Public Citizen, Inc. v. Bomer

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-51009

PUBLIC CITIZEN, INC.; GRAY PANTHERS PROJECT FUND;
LARRY DAVES; LARRY J. DOHERTY; MIKE MARTIN;
D.J. POWERS; VIRGINIA SCHRAMM,

Plaintiffs-Appellants,

versus

ELTON BOMER, Secretary of State,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas
(A-00-CV-218-JN)

November 26, 2001

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL,
District Judge1.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this challenge to Texas’ system for financial

contributions to, and solicitation by, its state judges for

judicial elections (Plaintiffs claim the system presents an

unconstitutional appearance of impropriety), we must address, inter

alia, whether Plaintiffs have standing — whether, in order to bring

this action in federal court, they allege a sufficient “injury” for

this to be a “case” for purposes of Article III, § 2, of the United

1
United States District Judge of the Eastern District of
Texas, sitting by designation.
States Constitution (“The judicial Power shall extend [,inter

alia,] to all Cases ... arising under this Constitution, [and] the

Laws of the United States....”). This action was dismissed

pursuant to Federal Rule of Civil Procedure 12(b)(6) (“failure ...

to state a claim upon which relief can be granted”) and, in the

alternative, as being non-justiciable because it presents a

political question. We AFFIRM, but do so through another basis for

non-justiciability, one described above and raised — but not

addressed — in district court: the standing doctrine.

I.

Pursuant to 42 U.S.C. § 1983 and the Due Process Clause of the

Fourteenth Amendment, and seeking declaratory and injunctive

relief, Plaintiffs challenge Texas’ judicial election system. They

maintain the system — which allows large financial contributions

to, and personal solicitation by, Texas state judges — creates an

unconstitutional appearance of impropriety.

Texas state judges are elected. TEX. CONST. art. 5, §§ 2

(supreme court), 4 (court of criminal appeals), 6 (court of

appeals), 7 (judicial districts). As noted, they may solicit and

accept campaign funds. TEXAS CODE OF JUDICIAL CONDUCT Canon 4D(1).

Detailed provisions govern campaign contributions for judicial

elections. See TEX. ELEC. CODE ANN. §§ 253.001-.176 (Vernon Supp.

2000).

2
 Inter alia, any “person” other than labor unions and most

corporations may make financial contributions for the election of

Texas judges. Id. §§ 253.091, 253.094. A judicial candidate may

not accept more than $5,000 per individual per election for a

campaign for a statewide judicial office or a judicial office in a

district with a population exceeding one million. Id. § 253.155.

If the judicial district’s population is between 250,000 and one

million, the candidate may not accept more than $2,500 per

individual; and if the population is under 250,000, the limit is

$1,000. Id.

Texas law treats law firms as individuals for purposes of

contributions in the name of the firm. Id. § 253.157(a)(1). Once

the combined contributions of the firm and its members to a single

candidate for a single election reach six times the limit imposed

on individuals, a candidate may not accept contributions of more

than $50 from other members of the firm for that election. Id. §

253.157(a).

Texas imposes voluntary expenditure limits. Id. § 253.164.

If a candidate decides to exceed those limits, however, he is still

required to abide by the contribution limits imposed by Texas law.

Id. § 253.164(b). If the expenditure limits are exceeded, the

opponent generally is not subject to contribution or expenditure

limitations. Id. § 253.165.

3
 Texas judges are, of course, subject to disqualification and

recusal rules.2 “No judge shall sit in any case wherein he may be

interested.” TEX. CONST. art. V, § 11. Under Texas law,

A judge shall recuse himself in any proceeding
in which:

(a) his impartiality might reasonably be
questioned;

(b) he has a personal bias or prejudice
concerning the subject matter or a party;

... [or]

(e) he knows that he, individually or as
a fiduciary, ... has a financial interest in
the subject matter in controversy or in a
party to the proceeding, or any other interest
that could be substantially affected by the
outcome of the proceeding.

TEX. R. CIV. P. 18b(2).

