Pidgeon v Parker, Notice of Removal

7/22/2019 Pidgeon v Parker, Notice of Removal

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J S 4 4 (Rev.12/12) CIVIL COVER SHEETThe JS 4 4 c ivil cover sheet and the information containe d herein neither replace nor supplem ent the f il ing and service of pleadings or other papers as required by law, except aprov ided by local rules of court. This form, appro ved by the Judicial C onferen ce of the United Sta tes in Septem ber 1974, is required for the use of the Clerk of Court for thepurpose of initia ting the c ivil docket sheet. (SEEINSTRUCTIONSONNEXT PAGEOFTHIS FORM.)I. (a) PLAINTIFFSJack Pidgeon and Larry Hicks

(b) County of Residence of First Listed Pla intiff H ar r i s(E X C E P TINU.S. PLAINTIFF CASES)

( c ) A t t o r n e y s (FirmName,Address, an dTelephone Number)Wood fill Law Firm, Jared Woodfill Robert Talton; 3131 Eastside St.Ste. 450, Houston, Texas 77098; 713.751.3080 Tex. Values, JonathanSaenz; 900 Congress Ave., Ste. 220, Austin, Tex.78701; 512.478.2220

DEFENDANTSMayor Annise Parker and City of H oustonCounty of Residence of First Listed Defendant H a m s

(INU.S.P LAINTIFF CASES ONLY)NOTE INLAND CONDEMNATION CASES, USE THE LOCATIONOFTHE TRACTO FLAND INVOLVED,At torneys (If Known)City Attorney's Office; David M. Feldman, Lynette K. Fons, Judith LRamsey, John B. Wallace; 900 Bagby, 4th Floor, Houston, Texas77002;832.393.6412

I I. B A S I S O F J U R I S D I C T I O N Place an X in One Box Only)1 U.S. Government

Plaintiff

a LI.S. G overnmentDefendant

Federal Question(U.S. Government NotaParty)

O 4 Diversity(Indicate Citizenship of Parties in Item III)

I I I . C I T I Z E N S H I P O F P R I N C I P A L P A R T I E S Place an X ,nOneBox for(For Diversity Cases Only) an dOn eBox for Defendant)PTF D EF PTF DEFCitizen of This Slate D ) O 1 Incorporated orPrincipal Place 0 4 Oof BusinessInThis StateCitizen of Another State

Citizen orSubject of aForeign Country

D 2 Incorporated an dPrincipal Placeof BusinessInAnother State0 3 O 3 Foreign Nation

O

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I V . N A T U R E O F S U I T Place an X m One Box Only)1o

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CONTRACT110 Insurance120 Marine130 MillerAc t140 Negotiable Instrument150 Recovery ofOverpayment Enforcement of Judgmen151 MedicareAct152 Recovery ofDefaultedStudent Loans

(Excludes Veterans)153 Recovery ofOverpaymentof Veteran's Benefits160 Stockholders'Suits190 Other Contract195 Contract Product Liability196 Franchise

REAL PROPERTY210 Land Condemnation220 Foreclosure230 Rent Lease Ejectment240 TortstoLand245 Tort Product Liability290 All Other Real Property

TORTSPERSONAL INJURYO 31 0Airplane

O 31 5Airplane ProductLiabilityO 320Assault, LibelSlanderO 330Federal Employers'LiabilityO 340MarineO 34 5Marine ProductLiabilityD 350Motor VehicleO 355Motor VehicleProduct L iabilityO 36 0Other PersonalInjuryO 362Personal Injury-

Medical MalpracticeCIVIL RIGHTSB 44 0Other Civil RightsO 44 1Voting3 44 2EmploymentO 44 3Housing/AccommodationsO 44 5Amer. w/Disabilities-Employment3 44 6Amer. w/Disabilities-OtherO 44 8Education

PERSONAL INJURYO 365Personal Injury -Product LiabilityO 36 7Health Care/PhamiaceuticalPersonal InjuryProduct LiabilityO 36 8 Asbestos PersonalInjurv ProductLiabilityPERSONAL PROPERTYO 370Other Fraud

O 371Truth inLendingO 380 Other PersonalProperty DamageO 385Property DamageProduct Liability

PRISONER PETITIONSHabeas Corpus:

O 46 3Alien DetaineeO 510 MotionstoVacateSentenceO 530GeneralO 535Death PenaltyOther:D 540Mandamus OtherD 550Civil RightsD 555Prison Condition 560Civil Detainee-ConditionsofConfinement

a

a0a

a

a

FORFEITURE/PENALTY625 Drag Related Seizureof Property 21 U SC8 8I690 Other

LABOR710 Fair Labor StandardsAc t

720 Labor/ManagementRelations740 Railway LaborAct751 Familyan dMedicalLeaveAct

790 Other Labor Litigation791 Employee RetirementIncome SecurityAct

IMMIGRATION462 Naturalization App lication465 Other ImmigrationActions

a

a

BANKRUPTCY422 Appeal 28 USC158423 Withdrawal

28 USC1 57PROPERTY RIGHTS820 Copyrights830 Patent840 TrademarkSOCIAL SECURITY861 HIA(1395ff)862 Black Lung(923)863 DIWC/DIWW (405(g))864 SSID TitleXVI865 R SI(405(g))

FEDERAL TAX SUITS870 Taxes (U.S. Plaintiffor Defendant)871 IRSThird Party26 US C7609

