in Re the Honorable Karen Angelini

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IN

THE SUPREME COURT OF TEXAS

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No. 06-0088

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In re The Honorable Karen

Angelini

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On Petition for Writ of Mandamus

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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