Hoyt v. City of El Paso

878 F.Supp.2d 721

H. Warren HOYT and Jesus Chapel, Plaintiffs,

v.The CITY OF EL PASO, TEXAS and Greg Abbot, in his official capacity as Attorney General of Texas, John Cook, in his official and individual capacity as Mayor of the City of El Paso, Texas, and as a private citizen, and Jaime Esparza, in his official capacity as District Attorney of El Paso County, Texas, Defendants.

No. EP–11–CV–485–KC.

United States District Court,

W.D. Texas,

El Paso Division.

July 10, 2012.

Troy Chandler Brown, Troy C. Brown, PC, El Paso, TX, Kevin H. Theriot, Alliance Defense Fund, Joel Oster, Leawood, KS, for Plaintiffs.

Kenneth Allan Krohn, Office of the City Attorney, Duane A. Baker, Attorney at Law, Michael Rudy Wyatt, El Paso, TX, Erika M. Kane, Assistant Attorney General, Kay Crisp, Kenneth Allan Krohn, Office of the Texas Attorney General, Austin, TX, for Defendants.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Attorney General Greg Abbott's Motion to Dismiss (“Abbott Motion”), ECF No. 35; District Attorney Jaime Esparza's Motion to Dismiss (“Esparza Motion”), ECF No. 38; John Cook's Motion to Dismiss (“Cook Motion”), ECF No. 41; City of El Paso and Mayor John Cook's Motion to Dismiss (“City Motion”), ECF No. 47, (collectively, the “Motions to Dismiss”), and H. Warren Hoyt and Jesus Chapel's Motion for Preliminary Injunction (“PI Motion”), ECF No. 18. For the reasons set forth herein, the Court GRANTS the Motions to Dismiss. The Court DENIES the PI Motion as moot.

In order to bring this case, it is necessary for Plaintiffs H. Warren Hoyt and Jesus Chapel (“Plaintiffs”) to properly plead a justiciable injury. Plaintiffs assert that they want to circulate recall petitions in an effort to recall City of El Paso Mayor John Cook (“Cook” or “the Mayor”), Representative Steve Ortega (“Ortega”), and Representative Susie Byrd (“Byrd”). Plaintiffs claim that Defendants are preventing them from circulating such petitions by threatening to prosecute them under the Texas Election Code. According to Plaintiffs, the actions of Defendants Greg Abbott, John Cook, Jaime Esparza, and the City of El Paso (collectively “Defendants”) have chilled their constitutional rights.

Plaintiffs's case fails for a number of reasons. First, the challenged laws do not appear to prohibit Plaintiffs from engaging in the circulation of recall petitions, as alleged. The primary statute at issue, section 253.094(b) of the Texas Election Code, only prohibits petition circulation when such activity constitutes a political contribution. Plaintiffs have not alleged that they wish to engage in activity that constitutes a political contribution under the law. Nor have they demonstrated any constitutional infirmity with regard to the regulation of petition circulation in this manner.

Second, there is no credible basis for Plaintiffs' alleged fear of prosecution; instead, Plaintiffs merely allege a subjective fear of enforcement. Without alleging more than speculation, this claim is insufficient. Plaintiffs claim that other churches have been sued under the challenged statutes, but it is not clear from Plaintiffs' Complaint that these churches engaged in similar activity. Further, some of Defendants do not even have the power to enforce the Texas Election Code (the “Election Code”), so any alleged threat on their part cannot be credible.

In short, what Plaintiffs are asking the Court to do is assume that section 253.094(b) bars conduct that it does not bar, and then assume that Cook, in his official capacity, and the City have the power to enforce that statute, which they do not, and then decide whether this misconstrued statute will be unconstitutionally enforced by parties who cannot enforce it. This is precisely what the Constitution forbids—an “entangling ... in abstract disagreements.” See Reno v. Catholic Soc. Servs., 509 U.S. 43, 72, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (O'Connor, J., concurring) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). Accordingly, the Court holds that it does not have before it a justiciable case or controversy.

I. BACKGROUND

The Court takes the following facts from Plaintiffs' Second Amended Complaint, as is appropriate at this stage of the proceedings. Plaintiffs Jesus Chapel and Warren Hoyt (“Hoyt”) are a local church and pastor, respectively. Second Am. Compl. (“Complaint” or “Second Amended Complaint”) ¶ ¶ 12–13, ECF No. 24. Plaintiffs seek to circulate petitions for a recall election of City of El Paso Mayor John Cook (“Cook” or “the Mayor”), Representative Steve Ortega (“Ortega”), and Representative Susie Byrd (“Byrd”). ¹ Compl. ¶ 40. Neither Plaintiffs nor Defendants allege that Plaintiffs have in fact circulated recall petitions. Rather, Plaintiffs claim to have refrained from circulating petitions because they fear that Defendants will bring criminal and civil actions against them. See Compl. ¶¶ 5–4, 43–44.

