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Cook v. Tom Brown Ministries
Citations: 385 S.W.3d 592; 2012 Tex. App. LEXIS 1318; 2012 WL 525451Docket: No. 08-11-00367-CV
Court: Court of Appeals of Texas; February 16, 2012; Texas; State Appellate Court
Ann Crawford McClure, Chief Justice, addresses an accelerated interlocutory appeal regarding the trial court's denial of injunctive relief sought by John F. Cook, the Mayor of El Paso. Cook filed a lawsuit against several parties, including Tom Brown Ministries, Word of Life Church, Tom Brown, and El Pasoans for Traditional Family Values, to prevent the use of recall petitions aimed at removing him and City Representatives Susie Byrd and Steve Ortega from office. Cook alleges that these petitions were improperly financed and circulated, violating the Texas Election Code. Tom Brown, the leader of a nonprofit church and chairman of a specific-purpose political committee supporting traditional family values, led efforts for the passage of Ordinance Number 017456, which restricted health benefits for city employees. After the ordinance was amended in January 2011, Cook cast the deciding vote. Following this, Brown announced that WOL Church would legally circulate recall petitions. Notices of intent to file these recall petitions were submitted in July 2011 by Gomez, Mendoza, and Branham, with Brown promoting the petitions through social media. The appeal involves four specific issues related to the trial court's ruling on the injunctive relief request. On September 12, 2011, Cook initiated a lawsuit seeking a temporary restraining order, injunctive relief, and a declaratory judgment, arguing that the efforts to initiate a recall election were subject to Texas campaign finance laws, which restrict corporate involvement. Cook claimed that TBM, EPTFV, and individual Appellees were liable for violating the Election Code during the recall petition process. He sought immediate relief under Section 273.081 of the Election Code, prompting the trial court to issue a temporary restraining order against further circulation of the petitions and to schedule a hearing for September 26, 2011. On September 13, Tom Brown, not named in Cook's initial motion, sought to dissolve the restraining order along with other defendants. The trial court convened a hearing on September 14, where Cook contested Brown's standing to seek dissolution and emphasized that the case did not challenge an election but rather the legality of the petition circulation. Cook argued that allowing petitions collected in violation of corporate involvement restrictions would undermine legislative intent. The trial court acknowledged the potential for fraud and illegality but questioned its authority to halt the election process. Cook maintained that the court had no discretion but to enforce the statutes against illegal actions. The trial court expressed a desire not to infringe upon the people's right to recall but raised concerns about the implications of declaring an election void ab initio, suggesting this could lead to repeated cycles of illegality. Cook cautioned that allowing such elections to proceed would negate the Legislature’s intent. The court emphasized the importance of upholding the will of the people regarding section 253.094(b) and indicated a willingness to allow recall petitions to be presented to the City Clerk. The trial court noted receiving inquiries from petition signatories about the validity of their signatures and acknowledged irregularities not yet presented in evidence. It stated that Cook would eventually need to file a petition asserting that the election was void from the beginning, which could lead to significant costs for the City of El Paso but was part of the democratic process. On September 15, 2011, the court dissolved several restrictions from a temporary restraining order related to the circulation and submission of recall petitions by various parties and mandated the City Clerk to accept all original recall petitions. Cook subsequently filed a writ of mandamus and an emergency motion for relief, but his petition was dismissed on October 3, 2011, as the restraining order had expired and the issues were deemed moot. A temporary injunction hearing took place over five days in October and November 2011, during which the District Attorney testified about potential criminal violations of the Election Code, leading several witnesses to invoke the Fifth Amendment. EPTFV Treasurer Ronald Webster testified about the group's formation and its involvement in the recall effort against Cook and others. He acknowledged the group's prior filings with the City Clerk but admitted they had not filed any forms since July 2011 nor related to the recall efforts, despite spending over $3,000 to support the recall. Mr. Webster acknowledged the requirement for a designated treasurer and specific-purpose committee to support or oppose a measure and confirmed that no treasurer had been appointed for any committee other than EPTFV related to the November 2, 2010 election. He refrained from providing records of contributions and expenditures due to self-incrimination concerns. There is no evidence that EPTFV filed any forms with the Texas Election Commission to repurpose the committee or create a new one for recalling