*1 win”); ment that “too case was weak Olga OSTERBERG, v. Cartwright, State S.W.2d 219-20 Robert and ( Tex.App. Petitioners, [14th Dist.] - Houston denied)
writ (ruling sup evidence ported attorney’s award of fees when at torney general delinquency filed notice of PECA, Jr., Respondent. Peter S. alleged support to enforce child order after No. 97-1027. prej notice had been dismissed twice with udice). Texas. Moreover, policy behind the Frivo- Argued Sept. support lous Claims Act does award attorney’s surveyor’s fees this Decided Feb. purpose chapter case. 105 is to “The afford an aggrieved remedy citizen some Concurring Opinion Justice from a governmental agency for the mis- Gonzales, Feb. Black, power.”
use of governmental Here,
S.W.2d at 629 n. 5. the State con- and, defendant,
ducted its survey own as a
disagreed with the results the Landown- survey.
ers’ was within State its
rights to disagree with the Landowners
about the the boundary location of and to
present a ownership defense of claimed
the riverbed. The fact ag- State
gressively defended itself and eventually prevail
did not case is not a misuse governmental power contemplated
the Frivolous Act. Claims
Because the Landowners are not enti-
tled attorney’s surveyor’s fees un- Act,
der the Frivolous Claims we need not
decide whether Frivolous Claims Act is
implicated by the resolution. Due to our case,
disposition of this we also need not
address the Landowners’ conditional chal-
lenge to change the trial court’s of venue
from County Roberts Hutchinson Coun-
ty. part We appeals’ affirm court of
judgment attorney’s denying survey- fees,
or’s reverse in part ap- court of
peals’ judgment, part and reinstate in
trial judgment court’s declaring that survey correctly
Landowners’ marks the
boundary between the State’s riverbed and riparian tracts.
S5 breaking knew were Arriv- law. ing requires at that conclusion us to decide constitutionality of the Election Code imposing reporting requirements sections campaign spenders the Elec- direct providing private tion civil Code sections reporting violations. We remedies that, applied conclude to the Oster- requirements bergs, and the private provisions pass civil enforcement muster, exception: constitutional one require- We hold that the Election Code’s ment that husband and wife Robert Olga Osterberg form a committee acting before concert to make cam- paign unconstitutionally expenditure bur- dens their freedom of association. Accord- ingly, part part we affirm reverse appeals’ *5 judgment court of remand and appeals. to the of court I
FACTS Osterberg Robert his and wife Zinn, Antonio, Larry San L. John Hoes- Olga in litigation were involved in State tenbach, Odessa, for Petitioners. Judge District Peca’s Peter court. The Paso, Michael R. “Mick” Milligan, El for Osterbergs unhappy way were with the Respondent. Peca during litigation. treated them the When ran Peca for re-election in the opinion Justice ABBOTT delivered the opposed Osterbergs candidacy. They his respect the with parts to I-IV $34,200 Biel, contributed to Albert Peca’s VI-XI, HECHT, and which Justice opponent in the primary. Democratic The OWEN, Justice Justice BAKER and also and Osterbergs created funded their join, Justice GONZALES plurality and a own television advertisements about the opinion V, with respect part in which race.1 The advertisements consisted HECHT, OWEN, Justice Justice Justice the following text: join. BAKER CONSIDER THIS: We Osterbergs’ overrule the motion for (cid:127) Judge by peers Peca chosen was his rehearing. opinion We withdraw our dat- El outstanding jurist Paso’s 29, 1999, July ed and substitute the follow- (cid:127) He graduated Summa Cum Laude ing. (cid:127) He worked to reduce his for docket In this case we conclude that candi- years over seven date who seeks to enforce Election Texas reporting requirements Code is not re- ENOUGH, IF VOTE HIM THAT’S FOR quired prove persons making unre- ported expenditures against [next the candidate screen:] ” parties Olga Osterbergs.’ The contest whether made ex- Our advertisement as "the penditures for the For advertisement. sim- label is not intended to be a substantive com- sake, plicity's expenditure we refer and ment. trial,
But, you that he told want who understands: Code. At Biel testified ONE remarks, though about Peca’s Osterberg (cid:127) people, The Courthouse exists for say he did not when. poli- for judges, and not accidents tics, lawyers. and primary Peca won the March 8th elec- later, days (cid:127) against tion. Two he filed suit law, spirit just The Osterbergs seeking damages civil for letter, employed justice must be An violations of the Texas Election Code. people. bring private can opposing candidate (cid:127) expense Efficiency justice against cause of action who “[a] cannot be tolerated. ... knowingly expendi- makes Chapter ture violation of’ 253. Tex. BRING THE BACK COURTHOUSE. § 253.131. Peca claimed that Elec.Code TO THE PEOPLE! Osterbergs Chapter violated 253 of the report the di- by failing Election Code VOTE FOR HIS OPPONENT campaign expenditures they made for rect And years remove HIM in four Chapter advertisements. television people! If he the will fails prohibits campaign expenditures direct paid Osterberg Ad for Bob spender reports over unless the $100 compliance $28,695 Election spent produce Osterbergs Code 254.2 The had money and air the advertisement. reported expenditures by the dead- from was withdrawn a bank account Rob- required lines Election shared, Code ert Olga Olga with checks that 254.124,the Oster- 254.124. Under section signed in her name. Robert testified had bergs file no required were Olga nothing knew about his payment day later than the before the elec- ads, eighth he checks she used *6 a until report tion. Robert did not file signed for use he had had his because 4,May nearly after two months the impaired a right suffered stroke that his 1994— Peca filed Fol- election and after had suit. hand. trial, lowing jury trial a the court held the One month before March Olga jointly severally and and lia- Robert election, primary spoke Peca at an El Paso ble for Election Code violations and Bar Association candidate forum luncheon. $57,390plus Peca interest. awarded the luncheon and heard Peca Biel attended speak. part appeals understood some Peca’s court affirmed Biel 121. It Osterberg part. and reversed 952 S.W.2d remarks be accusations that required prove the held Peca was that violating was somehow Texas Election that 253.002, clearly §§ candi What or defeat of a identified 253.062. election Tex. Elec.Code Chapter campaign cooperation a date which is made without or 253 defines as "direct any or candi expenditure” corresponds with what the Fed consultation with candidate” committee), Campaign agent Act date's or and Colorado Re eral Election and United States publican Campaign "independent expendi call Fed. Comm. v. Federal an Comm’n, §251.001(7), Compare Tex. Election ture.” Elec.Code (1996) (8) (clarifying campaign expenditure” (defining a "direct L.Ed.2d 795 "independent” expenditure expenditure "in a that is an ex an made connection with an penditure campaign a "not coordinated with the candi for elective office or on measure” campaign”). general campaign date See not constitute contri or candidate’s that "does bution”), (di (1996) ly Op. Comm’n No. 336 1 Tex. Admin. Code 20.1 Tex. Ethics campaign expenditure ("Although 'independent the campaign "made without term rect law, expenditure’ is it prior approval the not used in Texas the consent or candidate easily grasped term 'di expendi the often than the officeholder on whose behalf more or made”), expenditure,’ which Texas law uses to Federal Election Cam rect ture was with Act, 431(17) (1997) expenditure (defining campaign with paign describe a made 2 U.S.C. “independent expen prior approval "an or of the can expenditure” as out the consent benefitted.”). person expressly advocating the didate diture Osterbergs expenditures finding. argues knew such a Peca supports their also Ap- attorney’s violated the Election Code. Id. at 126. he is entitled to that fees. standard, that plying it affirmed the trial (1) prove hold need not We that: Peca Robert, against judgment finding court’s subjective knowledge of Osterbergs’ evidence that Robert knew he was violat- (2) laws; pre- Osterbergs election at ing the Election Code. Id. 128. The objections served their constitutional appeals Olga court of reversed as to be- (3) 253; facto Chapter the statute’s de there that cause found was no evidence form a requirement Osterbergs that knowingly she violated the Election Code. political designate committee and a trea- reversal, Id. Because of this the court did making expenditures surer before “in con- Osterbergs’ argument not address the that unconstitutionally cert” burdens their as- there was no evidence or insufficient evi- (4) application rights; sociational Olga dence that made a direct Chapter provisions other 253’s to the Ost- expenditure. 129. The court erbergs speech not violate the free does also that appeals Osterbergs held had provisions association Texas objections their waived constitutional Constitutions; (5) United States the Oster- reporting 253’s requirement bergs did not waive their constitutional provision. civil enforcement Id. at 124-25. objection to the trial court’s definition of appeals The court of held further campaign expenditure, any but error Osterbergs waived them ar- constitutional harm- the trial court its instruction was gument that the trial court should have the Osterbergs’ less because advertise- limited its definition of “campaign expendi- advocacy ment was express as matter of ture” to for communications (6) law; Osterbergs waived de- their “expressly advocate election they substantially complied fense clearly defeat of a identified candidate.” (7) statute; Peca waived claim his Id. at 129-31. And appeals the court of attorney’s holding fees. Our renders held that waived their con- argument irrelevant Peca’s alternative tention that “substantially complied” supports finding the evidence with the Election Code’s re- Osterbergs knowingly violated the statute. quirements by filing May 1994—almost two months after the elec- II *7 tion. Id. at 129. the of Finally, court appeals held that Peca of recovery waived A WHAT VIOLATOR MUST KNOW? attorney’s object fees failing to or make 253.131(a) Texas Election Code section a request jury new when the did not re- provides: turn a finding attorney’s on the fees issue. person A or ac- knowingly who makes Id. at 132. campaign a cepts contribution or makes expenditure a in of campaign violation Osterbergs petitioned Both the and Peca chapter this is hable for as damages Osterbergs this review. The provided by this section. argument produced renew their that Peca 253.131(a) § no evidence that Robert Osterberg (emphasis know- Tex. Elec.Code added). Chapter ingly violated and in question 253 contend The initial this case is that did not requires waive their constitutional whether this section to Peca compliance arguments. prove and substantial In that Osterbergs actually the knew response, argues Peca that the Election that their conduct violated require prove Code does not him to the trial and of held appeals The court court expenditure knew that “knowingly” applies their that the word not Code, the only violated Election and alterna- to of a ex- making campaign the act tively that the Election re- penditure, Code does but also to the fact that the ex- quire law, knowledge of the the Peca penditure evidence violates the Election Code.
