Salazar El Paso Lawsuit
Content
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IN THE UNITED STATES DISTRICT COURT
WESTERNDISTRICTOFTEXAS
EL PASO DIVISION
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Ray Salazar, David Ochoa, and Jesus B. Ochoa, Jr.,
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The City of El Paso, Texas, a municipal ) corporation, by and through its Mayor John) Cook, in his official capacity as Mayor ) of El Paso, Texas, Joyce Wilson, in her ) personal and official capacity as City ) Texas, Cortny Niland, ) Manager of El Paso, in her personal and official capacity as ) Representative, District 8, El Paso, ) Texas, Steve Ortega, in his personal and ) official capacity as Representative of ) District 7, El Paso, Texas, Ann Morgan ) Lilly, Dr. Michiel Noe and Susie Byrd, ) Representatives of ) all in their capacity as their several Districts in El Paso, Texas, ) Defendants. )
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No. EP-Civ-
COMPLAINT and REQUEST FOR PRELIMINARY INJUNCTION
TO THE HONORABLE COURT:
PARTIES
Plaintiff Ray Salazar is a former Mayor of El Paso, Texas. Plaintiff David Ochoa is a Board Member of the City of El Paso (hereinafter the "City") Employees 'Association. He sues in his personal capacity, and not as a member of said Board. Plaintiff Jesus B. Ochoa, Jr., is a retired lawyer and a former member of the Texas Advisory Committee to
the United States Commission on Civil Rights.
All Plaintiffs have a direct interest in not only in voting, but in ensuring that their vote
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counts and is protected. All Plaintiffs reside in El Paso, Texas.
Defendants John Cook is the siting mayor of El Paso, Texas. He is sued in his official capacity. Defendant Joyce Wilson is the City manager of El Paso, Texas. She is sued in her personal and official capacity. Defendant Cortny Niland is the Representative for District 8 of El Paso, Texas. She is sued in her personal and official capacity. Defendant Steve Ortetga is the Representative for District 7 of El Paso, Texas. He is sued in his personal and official capacity. Defendants Ann Morgan Lilly, Dr. Michiel Noe and Susie Byrd are all Representatives of their various Districts, and are sued only in their official capacity. All Defendants reside in El Paso, Texas.
The City is a "Home Rule" city of the State of Texas. It can exercise all powers which do not conflict with state law.
JURISDICTION and VENUE
This Court has subject-matter jurisdiction under 28 U.S.C. § 1343 (a)(1)(3)(4), 42 U.S.C. §1973 (a) etseq.,"The Voting Rights Act," 42 U.S.C. §1983,42 U.S.C. §1985 (3), and the First, Fifth and Fourteenth Amendments to the Constitution of the United States. The Court also has personal jurisdicion of all parties hereto. Venue lies in El Paso, Texas, pursuant to 28 U.S.C. §1391 (a)(b)(1)(2).
BACKGROUND According to the 2010 census, El Paso County has a population of Hispanic or of 658,134, or 82.2% of the total population. Of these, Latino people (of any race) 613,091 people, or 76.6%, are of Mexican origin. Non-Hispanic or Non-Latino people number 17.8% of the total population.
1.
2. Up until the early 80s, all governmental units in El Paso County, including local school boards and the El Paso County Community College District in the City (the largest city in El Paso County), were governed by boards of trustees elected in "at large" elections, typically composed of white people with a token Mexican-American.
3. At or about the same time, the City and County
of El Paso voluntarily moved to
single-member district representation, and successful lawsuits based on the Voting Rights Act against the El Paso and Ysleta Independent School Districts and the El Paso County Community College District moved these entities to court-ordered boards of trustees elected under the single-member district formula.
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4. The Paso del Norte Group (hereinafter the "Group"), a semi-secretive
organization of business men and women, developers, lawyers and others from both sides of the border, was founded on May 4, 2004 largely under the leadership of real estate magnate Bill Sanders..
of El Paso adopted a City Charter which provided for the first time in the City's history for a council-city manager form of
5. On February 7th, 2004, the voters
government, and for citizen generated referendum and initiative proposals.
Glass Beach Marketing (hereinafter "Glass Beach ") was registered on the web in May 2004. Its registry was in France, with its contact person, Kenneth Ghobriel, listed as having an address at 15 rue montaigne, Paris, France.
6.
Glass Beach Marketing 15 rue montaigne Paris, France Registered through: CHEAPSUCKER.COM Domain Name: GLASS-BEACH.COM
Created on: 04-May-04 Expires on: 4-May-07 Last Updated 4-May-06
Administrative Contact:
Ghobriel, Kenneth [email protected] Domain Name: GLAS S-BEACH.COM Glass Beach Marketing: 15 rue montaigne Paris, France 01 33 245 6579
7. Antonio Patric Buchanan joined Sanders/Wingo Advertising, Inc. (hereinafter
"Sanders! Wingo" as its Chief Marketing Officer in 2004. At the time he joined Sanders! Wingo, which is based in El Paso, Texas, Buchanan was also the Chief Executive Officer of Glass Beach.
9. Defendant Joyce Wilson was hired as City Manager for El Paso, Texas, on
August 4, 2004. During 2004, the City paid $250,000 to the Group as its share to employ Simon Martin-Vegue Winkelstein Moris (hereinafter" SMWM", an architectural urban renewal firm from San Francisco, to design a plan to revitalize downtown El Paso.
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Corporate Realty Services, LLC, was registered in Texas. Now headquartered in Houston, this entity is largely owned by Bill Sanders. This entity has morphed into a Real Estate Investment Trust with powers of eminent domain.
8. On October 6, 2004, Verde
9. On March 3, 2006, Defendant Joyce Wilson sent out a memo outlining the new
direction the City would take to stop spending an inordinate amount of time "defending our great city" from the negative image with which the city was allegedly viewed. Wilson gave notice that Glass Beach had been hired to do the "re-branding and re-marketing."
10. An "Immersion Audit Contact List" prepared under Wilson's direction, with the names and e-mail addresses of 41 El Pasoans, was sent to the persons listed and to Glass
Beach.
11. The list was made up of 2 Black individuals, two people with middle eastern surnames, 12 with Latino surnames (6 of which were either employed by the City or had
connections to this City), and 24 Anglo or white individuals.
