in Re Glory Hopkins

Petition for Writ of Mandamus Denied and Plurality, Concurring, and Dissenting Opinions filed January 18, 2006 Petition for Writ of Mandamus Denied and Plurality, Concurring, and Dissenting Opinions filed January 18, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-06-00035-CV ____________ GLORY HOPKINS, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS C O N C U R R I N G   O P I N I O N This is relator Glory Hopkins= second petition for writ of mandamus filed in this Court. Although this court is not required to issue an opinion when denying mandamus relief, it may do so. See Tex. R. App. P. 52.8(d). This case presents significant factual differences from those presented in other cases decided under the relevant statutes, and the novel facts in this case may recur in future cases. Concluding that it is preferable to explain the basis for denying mandamus relief, I write separately to address the application of the law to these unique facts. I. Factual Background Eric Thode is the chair of the Republican Party of Fort Bend County. According to his affidavit, Thode distributes a weekly newsletter by e-mail to approximately 1,700 subscribers. Glory Hopkins, the District Clerk of Fort Bend County and a prospective candidate for reelection, does not subscribe to the newsletter; however, Thode asserts that he has sent e-mail communications to Hopkins through Thelma Hurd, who Thode states is Hopkins=s designee for e-mail communications. Hopkins=s campaign manager, Mandi Bronsell, subscribes to this weekly newsletter. Hopkins does not contend that Bronsell received communications from ThodeCsuch as the three newsletters at issue hereCas Hopkins=s agent, or that Hopkins instructed Thode to send e-mail communications to her through Bronsell. Three of these weekly newsletters, dated November 21, 2005, November 28, 2005, and December 5, 2005, stated in pertinent part as follows: FILING FOR PRECINCT CHAIR If you would like to serve as Precinct Chair for your election precinct for the 2006B 08 cycle, please download a copy of the filing form, fill it out, have it notarized and return it to me. The link to the form is here: [hyperlink omitted]. You can hand deliver the form to me at our next event, which is the Republican Party of Fort Bend County Christmas Party on Thursday, December 8 at Southern National Bank from 7:00 to 9:00 pm. Or, you can mail the form back to me at: Republican Party of Fort Bend County P.O. Box 1987 Sugar Land, Texas 77487-1987 If you would like to send it CERTIFIED mail, please mail your form to: Mr. Eric Thode Universal Compression 4444 Brittmoore Houston, Texas 77487-1987 The form may also be faxed to me with a cover sheet to [fax number omitted]. The form must be returned to me by January 2, 2006 at 6:00 pm. The first address, that of the Republican Party of Fort Bend County, is stated correctly. The second address is Thode=s business address. The zip code on the Brittmoore address is misstated; it incorrectly repeats the zip code to the Sugar Land post office box of the Republican Party of Fort Bend County, rather than the Houston zip code of Thode=s business. Importantly, the newsletters at issue did not state that candidate applications for any position other than that of precinct chair would be accepted at Thode=s business address.[1] Nor did the newsletters state that filing fees or petitions would be accepted at Thode=s business address. Previous newsletters sent on November 7, 2005 and November 14, 2005 contained a similar announcement regarding filing for precinct chair, but omitted mention of filing the application at Thode=s business address. In the weeks following the filing deadline for precinct chair, the newsletters did not state that applications for precinct chair or for any other position would be accepted at Thode=s business address. A subsequent newsletter sent on December 12, 2005 correctly stated the address of the Republican Party of Fort Bend County as the address where checks could be sent in connection with a fundraiser. The same newsletter listed ACurrent Filings for the March 2006 Republican Party Primary.@ Hopkins is not listed among the candidates who had filed to appear on the ballot in the primary; her opponent for the office of district clerk is listed. The newsletter reminds prospective candidates that Athe filing deadline is Monday, January 2nd at 6:00 pm. If you need information, please contact chairman Eric Thode at [phone number omitted].