38 statute, knowingly make or authorize a ar-
assails this construction wholly partly from “deeply political expenditure that it the rooted” guing violates person rule of the ignorance or mistake law is contribution knows prosecution. Peca chap- a defense to con- been made in violation this have added). ter.”) allowing Legislature or mistake ignorance (emphasis tends of law as a defense would vitiate enforce- clearly require that the actor knew how ment of the Election Code’s fi- knowledge of the Election Code be- have provisions. nance a violation. Be- being charged fore did not include a Legislature cause statute, In our construing pri knowledge requirement similar Legisla mary give aim to effect 253.131, presume we to add that should not v. ture’s intent. Texas Water Comm’n ourselves.3 requirement Dist., Brushy Creek Mun. Util. 917 S.W.2d (Tex.1996). 19, 21 We endeavor to discern contends, a re adding As Peca such from Legislature’s intent the actual quirement hamper section 253.131’s would Energy it language Corp. used. Mitchell enforceability. purpose by undermining its (Tex. Ashworth, v. 943 S.W.2d Progressive v. Ragsdale Voters See 1997). object doing, so we consider (Tex.App. League, 790 S.W.2d attained, circumstances sur —Dallas)(“The remedy enforcement enactment, legisla rounding the statute’s promotes essence of the statute and statutory history, tive and common former compliance provisions with the law, consequences particular and the Code, cer especially proscribe those 311.023; § construction. Tex. Code Gov’t unlawful.”), being part tain acts as aff'd 438; Energy, Mitchell S.W.2d Un part grounds, rev’d on other Shelton, ion Ins. Bankers Co. (Tex.1990). Enforcement S.W.2d (Tex.1994). S.W.2d problematic future cases would be because 253.131(a), on whether the defendant of section would focus language provisions, specific code as of knew language well structure Code, operated whether the defendant under Legis the Election demonstrate legal interpretation. A defendant “knowingly” intent that refer correct lature’s simply by making a contri could avoid civil enforcement accepting to the act of laws. The refusing whether to learn the election expenditure bution or and not to expenditure resulting rule would do violence the contribution violated Legislature general proposition ignorance the Election Code. The made is not a defense. See clear other sections of Election Code law Tex. Pen.Code (“It 8.03(a) prosecution is no specifically require wanted to defense when provi ignorant the actor was being to know the law is violated. 253.003(b) (“A See, law the law has taken any sions of after e.g., Tex. Elec.Code *8 effect.”). neither the politi conclude that knowingly accept a We person not the Election Code’s language nor person cal the knows to have statute’s contribution Legisla an intent the chapter.”) structure reveals made in violation this been of 253.005(a) (“A proposition.4 added); § to from that person ture deviate (emphasis argues construction that this interpretation of The dissent 3. The dissent claims that our defense ignorance the law a for makes of Code pro- 253.131 and other Election candidates, parties. the private To but not for only that "produces the ironic result visions provides contrary, no ratio- our construction protected Judge are candidates like Peca from ignorance allowing for a candidate to use nale they liability are vio- civil when unaware that making illegal- liability law avoid for of the to Code, ordinary lating while citi- the Election Moreover, unreported expenditures. it is ly Osterberg Mrs. can be liable like Mr. and zens ours, province, to Legislature's the not within supplies (emphasis original).” dissent no The knowledge necessary degree of establish the authority support assertion. or for that bald to violate a statute. Instead, we hold that in section ciation clauses of the United States and 258.131, Constitutions,” “knowingly” applies only explained that Texas and “[tjhese whether a making “campaign is burden the exercise of restrictions “campaign narrowly are expenditure.” political speech contribution” construction, in- enough compelling Under this an into focused to serve inquiry whether there is that state.” In their evidence Robert terest of the motion Osterberg they Olga violating modify were and alternative motion judgment knew unnecessary, election is court Osterbergs again laws and the for new trial the raised of appeals making inquiry. issues, erred in stating “Chapter[s] that these that Robert, Code, respect With that error the and 254 of Texas Election appeals’ applied case, narrowly harmless because the court of tai- are overriding conclusion on the issue did not it to cause lored to serve state interest judgment against reverse Peca’s Robert. free therefore violation of the However, at speech 952 S.W.2d the court of and association clauses of the U.S. appeals when it post-ver- committed reversible error and Texas These Constitutions.” Olga time, Peca’s af judgment against reversed also alleged, dict motions the first ter no that finding evidence she knew she phrase “acting that the in concert with one remand, violating was the law. On the persons”5 unconstitutionally or more court appeals vague. should address Oster-
bergs’ argument pro alternative that Peca Osterbergs The asserted these constitu duced no evidence or insufficient evidence points tional defenses four of error on Olga knowingly made a direct cam appeal. appeals court ruled paign expenditure. Osterbergs their waived constitutional arguments they because asserted
Ill “broadly allegations, unsupported stated evidence,” argument which further OF PRESERVATION CONSTITU- spe “were insufficient to call the multiple TIONAL TO CHALLENGES challenges cific constitutional ... THE STATUTE trial attention of the court.” 952 S.W.2d Before considering constitutionality of appeals The court also held that statute, we first consider whether Osterbergs vague could not raise their Osterbergs waived their constitutional post- ness first challenges for the time in arguments. answer, In their amended verdict (citing motions. See id. McCraw v. Osterbergs argued that “allowance dam- Vickers, (Tex.App.— S.W.2d ages sought by Plaintiff ... would violate n.r.e.)). ref'd San Antonio writ speech freedom of and association Osterbergs argue appeals court clauses U.S. and Texas Constitu- in holding erred their waived tions.” their motion directed ver- First arguments. agree. Amendment We dict, “[i]m- reiterated that posing party restrictions has deciding When expenditure requirements of specific po- waived its federal constitutional claims committee, court, litical along accompa- proce state we look first Texas’s nying penalties, your govern Defendants would rules that a party dural when must be a speech violation of the free and asso- raise those claims.6 If we conclude *9 provision 5. The relevant of the Texas Election dates or Tex measures...." Elec.Code added). 253.062(a) § (emphasis actually "Except Code states: as otherwise law, provided by acting an individual in Tex.R.App. ("As 33.1(a) prerequisite 6. See P. a person may concert another make one or presenting complaint appellate to a re for campaign expenditures more direct in an view, the record must show that ... the com property election from the individual's own plaint by timely to the court was made trial a $100 any that exceed on one candi- or more motion...."); Dreyer request, objection, or v. 40 rules, objection lodged be in the trial specific under those we has occurred
waiver
procedural
the
court has
then consider whether
those
court is to ensure that
trial
issue.”).
as matter
sub-
to
on the
adequate
opportunity
a
of
the
rule
grounds
pro-
law to
stantive federal constitutional
In
and
their answer
their motion
the
interests at stake.
tect
constitutional
verdict,
identi
Osterbergs
for
the
directed
Comm’n,
See,
v.
Tax
e.g., Lawrence
State
issue and
rights
fied the constitutional
at
276, 282,
556,
L.Ed.
52
76
286 U.S.
S.Ct.
that,
statutory
ap
when
provisions
the
(1932) (“Even
the
though
claimed
1102
plied,
Although
violate them.
allegedly
protection
denied on non-
constitutional
pleading
in the
and motion
the statements
this
province
it is the
of
grounds,
federal
specificity,
were not
nev
paragons
to
the
inquire whether
decision
Court
for the
court the
ertheless identified
trial
upon
fair
sub-
court rests
a
the state
the
provided
on and
trial
issue to be ruled
basis.”).
stantial
to rule. We hold
opportunity
court the
rules, we
procedural
Texas
Applying
Osterbergs
not waive their
the
did
Osterbergs
whether
the
raised
consider
applica
First Amendment defenses
speech and association
their federal free
protect
tion of
for
Concern
specificity
arguments with sufficient
rights
supports
ing First Amendment
also
rule
give
opportunity
the trial court an
holding.
speech is
this
When freedom of
Tex.R.App.
52(a)
P.
on
issues. See
issue,
Supreme
will find waiv
Court
(Tex. Sup.Ct.
Tex.Crim.App.1986,
and
that are “clear
er
circumstances
1988, 1989, 1990, superseded
amended
Publ’g Co. v.
compelling.”
and
Curtis
1997) (“In
preserve
complaint
a
order to
130,
1975,
Butts,
145, 87
18
388 U.S.
S.Ct.
review,
have
appellate
party
a
must
does not
L.Ed.2d 1094
This case
re
timely
to the trial court a
presented
provide
compelling”
“clear and
circum
motion, stating
spe
quest, objection
that the Oster-
justify finding
stances to
he
grounds
ruling
cific
desired
arguments are
bergs’ First Amendment
specific grounds
to make if
were
court
waived.
context.”);7
apparent
from the
we
extent to
Although
v.
Fire Ins.
decide the
McKinney
National Union
(Tex.1989);
Co.,
72,
pro
Constitution
see also which the United States
S.W.2d
Shaw,
174,
conduct,
do not
Osterbergs’
tects the
we
In the Interest
966 S.W.2d
1998,
the Texas
pet.)
Paso
the extent
to which
(Tex.App.
no
consider
- El
(“The
provides
independent basis
that a
purpose
requirement
Constitution
an
Greene,
697,
(Tex.1993) ("As
proce
law
own
substantive
defines its
871 S.W.2d
federal
claim,
rule,
including
dramatically,
a
constitu
a
[federal]
liti
dural matrix.... More
claim,
in the
tional
must have been asserted
gant’s
comply
procedures
failure
with state
appeal.").
trial court in order to be raised
against
cause
state court
rule
Paullin,
generally
v.
See
John
litigant
reaching
ever
the merits of
without
(1913)
41
protection
Osterbergs
complied
because the
fur-
statutes
with the First Amend
argument
nished
authority only
ment,
and
under
holdings apply equally
its
to our
Though
the United States Constitution.
inquiry into whether
this state statute
that the
“noting”
Texas Constitution
complies with the First Amendment as
provide
speech protections,
broader free
incorporated
through
the Fourteenth
Osterbergs
stated in their brief that Amendment’s Due Process Clause. See
judgment
“[b]ecause
here is unconsti-
Marshall,
(6th
523,
Suster v.
