flow control motion for new trial
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NATIONAL SOLID WASTES
MANAGEMENT ASSOCIATION, et al.
Plaintiffs,
Civil Action Nov. 3:11-CV-03200-O
ECF
THE CITY OF DALLAS, et al.
Defendants.
DEFENDANTS MOTION FOR NEW TRIAL WITH SUPPORTING BRIEF
Pursuant to Rule 59 of the Federal Rules of Civil Procedure, Defendants move for entry
of an order granting a new trial, and in support of their motion state as follows:
I. INTRODUCTIONThe Court entered its Memorandum Opinion and Order (ECF 77, hereafter the Order)
and Final Judgment (ECF 78) on October 16, 2012. In the Order, the Court held that the City of
Dallas (City) Ordinance No. 28427 (September 28, 2011) (the Flow Control Ordinance or
the Ordinance) (i) was not preempted by state law, (ii) was not void for vagueness, (iii) was
not going to be arbitrarily enforced, and (iv) did not impermissibly delegate authority to the
Citys Sanitation Director.1
However the Order directed Defendants not to enforce the
Ordinance against some City franchisees including some of the Plaintiffs because the Court
held the Ordinance impaired their franchises in violation of the Contract Clause of the U.S.
Constitution. Orderat 12. The Court further held that the Flow Control Ordinance violated the
Due Course of Law Provision of the Texas Constitution. Id. at 12-18. The Courts decision was
1 Plaintiffs also amended their complaint to drop claims under the federal Sherman Antitrust Act prior to the
issuance of the Order.
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based, in part, on its interpretation of the Citys solid waste franchise agreements, the Ordinance,
and case law regarding Contracts Clause of the U.S. Constitution. After first deciding the
constitutional issues, the Court found that franchised Plaintiffs claims under the Dallas City
Charter against the defendants who are City Council members were moot because it had
already decided the Contracts Clause constitutional issue in favor of the franchised Plaintiffs. Id.
at 18-22. In granting a permanent injunction against the City, the Court also found that there was
a real and immediate threat of fines and criminal penalties for Plaintiffs. Id. at 33-34.
This Motion sets forth the following five manifest, material, and prejudicial errors of law,
each of which provide independent grounds on which this Court must grant a new trial: (1) the
Order does not comply with the fundamental rule of constitutional avoidance; (2) the Order fails
to show proper deference to a democratically-elected legislature in favor of an improperly
applied and unspecified heightened level of scrutiny; (3) the Order is an improper injunction
against imminent criminal prosecution in state court; (4) the Order improperly identifies the
applicable date for the injunction barring enforcement of franchises that commenced before the
date of the Order rather than before a date on which any franchise applicants reasonably should
have anticipated the possibility of flow control; and (5) the Orders literal mandate against
enforcement of franchise agreements that commenced before the date of the Order is overly
broad because it is not limited to valid solid waste hauler franchises. Accordingly, Defendants
request that the Court vacate the Order and Final Judgment and proceed with a new trial.
II. LEGAL STANDARDFederal Rule of Civil Procedure 59(a)(1)(B) provides that a federal court may grant a new
trial after a nonjury trial for any reason for which a rehearing has heretofore been granted in a
suit in equity in federal court. The Fifth Circuit elaborated on this standard by holding that
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motions for a new trial must: (1) clearly establish either a manifest error of law or fact; or (2)
present newly discovered evidence. See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.
1990). Moreover, [a]ny error of law, if prejudicial, is a good ground for a new trial.
Colegrove v. Cameron Mach. Co., 172 F. Supp. 2d 611, 632 (W.D. Pa. 2001) (citing 11
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL PRACTICE AND
PROCEDURE 2805 (1995)).
III. ARGUMENTA. The Order is manifestly erroneous as a matter of law because it does not
follow the rule of constitutional avoidance.
