Republican Party of Texas v. Dietz

judgment appeals verses the of the court of judgment

and renders in favor of 7-Eleven nothing.

that Lewis take

THE REPUBLICAN PARTY OF TEXAS Pauken,

and Thomas W. State Chair-

man, Jackson, and Barbara Executive Relators,

Director, DIETZ,

The Honorable John K.

Respondent.

No. 96-0555. Court Texas.

Argued June 1996.

Decided Feb.

ABBOTT, Justice, opinion of delivered the PHILLIPS, Court, in Chief which CORNYN, ENOCH, Justice, HECHT, Justices, BAKER, joined. OWEN County a Travis district On June injunction that temporary es- court issued a Republican sentially required the provide booth and Texas to a convention space Log program advertisement Republican Republicans at the 1996 Cabin per In a curiam of Texas Convention. stayed we opinion issued on June temporary district be- court’s opinion “tentatively of the cause we were required for there have that state action is rights of the constitutional been a violation Log Republicans and asserted Cabin present not under the that such action was case; of this that the contract claims оf facts Log Republicans do warrant Cabin court; granted by the relief the district appropriate relief be mandamus compelling circum- unique under the 932- stances this case.” stay premised 33. The consid- order erations similar to those that led stay States Court to issue Brown, O’Brien curiam), including (1972)(per 34 L.Ed.2d 1 presented, importance questions controversy the limited time before mooted, irreparable injury whether would stay, and occur of a would in the absence court was error. probability that the lower 3, 92 at 2719-20. We retained Id. at explaining in jurisdiction opinion to issue stay for the order. detail rationale I Log Republicans of Texas and Cabin (col- Republicans, Inc. Log Cabin LCR) cоrpora- lectively non-profit are Texas equal Republicans support tions of who civil individuals. gay and lesbian April applied for an exhibitor’s LCR Party at the Texas booth began 20. As on June Convention which agreed to part application, booth Peale, Bundren, William Charles Lalon C. regulations issued abide the rules and Dallas, for Relators. Republican Party of Texas for the con- Austin, Wiseman, Respon- rules allowed Re- Patrick vention. of these J. One publican Party right to restrict exhibits “the dent. which, noise, explain why because of undue method of now we concluded that the Re- material, content, operation, publican Party extraordinary was entitled to reason, objectionable.” become relief. The Exhibits Chairman for the convention II President,

orally informed LCR’s Dale Car- penter, group’s application “extraordinary” that the an booth Mandamus is rem approved. Party Republican edy was The also that is in limited circum “available Packer, Carpenter cashed the check submitted v. 827 stances.” Walker $400 (Tex.1992). 15, 1996, May appro for the booth. On LCR 840 Mandamus relief sub- Republican Party priate “only mitted to the an advertise- to correct a clear abuse of dis pro- duty imposed by ment to be included in the convention cretion or the violation of a gram along remedy adequate with cheek for the cost of law when there is no other $750 Ap the advertisement. The advertisement as- law.” Johnson v. Fourth Court of (Tex.1985). equal rights serted that peals, LCR’s beliefs should 700 S.W.2d 917 provided gay be analyzing Republican Party for and lesbian individuals. whether the was 21, 1996, May relief, Republican Party On Ex- entitled to mandamus we must deter reject- clearly ecutive Director sent a letter to court LCR mine whether district ing request. granting the advertisement and the booth an abused its discretion LCR Party injunction Republican Party The returned the check and re- and whether the $750 adequate remedy funded the cost of the had an at booth. law. 30,1996, May On LCR filed this lawsuit A County injunctive seeking Travis relief. alleged injunction Republican Party’s ac- court’s was based The district unconstitutionally probably pre- infringed upon finding

tions on a that LCR would rights equal rights, speech, LCR’s to free vail on its breach of contract claims and its speech, equal rights, and due under of course law the Texas Con- and due course spe- stitution. LCR also claimed a law claims under the Texas Constitution.1 performance Republican Party urges cific contract the The its with LCR’s Party Republican for a and an claims cannot be main- Texas booth constitutional Party’s conduct did not advertisement. The district court held a tained because the hearing Friday, The on 1996. At the constitute “state action.” further June hearing, argues conclusion of there is no basis for LCR’s the court issued temporary injunction precluding Republi- breach of contract claims. refusing provide

can from the booth and advertisement. 1. STATE ACTION 17,1996, Monday, the “state action” doctrine devel-