149 F.3d
529
Constitution,
tutional under the
U.S.
is Cir.1998) (“Review
constitutionality
necessary
indepen-
determine the
spending
limits in Buckley was not
ground
dent
of whether it is unconstitu-
upon
reasoning
based
the line of
that such
tional under the Texas Constitution.” The
apply only
limitations should
to federal
Osterbergs
provide
thus
no rationale to
—
denied,
political campaigns.”), cert.
support a conclusion based on the Texas U.S. -,
890,
119 S.Ct.
IV
“operate in
tions
an area of the
fun-
most
damental First Amendment
activities.
DOES CHAPTER 253 ACT TO PRO-
public
Discussion of
issues and debate on
HIBIT INDEPENDENT EXPENDI-
qualifications
of candidates
integral
TURES, OR DOES IT REASON-
operation
to the
system govern-
REQUIRE
ABLY
DISCLOSURE
ment
established
our Constitution.”
OF THOSE EXPENDITURES?
Buckley,
The landmark case
and coordination of
Buckley v.
expenditure
with the
...
42 system public to from the candi- es of election view.”
improper
[the]
commitments
82,
Buckley,
diture 253.002 with C by authorized following vides the rule: unlimited direct C; as as expenditures long allowed the (2) corporation organization labor reports spender expenditures exceed expenditure an authorized making in an election and one reimburses no $100 D; by Subchapter the spender. See Tex. Elec.Code (§) a making authorizing candidate 253.061, Though §§ complexly 253.062. expenditure an for the candidate’s structured, phrased and the Election Code election; own unambiguous has an effect: an intended (4) committee; political expenditures report individual must direct (5) a campaign treasurer or assistant unreported total over or the $100 campaign acting treasurer an expenditures illegal spend- become and the official capacity. penalties; er civil and criminal may face reports spender expenditures, the the he 253.002(a),(b) (emphasis § Tex. Elec.Code added). penalties. or she faces no As Peca argues, C, Subchapter pro- Under which provisions operate impose these a re- vides for requirements expenditures direct requirement porting campaign on direct individuals, by section 253.062states: expenditures, rather than ban or ceiling (a) Except by otherwise provided expenditures. on those law, an acting individual not in con- cert with another interpreted make Under section 253.062 as Commission, expen- one or more direct the Texas Ethics campaign individu- al cannot receive ditures in an election indi- reimbursement direct from the expenditures, the campaign and individual property vidual’s own exceed report expenditures totaling must over any on one or $100 more candidates a campaign as if individual were $100 or measures if: political of a specific-purpose treasurer (1) complies Chap- the individual with committee. See 1 Tex. Admin. Code ter as if 254[8] the individual were § Chapter 22.5. Election Code 254 and a campaign treasurer of a Chapter subchapter E the Ethics committee; and require- Commission’s rules establish the (2) the individual receives reim- no reports. ments these In this contested expenditures. bursement for the election, judicial Osterbergs9 were re- 253.062(a). § Tex. Elec.Code quired report listing to file a their direct phrase ap- initial section 253.002 expenditures campaign eighth day pears complete abe ban on cam- direct primary before the See Tex. election. (b) paign expenditures. But subsection 254.124; § 1 Tex. Admin. Code Elec.Code clarifies that prohibition section 253.002’s § Because the race was for the 20.325.10 apply does not long spender District, so as the composed only 171st Judicial follows If separate requirements. other County,11 Osterbergs El Paso were spender is an individual who not a to file El required Paso requires reporting 8. day of contribu- of the fortieth tures as before election. provides reporting tions and and 254.124(b). § Election Code Tex. Elec.Code schedules. requires specific-purpose 254.123 also political committees to file semiannual re- sake, simplicity’s For we refer to "the Oster- ports July January 15 and 15. Whether However, bergs.'’ Olga required was to meet Osterbergs required were to file these reporting requirements Election Code's not, reports we and semiannual need thus do knowingly expenditure. if she made an not, decide. required were not to file a report thirty days before the election because 24.266(a). Gov't Code Tex. expendi- had made no direct Because a candidate election the ulti-
County Clerk.
See
Tex.
Elec.Code
252.005(2), 252.006, 254.130;
§§
Ad-
Tex.
requirements
burden of these
mate
is sub-
The report
20.5.
must be
min.
Code
stantially
similar
to that of
federal
sworn,12 placed on the Ethics Commission-
requirements,20
they fall into the
(1)
form,13
prescribed
include:
must
genus
requirements
Buckleywphélá
name, address,
telephone
number
minimally
as “a reasonable and
restrictive
(2)
spender;14
type
date
*13
furthering
of
method
First Amendment
filed;15 (3)
report
election for which the
by opening
processes
the
values
basic
expendi-
campaign
the amount of direct
system
public
election
view.”
[the]
during
tures that in
exceed
aggregate
$50
424
Buckley,
at
Texas (1997). be must be against the law —there some- Guide FOR Political Committees Act, 254.036(b); Campaign § 1 Tex. Under Federal Election 20. 12. Tex. Elec.Code Admin. 20.331(24). § person, every than a other commit- Code tee, making independent expenditures exceed- 254.036(a); § 13. Tex. Elec.Code Tex. Admin. ing year year, $250 in an a must: In election Today, Osterbergs may § 20.19. Code report pre-election later twelve file a no than reports have to file Ethics their on Commis- election, any post-general days before file a JSPAC, because the Judicial Cam- sion Form report thirty days no later than after election However, paign apply. Fairness Act would election, general quar- and file additional occurred before the Act election issue 1995, (c). 434(a)(2), § terly reports. 2 U.S.C. See passed apply was in so does not in year, person must file bi- In non-election this case. addition, reports. any id. in- annual See In 254.121(2); § 1 Tex. dependent greater $1000 expenditure than Tex. Elec.Code Admin. 20.331(3), (4), (5). § day any made after the twentieth before Code reported Secretary election must be 254.121(3); § 1 Tex. Tex. Elec.Code Admin. and the the Federal Election Commission 20.331(6). § Code Secretary of 24 hours when State within expenditure is made. See U.S.C. 254.031(a)(3); § 1 Tex. Ad- Tex. Elec.Code 434(c)(2). reports § include: must 22.331(22)(E). Although § indi- Code min. any persons who receive disburse- name report they expenditures if vidual must exceed during period aggre- in an ment reporting period, requirement is $50 in a gate $200 amount within calendar over triggered spent not has until individual amount, date, purpose year; aggregate in $100 over the candidate. Tex. 253.062(a). expen- expenditure; § a statement whether Elec.Code support opposition diture is candidate; or 254.031(a)(3); § 17. Tex. Elec.Code Ad- Tex. sought the name of office 20.331(18). § Code min. candidate; and a certification whether coopera- independent expenditure is made 254.031(a)(3); § 18. Tex. Elec.Code Ad- Tex. with, tion, consultation, at the concert 20.331(18). min. Code# of, any suggestion candidate or request or agent. 254.031(a)(7); See 2 U.S.C. candidate’s committee 19. Tex. Elec.Code Ad- Tex. (c)(2). 20.331(19). 434(b)(6)(B)(iii), min. Code# thing Analogizing they more.” bergs United States knew of the statute were violat- Video, Inc., 253.151(a) such, v. X-Citement 73- ing. As section not does 74, 78, punish L.Ed.2d 372 activity; innocent First Amendment (1994), the dissent states the “some- punishes only the statute those who do not thing required by more” the Constitution engaged have other- “happens to expendi- be the fact that the activity. wise innocent First Amendment had reported.” ture to be 253.131(a) The X-Cite- words, other does not, however, ment decision does support Osterbergs’ violate the First Amendment the dissent’s or the Osterbergs’ argument. pre- because the does rights statute proposition X-Citement stands for the making campaign expen- vent them from must be of engaging aware merely requires diture. The statute certain violating conduct—not aware of they report expenditures, their campaign particular being punished statute —before and, reiterate, reporting requirements for conduct that pro- would otherwise be *14 clearly are Buckley constitutional. See by tected the First Amendment. For ex- Valeo, 1, 84, 424 96 U.S. S.Ct. 46 ample, the in defendants X-Citement could (1976). L.Ed.2d 659 While the statute not prosecuted simply have been trans- may unpalatable, be it is not unconstitu- porting materials, pornographic the sub- tional and should not judicially rewrit- jects adults, of which were all across state by ten as suggested dissent. lines, activity protected because that Another flaw in Osterbergs’ and the under the First Amendment. age “[T]he analysis applies dissent’s is that it a myop- performers pornographic [in the ic view of the First Amendment at interest materials] is the crucial element separat- in stake this case. true that the While is ing legal wrongful innocence from con- Osterbergs have a First right Amendment X-Citement, duct.” at U.S. engage political speech, in it is also true Thus, S.Ct. 464. under the statute that that a requiring promotes law disclosure case, something more than knowing that the ends of the First Amendment. As was transporting one pornographic materi- noted, previously public “[d]iscussion of is- als across state lines proved had to be qualifications sues debate on the order protected for otherwise speech to be integral candidates are operation punished, namely pornographic system government by established materials contained minor children. Constitution,” our Buckley, short, the X-Citement Court held that the disclosure advances defendant had to knowledge have that the strong “informational interest” because it pornographic subjects minors, were “helps voters to define more of the candi- transporting pornography child was dates’ constituencies.” Id. at against the law. Applying the dissent’s 612. The interpretation ap- dissent’s and the Osterbergs’ reasoning, the X-Cite- 253.131(a) plication of likely section would ment defendants would also have to know expenditures result in less like that transporting child pornography violat- made the Osterbergs, thus shield- ed the law. ing vital information about the elective application The correct of X-Cite process public. from the requires only ment the Osterbergs were aware that they made a direct cam VI paign expenditure. Although the statute MUST A AND FILE HUSBAND WIFE so, say does not argument could be A AS POLITICAL COMMITTEE that, made in order for the statute to be BEFORE MAKING DIRECT CAM- constitutional, upheld as the Osterbergs PAIGN “IN EXPENDITURES also had to know that they did not CONCERT”? expenditures. Osterbergs were aware of all of these facts. The statute Election Code section 253.062 al however, require, does not that the Oster- lows individuals campaign to make direct the individual need not form a expenditures save two: expenditures long as those campaign file a treasurer lawfully reported and unreimbursed. committee nor are 253.062; However, § 253.062’sauthorization is appointment. Tex. Elec.Code (c). 22.5(b)(2), acting § in con- limited to “an individual How- 1 Tex. Admin. Code person.” another ever, cert with in concert with if an individual acts Tex. Elec. 253.062(a) added). (emphasis another, politi- must form a the individuals Code limitation contend that committee, appoint treasur- cal “clearly association clause of violates the er, ap- with the appointment and file They Amendment.” cite Citi- the First making direct propriate authority before City Against Rent Control v. zens campaign expenditures that exceed $500. 290, 296, 102 S.Ct. Berkeley, 454 U.S. 252.001,253.002(b), §§ See Tex. Elec.Code (1981), in which the Court 70 L.Ed.2d 22.1; 253.031(b); Tex. Admin. Code stated: Ethics No. 331 Op. Tex. Comm’n are, course, activities, There some to whether the The issue thus boils down one, if yet illegal if legal engaged are uncon- Osterbergs’ rights associational others, performed concert but required stitutionally burdened of them. political expression is not one and file a to form a committee Spartan any limit—or indeed place To they make appointment treasurer before wishing to band to- limit—on individuals in concert. direct *15 views on a ballot gether to advance their measure, placing none on individu- while In Roberts v. United States alone, clearly a restraint on acting als 617-23, 609, 104 S.Ct. Jaycees, 468 U.S. right of association. (1984), 3244, 462 82 L.Ed.2d Though Osterbergs mistakenly refer to of two “distinct senses” Court described clause” in the First an “association freedom of asso constitutionally protected Amendment, they it seek to assert is clear 617, 104 In one S.Ct. 3244. ciation. Id. at associate, which is right freely their to decisions, recognized has line of the Court Amendment’s instrumental to the First petition guar- speech, assembly, free and have personal bonds certain kinds antees. hold that because We culture and role in the played a critical Osterbergs’ lawfully re- 253.062 allows the by cultivating traditions of the Nation expenditures only ported campaign direct be- ideals and transmitting shared wife, husband and are “not they,
when
liefs;
diversity
they thereby foster
another,
one
acting in concert with”
the indi-
buffers between
act as critical
their
unconstitutionally infringes upon
power
vidual
State.