The rule of constitutional avoidance requires that prior to reaching any of the
constitutional questions presented in litigation, federal courts must first consider the non-
constitutional grounds for decision resolving the case on non-constitutional grounds if possible.
Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981). This principle, under which a Court will not
decide a constitutional question if there is some other ground upon which to dispose of the case .
. . is a well-established principle governing the prudent exercise of this Courts jurisdiction.
Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (quoting
Escambia County v. McMillan, 466 U.S. 48, 51 (1984)). Constitutional avoidance is also a
fundamental rule of judicial restraint. Three Affiliated Tribes of Berthold Reservation v. Wold
Engg, 467 U.S. 138, 157 (1984). [I]f there is one doctrine more deeply rooted than any other
in the process of constitutional adjudication, it is that we ought not to pass on questions of
constitutionality ... unless such adjudication is unavoidable. Jean v. Nelson, 472 U.S. 846, 854
(1985) (Rehnquist, C.J.) (affirming Circuit Courts judgment to remand to federal district court
for consideration of non-constitutional issue instead of constitutional issue) (quotation omitted).
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The Order is manifestly erroneous because it ignores the rule of constitutional avoidance.
Instead of deciding the non-constitutional issue of whether the Flow Control Ordinance violates
the Dallas City Charter, the Court addressed the constitutional issue first. Indeed, the Order
states that [s]ince the Court has previously declared the Flow Control Ordinance
unconstitutional, Plaintiffs request to enjoin the individual defendants from enacting the Flow
Control Ordinance unless and until they have a hearing is moot. Orderat 22.
Actually, Plaintiffs did not seek to enjoin the Flow Control Ordinances enactment based
on their Dallas City Charter violation argument. Plaintiffs only asked the Court to:
(e) find and declare the ordinance is unenforceable until there has been notice andan appropriate hearing that results in a final non-appealable order amending the
franchise agreements consistent with the ordinance.
Amended Complaint (ECF 36) at 23 (Prayer). In other words, the Plaintiffs who were
franchisees sought apost hoc hearing procedure pursuant to their interpretation of the Dallas City
Charter regarding the Ordinances alleged alteration of their franchise rights before the City
could enforce the Ordinance. Granting Plaintiffs this relief would have mooted all their
constitutional claims and avoided the need to resolve them.
The Courts failure to avoid constitutional issues has greatly prejudiced the Defendants.
The hearings sought under the Dallas City Charter would present an opportunity for the City and
Plaintiffs to resolve any of the conflicts which resulted in Plaintiffs claims under the Contract
Clauses of the U.S. and Texas constitutions. Even if there was a procedural violation of the
Dallas City Charter, the City could cure the infirmity by holding the hearing that Plaintiffs have
demanded so the constitutional issues could be rendered moot or presented in a wholly different
posture to this Court.
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For this reason, Defendants request a new trial which will give the Court an opportunity
to properly decide the non-constitutional issues first in accordance with the fundamental rule of
constitutional avoidance.
B. The Order is manifestly erroneous because it fails to show proper deference to ademocratically-elected legislature in favor of an improperly applied and
unspecified heightened level of scrutiny.
Under the Due Course of Law Clause of the Texas Constitution (art. I, 19), legislation
is reviewed under rational basis scrutiny with a strong presumption of constitutionality. See
Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (equating the
federal and state constitutional standards for substantive due process review); In re Hinterlong,
109 S.W.3d 611, 626 (Tex. 2003) (courts are to strong[ly] presume that legislative enactments
are constitutional under the Texas Constitution).2
It was clear even before Erie was decided
that in federal tribunals, state courts are the ultimate authority regarding interpretation of state
statutes and constitutionality.3
The Order fails to apply the level of scrutiny and deference
demanded by Texas law for Plaintiffs Due Course of Law claims.
