Perry, Ex Parte James Richard "Rick" ( 2015 )

PD-1067-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/21/2015 6:27:54 PM
October 22, 2015 Accepted 10/22/2015 8:09:20 AM
PD-1067-15 ABEL ACOSTA
CLERK
In the Court of
Criminal Appeals of Texas
EX PARTE JAMES RICHARD “RICK” PERRY
On Petition for Discretionary Review from the District Court for the 390th Judicial
District Travis County, Texas, Case No. D-1-DC-14-100139, and the Texas Court
of Appeals for the Third District, at Austin, Case No. 03-15-00063-CR
BRIEF OF CONSTITUTIONAL AND CRIMINAL LAW EXPERTS AS AMICI CURIAE
IN SUPPORT OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS
Eugene Volokh James C. Ho
California Bar No. 194464 Texas Bar No. 24052766
Gary T. Schwartz Professor of Law Prerak Shah
SCOTT & CYAN BANISTER Texas Bar No. 24075053
FIRST AMENDMENT CLINIC Bradley G. Hubbard
UCLA SCHOOL OF LAW Texas Bar No. 24090174
385 Charles E. Young Dr. East GIBSON, DUNN & CRUTCHER LLP
Los Angeles, CA 90095 2100 McKinney Avenue, Suite 1100
Tel.: (310) 206-3926 Dallas, TX 75201-6912
volokh@law.ucla.edu Tel.: (214) 698-3264
Fax: (214) 571-2917
jho@gibsondunn.com
pshah@gibsondunn.com
bhubbard@gibsondunn.com
COUNSEL FOR AMICI CURIAE
TABLE OF CONTENTS
Page
Table of Authorities ................................................................................................... i
Statement of Interest of Amici .................................................................................. 1
Introduction ............................................................................................................... 5
Argument................................................................................................................... 7
I. Count I of the Indictment Should Be Dismissed, Because It Is
Both Unconstitutional and Barred by Legislative Immunity. .............. 7
A. Count I Violates the Constitutional Doctrine of
Separation of Powers, Because the Legislature Cannot
Criminalize the Exercise of a Governor’s Constitutional
Veto Power. ................................................................................ 7
B. Governor Perry Cannot Be Prosecuted for His Veto,
Because He Is Entitled to Absolute Legislative Immunity
for Any Exercise of His Veto Power. ...................................... 12
II. Count II of the Indictment Should Be Dismissed, Because It
Criminalizes Speech Protected by the First Amendment of the
U.S. Constitution. ............................................................................... 21
Conclusion .............................................................................................................. 33
Certificate of Compliance ....................................................................................... 35
Certificate of Service .............................................................................................. 36
i
TABLE OF AUTHORITIES
Page(s)
Cases
Armadillo Bail Bonds v. State,
802 S.W.2d 237 (Tex. Crim. App. 1990) ..............................................................8
Bond v. Floyd,
385 U.S. 116 (1966) .............................................................................................28
Camacho v. Samaniego,
954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) ...................................14
Clinton v. Jones,
520 U.S. 681 (1997) ...................................................................................... 17, 19
D’Amato v. Superior Court,
167 Cal. App. 4th 861 (Cal. Ct. App. 2008) ................................................. 15, 16
Doe v. McMillan,
412 U.S. 306 (1973) .............................................................................................15
Dombrowski v. Eastland,
387 U.S. 82 (1967) ...............................................................................................20
Dublin v. State,
742 N.E.2d 232 (Ohio Ct. App. 2000).................................................................15
Duncantell v. State,
230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).................27
Ex Parte Gill,
413 S.W.3d 425 (Tex. Crim. App. 2013) ..............................................................9
Ex parte Perry, No. 03-15-00063-CR, 2015 WL 4514696 (Tex.