On June Under courts, oped by Party filed with this Court a motion for leave the federal the United States petition guarantees speech, an of free to file a for writ of mandamus and constitutional emergency stay equal protection, process impose and due motion to the district court’s day, obligations only or on “state ac- temporary order. The next restrictions such, requested expedited response from tors.” As United States constitutional we LCR, protect only against governmental argument oral civil and set June constructive, action, day began. actual or 1996—one before the convention either laws, customs, shape judicial or hearing argument, granted we execu- After oral rights and liberties emergency stay per opinion. proceedings.2 in a curiam We tive arising distinguished set in The cause of action from state conduct forth 1. LCR did not assert subsequent Rights Civil Cases and adhered to in under the United States Constitution. holdings that where the decisions. Our indicate Cases, 3, 17, See, impetus private, e.g., 109 U.S. 3 discrimination Civil 18, 25-26, (1883); 'significantly State must have involved itself with S.Ct. 27 L.Ed. 835 see also discriminations,’ Irvis, 163, 173, Mulkey, Lodge Reitman v. v. 407 U.S. invidious Moose No. 107 1627, 1634, 369, 380, 1965, 1971-72, 87 18 L.Ed.2d 627 S.Ct. 92 S.Ct. (1972)(there 32 (1967), in order for the discrimina- is a "distinction between L.Ed.2d 830 things purpose of constitutional guaranteed Stаtes Constitu as the United against provision, no shield in which “erec[t] tion therefore the historical context intent, merely private Shelley written, if it conduct.” Kraem collective can er, 836, 842, 1, 13, ascertained, ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​​‌​​​‌‌‌‌​‌‌‌​​‌​‌​​‌​​‌​​​​‍people L.Ed. U.S. the framers and the NLRB, decisions, Hudgens judicial it, prior see also our adopted who analogous U.S. L.Ed.2d constitution interpretations jurisdictions, and con provisions by al theory. City Sherman stitutional However, LCR’s claims do arise under (Tex.1996), Henry, cert. 928 S.W.2d Constitution; provisions States — denied, -, rather, action are LCR’s causes of based Davenport v. L.Ed.2d 230 see also I of guarantees contained in article Garcia, (Tex.1992); Ex Constitution, known as Texas which is Tucci, 1, parte S.W.2d 18 n. 3 859 Thus, Rights. Bill of we must decide wheth C.J., (Tex.1993)(Phillips, concurring)(quoting applied the “state doctrine in fed er action” (Hecht, J., con Davenport, at 30 834 S.W.2d party is required eral courts to main curring)). tain a claim a violation of the Texas free equal speech, rights, and due of law course state The text of our charter demon of guarantees. appeals Several Texas courts Bill guarantees strates of quantum have concluded that some of state Rights apply the generally only against of required litigant is action before a can main government. con The Texas Constitution deprivation tain a lawsuit for of the a Texas 29, I, specific provision, tains a article section sеe, right, e.g., constitutional Weaver v. AIDS scope and the application that defines the of Austin, Inc., 798, Services 835 S.W.2d 802 of Rights. Texas Bill of Section 29 is titled 1992, denied); (Tex.App writ Jones . —Austin Rights excepted Bill from “Provisions of of 891, Hosp. System, v. Memorial 746 S.W.2d powers government; to forever remain of 1988, (Tex.App [1st Dist.] . —Houston provides inviolate” and as follows: writ); no but never squarely this Court has guard transgressions the against To of today. the confronted issue before Dia See high powers delegated, declare herein we Mendez, Mktg. mond Shamrock & Co. Ref. everything Rights” that in this “Bill is of 198, (Tex.1992)(Gonzalez, 1 844 S.W.2d 203 n. general gov- excepted powers of the of out J., concurring dissenting)(“The & application ernment, and shall remain inviо- forever of the state action doctrine to the Texas late, thereto, to contrary and all laws conclusively Constitution has not been estab following provisions, the shall be void. Court.”). by this lished Const, I, § of art. 29. The first clause Tex.