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OTHER STATUTES375 False ClaimsAct400 State Reapportionment410 Antitrust430 Banksa ndBanking450 Commerce460 Deportation470 Racketeer Influenceda nCorrupt Organizations480 Consumer Credit490 Cable/SatTV850 Securities/Commodities/Exchange890 Other Statutory Actions891 Agricultural Acts893 Environmental Matters895 Freedomo f Information

Ac t896 Arbitration899 Administrative Procedur

Act/Review o rAppealoAgency Decision950 Constitutionalityo fState Statutes

V . O R I G I N (Placean X inOn eHox Only)O I OriginalProc e e d ing [ 2 Removed fromState Court D 3 Rema nded from Cl 4 Reinsta ted or O 5 Transferred from C ] 6 Multidistr ic tAppella te Court Reopened Another Distr ic t Litigationispectfy)

VI. CAUSE OF ACTIONCite t h e U S Civil Statute under which you a refiling (D ono t cite urisdictional statutes unless diversity).5th and 14th Amendments of the U.S. ConstitutionBrief descr iption of cause:Violations of the 5th and 14th Amendment Rights under the U.S. Constitution

V I I . R E Q U E S T E D I N C HIX K IFTHISIS A CLASS ACTION DEM ANDSC O M P L A I N T : U N O F R R U M - 23. F.R Cv.P.

CHI-CK YHS only if demanded in complaintJ l R V D E M A N D : O Ye s

VIII. RELATED CASE(S)IF ANY (See instructions): J U D G I[--S. Lake D O C K I- T N U M B H R 4 : 1 3 - C V - 3 7 5 5DATE12/27/2013FOR OFFICE USE ONLY

RECEIPT It AM OUNT APPLYINGIF P JUDGE MAG JUIXiK

Case 4:13-cv-03768 Document 1-1 Filed in TXSD on 12/27/13 Page 1 of 1


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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONJACK PIDGEON and LARRY HICKS, Plaintiffs

v. CIVIL ACTION NO.MAYOR ANNISE PARKER and CITY OF HOUSTON

Defendants NOTICE OF REMOVAL

TO THE HONORABLE JUDGE OF THE UNITED STATES DISTRICT C OURT:Pursuant to Title 28 U.S.C. 133l,1441(a) and 1443, Defendants, Mayor Annise

Parker ( the Mayor ) and the City of Houston ( the City )(collectively Defendan ts ), givenotice of their removal of an action filed against them in the 310 thJudicial District Court ofHarris Coun ty, Texas, to the United States District Court for the Southern D istrict of Texa s,Houston Division . In suppo rt, Defendants respectfully state as follows:

Introduction1. On or about Decem ber 17, 201 3, Plaintiffs filed in state district court Cause

No.201 3-753 01, Jack Pidgeon and Larry Hicks, Plaintiffs, v. Mayor A nnise Parker and theCity of Houston, Defendants, in the 310 th Judicial District Court, Harris County, Texas.'Plaintiffs identified the matter as relating to family law, and it was therefore filed by the

Se eOriginal Petition attached hereto as Exhibit A.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 1 of 36


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district clerk in a district court that primarily handles family law matters.2. Though Plaintiffs never prope rly served either the May or or the City with

Plaintiffs' Original Petition for App lication for Tem porary Restraining Order, App licationfor Temporary Injunction and Application for Permanent Injunction, the family courtconducted anexparte hearing on Plaintiffs' Application for Temporary Restraining Orderwithout proper notice to the Defendants at approximately 5:00 p.m. on December 17, 2013 .The Court issued a Tempo rary Restraining Order at 5:13 p.m ., ordering the M ayor and theCity to cease and desist prov iding benefits to same -sex spouses of employees that have beenmarried in jurisdictions that recognize same-sex marriage. 2 Defendants, though neverproperly served withtheTemporary R estraining O rder, filedaMo tion to Dissolve Tem poraryRestraining Order on Decemb er 19,2 013 . The state family court, after cond uctingahearing,denied the Motion to Dissolve on Decemb er 20, 201 3. This Notice of Rem oval is thereforetimely filed less than thirty (30 ) days after receipt by the Defendan ts of the initial pleadingsetting forth the claim for relief upon which such action is based. The M ayor and the Cityare the only defendants in this case, and both seek removal.

3. The United States District Court for the Southern District of Texa s, HoustonDivision is the federal judic ial district encom passing H arris County, Tex as. Therefore theSouthern D istrict of Texas, Houston Division , is the approp riate location for a removal fromHarris County, Texas, pursuant to 28 U .S.C. 44 (a).

Se e Tem porar y Re straining Order dated Dece mb er 19, 2013 at tached hereto as Exhibi t B.2



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4. The Clerk of the District Court of Harris County, Texas and Plaintiffs' counselhave been given notice of the filing of this Notice of Removal.

Federal Question Jurisdiction5. Defendants remove of this action to federal court based on federal question

jurisdiction under 28 U.S.C . 1143. The issues presented in this action the equalprotection and due process rights (including fundamental liberty interests) of legally marriedsame-sex couples under the Fifth and Fourteenth Amendments to the United StatesConstitution present substantial questions of federal law.

