[No] Legal standing to complain: Texas Supreme Court nixes citizen's suit to challenge balloting process that favors political parties as unconstitutional

 
SUPREMES SAY WOULD-BE ELECTION-SYSTEM REFORMER WHO TOOK A STAND AGAINST PARTISAN BALLOTING DID NOT HAVE STANDING
    
Honorable Hope Andrade v. [Average Joe tax-paying Citizen] Don Veneable (Tex. May 18, 2012)
  

In an anonymous per curiam opinion, the Texas Supreme Court this morning disposed of a Dallas resident's constitutional challenge to partisan identification of candidates and straight-ticket voting option on the general election ballot on standing grounds. The challenged feature of the general election ballot process allows voters to vote for all candidates of the same political party simultaneously rather than making a choice between competing candidates in each race. The straight-ticket option, no doubt, strengthens the parties. [Texas uses nonpartisan ballots in some local elections].   

NO SPECIAL INTEREST

The Supremes, who are among those elected on partisan ballots in Texas, collectively conclude that the election system critic who brought the underlying suit in Dallas County was no different from any other Mr. Joe Public, and that he did not satisfy the requirements for tax-payer standing under existing precedent either. Holding that the citizen had no special interest, the justices render judgment for the election official who defended the status quo.  

  

OPINION EXCERPT

  
Don Venable seeks to enjoin Dallas County from identifying candidates’ political party affiliations and providing a “straight-party” option on general election ballots. We must decide whether Venable has standing to pursue these claims. Because Venable has no interest distinct from that of the general public and has not established taxpayer standing under Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001), we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Secretary of State Hope Andrade.
  

Venable has not pleaded facts showing that measurable and significant public funds were being spent on the activity he challenges, and thus, has failed to affirmatively demonstrate taxpayer standing. Because Venable has no interest distinct from that of the public generally, and his claims fall outside the narrow taxpayer exception to the bar against generalized grievances, he lacks the requisite and particularized stake to warrant standing. Accordingly, we grant the petition for review, and without hearing oral argument, we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Andrade. TEX. R. APP. P. 59.1, 60.2(c).

SOURCE: TEXAS SUPREME COURT - Honorable Hope Andrade v. Don Veneable, No. 11-0008  (Tex. May 18, 2012) Petition for Review from Dallas County; 5th district (05‑10‑00303‑CV, ___ SW3d ___, 11‑15‑10)
 

PER CURIAM OPINION

The Texas Election Code requires that election ballots identify each candidate’s party

affiliation. TEX. ELEC. CODE § 52.065(c). It also mandates that ballots contain a straight-party

voting option. Id. § 52.071(b). Venable believes that these requirements violate Article VI, Section

4 of the Texas Constitution, because they neither punish fraud nor preserve ballot box purity.1

According to Venable, these statutory requirements merely benefit political parties, which is not a

legitimate governmental function. Venable also argues that these same provisions violate Article

III, Section 52(a) because public money is used to advance the interests of discrete political parties.2

Venable sued Dallas County Elections Administrator Bruce Sherbet to permanently enjoin

him from: (1) using county funds to identify candidates’ political party affiliations and (2) providing

a straight-party option on any general election ballot. Venable later added Secretary of State Hope

Andrade. Sherbet and Andrade filed jurisdictional pleas. Sherbet challenged the existence of facts

1 Article VI, Section 4 of the Texas Constitution provides:

In all elections by the people, the vote shall be by ballot, and the Legislature shall provide

for the numbering of tickets and make such other regulations as may be necessary to detect

and punish fraud and preserve the purity of the ballot box; and the Legislature shall provide

by law for the registration of all voters.

TEX. CONST. art. VI, § 4.

2 Article III, Section 52(a) provides:

Except as otherwise provided by this section, the Legislature shall have no power to

authorize any county, city, town or other political corporation or subdivision of the State to

lend its credit or to grant public money or thing of value in aid of, or to any individual,

association or corporation whatsoever, or to become a stockholder in such corporation,

association or company. However, this section does not prohibit the use of public funds or

credit for the payment of premiums on nonassessable property and casualty, life, health, or

accident insurance policies and annuity contracts issued by a mutual insurance company

authorized to do business in this State.