(a) purpose that section 29 establishes the against Rights “guard Texas Bill of is to firstWe turn our attention to wheth high powers” delegated transgressions of the by er the constitutional claims advanced by require government Texas Consti- interpret state action. When Constitution, ing rely heavily our state we on tution. Nowhere does Texas Constitu- text, Edgewood Indep. language indicating literal Sch. tion its Dist. v. contain similar 391, (Tex.1989), Kirby, Rights generally intent to the Bill of S.W.2d have give plain language. City guard transgressions by to effect individuals. against to its Bouillion, Further, 143, provisions except- Beaumont v. section of (Tex.1995). may ing everything Rights in the Bill of “out of We also consider such Rraemer, it.”); tory Shelley to of action fall within the ambit the consti- become involved in prohibition."); Wilmington tutional U.S. (1948)(‘‘Since 68 S.Ct. 92 L.Ed. 1161 Burton 715, 722, Parking Authority, decision Court in the 81 S.Ct. of this Cases, (1961)("It clear, Rights 6 L.Ed.2d 45 as it Civil Cases, (1883), always Rights principle has been the Civil ... L.Ed. has become firm since abridging rights ly that in our law that conduct individual embedded constitutional Equal first the Four does no violence to the Clause action inhibited section of Protection significant to teenth action as unless some extent State in Amendment States."). fairly of its manifestations has been found to havе be said to be that text, general powers government” pro- Separate of from the actual there is no viding contrary that “all laws” to the Bill of indication in that our Constitution’s framers Rights shall be void demonstrates speech, equal rights, tended that the free Rights Bill against of serves as a shield guarantees due course of law of the Texas powers government. and laws of Similar Rights apply purely private Bill of would protections by private do not exist for actions Instead, appear conduct. the framers individuals. liberally have borrowed from the federal Bill prior Our conclusion is buttressed two Rights of of and the bills other state recognized decisions of this Court which Ericson, generаlly constitutions. Ori Rights the Texas Bill of limita- establishes LXII, gins Rights, the Texas Bill Vol. powers government. tions on the In Trav- Q. No. S.W. Hist. Marshall, elers’ Ins. Co. v. 124 Tex. Cornyn, also The Roots the Texas Consti (Tex.1934), S.W.2d we stated that Statehood, tution: Settlement 26 Tex. Bill express “consists of limitations 1089, 1127 parte Tech L. Rev. Ex cf. power” legislature, on the executive offi- Tucci, C.J., (Phillips, at 29 con cers, judiciary. (empha- Id. at 1009 curring). previously, As noted the federal original). recently, sis we held in More consistently applied courts have the state City Beaumont v. that a Bouillion law Moreover, principle.4 action are not we conflicting rights guaranteed with generally that aware of sister state has Rights Texas Bill of is void “because the Bill regu applied guarantees its constitutional Rights power.” of is a limit on 896 State added).3 (emphasis Accordingly, private S.W.2d at 149 late conduct.5 the bills Although concept "Congress neither case dealt with the tion that shall make no law ... action, opinions signifi- abridging speech.” state are nevertheless the freedom of While both acknowledging Jersey Supreme cant for that the Texas Bill of the California and New Courts government. serves as a on restriction stated in their decisions "state action” required guaran- expression under their free 2, supra. 4. See footnote tee, these decisions have been limited to their only applied speech facts and to free ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​​‌​​​‌‌‌‌​‌‌‌​​‌​‌​​‌​​‌​​​​‍claims are, however, 5. There a handful of states that against large shopping made centers and similar expression guar- have determined that their free public enterprises. Accordingly, the California against privately-owned antees can be asserted Jersey Supreme and the New Courts have not shopping centers and universities. See Bock v. disregarded concept totally of state action Mall, 55, (Colo.1991); Westminster 819 P.2d 60 required by since state action is still both states Ctr., 899, Pruneyard Shopping Robins v. 23 Cal.3d perhaps and even for other constitutional claims 854, 341, (1979), Cal.Rptr. 153 592 P.2d 346-48 expression against types all for free claims 74, grounds, on other 447 U.S. 100 S.Ct. aff'd 2035, enterprises. of business (1980); Schmid, 64 L.Ed.2d 741 State v. 84 535, 615, grеater (1980), Conversely, courts number of state N.J. 423 A.2d 626-30 cert. dismissed, 100, 867, rights speech have determined that free can 102 S.Ct. 70 (1982); private against property Jersey Against be asserted owners L.Ed.2d 855 New Coalition property Realty Corp., has assumed all the character War in the Middle East v. J.M.B. 138 when 326, 757, (1994), municipality, istics of a in accord with the N.J. 650 A.2d 774-77 cert. denied, - U.S. -, 62, Hudgens v. 133 L.Ed.2d States Court's decision in 116 507, 516-21, 1029, McDonald, NLRB, (1995); Meyer, 424 25 Fred Inc. v. 112 See, 1054, 1034-37, (1976). 321, (1992); e.g., Or.App. 47 Fiesta 828 P.2d 1055 L.Ed.2d 196 Committee, Tate, 158, 432 Mall Venture v. Mecham Recall 159 also Commonwealth v. 495 Pa. 1382, 371, 719, (1981); (App.1988); 767 P.2d 723 Co A.2d 1390-91 but see Western Ariz. 48, Assocs., Pennsylvania Campaign logne 469 192 Conn. Socialist Workers1982 Westfarms Co., 23, 1201, (1984); Ethical Connecticut General Ins. 512 Pa. 515 A.2d 1207-10 Citizens for Life Gov’t, Assocs., 1331, (1986). 260 Ga. These decisions Inc. v. Gwinnett Place A.2d 1334-36 (1) 245, 8, (1990); Kapiolani primary S.E.2d 10 Estes v. have been based on two factors: Ctr., 190, unique businesses in contem- Womens & Children’s Med. Haw. character DiGuida, 216, (1990); equivalent People porary society as the functional 787 P.2d 80, 336, square, historically 604 N.E.2d where Ill.2d (1992); 178 Ill.Dec. traditional town exercised; Lacey, public’s expression rights State v. 465 N.W.2d 539-40 free were (Iowa 1991); (2) Michigan speech guar- Lob Woodland v. and the state constitution's Citizens i.e., by, being phrased language, 378 N.W.2d in affirmative 423 Mich. antee Mall, (1985); liberty “every person speak,” Alliance v. Smith Haven be at rather SHAD shall negative language N.Y.S.2d 488 N.E.2d N.Y.2d than in the familiar Slanco, Mall v. Eastwood Amendment to the United States Constitu- First juris- decisions, the law in other prior judicial framers bor rights from which the Texas dictions, theory, and the con- provide for construed to constitutional rowed have been citizens, action, we liberty there is no indication all Texas state cern for required before intended otherwise. action is our framers conclude that state deprivation a claim for litigant can maintain holding today consistent Our speech, equal by the free of a secured theory. A constitutional well-reasoned with guarantees of of law rights, and due course “a charter has been defined as “constitution” Rights. Bill authority deriving its whole government governed.” Blaok’s Law from the DICTIO (b) 1990). (6th essence, a consti NARY ed. government compact is a between the tution ac Having concluded that “state delegate people people in which the consider how required, we must now tion” is government in which the powers Generally, ac principle. apply government prescribed. powers of the only present for otherwise tion is Origins of the Amerioan Constitu

