Broyles et al v. State Of Texas et al

Filing 32

MEMORANDUM AND ORDER entered DENYING 3 MOTION for Permanent Injunction; MOTION for Preliminary Injunction; MOTION for Temporary Restraining Order, DENIED 31 MOTION to Dismiss 29 Response in Opposition to Motion, DENYING 5 AMENDED MOTION for D eclaratory Judgment, GRANTED 21 MOTION to Dismiss and Brief in Support, GRANTED 22 MOTION to Dismiss, GRANTED IN PART 27 MOTION for Leave to File, DENIED 30 MOTION to Strike 28 Response in Opposition to Motion, DE#NYING 7 MOTION for Judgment. This court denies the plaintiffs federal claims with prejudice and grants the motions to dismiss filed by the State of Texas, the Incorporation Committee, and Aldrich. The state-law claims are dismissed without prejudice to their assertion in state court. No later than April 15, 2009, the parties are to identify any remaining issues that this court must address or file a proposed order of dismissal.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DAVID K. BROYLES, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants. § § § § § § § § §

CIVIL ACTION NO. H-08-02320

MEMORANDUM AND ORDER The plaintiffs challenge a municipal incorporation election held on May 10, 2008, in which Weston Lakes, a private gated community in Fort Bend County, Texas and adjacent land were converted into a Type B General-Law Municipality called the City of Weston Lakes.1 The plaintiffs seek a declaratory judgment that Texas Local Government Code § 7.006, which permits "[e]ach qualified voter who resides within the boundaries of the proposed municipality" to vote in a Type B municipal incorporation election, is unconstitutional because it does not permit nonresident owners of property in the area of the proposed incorporation to vote. The plaintiffs sue under 42 U.S.C. § 1983, seeking an injunction voiding the results of the election on the grounds that § 7.006 is unconstitutional and that there were federal and state law violations in the conduct of the election.

"A community may incorporate . . . as a Type B general-law municipality if it: (1) constitutes an unincorporated town or village; (2) contains 201 to 9,999 inhabitants; and (3) meets [certain square mileage] requirements prescribed by Section 5.901." TEX. LOCAL GVT. CODE § 7.001. A Type-B municipality annually elects its own municipal government, which is to consist of a mayor, five aldermen, and a marshal. Id. § 23.021. The governing body of a Type B municipality may adopt ordinances or bylaws "not inconsistent with state law, that the governing body considers proper for the government of the municipal corporation. Id. § 51.032. The municipality may hold and dispose of personal property and real property located within the municipal boundaries. Id. § 51.034. Municipalities have the power to levy taxes against their residents. § 102.009.

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The plaintiffs also seek money damages. The plaintiffs sue the State of Texas, Fort Bend County, the Weston Lakes Property Owners' Association ("WLPOA"), the Weston Lakes Community Incorporation Project Committee (the "Incorporation Committee"), the Citizens' Committee for the Incorporation of Weston Lakes ("Citizens' PAC"), the individual trustees of the WLPOA, and the chairman of the Incorporation Committee and the Citizens' PAC. (Docket Entry No. 27 ¶ 6). The plaintiffs also assert a state-law shareholder derivative action against the trustees of the WLPOA. The following motions are pending: · The plaintiffs have moved for a declaratory judgment that section 7.006 of the Texas Election Code is unconstitutional because it permits only residents of the area of proposed incorporation, to the exclusion of nonresident property owners in the area of proposed incorporation, to vote in municipal incorporation elections. (Docket Entry No. 5). · The plaintiffs have moved for an injunction against the November 4, 2008 mayoral and aldermen elections for the City of Weston Lakes. The plaintiffs argue that they have shown a strong likelihood of prevailing on their claim that section 7.006 of the Texas Election code is unconstitutional and that the conduct of the May 10, 2008 incorporation election violated their constitutional rights and federal and state election law, and that they would suffer irreparable harm if the elections occurred. The motions also ask this court to declare the May 10, 2008 municipal incorporation election "null and void" and order a new election. (Docket Entry Nos. 3, 6). Fort Bend County and the Incorporation Committee have responded, arguing that as a matter of law the plaintiffs cannot succeed on the merits and cannot show irreparable harm and asking that the relief sought be denied and the claims

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dismissed. (Docket Entry Nos. 4, 12, 14). The plaintiffs have replied. (Docket Entry Nos. 17, 18). · The State of Texas has moved to dismiss the plaintiffs' complaint that Texas and Fort Bend County violated the National Voting Registration Act ("NVRA"). (Docket Entry No. 21). The plaintiffs have responded, (Docket Entry No. 24), and the defendants have replied, (Docket Entry No. 25). · The Incorporation Committee has moved to dismiss the claims against it and its chairman, Clifton Aldrich. (Docket Entry No. 22). The plaintiffs have responded. (Docket Entry No. 23). · The plaintiffs have moved to amend their complaint and have filed a proposed First Amended Complaint. (Docket Entry No. 27). Fort Bend County and the Citizens' Committee for the Incorporation of Weston Lakes oppose the motion. (Docket Entry No. 27). The plaintiffs have moved to strike the opposition. (Docket Entry Nos. 30, 31). Based on a careful review of the pleadings; the motions, responses, and replies; the parties' submissions; and the applicable law, this court grants the plaintiffs' motion to amend insofar as it adds or clarifies allegations relating to the May 10, 2008 election. The motion to amend is denied insofar as it seeks to add allegations relating to the conduct of the November 4, 2008 election. (Docket Entry No. 27 ¶ 64 n.84, 85). This court dismisses the plaintiffs' federal constitutional and statutory claims on the ground that the allegations relating to the May 10, 2008 election do not, as a matter of law, provide a basis for the relief the plaintiffs seek. This court also grants the motions to dismiss filed by the State of Texas and the Incorporation Committee and its chair, Clifton H. Aldrich. The requests for declaratory and injunctive relief that are predicated on the claims of

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federal constitutional and statutory violations are denied. Because the federal claims are dismissed with prejudice, this court does not address the remaining state-law claims, which are dismissed without prejudice to their assertion in state court. No later than April 15, 2009, the parties are to identify any remaining issues that this court must address or file a proposed order of dismissal. The reasons for these rulings are explained in detail below. I. Background A. The Parties