TEX. CONST. art. III, § 52(a).

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to support Venable’s claim of taxpayer standing. Andrade argued that, even accepting all of his

allegations as true, Venable did not allege facts sufficient to affirmatively demonstrate jurisdiction.

Venable then amended his petition, alleging the following jurisdictional facts: (1) he is a

property taxpayer in Dallas County, (2) the expenses incurred in the conduct of a general election

are solely Dallas County’s financial responsibility, (3) Sherbet, a salaried county employee, is the

Dallas County Elections Administrator, (4) preparation of the official ballots in Dallas County for

general elections is one of Sherbet’s ministerial responsibilities, (5) in addition to the required

actions needed to prepare a ballot, Sherbet is required to satisfy the additional ballot construction

rules as required by the Texas Election Code relating to the printing of political party names and

straight-party tickets, and (6) the Dallas County Elections Department is fully funded by the Dallas

County General Fund for fiscal year 2010. Venable incorporated by reference a purported copy of

Dallas County’s adopted budget for fiscal year 2010.

The trial court granted both pleas and Sherbet’s accompanying motion to dismiss. Venable

appealed. The court of appeals held that Venable’s amended petition pleaded sufficient facts to

affirmatively demonstrate taxpayer standing. ___ S.W.3d ___, ___. Although the court

acknowledged that Venable did not explicitly state that Dallas County was actually expending public

funds on the allegedly illegal activity, the court construed his pleadings to say that Dallas County

actually expends public funds when it includes the political party identification of the candidates on

the ballot and offers a straight-party voting option. The court also held that Sherbet failed to present

evidence to support his challenge to the existence of jurisdictional facts. The court reversed the trial

court’s judgment and remanded the case to the trial court. Id. at ___.

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Only Andrade petitioned this Court for review, arguing that Venable lacks taxpayer standing

because he failed to plead facts showing that the government actually spends money on the activity

he challenges.

Generally, “a citizen lacks standing to bring a lawsuit challenging the lawfulness of

governmental acts.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 6 (Tex. 2011). This is because

“[g]overnments cannot operate if every citizen who concludes that a public official has abused his

discretion is granted the right to come into court and bring such official’s public acts under judicial

review.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (alteration in original)

(citing Osborne v. Keith, 177 S.W.2d 198, 200 (Tex. 19--)). “Thus, ‘[s]tanding doctrines reflect in

many ways the rule that neither citizens nor taxpayers can appear in court simply to insist that the

government and its officials adhere to the requirements of law.’” Andrade, 345 S.W.3d at 7 (quoting

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.10 (3d ed. 2008)).

Unless standing is conferred by statute, a plaintiff must show that he has suffered a

particularized injury distinct from the general public. Bland Indep. Sch. Dist., 34 S.W.3d at 555–56.

This bar against generalized grievances applies to suits brought by citizens as voters. See Brown v.

Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“No Texas court has ever recognized that a plaintiff’s status

as a voter, without more, confers standing to challenge the lawfulness of governmental acts.”).

However, under Texas law, a narrow, judicially-created exception exists: a taxpayer has standing to

sue to enjoin the illegal expenditure of public funds, and need not demonstrate a particularized

injury. Williams, 52 S.W.3d at 179; Bland Indep. Sch. Dist., 34 S.W.3d at 556; Osborne, 177

S.W.2d at 200; Hoffman v. Davis, 100 S.W.2d 94, 95 (Tex. 1937); City of Austin v. McCall, 68 S.W.

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791, 794 (Tex. 1902). “Implicit in this rule are two requirements: (1) that the plaintiff is a taxpayer;

and (2) that public funds are expended on the allegedly illegal activity.” Williams, 52 S.W.3d at 179.

