

Opinion issued February 25, 2010

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00022-CV
———————————
In re James A. Baker, Relator

 

 

Original Proceeding on Petition for Writ of Mandamus
 

 
O P I N I O N
Relator
James A. Baker filed this original proceeding, seeking to have the name of a
Republican candidate for judicial office removed from the primary election
ballot.  We dismissed the petition for
writ of mandamus for want of jurisdiction. 
We now substitute this opinion for our prior memorandum opinion,
explaining our conclusion that Baker has failed to demonstrate his standing to
bring this original proceeding.  
Procedural
Background
          On
January 15, 2010, James A. Baker filed a petition for writ of mandamus, requesting
that this Court direct Jared R. Woodfill, V, Chairman of the Harris County
Republican Party, to omit from the March 2, 2010 primary ballot the name of
Rick Ramos, putative candidate for district judge of the 308th Family District Court.  The petition did not explain Baker’s interest
in the controversy.  That same day, in
order to determine our own jurisdiction, we directed the Clerk to issue a
notice that the petition did not fully comply with the requirements of Texas
Rule of Appellate Procedure 52.3(e) because it did not fully state the basis of
this Court’s jurisdiction.  The notice
directed the parties’ attention to In re
Jones, 978 S.W.2d 648 (Tex. App.—Amarillo 1998, orig. proceeding [mand. denied]),
in which the court indicated that a petitioner’s status as a citizen or voter
was insufficient to confer standing to challenge eligibility of a candidate for
election.  See Jones, 978 S.W.2d at
651 (citing Allen v. Fisher, 9 S.W.2d
731, 732 (1928)).  
Baker filed an amended
petition, in which he advised this Court that he is an “active Republican” in
Harris County and a “financial supporter” of another candidate for the 308th
Family District Court, albeit one who is seeking the Democratic nomination for
that bench.  A response in opposition to
the petition for mandamus was filed by real party in interest Ramos, and that
response was joined by respondent Woodfill. 

