NO.

TNTHE COURTOF APPEALSFORTHE FIFTH DISTRICTOF TEXAS AT DALLAS
INRE MARCUSWOOD, THE KIRKI^IOOD TEMPLE, THE AFRICANAMERI CAN PA STORS CO ALITION, THE IN TERDENOMINA TION AL MINISTERIAL ALLIANCE OF DALLAS, THE MT. TABORBAPTIST CHURCH AND THE LIFEWAY CHURCH

PETITION FORWRIT OF MANDAMUS

Leland C. de laGarza State Bar No. 05646600 Andrew L. Siegel State Bar No. 18341825 Timothy D. Zeiger State Bar No. 22255950 Derek D. Rollins State Bar No. 24029803 SHncxnrroRD, Mnrrox & MsKthtrnY 3333 Lee Parkway, Tenth Floor Dallas, Texas 75219 Telephone: (21.4) 780-1.400 Facsimile: Q1a) 780-1.40'L COUNSEL FOR RELATORS ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL Relators certify that the following is a complete list of the parties, the attorneys and any other person who has any interest in the outcome of this proceeding: PARTIES Relators: Marcus Wood Kirkwood Temple African-American Pastors Coalition Interdenominational Ministerial Alliance Of Greater Dallas Mt. Tabor Baptist Church Lifeway Church COUNSEL

Leland C. de laGarza Andrew L. Siegel Timothy D. Zeiger Derek D. Rollins & SHacTSMoRDMELTON MCKINLEY 3333Lee Parkway, Tenth Floor Dallas, Texas 75219 Telephone : (21,! 7804404 Facsimile: (214)780-1401, Thomas P. Perkins, Jr. City Attorney City of Dallas 1500Marilla Street Suite 7-CN Dallas, Texas 75201,

in Respondents, their respectioe fficial capacities: City of DaIIas,Texas City Secretary, Deborah Watkins DallasCity CouncilMembers: Tom Leppert Delia Jasso Pauline Medrano David A. Neumann Dwaine R. Caraway Vonciel JonesHill Steve Salazar Carolyn R. Davis Tennell Atkins Sheffie Kadane Jerry R. Allen Linda Koop Ron Natinsky Ann Margolin Angela Hunt

STATEMENT REGARDING ORAL ARGUMENT This case presents important issues regarding the application of election and alcoholic beverage laws to an unlawful election called by the City of Dallas for the purpose of legalizing the sale of beer and wine for off-premise consumption in the City of Dallas. Oral argument will be beneficial given the important issuespresented, including the jurisdictional prerequisites for the City Secretary and the City Council to properly verify and certify the petition and order a lawful local option electioru the constitutional and statutory right of historically dry political subdivisions located within the City of Dallas to vote independently of other parts of the City of Dallas on whether to legalize the sale of alcoholic beverages, and the Texas constitutional and statutory paradigm for resolving conflicts between wet and dry political subdivisions under local option election laws.

TABLE OF CONTENTS IDENTITY OF PARTIESAND COUNSEL.............. STATEMENTREGARDINGORAL ARGUMENT........... TABLE OF CONTENTS....... INDEX OF AUTHORITIES STATEMENTOF THE CASE.............. STATEMENT OF JURISDICTION PRESENTED............ ISSUES STATEMENTOF FACTS..... STANDING OF RELATORS...... SUMMARY OF ARGUMENT..... ARGUMENT AND AUT}IORITIES L II. MandamusStandards............... i .................. ......ii ...................iii ..-........--..'-....v ....-................3 .........4 ....................4 ......................5 ..............9 ..........13 ......17 ---.....-17

Respondents have failed to perform ministerial duties imposed by law in connection with the proposed local option ..--.''...-.18 electionand mandamusmust issue........ A. The City Secretaryfailed to comply with Section 501'031 of the Texas Election Code by failing to certify the ........ number of qualified voterssigning the petition............... 19 The City Council failed to comply with Section 501.032 of the Texas Election Code by failing to obtain a certification from the City Secretary of the number of ...........25 quali{iedvoters signing the petition ..............

B.

u1

C.

The City Secretary and City Council failed to perform their respective duties to delineate the boundaries of historic dry political subdivisions that will be affected by * election to legalize the off-premise sale of beer and wine in Dallas and consequently they improperly certified and ordered, respectively, an unlawful and ..........28 futile election... ..............32 .........35

CONCLUSION AND PRAYER. OF CERTIFICATE SERVICE............ APPENDIX INCLUDING CERTIFICATION

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INDEX OF AUTHORITIES Cases BIuma. Lanier, .. 9975.W.2d259(Tex.1999).. .... .... 5.W.1 (Tex.1904) City of OakCliffo. State,79 a. Coker Tex.Alco. Beu.Comm'n, 5 2 4 5.W.2 d 5 7 0 x.1 9 7 5 )........... ffe Ellis o. Vanderslice, 4865.W.2d155 (Iex. Civ. App. -- Dallas 1972,no writ) 6 Foods Tex.a. Rylander, 5.W.3d278(Tex.1999) of Fleming (Tex. Houchinso.Plainos,110S.W.2d549 D3n Hownrdu. Clack, no (Tex.Civ. App.-- Dallas1979, writ) 589S.W.2d74B In re Daais, ........ .. . 2695.W.3d 581 (Tex.2008)

.-..---..-.....9,10 .----5,6

- - 18,26,2 8,29

---..21 ...-------.----------24 18,24,29,30,31'

.......--.----.......-26

26,27,29,30,31 .......18,

In re Porter, orig. proceeding) 126S.W.3d708(Tex.App.-- Dallas 2004,

--.....-...--.26

In re Triantaphyllis, 68 S.W.3d861 (Tex.App. -- Houston [14th Dist.] 2002,orig. proceeding)...20,2'l' S.W.2d313 (Tex.Crim. App. 1938) zt. lackson State,118 McGraw o. Newby, 496S.W.2d 250(Iex. Civ. App. -- Beaumontl973,no writ) no S.W.2d337(Tex.Civ. App. -- Waco 1941, writ) Pornell Bond,150 n. -......-29