See fairly at the conduct can be conduct when History (Mchael ix G. A DOCUMENTARY tion: generally government. tributed to 1986).6 ed., Bills of are often Kammen Yaretsky, 457 U.S. Blum v. part compact of this between included 2777, 2785-86, 73 L.Ed.2d 534 governments and citizens and are intended to government is suf Determining whether the protect governmental citizens from trans challenged ficiently conduct involved rights. See gressions of certain fundamentаl legal requires to make a determination us Cooley, A Treatise Constitutional of each case. upon based the circumstances see also Braden et Limitations cases, disputed regarding facts In some al., The of Texas: Constitution State must government’s involvement extent of the Analysis Comparative 2- An Annotated fact; however, the trier of resolved (1977). however, They designed, 3 are not of whether the facts ultimate determination rights by protect from the invasion of such action is a to constitute state are sufficient Indeed, as noted one consti individuals. question of law. scholar, enforcing constitutional tutional guarantees against individuals would provide a wealth of court decisions Federal liberty actually it would restrict because action guidance in our resolution of state deny individuals “the freedom to make cer Garcia, Davenport v. generally issues. See choices, persons tain such as choices of the (Tex.1992)(“Texas 4, should 20 they Tribe, with whom will associate.” persuasive from well-reasoned borrow 18-2, § at Law American Constitutional precedent and substantive procedural federal 1988). (2d 1691 ed. Among helpful_”). deemed when this is which the variety of circumstances under Accordingly, of the Tex- based on the text action, analyzed state history purpose, courts have Rights, as Bill of its our federal Tucci, , 221, 59, parte generally 859 us. See Ex 626 N.E.2d 61-62 cert. before Ohio St.3d C.J., 1, denied, 933, 329, (Tex.1993)(Phillips, con L.Ed.2d 16 n. 1 130 173, Felmet, (1994); curring). 302 N.C. State (1981); Venture S.E.2d Charleston Joint McPherson, appar- the Texas Constitution 417 S.E.2d 6. The framers of 308 S.C. was a ently v. Na belief that a constitution Southcenter Joint Venture shared the 548-49 Comm., government and citi- Policy compact Wash.2d its between tional Democratic 413, I, (“All political power § 2 Jacobs v. zens. Tex. art Const, 780 P.2d govern- people, all free Major, 407 N.W.2d is inherent Wis.2d authority, (1987). and insti- on their ments are founded benefit.”); case, alleged it was their LCR never tuted for In this Debates of the Texas Weeks, (William report- temporary injunction at F. on the basis entitled to a Convention gov- er)(1846)("We guaran to form a new speech are ... about Constitution’s that the Texas Then, believe, Moreover, just we are in as I private property. nei ernment. ... applied tee people a natural state of argued point position a in party has briefed nor this ther compact; society, to form a social Accordingly, inappropri about it would be this Court. Zandt). ”)(remarks delegate Isaac Van complex under the facts ... ate to resolve this issue Hampshire Demo have the circum- Circuit held that the New several decisions considered (such party political Party engage stances under which a as not in state action in cratic did Texas) Republican Party holding presidential state candidatеs’ forum be integral part actor. an cause the forum was not Accordingly, process. the Dem the election Cases,7 Primary In the Su- White Party ocratic had the absolute to ex preme Court considered whether presidential candidate clude a Democratic Party could exclude African- Democratic forum, though the from the even candidate voting primaries. from in its Americans originally participate. had been invited to exclusions, prohibiting Court de- Banchy Id. The Circuit concluded Sixth political parties clared that were state actors Party County, Hamilton they primary when held elections. While (6th Cir.1990), 898 F.2d that the political parties state action exist when рarty election of ward chairmen was not government func- exercise the “traditional action there was no evidence state because elections, conducting tion” of is not true played “integral part” that the chairmen every political party act of a is state process. also Valenti v. the election action. As one commentator has observed: Comm., Pennsylvania Democratic State parties “public” The idea of tension (M.D.Pa.l994)(hold- F.Supp. only everyday recognition that with the not a ing that the Democratic agencies, parties government are not but holding an endorsement state actor when party that the also with the nеed to assure pre meeting; accordingly, the could system autonomy maintains a basic from gubernatorial candidate from dissem clude a parties may serve as the state so that the