@ Newsletters dated December 19, 2005 and January 2, 2006 again correctly stated the address of the Republican Party of Fort Bend County as the address where checks could be sent in connection with a fundraiser, though they did not revisit the issue of filing for candidacy. On November 17, 2005, Thode sent an e-mail to elected Republican Fort Bend County public officials and persons who had expressed an intent to run for office, reminding them that the filing period to be included in the election would end on January 2, 2006 at 6:00 pm. The e-mail was sent to Hurd, as Hopkins=s designee.[2] In the e-mail, Thode listed five methods to deliver the filing materials as follows: 1. Hand delivery to Thode at the Republican Christmas Party on December 8; 2. Delivery to his business office on Brittmoore Road (this instruction included directions, Thode=s office telephone number and cellular phone number); 3. Delivery via certified or regular mail to Thode=s business office (this instruction included the full and correct address); 4. Delivery via regular mail to the Republican Party of Fort Bend County (this instruction included the full and correct address); or 5. ASchedule a time to deliver to me in some other fashion.@ (For this instruction, too, Thode listed his office and cellular telephone numbers). Thode states in his affidavit that Hopkins made an appointment to meet Thode on December 21, 2005 to deliver her completed election application and filing fee. This was one of the options listed in Thode=s e-mail to elected officials and prospective candidates whose identities were known. Nevertheless, Hopkins did not produce her application or filing fee at the meeting, but she does not dispute that the meeting took place as alleged. On December 27, 2005, Hopkins began the process of mailing her election application and filing fee by certified, first class mail. She addressed the envelope herself, using the address that her campaign treasurer, Libby King had provided to her. King had obtained the party address from Hopkins=s campaign manager, Bronsell. Bronsell had forwarded the incorrect listing of Thode=s business address to King, but had not included the lines above the address indicating that the address was for AFILING FOR PRECINCT CHAIR.@ Hopkins left the envelope containing her election application and filing fee at Fort Bend Postal for mailing, and the owner of the company, Jesse Mata, noticed that the street address on the envelope was a Houston address, while the zip code 77487 was a Sugar Land, Texas zip code. He testified by affidavit that Abecause all Houston zip codes start with >770_ _,= I assumed that Ms. Hopkins intended to write >77087,=@ and so changed the zip code on the certified mailing green card from the Sugar Land zip code from 77487 to 77087. He further testified that he may have changed the zip code on the envelope itself before mailing it (Aeither I or an employee of the United States Postal Service made that change to reflect the Certified Mailing Green Card@). Mata states that he would not have altered the zip code(s) if the address and the zip code had matched. Hopkins picked up the certified mail receipt for the letter on December 29, 2005.[3] Approximately twenty minutes after the statutory filing deadline expired on January 2, 2006, Thode notified Hopkins=s treasurer, King, that Hopkins=s candidacy papers had not been received. By tracking the certified mail receipt, Hopkins subsequently learned that on December 29, 2005, the United States Post Office had declared the envelope undeliverable, and was returning it to her.[4] A copy of Hopkins=s original application for candidacy and a new check for the filing fee were hand-delivered to the secretary of the Fort Bend Republican Party on January 3, 2006; however, Thode notified Hopkins that he could not certify her candidacy to the secretary of state because her filing was untimely. Hopkins therefore asks this court to issue a writ of mandamus, compelling Thode, as the county chair of the Republican Party, to include her name as a candidate for District Clerk for Fort Bend County. Thode does not oppose the relief requested, while her opponent, Annie Rebecca Elliott, opposes the petition for writ of mandamus. The Elections Administrator for Fort Bend County states that the requested relief would not delay or impair the election process Aif [he is] informed by January 25, 2006 of whether or not Glory Hopkins will be on the ballot.@ II. Issues Hopkins contends that she is entitled to equitable relief compelling Thode to enter her name on the general primary ballot because Thode allegedly violated a statutory duty Awhen he provided the wrong address for candidates to file applications by certified mail.