But even under federal law, only a deferential rational basis standard for testing the
Ordinance is proper. As an exercise of the police power, an ordinance is presumed to be
2 InHinterlong, the Texas Supreme Court reiterated its long-held position that: A strong presumption exists that a
valid legislative enactment is constitutional. Therefore, in analyzing the constitutionality of a statute, we begin with
a presumption that the statute is constitutional and that the legislature has not acted unreasonably or arbitrarily.
Under Texas law, a home-rule citys ordinance gets the same presumption of constitutionality and deference as a
statute. To be sure, [a]n extraordinary burden rests on one attacking a city ordinance. City of Coll. Station v.
Turtle Rock Corp., 680 S.W.2d 802, 805 (Tex. 1984) (citation omitted); see also Quick v. City of Austin, 7 S.W.3d
109, 117 (Tex. 1998) (extraordinary burden requires showing that no conclusive or even controversial or issuablefact or condition existed that would authorize the passage of the ordinance"); City of Brookside Village v. Comeau,
633 S.W.2d 790, 792 (Tex. 1982) (The courts have no authority to interfere unless the ordinance is unreasonable
and arbitrarya clear abuse of municipal discretion.)3See Johnson v. Fankell, 520 U.S. 911, 916 (1997) (Neither [the Supreme Court] nor any other federal tribunal has
any authority to place a construction on a state statute different from the one rendered by the highest court of the
State.); Steele v. G. D. Searle & Co., 483 F.2d 339, 343 (5th Cir. 1973) ([N]ot even our justified deference to the
conclusions of the district court can be permitted to obscure the explicit command ofErie R.R. v. Tompkins, 1938,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, that the authoritative legislative and judicial tribunals of the states are the
ultimate instructors of the federal courts on matters of state law.).
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constitutional. SeeGoldblatt v. Town of Hempstead, 369 U.S. 590, 596 (1962); see also United
States v. Carolene Prods. Co., 304 U.S. 144, 154 (1938). An ordinance must be upheld if any
facts either known or reasonably assumed will support it. Goldblatt, 369 U.S. at 596;Brewster
v. City of Dallas, 703 F.Supp. 1260, 1263-64 (N.D. Tex. 1988); see also Carolene Prods. Co.,
304 U.S. at 154 (1938).
Here, the parties and this Court appear to agree that the Flow Control Ordinance itself
sets forth a list of laudable goals, including: (1) deterring illegal dumping of solid waste; (2)
increasing recycling; (3) ensuring the safe and proper handling of solid waste within the City; (4)
providing for cost-efficient solid waste management; and (5) facilitating the development of data
on solid waste management. See, e.g., Order at 14. Instead of giving these goals as recited in the
Ordinance the only competent evidence of what the City Council as a legislative body as a
whole intended the Court instead erroneously chose to give more weight to statements of
individual Councilmembers (without proper context) and a non-Councilmember (then-Director-
of-Sanitation Mary Nix). In doing so, the Court improperly delved into the sincerity of certain
Councilmembers and imputed select portions of their statements and a non-Councilmember
statements to the entire City and its Council.4
Moreover, the Court failed to find that the Flow
Control Ordinance would not result in the City achieving the plainly-stated goals. Accordingly,
the Court cannot conclude that the City Council was unreasonable or arbitrary.
None of the cases cited in the Order, including Tex. Power & Light Co. v. City of
Garland, 431 S.W.2d 511 (Tex. 1968), support a standard of review that would place the
4See In re Davis, 170 F.3d 475, 480 (5th Cir. 1999) (Isolated statements of individual legislators represent neither
the intent of the legislature as a whole nor definitive interpretations of the language enacted by Congress.); Board
of Educ. v. Rowley, 458 U.S. 176, 204 n. 26 (1982)); U.S. v. Union Pac. R. Co., 91 U.S. 72, 79 (1875) (In
construing an act of Congress, we are not at liberty to recur to the views of individual members in debate, nor to
consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of
Congress, and this is to be ascertained from the language used.).