App.—Austin July 24, 2015, pet. granted) ............................................................6
Forrester v. White,
484 U.S. 219 (1988) .............................................................................................13
Fulmore v. Lane,
140 S.W. 405 (Tex. 1911)....................................................................................14
Garcetti v. Ceballos,
547 U.S. 410 (2006) ...................................................................................... 28, 29
ii
TABLE OF AUTHORITIES
(CONTINUED)
Grayned v. City of Rockford,
408 U.S. 104 (1972) .............................................................................................32
Hernandez v. City of Lafayette,
643 F.2d 1188 (5th Cir. 1981) .............................................................................14
In re Perry,
60 S.W.3d 857 (Tex. 2001)......................................................... 12, 13, 14, 15, 20
Irons v. R.I. Ethics Comm’n,
973 A.2d 1124 (R.I. 2009) ...................................................................................16
Jenevein v. Willing,
493 F.3d 551 (5th Cir. 2007) ...............................................................................28
Jessen Assocs., Inc. v. Bullock,
531 S.W.2d 593 (Tex. 1975)................................................................................14
Jorgensen v. Blagojevich,
811 N.E.2d 652 (Ill. 2004) ............................................................................ 17, 18
Langever v. Miller,
76 S.W.2d 1025 (1934) ..........................................................................................8
Meshell v. State,
739 S.W.2d 246 (Tex. Crim. App. 1987) ..............................................................8
Pickering v. Bd. of Educ.,
391 U.S. 563 (1968) .............................................................................................28
Pickle v. McCall,
24 S.W. 265 (Tex. 1893)......................................................................................14
Rangra v. Brown,
566 F.3d 515 (5th Cir. 2009) ...............................................................................28
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) .........................................................................................29
State v. Dankworth,
672 P.2d 148 (Alaska Ct. App. 1983) ..................................................................15
iii
TABLE OF AUTHORITIES
(CONTINUED)
State v. Hanson,
793 S.W.2d 270 (Tex. App.—Waco 1990, no writ)............................... 22, 27, 32
State v. Holton,
997 A.2d 828 (Md. Ct. Spec. App. 2010) ..................................................... 15, 19
State v. Neufeld,
926 P.2d 1325 (Kan. 1996) ..................................................................................15
Stockton v. Offenbach,
336 S.W.3d 610 (Tex. 2011)................................................................................11
Tenney v. Brandhove,
341 U.S. 367 (1951) .......................................................................... 13, 14, 16, 20
United States v. Brewster,
408 U.S. 501 (1972) .............................................................................................10
United States v. Dowdy,
479 F.2d 213 (4th Cir. 1973) ...............................................................................16
United States v. Gillock,
445 U.S. 360 (1980) .............................................................................................17
United States v. Mandel,
415 F. Supp. 1025 (D. Md. 1976) ........................................................................16
United States v. Mandel,
415 F. Supp. 997 (D. Md. 1976) ..........................................................................16
United States v. Stevens,
559 U.S. 460 (2010) .............................................................................................26
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) .............................................................................................26
Watts v. United States,
394 U.S. 705 (1969) .............................................................................................21
Statutes
TEX. PENAL CODE § 36.03(a)(1) ....................................................................... 22, 29
TEX. PENAL CODE § 39.02(a)(2) ............................................................... 7, 9, 11, 15
iv
TABLE OF AUTHORITIES
(CONTINUED)
Constitutional Provisions
TEX. CONST. art. II, § 1 ..............................................................................................8
TEX. CONST. art. III, § 21 .........................................................................................12
TEX. CONST. art. IV, § 14 ...........................................................................................7
