR. COLEMAN: Yes, sir.

MR. LUNA: Yes, sir.

THE COURT: I mean, if we run up to it and

we have a conflict, call Karin, and weIll move it to the

following week, or whatever you agree on that works with

my scheduler we'll do it, if that works better.

MR. LUNA: And what is the Court setting at

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

21

00437

(~- ,,-
) 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2S two o'clock?

THE COURT: I'm setting, for lack of a

better term, I'm setting the temporary injunction

hearing --

MR. LUNA: Okay.

THE COURT: the injunction hearing.

MR. LUNA: All right, sir.

THE COURT: And I'm setting the mandamus

hearing, too.

MR. LUNA: All right. We have also a

motion to dismiss directed toward the declaratory injunction. Would the Court also consider that at that

time?

THE COURT: I will, and I tend to -- I

haven't delved into that, but I tend to agree with you on that. I meanE obviously, if I don't have jurisdiction to

do anything I don't have jurisdiction to deal with a dec

action.

So any other case law on the points that

I've raised that you can cite to me, counsel, would be

appreciated. And let me give you my e-mail address, and

if you send something to me bye-mail, you must send it

to the other side at the same time. It's

kmolberg@dallascourts.org.

MR. LUNA: Is Dallas courts all spelled Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

00438

1
2
3
4
5
6
7
8
9
10
11
12
;'~"') 13
{
", ,,~.r
14
15
16
17
18
19
20
21
22
23
24
25
t_ out?

THE COURT: Yes.
MR. LUNA: Is there a space in between?
THE COURT: No.
MR. LUNA: All right, sir.
THE COURT: And I don't mean you have to, you know, do a formal brief or anything -- letter or

anything. If you just want to draw my attention to

something in particular that -- that you think is

important before that hearing, then feel free to do so.

MR. COLEMAN: Yes, sir.

MR. LUNA: You said cases. Should we also

submit the legislative history which we --

THE COURT: I'd love to read the

legislative history --

MR. LUNA: You bet.

THE COORT:

of that. I really would.

It might be boring to some people, but a guy like me wou Ld

love that stuff. Anything else?

MR. LUNA: No, sir.

THE COURT: Okay. 2:00 p.m., unless I hear

otherwise from you that you want to change it, 2:00 p.m. on September the 11th, which is a Friday.

(End of proceedings)

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F: (214) 653-7991

23

00439

1

STATE OF TEXAS

2 COUNTY OF DALLAS

3 If Deana K. Adams, Official Court Reporter in

4 and for the 95th District Court of Dallas County, State

5 of Texas, do hereby certify that the above and foregoing

24

6 contains a true and correct transcription of all portions

7 of evidence and other proceedings requested in writing by

8 counsel for the parties to be included in this volume of

9 the Reporter's Record in the above-styled and numbered

10 cause, all of which occurred in open court or in chambers

11 and were reported by me.

12 I further certify that this Reporter's Record

13

14

15 16

17

18 19 20 21 22 23

24

25

of the proceedings truly and correctly reflects the

exhibits, if any, offered by the respective parties.

I further certify that the total cost for the

11 {/) d:JO preparation of this Reporter's Record is $, :1'~m"'." and was

paid/will be paid by ~(~Rn\c~~

WITNESS MY OFFICIAL HAND this 1~day of

~~Jn~ 8ttf\ .

~\L~

Deana K. Adams, Texas CSR 7939 Expiration: 12/31/09

Official Court Reporter

95th JUdicial Distric't Court 600 Commerce StI'eet

6th Floor, East Tower Telephone: (214) 653-6747 Facsimile: (214) 653-7991 Dallas, Texas 75202 deanaadams4@yahoo.com

Deana K. Adams

Official Court Reporter, 95th District Court T: (214) 653-6747 - F; (214) 653-7991

00440

Sign up to vote on this title
UsefulNot useful