officeholders Cook, Byrd, or Ortega. Cook alleged that EPTFV violated campaign finance laws by spending approximately $4,000 without a new specific-purpose committee or a designated treasurer, violating several sections of the Texas Election Code. On November 28, 2011, the trial court denied Cook's request for injunctive relief without further argument. Judicial notice was taken that the El Paso City Council called the recall election for April 14, 2012. Individuals can appeal interlocutory orders related to temporary injunctions. The Election Code allows for injunctive relief to prevent violations, and statutory provisions supersede common law requirements for establishing injunctive relief. The purpose of a temporary injunction is to maintain the status quo until a trial, which is defined as the last non-contested status prior to the dispute. However, continuing illegal conduct cannot be justified as maintaining the status quo. The decision to grant or deny a temporary injunction is at the trial court's discretion. The review of a trial court’s order on injunctive relief does not involve examining the merits of the underlying case. An order may be reversed only upon demonstrating an abuse of discretion, which occurs if the trial court’s decision is arbitrary and exceeds reasonable discretion. The reviewing court must view evidence favorably towards the trial court and consider reasonable inferences, particularly when conflicting evidence is present. However, the standard of review is less deferential for legal issues, as a trial court cannot exercise discretion in determining or applying the law. If clear factual violations of the law are established, the trial court is obligated to issue an injunction against the violation. In Issues One and Two, the questions presented involve whether a trial court has discretion to not enforce specific provisions of the Texas Election Code regarding illegal resource provision and political expenditures. The appellate court notes that it cannot provide advisory opinions on abstract legal questions without the context of the case facts, which would bind the parties. Thus, these issues are overruled, but the court remains able to recognize and apply relevant law to the remaining issues before it. Cook challenges the trial court's denial of his application for a temporary injunction, arguing that he is entitled to injunctive relief under the Texas Election Code if evidence indicates an ongoing or potential violation that harms him. According to Tex. Elec. Code Ann. 273.081, no proof of imminent harm, irreparable injury, or lack of an adequate legal remedy is needed to justify this relief. Cook cites violations of Section 253.094(b), which prohibits corporate campaign contributions in measure-only elections unless directed to a measure-only committee, and specifically bars contributions in recall elections, including those related to petitioning for such elections. A political contribution is defined broadly to include any transfer of value related to campaigning, regardless of timing. The Texas Ethics Commission clarifies that in-kind contributions include goods or services, and future pledges to contribute are also considered contributions. Political committees, which must appoint a campaign treasurer, are defined based on their primary purpose of accepting contributions or making expenditures, with specific-purpose committees supporting identified candidates or measures. A "measure" under the Election Code refers to a question or proposal presented in an election, including the process of circulating and submitting a petition to gauge voter sentiment (Tex. Elec. Code Ann. 251.001(19)). 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 petitions must be submitted within sixty days. Upon verifying the petition's sufficiency, the City Clerk submits it to the City Council, which must call a recall election if the officer does not resign (El Paso, Tex. Ordinance 8066). Evidence indicated that WOL Church, a corporation led by President and Chairman Tom Brown, used its website to solicit volunteers for circulating recall petitions in June 2011. The website included an electronic registration form for volunteers, disclaiming ownership by WOL Church. In July 2011, the site listed locations for signing recall petitions, including WOL Church. On August 8, 2011, it linked to a recall effort for city officials, removing the prior disclaimer. Brown invoked his Fifth Amendment right against self-incrimination regarding several inquiries about WOL Church's involvement in the recall efforts. The trial court may infer negatively from his silence. Although the Election Code lacks definitions for "goods," "services," or "thing of value," it is evident that WOL Church facilitated the recall petition process through its website, provided premises for signing, and informed the public about the petitions. WOL Church improperly made campaign contributions from its own funds related to a measure-only recall election without directing the contributions to a designated measure-only committee, violating Tex. Elec. Code Ann. 253.096. As a corporation, WOL Church also made political contributions in connection with the recall election, including petition circulation and submission, without routing these contributions through a political