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Case No. 2014-44974 Jared Woodfill; F.N. Williams, Sr.; In the District Court of and Max Miller Plaintiffs, v. Harris County, Texas Annise D. Parker, Mayor; Anna Russell, City Secretary; and City of Houston Defendants. 152nd Judicial District Court

The Citys Response To Plaintiffs Post-Trial Brief on Circulators Who Did Not Validly Sign the Petition

The jurys verdict resolved the factual issues in this case, and the plaintiffs lost and

should take nothing. This Court already has ruled in favor of the City on the matters at issue in

plaintiffs most recent filing, and the Court found that pages from circulators who did not validly

sign the petition must be excluded as a matter of law.1 At the Courts request (and reserving all

rights), the City provided a neutral, fact-based signature count based on the Courts rulings in its

February 20, 2015 order, and plaintiffs fell thousands of signatures short of their 17,269

minimum signature threshold.

Plaintiffs have taken a very different and improperly slanted approach. Plaintiffs March

27, 2015 so-called audit is a thinly veiled attempt to circumvent the Courts rulings, as

plaintiffs claim that many of the circulators at issue signed the petition. Plaintiffs yet again miss

the Courts point: circulators had to validly sign the petition in order for signatures to count, and

many circulators pages were excluded/disqualified because the circulators signatures were

crossed-out or because they did not validly sign the petition. Plaintiffs audit confirms that

many circulators did not validly sign the petition and confirms contrary to plaintiffs false

1 Under the Court's 2/20/15 Order (as interpreted by the Court at the 3/13/15 conference), the signature count shows that plaintiffs are several thousand signatures short. Thousands of signatures are invalid/disqualified for multiple reasons, not simply that circulators did not validly sign the petition. Thousands of signatures also are invalid/disqualified under the jurys 2/13/15 verdict, and the City reserves all rights, including the right to seek judgment on the verdict.

4/1/2015 3:00:10 PMChris Daniel - District Clerk Harris County

Envelope No. 4731157By: KATINA WILLIAMS

Filed: 4/1/2015 3:00:10 PM

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assertions that many more circulators did not sign at all. Plaintiffs audit also confirms that

many of the petition pages they now (again) dispute still are not valid.

Every honest signature count following the jurys verdict shows that plaintiffs forgery,

false oath, and defect-ridden petition does not have enough legally valid signatures. Plaintiffs

repetitious filings and false assertions that invalid signatures are valid cannot change the fact that

plaintiffs misguided petition falls well short of the threshold required for an election to be

ordered. Plaintiffs lost the jury trial they demanded and now are trying so hard to ignore. This

Court should enter judgment for the City.

I. Plaintiffs Latest Ploy to Try to Validate Legally Invalid Pages

On February 13, 2015, the jury returned a verdict in the Citys favor, found that 64 out of

97 circulators did not sign and subscribe their oaths properly, and found that 12 out of 13 of the

highest volume circulators submitted petition pages containing forgeries and false oaths.

Plaintiffs only had about 2,027 valid signatures under the jurys verdict.

On February 20, 2015, this Court ruled that petition pages where circulators did not

validly sign the petition could not count as a matter of law: Regarding the petitions of

circulators who either did not sign the petition or whose signature was invalidated, the signatures

on those petitions shall not be valid. Under this and the Courts other rulings, plaintiffs

remained thousands of signatures short.

Despite plaintiffs waiver they did not present a question or evidence on this issue at

trial they now say (contrary to what is memorialized in the current count) that individuals

responsible for circulating 246 separate pages actually signed the petition.2 Plaintiffs arguments

2 Plaintiffs 3/25/15 brief claims only 292 signatures relate to this issue, their audit, provided in excel chart format just two days later on 3/27/15 raises that number to 847 signatures across 246

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are contrary to the Courts rulings, misleading, legally wrong, and these pages contain far fewer

signatures than plaintiffs need to validate their petition.

As the City, plaintiffs, and this Court have discussed multiple times (as recently as March

26), hundreds of pages and thousands of signatures are invalid/disqualified for multiple reasons.

Under the Courts February 20 ruling, circulators who plaintiffs now say signed the petition had

pages disqualified for multiple reasons (which plaintiffs do not address), such as inability to

verify the circulator signed the petition, circulators signed the petition too early, circulators

names were crossed-off the petition before it was submitted to the City, or circulators signatures

suffered other legal defects. Plaintiffs so-called audit reviews pages that were disqualified for

more reasons than plaintiffs brief suggests. Plaintiffs simply ignore those other reasons why the

signatures and pages are invalid and disqualified.