In Williams, we examined taxpayer standing in a challenge to a religious education program

at a county jail. Id. at 177–79. The plaintiff argued that because he paid taxes, and public funds

helped administer the program at the corrections center, he had standing to enjoin its allegedly illegal

operation. Id. at 179. The money was used to feed, clothe, and house the prisoners. Id. Two

county-paid employees spent a portion of their time supervising the program. Id. This was enough,

the taxpayer alleged, to conclude that the county was spending public money on this allegedly illegal

activity. Id. We considered for the first time what constitutes “expending funds” in a taxpayer

standing case. Id. at 181. To help answer this question, we looked to federal jurisprudence

regarding municipal taxpayer standing. Id.

We noted that to be entitled to federal municipal taxpayer standing, “a litigant must prove

that the government is actually expending money on the activity that the taxpayer challenges; merely

demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not

enough.” Id. We cited several cases in which taxpayers lacked standing, including cases where the

funds would have been spent regardless of the challenged activity.3 We agreed with the county that

3 See, e.g., Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 794 (9th Cir. 1999) (“Doe identifies no tax dollars

that defendants spent solely on the graduation prayer, which is the only activity that she challenges. In fact, Doe

acknowledges affirmatively that ‘[t]he prayers . . . cost the state no additional expense.’ Doe instead alleges that

defendants spent tax dollars on renting a hall, printing graduation programs, buying decorations, and hiring security

guards. But those are ordinary costs of graduation that the school would pay whether or not the ceremony included a

prayer. Therefore, those expenditures cannot establish taxpayer standing.”) (alterations in original); Gonzales v. N. Twp.

of Lake Cnty., Ind., 4 F.3d 1412, 1416 (7th Cir. 1993) (“In this case, however, the plaintiffs’ claim is undercut by their

inability to show that tax revenue is spent for the crucifix. . . . [A]lthough Township funds are spent maintaining the Park

areas surrounding the crucifix, this cost would be incurred with or without the presence of the crucifix. Without evidence

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because the money used to feed, clothe, and house the inmates would be spent regardless of the

religious program’s existence, those expenditures alone were insufficient to establish that the

government actually expended money on the challenged activity. Id. at 182.

We determined that other aspects of the program’s operation involved the use of public

funds, however. Id. We held that because county-paid employees spent a “significant amount of the

County’s time” operating the program, including shaping and promoting its religious curriculum,

county funds were expended in operating the program. Id. at 183. We based our conclusion not just

on the fact that salaried county employees worked on the program, but also because the record

established that the employees’ involvement was “anything but incidental.” Id. There, the

employees “personally and directly operated and managed” the challenged program “while on the

county payroll.” Id.

Thus, under Williams, in order to establish taxpayer standing a plaintiff must plead facts

showing that the government is actually spending money on the allegedly illegal activity—not on

a related legal activity. See id. at 182–83. This must be a measurable, added expenditure—not one

that would have been made in spite of the allegedly illegal activity. See id. at 182. The plaintiff

must be able to allege that the challenged activity “is supported by any separate tax or paid for from

any particular appropriation or that it adds any sum whatever to the cost of conducting the

[challenged activity].” Doremus v. Board of Educ. Of the Borough of Hawthorne, 342 U.S. 429, 433

(1952). Moreover, the expenditure cannot be de minimis—it must be significant. Cf. id. at 434

of expenditure of tax revenues, the plaintiffs cannot claim standing by virtue of their taxpayer status.”).

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(explaining the Court’s finding of a justiciable controversy in a case that “showed a measurable

appropriation or disbursement of school-district funds occasioned solely by the activities complained

of”); Williams, 52 S.W.3d at 183 (noting that county-paid employees “spent a significant amount”

of time operating the challenged program). Unless a plaintiff can meet these requirements, there has

not been a pecuniary injury to the taxpayers generally and the taxpayer’s interest is not direct enough

for his suit to proceed.

The parties do not dispute that Venable is a Dallas County resident and taxpayer. We must

decide whether Venable has alleged facts showing that Dallas County expends public funds when

it includes candidates’ party affiliations and the straight-party option on the ballot.

