King St. Patriots v. Tex. Democratic Party

• Decision Date: 08 December 2014
• Docket Number: NO. 03–12–00255–CV,03–12–00255–CV
• Parties: King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, Appellants v. Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic Nominee for Harris County Clerk, 55th Judicial District, Appellees
• Court: Texas Court of Appeals

459 S.W.3d 631

King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, Appellants

v.Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic Nominee for Harris County Clerk, 55th Judicial District, Appellees

NO. 03–12–00255–CV

Court of Appeals of Texas, Austin.

Filed: December 8, 2014

Rehearing Overruled March 13, 2015

James Bopp Jr., Randy Elf, The Bopp Law Firm Terre Haute, IN, Brock C. Akers, Houston, TX, Michael S. Hull, Hull Henricks LLP, Jonathan Michael Saenz, Margaret A. Wilson, Austin, TX, Justin Edward Butterfield, Hiram Stanley Sasser III, Jeffrey C. Mateer, Kelly J. Shackelford, Liberty Institute, Plano, TX, for Appellants.

K. Scott Brazil, Chad Wilson Dunn, Brazil & Dunn LLP, Houston, TX, Dicky Grigg, Spivey Grigg, LLP, Austin, TX, for Appellees.

Before Chief Justice Jones, Justices Rose and Goodwin

OPINION

Melissa Goodwin, Justice

We withdraw our opinion issued on October 8, 2014, and substitute this one in its place. We overrule appellants' motion for rehearing.

This appeal is limited to facial challenges to the constitutionality of various Election Code provisions. See Tex. Elec. Code §§ 251.001, 253.003, 253.031, 253.037, 253.091, 253.094, 253.095, 253.101, 253.102, 253.103, 253.104, 253.131, 253.132, 273.081 ; Act of June 19, 1987, 70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (former sections 253.062 and 253.097, repealed 2011). Facing cross-motions for summary judgment, the trial court ruled against appellants King Street Patriots (KSP), Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs, the parties facially challenging the constitutionality of the Election Code provisions. The trial court concluded that it did not have jurisdiction to consider some of appellants' constitutional challenges and, as to the remaining challenges, the trial court upheld the constitutionality of the Election Code provisions at issue. For the reasons that follow, we affirm the trial court's judgment.¹

BACKGROUND

The Texas Democratic Party, Boyd Richie,² in his capacity as Chairman of the Texas Democratic Party, John Warren, in his capacity as Democratic nominee for Dallas County Clerk, and Ann Bennett, in her capacity as the Democratic nominee for Harris County Clerk, 55th Judicial District (collectively “TDP”), brought suit against appellants seeking damages and injunctive relief based upon alleged Election Code violations. SeeTex. Elec. Code §§ 253.131, 253.132, 273.081. Their allegations included that KSP made unlawful political contributions to the Texas Republican Party and its candidates (collectively “TRP”) with regard to the 2010 general election by training poll watchers in coordination with the TRP and then offering the poll watchers' services only to the TRP. TDP also alleged that, based upon its political activities, KSP was “a sham domestic nonprofit corporation” and “an unregistered and illegal political committee.” TDP asserted claims against KSP for Election Code violations based upon KSP's status as a political committee and its status as a corporation.

Appellants answered and filed a counterclaim. They asserted that KSP was formed as a non-profit Texas corporation on December 30, 2009, to “provide education and awareness” to the “general public on important civic and patriotic duties.” They stated that they “decided that a good way to participate was to help ensure that elections are free and fair” and that they “assisted anyone who was interested in this project in becoming a poll watcher.” Their counterclaim sought declaratory relief challenging the constitutionality of Election Code provisions. Appellants claimed that the Election Code provisions at issue violated the First, Fourth, Eighth, and/or Fourteenth Amendments to the United States Constitution. See U.S. Const. amends. I, IV, VIII, XIV, § 1.

The parties entered into a rule 11 agreement to sever appellants' counterclaim challenging the facial constitutionality of the Election Code provisions into a separate cause number by agreed order and to abate the remaining claims until the new cause was resolved. Per that agreement, the trial court severed KSP's counterclaim into this cause and realigned the parties. The parties then filed cross-motions for summary judgment. See Tex. R. Civ. P. 166a.

