Petition for Writ of Mandamus Denied and Plurality; Concurring and Dissenting Opinions filed January 18, 2006.

 

In The

 

Fourteenth Court of Appeals

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NO. 14-06-00035-CV

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IN RE GLORY HOPKINS, Relator

 

 

 

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

 

 

D I S S E N T I N G   O P I N I O N

I agree that the result reached by the majority is consistent with the black-letter statements contained in the Election Code.  In fact, if this case had reached us before In re Gamble and In re Bell, I would have joined the plurality opinion on the plain language of the Election Code and the case law applying it literally.  However, in my opinion, In re Gamble and In re Bell signaled the Texas Supreme Court=s intent to review Election Code cases with a less hyper technical and more purpose-driven approach.  For this reason, I respectfully dissent.

Ms. Hopkins seeks a writ of mandamus directing Eric Thode, County Chairman of the Republican Party of Fort Bend County (the ACounty Chair@), to accept her application and certify her for placement on the Republican Party general primary ballot as a candidate for District Clerk of Fort Bend County.  The County Chair rejected Ms. Hopkins= application because it was not received by 6:00 p.m. on January 2, 2006.  See Tex. Elec. Code ' 172.023.

The Relevant Facts

Ms. Hopkins is the District Clerk of Fort Bend County, and has been the District Clerk for 20 years.  On December 27, 2005, six days before the filing deadline, she mailed her application to be placed on the ballot to the County Chair.  She sent the application to an address obtained by her campaign manager from a December 5, 2005 newsletter written and e-mailed by the County Chair.^[1]  In that e-mail (and two other e-mails), the County Chair directed individuals wishing to file for Precinct Chair and wanting to send their application by certified mail to send their materials to an address other than the Republican Party=s post office box address.  The County Chair directed that certified mail be sent to him at his office on Brittmore Street in Houston, Texas.  Unfortunately, the December 5 e-mailCand two other e-mailsClisted an incorrect zip code for the Brittmore address; the zip code actually given was a Fort Bend County zip code.  The County Chair acknowledges that these e-mails contained the wrong zip code.  He also acknowledges that he gave the correct zip code for the Brittmore address in other e-mails.  The record does not clearly reflect how many of the County Chair=s e-mails contained the correct zip code, but it appears that more than a few contained the correct zip code.  It was Ms. Hopkins= great misfortune to rely on the only three e-mails providing the wrong zip code.^[2]

In any event, because the wrong zip code was used to mail her materials, Ms. Hopkins= application did not reach the County Chair by the filing deadline on January 2, 2006.^[3]  Twenty minutes after the filing deadline, the County Chair notified Ms. Hopkins= campaign staff that he did not receive her application.  Ms. Hopkins discovered that evening that the zip code she used was wrong.  The following day, she hand-delivered a copy of the original application and a check to the Republican Party of Fort Bend County.

The Parties= Claims      

In her most recent petition, Ms. Hopkins asserts the County Chair violated a statutory duty to provide candidates with the correct address to file their applications by mail.  Citing to section 172.021(c) of the Election Code for the proposition that candidates are allowed to file by mail, she claims a statutory duty arose to provide the correct address to candidates for filing their applications by certified mail.  See Tex. Elec. Code ' 172.021(c).  The Real Party in Interest and Hopkins= primary opponent, Annie Rebecca Elliott, argues we are required to strictly enforce the mandatory statutory requirements. 

I believe two rules or principles guide our review of this case.  The Supreme Court has fashioned both principles to effectuate the purposes of the Election Code.  

Two Guiding Principles

The first principle guides the enforcement of the Election Code requirements.  Historically, the courts have strictly enforced the mandatory statutory requirements.  Recently, however, the Texas Supreme Court  has taken a more expansive approach.  See In re Bell, 91 S.W.3d 784, 785 (Tex. 2002); In Re Gamble, 71 S.W.3d 313, 317 (Tex. 2002).

In Bell, the court recognized that the Code Construction Act (the Act) applies to construction of the Election Code.  91 S.W.3d at 785; see also Tex. Elec. Code ' 1.003.  The Act directs us to presume the Legislature intended a just and reasonable result in enacting statutes.  See Tex. Gov=t Code ' 311.021(3).  Hence, the Texas Supreme Court has applied a rationale that produces a just and reasonable result in light of the objective of the statute in issue.  See In re Bell, 91 S.W.3d at 787.  In Bell, the court considered the purpose of requiring each petition signer to include the city and zip code in their address is to provide a basis for verifying their eligibility to participate in a particular election.  Id. at 785B86.  The court noted that the Election Code itself recognized certain information could be omitted without invalidating a signature.  Id. at 787.  The court held that if the omitted information would not aid in determining the signer=s voting eligibility, invalidating the signatures was not a just and reasonable result in light of the statute=s objective.  Id.

