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IN
THE SUPREME COURT OF TEXAS
════════════
No. 06-0088
In re The Honorable Karen
Angelini
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On Petition for Writ of Mandamus
Justice
Wainwright, dissenting.
The
Court acknowledges that the Respondent’s petition did not comply at the filing
deadline with the requirements of the Texas Election Code, yet it refuses to
grant the mandamus and hold that respondent did not qualify as a candidate for
Justice of the Fourth Court of Appeals, Place 5. I therefore respectfully
dissent.
I.
On
the filing deadline, Lauro Bustamante’s petition to be certified as a primary candidate
for the Court of Appeals for the Fourth District, Place 5, contained less than
half of the required 250 signatures. Tex.
Elec. Code § 172.021(e). This assumes, notwithstanding all the reasons
not to, that the circulator’s signature on two petition pages validated the
petition signatures on other parts of his petition.
See section II, infra. Rather than simply affirm the invalidity of
the petition and enforce the Election Code’s stricture that only candidates who
comply with its requisites by the deadline may be certified for the ballot, the
Court extends the legislative deadline so Bustamante
can attempt to cure the defects in his petition. See Tex. Elec. Code §§ 141.065, 172.021. The
Legislature’s considered judgment notwithstanding, the Court in this case grants
a four-week extension of the deadline.
All
parties before the Court—Real Party Bustamante;
Respondent Charles Soechting, chairman of the Texas
Democratic Executive Committee; and Relator, the
Honorable Karen Angelini, Justice of the Court of
Appeals for the Fourth District, Place 5—acknowledge that Bustamante’s petition for Place 5 on file with the party
chair by the 6:00 p.m. deadline on January 2, 2006 (or even forty minutes
later), was not compliant.
Id. §
172.023(a). His filing was not even close to meeting the Election Code
requirements. Bustamante did not file a petition that
he claims was valid until January 30, when he filed a revised petition arguably
in an attempt to validate many additional signatures on his petition. The fact
that the petition was defective as of the deadline should resolve the case,
irrespective of the fact issues the Court identifies. See In re
Francis, __ S.W.3d __, __ (Tex. 2006) (Wainwright, J., dissenting). The
Court should enforce de-certification of candidates under the Election Code if
their failure to include information in their applications “would contravene
express requirements and impair the purpose of the Election Code.” Id. Resolution of
the fact issues the Court identifies is unnecessary to resolve this case.
The
Court denies the mandamus because of five factual disputes: (1) whether Bustamante filed his application and petition before the
deadline, (2) whether he complied with all statutory requirements except for
facial defects that are apparent within the four corners of his filings, (3)
whether the Party had sufficient time to complete its statutory review of his
filings before the deadline, (4) whether the Party notified Bustamante before the deadline that his filings complied
with statutory requirements, and (5) whether Bustamante could have cured any facial errors before the
deadline had the State Chair notified him of the defects rather than approving
them. __ S.W.3d __, __.
The
first factual dispute is immaterial under the Election Code as it is undisputed
that the petition Bustamante filed failed to comply
with the Code’s requirements on the filing deadline, and for four weeks
thereafter. Only because the Court created a cure period on January 27, 2006 in
Francis does it matter whether Bustamante’s
defective petition was filed at 5:04 p.m. rather than 6:04 p.m. Francis,
__ S.W.3d at __. Assuming his petition was filed at 5:04 p.m., it was
statutorily defective for failing to include, as of 6:00 p.m. on January 2,
2006, information that is important to the purpose of the statute. That should
end the dispute. The other fact issues come into play only because the Court
decided in Francis that if a party chair does not catch facial
“technical” or “minor” defects before the deadline, the candidate is entitled to
an opportunity to cure a defective petition after the filing deadline. See
id. It is a mystery why the state party chairs have to do the work for the
candidates,
but that is the law now. These factual questions would not be important to the
Court today if it had not previously extended the filing deadline. Predictably,
this case is the result of Francis and Holcomb.
