Restraining Order Extended In City Benefits Lawsuit; Case Moved To Federal Court

The City of El Paso has moved the lawsuit titledRonald G. Martin, Jr., et. al. vs. The City of El Paso, Texas; Cause No. 2010-4936, from the State Court to Federal Court.

U.S. District Court Judge Frank Montalvo has extended the Temporary Restraining Order (TRO) from December 29, 2010 to January 13, 2011 at 9:00 a.m., when a preliminary injunction hearing is scheduled to take place.

Due to the TRO, the City of El Paso has advised those employees/retirees who previously received letters cancelling their coverage because of the ordinance that they will not see a benefit change at this time. The City will continue to keep them informed concerning this litigation and what impact it has on their benefits.

At El Paso City Council’s meeting this past Tuesday, City Council skipped a compromise in the battle for benefits of domestic partners, because of a judge’s restraining order, paving the way for the lawsuit against the city by some slated to lose their health insurance.

The compromise, proposed by City Representative Rachel Quintana would apply the voter-approved initiative only to new employees. Under the proposal, the 19 domestic partners the initiative targeted would keep their health benefits, and so would the hundreds of other unintended people who were at risk of losing their coverage because of the vague language of the ordinance.

The ordinance, put on the November ballot by a local religious group was meant to strip away the health insurance of gay and unwed partners of city employees. City Council has opposed the movement, started by local ministers because they say it’s discriminatory.

The mostly evangelical group believes homosexuality is a sin, can be cured and they have said they don’t want tax-payer money funding the health insurance of those in these domestic partnerships and sinful relationships.

El Pasoans For Traditional Family Values, was also against Tuesday’s potential compromise because they want, and argue that El Pasoans voted for the health insurance of current domestic partners’ to be taken away.

Some municipal judges, a retired police officer who is now working for the County, a city employee and her domestic partner, and the president of the Police Association are all suing the city. They’re being represented by the attorney for the Police Association, Jim Jopling, though the suit is an individual one, not brought on by the actual Police Association.

If Council would have passed the compromise on Tuesday, it would have potentially halted the lawsuit because those suing would have their health insurance restored, said Representative Beto O’Rourke.

City Representative Steve Ortega said the City Attorney did not advise them of the possibility to stop the lawsuit. City attorneys told city representatives on Tuesday that based on their interpretation of the Judge’s restraining order, City Council was forbidden from making any decision on the benefits issue.

In an unusual stance, Mayor John Cook is glad the city is being sued.

“I am welcoming this… I want this thing settled in a court of law, to see if the ordinance is constitutional and should it be enforced by the city,” he said.

City Representative Beto O’Rourke said that many in council favored the issue being resolved in court. If a judge rules in favor of the plaintiffs, then the entire voter-approved initiative could be thrown out, and no one would be at risk of losing their health insurance.

Sonia Brown, the wife of one of the pastors who organized the initiative, showed her disdain for city council’s willingness to get sued at City Council’s meeting on Tuesday.

“I’m shocked. we have a mayor who welcomes the lawsuit. Are there any others in council who agree with the mayor and having the taxpayers pay to defend their own rights…I do have a concern that the council will try to sabotage the people’s ordinance”, she said.

Tom Brown, one of the pastors who helped organize the petition on Tuesday asked city attorneys to consult him when defending the ordinance against the lawsuit. He said he was concerned the city attorneys would not properly defend the initiative, given the city council’s vocal stance against taking away the health insurance of domestic partners.

“On behalf of the citizens, and the people of El Paso, (the best solution) is that he would consult with me in defending the people’s ordinance. I think it’s a conflict of interest to consult with the city council when they are actually opposed to the ordinance,” Brown said.

The attorney suing the city, Jim Jopling said on Tuesday that he’s sure the city attorneys are aggressively defending the ordinance, despite council’s opposition to it.

“Anyone who suggested there is a conflict, is just being paranoid. They’re working very hard to defeat me in court and today’s action to take this to federal court is a sign of that”, he said. The city requested to have the case heard in federal court, a legal move since the case is based on the constitutionality of the measure.

Jopling also said that if Brown has evidence that can stand in a court of law that proves the city attorneys are swayed by city council’s opposition to the ordinance, he should seek counsel.

“The city attorney’s office represents the city, they don’t represent Tom Brown, I think Tom Brown should get his own attorney, which is what he should have done in the first place.”

Brown’s group, El Pasoans For Traditional Family Values, did not hire an attorney to draft their vaguely worded ordinance, which is now affecting hundreds of unintended people. Mayor John Cook and City Representative Steve Ortega have said they warned Brown’s group to hire an attorney to help them draft the language.

Meanwhile, El Paso for Equality (EPFE), a group formed by those in opposition of the ordinance, are inching closer to obtaining the 1,548 signatures of registered voters required to try to convince city council to add a non-discrimination clause to the city charter, or getting it on the May ballot. Their clause would void the voter-approved initiative.

Only the City Council, not citizen referendums, can alter the city charter, so ultimately, the decision would be left up to the City Representatives.

EPFE organizer and attorney Lyda Ness-Garcia said Brown’s request to be a consultant for the city when it came time to defend the lawsuit bothered her. “He’s not a lawyer, he can’t practice law, and it’s actually illegal for him to practice law so if mr brown wants to continue entering the law arena, then he needs to go out and get a law degree.” she said.

El Paso For Equality’s undertaking is an ambitious one, considering their time constraints , but the group has had a strong support from the community. To put a citizens referendum on the May ballot, petitioners need to gather the more than 15-hundred signatures of registered city voters. The city clerk would then take 30 working days to verify those signatures. After that, the citizens’ proposal goes to city council – where it runs the risk of being rejected. If rejected, petitioners would have to get another 15-hundred signatures. All of that needs to be done by February.

Ness-Garcia, on Tuesday said her group had gathered about 2-thousand signatures, so that they’ll have more than enough in case some can’t be authenticated by the city clerk.

Brown, who has been the most vocal pastor who mobilized the movement to take away the health insurance of gay and unmarried partners of city employees, has another solution: to change the ordinance so that it reads “no one would lose benefits except unmarried domestic partners”, Brown said.

City council has been unwilling to do that.

“What would be terrible is to start to carve out certain groups and leave for example the gay and lesbian partners of city employees to fend for themselves, who’ve been receiving city employees for the last year who we don’t know what their pre-existing conditions…this way we’re all in the same boat”, Representative Beto O’Rourke said earlier this month in a city council meeting.

There is yet another solution. City Council is still considering bringing the issue to the voters again in May. This time though, it would be the city’s attorneys who would draft the ordinance, so that it would be clear that it was meant to take away the health insurance of gay and unwed partners of city employees.

All of these options depend on the outcome of the current lawsuit.

The ordinance put on the ballot in November by the religious group gave the voters a choice to endorse ‘traditional family values’ by having the city only provide health benefits for ‘city employees, their legal spouses and dependent children’.

Representatives from El Paso for Equality said that people have constantly reported to them that they meant to vote for the benefits, when they actually voted against them. “These are intelligent people, i have PHDs, graduate students, who say ‘I read it three times and I’m not sure I voted the right way”, said Ness-Garcia. Brown maintains his groups purpose was clear from the beginning.

City Council initially voted to extend the benefits to domestic partners in August 2009. 19 employees signed up for those benefits, at a cost to the city of about $28,000 as of this fall. To put the citizens referendum started by the religious group on the ballot, the city had to pay $130,000.