Pertinent Background6. Plaintiffs prem ise their action upon the M ayo r's Novem ber 19,2013 directive

to the City of Ho usto n's Hum an R esources Department w hich, in light of the United StatesSupreme Court's ruling in United States v. W indsor, 133 S.Ct. 2675 (2013), and otherrelevant federal au thority, directed that department to offer benefits to the same-sex spousesof the City's employees who are legitimately married in states which recognize same-sexmarriage. 3

7. Plaintiffs assert that the M ayo r's directive, inter alia, violated the City ofHouston Charter Article II, Section 22 which states:

Except as required by State or Federal law,the City of Houston shallnot provide employment benefits, including health care, to persons other thanemployees, their legal spouses and dependent children; nor shall the Cityprovide any privilege in promotion, hiring or contracting to a person or group

Se eDirective dated November 19, 2013 attached hereto as Exhibit F.3



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on the basis of sexual preference, either by a vote of the city council or anexecutive order oftheMayor. Further, the City of Houston shall not requireentities doing business with the City to have any of the above benefits orpolicies.If any portion ofthisproposed C harter amendmentisdeclared unlawful,then such portion shall be removed and the remainder of the Charteramendment will rema in in effect. Any ordinance in conflict with this sectionof the Charter is hereby repealed and declared invalid, (emphasis add ed.)

Plaintiffs have therefore invoked the federal question jurisdiction of this court by theirplead ing. Plaintiffs also allege that the directive violates Section 6.024 of the Texas FamilyCode and Article 1, Section 32, of the Texas C onstitution. They accuse the City of alsocomm itting these violations by implementing the directive.

8. Defendants have complied with Local Rule 81 by attaching the followingdocuments:

1. All executed process (none in this cause) ;2. All pleadings asserting causes of action (Exhibit A);3. All orders signed by the state court judg e (Exhibit B);4. The state court docket sheet (Exh ibit C) ;5. A list of all counsel of record, including addre sses, telephone num bersand parties represented (Exhibit D) ; and6. An index ofthedocuments being filed (Exhibit E)

9. A written notice of the filing of this removal is being served on all adverseparties and a copy of the notice filed with the clerk of the court from which this action isremoved, along w ith a copy ofthisNotice.



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Conclusion10. Becauseof the substantial questionsoffederal lawraisedby Plaintiffs' state

court action,itsremovaltofederal courtby theMayorand theCityisproper.WH EREFOR E, Defendants M ayor Annise Parkerand theCityof Houston hereby

give no tice that this actionisremoved fromthe310thJudicial District Court, Harris County,Texas,to the United States District Court, Southern District of Texas, Houston Division.

Dated: December 27,2013Respectfully submitted,DAVIDM.FELDMANCity AttorneyLYNETTEK.FONSFirst Assistant City AttorneyforLitigationJUDITH L.RAMSEYChief General Litigation SectionBy: DavidM.Feldman

City AttorneyTexasBarNo. 06886700Federal ID: 2994LynetteK.FonsFirst Assistant City AttorneyTexasBarNo . 13268100Federal ID: 10562JudithL.RamseyChief General Litigation SectionTexasBarNo. 16519550Federal ID :1124189JohnB.W allaceSenior Assistant City AttorneyTexasBarNo. 20769750Federal ID:2393



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CITY OF HOUSTON LEGAL DEPARTM ENT900 Bagby, 4th FloorHouston, Texas 77002832.393-6438 - Telephone832.393-6259 - Facsimiledavid. feldman@ [email protected] for Defendants,MAYOR A NNISE PARKER andTHE CITY OF HOUSTON

CERTIFICATE OF SERVICEI, David M. Feldman, hereby certify that on the27th ofDecember, 2013,a copy ofthe foregoing Notice of Removal was served upon the following parties via electronicservice, facsimile, and/or CMRRR:

Jared WoodfillRobert TaltonWoodfill Law Firm3131 Eastside Street, Suite 450Houston, Texas 77098Fax: 713.751.3058

Jonathan M. SaenzTexas Values900 Cong ress Avenue, Suite 220Austin, Texas 78701Fax: 512.478.2229

David M. Feldman



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EXHIBIT



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2013-75301/Court: 31012/17/20133:51:24 P MChrisDaniel D istrictClark Hauls CountEnvtlop No. 8901By: Ruth McD ugl*

CAUSE NO.

JACK PIDGEON AND IN THE DISTRICT COURTLARRY HICKS, PLAINTIFFS,

v. HARRIS COUNTY, TEXASMAYOR ANNISE PARKER AN D CITY OF HOUSTON, DEFENDANTS. JUDICIAL DISTRICT

PLAINTIFFS' ORIGINAL PETITION,APPLICATION FOR TEMPORARY RESTRAINING ORDER,APPLICATION FOR TEMPORARY INJUNCTION, ANDAPPLICATION FOR PERMANENT INJUNCTION

TO THE HONORABLE COURT:Plaintiffs, Jack Pidgeon and Larry Hicks, complain of Defendants, Mayor Annise Parker and

the City of Houston ( Defendants ), and for cause of action show s:I. DISCOVERY PLAN

1.1 Discovery is intended to be conducted under Level 3 as set forth in Rule 19 0 ofthe Texas Rules of Civil Procedure.

II. PARTIES2.1 Plaintiff,Jack Pidgeon, is a legal adult over the age of eighteen (18 ), w ho resides

in Houston, Texas, Harris County. He is a taxpayer and qualified voter residing within theboundaries of the City of Houston; he resides at 124 27 Honeyw ood Trail, Houston, Texas 77077.