12. The list was sent to Paris McDonnal, the Glass Beach contact. Prior to her
employment with Glass Beach, Ms. McDonnal had been employed by Sanders/Wingo, then known as SWG&MAdvertising, at its Austin, Texas, office, for two years and three months. In 1995, SWG&M changed its name to Sanders/Wingo Advertising, Inc.
13. Sanders/Wingo is headed by CEO Bob Wingo, who is also its majority
stockholder. Bob Wingo's name and the name of one of his employees appear on the contact list sent to Glass Beach.
14. When Glass Beach was hired, the El Paso online publication Newspaper Tree
reported that "(T)he Glass Beach marketing company was contracted by the city, through SMG, to review how the city is marketed. According to city officials, the contract, for $100,000, was a subcontract from SMG's primary vendor, Sanders/Wingo, an El Paso ad firm with a national profile." SMG was the company that ran the El Paso Convention Center.
15. The above facts were verified by Defendant Joyce Wilson when she publicly
stated that Glass Beach had been hired on recommendation by SMG. She not only purposely hid from the public the relationship between Sanders/Wingo and Glass Beach, but sought to mislead the public by placing Bob Wingo's name on the contact list described above.
16. In effect,
Sanders Wingo hired its Chief Marketing Officer, Antonio Patric
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Buchanan, in his persona as CEO of Glass Beach.
17. On Feb. 15, 2006, the City Council and Mayor John Cook renewed the process
by approving the ongoing development of the Master Plan, and the Group subsequently hired SMWM, the architectural-urban planning firm from San Francisco. SMWM was formally hired on the basis of a Plan it had previously developed during the bidding process.
of the Glass Beach "immersion audit" were presented to City Council. A controversial image of an elderly Mexican wearing a cowboy hat, described as an "Old Cowboy Male - 50-60 Years Old Dirty Gritty
18. On March 22 - 23, 2006: the results
Lazy Speak (sic) Spanish Uneducated" was presented as what Glass Beach claimed to be the public perception of the City.
of the "Downtown the public at the Plaza Theatre. An integral part of the Plan were a Revitalization Plan" to "Downtown Sports Arena" and a "Mexican Market."
19. On March 26, 2006, SMWM presented the first version
20. For a period of months, the City and SMWM held a series of public presentations hosted by Evan Rose, the architect representing SMWM, which proved to be highly contentious, with significant portions of the public rising to voice their opposition to the Plan, particularly that portion that sought to install "big box" retail outlets in the Segundo Barrio. The Barrio is the oldest Mexican-American neighborhood in the City.
21. Given the public outcry, including Bill Sanders's highly publicized statement, set out here in haec verba - "That's a pile of shit down there. I would be ashamed to have a business there. It should all be razed. All of it. There isn't a single historical building inside the redevelopment zone. Our consultants have already checked. We can't save a building just because Pancho Villa had a couple of drinks there.' - the Group sent the Plan to the City for further development.
22. The City undertook to refine the plan, and for a long period of time, it held public hearings designed to sell the plan. It was largely unsuccessful. In July 2006 the Plan was formally presented by the City, resulting in mass protests at the Civic Center. 23. In late 2009, a distinguished group of Mexican-American-Chicano politicians and professional people delivered a letter to the Mayor and City Council asking that the Segundo Barrio be declared an historic district to the end that it can ultimately be placed on the National Register of Historic Places.
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24. In January, 2010, the National Latino Congreso held its convention in the City and adopted a unanimous resolution backing the effort to name the Barrio an historic district.
25. In November, 2010, State Senator José Rodriguez sent the Mayor and City Council a letter backing the effort to name the Barrio an historic district.
26. City Council has made no reply to these efforts.
27. During 2011-2012, a group
of concerned Mexican-American-Chicano activists
have repeatedly requested of City Council and Representative Emma Acosta that the Lincoln Center building, an historic former school and cultural center which anchors a park under part of Interstate Highway 10 be restored and put to use for the neighborhood people, with no avail.
28. In contrast and during the past three years, City Council has taken over the former YMCA building on Montana Ave., invested $5.2 million to renovate it prior to naming it for a local white dead politician. Council has recently spent in the vicinity of $450,000 to publicize a boxing match held in the Sun Bowl stadium, exhorting citizens to attend the match as a matter of duty to stress the "safety" qualities of life in the City, as opposed to the carnage in Juárez, Mexico. Although for a world title, the match was a flop. Only approximately 13,000 attended the capacity of the stadium can reach 50,000 and half of those were from Mexico, as one of the boxers is well known in that country. 29. Within recent months, a limited liability corporation (which is not required to pay corporate taxes) was formed by Paul Foster, his wife Guadalupe de la Vega, Woody Hunt and his son Joshua. All are described as "Partner-Managers" of the Mountain Star Sports Group, LLC, which began to advocate for the bringing of professional AAA Baseball to the City.
30. It shortly became known that the San Diego Padres, owners of the minor league franchise to be brought to El Paso from Tucson, Arizona, allegedly insisted that a downtown baseball stadium be built in the City prior to authorizing AAA professional baseball for El Paso.
31. Defendant Joyce Wilson, or those acting under her direction and in her capacity as City Manager, brought Architect Evan Rose to come up with an ideal site for the stadium. This was the same Evan Rose who formerly worked for SMWM and who was widely regarded by a large portion of the public as a pitchman for the downtown revitalization plan produced by his firm. The public had made known its substantial
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disagreement with the proposal for a Downtown Arena, part of the original plan.
32. Evan Rose did was he was told to do, and did not bother to find alternative and better suited sites for the proposed stadium, or a downtown area in different clothes.
33. In short order, two "Initiative" proposals surfaced, seeking to forbid the tearing down of City Hall, made necessary in order for the stadium to be built on the same site. One failed when several signatures were disqualified, but the other passed. 34. City officials, pressed on the issue, acknowledged that the plan to bring baseball to a downtown venue had been secretly worked on for the preceding two years.
35. Seeking public approval for its plan, parts of which would be on the November 6, 2012 ballot under the rubric "Quality of Life Bond Issue", the City had sought public comment: "(W)hen city officials started asking residents last spring how they would improve El Paso, more than 5,000 comments poured in. Now a close look at comment cards and a database of all 5,000 responses reveals what could be called cheating, ballot stuffing and maybe even fraud." This quote is from El Paso Inc., an El Paso publication
that covers, in the main, politics and business.