freely associate.
right to
(citations
618-19,
3244
at
104 S.Ct.
imposing
requirements
Karst, The Free
omitted);
generally
see
ex-
campaign
who make direct
individuals
Association,
Yale L.J.
89
dom Intimate
dis-
Election Code
253
penditures,
(1980).
personal affil
protected
624
These
who
tinguishes between those individuals
Roberts, 468
marriage.
iations include
See
act in concert with
act alone and those who
3244;
619,
v.
104 S.Ct.
Zablocki
U.S. at
alone, that
If an
acts
others.
individual
383-86,
374,
Redhail,
98 S.Ct.
434 U.S.
campaign
report direct
individual need not
(1978);
v.
673,
Griswold
47
decisions,
ex
they agreed, and whether the
In a
whether
second line of
sep
penditure
community
from
derived
recognized
has
to asso
right
“the Court
provision
The in-concert
thus
arate
funds.
purpose
those
engaging
ciate for
be
places
squarely on a nexus
a burden
protected by
Amend
activities
the First
Osterbergs’ intrinsic and instru
tween the
ment,”
freedom
“[a]n
because
individual’s
rights. This burden
mental associational
speak,
worship,
petition
to
and to
if it
drawn
justified only
narrowly
can be
grievances
the redress of
government
See
overriding
interest.
advance
from
vigorously protected
could not be
25,
This case both of asso interests. Applied ciational to the Oster Conceivably, both ad- interests could be Chapter bergs, imposes Chapter require- by general the burdens vanced 253’s political a forming filing group a ment in to acting committee and that a concert expenditures register campaign they political treasurer de make as a designation if merely allowing instead of its cide act in concert committee express to to their report expenditures to individu- members political upon views. These fall burdens seem ally. support may A candidate’s Osterbergs’ expression, trig and report only individually, if spenders broad gered to Osterbergs’ exer decision report those requiring while individuals to First cise their Amendment associational action a group their concerted as Chapter to opens interest. 253 also state expose reality that in more an influence decisions scrutiny communications and concentrated. Indeed, marriage in a relationship. made in husband and concert whether wife acted Chap- may justify While these interests ques jury was a contested fact issue and a in other ter in-concert distinction 253’s Chapter this applied, cases,21 tion in case. As justify cannot they requiring provision importance wife, gives 253’s in-concert form a as husband and to Osterbergs, inquiries and trea- political designate to such as whether husband a committee polit- spend to in expenditure, conferred about an surer in order concert on wife today. need that issue 21. We not and do not decide 253.131, an candi- speech. any opposing
ical Because the value of which allows in information case gained additional this prohibitions date 253’s Chapter to enforce to negligible, justify would be it fails private a action. The through civil Oster- Osterbergs’ concomitant burden on the argue that 253.131 is uncon- bergs rights accompa- First Amendment only op- it furthers an stitutional because Al- nying relationship. intrusion into their interests,” “self-serving posing candidate’s though marriage is “an association that being narrowly to instead of tailored serve causes; life, promotes way a not a har- compelling They interest. assert state faiths,”22 mony not living, political in “opposing the interest candi- surprising would not be to learn that date” be- is not same as state’s spouses in have some manner acted candidate an inter- opposing cause has concert campaign when made direct revenge est financial Peca only gain. or Their expenditures. registration and re- responds purpose private porting as a committee with treasurer revenge pro- civil action is not to allow or supply help would new information to compensation encourage vide en- but public nature of candi- evaluate the forcement, and provides that the statute support. requiring date’s Nor would pri- or disincentive for frivolous malicious spouses register as attorney’s to a by awarding vate suits fees possibil- new on the light committees shine prevailing defendant. quid ity pro quo arrangements. Nei- corruption appearance ther nor the of cor- provides: 253.131 Section ruption any would be more than deterred (a) knowingly makes or A who by simply allowing spouses report as accepts campaign contribution case, Chapter In this in- individuals. 253’s expenditure in makes a vi- concert requirement does further chapter olation of is liable this justify state disclosure re- interests this section. damages provided quirements. hold that the We therefore requirements additional (b) expenditure is If the contribution act in places upon individuals who concert candidate, support op- each of a constitutionally applied cannot Rob- ap- posing whose name candidate remand, and Olga Osterberg.23 ert On ballot pears entitled Olga “acting held cannot be hable under section. damages recover Rather, concert” with Robert. she can (c) expenditure is If the contribution appeals be held liable the court *17 candidate, can- knowing- opposition finds sufficient evidence that she in to a ly campaign made direct damages to recover didate entitled reporting them. without under this section. (d) section, “damages” In this means:
VII
(1)
unlawful
value of the
twice the
DOES THE PRIVATE CIVIL REME-
expenditure; and
contribution
DY
THE
VIOLATE
OSTER-
(2)
in-
attorney’s
fees
reasonable
FREE
AND.
BERGS’
SPEECH
AS-
in
curred
the suit.
SOCIATION RIGHTS?
(e)
incurred
attorney’s fees
Reasonable
also
Osterbergs
challenge
The
be awarded to
Code
in the suit
constitutionality
Election
section
Griswold,
486,
acting
wife
in con-
it is not a valid that the suffer- Amendment The chal- lenge to section 253.131 thus misses the [dam- er instead the State receives power Thornburgh, v. 713 ages] .... The of the State to mark. Alexander Cf. (D.Minn.) (because 1278, impose penalties F.Supp. 1290 fines and for a violation we need the issue in that amounts to an unconstitutional in- Because not address case, open we rights leave the issue of whether fringement of under the First Amend- punishment can violations rise ment. being to the level of so severe and so extreme 50 77,
constitutionality
underlying
Id. at
96
612. The Court worried
obsceni-
S.Ct.
established, “the de-
ty
phrase
potential
statute had been
that the
had the
to en-
prosecution
assertion that
under
fendant’s
compass
general
discussion
issues
unconstitutionally
protected
RICO
chilled
advocacy
particular politi-
of a
addition to
speech
(discussing
was unfounded”
United
79,
If
cal result.
Id. at
VIII
sought
purposes
of the information
to the
80,
of the Act
be too remote.” Id. at
DEFINITION OF “CAMPAIGN
A
Proto,
See, e.g.,
v.
203 Conn.
fied.
State
(1987);
1297,
Doe v.
526 A.2d
1310-11
IS EXPRESS ADVOCACY
(Fla.1998);
Mortham,
929, 933
708 So.2d
REQUIRED?
Keisling,
Crumpton
ex rel.
State
Osterbergs argue
that under
3, 9,
(1999);
Or.App.
982 P.2d
Vir-
Buckley,
require
the Election Code cannot
Inc. v.
Life,
Human
Cald-
ginia Soc’yfor
reported
to be
unless
well,
817-18
500 S.E.2d
256 Va.
expressly
for “communications that
ad
(1998);
Brownsburg Area Patrons
see also
clearly
vocate the election or defeat of
Baldwin, 137 F.3d
Change v.
Affecting
Valeo,
Buckley v.
identified candidate.”
Cir.1998)
(7th
(certifying
1, 80,
51
“expressly
an
advocate”
Applied
making expendi
individual
communication
248-49,
tures,
the election of candidates.
the Texas Election
vulnera
Code is
612;
see also Federal Election
ble to the same constitutional attacks that
Women,
Org.
Comm’n v. National
713
Buckley’s narrowing construction avoided.
for
(D.D.C.1989) (“From
428,
F.Supp.
433
above,
As described
were
MCFL,
Buckley through
it is clear that
required
campaign expen
“direct
‘in
an
the standard
connection with
elec-
ditures.” The Election Code states that
‘express
tion’ is not distinct from
advoca-
campaign expenditures”
“direct
are “cam
cy.’”).
paign expenditures” that
not “cam
paign contributions.”