2
For purposes of this opinion, “recusal” is used, based upon
the parties’ using that term, notwithstanding the distinction in
Texas between disqualification and recusal:

Disqualification and recusal are not
synonymous terms. Disqualification of a judge
on the constitutional grounds of interest,
relationship to a party or having served as
counsel in the case is absolute. TEX. CONST.
art. V, § 11. Disqualification cannot be
waived and can be raised at any time, even by
a collateral attack of the judgment. On the
other hand, recusal of a judge on any ground
not enumerated as disqualifying in the Texas
Constitution is governed by statute and rule.
A party waives its right to recusal of a judge
if it does not raise the issue in a proper
motion.

Aguilar v. Anderson, 855 S.W.2d 799, 809-10 (Tex. App. 1993)
(Barajas, J., concurring and dissenting) (citation omitted).

4
 Texas courts have repeatedly rejected the notion that a

judge’s acceptance of campaign contributions from lawyers

automatically creates either bias or the appearance of impropriety,

necessitating recusal. E.g., Apex Towing Co. v. Tolin, 997 S.W.2d

903, 907 (Tex. App. 1999) (no recusal required when judge received

“substantial political donations from counsel and from one of the

parties”), rev’d on other grounds, 41 S.W.3d 118 (Tex. 2001);

Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App. 1993) (judge

solicited and lawyer contributed while case pending but recusal not

required); J-IV Invs. v. David Lynn Mach., Inc., 784 S.W.2d 106,

107 (Tex. App. 1990) (no recusal where $500 contributed to judge

after verdict but before decision on motion for judgment

notwithstanding verdict).

Plaintiffs are two organizations and five Texas lawyers.

Public Citizen, Inc., is a nonprofit consumer advocacy organization

with an office and members in Texas. Plaintiffs allege that Public

Citizen has been and will continue to be a party to, and appear as

amicus curie in, litigation in Texas state courts. Because it is

a corporation, it cannot contribute to judicial campaigns in Texas.

TEX. ELEC. CODE ANN. §§ 253.091, 253.094. Public Citizen sues on

behalf of itself and its members.

Likewise, Gray Panthers Project Fund is a national nonprofit

advocacy organization with offices and members in Texas and, as a

corporation, cannot contribute to judicial campaigns. It sues on

5
behalf of its members who have appeared, are appearing, or will

appear as parties in Texas state courts.

The five lawyers practice in Texas and sue on their own behalf

and that of their clients. They allege “that the current system of

financing judicial elections creates the appearance, if not the

reality, of partiality and impropriety of Texas state judges, to

the detriment of the legal profession, [their] law practice[s], and

[their] clients’ interests”.

The injury pleaded in the complaint is a systemic appearance

of impropriety – no actual impropriety or a specific instance of an

appearance of impropriety is alleged. Instead, Plaintiffs allege

that

recent surveys conducted by the Texas Supreme
Court showed that 83 percent of the Texas
public, 79 percent of Texas lawyers, and 48
percent of Texas state judges believe that
campaign contributions have a significant
influence on judicial decisions. Only one
percent of lawyers and 14 percent of judges
believe that campaign contributions have no
influence.

Plaintiffs do not allege that such improper influence, or the

appearance of such influence, was present in any specific case in

which they have been, are presently, or in the future will be

involved. Nor have they alleged contributions by opposing parties

6
or lawyers were involved or will be involved.3 Restated, they

simply challenge the system.

Defendant moved to dismiss pursuant to Federal Rules of

Procedure 12(b)(1) (“lack of jurisdiction over the subject matter”)

and 12(b)(6) (“failure ... to state a claim upon which relief can

be granted”). The district court concluded:

[C]ampaign contributions by parties with cases
pending before the judicial candidate or by
attorneys who regularly practice before them
is not so irregular or “extreme” as to violate
the Due Process Clause of the Fourteenth
Amendment.[4]

In addition and alternatively, the Court
finds that Plaintiffs’ Due Process challenge
to the Texas judicial election system is a
political question which is beyond the subject
matter jurisdiction of the Court.

Public Citizen, Inc. v. Bomer, 115 F. Supp. 2d 743, 746 (W.D. Tex.