boot3, his inating certain materials from public’s expressing vehicles for needs (D.Neb.1991))(holding that removal autonomy distin- sentiments. Such Republican Party was county officers of guishes democracies from authoritarian merely party not state action but an internal systems, ... affair). generally Epstein, See also Politi Lowenstein, Major Associational MOLD THE cal PARTIES IN AMERICAN Skeptical Inquiry, 71 Political Parties: A (1986)(noting responses that the different 1741, 1750 Tex. L. Rev. can involving party to cases activities courts Accоrdingly, courts have held that federal explained by “distinguishing between activities, holding party some such as elec- activities, party two kinds of those tions, action, public while other constitutionally as elements state can control private. Seergy Kings In activities are v. process and those that it can in its election Comm., County Republican County 459 F.2d they are asso not so control because (2d Cir.1972), 308, the Circuit Second affairs.”). ciational Equal declined to extend “the Protection re- political party is a agree that a quirement of Amendment to We the Fourteenth instances, in such as when county in state actor some ... the committee the conduct elections, private organi a conducting but party affairs which have no direct its internal instances, it is in such as when process.” Similarly, zation other to the electoral relation (3d 370, conducting internal affairs. We F.2d certain its Lynch Torquato, in where, along spectrum, Cir.1965), this Third Circuit held that “the must determine the Party’s conduct falls. We conducting Republican in the party normal role of leaders Party Republican that the actions of the party, their other than hold internal affairs of elections, denying in the booth and advertisement general does not make LCR primary or party affairs. The stated were mere internal party governmental offices offices or their attempting obtain a in to purрose of LCR filling of these offices state action.” advertising space was to work Party, booth Kay Hampshire v. New Democratic plat- (1st Cir.1987), Party’s internal changing the the First toward F.2d Classic, Adams, 313 U.S. Terry States v. 7. 345 U.S. Townsend, (1941); Grovey Allwright, L.Ed. 1368 Smith v. L.Ed. 1152 79 L.Ed. 1292 55 S.Ct. 88 L.Ed. 987 However, Party right Party’s platform publican a is not an “the to restrict exhibits form. Party which, noise, process. of the electoral can- method of element because undue reject material, accept part content, are free to in didates operation, part platform, require- is no reason, objectionable.” and there LCR also become party a to all ment that member adhere application ad- concedеs that form for platform. are portions of While there subject provided: “All vertisements ads many provisions of the Texas Election Code by approval the Officials Committee regulating political parties, the conduct of Republican Party of un- Texas.” LCR was provisions regulate do re- these not or even disputedly that had to aware advertisements political quire party platform. that a a have approved; correspondence accompa- be See proffered stated §§ Tex nying LCR’s advertisement Elec.Code 161-192. “if not ac- for some reason the ad is Party fact that Republican The publication program, cepted for adоpted by has reference the Texas Constitu ad- please return the cheek to the above applicable” [it] tion “in so far as does be Accordingly, prevailed if LCR dress.” even held, analysis. affect our not As we have ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​​‌​​​‌‌‌‌​‌‌‌​​‌​‌​​‌​​‌​​​​‍claims, Party contract retained on its speech, equal rights, and due course contractual LCR’s booth restrict provisions law Texas Bill of approve its advertisement. The district only applicable present; when state action is injunction court’s therefore afforded LCR thus, fact that the Party agreed to abide to, than it more relief was entitled even “applicable” the Constitution when does allegations. own court LCR’s The district change the controlling issue. Because granting abused its this thus discretion Party’s Republican denying conduct view, injunction express to LCR. no We LCR booth at the con advertisement however, whether oth- LCR is entitled to party vention is an internal than affair rather on its contract er relief claims. integral part process, an the election Party Republican is not a state actor under B Therefore, undisputed facts of this case. Republican We now consider whether the LCR cannot maintain its state constitutional challenge is entitled the trial court’s against claims the Party, and the district injunction by mandamus in this Court. Gen issuing court its in abused discretion in erally, mandamus relief is unavailable when junction based on these claims. adequate ordinary remedy by