A separate response
was filed by Secretary of State Hope Andrade, who had been identified by Baker
as a real party in interest.  Secretary Andrade
indicated that she took no position on the issues presented by this original
proceeding, other than to urge the Court to resolve the matter quickly, in
light of the statutory requirement that absentee ballots be mailed no later
than January 23, 2010, the 38th day prior to the election.  See
Tex. Elec. Code Ann. § 86.004
(Vernon Supp. 2009).
After receiving the
parties’ briefs and oral arguments, on January 19, 2010 we issued a memorandum
opinion denying relator’s motion for temporary relief and dismissing the
petition for writ of mandamus.  We now
explain our reasons for doing so.
Jurisdictional Analysis
A petition seeking
mandamus relief must state, without argument, the basis of the court’s
jurisdiction.  Tex. R. App. P. 52.3(e). 
In his original petition, Baker correctly noted that this Court is
authorized to compel an officer of a political party to perform a duty imposed
by law in connection with an election.  See Tex.
Elec. Code § 161.009 (Vernon 2003) (“The performance of a duty
placed by this code on an officer of a political party is enforceable by writ
of mandamus in the same manner as if the party officer were a public officer.);
id. § 273.061 (“[A] court of
appeals may issue a writ of mandamus to compel the performance of any duty
imposed by law in connection with the holding of an election or a political
party convention, regardless of whether the person responsible for performing
the duty is a public officer.”).  Despite
this statutory directive, we must nevertheless consider our jurisdiction to
proceed, and the petitioner’s standing is an element of our subject-matter
jurisdiction.  See, e.g., Tex. Ass’n of
Business v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993).  
In his original
petition, Baker included no statement of his interest in this controversy or
any other information relevant to his standing to bring this original
proceeding.  In his amended petition,
Baker alleges that he is interested in the Republican primary election for the 308th
Family District Court, a “well-known and long-time Harris County Republican
activist,” and a “registered Republican.” 
He claims to be a member of the “Republican National Committee Advisory
Board,” but he does not allege anything more about that entity or the
significance of his involvement with it. 
He states that he has an interest for the Republican county chairman “to
follow [the] Texas Election Code and disallow an ineligible candidate from winning
the primary election as he could later be disqualified by the opposing
[D]emocrat[ic] candidate.”  Finally,
Baker alleges that he is a contributor of an undisclosed amount of money to
Julia Maldonado’s campaign for election as judge of the 308th Family District
Court, and he therefore claims an interest in the possibility that Maldonado
might campaign against an ineligible candidate.
Although not stated in
Baker’s petition, as part of this original proceeding, this Court can and does
take judicial notice of the fact that Maldonado is a candidate in the
Democratic primary election.  Tex. R. Evid. 201(b)(2) (“A judicially
noticed fact must be one not subject to reasonable dispute in that it
is . . . capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.”).  Baker has not disclosed to this Court whether
he intends to vote in the Republican primary.
“The standing
requirement stems from two limitations on subject matter jurisdiction: the
separation of powers doctrine and, in Texas, the open courts provision.”  Tex.
Ass’n of Business, 852 S.W.2d at 443. 
To have standing, Baker must allege some injury distinct from that
sustained by the public at large.  Brown v. Todd, 53 S.W.3d 297, 302 (Tex.
2001); Blum v. Lanier, 997 S.W.2d
259, 261 (Tex. 1999); Hunt v. Bass,
664 S.W.2d 323, 324 (Tex. 1984).  Factors
this Court has considered to determine whether a party has standing have
included (1) a direct injury, or threat of a direct injury, resulting from the
complained-of wrongful act; (2) a direct relationship between the alleged
injury and the claim the party seeks to adjudicate; (3) a personal stake in the
controversy; (4) an injury in fact arising from the challenged action, either
economic, recreational, environmental, or otherwise; and (5) the
appropriateness of the party to assert the public’s interest in the matter, as
well as the party’s own interest.  See, e.g., Am. Heritage, Inc. v. Nev. Gold & Casino, Inc., 259 S.W.3d 816,
820 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
We consider each of
Baker’s claimed interests in Ramos’s candidacy to determine whether any of them
provide him the interest necessary to confer standing.
1.    
Republican
activities
Baker contends that he
has standing based on his status as a “well-known and long-time Harris County
Republican activist” and a “registered Republican.”  The allegations that Baker has an interest in
the subject of this proceeding based on his Republican activities cannot be a
stronger interest than he would have if he actually intended to vote in the
Republican primary, which would be insufficient to bestow standing.  See
Brown, 53 S.W.3d at 302; see also Clifton v. Walters, No. 2-08-389-CV,
2010 WL 144164, at *3-4 (Tex. App.—Fort Worth Jan. 14, 2010, no pet. h.)
(affirming finding of no standing to challenge candidates’ eligibility for
election based on plaintiffs’ citizenship, voter, and taxpayer status).  Likewise, being an active Republican does not
distinguish Baker from the rest of the public with respect to an interest in
the inclusion of Ramos on the Republican primary ballot.
Baker’s claim to be a
member of the “Republican National Committee Advisory Board,” without alleging
more, also provides no basis for considering him to have any greater interest
than any other voting citizen.  Baker has
not suggested that his association with this board bestows upon him any unique
interest, rights, or responsibilities with respect to the Republican primary
election for the 308th Family District Court. 
We thus reject Baker’s suggestion that his engagement in Republican
Party activities constitutes a basis for his standing in this proceeding.
2.    
Interest
in enforcement of the law
Baker contends that he
has standing based upon his interest for the Republican Party county chairman
“to follow [the] Texas Election Code and disallow an ineligible candidate from
winning the primary election as he could later be disqualified by the opposing
[D]emocrat[ic] candidate.”  Like the
interest of a citizen, a voter, or a taxpayer in any public controversy,
Baker’s claimed interest in general enforcement of the law is no different than
that of any other member of the public at large, all of whom may be safely
presumed to favor general enforcement of the laws.  See
White v. Robinson, 260 S.W.3d 463, 472–73 (Tex. App.—Houston [14th Dist.]
2008, pet. granted) (rejecting plaintiffs’ standing based upon their interest
in enforcement of law, which arguably was greater than that of the general
public); Eddowes v. Curry, 599 S.W.2d
367, 370 (Tex. Civ. App.—Fort Worth 1980, no writ) (finding no justiciable
controversy when plaintiff citizens’ interest in enforcement of criminal laws
at issue was not a greater interest than that possessed by the public
generally); cf. Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550–51 (Tex.
App.—Fort Worth 1994, no pet.) (holding that private taxpayer lacked standing
to contest tax exemption that taxpayer asserted was secured through fraud and
noting that taxing authority could challenge tax exemption and district
attorney could enforce law).  We reject
this allegation as a basis for Baker’s standing.
3.    
Financial
support of candidate in opposing party’s primary
Finally, Baker alleges
that he has the interest necessary to prosecute this original proceeding based
on his status as a contributor to Julia Maldonado’s campaign for election as
judge of the 308th Family District Court, the same position ultimately sought
by real party in interest Ramos.  Baker
characterizes this interest as one against any possible need for Maldonado to
campaign against an ineligible candidate.
Baker has provided us
no authorities suggesting that as a financial supporter of a candidate in the
Democratic primary, he has standing to challenge the eligibility of a candidate
in the Republican primary.  Instead, in
support of his standing, Baker relies on four cases.  Three of the cases relied upon by Baker, Brimer v. Maxwell, 265 S.W.3d 926, 928
(Tex. App.—Dallas 2008, no pet.), In re
Jones, 978 S.W.2d 648, 651 (Tex. App.—Amarillo 1998) (orig. proceeding
[mand. denied]), and Lemons v. Wylie,
563 S.W.2d 882, 883 (Tex. Civ. App.—Amarillo 1978, no writ), all establish that
a candidate for election to an office has standing to challenge the ballot-eligibility
of another candidate for the same office. 
Two of these three cases involved contestants who would appear on the
same ballot.  In Brimer, an incumbent Republican state senator challenged the
inclusion of the Democratic nominee’s name on the general election ballot.  See
Brimer, 265 S.W.3d at 927–28.  In Jones, a general election write-in
candidate for judge of a county court at law challenged the inclusion of the
Republican candidate for the same office. 
See Jones, 978 S.W.2d at 650–51.  In the third case, Lemons, a candidate challenged the inclusion of the name of the
incumbent county attorney on the Democratic primary ballot.  See
Lemons, 563 S.W.2d at 882–83.  The opinion in Lemons identified the challenger as a candidate for county
attorney, but did not specify whether that challenger was a candidate for the
Democratic nomination.  None of these
cases presented the issue of the standing of an opposing candidate’s financial
supporter.
In the other case
relied upon by Baker, Valley Forge
Christian College v. Ams. United for Separation of Church & State, Inc.,
454 U.S. 464, 472, 102 S. Ct. 752, 758–59 (1982), the United States Supreme
Court considered whether
a corporation advocating the separation of church and state
had standing to challenge a conveyance of property from a department of the
federal government to a nonprofit educational institution operating under the
supervision of a religious order.  The
Supreme Court held that Article III of the United States Constitution requires
a party who invokes the court’s authority to “show that he personally has
suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant,” and that the injury “fairly can be traced to the
challenged action” and “is likely to be redressed by a favorable
decision.”  Id., 454 U.S. at 472, 102 S. Ct. at 758–59 (citing Gladstone Realtors v. Village of Bellwood,
441 U.S. 91, 99, 99 S. Ct. 1601, 1608 (1979), and Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S. Ct.
1917, 1924, 1925 (1976)).  These
requirements are analogous to the distinct-injury requirement for standing in
Texas courts.  See, e.g., Brown, 53
S.W.3d at 297.  Baker has no more shown
that he has standing under standards applicable in federal courts than he has
with respect to Texas law.
Baker asks us to
exercise the Court’s “discretion” to find that his interest in Ramos’s
candidacy is sufficiently distinct from the interest of the public at large to
confer standing.  But the issue is not
one of the Court’s discretion, but of whether Baker satisfies the legal
standard to demonstrate standing. 
Although we construe Baker’s pleadings liberally, ultimately it is his
burden to allege facts that affirmatively demonstrate the Court’s jurisdiction
to hear the cause.  Tex. Ass’n of Business, 852 S.W.2d at 446.  
Baker suffers no
direct injury if Ramos’s name remains on the ballot.  Baker is not a candidate for the Republican
nomination for election to the 308th Family District Court.  The candidate Baker supports is seeking the
Democratic nomination, not the Republican nomination.  Even if we were to assume that some level of
activity or financial contributions on behalf of a political candidate could be
sufficient to give a supporter standing to challenge another candidate’s ballot
eligibility—an issue we need not and do not reach—Baker’s alleged injury is
still contingent upon at least two other future events, Ramos winning the
Republican primary, and Maldonado winning the Democratic primary.  See
Gottlieb v. Fed. Election Comm’n, 143 F.3d 618, 621 (D.C. Cir. 1998)
(rejecting argument that standing could be predicated on supposed injury to
voters’ “ability to influence the political process” as resting upon “gross
speculation” being “far too fanciful to merit treatment as an ‘injury in
fact’”).  As observed by the United
States District Court for the District of Columbia Circuit:
In a case such
as this one, where the “asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else,” standing will
often be difficult to establish.  This is
because “one or more of the essential elements of standing ‘depends on the
unfettered choices made by independent actors not before the courts and whose
exercise of broad and legitimate discretion the courts cannot presume either to
control or to predict.’”  
 