2.2 Plaintiff, Larry Hicks, is a legal adult over the age of eighteen (18 ), w ho resides inHouston, Tex as, Harris County. He is a taxp ayerandqualified voter residing w ithin theboundaries of the City of Houston; he resides at 95 4 Qessner, Houston, Texas 7708 0.



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2.3 Plaintiffs are taxp ayers in the City of Houston and Defendants are exp endingsignificant public funds on an illegal activity.

2.4 Defendant, Annise Parker, is an individual residing in Harris County , Tex as and isMayor of the City of Houston. She may be served at her office at City Hall, 9 00 Bagby St.,Houston, Texas 77002.

2.5 Defendant, City of Houston, is a local governmental entity as defined by Tex asGovernment Code 5 54 .001 and may be served with citation by serving Mayor Annise Parkerthrough the City o f Houston, Tex as, Secretary Anna Russell, located at 900 Bagby St., Houston,Texas 77002.

III. JURISDICTION3.1 This Court has subject matter jurisdiction over this action because the amount in

controversy exceeds the minimum jurisdictional limits of the court exclusive of interest andPlaintiffs seek relief that can be granted by either courts of law or equity .

3.2 This Court has jurisdiction over this lawsuit and the parties herein, and isjurisdictionally comp etent to render judgment in this matter.

3.3 The amount in controversy and the relief sought are w ithin the jurisdictionallimits of the Court. This Court is authorized to grant Plaintiffs prayer for relief regarding costs,including Plaintiffs' reasonable attorney's fees.

3.4 This Court is a court of law and equity .IV. VENUE

4.1 Venue of this action is proper in Harris County under Tex as Civil Practice &Remedies Code 15.001 et. seq. because all or a substantial part of the events or omissionsgiving rise to Plaintiffs' claims occurred in Harris County, Texas.



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V. FACTUAL ALLEGATIONS5.1 On November 1 9 ,20 13, a few days after being reelected to her final term as

Mayor of the City of Houston, Annise Parker directed the City of Houston's Human ResourceDepartment to offer benefits to same-sex spouses of City o f emp loyees w ho are married in a statethat recognizes same-sex marriage. (Ex hibit A )

5.2 Specifically, Mayor Parker directed that same-sex spouses of emp loyees w hohave been legally married in another jurisdiction be afforded the same benefits as sp ouses of aheterosexual marriage. (Ex hibit A )

5.3 The act is a clear violation Texas Family Code 6 .204 , Texas ConstitutionArticle I, Section 32, and Article II, Section 22 of the City of Houston Charter.

VI.FIRST CAUSE OF ACTIONTEXAS FAMILY CODE 6.2046.1 Plaintiffs hereby reincorporate and adopt by reference for all purposes each and

every allegation contained in the preceding paragraphs and sections numbered I through V.6 .2 Tex as Family Code 6 .204 , also known as the Texas Defense of Marriage Act

('TexasDOMA ), prohibits political subdivisions of the state from giving effect to:1. A public act, record, or judicial proceeding that creates, recognizes, or validates a

marriage betw een p ersons of the same sex or a civil union in this state or anyother jurisdiction; or

2. Right or claim to any legal protection, benefit, or responsibility asserted as aresult of a marriage betw een persons o f the same sex or a civil union in this stateor any jurisdiction.

Texas Family Code 6.204(c).



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6.3 Mayor Parker's public act of providing taxpayer funded benefits to same sexcouples married in a state that recognizes same-sex marriage creates, recognizes and validates amarriage betw een p ersons of the same sex from another jurisdiction in violation of Texas FamilyCode6.204(cXl).

6 .4 By providing a benefit resulting from a marriage between persons of the same sexrecognized in a state other than Texas, Mayor Parkerandthe City of Houston have violatedTexas Family Code 6 .204(c) (2).

6 .5 Plaintiffs have no adequate remedy at law to correct the continuing deprivationsof their constitutional rights by the Defendants' actions in violation of the Texas Family Code.

VII. SECOND CAUSE OF ACTIONTEXAS CONSTITUTION-ARTICLE I, SECTION 327.1 Plaintiffs hereby reincorporate and adopt by reference for all purposes each and

every allegation contained in the preceding paragraphs and sections numbered I through VI.7.2 In 2005 , voters app roved an amendment to the Texas Constitution defining

marriage as the union of only one man and one woman and prohibiting the creation orrecognition o f any legal status identical or similar to marriage.TEX. CONST,art.1, 32.

7.3 Article 1, Section 32 of the Tex as Constitution states:(a) Marriage in this state shall consist only of the union of one man and one w oman.(b) This state orapolitical subdivision of this state may not create or recognize anylegal status identical or similar to marriage.

7.4 Defendants have violated Texas Constitution- Article I, Section 32 w hich definesmarriage as a union betw eenaman and a w oman.

7.5 By recogniz ing a definition of marriage contrary to the definition app roved byvoters in 2005, the Mayor Parker and the City of Houston violate Texas Constitution-Article I,Section 32.



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7.6 Plaintiffs have no adequate remedy at law to correct the continuing deprivationsof their constitutional rights by the Defendants actions in violation of the Texas Constitution.

Vni. THIRD CAUSE OF ACTIONCITY OF HOUSTON CHARTER, ARTICLE II, SECTION 228.1 Plaintiffs hereby incorporate and adopt by reference for all purposes each and

every allegation contained in the preceding paragraphs and sections numbered I through VII.8.2 City of Houston Charter, Article II 22 , w hich w as initiated by voter petition,

states:Except as required by State or Federal law, the City of Houston shall not provide

employment benefits, including health care, to persons other than employees, their lega lspousesand dependent children; nor shall the City provide any privilege in promotion,hiring, or contracting to a person or group on the basis of sexual p reference, either by avote of the city council or an executive order of the Mayor. Further, the City of Houstonshall not require entities doing business with the City to have any of the above benefits orpolicies.