The plaintiffs include both resident and nonresident property owners in the City of Weston Lakes. They have organized themselves into three groups. The first group, called the "Resident Plaintiffs," live in the gated community of Weston Lakes. This group includes David K. Broyles, Shellie Galik Broyles, Frederick B. Howden IV, Eric Jones, Stacey Jones, Brian E. Koons, James R. McKean, Jerry Mosbacher, James E. Ritter, Jeannell M. Ritter, Cheryl Stalinsky, and Lisa H. Theut. The second group, called the "Bowser Road Plaintiffs," are residents of property on the east side of Bowser Road, a strip of land to the northwest of the community of Weston Lakes that was incorporated into the City of Weston Lakes in the challenged election. This group includes Michael S. Cooper, Laura G. Gonzales, Willie Irvin, William Patrick McArthur, and Jessie Fay Oliver. The third group, called the "Plaintiffs Residing Outside Weston Lakes," consists of individuals who own real property in the City of Weston Lakes but reside elsewhere. This group includes Bernice F. Gilmore, Charles D. McWilliams, Brian C. Kimmel, Martin G. Parr, and James A. Winne, III. The plaintiffs have sued a number of defendants. The State of Texas is sued in the name of the Attorney General, Greg Abbott, and the Secretary of State, Hope Andrade. Fort Bend County

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is sued in the name of its County Judge, Robert E. Hebert, and the County Clerk, Dianne Wilson. The Weston Lakes Property Owners Association, Inc. ("WLPOA") is sued in the name of its president, Herbert S. Yates. The trustees of the WLPOA, Herbert S. Yates, Patrick A. Harris, Charles V. Flowers, and Rhonda Zacharias, are also named as individual defendants. The Citizens' Committee for the Incorporation of Weston Lakes ("Citizens' PAC") and the Weston Lakes Community Incorporation Project Committee ("Incorporation Committee") are sued in the name of their chairman, Clifton H. Aldrich. Aldrich is also named as an individual defendant. B. The Community of Weston Lakes and Bowser Road

The community of Weston Lakes is a 1,400-acre continuous tract located in Fort Bend County on the south side of FM 1093 between the City of Simonton and the City of Fulshear. Weston Lakes is a private gated community with a guardhouse, security gates, swimming pool, country club, and golf course. The common areas, easements, and roads in Weston Lakes are governed by the WLPOA, a nonprofit corporation. The WLPOA operates under articles of incorporation, bylaws, and a lengthy document entitled Covenants, Conditions and Restrictions ("CCRs"). (Docket Entry No. 27 ¶¶ 11­14). The community of Weston Lakes has about 800 residences and 427 vacant lots, which include 311 vacant lots in the original Weston Lakes community and 116 vacant lots in Riverwood Forest, a development within the gated community that was determined after a lawsuit in the 1990s to be part of Weston Lakes. The plaintiffs assert that commercial builders and contractors own over 150 of the vacant lots and private individuals own the rest. Residents in the Riverwood Forest portion of Weston Lakes receive water, sewer, and drainage services from a private company, Aqua Texas. The rest of the Weston Lakes lots receive utility services from Municipal Utility District No.

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81 ("MUD # 81"), which levies an annual tax of 39 cents per $100 of the appraised value of the residence, including land. Owners of vacant lots in Weston Lakes must pay an annual $60 "standby" fee. All Weston Lakes landowners, whether their lot is occupied or vacant, must pay $595 in annual maintenance fees to the WLPOA and must pay $879.72 in annual dues to the Weston Lakes Country Club. (Id. ¶¶ 14­19). Bowser Road lies to the north and west of the community of Weston Lakes. The residents of Bowser Road live outside Weston Lake's gates, do not receive services from MUD # 81 or Aqua Texas, do not pay maintenance fees to the WLPOA, and do not pay membership fees to the Weston Lakes Country Club. (Docket Entry No. 6 ¶ 8). The plaintiffs describe the Bowser Road land as "rural woodlands and farmland, including various kinds of structures, buildings, sheds, a burnt home, an abandoned car, mobile homes, cattle, and horses." (Docket Entry No. 27 ¶ 4). The eastern side of Bowser Road was incorporated into the City of Weston Lakes in the challenged election. ( I d .) . B. The Municipal Incorporation Proposal and Application

The plaintiffs allege that according to the WLPOA meeting minutes, which are not part of the record, the WLPOA trustees first discussed the possibility of incorporating the Weston Lakes subdivision as a Class-B municipal corporation on April 24, 2006 and raised the issue again on January 24, 2007. The proposed incorporation was for "tax reasons." The plaintiffs allege that in January and February of 2007,2 WLPOA created the Incorporation Committee to "recommend to the Board of Trustees a course of action with respect to the Board proposing an incorporation project

The complaint identifies the date as "January and February 2008," but the year appears to be in error, given that the Incorporation Committee is alleged to have issued a report on September 26, 2007. (Docket Entry No. 27 ¶¶ 20, 22).

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to the community." Aldrich was appointed chairman and was involved in choosing the committee members. (Id. ¶ 20). The plaintiffs allege that Aldrich formed the Citizens' PAC at that time to advocate for incorporation. (Id. ¶ 9(C)). The Incorporation Committee held its first organizational meeting in April 20073 and allegedly had subsequent "private nonpublic meetings in May, June, July and August." According to the plaintiffs, Aldrich kept the committee's affairs "secret." (Id. ¶ 21). On September 26, 2007, the Incorporation Committee issued a report recommending incorporation not only of Weston Lakes, but also of "the area outside the gated Weston Lakes community south and east of Bowser Road." The report stated that this would "allow the city to control development when it occurs on the western boundary." (Id. ¶ 22). The proposed City of Weston Lakes was to be 1,676.44 acres. (Docket Entry No. 14, Ex. 1-B). The plaintiffs allege that in December 2007, Aldrich "covertly and stealthily" had attorneys prepare an "Application to Incorporate the Community of Weston Lakes, Texas as a Type B General-Laws Municipality." Aldrich and his wife, the trustees, and the Citizens' PAC members signed the application and then allegedly engaged in a "furtive[ ] and clandestine[ ] campaign" to get other residents to sign. (Id. ¶ 24). The plaintiffs allege that Aldrich directed the trustees "not [to] show or give a copy of the Application to the signers," and not to tell them that as signatories to the Application, they were affirming a "desire that said community be incorporated as a Type B general-law municipality." According to the plaintiffs, the trustees told signers only that "the Application was to ask the county judge to set an election on incorporation," (id. ¶ 9(E)), and did
The complaint states that the initial organizational meeting occurred in April 2008, but this would postdate the Incorporation Committee's September 26, 2007 report. An April 2008 initial meeting date would also mean that the "nonpublic meetings in May, June, July, and August," after the initial meeting would have occurred after the May 10, 2008 special election. (Docket Entry No. 27 ¶ 21).
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not tell them "that if the majority voted FOR, then Weston Lakes would become a `city,'" (id. ¶ 25). The plaintiffs assert that signatories were told not to disclose the existence of the application until it was approved by the County Judge, because Aldrich wanted to obtain the necessary signatures "before an opposition to incorporation could be mustered." (Id. ¶ 24). The plaintiffs have submitted an affidavit signed by Eric Smith, a Weston Lakes resident since December 2000. Smith stated that a neighbor told him that a WLPOA trustee, Flowers, had a "petition to get the issue of incorporation of Weston Lakes . . . on the ballot." Smith and his wife went to Flowers's home. Smith stated that Flowers explained that "the main reason for