Id.
(internal citations omitted, quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S. Ct. 2130, 2137 (1992)).
This attenuated
interest of Baker’s does not rise to the level of a direct injury under Texas
law.  There is no threat of direct injury
to Baker, in the sense that he has no personal stake in the alleged dispute, or
any injury that is concrete and particularized. 
See Brown, 53 S.W.3d at 305–06
(citing Raines v. Byrd, 521 U.S. 811,
819, 117 S. Ct. 2312, 2312 (1997)). 
There is no direct relationship between Ramos’s candidacy for a
Republican nomination and Baker’s support of a Democratic candidate in a
separate contested primary election.  See, e.g., Am. Heritage, 259 S.W.3d at 820 (standing may be predicated upon “a
direct relationship between the alleged injury and the claim asserted”).  
Finally, Baker has
argued that our decision should be guided by a purported legislative directive
to allow “any voter” to seek the relief requested in his original
proceeding.  Baker’s argument is an
apparent reference to Chapter 1 of the 1951 Election Code, referenced by the
Amarillo Court of Appeals in Jones, 978
S.W.2d at 651, which provided as follows:
[1.05]          Ineligibility
. . .  No person ineligible to hold office shall
ever have his name placed upon the ballot at any general or special election,
or at any primary election where candidates are selected under primary election
laws of this State . . . .
 