@ III. Analysis A prospective candidate for a county office must timely file his or her application with the county chair or the secretary, if any, of the county executive committee. Tex. Elec. Code Ann. '' 172.021(3), 172.022(a)(2) (Vernon 2003). An application for a place on the general primary election ballot must be filed not later than 6:00 p.m. on January 2 in the primary election year. Id. at ' 172.023(a). Here, there is no question that relator=s application failed to satisfy this requirement. Statutory requirements concerning candidacy for political office are mandatory and are to be strictly enforced. Wallace v. Howell, 707 S.W.2d 876, 877 (Tex. 1986). If a prospective candidate=s application does not comply with the Code=s requirements, the party chair must reject the application. Tex. Elec. Code Ann. ' 141.032(e) (Vernon 2003); see also id. at '172.029(d) (county chair must omit the prospective candidate=s name from the list submitted to the Secretary of State). No party official can alter the filing deadline. Painter v. Shaner, 667 S.W.2d 123, 125 (Tex. 1984) (orig. proceeding). Party chair Thode therefore acted in accordance with the Election Code when he declined to accept relator=s untimely application. This, of course, does not conclude the analysis. A court can nevertheless provide an equitable remedy after the expiration of statutory deadlines when necessary to correct a party official=s violation of a duty imposed by law. See, e.g., Davis v. Taylor, 930 S.W.2d 581, 584 (Tex. 1996) (granting mandamus directing that prospective candidate be placed on ballot where county chair missed deadline to certify candidate to the secretary of state); Painter v. Shaner, 667 S.W.2d 123, 125 (Tex. 1984) (granting mandamus to allow late filing of application where the prospective candidate was ready to file on the filing deadline, but found the county chair=s office was locked); see also Tex. Elec. Code Ann. ' 273.061 (Vernon 2003) (AThe supreme court or 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@). We therefore must determine if the county chair violated a legal duty by misstating his business address in the newsletter when enumerating ways in which a prospective candidate for precinct chair could file his or her application. The Election Code specifically authorizes prospective candidates to submit their applications by mail. Tex. Elec. Code Ann. ' 1.007(c) (Vernon 2003). In addition, Athe authority to whom a delivery, submission, or filing is required [by the Election Code] to be made may accept the document or paper at a place other than the authority's usual place for conducting official business.@ Id. at ' 1.007(b). Reading these two provisions together, it is clear that the county chair may accept mailed candidacy documents and filing fees at a location other than the usual place of business. Regardless of the method of delivery, a prospective candidate's application for a place on the ballot must be timely filed. See id. at ' 141.031(3) (emphasis added). An application filed by mail is considered to be filed at the time of its receipt by the appropriate authority. See id. at ' 172.021(c). An application for a place on the general primary election ballot must be filed not later than 6:00 p.m. on January 2 in the primary election year. See ' 172.023(a) (Vernon 2003) (emphasis added); see also In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002) (holding that Athe candidate has a duty to file a compliant application before the filing deadline@); Escobar v. Sutherland, 917 S.W.2d 399, 404 (Tex. App.CEl Paso 1996, no writ) (stating that Ait is the candidate who is primarily responsible and accountable for properly completing and timely filing a proper application for a place on the ballot@). If the word Amust@ appears in the Election Code then that section requires mandatory compliance. Cohen v. Strake, 743 S.W.2d 366, 368 (Tex. App.CHouston [14th Dist.] 1988, orig. proceeding). When construing a statute, we ascertain the legislature=s intent from the plain meaning of the actual language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). When the legislature employs a term in one part of a statute and excludes it in another, we presume the legislature had a reason for doing so. Fireman=s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000). We do not invent a remedy the legislature could have, but did not, specify. State v. Roland, 973 S.W.2d 665, 666 (Tex. 1998). As relevant to this case, it is significant that the Election Code dates the time of filing some documents from the date when the material is mailed. See Tex. Elec. Code Ann. ' 1.008 (Vernon 2003). In contrast, certain other documents are not considered filed until they are actually received by the authority or placed in the authority=s mailbox. See id. at ' 1.009. In the case of a prospective candidate=s application and filing fee, the legislature has expressly chosen not to follow the Amailbox rule,@ but instead to date the time of filing from the time at which the materials are actually received by the appropriate authority. See id. at ' 172.021(c). By dating the time of filing from the time of the application=s receipt, rather than from the day the materials were mailed, the legislature placed the risk of non-delivery on the prospective candidate who chooses to file his or her candidacy documents by mail. Timely filing Ais not the County Chair=s responsibility, it is not the Election Administrator=s responsibility, and it certainly is not the responsibility of the voting public who wish to someday cast their vote for the candidate. This accountability is not for the intentions but for the deed.