incorporation was because Fulshear was intending to annex Weston Lakes and the taxes would be higher if Fulshear was to annex Weston Lake" ­ 25 cents per $100 of appraised value versus only two or three cents if Weston Lakes were to incorporate. (Docket Entry No. 1, Ex. C). Smith stated that he "did not know the voting would result in Weston Lakes becoming a city," but "thought it was just the opportunity for consideration to become a city." (Id.). The plaintiffs also submitted an affidavit signed by Jerome Vaeth, who stated that he was asked to "sign the petition to have a vote on the Weston Lakes incorporation issue." Vaeth stated that he and his wife signed the petition but were not told or shown language stating that the signers wanted the community to be incorporated. Vaeth states that he would not have signed the application if he had seen the language. (Docket Entry No. 7, Ex. P). By January 7, 2008, the Incorporation Committee had gathered 132 signatures for the application, well over the 50 signatures required under Texas Local Government Code § 7.002 to initiate an election on a proposed incorporation measure. The application was presented to the Fort Bend County Judge, Robert E. Hebert. (Docket Entry No. 14, Ex. 1-B). County Judge Hebert

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granted the application, as he was required to do under Texas Local Government Code § 7.003, and issued an Order of Special Election on February 26, 2008. (Docket Entry No. 27 ¶ 29 n.60). The Order stated that a special election would be held on May 10, 2008 "to confirm or deny the creation of the Community of Weston Lakes as a Type B General-Law Municipality as required by Title 2, Chapter 7 of the Government Code." (Id. ¶ 29). The Order appointed Robert French as the presiding election officer. French was to "appoint two election judges and two clerks to assist in conducting the election." (Docket Entry No. 14, Ex. 1-C). The plaintiffs complain that French was an improper choice because he was a "political friend[ ] and supporter[ ]" of elected County officials who resided in Weston Lakes, was a member of a senior citizens' pro-incorporation group, and was a friend of the WLPOA trustees and members of the Incorporation Committee and Citizens' PAC. The plaintiffs object to one of French's appointments to the position of election judge, Alfred Vahlkamp, on similar grounds. (Docket Entry No. 27 ¶ 59). C. Notice and Advocacy Efforts for the Proposed Incorporation

On February 28, 2008, the Incorporation Committee hosted its first public meeting. The meeting was held at the Weston Lakes Country Club. Aldrich gave a presentation explaining that incorporation was desirable because it was expected that the City of Fulshear would attempt to annex the community of Weston Lakes within a few years, which would result in higher taxes and prevent Weston Lakes from incorporating in the future. Aldrich explained that the Bowser Road property bordering Weston Lakes had been included in the incorporation proposal because Weston Lakes "wanted to control future development" to avoid having a "Wal-Mart" or "cement plant" close by. According to the plaintiffs, Aldrich stated at the meeting that Bowser Road residents had

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not been told that their land would become part of Weston Lakes if the election succeeded because "we don't have to notify them." (Id. ¶ 27). The plaintiffs assert that Aldrich and the trustees did not disclose at this meeting that an application for an election on incorporation had already been submitted and approved and an election scheduled, or that the members of the Incorporation Committee had formed the Citizens' PAC "for the purpose of campaigning for a YES vote to incorporate Weston Lakes." (Id.). According to the plaintiffs, although the WLPOA trustees stated at this and subsequent meetings that the WLPOA was "neutral and did not take a position FOR or AGAINST incorporation," (id.), the trustees took steps to encourage incorporation, including committing WLPOA funds to a pro-incorporation campaign, making a database of the names and addresses of Weston Lakes residents available to the Citizens' PAC for the emailing and bulk-mailing of campaign materials, and denying the plaintiffs access to this database.4 Trustee Yates allegedly also mailed a pro-incorporation letter in his personal name to Weston Lakes residents using mailing labels from the WLPOA. (Docket Entry No. 27 ¶ 9(C), (D)). The plaintiffs allege that Aldrich, the trustees, and "their agents, friends and surrogates" "actively persuaded residents to allow the placement of `Vote Yes' signs on [their] front lawn[s].'" The plaintiffs allege that one landowner

The plaintiffs also raise more general complaints about the WLPOA. They complain that WLPOA meetings are scheduled at 6:00 p.m., before many Weston Lakes community members have arrived home from work. They allege that the WLPOA refuses to provide written agendas for its meetings and refuses to provide copies of the minutes from prior meetings. The plaintiffs also complain that the WLPOA trustee meetings, at which "serious issues of security, traffic control, speed-bumps, lakes' maintenance, E-Z tag electronic entry system, street parking, alligators in the lakes, loose dogs, barking dogs, children operating golf carts, Rvs and boats parked in driveways, contractors' spec-homes uncompleted, and etc.," are discussed, are not open to the public. (Docket Entry No. 27 ¶ 83). The plaintiffs also allege that Sierra, a contractor that owns 110 vacant lots in the community of Weston Lakes, supported many of the candidates for trustee in WLPOA board elections in exchange for the candidates' promise not to assess the annual $585 maintenance charge on Sierra's lots. (Id. ¶ 76).

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"relent[ed] to putting up a sign after discussing the issue with a proponent for "more than an hour," and that when the landowner later changed her mind and took down the sign, "another sign was erected the next day." (Id. ¶ 9(F)). On March 27, 2008, the WLPOA held a second public meeting about incorporation at the Weston Lakes Country Club. Again, the WLPOA expressed its neutrality. An attorney hired by the Incorporation Committee spoke and answered questions. According to the plaintiffs, the attorney allegedly conceded that annexation to the City of Fulshear was not imminent and that such a step would probably take at least five years. The attorney also admitted that he "knew of no city that has unilaterally annexed additional territory" since the new annexation statute took effect. (Id. ¶ 28 & n . 5 9 ) .5 On April 7, 2008, Fort Bend County posted a "Notice of Election for the Incorporation of the City of Weston Lakes" at the Fulshear/Simonton branch of the Fort Bend County Library.6 On April 10, 2008, the County posted the same notice at the Fort Bend County Precinct 3 office building (which was next to the Fulshear/Simonton library) and the Weston Lakes Country Club. (Docket Entry No. 1, Ex. G).7 Pro-incorporation citizens of Weston Lakes also publicized the election. A

