Lars Kuslich v. Klint Bush, Jay Knight, Bruce Karbowski, Greg Arthur, David S. Whitmire, and Leon Wilson

• Court: Court of Appeals of Texas
• Decided: January 23, 2025
• Docket: 09-23-00030-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00030-CV ________________

LARS KUSLICH, Appellant

V.

KLINT BUSH, JAY KNIGHT, BRUCE KARBOWSKI, GREG ARTHUR, DAVID S. WHITMIRE, AND LEON WILSON, Appellees

________________________________________________________________________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. 22DC-CV-01090 ________________________________________________________________________

MEMORANDUM OPINION

Pro se Appellant Lars Kuslich (“Kuslich”) appeals a 2022 Order granting

Respondents’ Plea to the Jurisdiction that dismissed Kuslich’s claims against Liberty

County officials Klint Bush, Jay Knight, Bruce Karbowski, Greg Arthur, David

Whitmire, and Leon Wilson (“Appellees”). We modify the 2022 Order as dismissed

with prejudice, and we affirm the 2022 Order, as modified.

1 Background

Kuslich filed a Petition in August 2022 seeking declaratory judgment and

injunctive relief against Klint Bush, Liberty County Elections Administrator; Jay

Knight, County Judge and Head of the Liberty County Elections Commission; Bruce

Karbowski, Liberty County Commissioner; Greg Arthur, Liberty County

Commissioner; David S. Whitmire, Liberty County Commissioner; and Leon

Wilson, Liberty County Commissioner. In his Petition, Kuslich sought to challenge

the use of electronic voting equipment until an investigation of the 2020 general

election and all subsequent elections through May 2022 were conducted. According

to Kuslich, Appellees violated state and federal law by: operating systems without

proper certifications, operating election equipment containing components from

potentially hostile foreign counties, violating Texas Election Code section 52.062

requiring the numbering of ballots, impeding election workers from detecting fraud

and preserving the purity of the ballot box, and conducting elections with non-

compliant voting system equipment.

Kuslich sought declaratory and injunctive relief from Appellees for several

violations of the United States Code and Texas Constitution including violation of

substantive due process, deprivation of civil rights, deprivation of constitutional

rights, and violation of voting rights. Kuslich requested that the trial court vacate and

set aside all uncertified and illegal voting systems, equipment, and software and

2 implement a hand-counting system. Kuslich requested that the trial court declare that

Appellees violated the Texas Constitution’s Equal Protection and Due Process

clauses, declare that Appellees’ approval of all voting systems, equipment, and

software are void, and declare approval and actions by Appellees as violations of the

United States Constitution and contrary to the laws of the United States and State of

Texas. Kuslich further requested that the trial court grant an emergency injunction

prohibiting Appellees from requiring or permitting voters to cast votes using any

electronic voting systems and from destroying any election records created from the

2020, 2021, and 2022 elections. Kuslich asked the court to order Appellees to unseal

absentee ballots, absentee ballot return envelopes, absentee ballot election reports,

and other election material from the 2020 General Election and permit him to review

and inspect those materials.

Appellees filed a Plea to the Jurisdiction and general denial and argued three

grounds for dismissal of Kuslich’s petition. First, Appellees stated that the trial court

lacks jurisdiction to hear this case because Kuslich lacks standing. According to

Appellees, Kuslich’s status as a voter alone cannot establish standing to challenge

the use of electronic voting machines. Next, Appellees argued that Liberty County

voters use the same voting machines, therefore Kuslich did not have a unique injury

negating the existence of any equal protection claim. Finally, Appellees stated that

the court lacks jurisdiction because Kuslich failed to name the Texas Secretary of

3 State, an indispensable party to the litigation, since the Texas Election Code requires

that the Secretary of State approve all voting equipment used in the state.

Kuslich filed a response to Appellees’ Plea to the Jurisdiction and stated that

he has standing because he has a personal stake in the election results and because

he was forced, by lack of alternatives, to use an election system that violated the

Texas Election Code. Kuslich stated that he presented a valid equal protection claim

because the court must assume that the election systems do not operate according to

the legislative requirements when the safeguards to protect voters are not performed

properly. According to Kuslich, it is a reasonable assumption that if Liberty County

used substandard equipment, which included compromised devices, then that

compromise separated voters into two groups and demonstrated unequal protection.

Finally, Kuslich denied that the Secretary of State is an indispensable party because

there is no statute that mandated the use of electronic voting equipment.

At the hearing on the Plea to the Jurisdiction, counsel for Appellees argued

that “no Texas court has ever ruled that just by someone being a voter in and of itself

provides standing for that individual to bring a lawsuit against a governmental entity

for those matters.” Counsel further argued that the plaintiff must allege an injury

distinct that was not sustained by the public at large, and that the pleadings were

deficient in that the primary allegations were related to the Secretary of State’s

office, which is not a party. Counsel detailed to the trial court that per chapter 122

4 of the Texas Election Code, the Secretary of State is the sole governmental entity

that has the authority to determine whether a voting system or voting system

equipment is used in the state. Based on the authority of the Secretary of State,

counsel for Appellees argued that it is an indispensable party.