Tex. Elec.Code
Relying on Massachusetts Citi
251.001(8).
The Election Code defines a
Life,
zens
the Texas Ethics Commis
for
“campaign expenditure”
expendi
as “an
interpreted
sion has
the Election Code’s
by
ture made
any person
connection
“campaign expenditure”
definition of
to be
campaign
with a
for
elective office or on
expenditures
limited to
for a communica
“
251.001(7).
measure.”
Tex.
Elec.Code
‘expressly
tion that
advocates’ the defeat
provision’s language
Like the federal
candidate,
or election of an identified
construed,
Buckley
phrase, “in
connec
by
that term has been used
the United
office,”
tion with campaign
for elective
Supreme
Op.
States
Court.”
Tex. Ethics
vague.25 It necessarily has different
Comm’n No. 198
The Ethics Com
meanings
depend
on whether
the mission enforces the Election Code’s ex
spender
candidate,
is a
commit penditure reporting requirements.
See
tee,
anor
individual.
problematical,
253.134,
More
§§
A
254.042.
Tex.
Elec.Code
it could be read to include general issue
reasonable construction of a statute
advocacy
general
or the
agency charged
discussion of can
administrative
with its en
individual,
regard
didates. With
an
forcement
is entitled
great weight.
Comm’n,
relation of this
State v. Public Util.
purposes
information to the
883 S.W.2d
190,
(Tex.1994);
Meno,
196
Dodd v.
870
“may
of the Act
too
Buckley,
remote.”
(Tex.1994).
S.W.2d
U.S. at
The court of held that the Oster- wrong” because: compliance their bergs waived substantial 1) sufficiency points preserved were explained: argument. The court 2) motions; through post-judgment to, Osterbergs argued prior The never objection not nec- charge an to the was during, compli- trial that substantial objection essary preserve an as to filing requirements ance satisfies the of 3) error; par- sufficiency and where the jury 254.124. The was instruct- Section ty proof with the burden of fails to requires filings on ed the statute present proper proof, standard day 'prior and 8th to the elec- the 30th law, charge, court’s mea- tion without com- mention of substantial sufficiency evidence. sures pliance. question to the The submitted jury inquired Osterberg whether Robert sufficiency The of the evidence as to expenditures by file a “failed to properly preserved. compliance was day an not later than the 8th individual preserved, duty it was the Once ” day [Emphasis .... election proper reviewing apply court to law before object Osterbergs did not added]. The court sufficiency analysis. to that question to the instruction or to the appeals refusing erred in to do so. compliance” grounds. They “substantial authority that Osterbergs legal cite no requested neither an instruction the court actually supports their claim that jury compliance, nor sub- on substantial appeals wrong. was jury question seeking finding mitted substantially 4May filing their Osterbergs’ arguments, Contrary complied statutory require- with the not rule that the appeals the court did ment. preserved. As sufficiency points were not at 129. S.W.2d opinion, appeals’ from the court of is clear points sufficiency the court considered the appeals The court of thus evaluated the was both that the evidence under the defi- and concluded sufficiency of the evidence (Tex.1964). recently factually legally support sufficient to As we stated Stores, Inc., jury’s question answers to four.26 Holland v. Wal-Mart (Tex.1999), if the trial court has S.W.3d 91 To the extent the are con jury legal “to resolve a issue before the tending in this Court that the evidence is perform fact-finding properly could its support legally jury’s sufficient to role[,] objection party lodge ... a must questions eight, answers to four and we in time for the trial court to make an agree appeals with the court of to order support appropriate ruling having without legally evidence is sufficient to reasons, jury’s findings “[t]he because evidence Id. at 94. new trial.” For these *23 undisputed Olga] that Robert [and Oster- Osterbergs’ we need not consider the ar berg failed to file a ‘not later than made, to the extent are guments, day day1 jury the 8th election as the before apply compliance we a substantial should charge inquired.” standard that standard was not sub when jury. mitted to the Osterbergs’ argument The third could be understood to make different one two provides
assertions. no reason to One X appeals’ holding; overturn the court of wrong. other is To the extent the Oster- ATTORNEY’S FEES bergs asserting, again, appellate Finally, complains that courts Peca ability jury have the to review ver- legally appeals holding dicts to ensure that sufficient court of erred in that he evi- verdicts, supports dence agree. recovery attorney’s those we waived fees. Sec noted, appeals As the court of undertook opposing tion 253.131 entitles an candidate such a review and legally concluded that proves who a violation of 253 to sufficient evidence supported the verdict. recover, damages in addition to based on agree We with that conclusion. the value of the unlawful contribution or expenditure, attorney’s “reasonable fees could instead be Eleg.Code in incurred the suit.” Tex. arguing that when a court submits defec 253.131(d)(2). The trial court submitted jury, appellate tive issue to the an court “[f]ind, jury to question asking the should sufficiency review the of the evi cents, dollars and the total amount that dence against question and instruction for attorney’s would be a reasonable fee the trial court should have submit in attorney’ the services ‘Plaintiffs actually ted—not the one submitted —even jury curred this case.” The informed if the brought defect was never to the the trial court that it was deadlocked on question court’s attention or in disclosure, question. After that Peca struction never requested. That assertion object request failed to an answer to his misguided. Even Peca had a burden Instead, attorney’s question. fees Peca proof regard to some substantial accept asked the trial court to the incom compliance standard —an we do not issue verdict, plete and then court asked the to today decide charge, is the court’s —it judgment enter as a matter of law for his law, some other unidentified that measures refused, attorney’s fees. trial court sufficiency of the evidence when the affirmed, appeals holding and the court opposing party object fails to to the appeal. that Peca had waived the issue for 272, 274, 278, 279; charge. Tex.R. P. Civ. Consultants, Inc., argues 952 at 132. Peca that his see also v. S.W.2d Larson Cook (Tex.1985); request jury failure to answer did not S.W.2d Allen v. Co., right attorney’s American Nat’l Ins. waive his to fees because S.W.2d appeals knowingly 26. The court of did not review the was no evidence that she violated Olga report, evidence that failed to file a the statute. already because it had that there concluded him all on his uncontroverted evidence entitled er of benefits based such issues. attorney’s is, law. fees as matter of That unanswered issue can afford judgment ground no basis for a finding In right that Peca waived his made.”). objection appeal timely unless fees, attorney’s appeals the court of relied Peca, by object jury did failing to when the Fleet, on this Court’s decision Fleet v. answer, any not return an waived benefit (Tex.1986). Fleet, we held S.W.2d jury question, any right from the waived a trial court will be reversed supply judge have the trial his own fact- rendering judgment incomplete ver- issue, grant finding a new trial on the party who dict unless the would benefit appeal judgment and waived right his issues from answers to unanswered attorney’s on the issue affirm fees. We objects incomplete verdict before of appeals’ judgment regarding the court jury is Fleet discharged. attorney’s Casualty followed fees. Continental Co.
Street, (Tex.1964), S.W.2d 648 which object plaintiff jury’s did not XI *24 questions regarding failure to answer the above, our discussion accordance with he to amount was entitled under an insur- appeals’ judgment affirm we the court policy. plaintiff ance Because the in Con- Osterberg, affirm against Robert and we Casualty object tinental failed to before judgment Peca appeals’ the court that jury discharged, the was this Court held nothing attorney’s take in his fees daim. that court had alternative “[t]he trial no appeals’ judgment reverse the court of We judg- under the but render jury verdict to nothing Olga that Peca take from Oster- for Casualty], [Continental [the ment and berg, appeals and remand to the court of have plaintiff] any might waived benefit he opin- proceedings consistent with this issues, claimed and under the unanswered ion. to at any right have them answered.”
651; Employers’ see also Lewis v. Texas Ass’n, Tex. Ins. 151 246 S.W.2d concurring Justice GONZALES with (to (1952) appeal, a preserve error for to opinion follow. party object questions must to unanswered dissenting filed a jury discharged); in a verdict the Justice ENOCH before is PHILLIPS, Elliott, Verdict, opinion, 4 Mc- in Jury Trial: which Chief Justice 25:7, HANKINSON, Justice Justice Donald Texas Civil Practice (Allen ed.) (“[E]v- eds., joined. 415-16 al. et O’NEILL ery material must answered question be GONZALES, concurring. Justice cannot, any jury the and the court circumstances, unan- supply findings on concurring my July I withdraw incompletely swered or answered material opinion following. the substitute silently party A who ... questions.... Texas agree I the Court that the with the and the accepted allows verdict to direct-campaign-expendi- Election Code’s to jury discharged right to be the waives the ex- with requirements, ture disclosure complain questions unan- that the provision, survive ception of in-concert the swered, disregard trial court may and the chal- specific the constitutional Osterbergs’ questions and render the unanswered rejects appropriately lenges. Court This party prevail to judgment for the entitled Elec- made.”); argument that the Jones, Osterbergs’ findings under the Waiver regulation approach tion Is- Code’s Conflicting Special Unanswered and —which (“[T]he forbidding (1959) generally sues, begins a rule 38 Tex. L.Rev. makes expenditures but unan- direct failure to effect detect exceptions— specified rule subject call trial court’s that swered issues and facially a complete attention to defect is waiv- is unconstitutional. that nificance of the United States correctly also concludes Court 253.131(a) v. X- decision United States of the Election Code Court’s
section Third, Video, I con Inc.4 while persons civilly allows to be held liable Citement 253.131(a) constitutional, I is reporting requirements with- clude section violating the raises my Chapter that they knew were break- note concern proof out that 253.131(a) not chal face, concerns law. other constitutional ing the On its require lenged It this case. ambiguous.1 could be read proof person making the cam-
paign contributions or knew A. failing them violated the correctly concludes The Court liability Election Code before civil could constitutionally per imposes However, properly attach. as the Court requirements, not a ban missible advises, primary give our aim is to effect enforcing expenditures. But ceiling Legislature’s intent.2 And as reporting requirements also must out, points Legislature demon- Amendment. offend the First When strated in two other sections of the Elec- prove Court states Peca need clearly it tion Code that knew how subjective knowledge of elec Osterbergs’ require knowledge that the actor have laws, necessarily implies toral being charged Election Code before require does not that a Constitution with a violation. The Court’s construction violating know he is the election laws be supported further fact that sec- opinion 253.131(a) being punished. fore The Court’s 253.003(b), 253.005(a), tions *25 253.131(a) that section does not vio states were all amended the 1987 revision of Amendment Osterbergs’ late the First the Election Code.3 pre the does not rights because statute however, separately, I write for three making campaign expendit vent them from First, I reasons. would elaborate on the opinion ures.5 Then the concludes 253.131(a) why reasons section does not merely requires Osterbergs the statute the guarantees offend First Amendment and that re report expenditures, their speech, free even a civil though allows comport with the porting requirements damages suit for for failure to guidelines constitutional established campaign expenditure requiring without McIntyre v. Buckley v. Valeo6 and Ohio plaintiff prove the the defendant knew Elections Commission.7 specific reporting requirement. about the
Second, disagree
plurality’s
merely
I
with the
and
But the issue here is not
whether
from
respective
sig Chapter
prevents
dissent’s
of the
evaluations
("A
it.”) (citations
253.131(a)
quotation
person
writing
1.
and internal
See Tex. Elec.Code
omitted).
knowingly
accepts
campaign
who
makes
marks
expendi-
expenditure
campaign
or makes a
30, 1987,
R.S.,
May
Leg.,
ch.