U.S. CONST. art. I, § 6 ..............................................................................................12
Other Authorities
Alex Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd
Twitter Photographs, TELEGRAPH (U.K.), June 16, 2011....................................25
Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, MAIN
JUSTICE (Oct. 13, 2009), available at http://www.mainjustice.com/
2009/10/13/doggett-no-retreat-on-us-attorney-picks/ .........................................31
Federalist No. 51 (Madison) ....................................................................................20
Hardball with Chris Matthews, MSNBC, Sept. 5, 2007, transcript
available at http://www.nbcnews.com/id/20623566/ns/msnbc-
hardball_with_chris_matthews/t/hardball-chris-matthews-sept ..........................24
Lawmakers Decry Abuses Within Texas Youth Commission,
TEXAS SENATE NEWS, Feb. 27, 2007 ...................................................................24
Neil Munro, Priebus: Obama Executive Amnesty Is A ‘Nuclear Threat,’
THE DAILY CALLER (Nov. 7, 2014), available at http://dailycaller.com/
2014/11/07/priebus-obama-executive-amnesty-is-a-nuclear-threat ....................31
Perry: Board to Resign, WAXAHACHIE DAILY LIGHT, Mar. 15, 2007 .....................24
President Barack Obama, Remarks by the President in a Press
Conference (Nov. 5, 2014), available at http://www.whitehouse.gov
/the-press-office/2014/11/05/remarks-president-press-conference .....................30
v
STATEMENT OF INTEREST OF AMICI
Amici are an ideologically diverse coalition of experts in the fields of
constitutional and criminal law—including former judges, solicitors general,
prosecutors, criminal defense lawyers, constitutional litigators, and professors on
both sides of the aisle. They represent virtually the entire political spectrum and
have no personal or political stake in this case. They submit this brief for one
simple reason: They are committed to the rule of law, and do not wish to see the
law tarnished or distorted.
Floyd Abrams has served as counsel in many of the highest-profile First
Amendment cases of the modern era, including representing The New York Times
in the Pentagon Papers case. His most recent book is FRIEND OF THE COURT: ON
THE FRONT LINES WITH THE FIRST AMENDMENT (2013).
Michael Barone is a Resident Fellow at the American Enterprise Institute
and the principal co-author of THE ALMANAC OF AMERICAN POLITICS.
Ashutosh Bhagwat is a Professor of Law at UC Davis School of Law. He
has published extensively on issues relating to freedom of expression.
Jeff Blackburn is the Founder and Chief Counsel of the Innocence Project
of Texas, an organization dedicated to securing the release of those wrongfully
convicted of crimes in Texas and educating the public about the causes and effects
of wrongful convictions.
1
Paul Coggins is a former United States Attorney for the Northern District of
Texas (1993-2001), appointed by President Bill Clinton.
Alan Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at
Harvard Law School, and is one of the most well-known civil liberties advocates in
the country.
Raul A. Gonzalez is a former Justice on the Texas Supreme Court (1984-
1998), appointed by Governor Mark White and later elected as a Democrat.
Stephen M. Griffin is the W.R. Irby Chair and Rutledge C. Clement, Jr.
Professor in Constitutional Law at Tulane University Law School. He has
published numerous works on constitutional theory and history, including
AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS (1996).
James C. Ho is a former Solicitor General of Texas (2008-2010) and a
former Chief Counsel to the United States Senate Subcommittee on the
Constitution (2003-2005).
Daniel Lowenstein is a Professor of Law, Emeritus, at UCLA School of
Law. He is also the Director of the UCLA Center for the Liberal Arts and Free
Institutions and a former chair of the California Fair Political Practices
Commission, appointed by Governor Jerry Brown.
Michael W. McConnell is the Richard and Frances Mallery Professor of
Law at Stanford Law School and the Executive Director of the Stanford
2
Constitutional Law Center. He is also a former Judge on the U.S. Court of
Appeals for the Tenth Circuit (2002-2009).
John T. Montford is a former District Attorney for Lubbock County, a
former Texas State Senator (D-Lubbock), and the first Chancellor of the Texas
Tech University System.
Michael Mukasey is a former Attorney General of the United States (2007-
2009) and a former judge on the U.S. District Court for the Southern District of
New York (1987-2006).
Theodore B. Olson is a former Solicitor General of the United States (2001-
2004) and a former Assistant Attorney General for the Office of Legal Counsel at
the United States Department of Justice (1981-1984).