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statements of a non-elected department director above those of the democratically-elected
legislature as expressed in a legislative enactment. None of the cases cited in the Order support a
standard of review that would give more weight to certain out-of-context statements of City
Councilmembers, and less weight to the plainly-stated goals in the Flow Control Ordinance
itself. None of the cases cited in the Order support a standard of review that fails to delve into
whether the plainly-stated goals in the Flow Control Ordinance are unreasonable or arbitrary.5
Instead, it appears that the Court has developed an improper and unsupported heightened
standard of review for claims under the Due Course of Law Clause.6
The Order thus ignored the
Supreme Courts warning that substantive constitutional review is not a roving license for
federal courts to decide what activities are appropriate for state and local government to
undertake, and what activities must be the province of private market competition. See United
Haulers, 550 U.S. at 343 (reviewing flow control under the Commerce Clause).
Application of the proper standard would have resulted in a decision favorable to
Defendants on the Due Course of Law issue. For these reasons, Defendants request a new trial in
which (if necessary after ruling on non-constitutional issues first) the Court gives due deference
to the Citys democratically-elected legislature, and properly makes a finding on whether the
5 In addition, none of the cases cited in the Order or in any pleadings or briefs supports the contention that it is
improper for a City Council or City employees to consider City revenue in making decisions. The City believes that
if the Court applied the correct standard of review, the conclusion in the Order that Mayor Rawlings and other City
Council members heavily emphasized the revenue-raising aspects of the Flow Control Ordinance is wholly
irrelevant, except to the extent that it shows additional funds would be available to achieve the goals plainly set forthin the Flow Control Ordinance. See Orderat 15. Moreover, the U.S. Supreme Court has found that flow control
was, indeed, a financing tool[]. United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550
U.S. 330, 346 (2007).6 Similarly, the City previously disagreed with the Courts use of a heightened level of scrutiny under the Contracts
Clause of the U.S. Constitution in the Order (Docket No. 53) granting Plaintiffs application for a temporary
injunction. The Court adopted this incorrect analysis in its present Order. For the reasons discussed in Defendants
Response in Opposition to Permanent Injunction (Docket No. 73) at 21-9 & fn. 13 including the fact that the no
case law supports application of such a high level of scrutiny Defendants re-urge their request that the Court apply
the proper level of scrutiny in a new trial.
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City Council acted reasonably in passing the presumptively-constitutional Flow Control
Ordinance to achieve the clearly stated goals outlined in the ordinance itself.
C. The Order is manifestly erroneous because it improperly enjoins criminalprosecution in state court.
Federal courts should not enjoin the enforcement of local penal laws because the right to
defense in criminal prosecution is an adequate remedy at law. Boyle v. Landry, 401 U.S. 77, 81
(1971);Dombrowski v. Pfister, 380 U.S. 479, 490-91 (1965) (distinguishing between abatement
and traditional equity injunction considerations); Stefanelli v. Minard, 342 U.S. 117, 122 (1951);
Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943) (Stone, J.). Similarly, a federal court
should abstain from hearing a federal constitutional case where the constitutional issue might be
mooted or presented in a different posture by a state court determination. Edwards v. Sammons,
437 F.2d 1240, 1242 (5th Cir. 1971) (describingPullman abstention) (citations omitted).
The Order specifically finds that the Franchisee[] [Plaintiffs] face a real and immediate
threat of fines and criminal penalties. Orderat 33. In addition, on the basis of facing serious
criminal sanctions for noncompliance, the Order finds that Plaintiffs have shown immediate,
irreparable harm. . . . Id. at 33-4. The Order is manifestly erroneous for two reasons. First,
defense from criminal prosecution in the Texas state court is an adequate remedy at law to the
threat of fines and criminal penalties identified by the Court. See Boyle, 401 U.S. at 81.