If any p ortion of this prop osed Charter amendment is declared unlawful, thensuch portion shall be removed and the remainder of the Charter amendment w ill remainin effect. Any ordinance in conflict w ith this section of the Charter is hereby rep ealed anddeclared invalid. Article II, Section 22. (emphasis added.)

DC EQUITABLE RELIEF-INJUNCTIONS9.1 Plaintiffs hereby reincorporate and adopt by reference for all purposes each and

every allegation contained in the preceding paragraphs and sections numbered I through VIII.



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9.2 Plaintiffs seek a temporary restraining order, and temporary and permanentinjunction enjoining Defendants, their agents, employees, and all other persons acting in activeconcert with them from, inter al ia,providing benefits to same-sex spouses of employees thathave been married in jurisdictions that recognize same-sex marriage providing benefits to samesex couples.

9.3 As demonstrated above, Mayor Parker's illegal directive/order is a violation of thelaw and Plaintiffs are likely to succeed on the merits of his lawsuit.

9.4 If the temporary restraining order and temporary and permanent injunction is notgranted, Plaintiffs w ill suffer a probable injury. As a result of Mayor Parker's unlawful act, harmis imminent, the injury w ould be irreparable, and Plaintiffs have no other adequate legal remedy.

9.5 Plaintiffs are w illing to post bond.X. ACTUAL DAMAGES

A. Actual Damages10.1 As a direct and proximate result of the acts and omissions of Defendants set forth

above, Plaintiffs have incurred damages in excess of the minimum jurisdictional limits of thisCourt.

B. Attorney's Fees10.2 Plaintiffs have been required to retain the services of the undersigned attorneys

to bring this action. By virtue of Defendants' conduct as alleged above, an award of reasonableattorneys' fees to Plaintiffs is recoverable pursuant to 38.001 of the Texas Civil Practice Remedies Code.

10.3 Accordingly , Plaintiffs request that the Court issue a temporary restraining orderimmediately, without notice, enjoining Defendants from providing benefits to same-sex spouses



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of emp loy ees that have been married in jurisdictions that recognize same-sex marriage. Further,Plaintiffs request that this restraining order be continued after hearing into a temporaryinjunction until final hearing, at which time a permanent injunction should be granted.

HAVING CONSIDERED THESE PREMISES, Plaintiffs request that the Court issue atemporary restraining order, temporary injunctionandpermanent injunction, restraining andenjoining Defendants and their agents and any persons acting in concert w ith them fromproviding benefits to same-sex spouses of City o f Houston employees that have been married injurisdictions that recognize same-sex marriages

Plaintiffs further request that Defendants be cited to appear and answer, and that uponfinal trial, Plaintiffs have and recover:

1. judgment against Defendants, for Plaintiffs' damages in an amount in excess of thejurisdictional limits of this Court;

2 . reasonable attorney's fees ;3 . pre-judgment interest as allow ed by law;4. post-judgment interest as allow ed by law ;5. all costs ofsuits;and6. such other and further relief to which Plaintiffs may be justly entitled.



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R

R. WOO DFILLjBarNo.:00788715ITTALTONBarNo.:19629800River Oaks Green3131 Eastside Street, Suite 450Houston, Texas 77098Telephone: 713-751-3080Facsimile: 713-751-3058Attorney for Jack Pidgeon and Larry Hicks,PlaintiffsJONATHAN M . SAENZState BarNo:24041845Texas Values900 Congress, Ste 220Austin, Texas 78701



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5

S T A T E O F T E X A SC O U N T Y O F H A R R I S

B E F O R E M E , t h e u n d e r s i g n e d a u t h o r it y o n t h i s d a y p e r s o n a l ly a p p e a r e dJ A C K R, P I D G E O N , w h o b e i n g b y m e d u l y s w o r n u n d e r o a t h s ta t e d a s f o l l o w s :

1 . M y n a m e i s J a c k R . P id g e o n , I a m o v e r e ig h t e e n ( 1 8 ) y e a r s o f a g e , a n d a m f u l l yc o m p e t e n t t o m a k e t h i s A f f i d a v i t ,

2 . I h a v e r e a d p a r a g r a p h s 1 t o 1 0 o f P l a i n t i f f s O r ig i n a l P e t i ti o n , A p p l ic a t i o n f o rT e m p o r a r y R e s tr a i n in g O r d e r , A p p l ic a t io n f o r T e m p o ra r y I n ju n c t io n , a n d A p p l ic a t i o n f o rP e r m a n e n t I n j u n c t io n , a n d I h a v e p e r s o n a l k n o w l ed g e o f th e f a ct u a l a l le g a t i o n s s t a t e d t h e r e i n a n de a c h o f s u c h f a c tu a l a l l e g a t i o n i s t r u e a n d c o r r e c t

S U B S C R I B E D A N D S W O R N T O B E F O R E m e o n t h e v t o i o f D e c e m b e r 2 0 1 3 , t oc e r t i fy w h i c h w i tn e s s m y h a n d a n d o f f i c i a l s e a l o f o f f i c e .

