Fashing v. Moore

• Citation: 489 F. Supp. 471
• Decision Date: 23 January 1980
• Docket Number: No. EP-78-CA-126.,EP-78-CA-126.
• Parties: John L. FASHING et al., Plaintiffs, v. Judge T. Udell MOORE et al., Defendants.
• Court: U.S. District Court — Western District of Texas

489 F. Supp. 471

John L. FASHING et al., Plaintiffs, v. Judge T. Udell MOORE et al., Defendants.

No. EP-78-CA-126.

United States District Court, W. D. Texas.

January 23, 1980.

Raymond C. Caballero, El Paso, Tex., for plaintiffs.

George Rodriguez, Jr., El Paso, Tex., for Judge T. Udell Moore, Clyde C. Anderson, Richard Telles, Rogelio Sanchez, C. W. Mattox.

Christopher Haynes, El Paso, Tex., for Mary Haynes and El Paso County Democratic Executive Committee.

Susan Dasher, Asst. Atty. Gen., Austin, Tex., for Dolph Briscoe, John L. Hill, Steven Oaks.

MEMORANDUM OPINION AND ORDER

HUDSPETH, District Judge.

Plaintiffs bring this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, seeking to challenge the constitutionality of Article III, Section 19, and Article XVI, Section 65 of the Constitution of Texas. Some of the Plaintiffs are public officials, to wit: Fashing is a Judge of the County Court-at-Law; Baca and McGhee are Justices of the Peace; and Ybarra is a Constable. The remaining Plaintiffs are identified as citizens and registered voters of El Paso County and of other counties in the State of Texas. All seek to enjoin the Defendants from enforcing the provisions of the Texas Constitution under attack, contending that the sections in question contravene the rights guaranteed to Plaintiffs in the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. Both Fashing and McGhee assert that they would become candidates for higher judicial office but for the terms of Article XVI, Section 65, which would cause the automatic vacation of their present offices. According to Ybarra, the same fact prevents his candidacy for Justice of the Peace. Baca additionally asserts that he would consider a candidacy for the Texas Legislature were it not for the provisions of Article III, Section 19, which prohibit his filing for that position. The voter Plaintiffs all contend that they desire to vote for and support the candidacy of the public official Plaintiffs for the offices mentioned, but are being deprived of that right in violation of the United States Constitution.

Some of the named Defendants, to wit: the County Judge and County Commissioners of El Paso County and the County Democratic Party officials, have announced that they do not contest the Plaintiffs' suit, and they agree with Plaintiffs' contention that the sections in question are unconstitutional. The Governor, Attorney General, and Secretary of the State of Texas, however, continue to defend the suit, and deny that Plaintiffs are entitled to any relief. All material facts have been stipulated by the parties, and the case is before the Court on the State officials' motion to dismiss and on cross-motions for summary judgment.

I. The Sections Challenged.

Article III, Section 19 of the Constitution of Texas, adopted in 1876, provides as follows:

"No judge of any court, Secretary of State, Attorney General, Clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature."

The language of this Section has remained virtually unchanged since the first Texas Constitution in 1836. It traces back to a 1701 Act of the British Parliament, which forbade persons holding an office under the King from serving in the House of Commons, thereby preventing any undue influence of the executive upon the Parliament. Vernon's Texas Const.Ann., Art. III, § 19, Interpretive Commentary. Texas case law has held invalid the election or candidacy of an officeholder whose term of office extends into the term of the Legislature to which he seeks election, even if he has vacated the previous office. Kirk v. Gordon, 376 S.W.2d 560 (Tex.Sup.1964); Lee v. Daniels, 377 S.W.2d 618 (Tex.Sup.1964); Willis v. Potts, 377 S.W.2d 622 (Tex.Sup. 1964). Furthermore, the term "lucrative office under . . . this State" has been broadly interpreted to include virtually all officials of cities and counties. Willis v. Potts, supra, 377 S.W.2d at 625-6.