@ Escobar, 917 S.W.2d at 404. If we were to accept Hopkins=s arguments and consider her application timely filed simply because she intended the materials to be mailed to Thode=s business address, in essence we would change the Legislature=s allocation of the risk of non-delivery to the prospective candidate. We recognize, however, that despite the mandatory language of the statute, Aunder limited circumstances, statutory deadlines may be extended to correct an official=s violation of a statutory duty.@ In re Gamble, 71 S.W.3d at 318. The facts of this case do not present such a circumstance. To be entitled to such equitable relief, Hopkins must show that Thode=s violation of a statutory duty caused her application and filing fee to be untimely. In order to meet this requirement, Hopkins argues that Thode had a statutory duty to provide a correct address for candidates to file their applications by mail, that he violated that duty in providing an incorrect address, that she relied upon the incorrect address, and that this caused her filing to be untimely. Hopkins does not cite to any provision in the Election Code imposing this duty; rather, she invites this court to impose such a duty. In support of this argument, Hopkins cites Painter v. Shaner, 667 S.W.2d 123 (Tex. 1984). In Painter, the candidate went to the office on the last filing day in order to file his candidacy documents, and found the office locked, thus preventing his timely filing. See Painter, 667 S.W.2d at 124. There, the Texas Supreme Court found that because the candidate had a legal right to file an application until 6:00 pm on the deadline date, the chairman had a concomitant legal duty to accept applications until 6:00 pm on the deadline date. Id. at 125. Painter demonstrates an obvious parity between the legal right, expressly stated by the legislature, and the imposition of a duty essential to the exercise of that right. The same situation is not presented on these facts for several reasons. First, the only express duty imposed on Thode by the Election Code is to accept applications at Athe authority=s usual place for conducting official business,@ i.e., the address of Republican Party of Fort Bend County. See Tex. Elec. Code Ann. ' 1.008(a) (Vernon 2003). No one argues that Thode misstated the address of the offices of the Republican Party.[5] Though Thode was empowered to do so, he was not required to accept applications at a place other than the Ausual place for conducting official business.@ See ' 1.008(b) (AThe authority to whom a delivery, submission, or filing is required by this code to be made may accept the document or paper at a place other than the authority's usual place for conducting official business@) (emphasis added). See also Tex. Gov=t Code Ann. ' 311.016(1) (Vernon 2005) (when used in a statute, the word A>may= creates discretionary authority or grants permission or a power@).[6] Thode did exercise this discretionary authority by arranging an alternate means of accepting Hopkins=s application at a personal meeting on December 21, 2005, though he was not required to do so. Hopkins failed to produce her application or filing fee at the meeting, and she also, was not required to do so. She was only required to file her application and pay the filing fee by 6:00 pm on January 2, 2006. Hopkins nevertheless suggests that, having stated an address where he would accept applications for precinct chair by certified mail in three electronic newsletters in late November and early December, Thode had a duty to state the address correctly. However, even if one were to accept the argument that stating any address to subscribers created a duty to state the address correctly, there would still be no duty to state a correct address to non-subscribers. Moreover, this particular information was directed only to prospective candidates for precinct chair. Hopkins was neither a subscriber nor a prospective candidate for precinct chair. Additionally, Thode=s discretionary authority to state an address at which he would receive some applications would not be converted