N o t a r y P u b l i c , S t a te o f T e x a s



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VERIFICATIONSTATE OF TEXAS COUNTY OF HARRIS

BEFORE M E, the undersigned authority on this day personally appearedLARRY HICKS, who being by me duly sworn under oath stated as follows:

1. My name is Larry Hicks. I am over eighteen (18) years ofage, and am fullycompetent to make this Affidavit

2. I have read paragraphs 1to10 of Plaintiffs' Original Petition, Application forTemporary Restraining Order, Application for Temporary Injunction, and Application forPermanent Injunction, and I hav e personal knowledge of the factual allegations stated therein andeach of such factual allegation is true and correct.

SUBSCRIBED AND SWORN TO BEFORE me on the / 7 day of December2013, tocertify which witness my hand and official seal of office.

Notary Public, State of TexasMy Commission Expires:f jf 1 MM m

10



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L Chris Daniel, District Clerk of HarrisCounty, Texas certify mat this is a true andcorrect copy of the original record filed and orrecorded in my office, electronically or hardcopy, as it appears onthisdate.Witness my official hand and seal of officethis Decem ber 19. 201 3

Certified Document Num ber 5877 5509

Chris Daniel DISTRICT CLERKHARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticateddocuments a n valid. If there is a q uestion regarding the validity of this document and or sealplaasae mail [email protected]



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EXHIBIT B



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PCAUSENO.AO 3 ^ 3 O

JACK PIDGEON AND IN THE DISTRICT COURTLARRY HICKS, PLAINTIFFS, v. HARRIS COU NTY, TEXASMAYOR ANNISE PARKER AND CITY OF HOUSTON, -a ^DEFENDANTS. w 1 U JUDICIAL DISTRICT

ORDER ON PLAINTIFFS'APPLICA TION FOR TEMP ORARY RESTRAINING ORD ERCAME O N F O R CON SIDER ATION Jack Pidgeon and Larry Hicks ( Plaintiffs )

application for a Temporary Order, presented to the Court today. T h e Court examined th epleadings of Plaintiffs, the evidence presented, and theargument of counsel, andafler d u e

FILconsideration finds that: * ChrtoDanMDistrict Clark1) acause of action against the Defendants exists; flFT 17 7flf3Time:2) Plaintiffs hav eapro bab le righ t to the relie f sou ght ; and Harris count;By Ieputy3) Plaintiffs will suffer aprobable, imminent, and irreparable injury in the interim.Therefore, Plaintiffs are entitled toatemporary injunction.It is therefore OR DE RE D that the clerk of this Court issuea temporary injunction

enjoining Defendants, Mayor Annise Parker and the City of Houston ( Defendants ) and anyother person(s) with knowledge of this Order, to cease and desist providing benefits tosame-sexspouses of employees that have been married in jurisdi ctions that recognize same-sex marriageproviding benefits to same sex cou ples. This order shall stand until further Order of this Court.

Plaintiffs have shown a probable injury because the harm isimminent; if the temporaryrestraining order does not issue, the injury would be irreparable; and the applicant has not otheradequate legal remedy.



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Ifthe temporary injunction is not issued, the Defendants' unlawful policy providingbenefits to same-sex spouses of employees that have been m arried injurisdictions that recognizesame-sex m arriage providing benefits to same sex couples will remain in place; therefore, theharm to Plaintiffs1 constitutional and statutory rights is imminent.

Plaintiffs' claims of statutory and constitutional injury and violation of the City ofHouston's Charter, present a substantial threat that irreparable injury would result if thetemporary restraining order does not issue.

Finally, Plaintiffs have no other adequate remedy at law because no am ount of moneycan compensate Plaintiffs for the loss of their constitutional and statutory rights. However,Plaintiffs are not required to prove that they have no adequa te remedy at law w hen they have astatutory right to an temp orary restraining order, as provided by sections 106.002(a) and110.005(a)(2) of the Texas Civil P ractice and R emedies Code .

This temporary injunction is effective immediately and shall continue in force and effectuntil further order of this Court. This order shall be binding on Defendants, and any otherperson(s) who receive a ctual no tice of this order by personal service or otherwise.

IT IS FURTH ER O RD ERE D that this temporary injunction be effective imm ediately andthe bond paid by Plaintiffs in the amount of $250.00 for each Defendant, $500.00 total payableto Defendants will extend to this temporary injunction. The Clerk of thisCourt is herebyORD ERE D to issue citation and notice to Defendants, Mayo r Annise Parker and the City ofHouston.

This cause is setfor on' ^ 3*0U?UP^ \c \ $C (^ ojt 3 ' ' C O O LS I G N E D o n D EC 1 7 2 0 13 2 0 1 3 a t m.



