John F. Cook 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

Citation: Not availableDocket: 08-11-00367-CV

Court: Court of Appeals of Texas; February 16, 2012; Texas; State Appellate Court

Original Court Document: View Document

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John F. Cook, the Mayor of El Paso, Texas, appeals the denial of his request for injunctive relief against several appellees, including Tom Brown Ministries and the Word of Life Church, among others. Cook seeks to prevent the use of recall petitions intended to remove him and two City Representatives from office, arguing that these petitions were improperly financed and executed in violation of the Texas Election Code.

The background reveals that Tom Brown, as President of the Word of Life Church and chairman of the political committee El Pasoans for Traditional Family Values (EPTFV), played a significant role in the passage of Ordinance Number 017456, which limited health benefits to city employees and their dependents. This ordinance was approved in a November 2, 2010, election. Following this, the City Council amended the ordinance on June 14, 2011, restoring benefits to affected individuals, with Cook casting the tie-breaking vote.

After the amendment, Brown announced that the Word of Life Church would legally circulate recall petitions against Cook and the City Representatives. He actively encouraged participation in these efforts via social media, indicating a coordinated initiative to gather support for the recall. Cook's appeal raises four issues regarding the trial court's refusal to grant the injunctive relief he sought.

On July 14, 2011, EPTFV submitted Texas Ethics Commission Form SPAC, changing its address and listing Ronald F. Webster and Gilbert T. Gallegos as campaign treasurers, with the form signed by Gallegos. The submission lacked necessary disclosures, including the purpose of the committee’s activities, election dates, and contributions or expenditures. On July 18, 2011, Salvador Gomez, Ben Mendoza, and Elizabeth Branham filed notices to initiate recall petitions against Mayor Cook and City Representatives Byrd and Ortega. On the same day, Tom Brown encouraged public participation in signing the petitions but did not resign as Chairman of EPTFV until August 23, 2011.

On September 12, 2011, Cook sought a temporary restraining order, asserting that the recall election efforts were subject to Texas campaign finance laws, implicating EPTFV, TBM, and individual defendants for violations in the petition process. Cook's request was timely under the Election Code, leading to the trial court issuing a temporary restraining order against further petition circulation and scheduling a hearing for September 26, 2011.

The following day, Brown filed a motion to dissolve the restraining order along with other defendants. During the hearing on September 14, 2011, the court dissolved part of the order restricting petition circulation without evidence presented. Cook challenged Brown’s standing to seek dissolution, clarified that the matter was not an election contest, and emphasized the specific legislative provisions governing recall elections. Cook argued that allowing the petitions to proceed would contravene the Legislature's intent regarding corporate involvement in recall elections, asserting the court's role in enforcing statutory exceptions for Election Code violations.

The trial court acknowledged the possibility of fraud and illegality in an upcoming election, questioning its authority to prevent the election while respecting the public's right to recall elected officials. Cook argued that the court could enjoin illegal acts under Section 253.094(b) without contesting the election outcome itself. The court expressed its intention to balance the rights of the Mayor and the voters of El Paso, contemplating whether it could declare the election void ab initio if fraud or illegality were proven. Cook emphasized that allowing an illegal election to proceed would undermine legislative intent and democracy. The court reiterated its commitment to the will of the people and permitted the recall petitions to be presented to the City Clerk while stipulating that any subsequent claims of a void election would need to be addressed through proper legal channels, potentially incurring significant costs for the city.

On September 15, 2011, the trial court lifted several restrictions from a temporary restraining order, allowing the circulation and submission of recall petitions. Cook subsequently filed for a writ of mandamus and emergency relief, which was rendered moot when the City Clerk certified the petitions on September 22, 2011. The court dismissed Cook's petition on October 3, 2011, due to the expiration of the restraining order. A temporary injunction hearing took place over five days in late 2011, during which the District Attorney testified about ongoing investigations into potential Election Code violations, leading several witnesses to invoke the Fifth Amendment.

