Judge dismisses lawsuit that could have halted Denton council member’s recall election

That meme was the basis of a recall effort against Maguire, led by former Denton council member Don Duff.

On Tuesday, Judge Jim Johnson dismissed a lawsuit challenging the petition to recall Maguire in the November election. The challenge, filed by Maguire’s attorney Richard Gladden, focused on the use of the word “constituency” in Denton’s charter.

According to a transcript of the judge’s ruling, Johnson sided with the city of Denton and its Dallas-based attorney, David Overcash. Overcash argued a different position about the ambiguity of the word “constituency” to the Princeton City Council in June.

“I find there is no ambiguity in Denton City Charter Article 4, Section 413A, and that it means what it says,” Johnson said. “And it says, in present tense, that constituency shall mean qualified voters eligible to vote for the council member whose removal is sought. So those are qualified voters who today, present tense, are eligible, or at the date the petition was submitted, or the date of the election, any of those, in the district eligible to vote for Ms. Maguire.”

With Johnson’s decision, voters in the redrawn District 4 will decide whether they’ve accepted Maguire’s apology or not when they vote on recalling her in November — unless the appellate court overturns the judge’s decision.

Maguire was unavailable for comment Tuesday evening because she was in council meetings, but Gladden said he plans to file a “accelerated appeal” and estimated it will take about two weeks to receive the appellate court’s decision.

“Well, I don’t think anyone on either side of this case seriously could claim that the city charter provision on recalls is unambiguous,” Gladden said shortly after the judge handed down the decision. “It is like a Rorschach test. Some people are convinced that they see what they see, and others see the opposite.”

The confusion

Shortly after Gladden filed his lawsuit to stop the recall election, Overcash appeared in front of the Princeton City Council on June 15 in the midst of council members drawing up Princeton’s home-rule charter and warned that they should consider how they word the local recall provision.

He discussed what had happened to Denton after the council voted in December to approve newly redrawn district lines that would move the Robson Ranch subdivision into Maguire’s district. Maguire was among those members who voted to approve the redrawn districts.

“Shortly after the lines took effect, a recall petition was submitted by residents of the city to recall one of the City Council members,” Overcash told Princeton council members. “A very large portion of the minimum signatures necessary to get to the minimum threshold were derived from a subdivision that wasn’t in the district when the member was elected but now are in the district after the district lines were redrawn.”

He pointed out that Denton’s charter uses the word “constituency” for where the petition signatures need to come from — the word that’s at the center of the dispute between Gladden and the city of Denton.

“So you’ve got a sitting member of a City Council who submitted a lawsuit against the city that elected her to try to block the holding of the recall election,” Overcash said. “So that kind of highlights in particular one question you would want to answer about your districting process: How does it interface with the recall petition? Do you count people in the newly drawn district? Can they sign on a petition to recall somebody they didn’t vote for in the first place? Can people who are now carved out of the district who voted on them in the first place sign a petition to recall a member?”

In the lawsuit, Gladden argued that the word “constituency” means those original District 4 voters who elected Maguire in May 2021, and who tend to lean more progressive in political ideology than Robson Ranch voters. Gladden and the lawsuit’s plaintiffs were demanding a jury trial to determine how the second sentence in Article 4 of Denton’s City Charter about recall elections is defined:

“… whether the [recall] petition is signed by qualified voters of the constituency of the council member whose removal is sought equal in number to at least twenty-five (25) percent of the number of the votes cast for that council member and all of his opponents in the last preceding general municipal election in which he was a candidate. As used herein ‘constituency’ shall mean the qualified voters eligible to vote for the council member whose removal is sought, either by geographical district or at large, as the case may be.”

Earlier this year, Gladden compared the recall effort against Maguire to the June 14 special election to fill the unexpired term of the U.S. representative for the 34th District of Texas.

“You may be surprised to learn (no one else is) that the only ‘constituents’ permitted to vote in that election were those who continue to reside in ‘old’ Texas U.S. District 34, even though the Texas legislature revised that district in the congressional redistricting plan it enacted last October, 2021,” Gladden wrote in a June 15 email to the Denton Record-Chronicle. “Perhaps you should notify the elections administrators out there that they got it all wrong, and that only voters in the new districts, covering part of the same geographic area as ‘old’ District 34, were ‘constituents’ entitled to vote to fill this unexpired term in the 34th congressional district?”

That same day as Gladden’s email to the Record-Chronicle, Overcash warned Princeton council members about the ambiguous nature of the word “constituency” in a city charter.

“So that is something that I brought up and is at the bottom of the list of unanswered questions,” Overcash said. “If you don’t and leave it vague, the city of Princeton would end up in the same position as the city of Denton at some point because you’re going to have that kind of thing.

