In re Bruce Bishop, 05-18-01333-CV
| Decision Date | 06 March 2020 |
| Docket Number | No. 05-18-01333-CV,05-18-01333-CV |
| Parties | IN RE BRUCE BISHOP, ASHLEY HUTCHESON, DALLAS COUNTY REPUBLICAN PARTY AND MISSY SHOREY, Relators |
| Court | Court of Appeals of Texas |
OPINION DISSENTING FROM WITHDRAWAL OF OPINION
Before the Court sitting En Banc
Opinion by Justice Schenck
A majority of the court sitting en banc has ordered withdrawal of the panel opinion in this case though no party has requested it. The majority explains its rationale for doing so as being in the "public interest." A separate concurring opinion explains the majority's reasoning in support of that conclusion. In Part I below, I will address the decision to withdraw the panel opinion. In Part II, I will address the merits as addressed in the separate concurring opinion.
As detailed below, I agree that it is useful, indeed necessary, that the Court explain its rationale for withdrawing the panel opinion. Although the majority indicates that it is withdrawing the opinion as a matter of discretion because doing so is said to be in the public interest, it does not explain what that public interest is, leaving the reader to surmise its rationale. While I have no doubt that any court of appeals justice is entitled—arguably obliged—to express his or her views on any decision we make under appellate rule 47.5, including the decision to withdraw, when we act as a court our actions must be premised on a valid exercise of our subject-matter jurisdiction. And, of course, where a court acts on the merits despite its lack of subject-matter jurisdiction, the order is void and subject to the simplest form of mandamus correction. Crouch v. Craik, 369 S.W.2d 311, 314 (Tex. 1963) (orig. proceeding). Thus, the rationale underlying our invocation of "public interest" cannot be an adoption of the rationale of the concurring opinion.
Here, of course, our jurisdiction is extremely limited. See Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993) (). Namely, our jurisdiction is now limited to the question of what should be done with a panel decision that became moot after it was issued to the public. For reasons that should be obvious, no court that I am aware of has ever suggested that disagreement with apanel decision in a case that has ended is a proper basis for withdrawing the opinion. Were it otherwise, we could simply begin perusing the pages of the Southwest first, second, and third reporters to remove those pages we disapprove of. Once we conclude that we have lost plenary subject-matter jurisdiction, as we presumably have over those cases and this one alike, we cannot exercise subject-matter jurisdiction over the merits. Any attack on completed cases, like this one, must be collateral to its merits.
Accordingly, I do not believe the Court's authority to withdraw can turn upon a merits decision despite its own conclusion that it lacks subject-matter jurisdiction. Indeed, as the majority does not attempt to explain the basis for its determination that the public interest supports its decision to withdraw, I assume that it is not purporting to issue an advisory opinion on behalf of the Court. Instead, it is simply issuing a withdrawal decision without any substantive explanation. See In re Columbia Med. Ctr., 290 S.W.3d 204, 211 (Tex. 2009) (orig. proceeding) ("We require courts to explain by written opinion their analyses . . . ."); Lujan v. Houston Gen. Ins., 756 S.W.2d 295, 296 (Tex. 1988).
Putting aside its mysterious rationale, the majority's sua sponte decision to withdraw the panel opinion is unprecedented in this Court's long history, contrary to those decisions from this Court and others that inform our decision, and has theresult of exacerbating, rather than resolving, continuing uncertainty in an area of law badly in need of clarification.
