What happened at the Brimer/Davis hearing

The sense of deja vu was palpable at Judge Tom Lowe's courtroom Tuesday morning in downtown Fort Worth.

Wendy Davis was there defending her eligibility to run for the Texas Senate for a second time. A similar cast of characters were present in the courtroom.

Davis sat behind several lawyers, patient and poised.State Sen. Kim Brimer, R-Fort Worth, who is actually the plaintiff in this suit unlike in the last round, was not.

“I guess he had other things to do,” Brimer’s lawyer, Nick Acuff, said after the hearing.

Judge Tom Lowe said he would deliver his ruling at 3 p.m.

The arguments made this morning were almost identical to those made in February before the court of appeals.

Both sides had an hour each to make their case but the hearing was over in 70 minutes.

According to spokesmen, both Davis and Brimer are likely to appeal if the ruling doesn’t go their way, making it likely this case will quickly be before the Texas Supreme Court.

In the meantime, here’s a look at what happened...

9:05 a.m.: Judge Lowe noted that he had never had a case before where both sides agreed on so many of the facts.

“Why don't you go and just resolve the whole thing?” he joked.

9:12 a.m.: Acuff started things off making Brimer’s case.

He laid out the two sections of the Texas constitution at the center of this case:

The holdover provision requires elected officials to hold onto their office until a successor is appointed (The Fort Worth city charter has a similar provision.).

The overlap provision is meant to prevent an elected official for running from the legislature (the debate is whether Davis falls under this provision because she was a city council member when she first filed for Brimer's seat or if she’s free of it because she resigned well before she would join the state senate should she defeat Brimer in November.).

Davis filed twice to run against Brimer. Once on Dec. 3 and then again on Jan. 2 after it became clear three Fort Worth firefighters were going to challenge her eligibility over it. (Some background: Joel Burns was hastily sworn in at his home on Jan. 1, and Davis declared she was no longer a city councilwoman, possibly making her second filing free of the constitutional entanglements of the first one. But the city of Fort Worth has not said whether they view Burns’ at-home swearing in as legal. Just in case, he was sworn in a second time at a city council meeting the following week.)

Acuff said he wasn’t trying to argue that the second filing wasn’t valid (although Brimer’s original complaint suggested that that might be part of his argument.) Rather his argument in that area focused on his contention that Burns’ first swearing-in was not kosher, making Davis’ second filing as tainted as her first.(If you're confused, click here for a timeline of Davis' candidacy)

“Ms. Davis knew she had a problem, and it looks like she knew she had a constitutional problem,” Acuff said. “There was some scrambling to cure that process...When she filed on Jan. 2, it is our opinion she was still a member of that council because her successor had not been duly qualified.”

But then, Acuff said it didn’t matter whether Burns had officially replaced Davis yet or not. He argued that Davis violated the Texas constitution just by campaigning for her office between August, when she first announced her resignation, and the time until she was replaced on the council months later.

9:27 a.m. Buck Wood, Davis’ attorney approached the podium and he gave a sort of mea culpa, saying it was his idea for Davis to refile her candidacy.

“I'm the one who said 'Get your successor qualified and go down and refile,'” Wood said. “I was just trying to be overly cautious.”

Wood then attacked the timing of the lawsuit, six months after the earlier suit from the firefighters was thrown out. In that case, the judges said only Brimer, Davis’ political adversary, had legal standing to challenger her eligiblity. (Acuff never addressed the timing of Brimer's lawsuit in his arguments. I asked him about it later and he declined to comment)

“There is nothing new about this lawsuit,” Wood said. “The difference is we're sitting here late in the game.” He estimated that, due to appeals, the suit likely won’t be resolved until mid-August.

Wood then laid out how Davis did everything she could to resign from her post on the city council in a timely manner. He listed different factors beyond her control that kept her successor from being sworn in weeks earlier, including how the race to replace her went into a runoff.

“These factors were all out of the hands of the candidate,” Wood said.

9: 43 a.m.: Chad Dunn, lawyer for Boyd Richie, made a presentation focusing on constitutional rights. He argued that because the overlap provision in the Texas constitution only pertains to people running for the legislature (not, say, people running for Railroad Commission), it violated the equal protection clause of the US constitution. He then suggested that Brimer is abusing the legal system to try and knock Davis off the ballot.

“The plaintiff is attempting to avoid a contested fight with one of the most able Democratic office holders in Fort Worth,” Dunn said.

9:50 a.m.: Renea Hicks, lawyer for Tarrant County Democratic Party Chair Steve Maxwell, went back to Wood's line of thought and defended Davis’ decision to refile her candidacy.

“She didn't do it because she was scared,” Hicks said. “She did it to make sure that nobody could raise any reasonable question about it.”

Hicks then rehashed his Jesse Owens argument again from the the February hearing (click here and scroll to the bottom to get a description of it).

He then reminded the judge that higher courts have made clear that when election law is vague, courts must rule in favor of eligibility.

“If there's any ambiguity, you have to file in favor of eligibility,” Hicks said.

10:07 a.m.: Acuff took a few minutes to dispute Davis’ lawyers.

“This is not a question about ballot access,” Acuff said. “There has been a lot of talk that Ms. Davis did everything she could have...I submit that's simply not true. Four months before she announced her run for the Senate, she ran for the city council. She was elected to the city council. Presumably, she was charged with the knowledge of the potential restrictions that might create on her running for legislative office. She did it anyway. She made that choice.”

 Acuff then made a statement that which people on both sides of the debate can likely agree: “If we cannot determine whether a candidate is qualified when they file for office, I think that throws the political process into chaos.”

10:10 a.m.: Lowe said he’d read his ruling at 3 p.m.

And then, the case will get sent to the Court of Appeals, possibly before the same judges who heard the firefighters case in February.

We'll post the judge's ruling as soon as we get it.

-Aman Batheja

Comments

[Knowledge is Power]

Unfortunately, Lowe will probably rule in favor of Brimer. Davis' lawyer did a poor job arguing the case. It's not a question of whether his client "did everything she could do." It's a question of whether the constitution disqualifies her to run during the pendency of her City Council term (irrespective of whether or when she resigned). Her lawyer needed to cite specific examples of election challenges where candidates have resigned to seek other office.

[earugo]

Lawyer only had so much to work with.Most case law I have read about support Brimers postion, remember Doyle Willis. For Wendy... How about knowing council rules, ie meeting following canvas of votes for Burns, how about being Burns needing to be sworn in at Council Chambers not House. How about Wendy not taking pay for those months in question, or asking her collegues to set a special council meeting to get everything out of the way before filing deadline.

[gospurs]

"de minimis" is misspelled.

[GenX]

I'm so sick of the legal B.S. that Brimer is trying to get away with. Lawyers and politicians can argue back and forth for eternity much to the dismay of the public, but two things are clear: 1) at the very least, the law was either followed or intended - this isn't a murder case, folks! 2) There is a large population of citizens that want Ms. Davis on the ballot.

Laws such as this, written by the established elite, are not perfect by ANY means and they should be challenged as to their purpose - OFTEN. Think about it this way: Outside of the filing date, what REAL reason does Brimer have against Wendy Davis? Too scared or lazy to run against a real challenger? Is that what this country has come to? We let lazy incumbent politicians decide who is "fit" to run against them? This reeks of the elections in Mexico and 3rd world countries where the people in power use laws NOT written by the people to keep them in power while the popular opinion is left by the wayside. I'm ashamed of Mr. Brimer for bringing this country down to the level of Zimbabwe. This country is supposed to be an example of democracy! What the people want should always be accounted for - politicians always forget that after a few years!