The
Court’s opinions in Francis, Holcomb, and this case raise a number
of concerns. Even if one accepts that it was proper for the Court to create a
cure period beyond the statutory deadline, we had previously established a high
hurdle for extending the deadline. “[I]t is an extraordinary departure from the
careful planning of the legislature, and not to be invoked lightly.” In re
Gamble, 71 S.W.3d 313, 318 (Tex. 2002). The holdings in Francis,
Holcomb, and this case indicate, instead, that extending the filing
deadline is no longer extraordinary. The new cure period apparently applies to
any disqualifying mistakes on a judicial petition, without regard to whether
they are minor or major, technical or substantive. In Francis, the Court
recognized that the Code’s requirement that the petition identify the office for
which a candidate is running is important to prevent fraud or voter confusion.
__ S.W.3d at ___. Nevertheless, the Court characterized the omissions as
“technical” or “minor” defects and allowed a post-deadline cure. Id. In
Holcomb, the Court recognized that a petition with duplicate signatures
was invalid and yet allowed a candidate to obtain replacement signatures after
the deadline. See Holcomb, __ S.W.3d at __. In this case, Bustamante was short at least half the 250 signatures
required by statute, yet the Court allows him an opportunity to show he could
cure disqualifying defects.
Francis,
Holcomb, and this case raise other problems. Our legal system is now
faced with election challenges from persons whose filings were demonstrably and
admittedly inadequate as of the filing deadline, which likely would not have
been countenanced before Francis and Holcomb. And the Court must
now define new standards to implement the holdings of these cases: How long is a
“cure period”? If filing a petition more than 50% short of the required quantity
of signatures is a technical mistake entitling the filer to cure, which defects,
if any, cannot be cured after the filing deadline? The Court says only facial
“technical” or “minor” defects can be cured post-deadline, as was the case in
Gamble, but, as shown, the purview of those terms must be significantly
widened for that to be so after Francis and Holcomb. How long
before the filing deadline must an application or petition be filed to have been
filed “early” enough to entitle the applicant to fix a defective petition?
See Gamble, 71 S.W.3d at 318 (Section 141.032 “serves as a safety net for
candidates who file their applications early in the filing period . . . .”). In
In re Sharp, __ S.W.3d __, __ (Tex.
2006), the Court granted the candidate the opportunity to cure a presumed
defective petition filed the day of the deadline, notwithstanding
Gamble’s holding that such equitable relief may be considered only for
parties who file their applications “early in the filing period.” Gamble,
71 S.W.3d at 318. In Francis, the Court cited the same early filing
requirement, ___ S.W.3d at ___, but for no apparent purpose, as the Court
ignored the requirement that very day when it issued Sharp. Under the
facts of this case, the Court concludes that filing less than an hour before the
deadline is early enough to entitle the applicant to an opportunity to effect
post-deadline compliance. None of these problems exist in the language of the
Election Code; the Court created them.
The
Court attempts to bring this case under the umbrella of Gamble.
Gamble involved what was truly a clerical error—all petition pages
correctly indicated the 270th District Court, but the cover application
indicated the 190th District Court. 71 S.W.3d at 315. Judge Gamble filed an
application and petition with all the necessary information, including all
required signatures. Id. Judge Gamble also filed his application two
weeks before the deadline, not an hour or a few days before the deadline.
Id. These facts distinguish Gamble from Francis,
Holcomb, and this case.
Legally,
Gamble was also a different animal. In Gamble the Court warned
against extending the filing deadline and did not lightly discard it. Id.
at 318. The Gamble Court did not allow a candidate to file, for the first
time, a petition that included information necessary to avoid impairing the
purpose of the statute four weeks after the Legislature’s deadline. Moreover,
the Court contradicts Gamble in holding that Francis only applies
to “defective filings that have been erroneously approved.” Francis, __
S.W.3d at __. The party official in Gamble did not approve but rejected
the application. 71 S.W.3d at 315. The reasoning in Gamble was ostensibly
followed in Francis, but Gamble was limited to candidates who file
their applications early in the filing period. Id. at 318. It would
ridicule logic to attempt to argue that Bustamante
filed early. The Court, therefore, has issued two contradictory standards on
this point. I do not hazard a guess as to which is controlling. This case is not
Gamble, and neither are Francis and Holcomb. Sharp
is procedurally distinguishable from all three of these cases.
II.
I
will respond to the Court’s critiques.