Second, the determination at the state-court level will moot Plaintiffs claims or alter the posture
of the parties, so it is inappropriate for the Court to grant the broad injunctive relief requested by
Plaintiffs at this time. See Edwards, 437 F.2d at 1242. Based on well-established case law and
the Courts finding that criminal prosecution was imminent, it is appropriate for the federal court
to abstain from reviewing the legality of the Flow Control Ordinance in favor of allowing a
Texas state court to adjudicate an actual criminal prosecution. For this reason, Defendants
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request a new trial in which the Court properly considers whether a grant of injunctive relief is
appropriate under the circumstances.
D. The Order is manifestly erroneous because it improperly identifies theapplicable dates and parties for the injunctive relief.
Even if Franchisee Plaintiffs and other franchisees are entitled to the relief granted by the
Order (which they are not), the wording of the injunction relief in the Order is materially and
prejudicially incorrect for three reasons. The Order states that the City is enjoined from
enforcing Dallas City Ordinance No. 28427 [the Flow Control Ordinance] against Franchisees
in this lawsuit and other franchisees who entered into franchise agreements with the City prior to
the date of this decision. Order at 37. First, the Order is manifestly erroneous because it
incorrectly establishes a late date for the commencement of injunctive relief. Based on the
rationale stated by the Court, the proper date should be, at the latest, the date that the City
adopted the Flow Control Ordinance, not the date of the Order. Franchisees executing
agreements with the City after the enactment of the Flow Control Ordinance had full knowledge
that the ordinance had been enacted, and are not subject to the same treatment under the Courts
Contracts Clause and Due Course of Law analysis. Second, the injunction in the Order should
specify that the franchise agreements referenced are only franchise agreements for valid waste
haulers, and not invalid waste hauling franchise agreements or any of the other franchise
agreements into which the City (many of which are not waste related) may have entered. Indeed,
under the rationale used in the Order, enforcement can only be enjoined as to valid waste hauling
franchises that commenced on the earlier of: (1) the date of the public City Council briefing on
flow control on June 15, 2011; or (2) the earliest date(s) on which each of the franchisee
Plaintiffs received actual knowledge of the Flow Control Ordinance proposal, because after that
date any would-be franchisee would have reasonably anticipated that its franchise could be
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subject to flow control.7
Third, the injunction against enforcement of the Flow Control
Ordinance against other franchisees is overly broad and unsupported by any evidence if
applied to those who happen to have unrelated franchise agreements from the City (for
example a natural gas service franchise) but who seek to haul solid waste for whatever reason
within the City. The City must be permitted to enforce the Ordinance against them.
For these reasons, the injunction in the Order is not supported by the Order itself, and
should be vacated and a new trial granted or, at a minimum, the Order should be revised to
properly reflect the intended ruling of the Court.
IV.
CONCLUSION
For the foregoing reasons, the Court should vacate the Order and Final Judgment and
proceed with a new trial.
Respectfully submitted,
THOMAS P. PERKINS, JR.,CITY ATTORNEY OF THE
CITY OF DALLAS, TEXAS
/s/ James B. McGuire
Peter B. Haskel
Executive Assistant City AttorneyTexas Bar No. 09198900
Christopher D. Bowers
First Assistant City Attorney
Texas Bar No. 02731300James B. McGuire
Assistant City Attorney
Texas Bar No. 24055939Christopher J. Caso
Senior Assistant City Attorney
Texas Bar No. 03969230City Hall 7BN
7 See Order at 9-10 (adopting objective expectation standard for standing to challenge Ordinance); Defendants
Response to Motion for Preliminary Injunction at 6 (ECF 16) (identifying June 15, 2011 public briefing of
Ordinance).
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1500 Marilla Street
Dallas, TX 75201
Tel.: (214) 670-3519Fax: (214) 670-0622
[email protected]@dallascityhall.com
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that on November 13, 2012, an electronic copy of the foregoing Motion
for New Trial was filed with the Clerk of Court for the U.S. District Court for the Northern
District of Texas, using the Courts CM/ECF system. I further certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ James B. McGuireJames B. McGuire
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