-....-...-.-.--24 22,27

Tex.Ass'nof Bus.o. Tex.Air Control8d'852 S.W.2d440(Tex.1993).. ....-- --..--..12 -Walkerzt.Packer, .. 827S.w.zd 833(Tex.1992)... .. .. .. ....--.-.-......--.-17

of LS.D. Consol. o. Dist.ofAustin County Columbus WestEndRuralHigh School .--------24 .. (Tex. County,221s.W.2d777 1949). .... . Colorado Constitution, Statutes,Ordinances,Rules,and Attorney GeneralOPinions '1.-8,2005 R.S., Act of May 27,2005,79thLe9., ch. 975,SS Tex.Gen.Laws3269,3269-77.... Ch. DallasCity Charter, XVI[, S12.......... Ch. DallasCity Charter, XV[I, S 13.......... D)............. 251.71.82(subchapter Tnx.Arco. Bnv.CoouSS Arco. Bnv.CoouS 251,.72... TEx. Trx. Arco. Bnv.ConnS 25'1..73... CooES251.80... Arco. BEv. TEx. Buv.CoouS 251..52... ALCO. TEX. (2004) Tnx.Art'v GsN.Op.GA-02O9 TEx.Arfv GsN.Op.GA-0635(2008) Tux.Arr"v GrN.Op.0-6364(1945) art. Tux.Cotrlsr. XVI, S 20.......... Tsx.Cowsr.art.XVI, $ 20(c) Coon5273.061.. Tux.ErEc. A-D) (subchapters 501.001.155 Tux.Erpc.ConnSS Tux.ErEc.CooeS501.021 501.026.033 Tux.Eruc.Conr SS Tsx.Ernc.CopuS501.031 ..............22,25,27 ......13,24 ....4,17,28,31' .................4,'16 ....--.---..17 'l'6,29,20 ..........19 ...............4,7,21 ......-.17 -.--..-.----.26 --.--.----..--26 .........--.-.-..17 ...........28 ............28 ...........18 ...........26 ......................25

Tnx.Ersc.Coos $ 501.031(a) ELEc. Copn S501.032 TEX. Tsx.Ersc.Coor S501.032(a).............. Tsx.Ersc. CoDE 501.109 S Tsx.Emc. Coon S501.153 Miscellaneous

79,20,27,28,33 ..........8, ..25,26 ...............4,8,75,79,25,26 ........19 .........5

http:/ /qaickfacts.census.gov/qfd/states/48/48790ffi.htrnl

...................5

hryr/ /***.tabc.state.tx.us/local-option*elections/history-of3lections.asp.....6

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STATEMENT OF THE CASE Nature of underlyingproceeding: June 23, 2010,decision of the Dallas City Council to call a city-wide election in November 2A10to legalize the sale of beer and wine for off-premise consumption only. Respondents: Deborah Watkins, in her official capacity as City Secretary,City of Dallas, Texas. A1l members of the City Council of the City of Dallas in their respective official capacities: Tom Leppert, Delia ]asso, Pauline Medrano, David A. Neumann, Dwaine R. Caraway, Vonciel JonesHill, Steve Salazar,Carolyn R. Davis, Tennell Atkins, Sheffie Kadane, Jerry R. Allen, Linda Koop, Ron Natinsky, Ann Margolin, and Angela Hunt. Action from which reliefis requested: Dallas City Secretary failed to certify to the Dallas City Council the number of qualified voters signing the petition for local option election prior to a vote by the City Council calling a local option election to legalize the sale of beer and wine for off-premise consumption and City Council failed to require such certification before calling the local option election. In addition, because the petition called for a city-wide election, the City Secretary and City Council were required, but failed, to differentiate between the City as a whole and historically dry political subdivisions within the City, thereby disenJranchising voters in the historically dry political subdivisions. References: Record The Mandamus Record, numbered MR 00000L- 000248inclusive, is filed with this Petition as required by TRAP 52.7(a). No testimony was adduced in connection with the matter complained. Referencesto the Mandamus Record will be by pagenumber and applicable titles of the particular documents.

STATEMENT OF JURISDICTION This Court has jurisdiction to issue a writ of mandamus under Tex. Ernc. CooE 5273.061.. ISSUES PRESENTED 1. Did the City Secretary discharge her ministerial duty under Section

501.031of the Texas Election Code to certify to the City Council the "number of qualified voters signing the petition" when she made no finding regarding the number of qualified voters signing the petition calling for a local option election' but instead merely certified that she had examined the petition and that the "petition contains the required number of registered voters in the political subdivision to be considered sufficient?" 2. Did the City Council discharge its ministerial duty under Section

501.032(a)of the Texas Election Code to verify that it was presented with a "proper petition" and a certification of the number of qualified voters validly signing the petition" which satisfied the 35% statutory threshold requirement of state law before ordering a local option election as requested in the petition? 3. Did the City Secretary and City Council each fail to perform its

respective duties under Article XVI, Section 20(c), of the Texas Constitution, the Texas Election Code and the Texas Alcoholic Beverage Code to delineate the boundaries of the historic political subdivisions located within the City of Dallas

that previously elected dry status, to require a certification in proper fotm, and to independently determine by individual signature verification that a sufficient number of qualified voters validly signed the petition for each aJfectedpolitical subdivision, as well as those residing in the City of Dallas, before certifying and calling a lawful election?
STATNVTNNT OF FACTS

The City of Dallas covers an area of 342 square miles and extends into parts of Dallas, CollirU Denton, Kaufman and Rockwall counties.l Over the years, Dallas has consolidated with and has annexed other incorporated cities and towns, some of which voted to remain, and currently are, dryexamples2illustrate the issue. . When the CiW of Oak Clif{ was annexed into the City of Dallas in Three

1g1g,the special law passed by the Texas Legislature changing the boundaries of the City of Dallas included a provision that prohibited a City of Dallas election from changing the dry local option status of Oak Cliff.3 The Supreme Court

1 The Court is requested to take judicial notice of these facts which are reflected in the U.S. Census Bureau's Quick Factsand may be viewed at http:/lquickfacts.census.govlqfd/states/48/4819000.htm1. 2 While Relators cite three examples, the City's own records allow a complete determination of dry historic political subdivisions located within the Cify of Dallas. Consequently, the relief requested is not limited to separately verifying signatures only for these three examples. 3 City of Oak Aiffa. State,79 S.W. 1, 3 (Tex. 1904): "section 10 of the ...act is in these words: 'The said terriiory of Oak Cliff hereby added to the city of Dallas, is hereby declared to be a residence district, and the city council of Dallas shall never have authority to permit any intoxicating liquors to be sold, bartered or exciranged within said limits. That the present statute of local option, as it now exists in said territory act of the city council of Dallas, and should any of Oak Cliff, shall not be repealed or changed Ot ?

[-

addressed the validity of that statutory provision and noted: "[T]he effect .-. is to declare the law as it was at the time the charter was amended, and in no manner affects the rights of the citizens of Oak Cliff on that question as they existed prior to the adding of that territory to the city of Dallas. It was useless and is harmless.' City of Oak Cliffa' State,79S.W- L, 3 (Tex.1904). . In 1940, the town of Preston Hollow voted to be dry.a In 1945,

Preston Hollow was annexed by the City of Dallass and its dry status has not changed.o . On September 20, 1975, the City of Kleberg voted to remain dry-'

Then on April 1., 1978, Ordinance No. 15794 consolidating the City of Kleberg with the City of Dallas was approved.s 2010, the City secretary of the City of Dallas (the "City on March 1-.6, Secretary") received an application for a petition to the qualified voters of the
election be held on said question, it shall be held solely in the entire justice precinct in which the city of Oak Cliff was, and is, situated prior to the adoption of this act, to wit: Precinct No. 7, Dallas County, Texas, as it is now constituted."' is 4 MR 000219, 000232-000243. T]nedocument at MR 000233-000243 a report maintained by the Texas at found website its on Commission Beverage Alcoholic is requested to option elections /history--of elections.asp. The Court http://www.tabc.state.t.us/local tutu i"ai.iut notice that this record is maintained by the Comrnission. Section 501.153 if the Texas Electi'on Code requires that the results of a local option election be reported to the Commission. 5 MR 000232. 6 MR 000219. 7 MR 000218,000221.-00023'l-. 8 MR 000153-000216.