The
Court says that Bustamante did not admit that his
petition was not compliant on the January 2 filing deadline. The record speaks
for itself. First, Bustamante states that he will
prove that he filed early enough “to allow for corrections” in his petition, and
he never argues that his January 2 petition was valid. Second, Respondent Soechting, the Democratic party chair, told Bustamante by letter dated January 9 that his application
filed on January 2 was rejected. It was defective for failure to “correctly and
completely acknowledge” the signatures on the petition. Nothing in the record
shows that Bustamante challenged the party chair’s
conclusion that his January 2 filing lacked proper acknowledgments on the
petition. Bustamante took no action to gain a place on
the ballot until after the Court issued Francis and Holcomb, at
which time he sought an opportunity to resurrect a noncompliant filing. Finally,
the Court acknowledges, as it must, that Bustamante’s
petition on file as of the deadline was defective. See __ S.W.3d at ___
(One factual dispute is “whether Bustamante could have
cured any facial errors before the deadline had the State Chair properly
notified him of those defects.”). Otherwise, the opportunity to cure would not
be needed and the evidentiary hearing ordered by the Court would be a waste of
time.
The
Court suggests that Bustamante’s January 2 petition
included enough signatures to satisfy the Election Code. One requirement for a
signature on a petition to be valid under section 141.063(3) of the Election
Code is that each “part of the petition” in which the voter’s signature appears
includes a circulator’s affidavit. The circulator’s affidavit states the
circulator read certain information to the signer, witnessed each signature,
verified each signer’s registration status, and believes each signature to be
genuine. Tex. Elec. Code §
141.065. To be certified as a candidate for a place on a court of appeals, a
candidate must obtain 250 valid signatures. Id. § 172.021(e). On the
filing deadline, Bustamante filed a petition to be
certified as a candidate for the Court of Appeals for the Fourth District, Place
5, in which only two of the 42 petition pages have a signed circulator’s
affidavit. Whether the reference to “part” in section 141.063(3) requires each
page or each section of a petition to have a signed circulator’s affidavit,
Bustamante did not supply 250 valid signatures by the
statutory deadline.
The
Court suggests that Bustamante’s petition contains
over 400 valid signatures. The face of Bustamante’s
filing shows that, as of the deadline on January 2, he had no more than 20
signatures on petition pages with signed circulator affidavits. Neither Bustamante nor the Democratic party chair argue that the two
circulator affidavits signed by Bustamante validate
larger “parts” of his petition. However, even if the statute’s reference to
“parts” refers to groups of petition pages, Bustamante
still lacks the required 250 signatures for several reasons. First, the petition
is not divided into discernable sections; there are not multiple, defined
“parts.” At best, a circulator’s affidavit might apply not only to the page
containing it but also to subsequent consecutive pages circulated by the same
person. Here, the first petition page includes a circulator affidavit signed by
Bustamante designated as “Page 1 of 28,” followed by a
single unsigned petition page. Mary Cortez is identified as the circulator of
the next two pages, although both pages lack a signed circulator affidavit.
The next 29 pages do not identify a circulator or include a signed circulator
affidavit. The final grouping of nine pages begins with a page identifying Bustamante as circulator, includes a signed affidavit, and
is designated “Page 1 of 15” even though there are only 8 pages that follow it.
Bustamante does not attempt to reconcile this
contradictory information in his filing or define the “parts” of his petition.
Even giving Bustamante the benefit of the doubt and
creating “parts” from the face of his petition, he falls almost 150 signatures
short of the required 250. Notably, the Court does not assert that the 400
signatures were valid or even that more than 20 are valid.
The
Court should clearly state the rule of law established by its recent holdings.
Texas has to live with the opinions in Francis, Holcomb, and this
case. They affect every Texan when used to determine which candidates may be
certified for elective office. The Court should at least be clear so that this
new law can be consistently applied by judges and understood by the public and
the bar. The new regime established in Francis, Holcomb, and this
case can be simply stated: The Court extends the filing deadlines for virtually
any defects in a candidate’s petition, irrespective of whether the defects are
technical or substantive and whether the filing was at the last minute or early
in the filing period.
III.
The
Francis and Holcomb opinions changed the legal landscape for
applicants seeking certification to become candidates for judicial office. In
this case, the Court wrestles with the problems these opinions created.
Fortunately, the February 21 deadline to contest candidate applications has
passed; otherwise, there would be more disruption caused to the election
process, and I suspect we would see more of these cases. See Tex. Elec. Code § 141.034(a).
________________________________________
J.
Dale Wainwright
Justice
OPINION
DELIVERED: February 24, 2006