36. "When that unusual circumstance was pointed out to city officials, they decided against removing the questionable comments from the database of responses." http ://www.elpasoinc. comlnews/top_stoiy/article_250 80eae-ffdd- lie 1 -be2c-00 1 a4bcf6 87 8.html 37. The "unusual circumstance" referenced above was the fact that approximately
500 comment cards were signed by the same individual.
38. Also before City Council on September 18 was a proposal to increase the
exemption for retired and disabled people from their property taxes which would come into effect in 2015. The proposal was viewed by many as an attempt to buy the elderly peoples' vote for the November 6 bond election.
39. Deputy City Manager William F. Studer Jr. made the public presentation for increased exemption from property taxes for the elderly and disabled. City the Representative Carl L. Robinson questioned him regarding Studer's visit to his office to gain support for the proposal. Studer agreed that the two had met for that purpose. 40. Rep. Robinson reminded Studer that he, Studer, had remarked that by increasing the exemption, the City hoped to influence the elderly to vote for the Quality of
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Life Bond Issue. When Studer disagreed that he had suggested any such thing, Rep. Robinson looked hard at Studer and said, "I stand by what I said, as God is my witness," or words to that effect, the words invoking God.
41. A proposal to table the increased exemption until after the November 6 election was soundly defeated. The proposed increase was then approved.
42. The initiative which passed, mentioned in No. 33 above, was voted down on September 18, by City Council, the same date that Council voted to demolish City Hall and build the stadium. Council members Emma Acosta, Carl. L. Robinson and Eddie Holguin Jr. voted against the razing of City Hall.
43. Mayor John Cook had publicly stated he would veto the plan to demolish City Hall and build a stadium. However, on September 18, he met privately with Foster and Hunt early in the morning. His veto never materialized.
FIRST CAUSE OF ACTION: CONSPIRACY TO DENY PLAINTIFFS THEIR CIVIL RIGHTS AND THEIR RIGHTS TO EFFECTIVE SUFFRAGE
37. Plaintiffs allege that Defendant Joyce Wilson personal and political activities are grounded in an animus which she feels and displays toward Mexican-AmericanChicano members of the City's population.
38. Plaintiffs allege that this animus has been especially pronounced when she has dealt with Mexican-American-Chicano citizens who appear before or who serve on public service boards, as the Civil Service Commission of the City. She has demoted or replaced Mexican-American-Chicano women employees of the City with younger white men, or has fired outright Mexican-American-Chicano employees of the City who disagree with her on a given political position. 39. Plaintiffs allege that this animus blossomed beginning with her relationship with Antonio Patric Buchanan and Bob Wingo, as Defendant Joyce Wilson had engaged in class and/or race based actions in an ongoing conspiracy which began in 2004 and which has continued to the present. Her actions involving her activities in this conspiracy
show her animus toward the Mexican-American-Chicano members of the City's voting population, which are members of a protected class, and to which class Plaintiffs belong.
40. Plaintiffs allege that she connived, conspired, counseled and acted in concert with Antonio Patric Buchanan, the owner of Glass Beach, which was incorporated and
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registered with a foreign address for the world wide web for the specific purpose of hiding Buchanan's association and employment with Sanders/Wingo advertising, an El Paso based advertising agency.
41. Plaintiffs allege that In furtherance of this conspiracy, she authorized a contract with Glass Beach for "services" to the City for which Glass Beach was paid $100,000 of taxpayer moneys. The actual contract was a subcontract from Sanders/Wingo through SMG, the company that then managed the El Paso Convention Center. At the time the contract was signed and moneys paid, Antonio Patric Buchanan was not only the owner of Glass Beach, but also the Chief Marketing Officer for Sanders/Wingo. 42. Plaintiffs allege that in furtherance of this conspiracy which now also involved private actors, and because Defendant Joyce Wilson wished to "rebrand" the city, she made certain that Buchanan's "research" would be supported by carefully chosen contacts, among whom was Bob Wingo, Buchanan's friend and employer.
43. Plaintiffs allege that it was under these circumstances that a racist image of an elderly Mexican wearing a cowboy hat, described as an "Old Cowboy Male - 5 0-60 Years Old Dirty Gritty Lazy Speak (sic) Spanish Uneducated" was presented as what Glass Beach claimed to be the public perception of the City. Said perception was an integral and important part of Defendant Joyce Wilson's part in the above conspiracy to deny, dilute or otherwise diminish Plaintiffs' liberty interest and right to effective suffrage under the Voting Rights Act, 42 U.S.C. §1973 (a) et seq., the First Amendment to the Constitution of the United States, and to deny Plaintiffs the equal protection of the laws, in violation of 42 U.S.C. § 1985(3). In so doing, Plaintiffs allege that at all times material hereto, Defendant Joyce Wilson was acting in her capacity as a public official of the City and was acting under color of state law. A copy of said image is attached here to as Plaintiffs' Exhibit "A".
44. Plaintiffs allege that two years ago, and In furtherance of this ongoing conspiracy, Defendants City Representatives Cortny Niland and Steve Ortega, acting on the suggestion of Defendant Joyce Wilson, voted to deny moneys to repair City Hall as requested by the City Engineer. The only reason for this vote was because they well knew that plans to demolish a thirty year old multi million dollar building were in the offing by powerful monied interests in the private sector, although these plans were artfully concealed from the public.
45. Plaintiffs allege that at a recent meeting held by City Representatives, Defendant Cortny Niland "batted around" suggestions as to how to deal with a prospective favorable petition for initiative which would bar the demolition of City Hall.
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Among the suggestions made by this Defendant to suppress the vote was the idea of putting the piles of petitions at the bottom of tasks to be performed so as to make them time barred.
46. Plaintiffs allege that when a fellow Representative argued that such a course of action was illegal and would be suppressing the vote, Defendant Niland became enraged and threatened the Representative with calling the police and having the Representative jailed on bogus charges. 47. Plaintiffs allege that in furtherance of this ongoing conspiracy, Defendants Joyce Wilson, Cortny Niland and Steve Ortega, while acting as public officials of the City and acting under color of state law, have each and all connived, conspired, counseled with and willfully acted in concert with each other, specifically to deny, abrogate, diminish or otherwise impair Plaintiffs' liberty interest and right to effective suffrage under the VotingRights Act, 42 U.S.C. §1973 (a) et seq., to speech, assembly, association and advocacy, all as guaranteed to them by the First Amendment to the Constitution of the United States, and to deny Plaintiffs the equal protection of the laws, in violation of 42 U.S.C. §1985(3).