In response, Kuslich argued that the Secretary of State is not an indispensable

party because “the [S]ecretary of [S]tate does not have the authority to prescribe

voting systems or even that there are any voting systems for any county.” Kuslich

acknowledged that the Secretary of State approves voting systems for use but argued

that it cannot require counties to use certain voting systems. According to Kuslich,

Liberty County had the option to use any voting system since the Texas Election

Code still describes counting ballots by hand.

The trial court explained that Kuslich is ultimately challenging the voting

system Liberty County elected to use which was approved by the Secretary of State.

The trial court then found that the “[S]ecretary of [S]tate is an indispensable party

who is not joined and deprives the court of jurisdiction[.]” The trial court granted

Appellees’ Plea to the Jurisdiction and dismissed Kuslich’s Petition without

prejudice.

Kuslich later filed a Motion for New Trial and argued that the trial court erred

when it concluded that the Secretary of State was an indispensable party. According

to Kuslich, the Secretary of State does not have a connection with enforcing the acts

5 because the Texas Election Code grants him the “discretionary authority without any

obligation to act[.]” Kuslich argues that section 122.001 does not delegate the duty

of enforcement to any official, and that the Secretary of State merely has the

discretionary authority to protect voter rights. See Tex. Elec. Code Ann. §

122.001(c). Kuslich’s Motion for New Trial was overruled by operation of law. See

Tex. R. Civ. P. 329b(c).

Standard of Review

Subject-matter jurisdiction is essential to a court’s authority to decide a case

and is never presumed. Governmental entities may challenge a trial court’s authority

to determine whether the court has subject-matter jurisdiction over a case by filing

a plea to the jurisdiction. Conroe Indep. Sch. Dist. v. Osuna, No. 09-22-00424-CV,

2024 WL 2340797, at *3 (Tex. App.—Beaumont, May 23, 2024, no pet.) (mem.

op.). The purpose of a plea to the jurisdiction is to defeat a cause of action without

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is essential to the authority

of the court to decide a case and is never presumed and cannot be waived. Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). Subject matter

jurisdiction is a legal question, and the plea to the jurisdiction is reviewed under a

de novo standard of review. “Dismissing a cause of action for lack of subject matter

jurisdiction is only proper when it is impossible for the plaintiff’s petition to confer

6 jurisdiction on the trial court.” Harris Cnty. v. Cypress Forest Pub. Util. Dist., 50

S.W.3d 551, 553 (Tex. App.—Houston [14th Dist.] 2001, no pet.). For purposes of

a plea to the jurisdiction, we take the undisputed factual allegations in the parties’

pleadings to be true. See Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d

745, 746 (Tex. App.—San Antonio 1998, pet. denied).

Analysis

We construe the crux of Kuslich’s pro se arguments in his first three issues on

appeal as a complaint that the trial court erred by granting Appellees’ Plea to the

Jurisdiction because he believes he has standing, and the trial court has subject

matter jurisdiction to hear his case. On appeal, Kuslich argues that he has standing

as a voter to sue to prevent an illegal voting process to protect his votes. He further

argues that no statute restricts the right of a voter to challenge injuries related to or

as a result of the election or to challenge the constitutional right to vote. According

to Kuslich, when a public duty is at stake, a plaintiff’s membership in the community

provides the necessary standing to ensure the local government follows the law.

“In Texas, the standing doctrine requires that there be (1) ‘a real controversy

between the parties,’ that (2) ‘will be actually determined by the judicial declaration

sought.’” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005)

(quoting Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662

(Tex. 1996)). Standing is a component of subject-matter jurisdiction, and “focuses

7 on whether a party has a sufficient relationship with the lawsuit so as to have a

‘justiciable interest’ in its outcome[.]” Lovato, 171 S.W.3d at 848-49. A plaintiff

must therefore be “personally aggrieved” by the defendant’s action. Id. at 850

(quoting Nootsie, 925 S.W.2d at 662). Under Texas law, standing requires a

“concrete injury to the plaintiff and a real controversy between the parties that will

be resolved by the court.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex.

2012) (citing DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)).

The inquiry into standing begins by determining whether the plaintiff has been

personally injured, and the plaintiff must plead facts sufficient to show that he, rather

than a third party or the public at large, suffered the injury. Id. at 155. The plaintiff

must affirmatively show, through pleadings and other evidence pertinent to the

jurisdictional inquiry, a distinct interest in the asserted conflict, such that the

defendant’s actions caused plaintiff some particular injury. Alpert v. Riley, 274

S.W.3d 277, 291 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

Generally, a plaintiff’s status as a voter does not confer standing to challenge

the lawfulness of government acts. Andrade v. NAACP of Austin, 345 S.W.3d 1, 8

(Tex. 2011) (citing Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001)). Instead,

“[Texas court] decisions have always required a plaintiff to allege some injury

distinct from that sustained by the public at large.” Brown, 53 S.W.3d at 302. “The

plaintiff must be personally injured—he must plead facts demonstrating that he,

8 himself (rather than a third party or the public at large), suffered the injury.”