City of Dallas to legalize "the legal sale of beer and wine for off-premise consumption only."e On May 20, 2010,the City Secretary received a petition to legalize the sale of beer and wine for off-premise consumption for the entire City of Dallaslo containing over 108,000signatures.u The petition did not distinguish between the City as a whole and those historical political subdivisions, including incorporated cities and historic JusticePrecincts located within the City of Dallas, such as Preston Hollow, Kleberg, and historic JP7 (now part of current Justice Precincts 5 and 1), which previously elected a dry status. After the petition was filed, on June 3, 2A10,Wood and Dallas County Commissioner John Wiley Price ("Price"), citizens and voters of the City of Dallas, each requested the City Secretary to verify each signature on the petition as permitted by Section 501.031of the Texas Election Code.12 Wood and Price expressed concern about the validif of the signatures and the lack of sufficient

signatures from dry justice precincts. On June 7 and 8, 201A,the City Secretary acknowledged receipt of the requests for verification and requested payment of
e MR 000001-5; Appendix A. t0 MR 000002 One page as Appendix B. For the Court's convenience, due to its length, only the first ten pages of the Petition have been printed. The entire PetitiorU which is contained on three compact discs is MR 000007. Only the first page of the Petition is included in the Appendix. The Court's clerk has advised Relators that the Court consented to Relators' filing the Petition in CD format due to its length. Another petition was received at the same tirne calling for an election to legalize the sale of mixed beverages in restautants by food and beverage certificate holders only, but this mandamus proceeding is not addressed to that petition. tt MR 000002 MR 000096,Affidavit of Tim Reeves,para. 3. 12MR 000041;Appendix D MR 000248'

$43,505.98as the reasonable cost for verification.l3 The City Secretary advised Wood and Price that the verification process would not begin until receipt of the that the process would take three weeks and that if it took requested $43,505.98, less than three weeks, a refund would be issued.la On June 15, 2010,$43,505.98 the was paid to the City Secretary.rs On ]une 15,201,:0, City Secretary notified would be required for the verification.l6 On Wood that an additional $12,333.49 was June17,2010,the additional $12,333.49 paid to the City Secretary.tT Five days later, on June 22,20L0, Wood's counsel gave written notice to the City Secretary that an independent audit of all petition signatures had been conducted by * outside exper! The Election Group, LLC, and that the petition

was a minimum of 5,555 signatures short of the required numbeds of valid signatures.le The next day, June 23, 2010, the City Secretary issued a

"Memorandum" to the Mayor and Members of the City Council advising that

13 MR 000&11.000247. 14MR 000040 ,000247. The City has not refunded any of the cost of the requested signature-by-signature paid to the City, nor provided any breakdown or explanation of the reasonablenessof any verification such expenses. 15MR 000104,000039; Appendix D 15 MR 000035. 17 Appendix E; MR 000104. MR 000036-000038; 18 The minimum number is equal to 35% of those City of Dallas voters who voted in the last gubernatorial election. TEx. Errc. Coos S 501.032(a).

1eMR 000023-000025.

she had "examined" the signafures on the petition and summarily stated that she had found the two petitions to contain "sufficient signatures" to quatfy as valid and, therefore, submitted the petition and a "certificate of sufficiency" to the City Council for appropriate action.2o Neither the Memorandum nor the Certificate certified the actual "number" of signatures individually verified, nor did either state the number of valid, qualified signatures contained in the petition. Nonetheless, on June 23, 2010,the City Council adopted Ordinance No. 27932, ordering a special election to be held on the petition on November 2,2010, for the purpose of submitting to the qualified voters of the City of Dallas a proposition on whether to legalize "the sale of beer and wine for off-premise consumption oily" in the City of Dallas.2r The Ordinance set the boundaries for the election to encompassall of the City of Dallas, but failed to define the boundaries of all dry historical political subdivisions contained within the City boundaries. Sra.NorNc oF RELAToRS A. Marcus Wood. Mr. Wood is a resident and registered voter of the

City of Dallas. Relator requested the signature-by-signature verification of the petition signatures and arranged payment of the cost of such verification and, consequently, has standing to complain of the failure to properly call the local option election. In Blum zt. Lanier, 997 S.W.zd 259, 262 $ex. 1999), the Texas
20MR 000(X2-000045; Appendix F. 21MR 000046-000095; Appendix G.

Supreme Court held that the signer of a petition, as a sponsor of legislation, has a justiciable interest in seeing that the legislation is submitted to the people for a vote and reasoned that "citizens who exercise their rights under initiative provisions act as and 'become in fact the legislative branch of the municipal at govemment."' Blum, gg7 S.W.2d. 262 (quotingGlasso. Smith, 2M S.W.2d 645, of 649(Tex.1951)). Section501.031 the TexasElection Code authorizes a "citizen of the political subdivision for which an election is sought" to request verification of each signature on the petition. Wood exercised that right by requesti.g a signature-by-signafure verification and also caused the costs for the verification to be paid,.D These facts give Wood an interest distinct from the general public in this proposed legislation and confer standing on himB. The Kirkwood Temple. |

Kirkwood Temple, Christian Methodist

Episcopal Churctu represented by its Senior Pastor, Dr. Jerry L. Christian, St., is located at1,440Sunny Gleru Dallas, Texas 75232,in the Oak Cliff section of the city of Dallas. The Church has a membership of approximately 3,000

congregants and includes persons who are residents of the City of Dallas and who are registered voters residing throughout the Southern Sector in Dallas, including in Oak Clrtf.23

z wood arranged for such payment by a coalition interested in the outcome of the proposed election.

tt Nm. oooo99-ooo1oo. 10

C.

The African-American Pastors Coalition.

The African-American

Pastors Coalition (the "Coalition") is a corporation that represents the pastors of 45 churches with a total, collective membership of approximately 50,000

congregants. Most of the Coalitiort's congregants are residents of the City of Dallas and are registered voters residing in the Southern Sector of Dallas, including the Oak Cliff part of the City of Da11as.2a D. The Interdenominational Ministerial Alliance of Greater Dallas.

