City of El Paso v. Tom Brown Ministries, 08–16–00075–CV

• Decision Date: 07 December 2016
• Docket Number: No. 08–16–00075–CV,08–16–00075–CV
• Parties: CITY OF EL PASO, Texas, and John F. Cook, in His Official Capacity as Mayor of El Paso, Appellants, v. TOM BROWN MINISTRIES, Word of Life Church of El Paso, Tom Brown, El Pasoans for Traditional Family Values, and Ben Mendoza, Appellees.
• Court: Texas Court of Appeals

505 S.W.3d 124

CITY OF EL PASO, Texas, and John F. Cook, in His Official Capacity as Mayor of El Paso, Appellants,

v.TOM BROWN MINISTRIES, Word of Life Church of El Paso, Tom Brown, El Pasoans for Traditional Family Values, and Ben Mendoza, Appellees.

No. 08–16–00075–CV

Court of Appeals of Texas, El Paso.

December 7, 2016

Hon. Oscar G. Gabaldon, Jr., El Paso City Attorney's Office, El Paso, TX, for Appellants.

Hon. Troy Brown, Troy C. Brown P. C., El Paso, TX, for Appellees.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

STEVEN L. HUGHES, Justice

This is an interlocutory appeal from an order denying Appellants' plea to the jurisdiction. This case originally began when then-Mayor John F. Cook sued Appellees, in his individual capacity, seeking to enjoin them from circulating recall petitions against him, claiming that their conduct violated the Texas Election Code. In response, Appellees sued the City of El Paso and Cook, in his official capacity as Mayor, claiming that by seeking to "enforce" the Election Code against them in an unconstitutional manner, the City had violated their constitutional right to engage in core political speech in violation of 42 U.S.C. § 1983. Appellees sought damages, injunctive relief prohibiting the City from interfering with Appellees' right to circulate recall petitions, and a declaratory judgment that certain provisions of the Election Code were unconstitutional. In its plea to the jurisdiction, the City alleged the trial court lacked subject matter jurisdiction in part because Appellees lacked standing. Because we agree that Appellees lack standing, we reverse the trial court's order denying the plea to the jurisdiction and dismiss all of Appellees' claims against the City and Cook in his official capacity.

BACKGROUND

This case has a long-standing and somewhat infamous background, which we set forth in detail in our opinion in Cook v. Tom Brown Ministries, 385 S.W.3d 592 (Tex.App.–El Paso 2012, pet. denied). In that case, we explained that Appellee Tom Brown is the President, Chairman of the Board, and Pastor of a non-profit corporation, the Word of Life Church of El Paso (WOL Church). Id. at 594. Until August 2011, Brown also served as the chairman of the El Pasoans for Traditional Family Values (EPTFV), a specific-purpose political committee organized under the Texas Election Code. Id. EPTFV was created for the express purpose of supporting the passage of a proposed "traditional family values" city ordinance, which provided that the City of El Paso "endorses traditional family values by making health benefits available only to city employees and their legal spouse and dependent children." Id. The ordinance was approved by voters at a referendum election held in November 2010, and would have, effective August 2011, taken away benefits that city employees in domestic partnerships had previously received. Id. at 594–95.

But, on June 14, 2011, the El Paso City Council amended the ordinance, effectively restoring domestic partnership benefits. Id. at 595. Cook, as the City's then-Mayor, cast the tie-breaking vote. Id. at 595. Then–City Council Representatives Susie Byrd and Steve Ortega also voted in favor of the amendment. Id. One month later, three citizens (Ben Mendoza, Elizabeth Branham, and Salvador Gomez) filed notices to recall Cook, Byrd, and Ortega. Id.

Around this same time, Brown issued a social media statement on the website of Tom Brown Ministries (TBM) that he had decided to support the recall efforts and encouraged the public to call the WOL Church to sign the recall petition.¹ Id. In one of his newsletters on the TBM website, Brown included an "Open Letter to City Council," explaining that he had decided to join in the recall efforts because he believed the City Council had "disrespected the will of the people" in amending the family value ordinance, and he encouraged readers to sign and circulate a recall petition against Cook, Byrd, and Ortega. Brown thereafter utilized WOL Church properties and resources to facilitate the recall efforts, including expressing his support of the recall on his website, posting a link on his online newsletters allowing readers to download copies of the petition, and allowing the church's facilities to be used to sign petitions. Id. at 595.