The plaintiffs also include as part of the record, but do not address, Resolution No. 08-145, dated April 15, 2008, by the City Council of Fulshear. The Resolution states that the City Council "has no plans or intent to annex the subdivision, Weston Lakes." The Resolution is signed by the City of Fulshear Mayor Jamie W. Roberts, the City Secretary (and plaintiff in the present suit), Diana Gordon Offord, and four of the five City of Fulshear Aldermen. (Docket Entry No. 7, Ex. Q-T). The Fulshear/Simonton branch of the Fort Bend County Library, located at 8100 FM 359 Road South, Fulshear, Texas 77441, is 2.61 miles from the Weston Lakes Country Club. Fort Bend County submitted an affidavit stating that for each of the thirty days preceding the election date, the county placed full-page copies of the Order of Special Election in three newspapers of general circulation: the Katy Times, the Fort Bend Herald, and the Fort Bend Sun. (Docket Entry No. 14, Ex. 3). The plaintiffs agree that this was done but maintain that there was a failure to follow § 7.003 of the Texas Local Government Code. (Docket Entry No. 18 at 14).
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full-page copy of the County Judge's "Order of Special Election" was placed in the April 2008 issue of the Weston Lakes monthly news bulletin. (Docket Entry No. 27 ¶ 29). Trustee Yates sent notice of the election in a pro-incorporation letter to all residents of Weston Lakes. (Id., ¶ 9(C)). Aldrich, on behalf of the Incorporation Committee, mailed Bowser Road residents within the proposed incorporated boundaries of the City of Weston Lakes a copy of the Order of Special Election. (Docket Entry No. 1, Ex. AA). Aldrich's cover letter stated as follows: The Election Order from the County judge regarding the incorporation of Weston Lakes is being sent to you for the purpose of informing you of the Weston Lakes Incorporation Election. The proposed boundaries of the City of Weston Lakes include the land that is to the West of Weston Lakes and to the East of Bowser Road to the Brazos River. All residents of the area to be incorporated who are registered voters are eligible to vote in the election. The impact on both residents and land owners is negligible. (Id.). Bowser Road residents also saw a large billboard sign on FM 1093 near their homes stating "Vote NO on May 10th." (Id., Exs. AA, N). The plaintiffs allege that the notices Fort Bend County posted were insufficient to satisfy the state statutory requirement that notice of a municipal election be "posted at three public places in the community for the 10 days preceding the date of election." TEX. LOCAL GVT. CODE § 7.003. The plaintiffs complain that the notice posted at the country club was not accessible to Bowser Road residents. (Docket Entry No. 27 ¶ 29). The plaintiffs allege that the notice at the Fulshear/Simonton Library was insufficient because the building was outside the community of Weston Lakes and because the notice itself was posted on a bulletin board "in the alcove of the restrooms." (Id. ¶ 58). The plaintiffs allege that the notice posted inside the Precinct 3 building was insufficient because the building was outside the community of Weston Lakes and was often locked to the public. (Id.). The plaintiffs allege that the notices at the Fort Bend County Rosenberg Annex and Courthouse

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Complex were too far away from the community that would be voting on incorporation. According to the plaintiffs, notice could have (and should have) been posted on two bulletin boards at the entrance and exit gates of Weston Lakes. (Docket Entry No. 6 at 18). The plaintiffs also object to the notice that Aldrich provided to the residents of east Bowser Road. Although the plaintiffs concede that each Bowser Road resident received a copy of the Order of Special Election from Aldrich, they assert that the notice was not sufficient because it was accompanied by a cover letter stating that the proposed incorporation would have a "negligible" effect on residents and landowners. (Docket Entry No. 1, Ex. AA). D. The Municipal Incorporation Special Election

Early voting for the incorporation measure was held on April 28 through May 3, 2008 and on May 5 and 6, 2008. Election day was May 10, 2008. There were two other initiatives to be voted on in the election: a Fort Bend County bond referendum, and an aldermen election for the City of Fulshear. (Id. ¶ 66). The official ballot for the incorporation issue was titled "Election for Incorporation of the Community of Weston Lakes." It sought a "for" or "against" vote on the proposition that "[t]he community of Weston Lakes shall incorporate as a Type B, General-Law Municipality under the Provisions of Chapter 7 of the Texas Local Government Code." (Docket Entry No. 1, Ex. H; Docket Entry No. 27 ¶ 32). The plaintiffs allege constitutional, federal statutory, and state statutory violations and irregularities in the conduct of the municipal incorporation election. 1. The Residency Requirement In accordance with Texas Local Government Code § 7.006, only residents within the boundaries of the proposed area of municipal incorporation were permitted to vote on the

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incorporation issue. Nonresident owners of property within the proposed area of municipal incorporation could not vote. Plaintiff Brian C. Kimmel and his wife own a house in Weston Lakes but resided in Kerville, Texas and leased the Weston Lakes home to another family. Kimmel complained that his lessees were able to vote on the referendum but he and his wife were not. Kimmel alleges that this was unfair because he, not the lessees, will pay any additional taxes on the property levied by the City of Weston Lakes. (Id. ¶ 37). Plaintiff James A. Winne, III owns 141.023 acres outside the community of Weston Lakes, only part of which was within the proposed area of municipal incorporation. Because Winne's actual residence was outside the boundaries of the proposed incorporation area, he was not permitted to vote in the election. (Id. ¶ 22 n.52). 2. Improper Electioneering

The plaintiffs allege improper electioneering by pro-incorporation citizens. According to the plaintiffs, during early voting, Aldrich, the WLPOA trustees, and members of the Incorporation Committee and Citizens' PAC "vigorously approach[ed] voters" within 100 feet of the poll at the Precinct 3 building "to urge and persuade [them] to vote "YES" for incorporation." (Id. ¶ 33). Plaintiff Cheryl M. Stalinsky submitted an affidavit stating that she was "accosted" by Herbert Yates, a WLPOA trustee, as she was walking toward Precinct 3 on April 30, 2008. Yates asked her how she was going to vote and Stalinsky replied that she told him she was going to vote "no." Stalinksy reported no difficulty in voting. Stalinsky asserted that her friend received similar treatment from Vern Flowers and another man on May 3, 2008. (Docket Entry No. 1, Ex. O). The plaintiffs have also submitted an affidavit from Diana Gordon Offord, the City Secretary of Fulshear, stating that she saw a member of the "Vote Yes" campaign "r[u]n toward a woman going into [the] Precinct 3 building" with "a piece of paper in hand." (Id., Ex. O-1). Another plaintiff, Willie Irvin,

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who lives on the eastern side of Bowser Road and owns four horses, was told by"Vote Yes" advocates at the polls that "they wanted to control the land around them so there would be no `chicken farm'" outside the community of Weston Lakes. (Id., Ex. N). The plaintiffs assert that election judge Vahlkamp "failed to adequately control, direct, and police" this electioneering. (Docket Entry No. 27 ¶¶ 9(G), (H)). 3. Failure to Offer Provisional Ballots