The hrterdenominational Ministerial Alliance of Dallas (the "Alliance") is a voluntary association of 390 member churches with approximately 60,000 congregants who worship and live in Oak Cliff.2s E. Mt. Tabor Baptist Church. The Mt. Tabor Baptist Church,

represented by its senior pastor, Dr. Stephen C. Nash, is located aL3700SimpsonStuart Road, Dallas, Texas, 75241 in the Southern section of Dallas and has approximately 2,000 members, many of whom are registered voters who live, work, and worship in Oak Cliff.26 F. Lifeway Church. The Lifeway Church, located at 5520 South

Westmorland, Dallas, Texas, 75237,represented by its senior pastor, Dr. Karen

u tvrR oooogg-ooo1oo. 25 oooo97-oooo98. N&. * vtRoooogz-oooo98. 11

Hollie, is an unincorporated association of congregants including persons who are registered voters residing in the Oak Cliff part of the City of Dallas.27 Oak Cliff was dry when it was annexed by the City of Dallas in 1903. Relators Kirkwood Temple, the Coalition, the Alliance, Mt- Tabor Baptist

Church, and Lifeway Church have standing as individuals and associations representing individuals who reside in Oak Cliff who are opposed to changing the dry status of Oak Cliff and who will be disenfranchised by a wet-dry election held in the entirey of the City of Dallas, which does not differentiate between the City as a whole, and the dry areaswithin the City of Dallas, in which many of their congregants members reside. The requirement for associational standing in Texas was clarified by the TexasSupreme Court in Tex.Ass'n of Bus.ts.Tex.Air ControlBd',852 S-W.2d 440 (Tex. 1993). In order to have standing, an association must meet the following test: "(a) its members would otherwise have standing to sue in their own righf (b) the interests it seeksto protect are germane to the orgatization's purpose; and (c) neither the claim assertednor the relief requested requires the participation of individual members in the lawsuit." Tex. Ass'n of Bus., 852 S.W.2d at M7 - The purposes of the three association Relators include advancing the religious, economic, safety, health, and community interests of its members. Relators Kirkwood Temple, the Coalition, the Alliance, Mt. Tabor Baptist Church, and
t'N,m. ooo1o1-ooo1o2. l2

Lifeway Church have joined this mandarnus proceeding in order to advance the interests and rights of its members, whose individual participation is not

required for presentation of this petition or for the relief requested. Suprpreny OFARGUMENT The Texas Constitution and local option election laws provide for the maximum possible voter control over the status of the sale of alcoholic beverages in the area where a voter resides, and gives that control to the smallest historical political subdivision. When Article XVI, Section 20, of the Texas Constitution was amended in 1935, the Texas Constitution guaranteed that political subdivisions that had elected dry status as of the adoption of this Constitutional Amendment would remain dry until the identical political subdivision, using identical boundaries, voted in a local option election to change that status. This is true even if the boundaries of that political subdivision change, or it ceasesto exist, or it is absorbed into another political subdivision of the State. In an effort to wet-up the entire City of Dallas for the sale of beer and wine for off-premise consumption through a city-wide local option election, a petition was delivered to the City Secretary. Relators seek mandamus relief to require that the City Secretary and City Council comply with statutory and Constitutional safeguards designed to ensure local option initiative petitions are properly veri{ied and certified before a local option election is ordered.

t3

The City of Dallas includes political subdivisions, such as Preston Hollow, Kleberg and historic JP Z which previously elected a dry status. In order to change that stafus, the voters residing within those historical boundaries must decide their wet/dry status by a separate vote - a city-wide election to do so is unlawful and risks overwhelming those voters' choices by votes from persons who do not reside in their historical political subdivision. The City must

separately consider and safeguard each such territorial status when ordering a lawful vote to wet-up the City. The petition delivered to the Cify Secretary failed to distinguish between historical political subdivisions that formerly had voted dty and were

subsequently annexed by the City of Dallas.

As permitted by law, Wood

properly requested in writing that the City Secretaryverify each signature on the petition, instead of doing so by a statistical sampling method. The City Secretary estimated the process would take three weeks and required payment of the estimated costs in advance before beginning to per{orm the mandatory review. OnIy six days after the cost was paid (and one day #ter counsel for Relators notified the City Secretary, City Attorney and the City Council that an independent local option election expert had concluded that petition was short of the minimum signatures required to call a lawful election) the City Secretary provided a Memorandum to the City Council purporting to certify that the
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petition contained "the required number" ofvoter signatures to call the election' without stating the actual number of valid signafures required, or the number of valid signatures contained on the petition. Although the City Secretary has a mandatory duty to certify the actual number of signatures determined to be valid and qualified by her mandatory signature-by-signature review, the City Secretary,nevertheless,ignored this non-discretionary requirement of lawSeparately, before ordering a city-wide election, the Dallas Clty Council failed to discharge its duty under the Texas Election Code Section 501.032(a)to verify that it was presented with a "propet petition" that contained the required number of valid signatures of qualified voters on the petition. Trx. Ernc. Copr S 501.021. Further, neither the City Secretarynor the City Council addressed either the propriety of the petition or the validity of petition signatures by

differentiating between the City as a whole and the historical political subdivisions within Dallas that previously voted dry. As a result, an election has been called on the basis of an unlawful "Certification" which fails prima facie to comply with express Constitutional and statutory mandates. Any election called on such basis is void ab initio and, moreover, will disenJranchisevoters itt dry political subdivisions and fail to give such voters the Constitutionally and statutorily guaranteed maximum possible control over whether alcoholic

beveragesmay legally be sold in their neighborhoods.
15

Becauseit is the petition alone that vests the City Council with jurisdiction to order a lawful election, the City Secretary's and City Council's failure to ensure the petition is "proper:' rt uncorrected at this stage, Wil result in the calling of an unlawful, and therefore, futile, election, the wasting of taxpayer monies, the futile casting of votes, the disenfranchisement of voters, and chaos regarding wet and dty overlap for citizen, homeownet, property owrler/ consumer and retailer alike. ARGUMENT AND AUTHORITIES I. Mandamus Standards The general standard for issuance of a writ of mandamus is well

established: mandamus is available "to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Walker o. Pncker,827 S.W.2d 833, 839 (Tex. 1992). Additionally, the Texas Election Code authorizes the Texas Supreme Court and courts of appeals to "issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election ...." TEX.Ersc. CooE S 273.061'.

l6

il.

