Lee v. Dall. Cnty. Democratic Party, 05-18-00715-CV
| Decision Date | 20 September 2018 |
| Docket Number | No. 05-18-00715-CV,05-18-00715-CV |
| Parties | MICHAEL G. "MIKE" LEE, CANDIDATE FOR 101ST DISTRICT COURT; THE DALLAS COUNTY REPUBLICAN PARTY; MISSY SHOREY AS DALLAS COUNTY REPUBLICAN PARTY CHAIR, Appellants v. THE DALLAS COUNTY DEMOCRATIC PARTY; CAROL DONOVAN, AS THE DALLAS COUNTY DEMOCRATIC PARTY CHAIR, AND STACI WILLIAMS, CANDIDATE FOR 101ST DISTRICT COURT, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 44th Judicial District Court Dallas County, Texas
Before Justices Bridges, Fillmore, and Myers
Opinion by Justice Myers
This appeal involves an election contest between appellant Michael G. "Mike" Lee, the Republican Party candidate for judge of the 101st District Court, and appellee Staci Williams, the incumbent and Lee's Democratic Party opponent. For the reasons that follow, we dismiss this appeal as moot.
In the underlying proceeding, Lee challenged Williams's nominating petitions. Specifically, Lee averred below that Williams's application for a place on the ballot was invalid because the circulators' names were not on each page of the nominating petitions circulated. The trial court rejected the challenge and signed a final judgment on March 19, 2018. Lee, the Dallas County Republican Party, and Missy Shorey, chair of the Dallas County Republican Party (collectively "appellants") requested findings of fact and conclusions of law, which the trial court signed on April 6, 2018. Appellants did not file their notice of appeal, however, until June 18, 2018. Appellants stated in their docketing statement that this was not an accelerated appeal and the appeal should not receive precedence, preference, or priority under any statute or rule. Similarly, appellants did not request that the appeal be briefed on an expedited schedule.
When the reporter's record became overdue and the reporter notified the Court that payment had not been received for the reporter's record, we directed appellants to provide the Court with written verification showing the reporter's record had been requested and that appellants had paid for or made arrangements to pay for the record or had been found entitled to proceed without payment of costs. We cautioned appellants that failure to provide the required documentation within ten days might result in the appeal being ordered submitted without the reporter's record. On August 21, 2018, after appellants failed to provide the required documentation or otherwise correspond with the Court regarding the status of the reporter's record, we ordered the appeal submitted without a reporter's record. We also ordered, on the Court's own motion, an expedited briefing schedule because the appeal involves an election contest that could become moot if not decided before absentee balloting begins. See, e.g., Price v. Dawson, 608 S.W.2d 339, 340 (Tex. Civ. App.—Dallas 1980, no writ) (election contest moot because absentee balloting began during pendency of the appeal); TEX. ELEC. CODE § 86.004. We ordered appellants' briefs filed on or before August 31, 2018, appellees' briefs filed on or before September 10, 2018, and appellants' reply briefs, if any, filed on or before September 14, 2018.
Despite the August 21, 2018 order, the court reporter requested a thirty-day extension of time to file the reporter's record. By order dated August 27, 2018, we requested that appellants file a response to the reporter's extension request by noon on August 28, 2018. We explained that a response was needed because a 30-day extension would severely impact the Court's ability todecide the appeal before the case became moot. Neither Lee nor Shorey filed a response. The Dallas County Republican Party responded that it would prefer to proceed without a reporter's record "if this Court believes waiting on the record further will significantly impair or impact this Court's ability to render decision because such a decision would be moot." Accordingly, we denied the extension of time to file the reporter's record and left the August 21, 2018 order in effect.
Briefing is now complete in accordance with the expedited briefing schedule. Appellees also filed motions to dismiss the appeal contemporaneously with their merits briefs. Appellants have responded to the motions to dismiss and appellees have replied. Appellees maintain that the appeal should be dismissed because ballots for the November 6, 2018 general election are being printed, the ballots must be mailed by Saturday, September 22, 2018, and any action taken by this Court so close to those deadlines will interfere with the orderly process of the election. Appellees further argue that appellants could have avoided mooting the appeal by either filing this appeal months ago and seeking expedited review or seeking mandamus relief from this Court or the Texas Supreme Court as provided by section 273.061 of the Texas Election Code. Appellees maintain that appellants' delay has rendered the case moot and requires dismissal. Appellants argue in contrast that there is still sufficient time to rule before the ballots are mailed. They also argue that this case involves a matter capable of repetition yet evading review that excepts it from being deemed moot.