The plaintiffs also complain that "[o]n scores of occasions" during early voting, poll officials "failed to offer provisional ballots to voters whose name did not appear on the County's voter registry, but who did present adequate identification and proof that they resided in Weston Lakes." (Id. ¶ 9(I)). Some of the plaintiffs who were not offered a provisional ballot were properly listed on the precinct voter registry but were not on a subset list of voters eligible to participate in the municipal incorporation election. Other plaintiffs not offered a provisional ballot were not listed on the precinct voter registry, despite the fact that they had registered to vote. Other plaintiffs not offered a provisional ballot had not registered but could vote if they presented proof of current residence in the form of "Texas driver's license[s], MUD # 81 statements, [or] County tax bills." (Id. ¶ 34(A)). Still other plaintiffs were given a provisional ballot but were given incorrect information about the ballot. The plaintiffs offer the following specific examples: a. Persons Properly in the Voter Registry But Not On the List of Eligible Voters

Plaintiff James Ritter alleges that he presented a voter registration card on May 10, 2008 indicating his eligibility to vote in the municipal incorporation election. He was given a voting machine access code that permitted him to vote on the Fort Bend County bond issue but not the

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incorporation issue. After voting, Ritter and the election officials determined that his name had erroneously been omitted from the list of voters eligible to vote on the municipal incorporation issue because the name of his street was misspelled on the official election map. According to Ritter, the election officials told him that he had "already cast [his] ballot and there was nothing they could do." He was not offered a provisional ballot. (Docket Entry No. 1, Ex. I-3). Ritter's wife, Jeanell Ritter, had a similar problem later that day. As she was exiting the polls, however, a man from the "Vote Yes" table learned of her problem and instructed the election official to "give [her] a provisional ballot." Ritter voted by provisional ballot. (Id., Ex. K). Plaintiff Jessie Fay Oliver, a resident of east Bowser Road, was also given an access code during early voting that allowed her to vote on the Fort Bend County bond issue but not the municipal incorporation issue. When Oliver asked why, the election official replied that "he did not understand why [she] could not vote either." The plaintiffs allege that "Gracie" from Fort Bend's Election Administration called Oliver several days later and said that she could come to the Election Administration building to vote on the Weston Lakes incorporation issue. Oliver went and voted by provisional ballot. (Id., Ex. J). The plaintiffs contend that Oliver, an African-American woman, was given "preferential treatment because they were fearful of a racial component if [she] pursued her complaint." (Docket Entry No 27 ¶ 34(A) n.64).8 Laura G. Gonzales, an east Bowser Road

Texas and Fort Bend County have submitted an affidavit by Robin Heiman, Interim Director of Elections Administrations for Fort Bend County. Heiman explained that on May 1, 2008, the Election Office discovered that residents east of Bowser Road but outside the Weston Lakes community had inadvertently been excluded from the county's list of persons eligible to vote on the incorporation issue. The Office investigated and learned from the voting records that only one person in the affected area, Jessie Fay Oliver, had already voted. Oliver was invited to vote on the incorporation issue. Heiman stated that the problem was corrected after May 1, 2008. (Docket Entry No. 14, Ex. 2).

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resident, was permitted to vote on the incorporation proposal on May 5, 2008 without issue. (Docket Entry No. 1, Ex. A-1). b. Persons Who Properly Registered But Were Not in the Registry

Plaintiff Eric Jones changed his voter registration online in late 2007 when he updated his driver's license to show his Weston Lakes address. When he went to vote on April 29, 2008, he had not yet received an updated voter registration card and was not included on the voter registry for his current address. Jones alleges that he presented his driver's license with his Weston Lakes address but was given an access code that permitted him to vote on the Fort Bend bond issue but not on the municipal incorporation issue. Jones was not offered a provisional ballot. He alleges that he was told that he was told that "the only thing [he] could do was to complete a change of address voter registration." (Id., Ex. I-1). James L. Fields, who moved to Weston Lakes in March 2006, had not been able to vote in an earlier election, in November 2007, because his name was not on the voter registry of Weston Lakes residents. Fields filled out an application for change of voter registration in November 2007, but never received a new voter registration card. On May 10, 2008, Fields was unable to vote on the incorporation issue and was not offered a provisional ballot. (Docket Entry No. 7, Ex. P-1). c. Persons Not Registered But With Other Forms of Identification

Plaintiffs David and Shellie Broyles moved to Weston Lakes on January 27, 2008. At the time of the election, they had not yet updated their driver's licenses or voter registration cards. They brought their MUD # 81 bill to prove that they were Weston Lakes residents. At the polls, they were told that they were eligible to vote on the Fort Bend County bond issue but not on the incorporation issue. They were not offered provisional ballots. (Docket Entry No. 1, Ex. I).

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Plaintiff Lisa Theut did not recall whether she had applied for an updated voter registration card by the time of the municipal incorporation election but states that the address on her driver's license showed that she was eligible to vote on the municipal incorporation issue. At early voting, Theut was told that she was eligible to vote on the Fort Bend County bond issue but not on the municipal incorporation issue. According to Theut, the election judge, Vahlkamp, said "[o]h look, another young voter." The plaintiffs assert that "[the implication [w]as that the young residents voted NO and the senior-citizen-resident[s] voted YES because by Texas law[,] their school tax rate does not rise after age 65." (Docket Entry No. 27 ¶ 34(C)). Theut filled out a change of registration card at the polls but was not offered a provisional ballot to vote on the municipal incorporation issue. (Docket Entry No. 1, Ex. L). Theut's husband, Scott Theut, had a similar experience at early voting several days later. (Id.). d. Persons Given Provisional Ballots But Provided Misinformation

Plaintiff Stacey Jones, Eric Jones's wife, alleges that she had not received her new voter registration card in time for the election and was told when she went to vote on May 10, 2008, that she was not allowed to vote on the incorporation issue. Jones "told [the official] my husband told me to ask for a provisional ballot." Jones was permitted to vote by provisional ballot but was told that her "vote w[ould] only be counted if there [was] a tie." (Id., Ex. I-2). Plaintiff Brian Koons alleges that he had applied for an updated voter registration card but had not received it in time for the election. On May 10, 2008, he was told that he was not on the list of eligible voters and that he not could vote on the municipal incorporation issue. Koons asked for and received a provisional ballot, although "[t]he election secretary appeared annoyed and said . . . she did not think it would count." (Id., Ex. M).

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4.