In many cases, plaintiffs do not resolve (or even mention) the fundamental legal defect

with the circulators signature that is of concern to the Court they simply (and insufficiently)

try to show where a circulator purportedly signed the petition.

Plaintiffs say circulators Ernest Chandler, Maria Devlin, Stephanie Hart, Lucille Punsalan, Michael Simen, and Daniel Tupa signed the petition. If so, that changes nothing. Each of those circulators invalidly signed the petition before June 3. That additional basis for invalidity ignored by plaintiffs independently renders each of the pages they circulated invalid, as this Court has made clear multiple times.

Plaintiffs say circulators Andrea Gonzalez, Barbara Maseberg, and Laurie Towns signed the petition. Plaintiffs again side-step the Courts ruling. Those circulators did not validly sign the petition because their names were crossed-out before the petition was

pages. Plaintiffs 3/30/15 Notice of Submission of Post-Trial Audit claims even more signatures, 865, are at stake. This brief focuses only on those signatures identified in plaintiffs so-called audit and does not address the other arguments raised in plaintiffs brief which, as the Court confirmed at the 3/26/15 conference, this Court already has rejected in full.

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submitted to the City or otherwise were excluded as legally invalid.3

As this Court held in its February 20 order and repeated at its March 26 conference, these and

other defects render circulators pages invalid.

Plaintiffs March 25 brief and March 27 audit is their latest attempt to ignore the jurys

verdict and repeat arguments this Court already has rejected.

II. Plaintiffs Try to Mislead the Court

By Attributing Circulator Signatures to Petition Signers With Different Handwriting

The jury heard evidence from handwriting expert Janet Masson that (along with other

evidence) fully supported the jurys finding that 12 out of 13 high-volume circulators submitted

petition pages rife with forgery and other non-accidental defects, and signed oaths that were not

true and correct. Plaintiffs have never tried to refute this evidence of forgery, false oaths, and

other non-accidental defects.

Now, in their latest brief to this Court, plaintiffs continue their pattern of brazen

handwriting misdeeds in a desperate attempt to inflate their signature count. Plaintiffs try to link

disqualified circulators signatures to petition signers with similar names but completely

different handwriting. Perhaps most galling is plaintiffs claim that 15 pages circulated by an

individual with the nearly anonymous signature S. Johnson should be attributed to a petition

signer whose rather unique name is Servetra Johnson:

3 Plaintiffs audit also is misleading because plaintiffs claim circulators signatures appear on pages where they in fact do not. None of these circulators names appear on the pages identified by plaintiffs: Theresa Allen, Josefa Garza, Ronald McCleland, and Sherry Oradat.

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Compare

With

Servetra Johnsons signature and handwriting plainly differ from S. Johnsons in nearly

all measurable respects, from slant to style of lettering to name. Worse, neither the address

Servetra Johnson lists on the petition, nor her signature matches the address and signature of S.

Johnson listed in the notary book of Judy Wright, offered by plaintiffs as an exhibit at trial:

Compare

With

Why didnt plaintiffs purported audit catch this?4 Why did plaintiffs stay mute about this

obvious flaw? Plaintiffs appear wholly to have forsaken whatever moral compass they

(outrageously) once claimed to possess.

III. Plaintiffs Improper Attempt to Shift Their Burden

It was the plaintiffs burden to identify circulators, including and especially circulators

with difficult-to-locate names. Indeed, the form and manner in the City Charter requires 4 Plaintiffs audit repeats this error in at least three other sets of signatures belonging to two different individuals named Edward Martinez (one signing at 1164; one circulating at page 3645), two individuals named Richard Campbell (one signing at 1018; one circulating at page 1577), and two individuals named Linda Fair (one signing at 2879; one circulating at 1304).

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circulators both to identify themselves in the identifying I,______ part of the oath and sign at

the end of the oath to actually take the oath. Plaintiffs petition organizers altered the form and

created problems they cannot overcome.

This Court ruled in its February 20 order that it is the duty of the party submitting the

petitions to identify the circulators instead of that duty being placed on the City of Houston to go

through 5,199 petitions to identify the circulator in question. At the March 26 conference, the

Court reiterated that petition organizers, not the City, had the duty to identify circulators with

illegible signatures. Plaintiffs admitted at page 5 of their legibility brief that requiring City

officials to resort[] to extrinsic evidence outside the parameters of the physical pages of the

petition itself can, indeed, be daunting.