By contrast, the challenged portion of Article XVI, Section 65, was added to the Texas Constitution in 1958. It provides that

". . . if any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or Primary Election, for any office of profit or trust under the laws of this State or the United States other than the office then held, at any time when the unexpired term of the office then held shall exceed one (1) year, such announcement or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same manner as other vacancies for such office are filled."

The officers covered by the section include county judges and judges of county courts at law, probate, and domestic relations courts; justices of the peace; constables; district and county clerks; district and county attorneys; sheriffs; county tax collectors, county commissioners and county treasurers. State officials not covered by Section 65 include the Governor; Lieutenant Governor; Attorney General; Land Commissioner; Railroad Commissioners; all members of the legislature; justices or judges of the Supreme Court, Court of Criminal Appeals or Courts of Civil Appeals; district and criminal district judges; judges of family and juvenile courts, and municipal judges.

II. The Motion to Dismiss.

The State Defendants have moved to dismiss this suit, contending that (1) Plaintiffs lack standing, in that they have failed to show an actual injury of such immediacy and reality to warrant a declaratory judgment; (2) the Court lacks subject matter jurisdiction, in that no actual "case or controversy" is presented, (3) suit is barred by the Eleventh Amendment. The first two contentions are without merit. Federal courts are empowered to decide cases arising under 42 U.S.C. § 1983, pursuant to jurisdiction conferred by 28 U.S.C. § 1343(3) and 28 U.S.C. §§ 2201, 2202 when the "course of conduct in which the plaintiff plans to engage is clear to the court at the time the suit is filed." Morial v. Judiciary Commission of the State of Louisiana, 565 F.2d 295, 298 (5th Cir. 1977) (en banc). Plaintiffs herein have shown by affidavit the course of conduct in which they desire and intend to engage but for the restrictions imposed by Article III, Section 19 and Article XVI, Section 65. Actual conduct which would invoke the operation of the sections under attack is not a prerequisite to challenging their validity. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). Indeed, "preconduct challenges to the validity of laws burdening first amendment rights are among the essential bulwarks of a system of free expression." Morial v. Judiciary Commission of the State of Louisiana, supra, 565 F.2d at 298. The Court has jurisdiction and the Plaintiffs have standing to bring the action.

Neither is suit barred by the Eleventh Amendment. Since Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it has been established that a federal court may enjoin a state official from enforcing a state statute that violates the United States Constitution. Such an official is "stripped of his official character," because the state "has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex Parte Young, supra, 209 U.S. at 160, 28 S.Ct. at 454. See also Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), all of which uphold injunctive relief against specified state officials. Since the instant suit is not brought against the State of Texas as such, but against designated state officials empowered to enforce the Texas constitutional provisions under attack, the Eleventh Amendment does not bar injunctive relief.

Defendants also assert that Plaintiffs have not alleged nor shown an intent on the part of Defendants to discriminate against them. However, a specific intent to deprive a plaintiff of his constitutional rights is not a prerequisite to liability under § 1983. Monroe v. Pape, 365 U.S. 167, 198, 81 S.Ct. 473, 489, 5 L.Ed.2d 492 (1961).

The motion to dismiss by the state defendants should be denied.

III. Do Article III, Section 19 and Article XVI, Section 65 Violate the United States Constitution?

Plaintiffs claim that the challenged sections impair their First, Fifth and Fourteenth Amendment rights to freedom of speech and freedom of association, to seek and hold elective office, and to vote. Furthermore, they claim the sections in question violate the Equal Protection Clause of the Fourteenth Amendment.

The right to engage in political activities is not absolute, and both state and federal governments may place restrictions upon the political activities of public employees. United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, such a restriction is constitutionally permissible only if it is ". . . justified by a reasonable necessity . . . to burden those activities to achieve a compelling public objective." Morial v. Judiciary Commission of Louisiana, supra, 565 F.2d at 300. Thus it is necessary to compare the interests asserted by the Plaintiffs with those of the State, to determine whether or not a reasonable necessity has been shown for the imposition of those substantial burdens.

Article XVI, Section 65, is basically a "resign-to-run" rule, and thus invites comparison with the Louisiana rule upheld by the...