Delays Caused By Election Staff

The plaintiffs allege that every time election judge Vahlkamp had a voter problem, he would telephone the County Elections Office in Rosenberg for instruction. The plaintiffs allege that these conversations were "lengthy" and caused long lines and assert that there should have been more election workers. The plaintiffs assert that some voters probably "departed without voting[ ] because of time limitations and restraints." (Docket Entry No. 27 ¶ 66). The plaintiffs offer no specific examples of voters who wanted to vote but could not wait and concede that they "have no evidence[ ] at this time" that this problem was "fatal." (Id.). 5. Misinformation Provided by Fort Bend County

The plaintiffs allege that Fort Bend County contributed to the voting irregularities and confusion. Plaintiff Koons called County Judge Hebert's office on May 1, 2008 to ask whether the voter registry showed that he was eligible to vote in the municipal incorporation election. Judge Hebert's secretary told Koons that he was not on the list and that it was too late to update his registration. Koons complained that he had changed his registration when he changed his driver's license in 2005, but the secretary replied that "they [we]re not connected to the DPS." The secretary never mentioned the provisional ballot option. Koons learned about the possibility of provisional voting from a neighbor. (Docket Entry No. 1, Ex. M). Plaintiff Willie Irvin, an east Bowser Road resident, complains that "Gracie" at the Fort Bend County Election Office erroneously told him that he could not vote because only residents of the community of Weston Lakes could vote on the municipal incorporation issue. Irvin did not go to the polls but asked his sister-in-law, an election worker, to check whether he was on the list of voters eligible to vote and was told he was not. Lofton told him he was not on the list. (Id., Ex. N). Plaintiff Michael Cooper, a resident of Bowser

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Road, called the Fort Bend County Commissioner on an unspecified date and called County Judge Hebert's office on Friday, May 9, 2008, to ask whether he was eligible to vote in the election. Cooper did not receive a return call until Monday, May 12, 2008, after the polls closed. He was told that he was eligible to vote. (Id., Ex. N-1). After the election, David Broyles called the County Judge's office and spoke with the Director of Administrative Services for Fort Bend County, J.C. Whitten. Whitten allegedly stated that "they received many phone calls in his office from the residents of Weston Lakes who were deprived of being able to vote." Whitten promised to speak with Judge Hebert, but never called back. (Id., Ex. I). 6. Inadequate Training by Fort Bend County

The plaintiffs allege that the improper refusal to provide provisional ballots, delays at the polls, and misinformation from the County resulted from failures by the State of Texas and Fort Bend County "to properly select, hire and train its poll officials to treat all voters[ ] competently, fairly, and equally." (Docket Entry No. 27 ¶ 9(I)). The plaintiffs allege that the training and instruction of election officials was "casual and informal," taking "only one hour to cover the extensive and complex Election Code[ ] and its rules, regulations, practices and procedures." 7. Inadequate Voter Registration Services by the State of Texas

The plaintiffs also allege that the voter registries generated by the State of Texas were inaccurate or outdated and that the State failed to issue updated voter registration cards in a timely fashion. (Docket Entry No. 27 ¶¶ 48­51, 68). Plaintiffs David and Shellie Broyles allege that after they went to the polls with a driver's license showing their old address, they completed change of registration cards but "have never received new voter registration cards." David Broyles later changed his driver's license online and changed his voter registration at the same time but never

20

received a new registration card. (Docket Entry No. 1, Ex. I). Plaintiff Eric Jones alleges that he changed his driver's license and updated his voter registration on the DPS website in "the latter part of 2007" but did not receive a new voter registration card before the incorporation vote. (Id., Ex. I-1). Plaintiff Brian Koons states that he requested an updated voter registration card when he applied for an updated driver's license after moving to Weston Lakes in March 2005 but never received a new voter registration card. (Id., Ex. M). E. The Results of the Municipal Incorporation Special Election

There were 1,472 eligible voters for the incorporation issue. Over two-thirds voted in the election. The final vote tally was 569 for incorporation and 408 against. The early voting result was 402 for incorporation and 163 against. The election day voting result was 149 for incorporation and 163 against. (Docket Entry No. 7, Ex. Q; No. 14, Ex. 3 at 4). County Judge Hebert certified the results and ordered incorporation on May 20, 2008 over the filed objections of David and Shellie Broyles, Ted and Patti Howden, Jo and Craig Gebbert, James and Suzanne McKean, Debra and Jerry Mosbacher, and Charles Sheffield. (Docket Entry No. 14, Ex. 3-H, 3-I). Minutes from the May 20, 2008 meeting of the Fort Bend County Commissioners state: Judge Herbert read a statement that a valid petition of registered voters within the proposed incorporated area was submitted to the County Judge's office. By law the County Judge is required to order an election. The election was held according to procedures outlined in the statute. The election for incorporation passed by a 58% margin. 74.3% of eligible voters voted in that election. Canvassing the votes and validating the tabulations of the returns as required under the statute is between 8 and 11 days following the election. Within 20 days after the County Judge receives the returns, if a majority of the votes cast are for incorporation, the Judge shall make entry in the records of the Commissioner Court that the community is incorporated. This is purely administrative in nature. If there are complaints to be made by any citizen as to the manor [sic] in which the election was held, that claim is properly made in the courts of the

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State of Texas and not before Commissioners Court. The authority here, under law, is merely to record the actions of the voters in a legally held election. Therefore this court has no choice but to enter into the records of the Commissioners Court the Order of Incorporation. If Commissioners Court receives a court order in the future in an election contest, from a Court of Jurisdiction, this Commissioners Court will certainly comply with that court order. (Id., Ex. 3-B ¶ 19). II. The Plaintiffs' Allegations On July 25, 2008, the plaintiffs filed suit in this court seeking a declaratory judgment that Texas Local Government Code § 7.006 was unconstitutional, "equitable relief" voiding or enjoining the results of the election, and injunctive relief and and money damages under 42 U.S.C. § 1983 against Texas, Fort Bend County, the WLPOA, the Incorporation Committee, the Citizens' PAC, the individual trustees of the WLPOA, and Aldrich. (Docket Entry No. 27 ¶ 6). The plaintiffs state that their challenge to the municipal incorporation election is premised on infirmities in the process rather than on any objection to the substantive result. The plaintiffs do not state whether or not they voted (or would have voted) for incorporation. The plaintiffs' First Amended Complaint contains the following counts: In the first count, the plaintiffs seek a declaratory judgment that Texas Local Government Code § 7.006, which permits only "qualified voter[s] who reside within the boundaries of the proposed municipality" to vote in municipal incorporation elections, violates the Equal Protection Clause in the Fourteenth Amendment, the Due Process Clause, the Privileges and Immunities Clause in Article IV, Section 2, and the Privileges or Immunities Clause in the Fourteenth Amendment because it does not permit non-resident land owners to vote. The plaintiffs contend that Texas lacks a "compelling interest" for "disenfranchising non-resident landlowners from voting on the one-

