In 2000, the City Council of the City of Arlington, Texas adopted an ordinance that established a street maintenance fee which was assessed in city water bills. This fee was later amended and then finally repealed in 2003.
During that time, on May 15, 2001, an Arlington taxpayer filed a lawsuit in the 352nd District Court of Tarrant County, Texas against the City of Arlington, arguing that the fee constituted an illegal tax. Other Constitutional challenges were also raised, including allegations that the street maintenance fee violated equal protection and due process rights, was void for vagueness, and provided no mechanism for redress of unlawful collection of the tax. In addition, the taxpayer asserted that the City had violated the Texas Debt Collection Act, and he brought a civil rights action under 42 U.S.C. § 1983.
The City of Arlington claimed general authority to assess fees of this nature by ordinance, rather than charter amendment, but the taxpayer argued that it was a tax which was not permitted under the city charter without approval of the voters. Judge Bonnie Sudderth ultimately issued a summary judgment ruling that the City of Arlington exceeded its authority by taxing the citizens without their consent in violation of the city charter.
While the case was pending, the taxpayer also sought an injunction to prohibit the City from collecting the street maintenance fee and to require the City to refund the full amount of street maintenance fees collected. The lawsuit was brought by the taxpayer on his own behalf as an individual and resident of Arlingtonas well as on behalf of the proposed class of persons – all taxpayers from the City ofArlington- who had been billed for the street maintenance fee.
In response, the City asserted a plea to the jurisdiction, arguing that the trial court did not have jurisdiction due to the plaintiff’s lack of standing to sue because his claim did not meet the $500 amount-in-controversy requirement. The City also claimed immunity from suit. Judge Bonnie Sudderth denied the City’s plea to the jurisdiction and granted a motion for partial summary judgment declaring the maintenance fee an unlawful tax imposed without consent required of the citizens, but denied the injunctive relief sought.
After so ruling, Judge Sudderth expressed concern to the parties that due to the unique nature of the case and the fact that because there was little guidance in the law on the correct application of the law to the facts of the case, the parties could potentially expend considerable costs of litigation which might be unnecessary if the appellate court disagreed with her interim rulings. Because of this, Judge Sudderth suggested that the parties agree to request a written order for interlocutory appeal to the Second Court of Appeals.
This agreed interlocutory appeal mechanism was a new creature of statute (Texas Civil Practices & Remedies Code, Section 51.014[d]), having at that time recently been enacted by the Texas Legislature. The new law provided that parties in litigation may agree to appeal an otherwise non-appealable interlocutory ruling if: (1) the ruling involves a controlling question of law as to which there is a substantial ground for difference of opinion, (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and (3) the parties agree to the order.
Without such agreement, the interlocutory summary judgment ruling would not have been appealable at that time, and the parties would have been required to wait until the entire case, including the class action certification issues, were concluded before testing Judge Sudderth’s ruling on appeal. The parties agreed to go forward with an immediate agreed appeal, as suggested by Judge Sudderth, which the Second Court of Appeals accepted. (This was the first agreed appeal that the Second Court of Appeals ever accepted under the new law.)
As a result of that agreed interlocutory appeal, Judge Sudderth’s ruling was reversed – not because her ruling was erroneous regarding the illegality of the tax – but on the ground that the taxpayer lacked “standing” to complain about it because the taxpayer failed to show a “particularized injury distinct from that suffered by the general public.”
In the interim, the City of Arlington held an election on the issue and the tax was ultimately approved by the voters.