Department of Texas, Veterans of Foreign Wars of the United States v. Texas Lottery Commission

760 F.3d 427, 2014 WL 3714874, 2014 U.S. App. LEXIS 15190
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 28, 2014
Docket11-50932
StatusPublished
Cited by18 cases

This text of 760 F.3d 427 (Department of Texas, Veterans of Foreign Wars of the United States v. Texas Lottery Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Texas, Veterans of Foreign Wars of the United States v. Texas Lottery Commission, 760 F.3d 427, 2014 WL 3714874, 2014 U.S. App. LEXIS 15190 (5th Cir. 2014).

Opinions

STEWART, Chief Judge,

joined by JOLLY, DAVIS, JONES, SMITH, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, and HIGGINSON:

The issue presented in this appeal is the constitutionality of political advocacy restrictions contained in the Texas Bingo Enabling Act (“the Bingo Act”). The Bingo Act allows charitable organizations to raise money by holding bingo games on the condition that the money is used only for the organizations’ charitable purpose. Plaintiffs-Appellees filed suit challenging these restrictions, arguing they violate their speech rights under the First Amendment. The district court granted summary judgment in favor of Appellees and issued a permanent injunction preventing enforcement of the challenged provisions. The panel majority opinion, which reversed the district court, was vacated by our decision to rehear this case en banc. Dep’t of Tex., Veterans of Foreign Wars of the U.S. v. Tex. Lottery Comm’n, 734 F.3d [431]*4311223 (5th Cir.2013). For the reasons stated below, we now affirm the district court’s permanent injunction and summary judgment.

I. BACKGROUND

In Texas, gambling is generally prohibited. Tex. Const, art. Ill, § 47. However, in 1980, the Texas Constitution was amended to establish an exception to this prohibition for charitable bingo. Id. § 47(b). The Texas legislature implemented this exception through the Bingo Act, which authorizes qualified nonprofit organizations to host bingo games. Tex. Occ. Code Ann. § 2001.001 et seq. The Bingo Act contains the following political advocacy restrictions:

A licensed authorized organization may not use the net proceeds from bingo directly or indirectly to: (1) support or oppose a candidate or slate of candidates for public office; (2) support or oppose a measure submitted to a vote of the people; or (3) influence or attempt to influence legislation.

Id. § 2001.456.

Plaintiffs-Appellees are a host of nonprofit organizations (and/or their parent organizations) licensed to conduct bingo in Texas (“the Charities”). The lead Plaintiffs are the Department of Texas, Veterans of Foreign Wars (“VFW”) and the Institute for Disability Access, d/b/a ADAPT of Texas. On June 25, 2010, they brought suit under 42 U.S.C. § 1983 against the commissioners and two executive officers of the Texas Lottery Commission, the state agency responsible for bingo licensing and regulation (collectively, “the Commission”).1 Specifically, they alleged that the latter two of these restrictions, Sections 2001.456(2)-(3), violate their right to freedom of speech.

The First Amendment challenge was twofold: First, the Charities claimed that subsections two and three of Section 2001.456 are facially unconstitutional because they are a direct abridgement of speech with no compelling or substantial justifying interest. Second, they claimed the law unconstitutionally discriminates between the Charities and similarly situated businesses, such as racetracks, which are not prohibited from using their revenue for political purposes.

In light of the then-upcoming legislative session, the Charities moved for entry of a preliminary injunction barring enforcement of the political speech restrictions in Section 2001.456(2)-(3). The district court granted the Charities’ request on October 29, 2010 and explained its reasoning in an extensive opinion. Relying heavily on the Supreme Court’s opinion in Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), the district court concluded that the restrictions in Section 2001.456 violate the First Amendment because they burden political speech and fail to satisfy strict scrutiny. The district court also concluded that the restrictions are unconstitutional conditions because they require that, as a condition of participating in the state’s charitable bingo program, the Charities not exercise their right to engage in political speech.

The Charities moved for summary judgment, which the district court granted, permanently enjoining the Commission from enforcing the invalid provisions. The Commission appealed. A unanimous panel of this court originally reversed the district court’s summary judgment in favor of the Charities and its permanent injunction preventing enforcement of the challenged [432]*432statutory provisions. Dep’t of Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 698 F.3d 239 (5th Cir.2012), withdrawn, 727 F.3d 415 (5th Cir.2013), vacated, 734 F.3d 1223 (5th Cir.2013). After panel rehearing, a panel majority issued a revised opinion that again reversed the district court’s judgment. Texas Lottery Comm’n, 727 F.3d 415, vacated, 734 F.3d 1223. Thereafter, this court granted en banc rehearing. 734 F.3d 1223.

II. STANDARD OF REVIEW

We review a district court’s summary judgment de novo, applying the same standards as the district court. Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 365 (5th Cir.2012). Summary judgment should be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

III. DISCUSSION

The Commission first attacks the Charities’ standing to bring the underlying suit. The Commission next argues that because the Bingo Act creates a subsidy the state may constitutionally attach restrictions to funds earned by a charity through participation in the program. Additionally, the Commission argues that even if the Bingo Act does not create a subsidy, the restrictions are permissible under the First Amendment. We address each argument in turn.

A. Standing2

Constitutional standing is a jurisdictional question that we review de novo. Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir.2011). To establish Article III standing, a plaintiff must show “an injury-in-fact caused by a defendant’s challenged conduct that is redressable by a court.” K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir.2010). For a plaintiffs claim to be redressable, it must be “likely, as opposed to merely speculative, that a favorable decision will redress the plaintiffs injury.” S. Christian Leadership Conference v. Supreme Court of State of La., 252 F.3d 781, 788 (5th Cir.2001). “[A] plaintiff satisfies the redressa-bility requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” LeBlanc, 627 F.3d at 123 (alteration in original) (quoting Larson v. Va-lente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)).

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760 F.3d 427, 2014 WL 3714874, 2014 U.S. App. LEXIS 15190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-texas-veterans-of-foreign-wars-of-the-united-states-v-texas-ca5-2014.