Mayor Cook Wins Appeal To Stop Recall

The Eighth Court of Appeals has ruled unanimously in Mayor John Cook’s favor and has determined petitioners trying to oust him out of office broke the law. The ruling effectively stops the recall election from happening.

Cook has contended that petitioners broke the law by using the corporate resources of Word of Life Church and other churches in the recall election efforts.

Cook’s attorney, Mark Walker, said this hasn’t been about stopping the recall efforts – only making sure they’re legal.

“It’s never been about churches, it’s never been about religion,” Walker said. “The issue has been about the application of the Texas Election Code as it relates to political contributions by corporate entities.”

The appeals court, made up of Chief Justice Ann Crawford McClure, Justice Guadalupe Rivera, and Justice Chris Antcliff – ruled unanimously that petitioners broke the Texas Election Code by not re-purposing their political action committee – El Pasoans For Traditional Family Values – for the recall efforts.

Originally, El Pasoans for Traditional Family Values was classified as a PAC for the ballot initiative meant to take away the health insurance of gay and unwed partners of city employees, not as a recall group.

Pastor of Word of Life Church, Tom Brown, the man behind the effort to recall the mayor and city representatives Steve Ortega and Susie Byrd, said petitioners plan to appeal to the Texas Supreme Court. Brown declined to comment further, saying it was a legal issue and referred ABC-7 to his lawyers. ABC-7 initially reached attorney Joel Oester before he had read the opinion. ABC-7 faxed him a copy, but has been unable to reach him since. The petitioners other attorneys, Theresa Caballero and Stuart Leeds have not yet returned our calls seeking comment.

Walker said it’s unlikely for the state supreme court to take the case because all three justices sided with the mayor and because there is no other ruling that conflicts with this one.

“I think this is a nice victory for those of us who believe in equal rights for us all… this is a victory against those who are bigoted, intolerant and full of hate,” City Rep. Steve Ortega said.

City Rep. Susie Byrd said she was glad by the decision but said the recall election would have been a chance to show El Paso values equal rights. “I was really looking forward to and looking at this as an opportunity to repudiate so much of the intolerance and hatefulness that folks like Tom Brown have brought to our community. To be able to defeat that sentiment, and to say look ‘we’re a community who believes in equality, we’re a community who believes in equal rights, we’re a community who welcomes everybody regardless of your sexual orientation.'”

Brown started the recall efforts because Cook, Byrd and Ortega did not implement a November 2010 voter-approved ordinance to take away the health insurance of gay and unmarried partners of city employees.

The way city attorneys interpreted the voter-approved initiative, more than 100 unintended people would also lose their health insurance if the vaguely-worded ordinance would have taken effect. The ordinance was written by El Pasoans for Traditional Family Values (EPTFV), the same group trying to recall the mayor.

The group wrote the ordinance without the help of an attorney after El Paso City Council extended health benefits to 19 city domestic partners. Ordinance supporters said they did not want their tax dollars funding the health benefits of unmarried couples and people in homosexual relationships, which some believe are an abomination to God. The health benefits are not completely tax-payer funded. City employees also pay for their insurance.

The recall election date had been set for April 14 by the city.

The appeals court’s written ruling stated, “Let us be clear. The Election Code has not and does not prohibit and all corporate contributions in connection with recall elections. It merely prescribes the parameters under which contributions may be made. Appellees were not barred from pursuing the November 2010 ballot initiative through the special purpose committee know as EPTFV, nor were they banned from speaking. They spoke and spoke loudly. They are not banned from speaking now. They must simply follow the protocol established in the Election Code with which they are already familiar. All they needed to do was ‘re-purpose’ EPTFV or create a new special purpose committee.”

The appellate judges also said County Court 3 Judge Javier Alvarez abused his discretion in denying Cook’s request for an injunction.

“The trial court was required to apply the law to the facts,” the ruling states about Alvarez. “We find the trial court failed to do so here. A number of the trial court’s comments throughout the proceedings below, such as ‘I don’t want to thwart… the will of the people,’ and it ‘doesn’t matter what I do or say, one side or the other is going to appeal,’ indicate an abdication of the judicial responsibility it had to enforce the laws. Because the facts definitely indicate that a party is in violation of the law, the trial court no longer possessed discretion and was required to enjoin the violation. Here, the trial court’s actions hindered the judicial process and deprived Cook of the relief which he was entitled. It is essential to the preservation of the independence of the judiciary and public confidence in the judicial process that a judge be faithful to the law and not be swayed by public clamor or fear of criticism.”

The appellate judges’ ruling stated that testimony during the temporary-injunction hearing by EPTFV’s treasurer, Ronald F. Webster, showed the Election Code had been violated.

“Mr. Webster, the treasurer of EPTFV, testified during the temporary-injunction hearing that he had viewed and had attempted to study the Texas Ethics Commission materials regarding specific-purpose committee requirements and was aware that to support or oppose a specific measure and in order to spend more than $500, a treasurer must be designated for a specific-purpose committee,” according to the ruling. ” Webster testified that no new specific-purpose committee was formed with respect to the efforts to recall Cook, Byrd, and Ortega. He acknowledged that no appointment or designation of a treasurer of any specific-purpose committee identified with anything other than EPTFV’s previous November 2, 2010, traditional-family-values ordinance election had occurred. According to Webster, EPTFV had proceeded, after the conclusion of its identified purpose, to expend more than $3,000 to support the recall efforts of Cook, Byrd, and Ortega. It is evident that violations of Section 253.031(b) of the Election Code have occurred.”

The Eighth Court of Appeals heard arguments in late January from attorneys on both sides, with Cook’s attorney accusing recall organizers of violating state election law and attorneys for the recall calling it a matter of free speech.

“Nobody was contesting the facts, just whether or not this was a free speech issue or whether or not it was a political campaign issue,” Cook said at the time of the January hearing. “My attorneys did a good job of expressing this was quite obviously a political campaign orchestrated by the corporation known as Word of Life Church.”

Cook and Walker argued that contributions of nearly $4,000 to the group El Pasoans for Traditional Family Values violated Texas Election Code.

“The other side said they were just expressing their opinion, but they were conducting a campaign,” Cook said in late January.

Meanwhile, attorneys for Brown said their client did nothing wrong.

“Corporations have a right, a fundamental right, to speak out,” Joel Olster, senior legal counsel for the Alliance Defense Fund and one of Brown’s attorneys, said in late January. “Just like newspapers have a fundamental first amendment right to be involved and speak out, so does a church. All these citizens were so concerned about their local government they wanted to speak out and be heard on a political matter, and now they’re being drug into court because they wanted to speak, and that’s an affront to everything that America stands for.”

Oster argued the Texas Election Code is unconstitutional because it limits speech based on corporate status. He cited a Supreme Court ruling that states speech cannot be infringed upon on the basis of corporate status.

Related Link:Link: Full Eighth Court Of Appeals Ruling In Recall Case