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EXHIBIT C



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Harris County Docket S heet

2013-75301COURT: 310thFILE D DAT E: 12/17/2013CAS E TYPE: OTHER FAMILY

PIDGEON , JACKAttorney: WOODFILL.JAREO RYKERV

V S .PARKER, ANN ISE

Docket Sheet Entries. Date

12/17/201312/17/201312/20/2013

12/20/2013

CommentTRORX ORDER SIGNED GRANTING TEMPORARY RESTRAINING ORDER(Movan t present/ R wa s noticed and FTA) M for TRO-legal argument presented allrelief requested granted p erOrder; HearingIs set fo r 1/6/14 at 9a m;(CtRptr Clarisla Ra mirez)(Both p arties present thru counsel) City'sM forEmergency Hea ring- legal argumentpresented - denied/M to Dissolve TRO-denied;Caseset forhearing on 1/6/14 at 10 am C trequests Briefsbedraftedby both parlies an d submitted for theCt forreview on o rbefore 12/30/14;(CtRptr Clarisia Ra mirez)(8o th parties present thru counsel) City'sM forEmergency H earing - legal argumentpresented denied/M to Dissolve TRO denied; Case set forhearing on 1/6/14 at 10 am - Ctrequests Briefsbedrafted b y both parties an d submitted for the Ctfo rreview on o rbefore 12/30/13;

2013-75301310th

Pige 1of 112/27/2013 10:06:23AM



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EXHIBIT D



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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONJACK PIDGEON and LARRY HICKS, Plaintiffs

v. CIVIL ACTION NO.MAYOR ANNISE PARKER and CITY OF HOUSTON Defendants

LIST OF ALL COUN SEL OF RECORD

1. Woodfill Law Firm, PCJared R. WoodfillRobert TaltonRiver Oaks Green3131 Eastside Street, Suite 450Houston, Texas 77098Telephone: 713-751-3080Facsimile: 713-751-3058Counsel for Jack Pidgeon and Larry Hicks

2. Texas ValuesJonathan M. Saenz900 Co ngress, Suite 220Austin, Texas 78701Telephone: 512-478-2220Facsimile: 512-478-2229Counsel for Jack Pidgeon and Larry Hicks

3. City of Houston Legal Dep artmentDavid M. FeldmanLynette K. FonsJudith L. RamseyJohn B. Wallace



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900 Bagby, 4th FloorHouston, Texas 77002Telephone: 832.393-6438Facsimile: 832.393-6259Counsel for Mayor An nise Parker and The City of Houston



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EXHIBIT E



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IN THE UNITED STATES DISTRICT COURTFOR TH E SOUTHERN D ISTRICT OF TEXASHOUSTON DIVISIONJACK PIDGEON andLARRY HICKS,PlaintiffsV .

MAYOR ANNISE PARKER andCITY OF HOUSTONDefendants

C I V I L A C T I O N N O .

INDEX OF DOCUMENTS BEING FILEDExhibit A: Plaintiffs' Original Petition, Application for Temporary Restraining Order,Application for Temporary Injunction, and Application for Permanent Injunction.Exhibit B: Order on Plaintiffs' Application for Temporary Restraining Order.Exhibit C: State Court Docket Sheet.Exh ibit D: A list of all counsel of record including addresses, telephone numbers and partiesrepresented.



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EXHIBIT F



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2013-75301/Court: 310CITYOF HOUSTON

Legal Department

To: Omar Reid

cc : David M. FeldmanCity Attorney

InterofficeCorrespondence

Fro m : Mayor Annise ParkerDate: November 19 ,2013Subject: Same-Sex Spousal Benefits

er ^

Attached is a legal opinion from the City Attorney concluding that the City's prohibitionagainst the provision o fbenefits to same-sex spouses o fcity emp loyees may nolongerb econsidered constitutionally valid. A s aresult, Iam hereby directing that same-sex spouseso femployees who have been legally married in another jurisdiction be afforded the same benefitsas sp ouses of a heterosexual marriage.



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I, Chris Daniel, District Clerk of HarrisCounty, Texas certify that this is a true andcorrect copy of the original record filed and orrecorded in my office, electronically or hardcopy, as it appears on this date.Witness my official hand and seal of officethis Dec emb er 19. 201 3

Certified Document Number: 58 77 551 0

Chris Daniel, DISTRICT CLERKHARRIS COUNTY, TEXAS

In accordance w ith Tex as Government Code 4 06 .013 electronically transmitted au thenticateddocuments are valid. If there is a question regarding the validity of this document and or sealplease e-mail [email protected]



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CITYOF HOUSTON InterofficeLegal Department Correspondence

T o : Mayor Annise D. Parker From:

Date:

FeldmanCity AttorneyNovember 19,2013

Subject: Legal Opinion Reg arding Same-SexSpousal BenefitsATTORNEY-CLIENT COMMUNICATION

PRIVILEGED AND CONFIDENTIALA growing number of states have recognized same-sex marriage, causing the courts togive increasing attention to whether laws that do the opposite, and further discrimination basedon sexual orientation, are unconstitutional. In light ofthis trend, and the requests by employeesseeking benefits for same-sex spouses, you have asked me to review the City of Houston'sauthority to continue to deny benefits to same-sex spouses of employees that have been legallymarried in other jurisdictions, with a particular focus on the City Charter amendment of2001,which has heretofore been relied on to prohibit the granting of such benefits.The relevant City Charter provision, which was initiated by voter petition, reads asfollows:Except as required by State or Federal law, the City of Houston shall not provideemployment benefits, including health care, to persons other than employees,their legalspouses and dependent children; nor shall the City provide any privilege in promotion,hiring, or contracting to a person or group on the basis of sexual preference, either by avote of the city council or an executive order of the Mayor. Further, the City of Houstonshall not require entities doing business with the City to have any of the above benefits orpolicies.

If any portion of this proposed Charter amendment is declared unlawful, then suchportion shall be removed and the remainder of the Charter amendment will remain ineffect. Any ordinance in conflict with this section of the Charter is hereby repealed anddeclared invalid. A rticle II, Section22.(emphasis added.)After reviewing relevant case law around the country and from the U.S. Supreme Court, Ibelieve a court would now find that the continued application of Article II, Section 22 of theHouston City Charter to deny benefits to legally married same-sex spouses to beunconstitutional, primarily because it denies the employees of such spouses equal protection ofthe laws.