Plaintiffs now disregard this Courts rulings and their own prior admission, and urge the

Court to count pages gathered by circulators with illegible signatures. Plaintiffs say 119 petition

pages circulated by an individual with an illegible signature, who they simply record on their

audit as D. Anderson, see, e.g., petition page 2568, were circulated by an individual named

Deborah Anderson, who signed the body of the petition on page 2314:

Compare

With

The illegible signature plaintiffs identify as D. Anderson looks nothing like the

signature of Deborah Cook Anderson in the body of the petition. No other identifying

information is present on the pages circulated by the purported D. Anderson that this is the

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Deborah Anderson on page 2314 as opposed to one of the 27 other Deborah Andersons (or

hundreds of other D. Andersons) registered to vote in Harris County. See

http://www.hctax.net/voter/search (searches for Deborah Anderson and D. Anderson).

Plaintiffs also implausibly try to connect several petition pages circulated by an

individual to an illegible signature from Robert Joseph, Sr. who signed the body of the petition

on page 1754. Really? The illegible circulators signature, see, e.g., page 1722, looks nothing

like Mr. Josephs signature in the body of the petition:

Compare

With

Plaintiffs audit repeats plaintiffs rather obvious error with other circulators and other

petition signers, including Molynda Allbright, Sandra Hayes, Wanda Hughes, Sean Leo, Gay

Moore, Dana Moya, Linda Spaulding, Jerry Stringer, Jessie Strohman, Roberta Swank, and in

two cases, Monica Duplechain and Cynthia Payton. Plaintiffs have not met their burden of proof

to show that any such pages should be counted, and have not disputed that counting them

improperly would undermine this Courts ruling about the burden to identify circulators.

Conclusion

This Court should enter final judgment for the City, and should reject plaintiffs attempts

to back-fill their failed petition.

All defendants join in this response.

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Respectfully submitted,

By: /s/ Geoffrey L. Harrison Geoffrey L. Harrison gharrison@susmangodfrey.com State Bar No. 00785947 Alex Kaplan akaplan@susmangodfrey.com State Bar No. 24046185 Kristen Schlemmer kschlemmer@susmangodfrey.com State Bar No. 24075029 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 Lead Counsel for City of Houston Of Counsel: CITY OF HOUSTON LEGAL DEPARTMENT Donna L. Edmundson Donna.Edmundson@houstontx.gov State Bar No. 06432100 Judith L. Ramsey Judith.Ramsey@houstontx.gov State Bar No. 16519550 James Martin Corbett Jim.Corbett@houstontx.gov State Bar No. 00783875 Patricia L. Casey pat.casey@houstontx.gov State Bar No. 03959075 900 Bagby, 4th Floor Houston, Texas 77002 Telephone: (832) 393-6412 Facsimile: (832) 393-6259 Attorneys for Annise D. Parker, Mayor NORTON ROSE FULBRIGHT US LLP Edward B. Teddy Adams, Jr. Teddy.Adams@nortonrosefulbright.com State Bar No. 00790200 Andrew Price Andrew.Price@nortonrosefulbright.com

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State Bar No. 24002791 Seth Isgur Seth.Isgur@nortonrosefulbright.com State Bar No. 24054498 Geraldine W. Young Geraldine.Young@nortonrosefulbright.com State Bar No. 24084134 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 Attorneys for Anna Russell, City Secretary HAYNES AND BOONE, LLP Lynne Liberato Lynne.Liberato@haynesboone.com State Bar No. 00000075 Kent Rutter Kent.Rutter@haynesboone.com State Bar No. 00797364 William Feldman William.Feldman@haynesboone.com State Bar No. 24081715 Katie Dolan-Galaviz Katie.Dolan-Galaviz@haynesboone.com State Bar No. 24069620 1221 McKinney, Suite 2100 Houston, Texas 77010-2007 Telephone: (713) 547-2000 Facsimile: (713) 547-2600 Appellate Attorneys for All Defendants

Certificate of Service I certify that on April 1, 2015, a true and correct copy of this document properly was served on the following counsel of record in accordance with the TRCP via electronic efiling and email by agreement with the parties. /s/ Geoffrey L. Harrison Geoffrey L. Harrison

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