In their motion for summary judgment, TDP urged that the applicable provisions of the Election Code were facially constitutional. See Tex. Elec. Code §§ 251.001, 253.031, 253.094, 253.104, 253.131, 253.132, 273.081. Among the grounds asserted to support summary judgment, TDP argued that sections 251.001, 253.094, and 253.131 had already been determined constitutional. To support this ground, TDP cited the opinions in Ex parte Ellis, 309 S.W.3d 71 (Tex.Crim.App.2010), Osterberg v. Peca, 12 S.W.3d 31 (Tex.2000), and Castillo v. State, 59 S.W.3d 357 (Tex.App.–Dallas 2001, pet. ref'd).

Appellants countered in their motion for summary judgment that the applicable Election Code provisions were facially unconstitutional. Among the grounds asserted to support summary judgment in their favor, appellants urged that: (i) the sections creating private rights of action for Election Code violations, see Tex. Elec. Code §§ 253.131, 253.132, 273.081, violated the First, Fourth, and Fourteenth Amendments; (ii) the sections prohibiting corporate contributions and expenditures, see id. §§ 253.091, .094, were unconstitutional under Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and violated the First and Fourteenth Amendments; (iii) the definitions of contributions and expenditures, see Tex. Elec. Code § 251.001(2) –(10), were unconstitutionally overbroad and vague; (iv) the definitions of political committees, see id. § 251.001(12), (14), were unconstitutionally overbroad and vague and violated the First Amendment; (v) the direct expenditure sections, see id. former §§ 253.062, .097, violated the First Amendment; (vi) the sections with “thirty and sixty day blackout periods,” see id. §§ 253.031(c), .037(a), violated the First Amendment; and (vii) the sections providing criminal penalties, see id. §§ 253.003, .094, .101, .102, .103, .104, violated the Eighth Amendment.

Appellants did not offer summary judgment evidence to support their motion. TDP's evidence included affidavits, documents, and videos concerning KSP's recruitment and training of poll watchers.³ The parties also stipulated to the following facts:

a. King Street Patriots, during and in advance of the 2010 General Election for State and County Officers, conducted, at its own expense, a training and recruitment program for poll watchers. Many of these KSP located and trained poll watchers were subsequently appointed to serve under Texas Election Code §§ 32.002 –.003 by the Harris County Republican Party Chairman and/or Republican Nominees with regard to the 2010 General Election for State and County Officers.

b. Plaintiffs, the Texas Democratic Party, Boyd Richie, John Warren, and Ann Bennett, using the private right of action found in Tex. Elec. Code §§ 273.081, 253.131, and 253.132, intend to enforce Texas Election Code sections 251.001(2), (3), (4), (5), (6), (7), (8), (9), (10), (12), (14), 253.031(c), 253.037(a)(1) and (b), 253.062, 253.094, 253.097, and 253.104 against Defendants–Counterclaimants, King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, based on alleged political speech the Defendants–Counterclaimants have engaged in, and intend to continue to engage in, in the future.

The trial court granted summary judgment against appellants and in favor of TDP. The trial court declared that Election Code sections 251.001(2), (3), (5), (6), (7), (8), (10), (12), and (14), 253.031, 253.037, 253.094, 253.104, 253.131, 253.132, and 273.081 and former sections 253.062 and 253.097 were facially constitutional. The trial court also concluded that it did not have jurisdiction to grant declaratory relief with respect to sections 251.001(4) and (9), the officeholder definitions, sections 253.031(c) and 253.037(a), the “blackout” periods, and the criminal penalties contained in sections 253.094(c), 253.003(e), 253.101, 253.102, 253.103, and 253.104. The trial court concluded that it did not have jurisdiction with respect to those provisions because they were not at issue in the case. This appeal followed.

ANALYSIS

Appellants bring six issues on appeal, primarily tracking the grounds raised in their motion for summary judgment. Appellants challenge the constitutionality of the sections of the Election Code that create a private right of action, the sections that allegedly “ban” corporate contributions and expenditures, the section defining various terms, the sections allegedly creating “blackout” periods, and the sections containing criminal penalties for violations of the Election Code. Appellants contend that the trial court erred by concluding that it did not have jurisdiction with respect to some of these challenged Election Code provisions and that it erred by declaring the remaining Election Code provisions facially constitutional.

Standards of Review

We review a trial court's summary judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a traditional motion for summary judgment, the movant must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003). When, as is the case here, both parties move for summary judgment and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides, determine all questions presented, and render the...