22

occasion, one-issue, special, specific, and dedicated incorporation referendum." The Plaintiffs Residing Outside Weston Lakes also seek class action treatment on this count. In the second count, the plaintiffs allege that the State of Texas and Fort Bend County violated the National Voter Registration Act ("NVRA"), 42 U.S.C. § 1973gg et seq., and the Help America Vote Act ("HAVA"), 42 U.S.C. § 15302 et seq. The plaintiffs complain that some Weston Lakes residents who had changed the address on their drivers' licenses before the municipal incorporation vote had not received new voter registration cards or were not reflected in the Weston Lakes voter registry, in violation of the NVRA, § 1973gg-3. The plaintiffs also allege that voters who told election officials that they were eligible to vote were not offered provisional ballots, as § 15482 of the HAVA requires. Texas has moved to dismiss the NVRA claim. In the third count, the plaintiffs bring a § 1983 claim against Fort Bend County and its officers, asserting that "fatal errors" at the polls violated their civil rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Privileges and Immunities Clause in Article IV, section 2 and the Privileges or Immunities Clause in the Fourteenth Amendment. The plaintiffs also assert claims under the following federal civil rights statutes: 42 U.S.C. §§ 1971(a)(2)(A), (B), 1985(3), and 1986. The plaintiffs also allege that some of these "fatal errors" violated Texas election law. The alleged "fatal errors" are as follows: · Fort Bend County and County Judge Hebert violated Texas Local Government Code § 5.904 by referring to the "`Community' of Weston Lakes" in the Order for Special Election and on the official ballot. The plaintiffs argue that under § 5.904, "a [Type-B] municipality shall use the term . . . `city,' `town,' or `village.'" (Docket Entry No. 27 ¶ 57). The plaintiffs argue that this makes the election voidable.

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·

The County violated § 7.005 of the Local Government Code because, although the statute required that notice of an incorporation election be "posted at three public places in the community for the 10 days preceding the date of the election," two of the three required notices were placed outside the Weston Lakes community and one was inside the Precinct 3 building in Fulshear, "which is usually locked and not open to the general public," and the other "inside the Fulshear-Simonton Library." The plaintiffs also cite a failure to provide "procedural due process" notice to the Bowser Road residents. (Id. ¶ 58).

·

Fort Bend County poll officials failed to offer a provisional ballot to voters who could produce adequate proof of residence, in violation of the NVRA, the HAVA, and Texas Election Code § 63.001.

·

Fort Bend County failed to prevent electioneering within 100 feet of the polls, in violation of Texas Election Code § 61.003.

·

The appointment of Robert French and Alfred Vahlkamp as election judges for the municipal incorporation vote was improper because according to the plaintiffs, these were "political friends and supporters" of County officials, they both resided in Weston Lakes and favored incorporation, they were members of a pro-incorporation senior citizens' group, they were friends with Aldrich and other Incorporation Committee and Citizens' PAC members, and they took biased actions "with the objective of having Weston Lakes incorporated as a city irrespective of the voting rights of those residents who were opposed to incorporation." (Id. ¶ 59). The plaintiffs charge that Fort Bend County "inadequately selected, instructed, and trained its election officials," providing only one hour of "casual and informal" training on the "extensive and complex Election Code, and its rules, regulations, practices and

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procedures," (id. ¶ 61), and failed to provide sufficient staff for the polls, (id. ¶ 66). The plaintiffs allege that as a result of inadequate training and oversight, Vahlkamp was able to pursue "his illegal practice" of denying certain voters provisional ballots, (id. ¶ 64), and proincorporation voters were able to engage in electioneering within 100 feet of the polls, (id. ¶ 65). The plaintiffs assert that poll officials refused to offer certain eligible voters

provisional ballots while offering provisional ballots to others. (Id. ¶ 62). The fifth count also seeks relief under 42 U.S.C. § 1983. It alleges a conspiracy by WLPOA, the Incorporation Committee, the Citizens' PAC, the individual WLPOA trustees, and Aldrich acting "under color of State law" to "take all actions and/or non-actions with the predetermined and prejudged objective of incorporating Weston Lakes as a municipal city." The plaintiffs assert that "statements, disinformation, half-truths, misstatements, conduct, actions, and non-actions" violated 42 U.S.C. §§ 1985(3) and 1986. (Id. ¶ 87­88). The Incorporation Committee and Aldrich have moved to dismiss this count. In the fourth count, the plaintiffs plead a state-law shareholders' derivative action on behalf of the WLPOA. The plaintiffs allege that the WLPOA trustees "created and funded" the

Incorporation Committee "with the predetermined and prejudged conclusion and objective that Weston Lakes should become a municipality" and engaged in improper pro-incorporation activity, including: raising and contributing funds; secretly gathering signatures for the application; providing Weston Lakes community names and addresses to the Citizens' PAC; pressuring residents to place "YES" signs on the front lawns; and electioneering within 100 feet of the polls. (Id. ¶ 75). The plaintiffs allege that the trustees' activities violated Texas Election Code § 253.132 because they caused the WLPOA to "make[ ] campaign contributions" and to "aid[ ] and assist[ ] in a political

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campaign." According to the plaintiffs, the trustees acted in their official capacities because "[t]rustees cannot separate and set aside their fiduciary duties when they are conducting Weston Lakes' affairs. Whatever the [t]rustees do and say about the affairs in Weston Lakes is done or said as a [t]rustee. . . . [They are] clothed in the indicia of title and authority." (Id. ¶ 78). II. The Applicable Standards A. Declaratory Judgment

The Federal Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides that "[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201(a). The Declaratory Judgment Act "is an enabling act, which confers discretion on the courts rather than an absolute right on a litigant." Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952)). "The Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants." Wilton, 515 U.S. at 286. "In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration." Id. at 288. Although the permissive "may" in § 2201(a) gives the district court broader discretion to decline to hear a declaratory judgment action than it has in other kinds of actions, the district court's discretion is not wholly unfettered. See Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 390 (5th Cir. 2001); St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590 (5th Cir. 1994); Travelers Ins. Co. v. La. Farm Bureau Fed'n, Inc., 996 F.2d 774, 778 (5th Cir. 1993). In deciding whether to retain or dismiss a federal declaratory judgment action, a district court "must determine: (1) whether the

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declaratory action is justiciable; (2) whether the court has the authority to grant declaratory relief; and (3) whether to exercise its discretion to decide or dismiss the action." Sherwin-Williams Co. v. Holmes County, 343 F.3d 383, 387 (5th Cir. 2003) (citing Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000)). B. Injunctive Relief

An injunction is an extraordinary equitable remedy. A preliminary injunction may be granted only if the plaintiff establishes four elements: (1) a substantial likelihood of success on the merits, (2) a substantial threat that plaintiffs will suffer irreparable harm if the injunction is not granted, (3) that the threatened injury outweighs any damage that the injunction might cause the defendant, and (4) that the injunction will not disserve the public interest. Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). "A preliminary injunction is an `extraordinary remedy' and should only be granted if the plaintiffs have clearly carried the burden of persuasion on all four requirements." Id.; see also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968)). An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204 (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex.App.­Dallas 1989, no writ)). C. 42 U.S.C. § 1983