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Equal ProtectionThe Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitutionprovides that: No State shall deny to any person withinitsjurisdiction the equal protectionof the laws. U.S . Const, amend XIV, 1 . This prohibition applies with equal force to allgovernmental entities within the State of Texas, including the City of Houston, meaning that allpersons similarly situated should, generally, be treated alike under the law. City of Cleburne,Tex. v. leburneLivingOr ., 473 U.S. 432 ,439 (1985); Plylerv.Doe, 457 U .S. 202, 216 (1982).In order to pass constitutional m uster, the current application oftheCity Charter provision wouldhave to survive rational basis review, at a minimum. In other words, there must be some rationalconnection between the discriminating law or policy in question and a legitimate governmentalinterest. See Perry v. Schwarzenegger,704 F.Supp.2d 921 , 1003 (N.D. Cal. 2010),off d subnom.,Perryv.Brown, 671 F.3d 1052 (9th Cir. 2012),vacated by, Hollingsworthv.Perry,133S.Ct. 2652 (2013) (holding initiative's proponents had no standing to appeal the district court'sjudgment for the same-sex couple plaintiffs, and therefore effectively reinstating the district

court's holding finding California's prohibition against same-sex marriage unconstitutionalunder due process and equal protection analyses).In 1996, the U. S. Supreme C ourt considered the constitutionality ofanamendment to theColorado Constitution; the amendment prohibited all legislative, executive, or judicial action atany level of state or local government designed to protect the status of persons based on their homosexual, lesbian, or bisexual orientation, conduct, practices or relationships. Romer v.Evans, 517 U.S. 620, 624 (1996). The Court held that the constitutional amendment failed forlack of a rational ba sis, find ing that it could not be explained by anything but anim us toward theclass if affects; it lacks a rational relationship to legitimate state interests. Romer at 632.Applying a similar test to the current application of Article II, section 22 of the City of Houston'scharter yields a similar result: it seems not to further any governmental end, but simply makes

homosexuals unequal to all other city employees. Application of the City of Houston's charter todeny benefits to legally married same-sex spouses arguably violates the Equal Protection Clauseby treating employees differently on the basis of sexual orientation or sexual identity; that is, afemale city employee may secure employment benefits for the husband she married inCalifornia, but a female city employee may not obtain the same benefits for a wife she married inCalifornia. The weight of recent court decisions would dictate that such a distinction does notserve a legitimate governmental interest.The Supreme Court's DOMA ruling and its effect thus far

Significantly, after the U.S. Supreme Court struck down the federal Defense of MarriageAct (DOMA) in U.S.v. Windsor, 133 S.Ct. 2675; 2013 U.S. LEXIS 4935 (June 26, 2013), anumber of federal agencies have announced that they will recognize same-sex marriages thatwere valid in the place of celebration, regardless where those couples now live. These agenciesinclude the Office of Personnel Management, the U.S. Citizenship and Immigration Services, theDepartment of Defense, and the Federal Election Commission. In addition, the Internal RevenueService issued an announcement on August29th,stating that all legally married sam e-sex co upleswill be recognized as married for federal tax purposes, even if those couples reside in states thatdo not recognize same-sex marriage.



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Texas DOMAAlthough the U.S. Supreme Court struck down the federal Defense of Marriage Act'sdefinition of marriage as a union between a man and a woman, the Court did not depriveindividual states of the right to maintain their own definitions of marriage. Texas has done so inits contribution (Tex. Const. Art. I, Sec. 32), and has its own version of DOMAa statute thatprohibits political subdivision s ofthe state from giving effect to:1. A public act, record, or judicial proceeding that creates, recognizes, or validates a

marriage between persons of the same sex or a civil union in this state or any otherjurisdiction; or

2. Right or claim to any legal protection, benefit, or responsibility asserted as a result ofa marriage between persons of the same sex or a civil union in this state or anyjurisdiction.

Tex. Fam. Code 6.204.This law has been challenged as unconstitutional, and while some courts have found it tobe constitutional, others have found it to be constitutionally infirm. The Texas Supreme Courthas an opportunity to rule on this law this term, but it may choose to decide the two pendingcases on much narrow er grounds.In re Ma rriage ofJ.B. andH.B ., (Tex. Ap p. - Dallas 2010, pet.granted) 326 S.W. 3d 645; State v. Naylor 33 0 S.W.3d 434, (Tex. App. - Austin 20 11 , pet.granted). (Both cases involve same-sex couples who w ere married in other states and wish to bedivorced in Texas.) While state law is significant authority for the City of Houston, the Citycould still face liability for complying with a law that is unconstitutional, or would cause it toapply its own laws in an unconstitutional manner.

Conclusion and RecommendationIn conclusion, it is my legal opinion that the City of Houston may extend benefits tolegally married same-sex spouses on the same terms it extends benefits to heterosexual spouses.To apply Article II, section 22 of the City Charter differently would, based on my review of allrelevant federal authority, be unconstitutional. Therefore, I recommend you give seriousconsideration to directing the Human Resources Department to offer benefits to same-sexspouses of city employees who were lawfully married in a state that recognizes same-sexmarriage.


Pidgeon v Parker, Notice of Removal

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