Bickham v. Dall. Cnty.

• Decision Date: 23 October 2020
• Docket Number: No. 05-20-00560-CV,05-20-00560-CV
• Citation: 612 S.W.3d 663
• Parties: Sammy BICKHAM, Jr., Kristen Bickham, and Kirk Launius, Appellants v. DALLAS COUNTY, Texas, Toni Pippins-Poole, in Her Official Capacity as Dallas County Central Counting Station Manager, Daniel Bradley, in His Official Capacity as Dallas County Central Counting Station Supervisor, Nicolas Mevellec, in His Official Capacity as Dallas County Central Counting Station Assistant Tabulation Supervisor, and Election Systems & Software, LLC, Appellees
• Court: Texas Court of Appeals

612 S.W.3d 663

Sammy BICKHAM, Jr., Kristen Bickham, and Kirk Launius, Appellants
v.
DALLAS COUNTY, Texas, Toni Pippins-Poole, in Her Official Capacity as Dallas County Central Counting Station Manager, Daniel Bradley, in His Official Capacity as Dallas County Central Counting Station Supervisor, Nicolas Mevellec, in His Official Capacity as Dallas County Central Counting Station Assistant Tabulation Supervisor, and Election Systems & Software, LLC, Appellees

No. 05-20-00560-CV

Court of Appeals of Texas, Dallas.

Opinion Filed October 23, 2020

OPINION

Opinion by Chief Justice Burns

In this appeal, we consider whether "election watchers"—persons appointed to observe the conduct of an election under Chapter 33 of the Texas Election Code—have standing to pursue claims against certain election officials for alleged violations of chapter 33 and the Texas Administrative Code. Concluding they do not, we affirm the trial court's judgment dismissing appellants' claims for lack of jurisdiction.

BACKGROUND

In recent years, appellants Sammy Bickham, Jr., Kristin Bickham, and Kirk Launius served as appointed election watchers in the Dallas County Central Counting Station (DCCCS). The Bickhams were appointed by various candidates and political action committees for the 2016, 2018, and 2019 elections, and Launius was appointed by a political action committee for the 2019 election. All three appellants have been re-appointed as watchers for the 2020 elections.

Appellants sued Dallas County, Toni-Pippins Poole in her capacity as DCCCS Manager, Daniel Bradley in his capacity as DCCCS Tabulation Supervisor, Election Systems & Software, LLC (ES&S), Nicolas Mevellec, an ES&S employee and Assistant Tabulation Manager at DCCCS, and other parties that appellants have now dismissed from the suit.

After an opportunity to amend their petition, appellants asserted six claims:

• Claim 1: In previous elections, Poole, Bradley, and Mevellec counted early votes more than once prior to Election Day and printed early vote results prior to Election Day, in violation of Texas Administrative Code Rule 81.36(n)¹ and

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election code section 33.056(a)² ;

• Claim 2: Mevellec "uses illegal private internet capable and internet active computer devices to record, store and remove election data from the Central Counting Station thus obstructing and preventing watchers from observing and documenting evidence of vote tabulation illegalities";

• Claim 3: "Defendants have repeatedly prevented Plaintiffs from sitting near election officials performing Central Counting Station activities";

• Claim 4: "Defendants have prevented Plaintiffs ... from inspecting returns and other election records in Central Counting";

• Claim 5: Pippins-Poole prevented the Bickhams from leaving the Central Counting Station room to go to the bathroom and/or use their phones; and

• Claim 6: Sammy Bickham did not receive a complete DCCCS central accumulator audit log from Bradley.

Appellants alleged these violations occurred during the May 2019 bond election and other previous elections. They sought prospective injunctive relief, declaratory relief, and a writ of mandamus, seeking to prevent similar election-code violations in upcoming elections.³

Appellees filed pleas to the jurisdiction and special exceptions to both appellants' original petition and to the amended petition. Among the complaints raised in their pleas, appellees challenged appellants' common law and statutory standing to bring their claims. Generally, appellees argued that appellants are in the same position as any other citizen or voter, and, in the absence of any particularized harm, they lacked common-law standing to bring a lawsuit to insist that the government follow the law. Appellees also maintained that appellants did not have statutory standing because the election code does not provide for a private, civil cause of action.

After considering appellees' pleas to the jurisdiction and special exceptions and appellants' responses, the trial court granted the pleas without stating a basis for its ruling and dismissed the lawsuit. This appeal followed.

In four issues, appellants generally contend the trial court erred by dismissing their lawsuit because:

1. As election watchers, appellants had standing to challenge election officials' actions that violated the election code and caused appellants particularized harm;

2. Trial courts have jurisdiction to issue writs of mandamus in election cases;

3. Pippins-Poole and Bradley are not immune from liability for their ultra vires acts in the conduct of Dallas County elections; and

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4. Appellants "properly alleged" that ES&S and Mevellec "effectively run elections in Dallas County."