As justification for this fear, Plaintiffs allege that the City of El Paso (the “City”), Cook, and District Attorney Jaime Esparza (“Esparza”) are “enforcing Texas Election Code § 253.094 to prohibit churches from circulating petitions to hold recall elections.” Compl. ¶¶ 1, 20. Specifically, Plaintiffs claim that Cook repeatedly and publicly stated that he has the ability to enforce the Election Code, and that he plans to enforce the Election Code against Plaintiffs “in an attempt to prohibit a recall election.” Compl. ¶¶ 22–34. Plaintiffs further claim that the City has refused to “disavow” any of Cook's statements. Compl. ¶¶ 29–30. Additionally, Plaintiffs explain that Hoyt and “various church members” were forced to retain a lawyer and invoke the Fifth Amendment after being called as witnesses in Cook v. Tom Brown Ministries, a state court case. Compl. ¶ 45.

In addition to the City and Cook, Plaintiffs also claim that Esparza “interprets the Election Code to prohibit churches and their members from circulating petitions to hold recall elections.” Compl. ¶¶ 36, 38. Esparza has allegedly commenced a criminal investigation of other area churches and individuals “who he suspects of violating the Election Code, and has subpoenaed the City Clerk for copies of the recall petitions.” Compl. ¶¶ 36, 38.

Plaintiffs have also named Texas Attorney General Greg Abbott (“Abbott”) in this suit; however, Plaintiffs' Complaint does not allege that Abbott has actively interpreted or enforced the Election Code in any way. See generally Compl.

On November 17, 2011, Plaintiffs filed a lawsuit against the City and Abbott, in his official capacity. See Verified Compl., ECF No. 1. Plaintiffs amended their complaint on December 23, 2011, and again on March 19, 2012, to add claims, facts, and defendants, including Cook and Esparza. See generally First Am. Compl., ECF No. 12; Compl. The operative Complaint asserts claims under 42 U.S.C. § 1983 based on various violations of the First Amendmentand Fourteenth Amendment of the United States Constitution, and violations of the Texas Constitution.² In particular, Plaintiffs allege that section 253.094(b) ³ of the Election Code violates Plaintiffs' constitutional rights of freedom of speech, freedom of religion, due process, and equal protection.⁴ Compl. ¶¶ 1, 18–20, 57.

In the Motions to Dismiss, Defendants argue the Court should dismiss the Complaint based on lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See generally Abbott Mot.; Esparza Mot.; Cook Mot.; City Mot. Defendants also argue that the Court should abstain under the doctrine of Younger abstention. Abbott Mot. 4–6; Esparza Mot. ¶ 23; Cook Mot. 3–4; City Mot. 2–4.

II. DISCUSSION

Defendants claim the Court should dismiss Plaintiffs' Complaint in its entirety for three reasons. First, Defendants bring a motion to dismiss under Rule 12(b)(1), claiming that Plaintiffs lack standing to assert their claims.⁵ Abbott Mot. 3–4; Esparza Mot. ¶¶ 8–14.; Cook Mot. 1–2; City Mot. 10–11. Next, Defendants argue that the Court should abstain under the doctrine of Younger abstention. Abbott Mot. 4–6; Esparza Mot. ¶ 23; Cook Mot. 3–4; City Mot. 2–4. Finally, Defendants bring a motion to dismiss under Rule 12(b)(6), arguing both that Plaintiffs have failed to state a claim for relief and that Esparza, Abbott, and Cook are immune from suit. Abbott Mot. 3; Esparza Mot. ¶¶ 15–16; Cook Mot. 5–6; City Mot. 5–9.

Plaintiffs have filed a motion for preliminary injunction seeking an injunction to prevent Defendants from enforcing the Election Code as applied to Plaintiffs' speech, and a declaration that the Election Code is facially unconstitutional. PI Mot. 10.

As courts must consider a motion to dismiss pursuant to Rule 12(b)(1) before any other challenge, the Court addresses it first. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994).

A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)

1. Standard

Federal courts are courts of limited jurisdiction. People's Nat'l Bank v. Office of the Comptroller of the Currency of the U.S., 362 F.3d 333, 336 (5th Cir.2004). Without jurisdiction conferred by statute, federal courts lack the power to adjudicate claims. Id. A party may challenge a district court's subject matter jurisdiction by filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Fed.R.Civ.P. 12(b)(1).

A motion to dismiss pursuant to Rule 12(b)(1) must be considered before any other challenge because a court must have jurisdiction before determining the validity of a claim. Moran, 27 F.3d at 172. In ruling upon such motion, a district court is free to weigh the evidence and satisfy itself as to its power over the case. MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir.1992). In making this ruling, the district court may rely upon: (1) the complaint alone,...