LAWSUIT UPDATE: RESIDENTS AGAINST FLOODING
The legal process is maddeningly slow, but RAF is indeed moving forward in its fight against preventable flooding – made possible only by your financial support.
Since our federal lawsuit was filed May 25th and amended August 30th considerable back-and-forth action between Defendants (City/TIRZ 17) and Plaintiffs (RAF/You!) has transpired – such as Motions to Dismiss, replies to those motions, a hearing, and our most recent Sur-Reply. (Details in a letter from RAF attorneys follow.) So far, so good.
Now, after considerable effort by our legal team over the past six months, we have cleared some hurdles including our first hearing October 19th with a magistrate judge. This judge, by the way, is not the judge who will ultimately preside over our case but rather she reviewed the suit and decided on dates, proceedings, and will ultimately make her own recommendations to the main federal judge.
To our favor, it was agreed that there will be no “discovery” period for the next six months (a period whereby evidence from both sides must be found and documented; an expensive, time-consuming endeavor). This allows time for negotiation. Remember, RAF’s goal is not money reward but rather to force the City/TIRZ to fix causes of unnecessary flooding by building detention, improving antiquated drainage systems, and preventing new development from shunting water into our living rooms. Should the City and RAF agree on a plan, the federal judge would then enforce it. The City would be bound to fulfil the promises made within a set timeline. RAF’s goal would be accomplished without the expense of a trial which would be very costly and take years. An actual court date is not set until October 2018!
Should negotiations fail then the discovery period and trial will proceed requiring RAF to raise far more funds than what is already needed just to get us through the next six months of negotiation.
We have been incredibly fortunate to have such a capable, caring legal team willing to discount their fees because they believe in our cause. Attorneys Charles Irvine and Mary Conner, mentored by legendary environmental lawyer Jim Blackburn, retired, who began our suit, understand that no one should suffer from floods that can be prevented.
From Attorneys Mary Conner and Charles Irvine:
Please let this letter serve as an update to the RAF Board, and to RAF contributors, about the status of the litigation.
November 7, 2016, we filed a “Sur-Reply” on the Motions to Dismiss. This completes the briefing to the Court at this important juncture. As a recap, the City of Houston filed a Motion to Dismiss our lawsuit on 7/25/16, and the TIRZ Defendants filed their Motion to Dismiss on 8/02/16. Following those briefs, we filed a Response. The Defendants filed Replies. And our Sur-Reply concludes the briefing. In their briefs, the Defendants raised a number of legal issues, among others: the City claimed it was entitled to governmental and qualified immunity. They claimed that we failed to allege a viable cause of action under existing constitutional law. They claimed that the relief we asked for was improper and “draconian.” They claimed that our lawsuit was time barred by the statute of limitations. Later, they claimed the new 2017-2021 CIP caused the lawsuit to become “moot.” In short, the Defendants challenged just about every aspect of our lawsuit that they possibly could. The next step will either be a hearing before the judge, or a ruling from the court without a hearing. It is not common for this judge to have hearings on these types of motions. Finally, it is nearly impossible to predict how long a ruling will take, as every court handles cases differently.
In addition to completing the briefing on the Motions to Dismiss, we also have completed some preliminary scheduling matters. We met with opposing counsel on September 14, 2016 to discuss scheduling, and then we met with the magistrate judge (who reports to the main federal district court judge) on October 19th. At this hearing with the magistrate judge, the main outcome was to set trial. In addition to setting other internal case deadlines, trial is set for the fall of 2018– Oct. 8 2018.
In terms of next steps, the case will enter the discovery phase. Along with our expert, we will engage with the City and TIRZ attorneys and their engineers as new information is presented.
We will keep you updated.
Mary and Charles
For all those attempting a political solution to our flooding, it’s important to understand that all of the promises made in the current TIRZ Capital Improvements Projects (CIP), which supposedly makes our lawsuit moot, have all been made previously. Most recently they were made in a CIP from a couple of years ago, which was subsequently “rearranged” to please an area developer and most of our projects were either dropped or pushed out in the schedule. Much earlier promises were made for detention and drainage projects in the 2003 Tri-Party Contract, which expired unfulfilled, and even 17 years ago in Ordinance 1999-852 guarantying certain neighborhood rights. Should our lawsuit requesting federal oversight fail, why would the City honor nonbinding CIP commitments when it has failed to honor legally binding ones?
Point being, given the history of failed promises it isn’t unfair to say that without RAF’s legal stick, a political solution would be much more difficult. For those wanting to ensure that we continue to have a big enough stick, please help RAF continue to move forward on your behalf with donations. Also, help us by encouraging others to donate. If you want to help but remain anonymous, you can write a check to an attorney, ours or yours, who will then write us a check on their account. Jim Blackburn has offered to funnel anonymous contributions to us. Please mail your check with instructions to:
Blackburn & Carter
Houston, TX 77004
Those who haven’t flooded, yet, should consider RAF’s effort as a kind of flood insurance. If we are successful, it could save them and their families from the misery others have already suffered. What price would they place for that?
Your money is working for you, as is a small Board of dedicated unpaid volunteers.
We are a 501(c)(3), so can accept donations directly. Please mail donations to: RAF P.O. Box 430574 Houston, Tx 77243-0574