Respondents failed to perform ministerial duties imposed by law in connection with properly verifying the petition and ordering a lawful local option election and mandamus must issue. The Texas Constitution guarantees local control of whether a political

subdivision will be wet or dry. TEX.CoNST.art. XVI, S 20(c) provides, in pertinent part: (c) In all counties, justice's precincts or incorporated towns or cities wherein the sale of intoxicating liquors had been prohibited by local option elections held under the laws of the State of Texas and in force at the time of the taking effect of Section 20, Article XVI of the Constitution of Texas, it shall continue to be unlawful to intoxicants any manufacture, sell, barter oI exchange and until a maiority of whatsoevef, for beverage purposes, unless in such countv or political subdivision t the qualified v shall tion held for be lawful .... Tux. CoNsT. art. XVI, S 20(c) (emphasis added). Pursuant to Constitutional directive, the Legislature has enacted laws regulating the sale of alcoholic beveragesand providing for local option elections, which are codified at chapter 25'1. the Alcoholic Beverage Code and chapter 501 of the Election Code. See of Tnx. Coxsr. art. XVI, S 20(c);Tsx. Arco. Bsv. Coor SS251.71- .82 (subchapter D); A-D).28 Tnx. ErEc. CooE SS501.001 .155(subchapters The Texas Legislature also has adopted laws intended to satisfy the Constitutional mandate that voters in the smallest political subdivision

zt 1n2005, subchapters A, B, and C of chapter 251 of the Alcoholic Beverage Code were repealed and reAct of May 27,2005,79th Leg., R.S., ch- 975, SS1-8, 2005 codified at chapter 501 of the Election Code. See . Tex. Gen. Laws 3269,3269-77

l7

allowed the maximum possible control over the status of the sale or prohibition area where he or she resides- SeeTgx. Arco. Bnv. of alcoholic beverages in eu:r Coog S 251.73. An authonzed voting unit that has exercised a local option election retains the status adopted until changed by a subsequent local option election in the same authorized voting unit. Tux. ALco. Bsv. CooB S 251'.72;Tnx. (2008)('[A] political subdivision retains Op. An'yGsN. GA-0535,p.5, S II.(A), 112 the status resulting from an election until it is changed by another election specific to the sarnepolitical subdivision."). Once a local option status is in effect as a result of a legal vote, it can only be changed by u vote in the same geographic territory as when the status was established. TEx. Arco. Bnv. Copg S In 251,.80; re Daais,269 S.W.3d 581,585 (Tex. 2008); Houchins v. Plainos,11O S.W.2d 549, 553 (Tex. 1937) (holding that a dry city annexed to a wet area "remained dry until it was voted wet at a subsequent election held in and for the same identical area which had theretofore voted dry . .."); Cokerv. Tex.Alcoholic Coffiffi'n,524 S.W.2d 570,574 (Tex. Civ. App. -- Dallas 1975,writ refd Bezternge n.r.e.) ("a political subdivision which has once voted dry remains so until sale of alcoholic beveragesis legalizedby a wet vote in the same subdivision").

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A.

The City Secretary failed to comply with her duty under Section 501.03Lof the Texas Election Code by failing to certify the actual number of qualified voters validly signing the petition.

Ort " a proper petition" validly signed by the required number of quali-fied voters of a municipality, the City Council must order a local option election to determine whether the sale of alcoholic beverages shall be prohibited or legalized.2eTEx. Ersc. Coos S 501.021. The City Secretary is required to check the names of the signers of the petition, including determining whether the signers were qualified voters of the city at the time the petition was signed. While the City Secretary may use a statistical sampling method to verify signatures, once a citizen makes a written request, the City Secretary "shall verify each signature on the petitiorl" atthe expenseof the requestor. Id. at $ 501.031(a). The City Secretary is then required to certify to the City Council "the number of qualified voters signing the petitiott." Id. at $ 501.031(a)' The City Council is authorized and required to order a local option election only if a "proper petition" in compliance with the statutory

bearing the valid signatures of the required number of qualified requirements,3o Once Relator Wood voters, is properly presented. Id. at SS501.021,501.032(a). made a written request for verilication of each signafure, however, the Dallas
2eThe local option election stafutes provide that when applied to a city election, references to the county, county comrnissioners and voter registrar are changed to mean the city, city council and city secretary, respectively. Tsx. Ersc. CoDE S 501.109. 30 TEX.Ersc. Cour 55501.026-.033.

t9

City Secretary assumed an additional, mandatory duty to review enchsignature on the petition and to certify to the City Council the number of qualified voters validly signing the petition - she was no longer authorized by law to use a statistical sampling method as a shortcut to verification. Id. at S 501.031(a). The City Secretaryfailed to perform these ministerial duties. The City Secretary's "Memorandum" presented to the City Council on June 23, concludes: "Having examined the petition signatures, I have found the two petitions to contain sulficient signatures to qualify as valid. Therefore, I am

submitting the attached petitions, with certificate of sufficiency, to the City Council for appropriate action."31 The City Secretary never certified the actual number of qualified voters who validly signed the petition, or delineated the number between the city and political subdivisions, such as signers residing within or without the historical boundaries of dry Preston Hollow, Kleberg and historical JP7. The certification does not unambiguously certify the actual number of qualified signatures on the petition at issue and not only fails to indicate compliance with the mandate to verify each signature, but also omits the actual number of qualified signatures determined. Section 501.031(a) of the Texas Election Code, providing that the City Secretary "shall certify" the number of qualified voters, requires strict

compliance. SeeIn re Triantaphyllis,68S.W.3d 86'1,868 (Tex. App. -- Houston
31MR 000042-000045; Appendix F.

20

[14mDist.l2002, orig. proceeding) (use of word "must" in Election Code requires mandatory compliance). The City Secretary had no discretion to ignore express and unambiguous statutory mandates or, to substitute a conclusory, non-specific memorandum or "certification" in lieu of satisfying explicit statutory

requirements, including providing the actual number of valid petition signatures counted when verifying each signature as requested. SeeTrx. EIEC. COoU S 501.031. The Memorandum and Certificate fail to satisfy the City Secretary's clear duties: 1) to "examine" the off-premise Petition by conducting a verification of each signatwe;2) to declare how many signatures were submitted and of those, how many (i.e., what "number") were verified as validly signed; and 3) whether such number of valid signatures of qualified voters met or exceededthe required threshold to order a lawful election. The importance of the City Secretary's certificate being in compliance with Section 501.031(a)was made clear by this 486 Court rnEllis o. Vnnderslice, S.W.2d155,159 (Tex.Civ. App. -- Dallas 1972,no writ), when the court stated: "[the commissioners court] has nothing before it on which to act or defer action until the clerk makes his certificate." EIIis, 486S.W.2d at 159. The Texas Attorney General in 1945 summarized the law regarding the jurisdictional prerequisite of a valid petition: "It is well to bear in mind that it is the petition that confers upon the commissioners' court the jurisdiction to order 21

p.725; seealso PoweIIo. Bond, an election ...." Tex. Op. Atty. Gen. 0-6364(1945), 150 S.W.2d337,340 (Tex. Civ. App. -- Waco 1941,no writ) ("it is the petition that confers upon the Commissioners' Court the jurisdiction to order the

election") (intemal quotations omitted). The requirement that the City Secretary certify the actual number of qualified voters validly signing the petition, and not simply recite compliance with the "required number," takes on added significance because: (1) Relator Wood timely and properly requested in writing and caused

payment to be made in full and in advance for a signature-by-signature verification of each petition signature; (2) The City Attorney, in an April 1.,2010,Memorandum, presented the

City Council with a written briefing, and Assistant City Attorney, John Rogers, provided the City Council and City Secretary with a briefing on April 7,2010, utilizing presentation slides which advised that the City Secretarymust certify to the City Council the "number" of signatures on the petition;s2 (3) Accepting the City Secretary's estimates in coffespondence with