EPTFV, formed in 2010, had Ronald Webster as treasurer since July 2011, and he was involved since 2009. The committee filed a finance report on July 14, 2011, noting a change in campaign treasurer and address but failing to specify its purpose related to any candidate or measure. Webster confirmed the report did not establish a new political committee and referenced prior filings indicating support for a family-values measure voted on in November 2010. He stated that EPTFV had not filed any forms since July 2011 or concerning recall efforts involving Cook, Byrd, and Ortega, despite spending over $3,000 on the recall. Webster acknowledged the requirement to designate a treasurer for expenditures over $500 supporting or opposing measures, but admitted no such designation occurred for the recall. He refrained from presenting records of contributions and expenditures due to self-incrimination concerns. There is no evidence that EPTFV filed forms to repurpose the committee for the recall. Cook alleged campaign finance violations for contributions related to recall petitions, claiming EPTFV spent approximately $4,000 without proper committee designation, in violation of Texas Election Code sections. The trial court denied Cook’s request for a temporary injunction against EPTFV on November 28, 2011. Subsequently, the El Paso City Council called the recall election for April 14, 2012. Under the Election Code, individuals harmed by violations may seek injunctive relief, which does not require typical common-law elements like imminent harm. The statutory framework for injunctive relief supersedes common law requirements.

A temporary injunction aims to maintain the status quo of the subject matter in litigation until a trial occurs. The status quo refers to the last peaceful, uncontested state before the dispute. Illegal conduct cannot be justified as preserving the status quo, particularly if it involves actions that violate the law. The trial court has discretion to grant or deny a temporary injunction, and its decision is reviewed for abuse of discretion rather than the merits of the underlying case. A trial court's order can only be reversed if it is shown that the court acted arbitrarily beyond reasonable discretion. Evidence is viewed favorably towards the trial court’s order, and if conflicting evidence exists, no abuse of discretion is found. However, the review is stricter regarding legal issues, as trial courts do not have discretion in interpreting or applying the law. If the facts clearly show a legal violation, the court must issue an injunction against it, and failure to correctly apply the law constitutes an abuse of discretion.

In Issues One and Two, Cook asks whether a Texas trial court can refuse to enforce the Texas Election Code by not enjoining corporate entities and labor organizations from violating election laws related to campaign resources and expenditures. The questions focus on the trial court's discretion in enforcing these specific legal provisions.

Advisory opinions are non-binding legal determinations that address abstract legal questions and cannot be issued by courts due to the separation-of-powers doctrine. In this context, Issues One and Two, which request rulings on abstract legal questions, are overruled because they would necessitate binding the parties, contrary to legal precedent. However, the court can recognize and apply relevant law concerning these issues to address other matters before it.

In Issue Three, Cook contends that the trial court erred by denying his application for a temporary injunction. Under Texas Election Code § 273.081, if violations of the Election Code are proven, and Cook is harmed or at risk of harm from such violations, he is entitled to injunctive relief without the need to demonstrate imminent harm or lack of an adequate legal remedy. Cook alleged violations of Election Code § 253.094(b), which prohibits corporations from making campaign contributions from their own property in a measure-only election unless directed to a measure-only committee, and also bars political contributions related to recall elections. The definitions of campaign contributions and contributions are outlined, indicating that any transfer of value intended for a political campaign is considered a contribution, regardless of timing relative to the election. The Texas Ethics Commission also clarifies that in-kind contributions can include goods or services provided to political committees.

A political committee is primarily focused on accepting political contributions or making political expenditures and must appoint a campaign treasurer, as per Texas Election Code. A specific-purpose committee, distinct from a general-purpose committee, has principal purposes that include supporting or opposing identified candidates or measures, assisting identified officeholders, or supporting or opposing an unidentified candidate. A "measure" is defined as a question or proposal presented for voter expression, including petitions for potential elections.

To initiate a recall of an elected officer in El Paso, a notice of intent to circulate a recall petition must be filed with the City Clerk, and the completed petitions must be submitted within sixty days. If deemed sufficient, the City Clerk forwards the petition to the City Council, which must then order a recall election if the officer does not resign. Thus, the recall election process is categorized as a "measure."