relator has an Walker, appeal. CONTRACT CLAIMS at 840. argues Republican LCR is not injunction district The court’s entitled to mandamus relief because it should also based on claims. LCR’s contractual appeal filed an in the court have accelerated However, if prevailed even on those appeals, Civ. Prac. & Rem.Code Tex claims, LCR would not entitled to the Tex.R.App. 51.014(4); 42(a)(1), § P. or should issued the district court. sought from the court have mandamus relief Party: district court ordered the appeals filing original proceed before an denying to desist and refrain [LCR] from TexR.App. 121(a)(1); in ing this Court. P. any way refusing access to booth in Statе, Secretary LaRouche v. 822 S.W.2d occupation to accommodate in the [LCR] (Tex.1992). reject argu We these refusing print of that and to booth from ments, holding unique compel placed and circulate an in each insert to be ling the circumstances this case summon every program convention in the same jurisdiction. our See exercise of mandamus size, type, print text and convention as the (Tex. Geary Peavy, 878 v. S.W.2d program.... 1994). acknowledges, however, that in sub- mitting agreed application, injunction the booth it court’s affected a The district regulations political the rules was based abide issued statewide convention and Republican Party importance. the of Texas for the con- on claims of statewide highest the Re- court vention. One these rules allowed state’s should determine losing party avail generally Bayoud, 786 the there to still itself issues. See Sears (Tex.1990); Thiel v. Har not be confined to this Court. Parties should Comm., County time-delaying ris Democratic Executive in in battles the lower courts (Tex.1976); involving impor- 534 S.W.2d of statewide cases issues Tex. cf. Moreover, Repub § unique compelling 273.061. the tance. For these rea- Elec.Code Party alleged sons, that the district court’s lican mandamus we hold that our exercise of jurisdiction its First Amendment proper. violated over this case is rights. Although the resolution of this case Geary, at 603. 878 S.W.2d Party’s require does not us tо reach the First claims, Amendment we note that mandamus Ill

