At the end of the Court’s first argument week of the term, we have its first orders list — which has 14 cases chosen for oral argument and a (large) list of petition denials and rehearing denials. The Court also granted rehearing of two petitions previously denied, reinstating them to the docket. (The details of the cases chosen for argument will appear in a later post.)

The Texas Supreme Court also issued what are, depending on how you look at it, the first two opinions of this new term or the final opinions of the last one. On August 28, the Court issued an order denying mandamus relief in IN RE SHANNON DORN, KATHLEEN O'CONNELL, COMMUNITIES FOR THRIVING WATERS - FLOURIDE-FREE SAN MARCOS, AND MORGAN KNECHT, No. 15-0632 . Today, just after the turning of the Court’s calendar, it has published an opinion dissenting to last week’s order and one concurring in the outcome.

Even short delays in the litigation process can doom a mandamus petition

This case involves a petition drive seeking to put the question of fluoridated water on the ballot, in the form of a charter amendment. In May, the city clerk sent a letter to the group stating that the signatures would not be counted because the petitions were not accompanied by an oath or affirmation of validity. The group sent some letters explaining its position to the city. The city responded by itself filing suit on June 18, seeking a declaratory judgment. The group filed an answer and counterclaim on July 17.

On August 14, the district court ruled for the group of voters. The city, however, filed for an interlocutory appeal that stayed further action in the trial court. With the ballot deadline looming, and perhaps inspired by the Court's very recent ruling supporting a citizen's petition in IN RE JARED WOODFILL ET AL., No. 14-0667, the group of voters sought immediate mandamus relief from the Texas Supreme Court.

On August 28, the Texas Supreme Court denied relief. With its September 4 orders list, some of the Justices wrote separate opinions explaining their own thinking.

Justice Devine, joined by Justice Lehrmann, would have granted the mandamus relief because the legal question was clear and because failing to issue mandamus relief would bless the city's use of an interlocutory appeal to moot the ability of courts to speak to the question:

Here, a district court determined the City Clerk must review the petition signatures and perform her ministerial duty. Rather than comply, the City initiated an interlocutory appeal, assuring that the deadline would pass before relief could be obtained. I would not permit a city to use a directory deadline in the Election Code in this manner to either avoid a ministerial duty or thwart the will of the people.

Justice Brown, joined by Justice Green, wrote an opinion concurring in the Court's decision to deny relief. The concurrence focused on the delays earlier in the process — such as the letters being written to the city, and the voters waiting 30 days to file an answer rather than filing one immediately. The concurrence suggested that the voters should have first sought relief from the court of appeals before coming directly to the Texas Supreme Court because the "urgency [here] is of their own making."

The interlocutory appeal filed by the city remains pending in the court of appeals.