Venable contends his “sole burden concerning the issue of public funding was to allege the

use of public money in the challenged conduct.” But Williams makes clear that a taxpayer must

plead facts showing that the government is actually spending money specifically on the challenged

activity. Williams, 52 S.W.3d at 178–81. A taxpayer plaintiff, like any other plaintiff, carries the

initial burden of alleging facts that affirmatively demonstrate the trial court’s jurisdiction. See Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Venable’s petition incorporated by reference Dallas County’s adopted budget for fiscal year

2010, which reflected general election expenses. He argues that the budget shows that public funds

were being spent on the challenged activities. But simply including Dallas County’s budget does

not show that a measurable amount of public funds are being expended solely on the allegedly illegal

activity. As the court of appeals noted, Venable’s pleadings did “not explicitly state that Dallas

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County is actually expending public funds on the allegedly illegal activity.” ___ S.W.3d at ___. But

because he “attempt[ed] to link the expenditure of public funds to the allegedly illegal activity,” the

court of appeals generously construed the pleadings “to claim that Dallas County is actually

expending public funds . . . when it includes the political party identification of the candidates on

the ballot and offers a straight-party voting option.” Id. at ___.4

We disagree. Venable has, at most, alleged that Dallas County spends money on

elections—not that preparing and printing ballots with candidates’ political affiliations and a

straight-party voting option costs any more than ballots without them. As we stated in Williams,

merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct

is not enough. Williams, 52 S.W.3d at 181. Nor is it sufficient for the taxpayer plaintiff to point to

costs that would have been incurred regardless of the allegedly illegal activity. Id. at 181–82. A

taxpayer does not have an interest direct enough to warrant standing unless the activity challenged

involves an expenditure of public funds that would not otherwise be made.

Venable argues that he has complied with Williams because he has alleged that county

employees were involved in the preparation of the ballots, which were required by the Elections

Code to identify candidates’ political parties and to offer a straight-party voting option. But as one

of the cases we cited in Williams explained, “[n]early all governmental activities are conducted or

4 We do not agree with the court of appeals that the record does not show that the trial court gave Venable the

opportunity to amend his pleadings. ___ S.W.3d at ___. Venable had an opportunity to amend his petition after

Andrade and Sherbet filed their jurisdictional pleas, and in fact, he did so. Even construing his petition liberally and

looking to his intent, he failed to affirmatively demonstrate that he has taxpayer standing because he has not shown that

the county actually expends funds on the activity he challenges.

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overseen by employees whose salaries are funded by tax dollars. To confer taxpayer standing on

such a basis would allow any municipal taxpayer to challenge virtually any governmental action at

any time.” Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 74 (2d Cir. 2001). A government

employee’s time spent on the allegedly illegal activity must be significant to serve as a basis for

taxpayer standing. Williams, 52 S.W.3d at 183.

Here, Dallas County would incur labor costs for preparing the ballots or programming the

computers for electronic voting, regardless of the inclusion of candidates’ party affiliations and a

straight-party voting option on the general election ballot, and Venable does not allege that there is

any incremental increase in cost related to the statutory requirements. Even if Venable were able to

identify the additional labor costs the county incurred for time county-paid employees spend on the

activity he challenges, Williams requires that such time be “significant”—something Venable has

neither pleaded nor proved. Id.

Venable has not pleaded facts showing that measurable and significant public funds were

being spent on the activity he challenges, and thus, has failed to affirmatively demonstrate taxpayer

standing. Because Venable has no interest distinct from that of the public generally, and his claims

fall outside the narrow taxpayer exception to the bar against generalized grievances, he lacks the

requisite and particularized stake to warrant standing. Accordingly, we grant the petition for review,

and without hearing oral argument, we reverse in part the court of appeals’ judgment and render

judgment dismissing Venable’s claims against Andrade. TEX. R. APP. P. 59.1, 60.2(c).

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OPINION DELIVERED: May 18, 2012

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