Evidence indicated that WOL Church is a corporation, with Tom Brown as its President and Chairman. In June 2011, Brown used the church's website to solicit volunteers for circulating recall petitions. The website later included disclaimers clarifying it was owned by Brown personally and that an electronic registration form was not a petition. By July 21, 2011, the website listed various locations for recall petitions, including WOL Church. On August 8, 2011, a link for the recall of city officials was added, and the earlier disclaimer was removed. Brown asserted his Fifth Amendment right to avoid answering questions regarding the website's ownership, WOL Church’s involvement in petition circulation, and any financial contributions or use of its facilities for the recall efforts.

In civil proceedings, a trial court may infer negatively against a party who asserts the right to remain silent under the Fifth Amendment, as established by Texas Rules of Evidence and relevant case law. The Texas Election Code does not define key terms such as "goods," "services," or "thing of value." WOL Church, as a corporation, utilized its website to promote recall petitions, facilitated volunteer registration for petition circulation, and made the petitions accessible to the public. Evidence shows that WOL Church made campaign contributions related to a measure-only recall election without proper reporting to a measure-only committee, violating Texas Election Code Sections 253.096 and 253.094(b). The appellees in Citizens United argue that the activities of corporations in circulating and submitting recall petitions are protected under the First Amendment, referencing the Supreme Court's ruling in Citizens United v. Federal Election Commission, which deemed a federal restriction on corporate independent expenditures unconstitutional. The ruling acknowledged that while disclaimer and disclosure requirements could burden speech, they do not limit campaign-related activities. Following Citizens United, the Texas Legislature amended Section 253.094(b) to remove restrictions on corporations' direct campaign expenditures. However, the Texas Court of Criminal Appeals, in Ex parte Ellis, concluded that Citizens United did not alter the legal framework concerning corporate contributions, affirming that corporate political contributions are generally prohibited unless specifically authorized by the Election Code, which allows contributions from corporate property solely to political committees for measure-related elections.

The Ellis Court upheld the constitutionality of the corporate-contribution restrictions in Section 253.094 of the Election Code, confirming that corporations have multiple channels for political expression regarding measures. Corporations can: 1) contribute to political committees focused solely on measures; 2) establish their own political committees to solicit contributions from shareholders, employees, and families, which are not subject to corporate contribution limits; and 3) make independent expenditures, such as creating issue advertisements or press releases, and engage directly in communication about measures or candidates.

The court clarified that the Election Code does not prohibit all corporate contributions related to recall elections but outlines specific procedures for such contributions. Appellees were not restricted from participating in the November 2010 ballot initiative through a special purpose committee nor from expressing their views; they simply needed to comply with established protocols. The necessity for these procedures is linked to the First Amendment's protection of political speech, which emphasizes transparency through disclosure. This allows citizens and shareholders to respond appropriately to corporate political communications.

The ruling referenced the Citizens United case, which affirmed the right to political speech while mandating disclosure of contributors' identities. Section 253.094(b) of the Texas Election Code requires similar disclosure, and violations of this section were found in the lower trial court. Additionally, the court addressed allegations of violations of Sections 253.003, 253.005, and 253.031 concerning unlawful contributions and expenditures. Corporations are prohibited from contributing from their own funds in measure-only elections unless directed to a measure-only committee. Furthermore, individuals cannot knowingly make or accept contributions or expenditures that violate Chapter 253 of the Election Code.

A political committee cannot knowingly accept contributions or make expenditures exceeding $500 when a campaign treasurer is not appointed. Officers or agents of corporations committing violations under the Election Code face penalties corresponding to the offense grade applicable to the corporation. Mr. Webster, treasurer of EPTFV, testified that he was aware of the requirements for specific-purpose committees but did not establish one for the recall of Cook, Byrd, and Ortega, despite expending over $3,000 for that purpose. He refrained from presenting financial records at a hearing due to concerns about potential criminal liability, allowing for an adverse inference regarding his silence. Violations of the Election Code were confirmed, and it was determined that Cook is in danger of harm due to illegal activities surrounding the recall petitions. Cook was duly elected and cannot be reelected due to term limits. The appellees argued that the City should hold a recall election based on illegally obtained petitions, which the court rejected, stating that such petitions are invalid as they stem from illegal activity. The court emphasized that a corporation engaged in illegal political contributions cannot benefit from those actions, as they undermine the electoral rights of voters who elected Cook. Cook sought judicial relief to stop the City from acting on the improperly obtained contributions and petitions related to the recall election.