Heckman, 369 S.W.3d at 155 (citing S. Tex. Water Autho. v. Lomas, 223 S.W.3d

304, 307 (Tex. 2007)).

Here, Kuslich has failed to demonstrate that he suffered a personal injury that

is particular or distinct from other voters in Liberty County. See Brown, 53 S.W.3d

at 302. In his brief, Kuslich does not allege a personal injury that he has suffered

because of Liberty County’s use of electronic voting machines. Instead, Kuslich

argues that the use of the electronic voting machines is a violation of public rights,

and Kuslich urges this Court to adopt a holding of the Supreme Court of Georgia

that he argues permits a suit brought by a community member against a local

government, even if the community member did not suffer an individualized injury.

An essential element to standing is that the plaintiff be personally injured. Heckman,

369 S.W.3d at 155 (citing Lomas, 223 S.W.3d at 307). Kuslich has not pleaded or

provided evidence of an injury that is particular or distinct to him that would create

standing to maintain a suit against Appellees. See Andrade, 345 S.W.3d at 15, 17-

18 (explaining that plaintiffs did not have standing to assert violations of the Texas

Constitution or the Election Code because plaintiffs had not asserted a “concrete,

particularized harm” and instead raised “only generalized grievances about the

lawfulness of government acts[]”).

9 We hold that Kuslich did not show any particularized harm resulting from

Liberty County’s use of electronic voting machines as authorized by the Texas

Secretary of State. Accordingly, we overrule Kuslich’s arguments in his first three

issues complaining that the trial court erred by granting Appellees’ Plea to the

Jurisdiction because he has standing. We need not address any of Kuslich’s other

complaints in his first three issues, as they would not change the outcome of his

appeal. See Tex. R. App. P. 47.1.

In issue four, Kuslich complains the trial judge should have recused himself

from his case due to judicial bias. Kuslich argues the trial judge is judicially biased

since his suit challenges the methods and mechanisms through which the judge was

and would be granted office again. According to Kuslich, even though the trial judge

was running unopposed, he had a personal interest in the outcome in an election set

to end days after the hearing on Appellees’ Plea to the Jurisdiction.

A recusal is a statutory process providing for the removal of a judge in

situations where the judge’s bias or impartiality might be reasonably questioned. See

Tex. R. Civ. P. 18a(j); In re Commitment of Winkle, 434 S.W.3d 300, 310 (Tex.

App.—Beaumont 2014, pet. denied). Among others, grounds for recusal include

situations where the judge’s impartiality might reasonably be questioned or where

the judge has a personal bias or prejudice concerning the subject matter or a party.

Tex. R. Civ. P. 18b(b)(1), (2). Here, Kuslich never filed a motion to recuse the trial

10 judge. Because grounds for recusal are subject to waiver if not timely asserted,

Kuslich has waived any grounds for recusal as a basis for the removal of the trial

judge. See Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 559-60 (Tex.

App.—Beaumont 1993, writ denied) (citing Humble Exploration Co.

v. Browning, 677 S.W.2d 111, 114 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)). As

such, we overrule Kuslich’s issue four argument that the trial court’s denial of his

plea to the jurisdiction should be reversed because the trial judge was subject to

statutory recusal.

After the trial court granted Appellees’ Plea to the Jurisdiction, the court

dismissed Kuslich’s case without prejudice to allow him to add the Texas Secretary

of State as a party to the suit. However, a dismissal with prejudice is proper if the

defects could not be remedied by repleading the case. See Harris Cnty. v. Sykes, 136

S.W.3d 635, 639 (Tex. 2004). Kuslich did not establish that he had standing to bring

this lawsuit. Having determined that Kuslich lacks a distinct injury to create

standing, we conclude the trial court erred by dismissing his claims without

prejudice and allowing him an opportunity to replead. See id.

CONCLUSION

Having considered and overruled each of Kuslich’s issues and determined that

Kuslich did not establish that he had standing to bring this lawsuit, we conclude the

trial court erred by dismissing his claims without prejudice to allow him the

11 opportunity to add the Texas Secretary of State as a party. Accordingly, we modify

the trial court’s 2022 Order on Respondents’ Plea to the Jurisdiction by deleting

“dismissed without prejudice[,]” and substituting “dismissed with prejudice.” We

affirm the trial court’s 2022 Order as modified.

AFFIRMED AS MODIFIED.

JAY WRIGHT Justice

Submitted on September 26, 2024 Opinion Delivered January 23, 2025

Before Golemon, C.J., Wright and Chambers, JJ.