Act of
70th
See
chapter
for
ture
violation of this
is liable
2995,
899,
1,§
&
1987 Tex. Gen. Laws
section.”).
damages
provided by
this
(current version at Tex Elec.Code
253.003(b), 253.005(a), 253.131(a)).
§§
728,
Mathews,
v.
741-
See Heckler
42,
1387,
(1984)
104 S.Ct.
Buckley. government by Court these substantial interests 253.131(a)’s explained expenditures that campaign op- impact considering section on in an area of the erate most fundamental so, speech. doing recognize I the diffi- First Amendment activities.24 Discussion 253.131(a) in culty ascertaining how section public qualifi- issues and debate on the impacts speech differently impact from the cations of integral candidates are requirements the reporting themselves operation system of government speech. Supreme have on As the Court Thus, established our a Constitution.25 Buckley, noted in reporting requirements limitation on this core First Amendment are constitutional even when they deter speech only will be constitutional might some who otherwise contribute.28 passes exacting limitation artic- scrutiny as liability Potential for an unknowing viola- words, Buckley. ulated in In other impacts speech. tion has additional on limitation must bear a sufficient relation- First, person may a found liable be less ship to a substantial state interest.26 political willing re-enter the discussion Buckley recognized three substantial they penalized prior since were for their governmental in requiring interests disclo- Second, person may actions. be less campaign expenditures.27 sure of The willing in large undertake in enforcing state’s interest its disclosure light penalty of the double that section First, requirements are the same here. imposes. 253.131 are troubling These con- independent expenditure fur- disclosure cerns because as the noted Court thers the state’s effort to achieve total Buckley, participation effective in the by reaching every politi- disclosure kind of public may require large expendi- arena activity cal order to ensure voters are Third, potential liability tures.29 for an fully informed. This informational interest unknowing violation deter activism helps voters to ascertain more of the can- different contexts for fear of some Second, didates’ constituencies. disclosure liability. other unknown part plays attempt the state’s to deter corruption through and undue influence impacts speech While on are not these Third, publicity. responds provision to insignificant, competing state interests legitimate fear that efforts would be It might argued are substantial. made, past, have in the to avoid imposing requirement individual requirements by financially the disclosure knowingly violates the law is a less re- supporting through candidates avenues not mitigating strictive means of the evils of explicitly provisions covered the other corruption lack of in- and voters’ Thus, independent expen- of the statute. But formation. the cost to statute’s compliments general diture disclosure reasonably effectiveness is clear. As the requirements by shedding disclosure argues, proving contributor knew cam- light publicity unambiguously reporting requirements yet about paign-related spending that would not oth- them would be inordinate- chose violate reported. erwise be Also, ly difficult in most cases.
I
determined to violate the
laws
would determine whether
253.131(a)
relationship
learning
regula-
bears a sufficient
to need
avoid
what the
*28
Valeo,
1, 14,
68,
("It
Buckley
612.
is un-
24. See
v.
424 U.S.
96
28. See id. at
96 S.Ct.
612,
(1976) (per
public
S.Ct.
tions
On
required.
requirements
re-
forcing the
part
plurality’s
I do not
V of the
join
provides
gardless
knowledge
of
incentive
I
it misconstrues
opinion because
believe
regulations
require
learn what
Video,
v. X-Citement
Inc.32
United States
Consequently,
them.
I believe
abide
plurali
responding
to the dissent.
253.131(a)
that section
bears a sufficient
ty concludes that X-Citement
“stands for
in-
relationship to the state’s substantial
person
a
must be
proposition
that
exacting scrutiny
meet
re-
terest
conduct —not
aware of
in certain
engaging
Buckley.
quired
under
Because
particular
statute—
violating
aware of
constitutional,
can-
application
Court’s
is
for conduct
being punished
before
application
every
not be
of sec-
said
by the First
protected
otherwise
is
253.131(a)
tion
violates the
Amend-
First
the case
Amendment.”33
I believe
has
253.131(a)
Thus,
ment.
I conclude section
more to do
notice of
essential
part of the
satisfies the first
test articulat-
elements of crime.
City
Council
Supreme
ed
Court
Angeles.30
Los
of
X-Citement
opinion
primarily
I
part
then turn to the
of
would
second
X-
statutory
concerns
construction.
253.131(a)
section
test: whether
is sub
Citement Supreme Court reviewed a
stantially overbroad so as to
create
real
the Protection
conviction under
Chil-
istic danger
sig
that the statute itself will
Exploitation
Against
dren
Sexual
Act of
compromise
recognized
nificantly
First
(1)
1977,34which criminalized acts of
know-
protections.
Liability
Amendment
can
shipping visual de-
ingly transporting
253.131(a)
arise
under section
for either
sexually
ex-
pictions
engaged
minors
knowing
unknowing
violation. Both the
(2)
plicit
knowingly receiving,
conduct and
agree
Court and the dissent seem to
distributing
reproducing
such
de-
253.131(a)
liability under section
would be
was
pictions.35 The defendant
there
con-
when a
knowingly
constitutional
vi
selling
tapes involving
victed for
video
olates the statute.
I believe they
right
she
actress who was a minor when
made
the state interests
because
are not sub
the films.36 The
States Court of
United
outweighed by the
stantially
chilling ef
reversed,
Appeals for
Ninth Circuit
fects
the statute would
free
have on
holding the
unconstitutional
statute
Second,
above,
speech.
I
concluded
containing
requirement
scienter
253.131(a)
section
when
constitutional
performers
was
defendant knew one
liability is enforced on an unknowing viola
reversed,
Supreme
a minor.37 The
Court
253.131(a)
Thus,
tor.
uncon
section
holding
requirement
that a scienter
could
stitutionally overbroad and
satisfies
implied
in the federal statute.38 The
City
part
second
of the test announced in
acknowledged
under
Angeles.31
Los
Therefore,
Council of
I
253.131(a)
grammatical
the statute’s most natural
passes
conclude that
modify
scrutiny.
reading, “knowingly”
constitutional
did not
City
Angles
Council
33. 12
Members
Los
S.W.3d 45.
Vincent,
789, 798,
Taxpayers
(1984);
(1988
V).
Supp.
S.Ct.