committee, contravening Sections 253.096 and 253.094(b) of the Election Code. In response, Citizens United Appellees argue that the activities of circulating and submitting recall petitions by corporations constitute protected First Amendment speech, referencing the Supreme Court's ruling in Citizens United v. Fed. Election Comm’n, which deemed federal restrictions on corporate independent expenditures unconstitutional. The Court acknowledged that while disclaimer and disclosure requirements may impose some burdens, they do not limit campaign-related activities or prevent free speech. Following this decision, the Texas Legislature amended Section 253.094(b) to remove restrictions on corporate direct campaign expenditures. In Ex parte Ellis, the Texas Court of Criminal Appeals concluded that Citizens United did not alter the legal framework regarding corporate contributions, asserting that corporate political contributions remain prohibited unless authorized by the Election Code. The court clarified that corporations may contribute from their own property to a political committee focused on measures. It rejected constitutional challenges to the corporate-contribution restrictions in Section 253.094, affirming that corporations have several avenues for political expression regarding measures: contributing to a measure-focused political committee, creating their own political committee to solicit contributions from shareholders and employees, or making independent expenditures, such as running issue ads or issuing press releases. The Court clarified that the Texas Election Code allows corporate political committees to solicit contributions and make independent expenditures for issue advocacy, regardless of whether a measure is on the election ballot. It emphasized that while corporate contributions are not outright banned in recall elections, they must comply with established protocols in the Election Code. The Appellees were permitted to pursue initiatives through a special purpose committee, EPTFV, and were not restricted from expression, provided they adhered to the required processes. The necessity for these procedures is rooted in the First Amendment, which protects political speech and mandates disclosure to foster informed decision-making among citizens and shareholders. The Court referenced Citizens United, which affirmed the right to political speech while also requiring transparency regarding the identities of speakers. The Texas Election Code mandates disclosure, as outlined in Section 253.094(b), and violations of this section were identified in the lower court. Furthermore, allegations were made regarding violations of Sections 253.003 (prohibiting unlawful contributions), 253.005 (prohibiting expenditures from unlawful contributions), and 253.031(b) (prohibiting contributions and expenditures without a campaign treasurer). Corporations are restricted from making campaign contributions in measure-only elections unless directed to a measure-only committee, with the definition of a 'measure' encompassing questions or proposals presented for voter expression. Lastly, knowingly making or accepting political contributions in violation of Chapter 253 of the Election Code is prohibited. A political committee cannot accept or authorize political contributions or expenditures exceeding $500 without a valid treasurer appointment in effect, as outlined in Tex. Elec. Code Ann. 253.031(b). Individuals associated with a corporation that violates these provisions face penalties equivalent to the offense committed by the corporation per Tex. Elec. Code Ann. 253.094(e). During a temporary injunction hearing, Mr. Webster, treasurer of EPTFV, testified that he understood the requirements for specific-purpose committees but confirmed that no new committee was established for the recall efforts against Cook, Byrd, and Ortega. He admitted to spending over $3,000 on these efforts after the original purpose of EPTFV had concluded, without properly appointing a treasurer for a specific-purpose committee. Webster refrained from bringing financial records to the hearing, citing a fear of criminal liability, allowing for an adverse inference regarding his testimony. The document concludes that violations of the Election Code have occurred, resulting in harm to Cook, who was duly elected Mayor and whose term ends in May 2013. The appellees argued for a recall election based on allegedly illegal petitions, which the court found invalid due to the entity's failure to comply with election statutes. The court noted that the illegal procurement of petitions, especially when the entity previously complied with the law, should not allow the corporation to benefit from its violations. Criminal penalties imposed on a corporation do not remedy the disenfranchisement of voters resulting from illegal conduct under the Election Code related to the recall of Cook. Cook sought judicial intervention to prevent the City from utilizing WOL Church’s improper corporate contributions, which included the circulation of recall petitions. The trial court's failure to grant injunctive relief and its dissolution of the temporary restraining order allowed the certification of petitions and the calling of the election to proceed, despite the existence of Election Code violations. The