42 U.S.C. § 1983 is the vehicle through which individuals may raise federal constitutional and statutory challenges to the conduct of a state or local election. Kozuszek v. Brewer, 546 F.3d 485, 489­90 (7th Cir. 2008). Section 1983 provides a civil remedy for violations, under color of

27

state law, of a person's rights, privileges, or immunities arising under federal law. Bledsoe v. City of Horn Lake, Mississippi, 449 F.3d 650, 653 (5th Cir. 2006). A plaintiff can establish a prima facie case under § 1983 by alleging: 1) a violation of a federal constitutional or statutory right; and 2) that the violation was committed by an individual acting under the color of state law or municipal law. Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995). The statute creates no substantive right, but only provides remedies for deprivations of rights created under federal law. Graham v. Connor, 490 U.S. 386, 393­94 (1989). The statute provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. Holding a government official acting his official capacity liable under § 1983 requires a finding of state or municipal custom or policy. Lee v. Morial, No. 01-30875, 2002 WL 971519, at *4 (5th Cir. Apr. 26, 2002); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). "The official policy or custom must inflict the plaintiff's injury." Lee, 2002 WL 971519, at *4; Monell, 436 U.S. at 694. "To show an unconstitutional policy or custom, the plaintiff must (1) identify the policy or custom, (2) connect the policy or custom with the government entity, and (3) show that the policy caused the plaintiff's particular injury." Lee, 2002 WL 971519, at *4; Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). Only prospective injunctive relief is available against states or state employees in their official capacities. Sossamon v. Lone Star State of Texas, --- F.3d ---, 2009 WL 382260, at *11 n.74 (5th Cir. 2009). Damages and injunctive relief are

28

available against municipalities and municipal officials in their official capacities. Fraire v. City of Arlington, 957 F.2d 1269, 1277 (5th Cir. 1992). A plaintiff states a § 1983 claim against a governmental official in his individual capacity by "alleg[ing] specific conduct giving rise to a constitutional violation." Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). For a private citizen to be held liable under § 1983, the plaintiff must allege that the citizen conspired with or acted in concert with state or municipal actors. Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004); Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989). Allegations of conspiracy "that are merely conclusory, without reference to specific facts, will not suffice." Priester, 354 F.3d at 420. D. Rule 12(b)(6)

Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Twombly abrogated the Supreme Court's prior decision in Conley v. Gibson, 355 U.S. 41, 45­46 (1957), which held that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 127 S.Ct. at 1969 ( "Conley's `no set of facts' language . . . is best forgotten as an incomplete, negative gloss on an accepted pleading standard . . . ."). To withstand a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 1974; see also

29

Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974). A "complaint must allege `more than labels and conclusions,'" and "`a formulaic recitation of the elements of a cause of action will not do.'" Norris v. Hearst Trust, 500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965). "`Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests.'" Dark v. Potter, 293 F. App'x 254, 258 (5th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965 n.3). "To survive a Rule 12(b)(6) motion to dismiss, a complaint `does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true `raise a right to relief above the speculative level.'" Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1964­65); see also In re S. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965). "Conversely, `when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.'" Cuvillier, 503 F.3d at 401 (quoting Twombly, 127 S.Ct. at 1966). Although material allegations in the complaint must be accepted as true and construed in the light most favorable to the nonmoving party, a court is not required to accept conclusory legal allegations cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. See Elsensohn, 530 F.3d at 371­72.

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When considering a motion to dismiss under Rule 12(b)(6), "a district court must limit itself to the contents of the pleadings, including attachments thereto." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498­99 (5th Cir. 2000). The court may consider documents attached to the complaint without converting the motion to one for summary judgment. Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004); see also A2D Techs. Inc. v. MJ Sys., Inc., 269 F. App'x 537, 541 (5th Cir. 2008) ("[A]lthough we typically may not consider materials or documents outside of the complaint in addressing a motion to dismiss, we may consider documents attached to the complaint."). "Even if a party does not make a formal motion under Rule 12(b)(6), the district judge on his or her own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair to the parties." 5B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE­CIVIL § 1357 (3d ed. 2004). Such dismissal is appropriate if the plaintiff has notice of the possibility of a ruling on the merits or if the plaintiff has had the opportunity to allege its "best case." Lozano v. Ocwen Fed. Bank, 489 F.3d 636, 642 (5th Cir. 2007); Barzorowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir. 1991); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). Notice is adequate if the plaintiff is aware that the defendant has challenged the sufficiency of the claims in a context outside a formal motion under Rule 12(b)(6). See First Gibraltar Bank, FSB v. Smith, 62 F.3d 133, 135 (5th Cir. 1995). Rule 15(a) of the Federal Rules of Civil Procedure permits a plaintiff to amend his pleading "once as a matter of course" before a responsive pleading, if allowed, is filed. FED. R. CIV. P. 15(a)(1). Thereafter, the Rule does not permit pretrial amendments without the written consent of

31

the opposing party or the court's leave. FED. R. CIV. P. 15(a)(2). The Rule provides that a "court should freely give leave when justice so requires," but approval is not automatic. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). The decision to grant or deny leave to amend is within the sound discretion of the trial court and "denial of leave to amend may be required when allowing an amendment would cause undue prejudice to the opposing party." Underwriters at Interest on Cover Note JHB92M10582079 v. Neutrinos, 79 F.3d 480, 484 (5th Cir. 1996). A court is instructed to consider the following five factors in deciding whether to grant leave to amend a complaint: "(1) undue delay, (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies by previous amendments, (4) undue prejudice to the opposing party, and (5) futility of the amendment." Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citing Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)). A plaintiff should be denied leave to amend a complaint if the court determines that "the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face." 6 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1487 (2d ed.1990); see also Ayers v. Johnson, 247 F. App'x 534, 535 (5th Cir. 2007) ("`[A] district court acts within its discretion when dismissing a motion to amend that is frivolous or futile.'") (quoting Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999)); see also Great Plains Trust Co., 313 F.3d at 329. III. Analysis A. The Constitutionality of the Residency Requirement in Texas Local Government Code § 7.006 1. Equal Protection

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The plaintiffs seek a declaratory judgment that Texas Local Government Code § 7.006 is unconstitutional because it permits only "qualified voter[s] who reside within the boundaries of the proposed municipality" to vote on incorporation, to the exclusion of nonresidents who own property within the boundaries of the proposed municipality.9 The plaintiffs seek to enjoin the election results based on this purported unconstitutionality. The Plaintiffs Residing Outside Weston Lakes also seek class action treatment on this claim. The plaintiffs assert that strict scrutiny applies to the exclusion of nonresident property owners, and that even under rational basis review, § 7.006 is unconstitutional. Fort Bend County, the Incorporation Committee, and Aldrich have moved to dismiss, arguing that rational basis review applies, and that the cases show that a government unit may legitimately restrict the right to participate in its political processes to residents. The case law makes