SECOND CAUSE OF ACTION: DENIAL OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW
48. Plaintiffs reallege the factual matters set out in paragraphs 37-46 inclusive and adopt the language thereof as if set out anew. 49. Plaintiffs allege further that Defendants Steve Ortega and Cortny Niland have stated on various occasions that no matter the result of the initiative process, the bringing of professional AAA baseball to El Paso is "a done deal" as is the demolition of City Hall.
50. Plaintiffs allege that these "done deal" utterances have very serious Voting
Rights Act and City Charter complications, these being: a. Under the Voting Rights Act, 42 U.S.C. § 1973 (a) et seq., American Citizens have not only the expectation, but the right, that their vote will be made in secrecy, will be counted, and will be respected. b. These utterances, if honored, will in effect overrule those provisions in the City Charter of El Paso, Texas, that authorize the Referendum and Initiative processes.
51. Plaintiffs allege that the full implications
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of the plans and conspiracies of the
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named Defendants became known only because the cloak of secrecy that had protected the Defendants and City Council was pierced when public admissions of secret proceedings for the past two years were made and when the plan to raze City Hall for the benefit of organized baseball was solidified, which was only about three to four weeks ago.
52. Plaintiffs allege that in the posture of this case, the second initiative required by the City Charter will almost to a certainty be processed and the signatures verified, and
that the proposed citizen ordinance banning the demolition of City Hall will be brought before the voting public at the earliest City election, probably in March of the coming year.
of this ongoing conspiracy, Plaintiffs allege that Defendants Cortny Niland and Steve Ortega, while acting as public officials of the City Joyce Wilson, and acting under color of state law, have each and all connived, conspired, counseled and willfully acted in concert with each other, specifically to deny, abrogate, diminish or otherwise impair Plaintiffs' rights to procedural due process of law by attempting to bypass the electoral procedure for referendum and initiative required by the City Charter, as those rights to procedural process are guaranteed to them by the Fourteenth Amendment to the Constitution of the United States and by 42 U.S.C. § 1983.
53. In furtherance 54. Plaintiffs allege further that Defendant Conspirators' attempt to insulate
themselves and their private sector patrons from citizen action will result in depriving Plaintiffs from substantive due process of law as guaranteed to them by the Fifth and Fourteenth Amendments to the Constitution of the United states, there being no rational relation between short-circuiting the VotingRightsAct,42 U.S.C. §1973 (a) etseq., and the Constitution of the United States, and the "done deal" proposals of the Defendant Conspirators.
REQUEST FOR PRELIMINARY INJUNCTION Pursuant to Rules 65 (a)(1)(2) and Rule (a)(1) et seq., 4 Fed. R. Civ. P., Plaintiffs in the captioned matter respectfully request the Court to grant a Preliminary Injunction at such time as all Defendants can be notified to be present for a hearing following service of the summons, complaint and this request.
Plaintiffs also request that the Court not consolidate the hearing for the preliminary with trial on the merits as authorized by Rule 65 (a)(2) for the reason that the case will required substantial discovery.
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This request is addressed to the sound discretion of the Court, and is supported by affidavit and verified complaint both.
Plaintiffs show the Court that:
Plaintiffs anticipate actual success on their Constitutional and Voting Rights claims for the reasons that the right to vote for a citizen ordinance through the initiative process, enshrined in the City Charter, takes precedence over any "window of opportunity" argument made the basis for haste by Defendants' public utterances for the necessity of demolishing City Hall.
1)
2) irreperable harm will ensue not only to Plaintiffs but to the general public of the City of El Paso, Texas, as this involves the demolition of City Hall for which in fact preliminary steps involving heavy drilling are already taking place:
3) the threatened injury outweighs any realistic harm to parties opposite, and, if issued, 4) the relief sought will not adversely affect public interest, but, to the contrary, it will protect said interest, which involves maintaining the strength of democracy by protecting the right to vote and to have one's vote counted, protected and not diluted.
Pursuant to Local Rule CV-65(g), Plaintiffs request an oral hearing at any time after October 14, 2012.
They request further that the requirement of Local Rule CV 65(h) that a "Conference to Settle the Matter" be waived, because the several public statements of the Defendants that "it's a done deal" along with the preparations to demolish the City Hall building, which are ongoing, render any such conference unrealistic.
JURY DEMAND AND COUNT FOR DAMAGES
Plaintiffs demand a trial by jury on all issues so triable. Plaintiffs request damages from Defendants Joyce Wilson, City Manager of El Paso, Texas, City Representative Cortny
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Niland, and City Representative Steve Ortega, to be assessed by the Jury as the evidence may show. WHEREFORE, THE PREMISES CONSIDERED, Plaintiffs pray that after hearing, the Court grant a preliminary injunction enjoining the Defendants, their servants, agents and employees from continuing with preliminary or other steps to demolish the building known as City Hall of El Paso, Texas, from causing damages thereto both to the grounds, exterior and interior thereto, until any further Order from this Court; that after trial on the merits, the Court grant an affirmative and permanent injunction ordering the City of El Paso, Texas, its Mayor, City Manager and City Clerk to place the second Initiative on the ballot for the earliest election to be held by the City of El Paso, Texas, early in 2013, to the end that the voting public either forbid, by citizen ordinance, the demolition of City Hall, or, to allow it, if that be the voting public's wish; that the Court award damages to Plaintiffs according to the verdict of the jury, that Plaintiffs have all other and further relief, and that they recover their costs. Respectfully submitted,
Fernando Chacon Texas Bar No. 04052800 109 N. Oregon, Ste. 1119 El Paso, fexas 79901
Ra"alazar
STATE OF TEXAS COUNTY OF EL PASO
jjsB.OchoaJr.
