Cook v. Ministries

• Decision Date: 17 February 2012
• Docket Number: No. 08–11–00367–CV.,08–11–00367–CV.
• Citation: 385 S.W.3d 592
• Parties: John F. COOK, Appellant, v. TOM BROWN MINISTRIES, Word of Life Church of El Paso, Tom Brown, El Pasoans for Traditional Family Values, Salvador Gomez, Ben Mendoza, Elizabeth Branham, and Richarda Momsen, Solely in her Official Capacity as El Paso City Clerk, Appellees.
• Court: Texas Court of Appeals

385 S.W.3d 592

John F. COOK, Appellant,

v.TOM BROWN MINISTRIES, Word of Life Church of El Paso, Tom Brown, El Pasoans for Traditional Family Values, Salvador Gomez, Ben Mendoza, Elizabeth Branham, and Richarda Momsen, Solely in her Official Capacity as El Paso City Clerk, Appellees.

No. 08–11–00367–CV.

Court of Appeals of Texas,

El Paso.

Feb. 17, 2012.

Mark C. Walker, Cox Smith Matthews Incorporated, El Paso, TX, for Appellant.

Joel Oster, Leawood, KS, for Appellees, Tom Brown Ministries, Word of Life Church of El Paso, Tom Brown, El Pasoans for Traditional Family Values, Salvador Gomez, Ben Mendoza, and Elizabeth Branham. Charlie F. McNabb, City Attorney, El Paso, TX, for Appellee Richarda Momsen.

Before McCLURE, C.J., RIVERA, J., and ANTCLIFF, J.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

This is an accelerated interlocutory appeal of the trial court's order denying injunctive relief sought by Appellant, John F. Cook, who is the duly-elected Mayor of the City of El Paso.¹ In his individual capacity, Cook filed suit for injunctive and other relief against Appellees Tom Brown Ministries (TBM), Word of Life Church (WOL Church), Tom Brown (Brown), El Pasoans for Traditional Family Values (EPTFV), Salvador Gomez (Gomez), Ben Mendoza (Mendoza), Elizabeth Branham, (Branham), (collectively, “Appellees”) and Richarda Momsen in her official capacity as El Paso City Clerk (the City Clerk). Cook sought to enjoin the use of recall petitions to call an election to recall Cook as Mayor of El Paso, and City Representatives Susie Byrd and Steve Ortega from their respective offices because the petitions were knowingly and improperly financed, gathered, circulated, and submitted in violation of the Texas Election Code (Election Code). SeeTex. Elec. Code Ann. § 253.094(b) (as amended June 17, 2011) (West Supp.2011), §§ 253.003, 253.005, 253.031, 253.095, 253.131, 273.081 (West 2010). In four issues, Cook now appeals the trial court's denial of his request for injunctive relief.

BACKGROUND

Brown is the President, Chairman of the Board of Directors, and Pastor of a non-profit corporation, WOL Church.² Brown also served as the chairman of EPTFV, a specific-purpose political committee under the Election Code. As a specific-purpose committee, EPTFV was created for the specific purpose of supporting a measure described as “traditional family values” to be decided by election on November 2, 2010. Brown and EPTFV organized and led an effort to secure passage of Ordinance Number 017456, the “Traditional Family Values Ordinance,” which provided in part, “[T]he City of El Paso endorses traditional family values by making health benefits available only to city employees and their legal spouse and dependent children.” Ordinance Number 017456 was approved at the November 2, 2010, election.

On January 13, 2011, EPTFV filed a campaign finance report, including purpose and totals covering the period of October 22, 2010 through December 31, 2010. As had previously been described in such reports filed on September 29, 2010, and October 25, 2010, EPTFV's stated purpose in its filing was to support a measure described as “traditional family values” with an election date of November 2, 2010.

Thereafter, on June 14, 2011, the El Paso City Council amended Ordinance Number 017456, effectively restoring benefits to those persons who would have lost their benefits if the ordinance had not been amended. Cook, as Mayor, cast the tie-breaking vote.

Brown thereafter informed City Council that WOL Church, a corporation, could lawfully circulate recall petitions and would do so. WOL Church's social networking page on Facebook identifies its website as “www. tbm. org,” which is also the website for TBM.³ In a June 2011 statement on www. tbm. com, Brown stated that he and EPTFV, the specific-purpose committee, had decided to join in the recall efforts and specifically stated:

We need you to help as well. Will you be willing to sign the petition and go the extra mile and circulate it? If so, please click here to volunteer and make your commitment.