Wood and Price that it would take three weeks from the date of payment of the cost to complete the review, then (a) issuing the Memorandum and Certificate only six days #ter payment was received, (b) failing to heed the City Attorney's

32 000123, 000130. MR

22

presentation that the statute requires her to report the number of valid signatures, and (c) omitting any expressconfirmation that each petition signature was verified, all confirm that there is no basis for presuming that the mandatory requirement to conduct a signature-by-signature review of over L08,000 signafures was satisfied; and (4) Relators' counsel advised the City Secretary that a petition expert

consultant independently audited and determined that the number of qualified voters validly signing the petition was deficient by a minimum signatures.33 The City Secretary'sfailure to certify the actual number of qualified voters validty signing the petition deprived the City Council of jurisdiction necessaryto order a lawful local option election and thereby deprived interested citizens, including Relators, of the public disclosure of the information required to be provided by statute, assuming that the required signature-by-signature of 5,555

verification was performed. The source of the Dallas City Council's authority to call a special election to wet-up the City of Dallas is Texas Constitution Article XVI, S 20, Chapter 28'J' of the Texas Alcoholic Beverage Code, and Chapter 501 of the Texas Election
33MR 0000233-000025; MR 000096-000099. As reflected in the Affidavit of Tim Reevet his company, LLC, independently reviewed the petition. The review took three and a half weeks- The Election Group, review disclosed that the petition was at least 5,555 signatures short of the required number of signatures and that an additional 7,987 signatures should be statutorily disqualified because of missing or incomplete voter information and illegibility.

23

Code. The authority to call the election comes from a special grant of authority. Therefore, its exercise must be in strict conformity with the provisions of the Constitutional and legislative grant. W. End Rural High Sch.Dist. of Austin County a. ColumbusConsol. LS.D. of Colo. County,221, S.W.2d 777,779 (Tex. 1949); S.W.2d549,553(Tex.1937)("it is settled as the law of this Houchinso. Plainos,110 State that where a power is expressly given by the Constitutioru and the means by which, or the manner in which it is to be exercised,is prescribed, such means or manner is exclusive of all others"\; Tex. Att'y Gen. Op. GA-0209 (2004). hrdeed, the statutory requirements for the election are conditions precedent to establishing the City Council's proper jurisdiction to order a lawful election in the first instance. W. End Rural Higlt Sch.Dist.,221S.W.2d ar779The Legislature has provided clear and unambiguous instructions

requiring the City Secretary to state "the number of qualified voters signing the petition;" there is no need or license for additional interpretation. SeeFleming Foodsof Tex. o. Rylander,6 S.W.3d 278, 283-84(Tex. 1999) (specific, unambiguous statutes should not be construed to mean something other than what the plain words say, absent obvious error or the literal language will produce an absurd (Tex. Civ. App. -- Beaumont result); McGraw zt. Nernby, 496 S.W.2d 250, 251,-52 1973, no writ) (invalidating local option election for failure to comply with statutory ballot requirement). These provisions are part of a series of protective 24

and precautionary measuresthat are intended to ensure that the election issue is accurately presented and to prevent the imposition of fraud and mistake on the City Council and voters, in certifying a petition and calling an election. SeeTex. Att'y Gen. Op. No. 0-6364, pp.725-26 (1945). The City Secretary has non-discretionary duties to individually verify and to certify the actual number of qualified voters signing the petition, but failed to do so. Relators are entitled to have those duties compelled and performed prior to the issuance of a lawful certification or the ordering of a lawful election. Accordingly, Relators request this Court order the City Secretary to certify to the City Council the number of qualified voters validly signing the petition and the City Council to perform its duty to evaluate the sufficiency of such certification and the propriety of the petition. B. The City Council failed to comply with its duty under Section 50L.032 of the Texas Election Code by failing to obtain a valid certification from the City Secretary of the actual number of qualified voters validly signing the petition.

Section 501.032 of the Texas Election Code requires the City Council to order a local option election on or after the 30th day #ter the petition is filed if: (1) the petition is filed with the City Secretary within 60 days of the date of its issuance;and (2) the petition bears the verified, acfual signatures of a number of qualified voters at least equal to a number corresponding to 35% of the registered voters in Dallas voting in the last gubernatorial election. Tgx. Ergc. Copg S 25

501.032(a). The duty to call an election belongs to the goveming body of the City of Dallas, its City Council. SeeCokera. Tex.AIco. Beo.Comm'n,5245.W.2d 570, 579 (Tex. 1975) ('the commissioners' court has responsibility to call the election ..."); T5*. ArcO. BgV. COoE S 251.82 ("u reference in this code ... to commissioners court is considered to refer to the governing body of the city"). While some prior Dallas Court of Appeals decisions held that a different city council, faced with city charter provisions that gave it no discretion, lacked e.9.,In re Porter, the power to reject a city secretary's certificate of sufficiency, see, 126 S.W.3d 708 (Tex. App. -- Dallas 2004,orig. proceeding) and Howard o. Clack those decisions 589 S.W.2d748 (Tex.Civ. App.-- Dallas 1979,orig. proceeding),aa are of dubious precedential value today. The Texas Supreme Court recently addressedthe governing body's duty to call an electioninln re Daois,269S.W.3d 581 (Tex. 2008). The Relator in that case argued that once the Dallas County Elections Administrator certified the petitions and the Elections Department recofilmended that the Commissioners Court order the local option election, the Commissioners Court had a ministerial duty to order the election and its refusal
34 For example, in In re Porter, the Court found the Balch Springs City Council had no legal right to disagree with the city secretary's certiFicate because the city's charter made the cify secretaqy's determination of sufficiency final and binding. The Dallas City Charter contains no such provision, and gives no deference to the certificate; instead it requires the City Secretary to examine the petition and ascertain if it is validly signed by the requisite number of qualified voters and to attach to the petition a certificate showing the result of the examination. The City Secretary is then charged with submitting the petition to the City Council. In facf the City Council is required to take action on the petition only if "properly signed." (Dallas City Charter, Ch. XVII, S 12, 13. Appendix Ex. & S). Nor could the Dallas City Charter lawfully supplant the constitutional and statutory pre-emption of the Texas Election Code and the Texas Alcoholic Beverage Code.