Because we conclude that appellants lack standing to assert their claims, we address only their first issue.

STANDARD OF REVIEW

Standing is a constitutional prerequisite to maintaining suit. Jefferson Cty. v. Jefferson Cty. Constables Ass'n , 546 S.W.3d 661, 666 (Tex. 2018). Questions of standing implicate the court's subject-matter jurisdiction over the case. Id. We review questions of jurisdiction de novo. Farmers Tex. Cty. Mut. Ins. Co. v. Beasley , 598 S.W.3d 237, 240 (Tex. 2020).

In evaluating standing, we construe the pleadings in the plaintiffs' favor. In re H.S. , 550 S.W.3d 151, 155 (Tex. 2018). We also consider relevant evidence, if any, that is offered by the parties. Id. A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action upon which the trial court has jurisdiction. Harris Cty. v. Sykes , 136 S.W.3d 635, 639 (Tex. 2004). But, if a party has repleaded in an attempt to cure disputed jurisdictional issues and the court can ascertain the nature and issues of the controversy and the evidence that probably would be relevant, that party is not entitled to an opportunity to replead. Save Our Springs All., Inc. v. City of Austin , 149 S.W.3d 674, 686 (Tex. App.—Austin 2004, no pet.).

DISCUSSION

The election code defines a "watcher" as "a person appointed ... to observe the conduct of an election on behalf of a candidate, a political party, or the proponents or opponents of a measure." TEX. ELEC. CODE § 33.001. Under chapter 33 of the election code, a watcher is entitled to:

• "observe any activity conducted at the location at which the watcher is serving," id. § 33.056(a) ;

• "sit or stand conveniently near the election officers conducting the observed activity," id. ;

• "sit or stand near enough to the member of a counting team who is announcing the votes to verify that the ballots are read correctly or to a member who is tallying the votes to verify that they are tallied correctly," id. § 33.056(b) ;

• "inspect the returns and other records prepared by the election officers at the location at which the watcher is serving," id. § 33.056(c) ;

• make written notes, id. § 33.056(d) ;

• "call the attention of an election officer to any occurrence that the watcher believes to be an irregularity or a violation of law and may discuss the matter with the officer," id. § 33.058(b); and

• accompany the officer in making the delivery of election records, id. § 33.060.

Chapter 33 provides certain remedies for violations of its provisions. For example, an election watcher who witnesses a violation has a right to call the problem to the attention of an election officer, and that election officer may, in turn, refer the matter to the presiding officer. ELEC. CODE § 33.058(b). Chapter 33 also sets forth criminal penalties for someone who violates a watcher's ability to complete his or her duties. Id. § 33.061. Such violations are Class A misdemeanors. Id.

In their first issue, appellants contend the trial court erred by determining they lacked standing to bring their

612 S.W.3d 669

claims.⁴ We begin our discussion of this issue by noting that no Texas court has ever recognized that a plaintiff's status as a voter, without more, confers standing to challenge the lawfulness of governmental acts. Brown v. Todd , 53 S.W.3d 297, 302 (Tex. 2001). And, appellants do not make such an allegation. Rather, they allege standing not as voters, but instead on the basis of their positions as election watchers. Specifically, appellants argue that chapter 33 of the election code granted them certain rights, duties, and authority, and that by violating those rights, appellees caused appellants particularized harm.

Citizens generally lack standing to bring a lawsuit challenging the lawfulness of governmental acts. Andrade v. NAACP of Austin , 345 S.W.3d 1, 7 (Tex. 2011) (citing Brown , 53 S.W.3d at 302 ). After all, "governments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official's public acts under judicial review." Williams v. Lara , 52 S.W.3d 171, 180 (Tex. 2001) (discussing limitations on taxpayer standing).

Both the Texas Supreme Court and the United States Supreme Court have cautioned that courts must carefully apply jurisdictional limitations such as standing because these limitations "identif[y] those suits appropriate for judicial resolution." See Brown , 53 S.W.3d at 305 (citing Whitmore v. Arkansas , 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), and discussing Raines v. Byrd , 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ). In Texas, common law standing requires establishing a concrete injury to the plaintiffs and a real controversy between the parties that will be resolved by the court. Heckman v. Williamson Cty. , 369 S.W.3d 137, 154 (Tex. 2012). "Standing consists of some interest peculiar to the person individually and not as a member of the general public." In re Kherkher , 604 S.W.3d 548, 551 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (mandamus denied). This is to ensure that there is a real need for judicial review, so that "other branches of government may more...