41. See id. at
bergs. particular, concerned person expenditure the require- making the Election Code’s disclosure —has ordinary ordinary it. an may be so cumbersome for of So ments burden they unduly free the Texas Ethics citizens that burden citizen consult must (or complexity re- speech. lawyer) clarify The sheer a Rules Commission quirements, coupled expenditure with the severe conse- campaign “A ambiguity: non-compliance, quences may of chill person from the mak- is not a contribution ordinary of individuals who lack activism expenditure if ... it is made with- ing the experience sophistication or needed prior approval or out consent comply with the Election understand whose candidate or officeholder on behalf Code. expenditure made.”50 was difficulty The first one encounters with “expen- An clear. thing At least one coping the Election Code is with its defini- broadly very diture” is defined include tions, scope spell regu- which out the of its money any other payment thing “a A latory provisions.46 campaign “direct as value.”51 An as minor expenditure expenditure” as campaign is defined “a an issue-orient- drafting copying cost of expenditure that does not a constitute may mailing trigger ed handbill or a letter campaign by person contribution mak- requirements.52 the Election Code’s ing A expenditure.”47 “campaign ex- Texas’s scheme for direct regulatory turn, penditure,” in is “an expenditure campaign expenditures begins Chap- by any person made with a connection 253 of Election Code. ter the Texas Sec- for an elective campaign office or on a prohibits tion 253.002 from contribution,” A “campaign measure.”48 knowingly authorizing a making or direct contrast, is “a contribution a candi- expendi- campaign expenditure unless political date or committee that is offered Subchapter ture is authorized C.53This or given with the intent that it be used prohibition apply does not to cor- general campaign with a connection for elective candidates, porations, organizations, labor on a office or measure.” committees, campaign treasur- These are not very definitions lucid. capacity, acting ers in an official whose ex- For thing, may apparent, one penditures regulated under other perspective citizen, from of an ordinary provisions.54 Election Code “in connection with a re- campaign” C, comprised of Subchapter Sections solely expressly fers to communications 253.063, election, through 253.061 describes cir- advocating passage, or defeat ordinary clearly identified candidate or mea- cumstances under which citi- expendi- campaign sure. It is also not clear zen can whether a coordi- make direct expenditure coopera- provides nated made in ture. that an Section 253.061 —one campaign tion with a individual make direct ex- or consultation candidate —is penditures up contribution or a cam- he or she is direct $100 another paign expenditure. acting per- How ex- “not in concert with coordinated penditure characterized is no reimbursement important, son” receives See Tex. Elec.Code 52. See Op. § 46. 251.001. No. Tex. Ethics Comm’n (1993) (stating include "the 251.001(8). Id. § 47. plus any producing dis- cost ... brochures costs, postage”). tribution such 251.001(7). Id. § 251.001(3). § 53. See § Tex Elec.Code 253.002. (1999)(Tex. 20.1. 1 Tex. Admin. Code Eth- 253.002(b) (listing exceptions). id. 54. See Comm'n,Definitions). ics 251.001(6). 51. Tex. Elec.Code *31 compliance made ly, 253.062 allows the Commission has expenditures.55 Section campaign and fi- by making concert with easier forms acting
an individual “not available over the Internet.61 person” campaign guides another to make direct nance guides and exceeding if “the indi- But the fact that those forms $100 committees, Chapter political are tailored for complies vidual with 254 as individuals, ordinary citizen’s campaign treasurer of a makes an individual were task of the forms that much political completing committee.”56 complicated. more spells out the detailed rec- and written-no- ord-keeping, report-filing, ordinary Even after an citizen divines requirements campaign tice with which a reported information must be and what “[ejach First, comply. treasurer must it, proper determining how to political of a commit- campaign treasurer to file the re- filing authority with whom reporta- all tee shall maintain record of Elec- ports easy is no task. Because the activity” containing ble “the information clear,62 does not make this tion Code itself necessary filing reports for one turn to the Ethics Commission must required by chapter” “preserve and instruct guidance. Rules for These Rules years.”57 the record for at least two Sec- campaign a direct making an individual ond, must, campaign treasurer under file expenditure under 253.062 to Section A pain committing a Class misdemean- were a cam- reports as if the individual or, [any political “deliver written notice of politi- paign specific-purpose treasurer of a expenditure] to the affected candidate or filing cal committee.63 There are different officeholder not later than the end of the sought the office depending authorities report in period by covered which the opposed or supported the candidate Third, reportable activity occurs.”58 specific-purpose political committee. Election details the contents re- Code opposing candi- supporting or Committees reports, the entities to which quired legislature or dates for a seat the state sent, report- must be and the various or for of education on the state board ing periods apply.59 multi-county district other statewide illustrates, with the Texas reports offices must file As the Court seeking Committees requirements are not trivial.60 Fortunate- Ethics Commission.64 filingin- chttp:// § Id. 253.061. www.ethics.state.tx.us/ 55. & in.htm>. fo/forms 253.062(a)(1). §Id. 56. requires individual to 62. Section 253.062 campaign treasur- if he or she were the file as 254.001(b),(c),(d). § Id. 57. See Tex. er of a committee. Elec. however, Code, § Election 253.062. The Code 254.128; Op. § accord Tex. Ethics depend- requirements provides filing different (1996) ("An 'not Comm’n No. 331 individual special- ing the committee on whether acting person’ id, with another who in concert § general-purpose. Compare 254.130 expenditure sup- campaign makes direct filing (specifying § different with id. 254.163 give porting required to a candidate is also types); the different committee authorities for candidate.”); 251.001(13) (14) see also Tex. Penal (defining notice §§ & see also id. up (providing punishment committees). § 12.21 special- general-purpose Code $4,000 one-year’s jail confinement simply does not indi- the Election Code And misdemeanor). committing a Class A general- two cate which of these committees— individual purpose specific-purpose —an supposed to model. under Section 253.062 is §§ 254.121—254.184. See Tex. Elec.Code 999) 22.5(b)(2)(l 1 Tex 63. See Code Admin. many (discussing S.W.3d 42 See 12 Campaign Expen- Direct (Tex Comm'n, Ethics provided reports). in the details that must be ditures). Commission, (Reports filed with 20.3. Forms & 64. See id. 61. See Texas Ethics 2, 2000) Commission). (last revised Feb. Instructions be so district, requirements can county, a set of disclosure to influence elections Amend- they violate the First onerous that precinct campaign must file their offices appointments county ment.74 treasurer administrator, clerk, elections or tax asses- Legislature’s prerogative It is the sor-collector, by the designated particu- finance structure this State’s *32 authority county.65 filing for com-
lar subject prerogative is laws. But seeking influence elections for mittees This State’s limitations. constitutional If, because com- other offices varies.66 the unduly must not campaign finance laws more supporting opposing mittee is ordinary of citi- political speech burden candidate, must filed reports than one be in be cases could future zens. There authorities, the multiple then commit- with are of Chapter which provisions other may reports choose the the tee to file challenged speech is constitutionally only.67 commission as to render significantly so constrained un- provisions of the Election Code those complexity And the does not end there. however, not, has That constitutional. just file expect An individual cannot one I Accordingly, this case. been done in and be it. The report done with Election concur. reporting periods sets forth several Code reports required,
in which are even no ENOCH, joined Chief Justice Justice expenditures Reports made.68 must HANKINSON, PHILLIPS, Justice thirty days semi-annually,69 be filed before O’NEILL, dissenting. Justice election,70 eight days before Also, Osterbergs argu- a made expenditures election.71 above Because rehearing in the ments motion for specified days threshold made nine their discussion, July reported my in merit I withdraw preceding the election must be opinion and reports.72 Only by filing dissenting a disso- 1999 substitute telegram report following. lution with a statement sworn reportable expenditures
no further are ex- statutory case. This a construction pected filing individual relieved of Ironically, chosen construction the Court’s reports.73 additional 253.131(a) of the Code of section Election en- summary, citizens report- gives protection the Election Code’s less Texas activi- First Amendment requirements gaged are cumbersome and the core ing result, about an election than complicated. ty speaking a the Election As Supreme chosen ordinary from United Court’s Code deter citizens States obscenity disseminating construction of the federal child their own views. This rais- peddlers pornog- question, yet given unanswered act has child es Court, no raphy. there is evidence States of whether Because United county § § (Reports filed with 72. See id. 254.038. 65. See id. 20.5 authority). filing § 73. See 254.126. id. §§ 66. See id. 20.3—20.7. Lawyer Discipline v. (Filing opinion § Commission
67. See id. 20.9 for certain Cf. for 425, (su committees). Benton, (Tex.1998) gge specific-purpose 980 S.W.2d sting permissible speech free restric " 254.031(b) ("If § no 68. See Tex. Elec.Code that the tions 'set out terms should during reporting reportable activity occurs exercising ordinary ordinary common person person period, required to file a comply sufficiently understand and sense can report.”). in the shall indicate that fact ”) Serv. (quoting with’ United States Civil Carriers, Ass'n Comm’n v. National Letter See id. 254.123. 548, 579, 37 L.Ed.2d 254.124(b). (1973)). 70. See id. 254.124(c). §id. 71. See they violating knew were in sections 254.031 and 254.121 of the Elec-
Election
when
timely
Code
failed to
tion Code.5
comply
with its
I
requirements,
To facilitate
enforcement
respectfully dissent.
253.002, section
253.131
the Election
creates a private
Code
cause of action
Section 253.002 of the Election Code
“person
against
knowingly
who
makes or
makes
campaign expenditures
direct
un-
accepts
campaign contribution or makes
lawful
unless the
making the ex-
campaign expenditure
violation of
penditure complies with Subchapter C to
[Chapter 253
Election
To
Code].”6
Subchapter
253.1
two
C contains
case,
decide this
must
we
determine
sections concerning
—253.061
“knowingly”
whether
word
in section
these,
and 253.062. Of
because Mr. Oster-
253.131(a)
succeeding
modifies the entire
*33
berg spent more than
on the televi-
$100
including
phrase
clause
“in violation of
ad, only
sion
section 253.062
relevant.
Code],”
[the Election
whether it only
provides:
It
phrase
modifies
“makes
campaign
(a) Except as
provided by
otherwise
expenditure.”
I agree with the court of
law, an individual not
in
acting
concert
appeals’
Mr.
conclusion that for
and Mrs.
with
another
one or
make
Osterberg to be
Judge
liable to
Peca for
more
campaign expenditures
direct
in an
Code,
violating the
Judge
Election
Peca
prop-
election from the individual’s own
present
had to
some
evidence
erty that exceed
on
one or
any
$100
Osterbergs were aware their actions vio-
more
candidates measures if:
Code.7
lated the
(1)
complies
Chap-
the individual
I
we
obliged
give
believe
are
if
ter 254 as
the individual were a 253.131(a) this construction. We have
campaign
political
treasurer of a
com-
that “it
duty
stated
is our
as a court to
2
....
mittee
statutes in a
which
construe
manner
avoids
254,
Under
committee’s
doubt
constitutionality.”8
serious
of their
required
treasurer is
file
two
unequivocal
We followed
United States Su-
reports,
days
one no later than
be-
thirty
preme
precedent
in making this
fore
day,3
election
and the other no later
surprisingly,
statement.9 Not
other state
day
than the eighth
day.4
before election
uniformly
courts
adhere to this rule of
The
reports
specified
here,
contents
these
statutory
are
And
construction.10
253.002(b)(1).
Co.,
383,
§
1. See Tex.
Camp
Elec.Code
v.
122 Tex.
Prod.
61
Gulf
773,
(Tex. 1933).
S.W.2d
777
§
2.
Id.
253.062.
I,
Ridge
(citing
9.
Glen
at 759
See
750 S.W.2d
254.154(b).
§
3.
Id.
Schor,
Commodity
Trading Comm’n
Futures
v.
833, 841,
3245,
U.S.
106 S.Ct.
92
478
L.Ed.2d
254.154(c).
(1986));
§
4.
Id.
Pipe
675
see also Concrete
& Prod. of
Cal., Inc. v. Construction Laborers Pension
254.031, -.121;
Cal.,
602, 628-29,
§§
see also 1
Admin.
Trust
S.
508
Tex.
113
for
2264,
(1993);
124
Code
L.Ed.2d
Edward
22.5.
539
Corp.
Bldg.
J. DeBartolo
v.
Coast
Florida Gulf
568, 575,
Council,
253.131(a)
& Constr.
485 U.S.
Trades
1392,
(emphasis
6. Tex. Elec.Code
add-
(1988);
ed).
