Wilson v. Birnberg

• Decision Date: 16 September 2011
• Docket Number: No. 11–20035Summary Calendar.,11–20035Summary Calendar.
• Citation: 660 F.3d 206
• Parties: David Buren WILSON, Plaintiff–Appellant, v. Gerald BIRNBERG, In His Capacity as Chairman of the Harris County Democratic Party; Beverly Kaufman, Harris County Clerk; Hope Andrade, Secretary of State; Greg Abbott, Texas Attorney General; Edward Emmett, Harris County Judge, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

660 F.3d 206

David Buren WILSON, Plaintiff–Appellant,

v.Gerald BIRNBERG, In His Capacity as Chairman of the Harris County Democratic Party; Beverly Kaufman, Harris County Clerk; Hope Andrade, Secretary of State; Greg Abbott, Texas Attorney General; Edward Emmett, Harris County Judge, Defendants–Appellees.

No. 11–20035Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 16, 2011.

Background: Prospective candidate who filed application to run for county office sued county and state officials when his name was not placed on primary election ballot, alleging violation of his due process and equal protection rights, and challenging state election law. The United States District Court for the Southern District of Texas, Vanessa D. Gilmore, J., dismissed for failure to state a claim. Plaintiff appealed.

Holdings: The Court of Appeals, Leslie H. Southwick, Circuit Judge, held that:

(1) claims for injunctive and declaratory relief were moot;

(2) plaintiff lacked any due process property right to be a candidate;

(3) official's conduct in rejecting prospective candidate's application did not violate substantive due process;

(4) rejection of application did not violate the prospective candidate's equal protection rights; and

(5) Texas election statute requiring election officials to reject candidacy applications that did not comply with statutory requirements did not violate due process.

Affirmed. Keith Alexander Gross, League City, TX, for Plaintiff–Appellant.

Michael Martin Essmyer, Sr., Essmyer, Tritico & Rainey, L.L.P., Lisa Rice Hulsey, Asst. County Atty., F. Clinton Gambill, II, County Attorney's Office for the County of Harris, Houston, TX, James Patrick Sullivan, Asst. Sol. Gen., Kathlyn C. Wilson, Asst. Atty. Gen., Austin, TX, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

David Buren Wilson brought suit against various officials arising from his name not being placed on the 2010 primary election ballot in Houston, Texas. His complaint was dismissed for failure to state a claim. We AFFIRM.

On January 4, 2010, Wilson filed an application to run for Harris County Commissioner in the Democratic Party primary election. It was filed 15 minutes before the close of business on the last day applications were taken. Four days later, Harris County Democratic Party Chairman Gerald Birnberg denied the application for Wilson's failure to provide his residential address. Wilson had instead put his business address on the application, a fact Birnberg supported with public records. There is no dispute that Wilson's residential address was within the relevant district. Wilson's name was never placed on the primary ballot. He failed to gain relief in various state courts.

In September 2010, Wilson sued Birnberg and other governmental officials in the United States District Court for the Southern District of Texas, claiming that the defendants violated his constitutional rights by denying him a place on the ballot. He claimed violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Wilson later added a claim that Section 141.032(e) of the Texas Election Code was unconstitutional. He sought injunctive relief and damages. He also filed for summary judgment and claimed no facts were in dispute, which he has reurged in this appeal. The district court dismissed the case for failure to state a claim.

DISCUSSION

[1] We review de novo a district court's dismissal for failure to state a claim. True v. Robles, 571 F.3d 412, 417 (5th Cir.2009). We accept the appropriately pled facts as true and uphold dismissal if the plaintiff has not alleged “enough facts to state a claim to relief that is plausible on its face” and has failed to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

[2] The State argues that the issues to be resolved for declaratory or injunctive relief are moot. The election has passed. The capable-of-repetition, evading-review exception to mootness would not apply unless for some reason Wilson planned again both to run for office and to omit listing his residential address. See Kucinich v. Tex. Democratic Party, 563 F.3d 161, 164 (5th Cir.2009). No such assertions are made. Claims for equitable relief are moot.

Wilson also seeks damages arising from not getting on the ballot in 2010. This is a suit under Section 1983, and damages are permitted. 42 U.S.C. § 1983. There is no mootness to that claim.

We note some confusion in the briefs about Wilson's arguments. His First Amended Complaint alleged that Birnberg's “overly technical” review violated the Due Process and Equal Protection Clauses. A later filing by Wilson clarified that he thought more process was due and that Birnberg's actions lacked a rational basis. The Second Amended Complaint, though, reduced the Equal Protection argument to a conclusory sentence, made vague assertions of “procedural violations and substantive violations,” and added the claim of the unconstitutionality of a statute.

[3] The district court did not dwell on the differences between the complaints, concluding that they would be considered together. We agree that in this case, there was no need to sort out which claims remained in the last and operative complaint. We will first address Wilson's allegations of Birnberg's behavior, then address the constitutionality of the statute in question.

[4] In order for a person to have a procedural due process claim which damages or other relief can remedy, he must have been denied life, liberty or property protected by the Fourteenth Amendment. Meza v. Livingston, 607 F.3d 392, 399 (5th Cir.2010). The district court held that Wilson had no property right to be a candidate, citing Velez v. Levy, 401 F.3d 75, 86–87 (2d Cir.2005). That court cited a Supreme Court opinion that the “unlawful denial by state action of a right to state political office is not a denial of a right of property or liberty secured by the due process clause.” Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 88 L.Ed. 497 (1944). This court has also relied on this language from Snowden to note that a candidate who claimed his opponent was improperly declared the winner of an election had not been denied a property right. Gamza v. Aguirre, 619 F.2d 449, 452 n. 3 (5th Cir.1980) (citing Snowden, 321 U.S. at 7, 64 S.Ct. 397).

Wilson argues that he does have a property right to be on the ballot based on his interpretation of Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). We recently described Anderson and a later Supreme Court decision as requiring courts to “balance the individual's rights [to ballot access] against state imposed requirements.” Kucinich, 563 F.3d at 168 n. 6 (citing Anderson and also Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)).

In Anderson, the question was whether the state of Ohio had “placed an unconstitutional burden on the voting and associational rights” of the supporters of independent Presidential candidate John Anderson. Anderson, 460 U.S. at 782, 103 S.Ct. 1564. The Court agreed that the state's scheduling the candidate-filing deadline early in the year created an improper burden, inasmuch as there were not significant state interests in the early date and there were substantial voter interests in having a wide choice of candidates for President. Id. at 806, 103 S.Ct. 1564.

The problem for Wilson in using this authority is that he is not challenging the constitutionality of the statute that required he list his residential address on his application to be a candidate. See Tex. Elec.Code § 141.031(a)(4)(I). If he had argued that there was some interest of his that outweighed the state's interest in having candidates declare where they live, then Anderson and similar cases might be applicable. They are not applicable here.

Wilson has not presented any authority suggesting that Snowden and the cases that have relied upon it are no longer good law. His procedural due process claim was properly rejected.

[5] The substantive due process claim also fails. State law grants party officers like Birnberg the authority to reject applications for state candidacy when “facts indicating that the candidate is ineligible are conclusively established...