jurisdiction may properly invoked when court abused We conclude that the district at First Amendment issue. See granting temporary in LCR a its discretion Marshall, 925 S.W.2d Tilton injunction, thereby entitling Republican Garcia, (Tex.1996); Davenport v. 834 S.W.2d Party stay order that we issued on (Tex.1992); generally Corpus stay provided 1996. The order June Mandas, Christi Caller-Times Party entitled to under all the relief was (Tex.App. Corpus Christi — unique of this Ac- circumstances case. orig. proceeding). Party’s petition cordingly, Republican for Sears, argument we considered the that writ of mandamus is dismissed as moot. 121(a)(1) Appellate Texas Rule of Procedure requires proceeding a mandamus to be first Justice, SPECTOR, concurring. appeals. at 249. filed the court of Id. judgment I of the Court concur eligibility Sears concerned candidate’s dismissing proceeding this mandamus Republican nomination for the office of join opinion moot but do not the Court’s Texas Court. Id. Justice of the for the reasons set out below. that that ease fell within the narrow

We held exception allowing proceeding a mandamus I. having first to be filed this Court without appeals. Id. at been filed in the court of Today, majority attempts explain— n. 1. interpretation in a broad of our Texas Con- why Republican was en- stitution — applicable in equally rationale is The Sears Republicans deny Log Cabin titled argued case. The relator in Sears this Party’s at the booth and advertisement application,” the issue was one of “statewide majority’s opinion holds convention. The urgency that “the of the time constraints” equal rights, required that state action Court, review this necessitated immediate speech, of law claims and due course dispute if was not resolved and that Bill of of the Texas Consti- under the Id. at 249- promptly, it could become moot. majority further concludes that tution. The presented also 50. Because this case Party’s Republican state convention application that could have issue of statewide sufficiently pro- electoral related to the оur immediate atten- become moot without Party’s exclusion of the cess to render tion, we likewise hold action. Log Republicans state Cabin Rule requirements met 121(a)(1). II.

