Chief Jefferson on proper way to go wet (or stay dry)

LEGALIZING BOOZE BY POPULAR VOTE

Texas Supreme Court, in opinion by Chief Justice Wallace Jefferson, offers guidance on how to turn dry area wet where boundaries of original, historical unit that voted to ban alcohol has changed and/or otherwise no longer exists as a distinct political entity.

Online opinion features scanned image of Dallas-area prohibition map (in color) and hyperlinks to cited handbook article on prohibition in Texas. HTML Opinion page has case style and cause number in the title tag, a practice finally adopted by the court's webmaster(s) that will facilitate identification through search engines. Kudos!

In re Calla Davis, No. 07-0147 (Tex. Aug. 29, 2008)(Jefferson) (mandamus denial)(election law) (alcohol regulation by vote, procedure for local option referendum to turn dry area wet when boundaries of relevant area have changed)
IN RE CALLA DAVIS, MELVIN HURST III, AND ANN B. HEARN; 5th district(05-07-00198-CV, ___ SW3d ___, 02-22-07)motion to strike response to mandamus, as amended, deniedPursuant to Texas Rule of Appellate Procedure 52.8(a), the Court denies the petition for writ of mandamus.Chief Justice Jefferson delivered the opinion of the Court.

In the context of a local option election to change the status of a historical justice precinct, we conclude that the Commissioners Court must, upon request, delineate the boundaries of that historical precinct. After it has done so, qualified voters of that historical precinct may apply for local option election petitions. Tex. Elec. Code § 501.023(a). If the petitions are returned and certified, the Commissioner Court must then order a local option election for that historical precinct. Id. § 501.021.

Click here to read full opinion, view exhibit, and follow hyperlinks.

Mandamus! Mandamus! - Texas Supreme Court's Power Grab Continues

Q: When does the Republican Supreme Court grant mandamus, a tool supposed to be used sparingly, and only under exceptional circumstances?

A: When its favorite defendants (health care providers, large corporations, insurance companies) need it, i. e., when they did not get their way with the judge in the trial court, and don't want to wait until final judgment to bring their appeal.

The Court is even willing to create new law when the occasion calls for it, most recently to second-guess a trial judge's ruling on a venue issue, the type of order for which interlocutory appeal is not permitted.

Voilà! There it comes: A makeover and enhancement of mandamus powers just in time to aid the tort-defendants in distress brought on by wrongful-death plaintiffs.

To justify the ruling limiting trial courts' discretion in venue rulings, and subjecting them to instant review by the appellate courts, the majority paints the specter of a plaintiff dragging a defendant through the courts of all 200+ counties in the state in search of the best loci to pick a jury (affectionately referred to as "judicial hellholes" by tort reformers). But that's not all. The Court marshals res judicata to undergo a remake too. So far the judicial done-deal doctrine has not had application to claims that were nonsuited (and thus were not taken to trial, not to mention a judgment on the merits), but now it serves to butress the finality of the first venue transfer secured by the defendant, the preliminary nature of venue rulings notwithstanding.

Justice Wainwright lamely protests, but goes along in a two-sentence concurrence because the Court having crossed the Rubicon last week, the new precedent is now a jurisprudential fait accompli.

In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Green)(mandamus granted to enforce first transfer of venue; nonsuit and refiling in third county disapproved)
IN RE TEAM ROCKET, L.P., MLF AIRFRAMES, INC., AND MARK L. FREDERICK; from Fort Bend County; 14th district (14-06-00136-CV, ___ S.W.3d ___, 04-25-06)stay order issued June 13, 2006, lifted The Court conditionally grants the petition for writ of mandamus. Justice Green delivered the opinion of the Court.

EXCERPT FOLLOWS:

Although we generally do not grant a petition for mandamus for venue determinations absent extraordinary circumstances, we have granted mandamus relief when the trial court issued an improper order transferring venue that “wrongfully burdened fourteen other courts in fourteen other counties, hundreds of potential jurors in those counties, and thousands of taxpayer dollars in those counties.” Masonite, 997 S.W.2d at 199.

When, as in this case, a trial court improperly applied the venue statute and issued a ruling that permits a plaintiff to abuse the legal system by refiling his case in county after county, which would inevitably result in considerable expense to taxpayers and defendants, requiring defendants to proceed to trial in the wrong county is not an adequate remedy. See Prudential, 148 S.W.3d at 137. “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ,” Walker, 827 S.W.2d at 842, but extraordinary relief can be warranted when a trial court subjects taxpayers, defendants, and all of the state’s district courts to meaningless proceedings and trials. See Prudential, 148 S.W.3d at 137.We have granted mandamus relief in the context of Rule 87 venue rulings where, as here, the trial court made no effort to follow the rule. See Henderson v. O’Neill, 797 S.W.2d 905, 905 (Tex. 1990) (per curiam); cf. Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 442 (Tex. 1996) (per curiam) (explaining that, in that Rule 87 venue case, no extraordinary circumstances existed to justify mandamus relief).

In this case, the Creekmores defied the Harris County trial court’s venue order by attempting to have another court revisit the question of venue, which had already been decided. To say that the Fort Bend County trial court, which violated statutory venue procedure and Rule 87(5), committed reversible error while declining to correct the injustice would compromise the integrity of the venue statute and result in an irreversible waste of resources.

Interestingly, the Court was not so concerned about wasting resources when it culled the arbitration award in favor of Lemon Home Owners Cull on request of Perry Homes, and ordered a trial on the merits (while routinely enforcing arbitration when requested by employers and corporate defendants against claimants who don't have deep pockets).