108 S.Ct.
gaging conduct; sexually explicit Code],” ing “in violation of [the Election (B) such visual depiction is of such con- and these words are nowhere near re- duct; mote from one another as the relevant (2) receives, distributes, words are the X-Citement statute. And knowingly while it be “natural” any depiction give visual the stat- that has been mailed, reading ute the shipped today, or has Court does it is been or trans- “natural,” no less ported gram- and indeed it is foreign interstate or com- *35 merce, sound, matically or to take the which contains materials Constitution into account and “knowingly” which have been mailed construe shipped or so or modify phrase, the' entire in- transported, by succeeding any including by means cluding “in computer, violation of Election knowingly reproduces any [the depiction Code].” visual for distribution in inter- foreign state or commerce or through statutory X-Citement’s method of con- mails, the if— particularly struction instructive. (A) producing the of such visual de- There, obscenity the federal child act ei- piction involves the use of a minor en- transporting ther criminalized material conduct;
gaging in sexually explicit and person doing when the so knew the mate- (B) such visual depiction is of such con- rial sexually involved minors and was ex- ... duct. plicit, in which case it would have been indicates, emphasized As the in language exactly constitutional. And that’s what the (a)(1) (a)(2) Or, sections the word “know- majority X-Citement concluded. the ingly” very remote the phrase from act criminalized transporting such material engaging sexually explicit “minor in merely person con- when the it transporting appear duct”—the words do not even in knew it being transported, was in which subsection, they separat- the same are case it would have been unconstitutional. involving ed clauses elements And that’s what the X-Citement dissent transport or distribution and of visual de- concluded. J., X-Citement, (Scalia, Id. at 68. at 81 dis- senting). (Scalia, J., dissenting). Id. at 81 253.131(a) (emphasis § 25. Tex. Elec.Code X-Citement, (quoted §
23. 18 U.S.C. in added). 68) added). (emphasis 513 U.S. at in made clear other sec- Legislature here, says the Election Code Likewise it spe- when the Election Code says a tions of one two Either it that things. require person a cifically simply be wanted person punished can because See, e.g., expendi- being the law is violated. person knowingly that made an know (“A 253.003(b) person ture, unconstitu- in which it would be case Elec.Code Tex. political Or, accept can be says person knowingly that not may tional. expendi- to have person person if that an knows punished makes contribution the chapter”) expenditure ture that the this knowledge been made violation of 253.005(a) (“A Code, added); case per- violates the Election which (emphasis other the statute is free of con- autho- (assuming knowingly not make or son defects) be constitu- wholly stitutional it would expenditure political rize tional. from a contribution partly made in have person knows to been despite compelling reasons for But these (emphasis chapter.”) violation of construction, my and the plurality con- added). clearly Legislature knew currence26 misconstrue X-Citement actor require that have how to Peca’s adopt Judge argument instead before knowledge the Election Code 253.131(a) modifies “knowingly” section Because being charged with violation. only spending, act of contributing a similar Legislature did include Code; is, violating person all a requirement knowledge “know” can be needs to before that (a) ], presume to we should not 253.131[ held is the fact of a contribution or hable requirement ourselves.30 add expenditure, not that contribution or expenditure As violated Election Code. the Court’s only I Not does disagree. so, accepts its doing reason Court27 Act unconstitution- construction render any claim that other Judge Peca’s con- al, produces the ironic result it also 253.131(a) struction of section would make Judge pro- Peca are candidates like “ignorance of the law” defense.28 liability civil unaware tected from when short, Judge the Court chooses Peca’s con- Code, violating Election struction, concept, supporting abstract ordinary like Mr. and Mrs. while citizens supporting rather than a construction can liable twice the Osterberg Thus, First con- Amendment. the Court *36 the they expend for most amount even (a) ], “in 253.131[ cludes that section ‘know- unknowing Nei- innocuous of violations. is ingly’ applies only to whether one mak- nor ther Election structure sec- the Code’s ing ‘campaign ‘campaign a contribution’ or 253.131(a)’s compels this un- language tion ” expenditure’ by as defined the statute.29 Rather, the constitutional construction. provisions on which the Court relies justifies Code divorcing “knowing-
The Court
intent
that all
equally suggest
legislative
ly”
the
violation
from
Election Code
alike, are
persons, candidates and citizens
claiming
provisions
in the
two other
protected
liability
from civil
for unlawful
Legisla-
demonstrate the
Election Code
contributions, whether
how
a
require
ture knew
to
defendant
received,
knew the
they
unless
knowledge
conduct was made or
have actual
his
violated the
expenditures or contributions
illegal
requirement.
it
such a
when wanted
253.003(b)
liability
imposes
argument:
I
the
Code. Section
reiterate
Court’s
part
join
V of
28. See 12 S.W.3d at 38
Gonzales does not
(citing Tex Penal Code
Justice
opinion, in
Justice Ab-
Justice Abbott’s
which
8.03(a)).
responds
my reading
bott
to
of X-Citement.
at 38.
does, however, join part
27. Justice Gonzales
II,
opinion;
part
the
II
Justice Abbott’s
of
requirement
"knowingly”
Court construes the
30. Id. at 38.
253.331(a).
in section
accepting
only
a
argument
contribution
when the Court considered an
similar to
person
rejected
the
it:
knows the contribution violated
Court’s
253.005(a) imposes
Code. Section
liability
argued
It
that unless the scienter
making
with,
an
expenditure
requirement
from contri-
is dispensed
regula-
bution
person
when the
knows
tion of the
of
distribution
obscene mate-
ineffective,
rial
Likewise,
contribution
will be
as
will
violated the Code.
booksellers
253.131(a)
falsely
knowledge
disclaim
their
person
section
shields a
from
falsely deny
books’ contents or
reason to
liability for
an
making
expenditure or a
suspect
obscenity.
might
their
We
ob-
contribution that violates the Code unless
serve that it has been some time now
person
expenditure
knows the
or con-
impotent
since the law viewed itself as
tribution
provi-
violates the Code. All three
explore
the actual state of a man’s
sions
underpinning—
share
common
Eyewitness testimony
mind.
a book-
liability
is no
there
unless
seller’s
perusal
hardly
a book
need be
knows the
or expenditure
contribution
vio-
necessary
proving
element
his
lated
Code.31
awareness of its contents.
circum-
my
But
Court criticizes
construction
stances
warrant
inference that
the Election
arguing
Code
it
contained,
he was aware of what a book
253.131(a)’s
hamper
“would
pur-
despite his denial.34
pose by undermining its enforceability.
Second,
knowledge
even if a
requirement
problematic
Enforcement
would
be-
problematic,
Legis-
it’s the standard the
cause future cases would focus on whether
acknowledges,
lature chose. As the Court
the defendant
specific
pro-
knew the
code
“it
Legislature’s province,
is within the
visions,
operat-
whether
defendant
ours,
degree
knowledge
establish
ed
legal interpretation.”32
under
correct
necessary
Finally,
violate a statute.”35
The Court contends that it would undercut
the Court’s construction suffers from the
legislative intent
construe
the statute to
it
problems
same so-called
identifies with
“[a]
allow
defendant
civil en-
[to] avoid
fact,
my
compounds
construction.
simply by refusing
forcement
learn
by adding
irony
them
further
election laws.”33
Osterberg
citizens like Mr.
can be held
First, parties
prove
This is absurd.
can
liable under
the Election Code without
“knowing” violations of the Election
it,
Code
they
knowing
violated while candidates
way
the same
they prove other claims with
Judge
like
Peca can
violate
Code
“knowing”
primarily
through
impunity
long
so
follow the Court’s
element—
proof
circumstantial
from
blueprint
which
infer-
“refusing
to learn the election
knowledge
ence of
can be made. Over 40 laws.” The
approach,
more sensible
years ago.
doubts,
United States
the one that avoids constitutional
("A
*37
provisions
person
§
31.Other
knowingly
Election Code em-
253.133
who
makes
253.131(a)
accepts political
a
ploy
same
or
contribution makes a
structure as section
or
political expenditure
chap-
in violation of this
to
a
focus whether
knew contri-
damages
ter
to
is liable
the state in the
expenditure
or
bution
violated the Code. See
triple
amount of
the value of the
253.0341(d)
unlawful
("A person
who
Tex. Elec.Code
expenditure.”).
contribution
knowingly
accepts
makes or
a contribution
legislative
[to
caucus]
violation of this
(citations omitted).
32.
tently requiring as PETROLEUM DUBAI liability Industries, civil attaches. Conoco, fore Inc., Dresser Company, Dresser-Rand Inc. appeals’ the court of conclu- agree I with d/b/a Corporation, Tur Olga Aeroquip is no evidence Oster- Solar sion that there Energy the Election berg knowingly violated Incorporated Ser bines Peca cites Judge Code.36 evidence ESI, International, Ltd. vice a/k/a knowing of a vio- support the existence Petitioners, Inc., Osterberg that Albert lation Robert at Judge Peca’s remarks Biel heard February 1994 bar luncheon about Mr. KAZI, individually Alimuddin Sabiha compliance Osterberg’s lack of representative of the estate of Code, Mr. point Election and that some Sirajuddin Kazi, deceased, Alimuddin Osterberg about these com- Biel told Mr. guardian Alimud for Mumtaz and as is no that Mr.
ments. This evidence Ost- Alimuddin Kazi and Shehnaz din violating erberg he was the Election knew children, Sirajuddin Najmuddin Kazi, report failed make no Code when he Sirajuddin Kazi, Kazi, father, Farida days eight later than before the election. mother, Respondents. does that he Osterberg dispute Mr. making Election Code
violated the No. 97-1068. report timely Judge in a fashion. But showing no presented Peca evidence when Court of Texas. Osterberg Judge Mr. found out about timing Peca’s comments. The of the viola- Sept. Argued important knowledge require- tion is ment. violation occurred on date Feb. Decided report when the was to be filed. There is
no in this record that Mr. Oster- evidence
berg was aware on that date that before required report the Election Code Judge presented Had filed. Peca some supporting
evidence inference reasonable reported Judge
that Mr. Biel Peca’s com- to Mr. Osterberg
ments before due, my was conclusion would be different. Judge
But Peca offered no such evidence.
Accordingly, there no Mr. evidence Ost- knowingly the Election
erberg violated
Code.
The Court misconstrues
258.131(a). proper, Under the constitu- 253.131(a), reading Judge of section
tional prove had burden to Mr. Oster-
Peca Code.
berg knowingly violated Election Peca failed to meet that burden.
Judge I
Accordingly, dissent. *38 at 128.
36. 952 S.W.2d