2000). In sum, the district court held: “The receipt of campaign

3
Before the district judge ruled on the motion to dismiss,
Plaintiffs moved for summary judgment. Plaintiffs maintain we
should consider their “undisputed” summary judgment evidence. The
evidence was not disputed, however, because the Texas Secretary of
State’s summary judgment response was stayed pending the ruling on
his motion to dismiss. The Rule 12(b)(6) dismissal was based, of
course, on Plaintiffs’ complaint, not their tendered summary
judgment evidence. Therefore, that summary judgment evidence is
not properly before us on appeal. See, e.g., Spivey v. Robertson,
197 F.3d 772, 774 (5th Cir. 1999) (in reviewing Rule 12(b)(6)
motion, “[t]his court will not look beyond the face of the
pleadings to determine whether relief should be granted based on
the alleged facts”).
4
Note that Plaintiffs did not allege that any plaintiff had a
matter pending before a Texas court, let alone pending in a case in
which an opposing party or counsel had made a contribution to the
judge.

7
contributions alone does not rise to the level of a constitutional

violation”. Id. Accordingly, this action was dismissed.

II.

“Trial before ‘an unbiased judge’ is essential to due

process.” Johnson v. Mississippi, 403 U.S. 212, 216 (1971)

(citation omitted). Nevertheless “only in the most extreme of

cases” does the Due Process Clause require disqualification of a

judge. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 825-26

(1986); see FTC v. Cement Inst., 333 U.S. 683, 702 (1948) (“most

matters relating to judicial disqualification [do] not rise to a

constitutional level”). For the requisite “extreme case”, a party

must show a judge has a “direct, personal, substantial, pecuniary

interest in reaching a conclusion against him in his case”. Aetna

Life Ins., 475 U.S. at 821-22 (quoting Ward v. Village of

Monroeville, 409 U.S. 57, 60 (1972); Tumey v. State of Ohio, 273

U.S. 510, 523 (1927)).

Plaintiffs, however, do not allege — nor could they do so —

that every lawsuit in Texas state court involves a situation in

which one or more of the parties and/or attorneys have made

campaign contributions to the presiding judge. Indeed, none of the

Plaintiffs has alleged that one or more of the Plaintiffs, or any

member of the two plaintiff organizations, or any client

represented by one of the five plaintiff lawyers has ever been

8
involved in a case in which an opposing party or lawyer has

contributed money to the presiding judge.

Instead, Plaintiffs rely in large part on Ward v. Village of

Monroeville for the proposition that they can bring a systemic

challenge under the Due Process Clause. 409 U.S. at 57. In Ward,

plaintiff claimed the village’s scheme of adjudicating and

assessing certain fines was unconstitutional because the mayor

adjudicated and assessed the fines and also oversaw the city

budget, which was based in large part on revenue from the fines.

Id. at 57-58.

The district court did not address Defendant’s assertion that

Plaintiffs lack standing. No authority need be cited, however, for

the rule that any point properly raised in district court may be

relied upon on appeal to sustain the judgment. In any event, and

as is equally, if not more, well known, because “standing is a

jurisdictional requirement, [it] may always be addressed for the

first time on appeal”. Sierra Club, Lone Star Chapter v. Cedar

Point Oil Co. Inc., 73 F.3d 546, 555 n.22 (5th Cir. 1996).

Article III standing, at its “irreducible constitutional

minimum”, requires Plaintiffs to demonstrate: they have suffered

an “injury in fact”; the injury is “fairly traceable” to the

defendant’s actions; and the injury will “likely ... be redressed

by a favorable decision”. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992) (internal quotation marks omitted). In this

9
instance, we focus on the first element for standing: injury in

fact.

“[A]n injury in fact [is] an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual

or imminent, not conjectural or hypothetical”. Id. at 560

(internal quotation marks, footnote, and citations omitted); see

City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (“The

plaintiff must show that he has sustained or is immediately in

danger of sustaining some direct injury as the result of the

challenged official conduct and the injury or threat of injury must

be both real and immediate, not conjectural or hypothetical.”

(citations omitted)); Valley Forge Christian Coll. v. Americans

United For Separation of Church & State, Inc., 454 U.S. 464, 472

(1982) (“party who invokes the court’s authority [must] show that

he personally has suffered some actual or threatened injury as a

result of the putatively illegal conduct of the defendant”

(internal quotation marks omitted)).

The injury-allegations at hand are too abstract and

speculative to meet the constitutional standard for standing. See

Lujan, 504 U.S. at 565 n.2 (“plaintiff alleges only an injury at

some indefinite future time”). Representative of Plaintiffs’

position is Public Citizen’s allegation that, among Plaintiffs,

their members, and their clients,

[s]ome ... are financially unable to
contribute to the judicial election in

10
 significant amounts, some can afford to
contribute but choose not to do so because
they oppose the current system of financing of
judicial elections, and some contribute only
because they believe that they have no
realistic choice as lawyers who regularly
practice in the Texas courts.