Justice Wainwright delivered a concurring opinion, in which Chief Justice Jefferson and Justice O'Neill joined.

For the reasons expressed in my dissent in In re McAllen Medical Center, __ S.W.3d __, __ Tex. 2008), I respectfully disagree with the Court’s expansion of its mandamus jurisdiction beyond established legal tenets. Because the Court has indeed crossed that bridge, I reluctantly join the Court’s opinion.

Republican Court orders Democratic candidate placed on primary ballot

Supreme Court, in unsigned opinion, also suggests that would-be state-rep could be criminally prosecuted, but holds that Harris County Democratic Party Chair did not have authority to deny her certification under the Election Code, because she met the eligibility requirements and could not be disqualified by the party chair for failure to have a campaign treasurer on file with the Texas Ethics Commission.

In Re Torry, No. 08-0057 (Tex. Jan. 25, 2008)(per curiam) (election mandamus against Democratic Party chair)

IN RE LARHONDA TORRY; 1st district (01-08-00031 CV, ___ S.W.3d ___, 01-18-2008)motion for temporary relief dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.

In re LaRhonda Torry, Relator

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On Petition for Writ of Mandamus
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PER CURIAM

On January 2, 2008, the deadline by which a candidate must file an application for a place on the March 2008 primary ballot, relator LaRhonda Torry submitted with respondent Gerald Birnberg, Chair of the Harris County Democratic Party, her application and the requisite $750 filing fee to become a candidate for State Representative, District 147, in the Democratic Party Primary. See Tex. Elec. Code §§ 172.023(a), 172.024(a)(5). Birnberg accepted Torry’s application and filing fee, but rejected her application five days later.

Birnberg explained that when Torry submitted her application, she did not have a campaign treasurer appointment on file with the Texas Ethics Commission as the Election Code requires. See id. § 252.005(1)(E). Birnberg further stated that the Election Code forbids a candidate: (1) from making a campaign expenditure or accepting a campaign contribution at a time when a campaign treasurer appointment is not in effect; and (2) from accepting a cash contribution exceeding $100.[1] See id. §§ 253.031(a), 253.033(a).

Birnberg concluded that, as a result of these Election Code violations, Torry could not have lawfully paid her filing fee. Torry has since appointed a campaign treasurer.

Torry filed a mandamus petition with the court of appeals, which that court denied. __S.W. 3d__. Torry now requests that this Court issue a writ of mandamus directing Birnberg to certify Torry’s name for placement on the official ballot of the Harris County Democratic Party for the March 4, 2008, general primary election for State Representative, District 147. Sections 161.009 and 273.061 of the Election Code authorize this Court to issue a writ of mandamus to compel a political party officer to perform a duty imposed by law in connection with an election. TEX. ELEC. CODE §§ 161.009, 273.061.

Birnberg does not contend that Torry has failed to satisfy the qualifications for office of state representative set forth in Article III, Section 7 of the Texas Constitution.[2] Nor does Birnberg contend that Torry’s application failed to comply with the applicable requirements of the Election Code. See TEX. ELEC. CODE §§ 141.031, 172.021. Birnberg further acknowledges that Torry paid the $750 filing fee before 6:00 p.m. on January 2, 2008, the deadline for applying for a place on the ballot. See id. § 172.023(a). We cannot locate, and Birnberg does not identify, any Election Code provision that authorizes a party chair to refuse to certify a candidate’s name for placement on the ballot on the basis of the candidate’s failure to designate a campaign treasurer with the Texas Ethics Commission. Nor does the Election Code authorize a party chair to insert additional certification requirements beyond those prescribed in the Election Code.

Birnberg is correct that the Election Code requires a candidate for state representative to appoint a campaign treasurer and report that appointment to the Texas Ethics Commission. Id. §§ 252.001, 252.005(1)(A). Neither statute prescribes a penalty for a candidate’s noncompliance with those provisions. Birnberg is also correct in asserting that, pursuant to section 253.031(a), a candidate may not “knowingly accept a campaign contribution or make or authorize a campaign expenditure at a time when a campaign treasurer appointment for the candidate is not in effect” and that a violation of that provision is a Class A misdemeanor. Id. § 253.031(a), (f).

Additionally, a candidate may not knowingly accept from a contributor in a reporting period a cash contribution that in the aggregate exceeds $100. Id. § 253.033(a). Assuming, without deciding, that Torry violated sections 253.031(a) and 253.033(a) of the Election Code in paying the filing fee, the Penal Code would provide for any appropriate penalty. The Election Code does not authorize Birnberg, as a county party chair, to prescribe his own penalty for a candidate’s failure to comply with any of these provisions.

Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant the writ of mandamus and direct Birnberg to certify Torry as a candidate for State Representative, District 147, and take all necessary steps to include her name on the Democratic Party primary ballot. We are confident Birnberg will promptly comply, and our writ will issue only if he does not.

OPINION DELIVERED: January 25, 2008

[1] Birnberg claims that Torry accepted the $750 in cash from a woman who accompanied Torry to the headquarters to submit her application and filing fee and that this constituted a campaign contribution.

[2] Article III, Section 7 of the Texas Constitution states: “No person shall be a Representative, unless he be a citizen of the United States, and, at the time of his election, a qualified voter of this State, and shall have been a resident of this State two years next preceding election, the last year thereof a resident of the district for which he shall be chosen, and shall have attained the age of twenty-one years.” Tex. Const. art. III, § 7.