Harriet O’Neill is a former Justice on the Texas Supreme Court (1999-
2010), a former Justice on the Fourteenth Court of Appeals of Texas (1995-1998),
and a former Judge on the 152nd District Court of Texas (1993-1995).
Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford
Law School and served as the Senior Research Director for the Presidential
Commission on Election Administration formed by President Barack Obama.
Kenneth W. Starr is a former Solicitor General of the United States (1989-
1993) and a former Judge on the U.S. Court of Appeals for the D.C. Circuit (1983-
1989).
3
Johnny Sutton is a former United States Attorney for the Western District
of Texas (2001-2009), appointed by President George W. Bush, and a former
Associate Deputy Attorney General at the United States Department of Justice.
Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School
of Law. He also runs UCLA’s First Amendment Amicus Brief Clinic and is the
author of THE FIRST AMENDMENT AND RELATED STATUTES (5th ed. 2013).1
1 Amici’s institutional affiliations are provided only for purposes of identification. No counsel
for a party authored this brief in whole or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission of this brief. No person other
than amici or their counsel made a monetary contribution to its preparation or submission.
See TEX. R. APP. P. 11.
4
INTRODUCTION
When he was governor, Rick Perry announced that he would exercise his
constitutional authority to veto a bill if another political official did not do what he
wanted. Then he vetoed that bill. For these two ordinary political acts, Governor
Perry has been indicted on felony charges.
Both counts of the indictment are unconstitutional and must be dismissed
immediately. The first count—which criminalizes Governor Perry’s veto of a
bill—violates the separation of powers enshrined in the Texas Constitution. The
Legislature is not allowed to criminalize the exercise of powers that the
Constitution specifically confers on the Governor, including the veto power.
And the second count—which criminalizes Governor Perry’s threat to veto a
bill if Travis County District Attorney Rosemary Lehmberg did not resign her
office—violates the First Amendment of the U.S. Constitution and Article I,
Section 8 of the Texas Constitution. Governor Perry “threatened” to perform a
lawful act that the Texas Constitution specifically reserves to him (a veto) in order
to encourage a public official to engage in a lawful act (a resignation). That is
constitutionally protected speech.
The Third Court of Appeals in Austin correctly declared the statute in Count
II to be facially unconstitutional. But the court of appeals erred in holding that
Count I could proceed, concluding that it was bound by this Court’s precedent to
5
not consider the challenges Governor Perry had levied against Count I at this point.
Ex parte Perry, No. 03-15-00063-CR, 2015 WL 4514696, at *42 (Tex. App.—
Austin July 24, 2015, pet. granted).
This Court should finish the job that the Third Court of Appeals started. It
should affirm the Third Court’s decision to declare the statute at issue in Count II
facially unconstitutional and also declare the statute at issue in Count I to be
unconstitutional as applied to the prosecution of Governor Perry.
***
We as amici take no position on the politics that led to this indictment.
Reasonable people can disagree on the political tactics employed by both Governor
Perry and his opponents. But to turn political disagreement into criminal
prosecution is disturbing. To do so with an indictment riddled with constitutional
infirmities is even worse.
The indictment of Governor Perry demands this Court’s swift intervention.
The writ of habeas corpus should be granted and this prosecution should come to
an end.
6
ARGUMENT
I. Count I of the Indictment Should Be Dismissed, Because It Is Both
Unconstitutional and Barred by Legislative Immunity.
Count I of the indictment essentially alleges that Governor Perry violated
Section 39.02(a)(2) of the Texas Penal Code when he vetoed a bill that would have
funded the continued operation of the Public Integrity Unit of the Travis County
District Attorney’s office. The prosecution alleges that Governor Perry exercised
this veto “with intent to harm another”—namely, District Attorney Rosemary
Lehmberg and the Public Integrity Unit.
But this Count suffers from two independently fatal flaws: (1) the
Legislature is not allowed to criminalize the Governor’s exercise of his veto power,
and (2) Governor Perry is entitled to absolute legislative immunity for any exercise
of that veto power.