Time is of the essence when seeking relief in an election contest. Duncan v. Willis, 157 Tex. 316, 321, 302 S.W.2d 627, 630 (1957) () (citing cases); In re Jones, No. 05-18-00065-CV, 2018 WL 549531, at *2 (Tex. App.—Dallas Jan. 24, 2018, orig. proceeding). "The constraints on a court's action are determined by the election schedule." In re Meyer, No. 05-16-00063-CV,2016 WL 375033, at *4 (Tex. App.—Dallas Feb. 1, 2016, orig. proceeding). Based on separation of powers concerns, no order by this Court or the trial court may interfere with the orderly process of the election. Id. The law for more than eighty years—since Miriam "Ma" Ferguson's second election as governor—provides that a challenge to the political candidacy of an office-seeker becomes moot "when any right which might be determined by the judicial tribunal could not be effectuated in the manner provided by law." Sterling v. Ferguson, 53 S.W.2d 753, 761 (Tex. 1932).
"Once the time to practically permit continuing judicial scrutiny (including any attendant appellate review) of the absentee ballot has expired, the case has become moot." In re Jones, 2018 WL 549531, at *3; Law v. Johnson, 826 S.W.2d 794, 796-97 (Tex. App.—Houston [14th Dist.] 1992, orig. proceeding) (contest to candidacy is moot when contest cannot be tried and final decree issued in time for it to be complied with by election officials).
Any injunction or attempt on our part to delay the election process once it commences would be improper. See In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002). An election commences when absentee balloting begins. Lerma v. Ramon, 760 S.W.2d 727, 730 (Tex. App.—Corpus Christi 1988, no writ) (internal citations omitted). Accordingly, an election contest is moot and the issue no longer justiciable once ballots have been mailed to overseas and military absentee voters. In re Lopez, No. 12-18-00016-CV, 2018 WL 720344, at *3 (Tex. App.—Tyler Feb. 6, 2018, orig. proceeding) (challenging rejection of application for place on the ballot as moot because early voting by mail had already begun); In re Crenshaw, No. 05-17-00330-CV, 2017 WL 1292013, at *1 (Tex. App.-Dallas Apr. 7, 2017, orig. proceeding) (mem. op.) (same); Clark v. Lanier, No. 01-93-00899-CV, 1993 WL 418338, at *1 (Tex. App.—Houston [1st Dist.] Oct. 21, 1993, no writ) ("An election contest arising out of a candidate's application for a place on the ballot must be dismissed as moot when early voting by absentee ballot begins").
But election contests may become moot earlier. Such contests have been held to be moot when the deadline for mailing ballots is imminent. See, e.g., Smith v. Crawford, 747 S.W.2d 938,939-40 (Tex. App.—Dallas 1988, orig. proceeding) (challenge filed one day prior to beginning of absentee voting is moot; any order entered would interfere with orderly process of election); see also In re Jones, 2018 WL 549531, at * 5 (). Similarly, such contests have been held to be moot once the printing of ballots is imminent or has begun. See, e.g., In re O'Brien, No. 05-18-00984-CV, 2018 WL 4141484, at *2 (Tex. App.—Dallas Aug. 29, 2018, orig. proceeding) (mem. op.) (declining to take any action on challenge to composition of general election ballot where deadline for printing ballots was imminent); see also McGee v. McKaskle, 499 S.W.2d 755, 756 (Tex. Civ. App.—Houston [1st Dist.] 1973, no writ) ( temporary injunction as moot where there was insufficient time for conducting a final trial and for the unsuccessful party to exhaust appellate rights before the deadline for printing ballots); Price v. Dawson, 608 S.W.2d 339, 340 (Tex. Civ. App.—Dallas 1980, no writ) ("An election contest is moot if it would, with certainty, interfere with the printing of the official ballot"). Simply put, an election contest is moot once it becomes "too late to invalidate a candidate and print new absentee ballots in time for the beginning of the casting of ballots." Law, 826 S.W.2d at 797.
This mootness doctrine implicates our subject-matter jurisdiction as well as that of the trial court. In re Meyer, 2016 WL 375033, at *4; see also In re Jones, 2018 WL 549531, at * 5 (). Appellate courts lack subject matter jurisdiction to decide moot controversies. Nat'l...
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