into a duty simply because Hopkins (or more accurately, Bronsell) chose to rely on that address for a purpose for which it was manifestly not intended. Moreover, even if such a duty could have arisen, and even if the duty was violated, the violation was corrected by (a) Thode=s personal meeting with Hopkins to accept her materials by personal delivery, (b) his review of her filing options with her at the meeting, (c) the e-mail directed specifically to elected officials and candidates, correctly stating five methods of delivery, and (d) subsequent newsletters prior to Hopkins=s mailing that made no representations at all about accepting applications at any alternate place. Finally, there is a lack of causation. Even if we were to accept the argument that Thode had a duty to correctly state his business address in the three newsletters at issue, the failure to state the address correctly would have harmed only prospective candidates for precinct chair offices. None of the newsletters represented that Thode would receive applications for any office other than the party office of precinct chair at his personal place of business. Perhaps even more importantly, the newsletters at issue stated only that applications would be accepted at Thode=s business address; they did not represent that filing fees would be accepted at that address. A filing fee is a necessary component of the candidacy materials for the public office of district clerk;[7] a filing fee is not required of candidates for the party office of precinct chair.[8] In fact, all of the newsletters require money to be sent to the offices of Republican Party of Fort Bend County, not to Thode=s business address.[9] Accordingly, there was no indication that a filing for district clerk could be completed at Thode=s business address. Nevertheless, Hopkins mailed her filing fee as well as her application to this address, though she does not contend that there was ever any representation that filing fees would be accepted there.[10] IV. Conclusion Because of the many material fact issues presented, mandamus is not authorized; because of the facts that are not disputed, mandamus is not justified. While the outcome to Hopkins may be harsh, the requirements of the Election Code and existing precedent do not allow us to grant equitable relief. Both candidates and voters have a common interest in predictable enforcement of the Election Code and the orderly progress of elections. The legislature has unambiguously placed the risk of untimely delivery or nondelivery on the candidate who mails his or her application and filing fee, and the facts presented neither justify nor authorize a departure from that allocation. The dissent concludes that recent cases such as In re Gamble and In re Bell have moved away from strict statutory construction to a more fluid concept of achieving just and reasonable results. Nevertheless, justice and reasonableness are not judged solely from the standpoint of the aggrieved candidate. For example, Gamble recognizes that the legislature Ahas specifically called upon the courts to exercise their equitable powers to resolve election code violations.@ In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002) (emphasis added). Gamble also recognizes that A[c]ertainly, the candidate has a duty to file a compliant application before the filing deadline.@ Id. at 318 (emphasis added). Accordingly, existing case law continues to weigh factors such as the timeliness of the application and the existence of an election code violation, neither of which is present here. Courts may additionally consider whether equitable relief would frustrate the legislature=s intent in enacting a statute. See In re Bell, 91 S.W.3d 784, 788 (Tex. 2002). Here, granting the requested relief would frustrate the legislature=s intent to place the risk of untimely receipt of mailed documents on the prospective candidate. Finally, though this court may exercise its equitable powers to resolve election code violations, those powers must themselves be exercised in an equitable manner. There is no authority for the proposition that a prospective candidate=s incumbency or tenure is a factor that may even be considered in Abalancing equities;@ were it otherwise, the balance would always begin with a weight on the scale of the incumbentCa result that is neither just nor reasonable. For the foregoing reasons, I respectfully concur. /s/ Eva M. Guzman Justice Petition denied and Plurality, Concurring, and Dissenting Opinions filed January 18, 2006. Panel consists of Justices Fowler, Edelman, and Guzman. (Edelman, J., plurality.) (Fowler, J., dissenting.) [1] Unlike the office of district clerk, which is a public office for which voters of any party may vote, and which represents all of the constituents in the county, a precinct chair is an intra-party official, and represents only members of the same party. Prospective candidates for precinct chair are subject to a different filing schedule than prospective candidates for district clerk. [2] Hopkins states that it is Airrelevant that a mass e-mail/newsletter containing the correct zip code may have been sent to Ms. Hopkins=s secretary.