Hinga Mbogo, Hinga's Automotive Co., and 3516 Ross Avenue, Dallas, Texas v. City of Dallas, and Michael S. Rawlings, in His Official Capacity as Mayor of the City of Dallas, Texas ( 2018 )

ACCEPTED
05-17-00879-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/27/2018 8:32 AM
LISA MATZ
CLERK
No. 05-17-00879-CV
In the Court of Appeals 5th COURT FILED IN
OF APPEALS
for the Fifth District of Texas3/27/2018 8:32:02 AM
DALLAS, TEXAS
LISA MATZ
Clerk
HINGA MBOGO, HINGA AUTOMOTIVE CO., d/b/a HINGA AUTO REPAIR,
and 3516 ROSS AVENUE, DALLAS, TEXAS, in rem,
Appellants,
v.
CITY OF DALLAS, et al.,
Appellees.
PRAECIPE TO OPENING BRIEF OF APPELLANTS
In their initial brief, Appellants mistakenly cite to the dissent in City of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 823 (1984). See Appellants’ Br.
30-31. Although that citation is to the dissent in that case, the principle for which
it was cited—that aesthetics is not a compelling government interest—has been
routinely recognized by courts across the country, as is indicated in Appellants’
brief.
We have corrected pages 30 and 31 of the Opening Brief, and hereby attach
them as Attachment A to this praecipe and request that the Clerk of the Court
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replace pages 30 and 31 of the Opening Brief of Appellants, filed on August 28,
2017, with the attached pages.
RESPECTFULLY SUBMITTED this 27th day of March, 2018.
By: /s/Arif Panju
Arif Panju (TX Bar No. 24070380) Robert Gall (TX Bar No. 24101009)
INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE
816 Congress Ave. Suite 960 816 Congress Ave., Suite 960
Austin, TX 78701 Austin, TX 78701
Tel: (512) 480-5936 Tel: (512) 480-5936
Fax: (512) 480-5937 Fax: (512) 480-5937
Email: apanju@ij.org Email: bgall@ij.org
William R. Maurer Ari Bargil
(WA Bar No. 25451)* (FL Bar No. 71454)*
INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE
600 University Street, Suite 1730 2 South Biscayne Blvd., Suite 3180
Seattle, WA 98101 Miami, FL 33131
Tel: (206) 957-1300 Tel: (305) 721-1600
Fax: (206) 957-1301 Fax: (305) 721-1601
Email: wmaurer@ij.org Email: abargil@ij.org
*Admitted Pro Hac Vice
Counsel for Appellants
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 27, 2018, a true and correct copy of
the foregoing PRAECIPE TO OPENING BRIEF OF APPELLANTS was filed with the
Clerk of Court and served in compliance with Tex. R. App. P. 9.5(b)(1) via
the courts electronic filing manager on the following counsel of record:
AMY I. MESSER
Texas State Bar No. 00790705
BARBARA ROSENBERG
Texas State Bar No. 17267700
MELISSA A. MILES
Texas State Bar No. 90001277
KRISTEN MONKHOUSE
Texas State Bar No. 24092853
7DN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone: 214-670-3519
Fax: 214-670-0622
Email: amy.messer@dallascityhall.com;
barbara.rosenberg@dallascityhall.com; melissa.miles@dallascityhall.com;
kristen.monkhouse@dallascityhall.com
Counsel for Appellees
/s/ Arif Panju .
Arif Panju (TX Bar No. 24070380)
INSTITUTE FOR JUSTICE
Counsel for Appellants
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ATTACHMENT A
a. The Nature of the Public Interest
In Robinson, the Texas Supreme Court held that the government’s interest in
a retroactive law is “evidenced by the Legislature’s factual findings.” Id.at 145.
The City made no factual findings in the original ordinance that made auto-related
uses illegal in 2005. The ordinance that the City alleges Hinga violated, Ordinance
No. 29099, does contain “factual findings,” but these findings only pertain to the
fact that the City gave notice and held hearings on the ordinance. Thus, there are
no factual findings that discuss the City’s interest here. This alone is sufficient to
reverse the district court here.
Nonetheless, one Texas appellate court has held that, regardless of
Robinson’s holding, it is appropriate to examine the government’s fact finding to
determine whether the government possesses a compelling interest in a retroactive
law. Tex. Educ. Agency v. American YouthWorks, Inc., 496 S.W.3d 244, 264 n. 111
(Tex. App.—Austin 2016, pet. filed) (stating that legislative history and other
additional facts may be considered in determining whether the government has a
compelling interest). What legislative history does exist regarding these ordinances
undisputedly demonstrates that the City drove auto related businesses from Ross
Avenue to create “urban character” and “upgrade the aesthetic quality of the area”
through redevelopment. Promoting aesthetics or physical appearance is not a
compelling governmental interest. Neighborhood Enters., Inc. v. City of St. Louis,
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644 F.3d 728, 738 (8th Cir. 2011); Solantic, LLC v. City of Neptune Beach, 410
F.3d 1250, 1267 (11th Cir. 2005); XXL of Ohio, Inc. v. City of Broadview Heights,
341 F. Supp. 2d 765, 789-90 (N.D. Ohio 2004); Whitton v. City of Gladstone, 832
F. Supp. 1329, 1335 (W.D. Mo. 1993).
But there is not just an absence of a compelling justification here. The
people of this state have also clearly stated that they do not consider violating the
property rights of one private party to benefit another private party to be legitimate.
In 2009, the people amended article I, § 17 of the Texas Constitution to explicitly
prohibit the taking, damaging, or destroying of private property for anyone but the
government or the public. The 2009 amendments specifically stated as well that
“public use” does “not include the taking of property … for transfer to a private
entity for the primary purpose of economic development or enhancement of tax
revenues.” Tex. Const. art. I, § 17 (b). This provision started as a legislatively-
referred constitutional amendment that passed out of both houses of the Texas
Legislature with only one “nay” vote. H.J.R. No. 14 (Tex. 2009). The people
passed the amendment by 81% in favor to 19% opposed. See
https://ballotpedia.org/Texas_Eminent_Domain,_Proposition_11_(2009).
Thus, not only is promoting aesthetics is not a compelling governmental
interest, but Texans have affirmatively (and overwhelmingly) restricted the ability
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