“I’ve already learned that I don’t want to use the word ‘constituency’ anywhere in this charter, so please don’t make any motions that recommend that we add that anywhere because that term complicates things,” Overcash continued, pausing for a short laugh. “Are the constituents of a single-member district that’s been changed the people that voted them into office, or the people who could vote for that seat the next time the election arises?

“I’m not saying there is a right or wrong answer for that question in terms of how it should work or how it will play out in that particular lawsuit. But I certainly think it’s one that warrants consideration by the commission as they continue to do deliberations regarding the charter.”

A couple of weeks later, the city of Denton retained Overcash for representation in Gladden’s lawsuit. It’s unclear why Overcash changed his position and argued a different stance Tuesday morning in court. He couldn’t be reached for comment by Tuesday evening.

“Obviously since he was hired by the city, he’s done a complete 180,” Gladden said of Overcash.

Reasons behind the recall

Duff, the Denton resident who petitioned for the recall, said he had warned Maguire via email before the council voted to approve the redistricting lines that would place Robson Ranch into her district.

“The reason they wanted to do that was they wanted to get [council member] Jesse Davis, and they knew as long as Robson was in [District] 3, they could not beat Jesse Davis,” Duff told the Record-Chronicle by phone Tuesday afternoon. “… I told her, ‘You know if you move Robson Ranch into 4, forget running for anything in District 4.’ That was no idle threat. I know for sure that she has no chance now.”

Duff claimed to have a pretty good pulse on Robson Ranch since he has lived there for 14 years and has been selling real estate there for over 10 years. He boasted that he has 750 email addresses for the Robson Ranch community — a direct line he can use to directly address residents in the 55-and-older community.

He no doubt tapped into that network after he saw the meme Maguire posted about Watts in January. He mentioned Watts, who was then a council candidate for the at-large Place 6 seat, discussing it at a February council meeting when he conceded that it was a popular meme with celebrities, yet called it “offensive,” “tone-deaf” and “an absence of judgment.”

The popular “Who killed Hannibal?” meme takes screenshots from a skit in The Eric Andre Show, in which host Eric André pretends to shoot comedian Hannibal Buress multiple times before turning to the camera and asking who killed him. Before she deleted it, Maguire’s version of the meme labeled the shooter as Watts and the shooting victim “bus ridership.”

In her Facebook post, Maguire claimed Watts effectively killed bus ridership in favor of the GoZone on-demand rideshare program, which is under fire from the community for long wait times and claims of unsafe driving practices.

After criticism, she apologized and removed the meme.

“I don’t think this is what the community expects from our elected leaders,” Watts told the City Council during a February meeting.

Duff agreed with Watts and started a petition to recall Maguire. He collected 744 signatures, many from Robson Ranch — enough for Denton City Secretary Rosa Rios to validate the recall petition in late May and send it before the council.

A few weeks ago, Gladden came to an agreement in a joint motion with Duff’s attorney Richard Hayes. Hayes claimed Duff never should have been added as one of the necessary defendants in Gladden’s lawsuit — otherwise all of the other petition signers would also need to be included as necessary.

“Imagine how much that would cost,” Hayes said.

Hayes also mentioned the state’s anti-SLAPP law, the Texas Citizens Participation Act, which protects First Amendment rights for such actions as petitioning the government to recall a council member and claimed they would have likely been granted it by the judge.

“Only thing that Duff did was work on a petition,” Hayes said.

Gladden said he added Duff to the lawsuit only due to state filing rules that “anyone with a potential interest in an outcome of a civil case must be added even if you’re not getting anything from them. The purpose is to make sure people who have notice have the opportunity to participate.” He said he wasn’t trying to violate Duff’s First Amendment rights, which he said “was not possible for him to do so since he is a private individual.”

“He’s not needed in the lawsuit, and I don’t need him,” Gladden said. “If I acquire the [injunctive] relief against the defendants and prohibit any recall election, he couldn’t do anything about it.”

After the judge’s ruling was issued Tuesday, Denton city spokesperson Stuart Birdseye sent a prepared statement from the city: “The judge’s ruling today confirms the City’s position that the Plaintiffs’ lawsuit is without legal merit, and granted the City’s Motion to Dismiss.”

At a recent council meeting, Maguire made the motion for her recall election to take place in November, and council members unanimously approved it. But if she is recalled, only six council members will be left to represent Denton, although critics claim Robson Ranch voters in District 4 will still be represented since they elected Jesse Davis as their District 3 council member.

It seems to have been Duff’s plan all along.

“What’s going to happen getting her recalled is that they can’t call an election to replace her for the last six months [of her term], leaving three conservatives and three liberals on council, and the liberals can’t do whatever they want,” Duff said. “They were doing some funky things.”