In this same vein, in certain cases the Texas Supreme Court has declined to require rigid adherence to statutory deadlines and has instead adhered Ato the principle that [the court] should construe laws broadly in favor of eligibility . . . .@  Davis v. Taylor, 930 S.W.2d 581, 583 (Tex. 1996).  The court has found that candidates and the citizens in their district Ahave compelling interests warranting relief@ and, when the election process would not be impaired, the court has granted relief.  Id. at 583B84.  The Texas Supreme Court has recognized Athe Legislature has specifically called upon the courts to exercise their equitable powers to resolve election code violations.@  In re Gamble, 71 S.W.3d at 317.  In Gamble, the court found one purpose of the Election Code=s requirement that a party official review a candidate=s application and promptly notify the candidate if the application is rejected is to allow the candidate an opportunity to cure any defects.  Id. at 318.  Thus, a party official=s failure to perform that review is a proper consideration for a court called upon to hear a candidate=s claim for equitable relief.  Id.  The court held that while one consideration in weighing the right to equitable relief is a candidate=s own fault, mistakes by the candidate are not an absolute bar to equitable relief.  Id.  To summarize the first principle, in the appropriate case, courts are authorized to take an expansive approach because in that case, it will result in a just and reasonable result that furthers the purposes of the Election Code.

The second principle also relates to Election Code requirements, but in a different way.  It concerns the creation of implied duties that necessarily arise from duties or rights expressly stated in the Election Code.  For example, in Painter v. Shaner, the Texas Supreme Court noted the Election Code required Painter to file his application with the county chair by 6:00 p.m. on February 6, 1984.  667 S.W.2d 123, 124 (Tex. 1984).  Painter arrived at the correct office at 4:15 p.m. on February 6, but it was closed.  The court extended the statutory deadline for filing his application, holding that the party chair has a duty to be available to accept applications for filing until 6:00 p.m. on the last day of filing.  Id. at 125.  This duty is not expressly stated in the Election Code, but must be implied if the candidate has until 6:00 p.m. on the last filing day to file an application.  Absent such an implied duty, the statutory right to file until 6:00 p.m. on the last filing day would be meaningless.

A majority of the Waco court of appeals applied these two principles in an opinion it issued shortly after In re Bell and In re Gamble.  See In re Elwell, 110 S.W.3d 11, 12 (Tex. App.CWaco 2002, orig. proceeding).  In that case, the candidate, Elwell, was provided a packet of information by County Judge Roger Harmon.  The packet included a memorandum from the Texas Secretary of State outlining the steps a potential independent candidate must take to appear on the November ballot.  Id. at 12.  The memorandum provided that the candidates must file an application, with a petition, no later than 5:00 p.m. on May 9, 2002.  The packet also included a letter from Harmon that similarly referred to an application as well as a petition.  However, the packet County Judge Harmon sent to Elwell did not contain an application.  Elwell delivered a folder to Harmon=s office at 4:00 p.m. on May 9 that did not contain an application.  The omission was not discovered until after Elwell left the office.  Elwell shortly learned of the missing application and returned to the office at approximately 5:20 p.m. on May 9, but the office was closed.  Elwell filed his application the next morning.  Harmon rejected Elwell=s candidacy on the basis that the application was not filed before the deadline.  Id.

Relying on the Texas Supreme Court=s decision in In re Bell, the court was persuaded by Elwell=s argument that granting relief achieves a Ajust and reasonable result.@  Id. at 14.  Although no statute required Harmon to provide an application, the court found that Harmon=s failure to include an application form Ahad the potential to mislead [Elwell] into believing that the forms that were included were all that were required.@  Id.  

Why the Law Requires us to Grant Relief

If we take these two guiding principlesCto interpret the Election Code more expansively to achieve a just and reasonable result and to imply any duties necessary to accomplish black-letter requirements contained in the statuteCand apply them to this case, I believe they require us to grant the relief Ms. Hopkins has requested. 