The panel decision in this case was issued while this Court had jurisdiction to decide this matter. It decided, correctly in my view, and in keeping with long and unbroken precedent of the Texas Supreme Court, that an "election contest" includes not only disputes over the proper result of a completed election—something the Election Code describes separately as a "contest for office"—but also "every step of the process . . . from announcement of the candidate to the declaration of the result." Dickson v. Strickland, 265 S.W. 1012, 1018 (Tex. 1925). While that conclusion has been followed in this Court continuously since Bickley v. Lands, 288 S.W. 514, 515 (Tex. App.—Dallas 1926, no writ), and others even in the relatively brief time since the release of our panel's decision here,1 it has not been universally recognized in other courts. Contra Maddox v. Commr's Court of Palo Pinto Cty., 222 S.W.2d 475 (Tex. App.—Eastland 1949, no writ). That conclusion, adhered to by the panel that issued the opinion the majority now withdraws, results in the application of a series of important procedural safeguards meant to assure the voter's right to a fair election, including prohibitions against resolution by default or by a judge whose own electionwill be animated by the same partisan forces that will play out at trial. See TEX. ELEC. CODE ANN. § 221.004. The questions at this point are (1) whether we have jurisdiction to make a merits determination in view of a settlement between the parties and (2) if not, whether we should exercise discretion to withdraw the panel opinion.
As so often happens in these cases, the controversy has become moot as a result of the passage of time. I gather from the majority's decision that we have decided that the issue here does not qualify for continued internal debate on the merits as an en banc court. I myself would find that a close question as there is little doubt that the basic question raised in this case is certain to recur and has become the quintessential example of an issue that evades review. See Tex. A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011). Few modern appellate cases have addressed the evading review exception to mootness in the context of election contests and none to my knowledge have done so after (1) Texas advanced the date of its primary elections to early March and (2) the length of time to print and mail overseas ballots was shortened in 2009 under the Military and Overseas Voter Empowerment Act. See 52 U.S.C. § 20302. Indeed, I am not aware of a single appellate decision to have addressed the merits of a ballot issue since.
While the announcement of the primary candidates—and the start of any disputes over that ballot—still takes place in the December preceding the Marchelection, the ballots must be mailed to overseas voters not later than 45 days before the early March "super Tuesday" primary election. As we have warned repeatedly, the resulting duration leaves little time for the usual trial practice or the parties' concomitant right to appellate review. In re Jones, Nos. 05-18-00065-CV, 2018 WL 549531, at *2 (Tex. App.—Dallas Jan. 24, 2018, orig. proceeding) (mem. op.) (per curiam). Even in the rare case where the trial court is able to render a judgment after trial, operation of the judgment is automatically suspended by the filing of a notice of appeal, leading to troubling results like De La Paz v. Gutierrez, No. 13-19-00133-CV, 2019 WL 1891137 (Tex. App.—Corpus Christi-Edinburg Apr. 29, 2019, no pet.) (mem. op.) (trial court judgment that primary run-off election was product of fraud, though affirmed on merits, rendered moot by operation of automatic stay of Election Code § 232.016 during appeal).2 As a result, we have reminded litigants of their ability to seek expedited review by-passing the trial court or even this Court as time runs down. In re Jones, 2018 WL 549531, at *2; ELEC. CODE § 273.061. As it stands, modern evading review precedent appears to foreclose any further merits resolution in this case or others like it. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).
As the De La Paz decision correctly observes, the evading review exception requires some indication that the same controversy is likely to arise not just as to someone who will be before the court in the future, but the same two parties before it in the pending case. 2019 WL 1891137, at *4 (citing Yarbrough, 347 S.W.3d at 290; Lara, 52 S.W.3d at 184)). The majority must have come to the same result in deciding to abandon the en banc proceedings based on the settlement. And, while I think it is certain that we will have future cases raising the question of which rules apply (i.e., whether these pre-election controversies are "election contests"), and, as we have repeatedly warned, they will evade meaningful review, I believe further development of the question in this case would require clarification from the Texas Supreme Court.
I will observe two implications of this result. The first concerns the role of election law—indeed the rule of law at all—in our elections. Agreeing as I do with De La Paz, and cases warning of the need to permit time for review of election contests by appellate courts, we are left with a set of election laws that either: (1) are practically unenforceable because the compressed timeframe makes trial and appeal in these cases impossible and mootness virtually certain; or (2) these laws can only be practically enforced—to the extent they do not require factual development and discovery—by direct mandamus to the supreme court as permitted by the ElectionCode.3 Second, the fact that this case is beyond the reach of...
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