A. Count I Violates the Constitutional Doctrine of Separation of
Powers, Because the Legislature Cannot Criminalize the Exercise
of a Governor’s Constitutional Veto Power.
1. The Texas Constitution vests in the Governor the absolute authority to
veto appropriations bills. See TEX. CONST. art. IV, § 14. The Governor is entitled
to decide which laws he “approv[es]” and which he disapproves—without any
constraint from the Legislature, or from special prosecutors. Id.
7
The Texas Constitution also includes an explicit separation of powers
provision that sets forth the structure of Texas government:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are
Judicial to another; and no person, or collection of persons, being of
one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly
permitted.
TEX. CONST. art. II, § 1.
This express provision “reflects a belief on the part of those who drafted and
adopted our state constitution that one of the greatest threats to liberty is the
accumulation of excessive power in a single branch of government.” Armadillo
Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). “So important
is this division of governmental power that it was provided for in the first section
of the first article of the Constitution of the Republic of Texas, and alone it
constituted article 2 of each succeeding Constitution.” Langever v. Miller, 76
S.W.2d 1025, 1035 (Tex. 1934).
For these reasons, courts have long been vigilant about preventing any
attempt by one branch of the government to encroach on the authority
constitutionally secured to a different branch. Accordingly, “any attempt by one
department of government to interfere with the powers of another is null and void.”
Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App. 1987). The separation of
8
powers provision is violated “when one branch unduly interferes with another
branch so that the other branch cannot effectively exercise its constitutionally
assigned powers.” Ex Parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App.
2013).
Yet the prosecution today claims that Section 39.02(a)(2) criminalizes
Governor Perry’s veto of an appropriations bill. If that were true, then the statute
would be plainly unconstitutional. The Legislature cannot make it a crime for the
Governor to veto appropriations bills, because that would obviously “interfere[]
with another branch so that the other branch cannot effectively exercise its
constitutionally assigned powers.” Id. Any such outlawing of the use of the veto
power would unilaterally increase the Legislature’s own power, by eviscerating the
Governor’s power to veto legislation he does not “approve” of—even though,
under the Texas Constitution, every legislative bill is subject to veto. The
Legislature cannot enact a statute that constrains that gubernatorial power, thereby
enlarging its own.
Nor would the analysis be different if Governor Perry vetoed a bill “with
intent to harm another.” The Texas Constitution places no limits on the
Governor’s exclusive power to decide which bills to give his “approval.” So the
Legislature cannot empower the Judiciary to pass judgment on the Governor’s
9
intent behind a veto and accordingly chill the Governor’s exercise of his veto
power through the prospect of criminal punishment.
2. There are, of course, constitutional limits on the Governor’s veto
power. The Legislature can override a Governor’s veto with a two-thirds vote.
The Legislature can threaten not to enact laws that the Governor supports if he
continues to exercise his veto in a manner with which it disagrees. The Legislature
even has the power to impeach a Governor for a veto. And of course, the people of
this State could always vote a Governor out of office because of a veto.
The Legislature can also criminalize acts of political corruption, such as the
acceptance of a bribe in exchange for a veto. Notably, however, the illegal act in
that circumstance is the acceptance of the bribe—not the veto itself. So a bribery
prosecution would not trigger any of the separation of powers issues that plague
this prosecution. See, e.g., United States v. Brewster, 408 U.S. 501, 526 (1972)
(“There is no need for the Government to show that appellee fulfilled the alleged
illegal bargain; acceptance of the bribe is the violation of the statute, not
performance of the illegal promise.”).
None of these constitutionally permissible acts authorizes criminal
prosecution for the Governor’s exercise of his constitutionally prescribed veto
power.