court noted that while the clerk's certification of petitions verifies the number of eligible signatures, it does not address the legality of corporate contributions in a recall election context. EPTFV's expenditures exceeding $8,000 for the recall effort, without an appropriate specific-purpose committee or designated treasurer, harmed Cook due to these violations. The court concluded that ongoing violations warranted injunctive relief under Section 273.081 of the Election Code. The trial court's denial of injunctive relief was deemed arbitrary and exceeded reasonable discretion, failing to apply the law to the facts correctly. Comments from the trial court suggesting a reluctance to override the will of the people indicated a neglect of its judicial responsibility. Consequently, all submitted recall petitions were found to be illegal and invalid due to these procedural errors. A trial court must enjoin a violation of the law when the factual circumstances clearly indicate such a violation, as established in San Miguel. The trial court's actions in this case obstructed the judicial process and denied Cook the relief he was entitled to. Judicial independence and public confidence require judges to adhere strictly to the law, avoiding influence from public opinion or criticism. The proper application of the law permits qualified voters to pursue a recall of elected officials, provided it aligns with the Election Code. Cook is entitled to injunctive relief to prevent ongoing violations stemming from illegally procured petitions, despite the City Clerk's argument that issues are moot due to certification of the petitions. Certification cannot legitimize the illegal actions affecting petition validity, and continuing such conduct cannot be justified as maintaining the status quo. The court referenced Blum v. Lanier, clarifying that while an injunction that delays an election is inappropriate, an injunction that supports the electoral process may be warranted if it addresses ballot deficiencies without causing delays. The assumption that preliminary acts were conducted per the Election Code has been disproven in this case. Consequently, the court sustained Issue Three, reversed the trial court's denial of injunctive relief, and ordered the City Clerk to decertify the recall petitions, preventing any related election. The motion to dismiss the injunctive claims as moot was denied, and Cook is seeking relief solely in his individual capacity, not as Mayor. In a civil case, facts in a brief are presumed true unless contradicted. On June 30, 2011, a website included a disclaimer indicating ownership by Tom Brown, who clarified that he, in his capacity as pastor, neither supported nor opposed the recall of local officials. Political committees must appoint a campaign treasurer and cannot accept or make expenditures exceeding $500 without such an appointment; violations are deemed offenses under Texas Election Code sections 252.001, 253.031(b), and related provisions. Cook's third amended petition mistakenly cites a non-existent statute but intended to refer to Section 253.031, which governs campaign finance regulations. Appellees argue that Cook did not present certain allegations to the trial court, but it is noted that Cook alleged improper spending without proper committee formation or treasurer designation. No defendant raised specific objections to Cook’s pleadings prior to the trial court's ruling. Legal principles encourage liberal construction of unchallenged pleadings, focusing on the pleader's intent. For a temporary injunction under common law, the applicant must demonstrate a cause of action, a probable right to relief, and imminent irreparable injury, with irreparable injury defined as one that cannot be adequately compensated by damages. The Texas Election Code defines "expenditure" broadly, including any payment or obligation related to a campaign. A "direct campaign expenditure" is defined as an expenditure that does not qualify as a campaign contribution by the spender, according to Texas Election Code Ann. 251.001(7). The Texas Ethics Commission's Campaign Finance Guide mandates that political committees must report all expenditures made from political contributions, regardless of whether they are for campaign purposes. Examples of such expenditures include costs for stationery for fundraising, venue rentals for rallies, payments for yard sign placements, contributions to candidates, and general operating expenses of a political committee. In the case of In re Ellis, the defendants faced charges related to the unlawful acceptance of corporate political contributions and money laundering. They contested the Austin Court of Appeals' ruling that Section 253.094 of the Texas Election Code was not unconstitutionally vague or overbroad. The appellees argued that complaints regarding alleged violations of various sections of the Election Code were improperly presented and untimely. However, it was established that evidence and arguments related to these violations were presented by Cook during a temporary injunction hearing and were included in his third amended petition filed before the trial court denied the injunction. The record indicates that the appellants did not object to Cook’s arguments or pleadings prior to the order's issuance.