It is not clear from the record how much coordination there was between the WOL Church and EPTVF and other incorporated churches in supporting the recall efforts.² However, Brown did make a statement in his newsletter that he, along with EPTVF, had decided to join in the recall of Mayor Cook, but that Brown did not intend to "spearhead" the efforts and that EPTFV had recruited two other El Paso citizens to organize the recall efforts for Byrd and Ortega. In a subsequent statement on a website entitled "www.recallcook.com," the WOL Church and other local churches, including Jesus Chapel, were listed as locations where registered voters could sign the recall petitions. The statement indicated, however, that the petitions would be located "Off Church Property."

Cook's Lawsuit

On September 12, 2011, Cook sued Brown, TBM, the WOL Church, EPTFV, as well as Mendoza, Gomez, and Branham (the three citizens who filed the notices of recall), claiming they were wrongfully circulating the recall petitions against him, Byrd, and Ortega in violation of Section 253.094 of the Texas Election Code, which prohibits corporations from making "a political contribution in connection with a recall election, including the circulation and submission of a petition to call an election."³ Cook requested injunctive relief to prohibit Appellees from circulating the recall petitions in violation of the Election Code, from engaging in efforts to advertise and promote the recall election on websites affiliated with the church, and from submitting any petitions to the City Clerk that were signed in violation of the Election Code. Cook also sought the withdrawal of all illegally-procured petitions that had been previously submitted to the City Clerk.⁴ Although Cook recognized that Byrd and Ortega were not named plaintiffs, he requested that Appellees be enjoined from circulating recall petitions against them as well, and that any illegally-procured petitions with respect to all three be withdrawn and not utilized to determine whether to schedule the recall election. The lawsuit made clear that Cook's intent was not to seek criminal sanctions, but to "ensure that any recall election is called only after proper and strict compliance with Texas law and the ordinances of the City of El Paso." Cook also requested a declaratory judgment that any signatures gathered at, or at the behest of, the WOL Church and other churches were invalid and not eligible to be utilized by the City to support the recall election. Cook also sought monetary relief in the form of damages and attorney's fees.

Appellees answered the lawsuit and filed a counterclaim against the City of El Paso and Cook, in his "official capacity as Mayor of El Paso," contending that they were acting under color of law to violate Appellees' constitutional right to circulate the recall petitions, which they described as being core political speech.⁵ In response, Cook amended his petition and clarified that he was suing only in his individual capacity and denied that he was acting in his official capacity as the City's mayor or under color of law in bringing his lawsuit.

The Temporary Injunction

The trial court initially entered a temporary restraining order in favor of Cook, enjoining Appellees from circulating the petitions and otherwise supporting the recall efforts, but later dissolved the TRO and ordered the City Clerk to accept all of the disputed recall petitions. Cook, 385 S.W.3d at 597. The City Clerk thereafter certified that the requisite number of qualified voters had signed petitions in support of the recall election. Id. In response, Cook amended his petition and requested the trial court order the City Clerk to withdraw the certification of the petitions involving him, Byrd, and Ortega, arguing that all of the petitions were wrongfully certified in violation of the Election Code.

The trial court held a five-day temporary injunction hearing. Id. At the hearing, the El Paso District Attorney testified that his office was looking into possible criminal violations of the Election Code with regard to Appellees' conduct. Id. As a result, multiple witnesses, including Brown, invoked the Fifth Amendment during their testimony. Id. at 597, 602. In particular, among other things, Brown refused to answer questions concerning the relationship between the WOL Church, TBM, and EPTFV, and questions concerning whether the WOL Church was using its property or resources to circulate the recall petitions. Id. at 602.

The trial court denied Cook's request for a temporary injunction, finding that Cook's request would have thwarted the "will of the people" to hold a recall election. Id. at 607. On January 30, 2012, the City voted in favor of a recall election resolution, and thereafter scheduled a recall election for April 14, 2012. Id. at 598–99. Cook filed a timely interlocutory appeal to this Court. Id. at 594.

The Cook Opinion

In our opinion issued on February 17, 2012, two months before the scheduled recall election, we reversed the trial court's decision denying Cook's request for an injunction. Id. at 608. We concluded the evidence clearly established a violation of the Election Code, and that Cook was being harmed or was in danger of being harmed by the violations. Id. In particular, we concluded that the WOL Church as a corporation had violated Section 253.094(b) of the Election Code, which prohibits a corporation from making a "political contribution in connection with a recall election, including the circulation and submission of petitions to call an election[.]" Id. at 603. Among other things, we concluded that the WOL Church had made an improper political contribution when it "through...