10
3. It is not necessary to read Section 39.02(a)(2) in this clearly
unconstitutional manner. There is no indication that the Legislature intended for
the statute to be so read. This reading is the prosecution’s own. This Court can,
and should, avoid this constitutional controversy entirely, by declaring that the
statute simply does not criminalize Governor Perry’s conduct. As explained in
further detail in the Governor’s brief, a Governor simply does not have “custody or
possession” of a sum of money that starts out in the Texas Treasury, ends up in the
Texas Treasury, and remains throughout in the Texas Treasury. Those funds are
always in the custody of the Comptroller, not the Governor.
Not only would this be the most natural reading of the statutory text, but it
would also avoid the constitutional infirmities raised by prosecuting Governor
Perry for his veto. See, e.g., Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex.
2011) (“We presume that when enacting legislation, the Legislature intends to
comply with the state and federal constitutions, and we are obligated to avoid
constitutional problems if possible.”) (quotations and citation omitted).
***
The Constitution permits only two options: either (1) read Section
39.02(a)(2) the way the prosecution does, and then declare the statute
unconstitutional, because it violates the separation of powers doctrine decreed in
the Texas Constitution; or (2) avoid the constitutional issue altogether, by
11
interpreting the statute not to apply to a Governor’s veto of an appropriations bill.
Either way, Count I must be dismissed.
B. Governor Perry Cannot Be Prosecuted for His Veto, Because He
Is Entitled to Absolute Legislative Immunity for Any Exercise of
His Veto Power.
Count I also suffers from a separate yet equally fatal flaw: a Governor has
absolute legislative immunity from any prosecution based on the exercise of his
veto power.
1. Legislative immunity is a common law doctrine that flows from the
Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry, 60
S.W.3d 857, 859 (Tex. 2001) (citing U.S. CONST. art. I, § 6; TEX. CONST. art. III,
§ 21). It declares that “individuals acting in a legislative capacity are immune from
liability for those actions.” Id.
The reason for this immunity is simple. As the U.S. Supreme Court has
explained, and the Texas Supreme Court has endorsed:
“[T]he threat of liability can create perverse incentives that operate to
inhibit officials in the proper performance of their duties. In many
contexts, government officials are expected to make decisions that are
impartial or imaginative, and that above all are informed by
considerations other than the personal interests of the decisionmaker.
Because government officials are engaged by definition in governing,
their decisions will often have adverse effects on other persons. When
officials are threatened with personal liability for acts taken pursuant
to their official duties, they may well be induced to act with an excess
of caution or otherwise to skew their decisions in ways that result in
less than full fidelity to the objective and independent criteria that
ought to guide their conduct.”
12
Id. (alterations in original) (quoting Forrester v. White, 484 U.S. 219, 223 (1988)).
And for precisely those same reasons, the motivation behind a legislative
act—be it partisan, personal, or parochial—is utterly irrelevant to the privilege of
legislative immunity:
The claim of an unworthy purpose does not destroy the privilege.
Legislators are immune from deterrents to the uninhibited discharge
of their legislative duty, not for their private indulgence but for the
public good. One must not expect uncommon courage even in
legislators. The privilege would be of little value if they could be
subjected to the cost and inconvenience and distractions of a trial
upon a conclusion of the pleader, or to the hazard of a judgment
against them based upon a jury’s speculation as to motives.
Tenney v. Brandhove, 341 U.S. 367, 377 (1951). See also Perry, 60 S.W.3d at
859-60 (“The legislative immunity doctrine recognizes that it is not consonant with
our scheme of government for a court to inquire into the motives of legislators.”)
(quotations omitted).
2. Notably, legislative immunity extends to any official who is acting in
a legislative capacity, whether or not the official is a member of the Legislature.
For example, the Texas Supreme Court has held that legislative immunity protects
the Attorney General and the Comptroller (who are usually executive officials)
when they perform “legislative functions” as members of the Legislative
Redistricting Board. Perry, 60 S.W.3d at 860. “Courts have extended the
legislative immunity doctrine beyond federal and state legislators to other
13
individuals performing legitimate legislative functions,” such as mayors, city
council vice-presidents, and others. Id. Indeed, “[a]ctions to which courts have
extended absolute legislative immunity include a mayor’s veto of an ordinance
passed by a city council.” Camacho v. Samaniego, 954 S.W.2d 811, 823 (Tex.