26

warranted mandamus relief. ln re Daois,269 S.W.3d at 583. The Supreme Court rejected this argument outright, holding that because the petitions presented to the Commissioners Court were not "proper," the Commissioners Court had no duty to order the local option election. In re Daois, 269S.W.3d at 586. The Dallas City Council's legal duty is not to order a local option election to legalize the sale of alcoholic beverages unless the petition calling for such election is "proper," including being signed by the required number of qualified voters and verified, when requested, on a signature-by-signature basis. In re Dapis, 269 S.W.3d at 586 ("Flere, however, the Commissioners Court was not presentedwith'proper petition[s]'for old Precincts2 and 3, so it had no duty to order a local option election for those historical precincts"). The Election Code provides a mechanism to assist the City Council in performing its duty to decide whether a petition bears the required number of qualified voter signatures: the City Secretary'scertification of the number of qualified voters validly signing the petition. The certification required by Section 501.031(a)of the Texas Election Code must contain the actual "number of qualified voters signing the petition" or the certification is neither lawful nor proper, thereby depriving the City Council of the necessaryjurisdiction to order a lawful local option election. See no Powellzt.Bond,150S.W.2d337,340 (Tex. Civ. App. -- Waco 194'1, writ); Att'y Gen. Op. No. 0-6364,pp.725 (1945). 27

The City Council did not obtain a certificate from the City Secretary complying with Section 501.031(a)of the Texas Election Code, nor did it do its own review of the number of qualified voters. The City Council had a nondiscretionary dury to order an election only if the petition was proper and properly certified, but neither the City Secretary, nor the City Council, certified the number of qualified voters properly signing the petition. Relators are

entitled to have those duties compelled. Accordingly, Relators ask this Court to order the City Council to verify each petition signature and to state the required number of properly qualified voters validly signing the petition, as required in Section 501.031of the Texas Election Code. C. The City Secretary and City Council failed to perform their respective duties to delineate the historic dry political subdivisions that will be affected by an election to legalize the off-premise sale of beer and wine in Dallas and consequently they improperly certified and ordered, respectively, an unlawful and futile election.

The right of the smaller voting unit to control whether it is wet or dry is well-established in Texas. SeeTnx. CoNsr. ART. XVI, S 20(c); TsX. Arco. Bsv. Coos SS 251,.72 .73; Houchinso. Plainos,110S.W.2d 549,555 (Tex. 1934 ("*. hold that while it is true that the city of Houston Heights has long since ceasedto exist as a municipal corporation, still it yet exists for the purPose of holding a local option election to vote on the question of making it lawful to sell intoxicating liquors within the area originally voted dry."); Cokero. Tex.Alcoholic 28

1

Beo.Comm'n,524S.W.2d 570, 574 (Tex. Civ. App. -- Dallas 1975,writ refd n.r.e.) (holding "that a political subdivision which has once voted dry remains so until sale of alcoholic beveragesis legalizedby awet vote in the same subdivision"); In re Daais,259 S.W.3d 581, 585 (Tex. 2008) (holding that since an election in current justice precinct 3 would not #fect the dry status of old precincts 2 and 3, the county commissioners were not required to order an election based on a petition that did not differentiate between the current and old justice precinct boundaries); lackson a. State, 118 S.W.2d 313, 314 (Iux. Crim. App. 1938) ("intoxicating liquors, once having been voted out, can only be voted back by a majority vote of the identical territory that had voted such liquors out."). The City of Dallas contains political subdivisions that previously voted dry. Preston Hollow, Kleburg and JP7 are but examples. The voters residing in such political subdivisions are entitled to vote on whether that subdivision remains dry. Houchins and In re Daois aptly demonstrate this point. In Houchins, t}:Le city of Houston Heights voted for a dry status; Houston Heights was then dissolved and annexed into the City of Houston. Houchins,!10 S.W.2d at 550. The Texas Supreme Court held that in order to change the status of the part of the City of Houston formerly known as Houston Heights, the election "must be held in the same area that originally voted dry." Id. at 555

(emphasis added). Houchins was cited with approval by the Texas Supreme 29

Court in its most recent decision addressingthe issue. In re Daois,269S.W.3dat 584. In In re Daais, the proponents of an initiative to wet up part of Dallas County encompassing Justice Precinct 3 presented a petition to the Dallas County Commissioners Court. While the Elections Administrator certified that sufficient qualified voters had signed the petition and recommended the Commissioners Court call a local option election in Precinct 3's current boundaries, the Commissioners Court refused to order the election becausethe election needed to be called in the historic Precinct 2 and 3, instead of in current Precinct 3. Id. at 582-83. The Texas Supreme Court refused to mandamus the Commissioners Court. Id. at 582. The Court addressed "whether a vote in

current Precinct 3 would be effective to change old Precinct 2 and 3 from dry to wet." Id. at 584. The Court cited Houchinswith approval and noted that Section 251.80 of the Texas Alcoholic Beverage Code "explicitly requires a vote in the 'territory ... constituting such original precinct,' and an election in new Precinct 3 would not change old Precinct 2 and 3 from dry to wet." ld. at 585. The Court concluded that the petition to wet up current Precinct 3 was not "propet" and, consequently, the Commissioners Court had no legal duty to order a local option election in current Precinct 3. Id.

30

Orly voters who reside in the identical geographic territories of the historical dry political subdivisions are authortzed to vote in a local option election that seeks to change that status. SeeTnx. CoNsr. ART. XVI, 5 20(c); Houchinso. Plainos,110S.W.2d at 555. Accordingly, the City Secretaryhas a duty under the Texas Election Code and Texas Alcoholic Beverage Code to verify that a sufficient number of qualified voters who reside in each of the dry political subdivisions that will be affected by the requested local option electioru as well as the remaining part of the City, validly signed the petition. Moreover, the City Council has its own duty to specify in its election order the boundaries and territory in which the election or elections will be held. The City simply cannot conduct one election, based on one petition, for the purpose of wetting-up the entirety of Dallas. Each political subdivision, including annexed towns and cities and historical justice precincts, which previously voted dry, is entitled to vote separately on the issue. Tsx. CoNsr. ART.XVL S 20(c). The Dallas City Secretaryfailed to properly count and disclose the number of qualified signafures on the petition becauseshe counted in gross, and did not distinguish between the City as a whole, and the political subdivisions that previously voted dry, which are located within the City. In re Daois, 269 S.W.3d at 585 ("Petitions must be addressed to the territory whose status will be changed by local option election--here, old Precincts 2 and 3-and only then may
3l

the Commissioners Court order a local option election in old Precincts 2 and3."). The City Council also failed to properly call the election because it did not distinguish between the City as a whole and the political subdivisions that previously voted dry that are located within the City. Relators ask this Court to order the City Secretary to count and verify the number of qualified voters signing the petition who reside in each political subdivision located within the City of Dallas which previously voted dry and the remaining parts of the City, and to certify the number of qualified voter signatures on the petition for each such political subdivision and for the remaining parts of the Cify. CONCLUSION AND PRAYER This Court has the power to facilitate the election process through this mandamus proceedirg ir order to ensure the requested local option election is neither unlawful nor futile. Elections are expensive and time consuming.