With regard to an implied duty, as noted earlier in this opinion and in the plurality, a party chair may accept applications for office by mail.  The implied duty arising from this authority to accept applications by mail is the following: If a party chair chooses to accept applications by mail, he or she must provide candidates a correct address.  The County Chair here provided both correct and incorrect addresses for certified mail.  The plurality finds in part that the County Chair met his duty by providing the correct address more times than he provided the incorrect address.  I disagree that the County Chair fulfilled his duties. 

Although the County Chair obviously sent many e-mails to the candidates and made many efforts to ensure that candidates had the correct address, he nonetheless sent out an incorrect address three times.^[4]  He never notified anyone that the address in these e-mails was incorrect.  That he distributed the correct address more times than the incorrect one is inconsequential.  The important fact is that he never drew attention to the error, and so a person choosing to rely on the incorrect e-mails would have no way of knowing that some were incorrectCother than looking through all of the e-mails.  This, unfortunately, is Ms. Hopkins= plight.^[5] 

We are aware that Ms. Hopkins could easily have avoided the problem if she had hand-delivered her application to the County Chair when she apparently had lunch with him sometime in December or if she had used one of the e-mails containing the correct address.  These are diversionary issues that ignore the real issues: the party chair gave an incorrect address, he did not notify candidates it was an incorrect address, and Ms. Hopkins relied on it, not knowing it was incorrect.  Moreover, it is common in Election Code violation cases for the candidate not to be without fault.  See Gamble, 71 S.W.3d at 315-317; Elwell, 110 S.W.3d at 12-13; In re Ducato, 66 S.W.3d 558, 559B60 (Tex. App.BFort Worth 2002, orig. proceeding).  When one considers the real issues, the important fact is that the party chair did not fully comply with his duty.

This leads to the other guiding principle, that a just and reasonable result be reached in light of the purposes of the statute.  The relevant sections of the Election Code for application of this rule are the sections allowing a party chair to accept applications by mail and the 6 p.m. deadline.  See Tex. Elec. Code ' 172.021(c) (an application filed by mail is considered to be filed at the time of its receipt by the appropriate authority); Tex. Elec. Code ' 172.023(a) (an application for a place on the general primary election ballot must be filed not later than 6 p.m. on January 2 in the primary election year).  As I note above, the authority to accept applications by mail would be hollow if the chair were not required to give the correct address; that would not produce a just and reasonable result.

With regard to the 6 p.m. deadline, I have not found a stated purpose for that requirement in the Code, but, logically, the purpose must be several-fold: to provide an explicit cut-off date and time by which candidates must file so that the field of candidates is clearly delineated; to prevent stealth candidates; and to provide a uniform deadline that applies to all candidates.  Granting Ms. Hopkins= requested relief and allowing her name to be placed on the ballot even though she missed the deadline does not offend any of these purposes.  She is, and has been, the District Clerk for 20 years.  It was no secret she was up for re-election and would run in this election cycle for the office.  In fact, she and the County Chair had several conversations about her candidacy.  If we were to allow Ms. Hopkins on the ballot, the Code=s core purposes would not be frustrated.  Conversely, if we do not allow Ms. Hopkins on the ballot, the practical effect of the majority=s reasoning is that, arguably, a candidate would be forced to continually check addresses for accuracy rather than reasonably rely on the information provided by the county chair.

Conclusion

In short, I believe the just and reasonable result is for this court to grant Ms. Hopkins= petition and allow her name to be placed on the ballot.  The Texas Supreme Court has acknowledged that a court may order equitable relief from a statutory deadline if it would not delay the election or prevent the orderly procession of the election schedule.  See In re Gamble, 71 S.W.3d at 317; Davis, 930 S.W.2d at 584.  This election would not be delayed if we granted relief.  The record before this court contains an affidavit from Steve Raborn, the Elections Administrator for Fort Bend County, averring that if he is directed by January 25, 2006, to place Ms. Hopkins on the general primary ballot, it will not impair or delay the election process.  The County Chair=s affidavit concurs.

Thus, I would conditionally grant the writ of mandamus and direct Eric Thode, Respondent, to certify Ms. Glory Hopkins, Relator, as a candidate for the office of District Clerk of Fort Bend County, Texas, in the Republican Party general primary election.  

 

 

 

 

 

 

/s/        Wanda McKee Fowler

Justice

 

 

 

 

Petition Denied and Plurality; Concurring and Dissenting Opinions filed January 18, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman. (Edelman, J., plurality.) (Fowler, J. dissenting.)