As stated supra, the lawyers allege that “the current system of

financing judicial elections creates the appearance, if not the

reality, of partiality and impropriety of Texas state judges to the

detriment of the legal profession, [their] law practice[s], and

[their] clients’ interests”.

Although, “[a]t the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may

suffice”, Lujan, 504 U.S. at 561, Plaintiffs do not even plead a

general injury that could support a claim. See Anjelino v. The New

York Times Co., 200 F.3d 73, 88 (3d Cir. 2000) (“Standing is

established at the pleading stage by [, inter alia,] setting forth

specific facts that indicate that the party has been injured in

fact or that injury is imminent....”). For example, felt pressure

to contribute or the claimed appearance of partiality (which

allegedly results in a vague “detriment” to the legal profession,

the practice of law, and clients’ interests) is simply

insufficient. As noted, Plaintiffs focus primarily on the

appearance of impropriety, but that too does not suffice.

In other words, Plaintiffs do not allege any personal “actual

or imminent” injury. They point to no past case in which a

11
judgment was tainted by contributions; they mention no current

litigation in which an opposing party or lawyer contributed to the

judge’s campaign; and they merely speculate as to the future. They

seemingly suggest that their rights as litigants and attorneys are

violated per se — regardless of whether the judge received a

contribution from the opposing party or attorney and regardless of

whether a reasonable judge would recuse himself — simply because

the system allows for such contributions. Neither the mere fact of

Plaintiffs’ past appearances in Texas state courts nor their

allegations of hypothetical future litigation support finding the

“actual or imminent” injury required by Article III. Cf. La

Farguye v. Supreme Court of La., 634 F.2d 315, 315 (5th Cir. Unit

A Jan. 1981) (no case or controversy when plaintiff “does not even

allege that he has been denied either due process or equal

protection in any [specific] matter”); Ladd v. Hannigan, 962 F.

Supp. 1390, 1392 (D. Kan. 1997) (inmate alleging unconstitutional

lack of access to courts “has not satisfied the standing

requirement of ‘actual injury’ because he has not presented

evidence that he suffered prejudice in a particular suit”).

Nor is the alleged injury “concrete and particularized”;

“particularized ... mean[s] that the injury must affect the

plaintiff in a personal and individual way”. Lujan, 504 U.S. at

560 & n.1. Plaintiffs assert that they need not allege direct

injury when the wrong alleged is structural, but the case law they

12
cite is irrelevant. To the contrary, and no matter how well

intended, Plaintiffs have done little more than present a

generalized grievance, common to all citizens or litigants in

Texas, and as such, lack standing. See Arizonans for Official

English v. Arizona, 520 U.S. 43, 64 (1997) (“An interest shared

generally with the public at large in the proper application of the

Constitution and laws will not [create standing].”); Lujan 504 U.S.

at 573-74 (“We have consistently held that a plaintiff raising only

a generally available grievance about government – claiming only

harm to his and every citizen’s interest in proper application of

the Constitution and laws, and seeking relief [that] no more

directly and tangibly benefits him than it does the public at large

– does not state an Article III case or controversy.”).

In the absence of substantive factual allegations of injury,

only an abstract claim remains. For example, although Plaintiffs

assert recusal is not constitutionally required in all cases, they

do not describe in what instances failure to recuse crosses the

constitutional threshold. Indeed, their overbroad attack well

illustrates why, for standing, a plaintiff must allege “such a

personal stake in the outcome of the controversy as to assure that

concrete adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination of difficult

13
constitutional questions”. Baker v. Carr, 369 U.S. 186, 204

(1962).5

III.

For the foregoing reasons, the dismissal of this action is

AFFIRMED.

5
Because Plaintiffs’ members and clients lack standing to sue
on their own behalf, Public Citizen and Gray Panthers lack
organizational standing to sue on behalf of their members, and the
plaintiff lawyers lack third-party standing to sue on behalf of
their clients. See Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 343 (1977) (organizational standing requires, inter alia,
that individuals have standing to sue in their own right).

14