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BEFORE ME the undersigned authority, on this the 4TH day of October, 2012, personally appeared Ray Salazar, David Ochoa, and Jesus B. Ochoa Jr., who after having been by me duly sworn, severally stated that the allegations contained above are true and correct to their personal knowledge based on defendants' public utterances, with the remainer being true and correct on information and belief, to certifi all of which witness my hand and seal of office on the date and year above stated
NOTARY PUB4JC ortt*SoITexas
b1 oary D uuiic in anu or The State of Texas
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IN THE UNITED STATES DISTRICT COURT
WESTERNDISTRICTOFTEXAS
EL PASO DIVISION
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Ray Salazar, David Ochoa, and Jesus B. Ochoa, Jr.,
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The City of El Paso, Texas, a municipal ) corporation, by and through its Mayor John) Cook, in his official capacity as Mayor ) of El Paso, Texas, Joyce Wilson, in her ) personal and official capacity as City ) Texas, Cortny Niland, ) Manager of El Paso, in her personal and official capacity as ) Representative, District 8, El Paso, ) Texas, Steve Ortega, in his personal and ) official capacity as Representative of ) District 7, El Paso, Texas, Ann Morgan ) Lilly, Dr. Michiel Noe and Susie Byrd, ) Representatives of ) all in their capacity as their several Districts in El Paso, Texas, ) Defendants. )
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No. EP-Civ-
COMPLAINT and REQUEST FOR PRELIMINARY INJUNCTION
TO THE HONORABLE COURT:
PARTIES
Plaintiff Ray Salazar is a former Mayor of El Paso, Texas. Plaintiff David Ochoa is a Board Member of the City of El Paso (hereinafter the "City") Employees 'Association. He sues in his personal capacity, and not as a member of said Board. Plaintiff Jesus B. Ochoa, Jr., is a retired lawyer and a former member of the Texas Advisory Committee to
the United States Commission on Civil Rights.
All Plaintiffs have a direct interest in not only in voting, but in ensuring that their vote
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counts and is protected. All Plaintiffs reside in El Paso, Texas.
Defendants John Cook is the siting mayor of El Paso, Texas. He is sued in his official capacity. Defendant Joyce Wilson is the City manager of El Paso, Texas. She is sued in her personal and official capacity. Defendant Cortny Niland is the Representative for District 8 of El Paso, Texas. She is sued in her personal and official capacity. Defendant Steve Ortetga is the Representative for District 7 of El Paso, Texas. He is sued in his personal and official capacity. Defendants Ann Morgan Lilly, Dr. Michiel Noe and Susie Byrd are all Representatives of their various Districts, and are sued only in their official capacity. All Defendants reside in El Paso, Texas.
The City is a "Home Rule" city of the State of Texas. It can exercise all powers which do not conflict with state law.
JURISDICTION and VENUE
This Court has subject-matter jurisdiction under 28 U.S.C. § 1343 (a)(1)(3)(4), 42 U.S.C. §1973 (a) etseq.,"The Voting Rights Act," 42 U.S.C. §1983,42 U.S.C. §1985 (3), and the First, Fifth and Fourteenth Amendments to the Constitution of the United States. The Court also has personal jurisdicion of all parties hereto. Venue lies in El Paso, Texas, pursuant to 28 U.S.C. §1391 (a)(b)(1)(2).
BACKGROUND According to the 2010 census, El Paso County has a population of Hispanic or of 658,134, or 82.2% of the total population. Of these, Latino people (of any race) 613,091 people, or 76.6%, are of Mexican origin. Non-Hispanic or Non-Latino people number 17.8% of the total population.
1.
2. Up until the early 80s, all governmental units in El Paso County, including local school boards and the El Paso County Community College District in the City (the largest city in El Paso County), were governed by boards of trustees elected in "at large" elections, typically composed of white people with a token Mexican-American.
3. At or about the same time, the City and County
of El Paso voluntarily moved to
single-member district representation, and successful lawsuits based on the Voting Rights Act against the El Paso and Ysleta Independent School Districts and the El Paso County Community College District moved these entities to court-ordered boards of trustees elected under the single-member district formula.
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4. The Paso del Norte Group (hereinafter the "Group"), a semi-secretive
organization of business men and women, developers, lawyers and others from both sides of the border, was founded on May 4, 2004 largely under the leadership of real estate magnate Bill Sanders..
of El Paso adopted a City Charter which provided for the first time in the City's history for a council-city manager form of
5. On February 7th, 2004, the voters
government, and for citizen generated referendum and initiative proposals.
Glass Beach Marketing (hereinafter "Glass Beach ") was registered on the web in May 2004. Its registry was in France, with its contact person, Kenneth Ghobriel, listed as having an address at 15 rue montaigne, Paris, France.
6.
Glass Beach Marketing 15 rue montaigne Paris, France Registered through: CHEAPSUCKER.COM Domain Name: GLASS-BEACH.COM
Created on: 04-May-04 Expires on: 4-May-07 Last Updated 4-May-06
Administrative Contact:
Ghobriel, Kenneth [email protected] Domain Name: GLAS S-BEACH.COM Glass Beach Marketing: 15 rue montaigne Paris, France 01 33 245 6579
7. Antonio Patric Buchanan joined Sanders/Wingo Advertising, Inc. (hereinafter
"Sanders! Wingo" as its Chief Marketing Officer in 2004. At the time he joined Sanders! Wingo, which is based in El Paso, Texas, Buchanan was also the Chief Executive Officer of Glass Beach.
9. Defendant Joyce Wilson was hired as City Manager for El Paso, Texas, on
August 4, 2004. During 2004, the City paid $250,000 to the Group as its share to employ Simon Martin-Vegue Winkelstein Moris (hereinafter" SMWM", an architectural urban renewal firm from San Francisco, to design a plan to revitalize downtown El Paso.
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Corporate Realty Services, LLC, was registered in Texas. Now headquartered in Houston, this entity is largely owned by Bill Sanders. This entity has morphed into a Real Estate Investment Trust with powers of eminent domain.
8. On October 6, 2004, Verde
9. On March 3, 2006, Defendant Joyce Wilson sent out a memo outlining the new
direction the City would take to stop spending an inordinate amount of time "defending our great city" from the negative image with which the city was allegedly viewed. Wilson gave notice that Glass Beach had been hired to do the "re-branding and re-marketing."
10. An "Immersion Audit Contact List" prepared under Wilson's direction, with the names and e-mail addresses of 41 El Pasoans, was sent to the persons listed and to Glass
Beach.
11. The list was made up of 2 Black individuals, two people with middle eastern surnames, 12 with Latino surnames (6 of which were either employed by the City or had
connections to this City), and 24 Anglo or white individuals.