On July 14, 2011, EPTFV filed Texas Ethics Commission Form SPAC wherein the committee changed its address and listed its campaign treasurer as “Ronald F. Webster or Gilbert T. Gallegos.” The form included an address for Ronald Webster but was signed by Gilbert T. Gallegos. The report did not identify a purpose such as supporting, opposing, or assisting a candidate, officeholder, or measure, or an election date, and did not include reports regarding contributions or expenditures.

On July 18, 2011, Salvador Gomez, Ben Mendoza, and Elizabeth Branham filed notices of intent to file recall petitions against Mayor Cook, and City Representatives Susie Byrd and Steve Ortega, respectively. On or about July 18, 2011, Brown issued a social media statement encouraging the public to “[c]all the church to sign the petition.” Brown did not resign from his position as Chairman of EPTFV until August 23, 2011.

Temporary Restraining Order

On September 12, 2011, Cook filed suit seeking a temporary restraining order, injunctive relief, declaratory judgment, and other relief. Stating that efforts to initiate a recall election are not exempt from Texas campaign finance laws, including those that govern the participation of for-profit and not-for-profit corporations in such activity, Cook asserted that that TBM, EPTFV, and the individual Appellees were “liable for their actions as agents, officers, or directors of corporations that violated the Election Code in the circulation and submission of recall petitions in this matter.” Tex. Elec. Code Ann. §§ 253.091 (West 2010), 253.094 (West Supp.2011). Noting the ten-day timeframe within which the City Clerk is required to examine and certify the recall petitions, Cook timely sought relief as provided under Section 273.081 of the Election Code and other relevant provisions prior to the submission of the petitions for certification. Tex. R. Civ. P. 680; Tex. Elec. Code Ann. § 273.081 (West 2010); Tex. Civ. Prac. & Rem. Code Ann. § 65.001 (West 2008). The trial court issued a temporary restraining order enjoining any further circulation of petitions and scheduled a temporary-injunction hearing for September 26, 2011.

On September 13, 2011, the following day, Tom Brown, who was not a named defendant in Cook's motion for a temporary restraining order and application for temporary injunction, filed a motion along with “all of the other named defendants,” seeking to dissolve the temporary restraining order. On September 14, 2011, in response to the motion to dissolve, the trial court convened the parties, heard arguments from counsel but did not receive any evidence in support of the motion to dissolve the temporary restraining order, entered an order dissolving a portion of the temporary restraining order prohibiting the circulation of petitions and then granted affirmative relief rather than maintaining the status quo.

During that proceeding, Cook: (1) challenged Brown's standing to seek dissolution of the restraining order as he was not a named defendant and no other defendants had filed answers; (2) stated that the proceedings were not contesting an election; noted that he had requested mediation or the appointment of a master of Chancery to review evidence regarding the procurement of the petitions; (3) noted that the Texas Legislature has singled-out recall elections for special treatment by enacting Section 253.094(b)'s corporate-contribution prohibition and Section 273.081's designated relief permitting courts to enjoin illegal acts under the Election Code; (4) contended that allowing petitions that were circulated and submitted in violation of Election Code restrictions on corporate involvement in the process to call an election to recall an officeholder would expressly disregard the Legislature's intent in enacting Section 253.094(b) of the Election Code; and (5) argued that the trial court could not craft an exception to the Legislature's creation of a statutory exception permitting injunctive relief for Election Code violations. The trial court noted that Cook may be “absolutely right” that fraud and illegality may have taken place and asked if the trial court had the power to stop an election to thwart the rule of the public.

Cook argued that it was proper for the trial court, under these statutory provisions, to enjoin the illegal acts prohibited by Section 253.094(b) because he was not seeking to enjoin an election or to contest election results and the trial court had no discretion but to review the issues under the statutes as written.

The trial court announced:

I don't want to deny the Mayor that right. But at the same time I don't want to deny the people of El Paso the right to recall their elected official.... If it is illegal, if you find illegality, fraud, irregularity, cannot a District Judge under 233 declare this a void election ab initio, to simply say this is a void election, folks, from the very beginning ... [a]nd that's it. And then you go—and then you [go] through a process of having another election ... at the cost of you, the citizens of El Paso county.

Cook reiterated that allowing an illegal election to proceed and then declaring it invalid ab initio could be repeated ad infinitum without giving meaning to the Legislature's instruction. The court replied, “I want to give meaning to that section [253.094(b) ] ... but more important is the will of the people.”

The trial court also noted that its office had received calls from signatories to the petition asking if their signatures were valid or invalid and Cook's counsel noted that “[w]e have received calls ... about a lot of other issues or irregularities ... not in evidence ... [or] ... before the Court today.” The trial court again stated that it did “not want to thwart the will of the people,” would allow recall petitions to be presented to the City Clerk, and would:

[F]orce [Cook] at [the] end of...