@ Hopkins denies that her secretary was her designee for e-mail communications, but does not deny that Hurd was her designee. However, Hopkins=s secretary is not identified by name, and no one has represented that Hurd is Hopkins=s secretary. It may be that Hurd and Hopkins=s secretary are the same person. If so, then Hopkins may be denying that Hurd was her designee for e-mail communications from the Republican Party of Fort Bend County. If Hopkins is denying that contention, then the existence of this material fact issue (i.e., whether, as Thode testified, Hopkins=s agent received correct filing instructions applicable to incumbent public officials and prospective candidates) would prevent mandamus relief, for we may not resolve factual disputes in a mandamus proceeding. See In re Jones, 978 S.W.2d 648, 653 (Tex. App.CAmarillo 1998, orig. proceeding); Escobar v. Sutherland, 917 S.W.2d 399, 403 (Tex. App.CEl Paso 1996, orig. proceeding). If Hurd is not Hopkins=s secretary, then we have no denial of Thode=s testimony that Hurd is Hopkins=s designee. In that event, Hopkins=s argument cuts both ways: if it is Hopkins=s position that her agent=s receipt of the correct address for filing the application for the office for which she is actually applying is irrelevant, then it stands to reason that her agent=s receipt of an incorrect address for filing an application for an office for which she is not applying is also irrelevant. [3] Though not discussed by any party, the zip code shown on the certified mail receipt was altered in the same manner as the Agreen card@ and the envelope itself. [4] Although the United States Post Office declared the envelope Aundeliverable@ on Thursday, December 29, 2005, no evidence has been produced to show that the envelope would have been received at Thode=s business address by 6:00 pm on Monday, January 2, 2006, if it had been correctly addressed. This is yet another fact issue which would preclude mandamus, for even if we were to accept that the statements in the newsletter caused Hopkins to misaddress the letter, which then caused Mata to alter the address, there is no evidence that the correctly addressed letter would have been delivered prior to the deadline. While Mata and King state the AUnited States Postal Service website, on January 4, 2006, stated that Ms. Hopkins=s certified mail would have been delivered if properly addressed on December 29, 2005,@ the printout of the information on the website says only AStatus: Return to Sender. Your item was returned to the sender on December 29, 2005 because it could not be delivered as addressed.@ While it took the Post Office just two days to determine that the envelope was undeliverable as addressed, physical return of the envelope to Hopkins took another six days. She received the envelope back on January 4, 2006, eight days after originally mailing it. [5] In light of the fact that no one claims that Bronsell, Hopkins=s campaign manager, was her designee for receipt of e-mail communications, there is in fact no contention that Thode made any representations to Hopkins at all regarding the address where her application could mailed. All of Hopkins=s contentions regarding mailing addresses are concerned only with representations made in an e-mail newsletter, and Hopkins does not subscribe to the newsletter. [6] The Code Construction Act (Tex. Gov. Code Ann. '' 311.001 to 311.034 (Vernon 2005)) applies to the construction of each provision in the Election Code, except as otherwise expressly provided in the Code. Tex. Elec. Code Ann. ' 1.003(a) (Vernon 2003). [7] Tex. Elec. Code Ann. ' 172.024(a)(14) (Vernon 2003). [8] Tex. Elec. Code Ann. ' 172.021(b) (Vernon 2003). [9] See discussion of fundraising checks in the Facts section. [10] To the extent that Hopkins implies that she reasonably relied upon King=s representations of Bronsell=s representations of Thode=s representations concerning the invalid address, such an argument would itself preclude mandamus relief, either because the reasonableness of such reliance creates an issue of fact or because such reliance would be unreasonable as a matter of law. Moreover, the application of tort concepts of reasonable reliance have not been argued to apply to the issues regarding construction of the Election Code presented here.