12. The list was sent to Paris McDonnal, the Glass Beach contact. Prior to her
employment with Glass Beach, Ms. McDonnal had been employed by Sanders/Wingo, then known as SWG&MAdvertising, at its Austin, Texas, office, for two years and three months. In 1995, SWG&M changed its name to Sanders/Wingo Advertising, Inc.
13. Sanders/Wingo is headed by CEO Bob Wingo, who is also its majority
stockholder. Bob Wingo's name and the name of one of his employees appear on the contact list sent to Glass Beach.
14. When Glass Beach was hired, the El Paso online publication Newspaper Tree
reported that "(T)he Glass Beach marketing company was contracted by the city, through SMG, to review how the city is marketed. According to city officials, the contract, for $100,000, was a subcontract from SMG's primary vendor, Sanders/Wingo, an El Paso ad firm with a national profile." SMG was the company that ran the El Paso Convention Center.
15. The above facts were verified by Defendant Joyce Wilson when she publicly
stated that Glass Beach had been hired on recommendation by SMG. She not only purposely hid from the public the relationship between Sanders/Wingo and Glass Beach, but sought to mislead the public by placing Bob Wingo's name on the contact list described above.
16. In effect,
Sanders Wingo hired its Chief Marketing Officer, Antonio Patric
ru
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Buchanan, in his persona as CEO of Glass Beach.
17. On Feb. 15, 2006, the City Council and Mayor John Cook renewed the process
by approving the ongoing development of the Master Plan, and the Group subsequently hired SMWM, the architectural-urban planning firm from San Francisco. SMWM was formally hired on the basis of a Plan it had previously developed during the bidding process.
of the Glass Beach "immersion audit" were presented to City Council. A controversial image of an elderly Mexican wearing a cowboy hat, described as an "Old Cowboy Male - 50-60 Years Old Dirty Gritty
18. On March 22 - 23, 2006: the results
Lazy Speak (sic) Spanish Uneducated" was presented as what Glass Beach claimed to be the public perception of the City.
of the "Downtown the public at the Plaza Theatre. An integral part of the Plan were a Revitalization Plan" to "Downtown Sports Arena" and a "Mexican Market."
19. On March 26, 2006, SMWM presented the first version
20. For a period of months, the City and SMWM held a series of public presentations hosted by Evan Rose, the architect representing SMWM, which proved to be highly contentious, with significant portions of the public rising to voice their opposition to the Plan, particularly that portion that sought to install "big box" retail outlets in the Segundo Barrio. The Barrio is the oldest Mexican-American neighborhood in the City.
21. Given the public outcry, including Bill Sanders's highly publicized statement, set out here in haec verba - "That's a pile of shit down there. I would be ashamed to have a business there. It should all be razed. All of it. There isn't a single historical building inside the redevelopment zone. Our consultants have already checked. We can't save a building just because Pancho Villa had a couple of drinks there.' - the Group sent the Plan to the City for further development.
22. The City undertook to refine the plan, and for a long period of time, it held public hearings designed to sell the plan. It was largely unsuccessful. In July 2006 the Plan was formally presented by the City, resulting in mass protests at the Civic Center. 23. In late 2009, a distinguished group of Mexican-American-Chicano politicians and professional people delivered a letter to the Mayor and City Council asking that the Segundo Barrio be declared an historic district to the end that it can ultimately be placed on the National Register of Historic Places.
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24. In January, 2010, the National Latino Congreso held its convention in the City and adopted a unanimous resolution backing the effort to name the Barrio an historic district.
25. In November, 2010, State Senator José Rodriguez sent the Mayor and City Council a letter backing the effort to name the Barrio an historic district.
26. City Council has made no reply to these efforts.
27. During 2011-2012, a group
of concerned Mexican-American-Chicano activists
have repeatedly requested of City Council and Representative Emma Acosta that the Lincoln Center building, an historic former school and cultural center which anchors a park under part of Interstate Highway 10 be restored and put to use for the neighborhood people, with no avail.
28. In contrast and during the past three years, City Council has taken over the former YMCA building on Montana Ave., invested $5.2 million to renovate it prior to naming it for a local white dead politician. Council has recently spent in the vicinity of $450,000 to publicize a boxing match held in the Sun Bowl stadium, exhorting citizens to attend the match as a matter of duty to stress the "safety" qualities of life in the City, as opposed to the carnage in Juárez, Mexico. Although for a world title, the match was a flop. Only approximately 13,000 attended the capacity of the stadium can reach 50,000 and half of those were from Mexico, as one of the boxers is well known in that country. 29. Within recent months, a limited liability corporation (which is not required to pay corporate taxes) was formed by Paul Foster, his wife Guadalupe de la Vega, Woody Hunt and his son Joshua. All are described as "Partner-Managers" of the Mountain Star Sports Group, LLC, which began to advocate for the bringing of professional AAA Baseball to the City.
30. It shortly became known that the San Diego Padres, owners of the minor league franchise to be brought to El Paso from Tucson, Arizona, allegedly insisted that a downtown baseball stadium be built in the City prior to authorizing AAA professional baseball for El Paso.
31. Defendant Joyce Wilson, or those acting under her direction and in her capacity as City Manager, brought Architect Evan Rose to come up with an ideal site for the stadium. This was the same Evan Rose who formerly worked for SMWM and who was widely regarded by a large portion of the public as a pitchman for the downtown revitalization plan produced by his firm. The public had made known its substantial
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disagreement with the proposal for a Downtown Arena, part of the original plan.
32. Evan Rose did was he was told to do, and did not bother to find alternative and better suited sites for the proposed stadium, or a downtown area in different clothes.
33. In short order, two "Initiative" proposals surfaced, seeking to forbid the tearing down of City Hall, made necessary in order for the stadium to be built on the same site. One failed when several signatures were disqualified, but the other passed. 34. City officials, pressed on the issue, acknowledged that the plan to bring baseball to a downtown venue had been secretly worked on for the preceding two years.
35. Seeking public approval for its plan, parts of which would be on the November 6, 2012 ballot under the rubric "Quality of Life Bond Issue", the City had sought public comment: "(W)hen city officials started asking residents last spring how they would improve El Paso, more than 5,000 comments poured in. Now a close look at comment cards and a database of all 5,000 responses reveals what could be called cheating, ballot stuffing and maybe even fraud." This quote is from El Paso Inc., an El Paso publication
that covers, in the main, politics and business.