Moreover, the citizens' votes should not be squandered in an unlawful election. As pointed out in this mandamus petition, Dallas' City Secretary and the City Council each failed to perform their respective duties imposed upon them by law, which failures threaten to invalidate the local option election that has been scheduled for November 2010. The mandamus relief requested herein will aid the City in properly ordering and conducting a lawful local option election.
32

Relators respectfully pray that this Court gant this petition and issue a writ of mandamus directed to Deborah Watkins, City Secretary of the City of Dallas, and the Dallas City Council as follows: (1) ordering the City Secretary to verify each signature on the petition

as required by TexasElection Code Section501.031(a). (2) ordering the City Secretaryto certify to the City Council the number

of qualified voters validly signing the petition; (3) ordering the City Council to verify that the petition is validly signed

by the stated required number of qualified voters, as required by Section 501.032 of the Texas Election Code; (4) ordering the City Secretary to count and verify the qualified voter

signatures for each political subdivision located within the City of Dallas, which previously voted dry and the remaining parts of the City, and certify the number of qualified voter signatures signing the petition for each such political subdivision and for the remaining parts of the City; and (5) ordering such other and further relief in law or in equity to which

Relators may be entitled.

aa

JJ

Respectfully submitted,

LELAND C. DE LA GARZA State Bar No. 05646640 ANDREW L. SIEGEL State Bar No. 18341825 TIMOTHY D. ZEIGER State Bar No. 22255950 DEREK D. ROLLINS State Bar No. 24029803 SHacxnrFoRD/ MErroru & MSKINLEY,nr 3333Lee Parkway, Tenth Floor Dallas, Texas 75219 7 Telephone (21,4) 80-1,400 780-1,40L Telecopy (21,4) ARORNEYS FOR RELATORS MARCUS WOOD, THE KIRKWOOD TEMPLE" THE INTERDENOMINATIONAL MINISTBRIAL ALLIANCE OF DALLAS, AND LIFEWAY CHURCH

34

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Yis Head SslivelT Hsn. Dcbsreh lryatkins fity Seret{ry Dallas City Hsil f SflSMarillq Roorn5D South Dallfls,TX ?5101 Re: P*yraent of Cast Incrcaee For Futl Petition Vsifieetion and Demrnd for Csst*".Authorimd Fy Statule& RelatedMattms Itemizafionsf u'Reasoilsble

Fear $ccret*ry Watkine; Pr.n$snt to your l6tt*r d*ted June 15, ?010" eneloscd please find eashi€t'eche€k in #4549Pd15 the anlount of $l?,333.49. as ftll6md final paymentnf wlrat you row slfliril rc bE the third estima{e of the upfronf "rs&f&nabls cnst" d mafided by tlrc City, as a eemditisn preccdemt verifying eachsiglurure *n the Local Option Election Pctition for tlrc legaliaationof, to oiFpremisesnlesof beerend wine tlrcughout thc City ofDallss. As noted hefurc, we bslieve that yaur dermandsfor futrl" upfront Feymf,fif src not rsinnbursemenf rEs.sonable authrriced by staste {which contcnrpia-tcs uf expcnsa*}end eonstitrne dispante, unf'air and unrEasonablcoostr and treatmmt of ReqnestotrB, otherwi$Eallowed by flst sfatute. Msreover, in the abcence of receiving ANY iternisatian ef or detail regarding your drem*tically escalatingesst estimates{$?S,0flfl when ws first r-aet $43,505.98a frw days later" and 555,83S.471fuisweek), this is tn sdvise fhnt wE are dennanding fr*m the City a fertrl and nccourrting justifieation sfsll suchallegcdly"rens*n*hlesssB'*ingrnredby ynur Otlis*. to th€ extent t}tal such trost$sre so ditpropnrtionetely trrig:h otd, rr}sre€vst, 'lriditiona{ly, higtrer-thrn**mp*rable verificalion efferfs by the City; whictt gensrally havs nCItbeen ;rr,re by as*essed the eity agninst thn requ*stiflSFarty! ytw **sela-tirlgmsnctary dern*ndsappeart* be ;ubitr*ry, u.nr*as*nabl**nd un&ir amd,thu*, censtituteunlawtul d*rlnnde" Indesd, tlte City's is latest "guesstiffTate" nnsrethnn tudsc the cost sf fhc angoing, indepemdenf audjt sf tFlesarne Fetjlicn beinge*aductedhy el{illsd verifisrs. {urpo*nntly, to fh€ €xfrefifyour lcte*t esti*ratc afid demand are pmnnfsd an th+ nsed fcr a and expedienee the eity's hurried verificetion effart, eimply tu suit the political convenieues af, verifrcatisn this Tuerda.y, time for Council to een*iderthe Petition's in fhe derire to connpleie CLlrtifieefisn the fell*wing Wednesday,all *uch r*lsrrd sssts it unsffifrcssryr unrwso*ablc and nolr-recfir/erablchy the ei$, given th6t the fouxrcii ic ${rt ruquired lo take astinn or any

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EsqFlon.Dcbsr*hWatkins" i7 June ,?0ln 3 tr)age

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$r only during the currentCcuncil'ssEssion teffil. b$t Certificatisn at ils next '"rne*tingo" instead" all to rcsErve claims snd objeetis$ss$d pay_stchcosts,und€r Thus, R*qu*stor* heleby eontinue protestandsubjeettoandwi{hgutwgiverofallnt'ailablerights,remEdies*ndciamageaallaw irnri in equitY. to Pursuant comrnonand stf,tutcrylaw and rigltts" ineluding the TexaeOper Recerd*Act' is hereby nnedefbr you to Blsaw promptly provide Requeslorswith an itemized clsrnand eaehof your insreflsiugand in$s*ingly high and breekdousrr deredption olhow you calculated why ilch esr.alsting coe,l*&r* "reassnable" as verificaticn cosls, an sxplanation sf ho$r and required by *atnte, the sperific validation eritsris pruvided ts ysur verifiers to validate vedfyfng all eignature*. and training cf tfuose FGr$etH and,thecredentials signatures I?inally,i* fhe inrerestaf tm$spsrerey,this is to alert you and your verifiers to certain of trur rhe defeetsth__sl audit feamatreadyhasidcntified thus fsr on the samePetition* at i*suc. $/e *re finding obrisus disqualifiegliansas pro:ridedby statute,as well ss the following recuff€nt and fnIatrdefectsin Fetition signaune*: l] irapropcr inclusion of Suspense votsr* and relianee rn unoffieial sr i nmeurste Regisuar recsrds; name; vsteresdifiqate numkrs thatd,o net match the ascsctated EOFs; ineornPlete *rrd complereillegibiiity of allegedvoter iderrtlfrestron inJbrmation; "str*ightline, verti*al rnarkings"aftemptingto stlpply vnrying datesto the itemiced d*tes supptried thar rathsr sigrratures obt*ined, hy vsters; &td' eont€fnpora.neowl;r duplieate handtrritirtg end signaturcs.

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We lcok lorwnrd to prornpt receipl of, the City'* findings, as well as to being providcd eosrs"y*u "tr€a$onable wich the underlying itsmiz$tisn and expla*ation of the ever-iRcreasing, cffd have dernsfided we hevePaid" Ilespmtft I Iy sub:rtitted,
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Andy Siegel

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