The trial court's approval of the public sentiment led to the improper dissolution of parts of a temporary restraining order and the denial of necessary injunctive relief, which ultimately facilitated the certification of recall petitions and the calling of an election. The situation could have been judicially resolved in time for corrections, warranting injunctive relief to prevent ongoing violations rather than an election contest. The clerk's certification of the petitions merely confirmed the eligibility of signers; it did not address potential illegal contributions by EPTFV, which spent over $3,000 on the recall, without a proper committee or treasurer designated for this purpose, thereby violating the Election Code. 

The trial court's failure to grant injunctive relief was deemed an abuse of discretion due to its arbitrary nature and the court’s obligation to apply the law correctly to the facts. The trial court's reasoning, focused on not thwarting public will, indicated a neglect of judicial responsibility to enforce the law. Consequently, all submitted recall petitions were found to be illegal and invalid. The court's actions obstructed the judicial process, denying Cook the relief he was entitled to, and emphasized the need for judicial independence, free from public pressure or fear of backlash. Proper law application does not hinder voters from exercising their recall rights in accordance with the Election Code.

Cook is entitled to injunctive relief due to the City's use of illegally-procured petitions, which violate the Texas Election Code, preventing ongoing or future violations. The City Clerk's claim that the issues are moot because the petitions have been certified is rejected; certification cannot validate the illegal actions affecting the petitions' legitimacy. The court distinguishes between delaying an election and facilitating the electoral process, referencing the Texas Supreme Court's decision in Blum v. Lanier. While an injunction that delays an election is impermissible, if issues can be resolved without postponing the election, injunctive relief may be appropriate. The court concludes that since the necessary preliminary actions did not comply with the Election Code, it reverses the trial court’s denial of injunctive relief, orders the City Clerk to decertify the recall petitions, and prohibits any election based on those petitions. Additionally, the Appellees’ motion to dismiss the injunctive claims as moot is denied. The ruling emphasizes that Cook is seeking relief in an individual capacity, not as the Mayor.

A person commits an offense under the Texas Election Code if they knowingly make or accept political contributions made in violation of Chapter 253. Similarly, making or authorizing political expenditures from such contributions is also an offense. In Cook’s third amended petition, he mistakenly cites a non-existent statute, Section 253.051, intending to reference Section 253.031, which regulates campaign contributions and expenditures during periods without an active campaign treasurer appointment. Appellees argue that Cook’s claims regarding Sections 252.001, 253.003, 253.005, and 253.031(b) were not part of his pleadings or the trial court proceedings. While Cook did not specifically mention Section 252.001, which mandates a campaign treasurer appointment, he alleged that defendants spent money without establishing a new political committee or designating a treasurer. No defendant raised special exceptions to Cook's pleadings during the trial, allowing for a liberal interpretation of his assertions. 

For a temporary injunction under common law, an applicant must demonstrate: (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3) probable, imminent, and irreparable injury. An injury is considered irreparable if it cannot be adequately compensated in damages. Under the Texas Election Code, an “expenditure” includes any payment or agreement to pay related to a campaign, and a political committee must report any expenditures made from political contributions, regardless of their purpose, as outlined in the Texas Ethics Commission's Campaign Finance Guide.

Defendants in the Ellis case were indicted for unlawful acceptance of corporate political contributions and money laundering. They contested the Austin Court of Appeals' conclusion that Section 253.094 of the Texas Election Code was constitutional, arguing it was both vague and overbroad. In a separate matter, Appellees challenged the timeliness and appropriateness of Cook's claims regarding violations of Sections 252.001, 253.003, 253.005, and 253.031. However, the record indicates that Cook presented evidence and arguments related to these violations during a temporary injunction hearing and included them in a third amended petition filed on November 23, 2011. The trial court denied the injunction on November 28, 2011, without any prior objections from Appellants to Cook's arguments or pleadings.