36. "When that unusual circumstance was pointed out to city officials, they decided against removing the questionable comments from the database of responses." http ://www.elpasoinc. comlnews/top_stoiy/article_250 80eae-ffdd- lie 1 -be2c-00 1 a4bcf6 87 8.html 37. The "unusual circumstance" referenced above was the fact that approximately
500 comment cards were signed by the same individual.
38. Also before City Council on September 18 was a proposal to increase the
exemption for retired and disabled people from their property taxes which would come into effect in 2015. The proposal was viewed by many as an attempt to buy the elderly peoples' vote for the November 6 bond election.
39. Deputy City Manager William F. Studer Jr. made the public presentation for increased exemption from property taxes for the elderly and disabled. City the Representative Carl L. Robinson questioned him regarding Studer's visit to his office to gain support for the proposal. Studer agreed that the two had met for that purpose. 40. Rep. Robinson reminded Studer that he, Studer, had remarked that by increasing the exemption, the City hoped to influence the elderly to vote for the Quality of
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Life Bond Issue. When Studer disagreed that he had suggested any such thing, Rep. Robinson looked hard at Studer and said, "I stand by what I said, as God is my witness," or words to that effect, the words invoking God.
41. A proposal to table the increased exemption until after the November 6 election was soundly defeated. The proposed increase was then approved.
42. The initiative which passed, mentioned in No. 33 above, was voted down on September 18, by City Council, the same date that Council voted to demolish City Hall and build the stadium. Council members Emma Acosta, Carl. L. Robinson and Eddie Holguin Jr. voted against the razing of City Hall.
43. Mayor John Cook had publicly stated he would veto the plan to demolish City Hall and build a stadium. However, on September 18, he met privately with Foster and Hunt early in the morning. His veto never materialized.
FIRST CAUSE OF ACTION: CONSPIRACY TO DENY PLAINTIFFS THEIR CIVIL RIGHTS AND THEIR RIGHTS TO EFFECTIVE SUFFRAGE
37. Plaintiffs allege that Defendant Joyce Wilson personal and political activities are grounded in an animus which she feels and displays toward Mexican-AmericanChicano members of the City's population.
38. Plaintiffs allege that this animus has been especially pronounced when she has dealt with Mexican-American-Chicano citizens who appear before or who serve on public service boards, as the Civil Service Commission of the City. She has demoted or replaced Mexican-American-Chicano women employees of the City with younger white men, or has fired outright Mexican-American-Chicano employees of the City who disagree with her on a given political position. 39. Plaintiffs allege that this animus blossomed beginning with her relationship with Antonio Patric Buchanan and Bob Wingo, as Defendant Joyce Wilson had engaged in class and/or race based actions in an ongoing conspiracy which began in 2004 and which has continued to the present. Her actions involving her activities in this conspiracy
show her animus toward the Mexican-American-Chicano members of the City's voting population, which are members of a protected class, and to which class Plaintiffs belong.
40. Plaintiffs allege that she connived, conspired, counseled and acted in concert with Antonio Patric Buchanan, the owner of Glass Beach, which was incorporated and
[ö] re]
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registered with a foreign address for the world wide web for the specific purpose of hiding Buchanan's association and employment with Sanders/Wingo advertising, an El Paso based advertising agency.
41. Plaintiffs allege that In furtherance of this conspiracy, she authorized a contract with Glass Beach for "services" to the City for which Glass Beach was paid $100,000 of taxpayer moneys. The actual contract was a subcontract from Sanders/Wingo through SMG, the company that then managed the El Paso Convention Center. At the time the contract was signed and moneys paid, Antonio Patric Buchanan was not only the owner of Glass Beach, but also the Chief Marketing Officer for Sanders/Wingo. 42. Plaintiffs allege that in furtherance of this conspiracy which now also involved private actors, and because Defendant Joyce Wilson wished to "rebrand" the city, she made certain that Buchanan's "research" would be supported by carefully chosen contacts, among whom was Bob Wingo, Buchanan's friend and employer.
43. Plaintiffs allege that it was under these circumstances that a racist image of an elderly Mexican wearing a cowboy hat, described as an "Old Cowboy Male - 5 0-60 Years Old Dirty Gritty Lazy Speak (sic) Spanish Uneducated" was presented as what Glass Beach claimed to be the public perception of the City. Said perception was an integral and important part of Defendant Joyce Wilson's part in the above conspiracy to deny, dilute or otherwise diminish Plaintiffs' liberty interest and right to effective suffrage under the Voting Rights Act, 42 U.S.C. §1973 (a) et seq., the First Amendment to the Constitution of the United States, and to deny Plaintiffs the equal protection of the laws, in violation of 42 U.S.C. § 1985(3). In so doing, Plaintiffs allege that at all times material hereto, Defendant Joyce Wilson was acting in her capacity as a public official of the City and was acting under color of state law. A copy of said image is attached here to as Plaintiffs' Exhibit "A".
44. Plaintiffs allege that two years ago, and In furtherance of this ongoing conspiracy, Defendants City Representatives Cortny Niland and Steve Ortega, acting on the suggestion of Defendant Joyce Wilson, voted to deny moneys to repair City Hall as requested by the City Engineer. The only reason for this vote was because they well knew that plans to demolish a thirty year old multi million dollar building were in the offing by powerful monied interests in the private sector, although these plans were artfully concealed from the public.
45. Plaintiffs allege that at a recent meeting held by City Representatives, Defendant Cortny Niland "batted around" suggestions as to how to deal with a prospective favorable petition for initiative which would bar the demolition of City Hall.
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Among the suggestions made by this Defendant to suppress the vote was the idea of putting the piles of petitions at the bottom of tasks to be performed so as to make them time barred.
46. Plaintiffs allege that when a fellow Representative argued that such a course of action was illegal and would be suppressing the vote, Defendant Niland became enraged and threatened the Representative with calling the police and having the Representative jailed on bogus charges. 47. Plaintiffs allege that in furtherance of this ongoing conspiracy, Defendants Joyce Wilson, Cortny Niland and Steve Ortega, while acting as public officials of the City and acting under color of state law, have each and all connived, conspired, counseled with and willfully acted in concert with each other, specifically to deny, abrogate, diminish or otherwise impair Plaintiffs' liberty interest and right to effective suffrage under the VotingRights Act, 42 U.S.C. §1973 (a) et seq., to speech, assembly, association and advocacy, all as guaranteed to them by the First Amendment to the Constitution of the United States, and to deny Plaintiffs the equal protection of the laws, in violation of 42 U.S.C. §1985(3).
