Houston Attorney Led Scenic Advocates to a Supreme Court Victory by Showing Broader Impact of Billboards
When Houston attorney Cooke Kelsey learned that Reagan National Advertising had won a lawsuit against the City of Austin, Texas, over its ban on digital billboards, he stepped in to help the city preserve its sign ordinance by appealing to the U.S. Supreme Court. On April 21, 2022, the Supreme Court ruled in favor of Austin, upholding the city’s sign ordinance and thereby protecting the Highway Beautification Act. For his tireless and visionary work on this case and related issues, Cooke is truly a scenic hero.
A native of Houston, Cooke took a circuitous path to his legal career. After graduating from the University of Texas’ honors liberal arts program, Cooke spent a decade working for nonprofits in Texas, California, and Florida, tackling issues like homelessness, education, and more in Texas. Most notably, he collaborated on the launch of an education start-up, Music National Service, a public-private partnership that puts musicians in public schools.
Through this nonprofit work, Cooke often found himself navigating board relations and engaging with lawyers. These interactions with attorneys sparked his interest in going to law school. However, prior to enrolling, he took the unusual step of interning first for a federal judge to see if this line of work was truly a fit.
“From the first day, it was the most wonderful day of my life. I really loved it, and I was hopeful that I’d have an opportunity to make change,” he said.
As a law student and immediately after his graduation from the University of Texas School of Law, Cooke enjoyed the rare opportunity to gain additional practical experience in the courts, clerking for judges representing the U.S. District Court for the Southern District, the U.S. Fifth Circuit Court of Appeals, and the Fourteenth Court of Appeals of Texas. Early in his law career, he handled more than 200 cases and developed a hands-on perspective on judicial proceedings. He later joined a Houston law firm, Parker & Sanchez.
At the same time, Cooke also became more interested in scenic issues impacting his city. He had long been familiar with Scenic Texas and Scenic Houston through Ralph Anderson, a friend of Cooke’s grandparents. Ralph was instrumental in leading Houston’s fight against the signage blight that overwhelmed the city in the 1950s and 1960s. To Cooke, Ralph was a role model.
“Ralph wasn’t a lawyer, and he didn’t have any professional stake in billboards other than just being a citizen. He took it upon himself in his free time to lobby the Houston City Council and bring together a wide coalition that spans the political spectrum, then to take the issue to the state legislature.”
Inspired by Ralph’s legacy and informed by his growing legal experience, Cooke joined the Scenic Houston board of directors in 2017 and began to take a more careful notice of lawsuits related to scenic concerns. He came across a small district court case in which billboard companies proposed to file a lawsuit to prevent the state of Texas from planting trees that might impact billboard visibility.
“This was so outrageous to me that I drafted an amicus brief in the District Court for a judge that I didn’t think we had any traction with. However, she made a point of discussing our brief and dismissed the case,” he recalled.
Shortly after, Cooke learned about another billboard case through an item in his community newspaper, which proposed to challenge the legality of all of Houston’s scenic and historic regulations. Again incensed, Cooke filed an amicus brief on behalf of Scenic Texas that was also discussed during oral arguments and incorporated into the written opinion handed down by the Supreme Court of Texas.
Cooke credits the success of this brief as proof of the strategy of expanding the arguments beyond aesthetics to consider the economic impact of visual blight. In this case, for example, he was able to recruit a group of land developers to join the brief.
“The role of amici briefs is to show broader interests outside of the parties involved. The broader you go, the more valuable it is. Being pigeonholed as a scenic or environmental organization can be limiting. Our strategy was to deliberately eliminate any markers that have any political valence at all to show that we represent pretty much everyone,” he explained.
Within a day or two of this win, Cooke learned about the Fifth Circuit Court of Appeals’ decision in favor of Reagan over the City of Austin. The Court had issued a ruling without any input from stakeholders who had worked on scenic issues.
Joined by scenic allies in Texas, Cooke immediately urged the City of Austin to appeal and began recruiting a coalition of amici reflecting broader interests and perspectives to catch the attention of the U.S. Supreme Court. Relying on personal and professional relationships, Cooke and his scenic partners rallied a diverse group to the cause including the International Sign Association, chambers of commerce, and leading players in the land development and business communities in Texas and beyond. The effort was successful, and the Court agreed to hear oral arguments in the case on November 10, 2021.
During the arguments, Cooke and colleagues were heartened to hear the justices cite points made in the amici brief, which invoked the historic legacy of the Highway Beautification Act and the scenic movement, suggesting the high costs and staggering impacts that would come with invalidating sign codes nationwide.
“Having citizens’ input can actually sway judges outside the constraints of the law,” he noted. “We were astonished that the judges we were specifically targeting invoked the arguments we were pushing for. They pointed out the history that we detailed and our efforts over these past few decades.”
The Court ruled in favor of Austin by a 6-3 majority.
While the dust on this landmark billboard case has certainly not settled, and with other related cases now circulating, Cooke acknowledges that it represents a significant step forward.
“We’ve caused the court to take scenic issues seriously. They have monetary as well as aesthetic importance to everyone. In order to win, we had to engage other groups that we’re not aligned with on all issues,” he said.
In considering the outcome of the Court’s decision, Cooke recognized how the strategy behind the case represents new opportunities for Scenic America and its chapters and affiliates.
“Scenic America is a small group that represents an issue that is vast. It can grow its impact by following this victory and the lessons we’ve learned about how to amplify our voice through bipartisan coalitions.
“That’s what’s so wonderful about Scenic America. It brings together politically and geographically diverse chapters and affiliates, where a few citizens take it upon themselves to stand up for something that’s not more harmful to them than it is to anyone else, but no one else is taking care of it. We’re an incredible example of a small group of people with the power to change things.”