[1.06]          Ineligibility
bars
. . .  the name of no ineligible person, under the
Constitution and laws of this State shall be certified by any party, committee,
or any authority authorized to have the names of candidates placed upon the
primary ballots at any primary election in this State . . . .
 
[1.07]          Injunction
may issue
The district
court shall have authority to issue writs of injunction and all other necessary
process at the suit of any interested party, or of any voter, to enforce the
provisions of the above two (2) sections and to protect thereunder the rights
of all parties and the public . . . .
 
Act of June 28, 1951, 52nd Leg., R.S.,
ch. 492, § 1, 1952 Tex. Gen. Laws 1097, 1098, repealed by Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 9(1),
1985 Tex. Gen Laws 802, 1076.  The
Election Code was recodified in 1985.  Section 1.07 of the 1951 Code was recodified
as section 273.081 of the present Election Code, which provides: “A person who
is being harmed or is in danger of being harmed by a violation or threatened
violation of this code is entitled to appropriate injunctive relief to prevent
the violation from continuing or occurring.” 
Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 1, 1985 Tex. Gen. Laws
802, 1054 (codified at Tex. Elec. Code
Ann. § 273.081).  The “any
voter” language relied upon by Baker is no longer part of the Election
Code.  See Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 9(1),
1985 Tex. Gen. Laws 802, 1076 (repealer).
We thus conclude, on
the facts of this case, that standing to challenge a candidate’s inclusion on a
primary election ballot cannot be predicated on an alleged injury that is only
derivative of harm to another candidate in another party’s primary election.  The considerations that give opposing
candidates standing to challenge each others’ ballot eligibility, see, e.g., Jones, 978 S.W.2d at 651, do not necessarily establish that under
the same circumstances, the candidates’ financial contributors may also claim
an injury distinct from that sustained by the public at large.  Under these circumstances, we conclude that
Baker’s interest in the subject matter of his petition is too attenuated to be
distinguished from that of the public at large. 

Conclusion
          Accordingly,
we hold that Baker lacks standing to bring this original proceeding, and we
dismiss the original proceeding for want of jurisdiction.
 
 
 
 
                                                          Michael
Massengale
Justice
 
Panel
consists of Justices Jennings, Keyes, and Massengale.