SECOND CAUSE OF ACTION: DENIAL OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW
48. Plaintiffs reallege the factual matters set out in paragraphs 37-46 inclusive and adopt the language thereof as if set out anew. 49. Plaintiffs allege further that Defendants Steve Ortega and Cortny Niland have stated on various occasions that no matter the result of the initiative process, the bringing of professional AAA baseball to El Paso is "a done deal" as is the demolition of City Hall.
50. Plaintiffs allege that these "done deal" utterances have very serious Voting
Rights Act and City Charter complications, these being: a. Under the Voting Rights Act, 42 U.S.C. § 1973 (a) et seq., American Citizens have not only the expectation, but the right, that their vote will be made in secrecy, will be counted, and will be respected. b. These utterances, if honored, will in effect overrule those provisions in the City Charter of El Paso, Texas, that authorize the Referendum and Initiative processes.
51. Plaintiffs allege that the full implications
10
of the plans and conspiracies of the
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named Defendants became known only because the cloak of secrecy that had protected the Defendants and City Council was pierced when public admissions of secret proceedings for the past two years were made and when the plan to raze City Hall for the benefit of organized baseball was solidified, which was only about three to four weeks ago.
52. Plaintiffs allege that in the posture of this case, the second initiative required by the City Charter will almost to a certainty be processed and the signatures verified, and
that the proposed citizen ordinance banning the demolition of City Hall will be brought before the voting public at the earliest City election, probably in March of the coming year.
of this ongoing conspiracy, Plaintiffs allege that Defendants Cortny Niland and Steve Ortega, while acting as public officials of the City Joyce Wilson, and acting under color of state law, have each and all connived, conspired, counseled and willfully acted in concert with each other, specifically to deny, abrogate, diminish or otherwise impair Plaintiffs' rights to procedural due process of law by attempting to bypass the electoral procedure for referendum and initiative required by the City Charter, as those rights to procedural process are guaranteed to them by the Fourteenth Amendment to the Constitution of the United States and by 42 U.S.C. § 1983.
53. In furtherance 54. Plaintiffs allege further that Defendant Conspirators' attempt to insulate
themselves and their private sector patrons from citizen action will result in depriving Plaintiffs from substantive due process of law as guaranteed to them by the Fifth and Fourteenth Amendments to the Constitution of the United states, there being no rational relation between short-circuiting the VotingRightsAct,42 U.S.C. §1973 (a) etseq., and the Constitution of the United States, and the "done deal" proposals of the Defendant Conspirators.
REQUEST FOR PRELIMINARY INJUNCTION Pursuant to Rules 65 (a)(1)(2) and Rule (a)(1) et seq., 4 Fed. R. Civ. P., Plaintiffs in the captioned matter respectfully request the Court to grant a Preliminary Injunction at such time as all Defendants can be notified to be present for a hearing following service of the summons, complaint and this request.
Plaintiffs also request that the Court not consolidate the hearing for the preliminary with trial on the merits as authorized by Rule 65 (a)(2) for the reason that the case will required substantial discovery.
11
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This request is addressed to the sound discretion of the Court, and is supported by affidavit and verified complaint both.
Plaintiffs show the Court that:
Plaintiffs anticipate actual success on their Constitutional and Voting Rights claims for the reasons that the right to vote for a citizen ordinance through the initiative process, enshrined in the City Charter, takes precedence over any "window of opportunity" argument made the basis for haste by Defendants' public utterances for the necessity of demolishing City Hall.
1)
2) irreperable harm will ensue not only to Plaintiffs but to the general public of the City of El Paso, Texas, as this involves the demolition of City Hall for which in fact preliminary steps involving heavy drilling are already taking place:
3) the threatened injury outweighs any realistic harm to parties opposite, and, if issued, 4) the relief sought will not adversely affect public interest, but, to the contrary, it will protect said interest, which involves maintaining the strength of democracy by protecting the right to vote and to have one's vote counted, protected and not diluted.
Pursuant to Local Rule CV-65(g), Plaintiffs request an oral hearing at any time after October 14, 2012.
They request further that the requirement of Local Rule CV 65(h) that a "Conference to Settle the Matter" be waived, because the several public statements of the Defendants that "it's a done deal" along with the preparations to demolish the City Hall building, which are ongoing, render any such conference unrealistic.
JURY DEMAND AND COUNT FOR DAMAGES
Plaintiffs demand a trial by jury on all issues so triable. Plaintiffs request damages from Defendants Joyce Wilson, City Manager of El Paso, Texas, City Representative Cortny
12
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Niland, and City Representative Steve Ortega, to be assessed by the Jury as the evidence may show. WHEREFORE, THE PREMISES CONSIDERED, Plaintiffs pray that after hearing, the Court grant a preliminary injunction enjoining the Defendants, their servants, agents and employees from continuing with preliminary or other steps to demolish the building known as City Hall of El Paso, Texas, from causing damages thereto both to the grounds, exterior and interior thereto, until any further Order from this Court; that after trial on the merits, the Court grant an affirmative and permanent injunction ordering the City of El Paso, Texas, its Mayor, City Manager and City Clerk to place the second Initiative on the ballot for the earliest election to be held by the City of El Paso, Texas, early in 2013, to the end that the voting public either forbid, by citizen ordinance, the demolition of City Hall, or, to allow it, if that be the voting public's wish; that the Court award damages to Plaintiffs according to the verdict of the jury, that Plaintiffs have all other and further relief, and that they recover their costs. Respectfully submitted,
Fernando Chacon Texas Bar No. 04052800 109 N. Oregon, Ste. 1119 El Paso, fexas 79901
Ra"alazar
STATE OF TEXAS COUNTY OF EL PASO
jjsB.OchoaJr.
//
BEFORE ME the undersigned authority, on this the 4TH day of October, 2012, personally appeared Ray Salazar, David Ochoa, and Jesus B. Ochoa Jr., who after having been by me duly sworn, severally stated that the allegations contained above are true and correct to their personal knowledge based on defendants' public utterances, with the remainer being true and correct on information and belief, to certifi all of which witness my hand and seal of office on the date and year above stated
NOTARY PUB4JC ortt*SoITexas
b1 oary D uuiic in anu or The State of Texas
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