Finally, quick eruption and short time majority’s over- controversy disagree I first with the com- frame of this constitutional adopting a state action broad rationale for The trial court pelled mandamus review. equal rights, due course of requirement for injunction than a week before issued its less law, Texas speech claims under the impending and free opening. The the convention’s In and fourteen the hundred review to little Constitution. deadline limited this Court’s Supreme Court years States forty-eight was sim- since than hours. There more requirement recognized state action first a inadequate for the ply time Amendment, Fourteenth ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​​‌​​​‌‌‌‌​‌‌‌​​‌​‌​​‌​​‌​​​​‍appeals and for under the federal in the court of to seek relief Cases, 3, 23, majority disregards significant differ The Rights The Civil (1883), 18, 30, language of the Texas this Court 27 L.Ed. ences between to deter- fed proper example, found a occasion For has never constitutions. federal Bill any provision of our state mine whether a limited reach Process Clause has eral Due a similar limitation. See Rights of contains phrased as a limitation on because it “is Mktg. Co. v. Diamond Shamrock & act, guarantee of power to not as a State’s Ref. (Tex.1992) Mendez, 198, 203 n. 1 844 S.W.2d security.” safety and minimal of certain levels (Gonzalez, J., dissenting). concurring and County Winnebago Dept. DeShaney v. of majority “rely heavily on the purports The to Services, Social text” and to consider constitution’s literal Like 103 L.Ed.2d provision, purpose “the of the constitutional applied state other state courts that have written, the historical context which was of speech provisions to the acts ascertained, intent, collective if it can be however, repeatedly has parties, this Court it, people adopted of the framers and the who right affirmative con drawn attention to the decisions, judicial interpreta- prior our I, by section 8: ferred article analogous prоvisions tions of constitutional governmental restriction on Rather than a jurisdictions, the- and constitutional speech pro- as that with such interference today, ory.” at 89. Yet without 940 S.W.2d of the Unit- vided the First Amendment language, history, reference to the individual Constitution, chose from Texans ed States I, 3, 8, 13, purpose of article sections for beginning to assure the liberties 19, majority that a action concludes state struggling specific a they were with which requirement equal rights, due course of speak. guarantee of an affirmative law, speech virtually and free claims is self- Garcia, Davenport v. S.W.2d evident. (1992) added); parte (emphasis see also Ex majority’s heavy on federal The reliance (Tex.1993) Tucci, (plurality 859 S.W.2d state action doctrine under the federal Four- Texas, O’Quinn Bar opinion); v. State portions teenth Amendment and the (Tex.1988). majority Rights incorporated through Bill persuasive decisions other state discounts misplaced. amendment Both the Four- interpreting constitution- courts similar state Amendment and the First Amend- teenth provisions, merely Log Cabin al because ment, by plain language, pertain only to their alleged [they Republicans were] “never governmental actions. See U.S. Const. temporary on the entitled to a ...”), (“Congress pass amends. I shall no law Texas Constitution’s free basis that (“[N]or ”). ... shall The Tex- XIV guarantee applied private proper- on speech nothing comparable Bill of contains as Here, course, ty.” at 90 n. 5. strong language: that it to this extent inappropriate a claim would have been all, any meaning regarded having at Party’s place took on convention because I, previously article section 29 has been read Alamo- public property at San Antonio’s strengthen provi- to limit —the other —not dome.1 Rights. Bill D. sions of the See GEORGE BRAden, The Constitution State III. Comparative Texas: An Annotated requirement Analysis assuming Even a state action (1977). Further, the federal Log Republicans’ apply should Cabin product requirement state action is a claims, majority a does not offer satisfac- separation concerns of federalism and twin tory justification finding an absence of powers government. the federal within Lau- construing the federal state action here. renoe H. Tribe, American Constitutional 1988). (2d requirement, the United States 18-2, state action § at ed. These Law recognized has that even differently con- Court concerns relate to our state entirely private person be considered than to the federal constitution. stitution though private property, Log Republi- facility rather than on 1. Neither the nor the Cabin weighed a state implications could have been addressed the of the fact this fact cans ever analysis fully developed Party’s place public record. at a action convention took actor, conjunc in person when the acts significant parte with or obtains aid from the tion Ex Karen COLEMAN. Co., Lugar state. v. Edmondson Oil No. 553-96. 922, 941, 2744, 2755, 73 U.S. (1982). “Only by sifting facts L.Ed.2d 482 Texas, Appeals of Criminal Court weighing circumstances can the nonobvi En Banc. con

ous involvement State significance.” its true duct be attributed Dec. 1996. Auth., Wilmington Parking Burton v. 856, 860, 6 L.Ed.2d 45 (citation omitted).

(1961) exists here sufficient state action

Whether Party’s turn on the extent to which the

must au- implicates the state’s

state convention

thority process. The ma- and the electoral

jority recognizes political that the behavior action

parties has risen to the level of state at 92- various circumstances. however, Today’s does not articu- opinion, principle that deter-

late standard or

mines where the threshold for state action

lies. brought light

Based on the facts temporary injunction, hearing on the

a brief symbiotic that a

the trial court observed

relationship the state and a exists between

major political party, and concluded probably dem-

Log Republicans could Cabin degree state involve-

onstrate a sufficient prevail on their constitutional claims.

ment record, limited this Court reach-

On the same opposite conclusion.

es

IV. type speech that speech, the

Political Log Republicans sought to exer Cabin convention, integral to Party’s

cise at the re government form of

our democratic protection under

ceives the broadest open debate to assure an

First Amendment McIntyre v. Ohio political ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​​‌​​​‌‌‌‌​‌‌‌​​‌​‌​​‌​​‌​​​​‍issues. Cf. Comm’n, 334, -,

Elections 1511, 1518-19, L.Ed.2d 426 join opinion precipi I cannot

tately cuts off such a debate.

Case Details

Case Name: Republican Party of Texas v. Dietz

Court Name: Texas Supreme Court

Date Published: Feb 28, 1997

Citation: 940 S.W.2d 86

Docket Number: 96-0555

Court Abbreviation: Tex.