App.—El Paso 1997, pet. denied) (citing Hernandez v. City of Lafayette, 643 F.2d
1188, 1194 (5th Cir. 1981)). “[W]hen the mayor of a municipality vetoes an
ordinance passed by the city’s legislative body, he performs a legislative function
and is entitled to absolute immunity from a civil suit complaining about actions
taken in his legislative capacity.” Hernandez, 643 F.2d at 1194.
Just as a mayoral veto is a legislative act subject to legislative immunity, so
too is a gubernatorial veto. Texas law is clear that a gubernatorial veto is a
legislative act, not an executive act. See, e.g., Jessen Assocs., Inc. v. Bullock, 531
S.W.2d 593, 598 (Tex. 1975); Fulmore v. Lane, 140 S.W. 405, 411 (Tex. 1911);
Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). Thus, Governor Perry is immune
from liability for his veto.
This legislative immunity applies to criminal prosecutions as well as civil
suits. Indeed, the core principle behind legislative immunity is to enable our
“representatives to execute the functions of their office without fear of
prosecutions, civil or criminal.” Tenney, 341 U.S. at 373-74 (emphasis added). As
courts have recognized, the “level of intimidation against a local legislator arising
14
from the threat of a criminal proceeding is at least as great as the threat from a civil
suit,” so “the privilege or immunity enjoyed by local legislators should be extended
to criminal proceedings.” State v. Holton, 997 A.2d 828, 845, 856 (Md. Ct. Spec.
App. 2010), aff’d, 24 A.3d 678 (Md. 2011) (quotations omitted).2
So Count I presents a particularly straightforward application of legislative
immunity. A conviction under Section 39.02(a)(2) requires an inquiry into
Governor Perry’s subjective state of mind. See TEX. PENAL CODE § 39.02(a)(2)
(requiring “intent to harm”). But “it is not consonant with our scheme of
government for a court to inquire into the motives of legislators.” Perry, 60
S.W.3d at 859-60 (quotations omitted). “If the motives for a legislator’s legislative
activities are suspect, the constitution requires that the remedy be public exposure;
if the suspicions are sustained, the sanction is to be administered either at the ballot
box or in the legislature itself.” State v. Dankworth, 672 P.2d 148, 152 (Alaska Ct.
App. 1983). “The claim of an unworthy purpose does not destroy the privilege. . . .
2 See also Doe v. McMillan, 412 U.S. 306, 312-13 (1973) (“Congressmen . . . are immune
from liability for their actions within the ‘legislative sphere,’ even though their conduct, if
performed in other than legislative contexts, would in itself be unconstitutional or otherwise
contrary to criminal or civil statutes.”) (citation omitted); D’Amato v. Superior Court, 167
Cal. App. 4th 861, 871 (Cal. Ct. App. 2008) (“The district attorney . . . contends immunity
applies only to civil suits, and does not extend to criminal prosecutions. We disagree.”); City
of Dublin v. State, 742 N.E.2d 232, 236 (Ohio Ct. App. 2000) (“‘legislative privilege’
embodies . . . substantive immunity from civil and criminal liability”); State v. Neufeld, 926
P.2d 1325, 1337 (Kan. 1996) (“[I]f a legislator’s conduct falls within a legitimate legislative
sphere, legality of the conduct is not a primary concern.”).
15
In times of political passion, dishonest or vindictive motives are readily attributed
to legislative conduct and as readily believed. Courts are not the place for such
controversies.” Tenney, 341 U.S. at 377-78. 3
3. The special prosecutor has previously argued that legislative
immunity does not apply to a criminal prosecution of a Governor’s exercise of the
veto power, relying heavily on a single district judge’s decisions in United States v.
Mandel, 415 F. Supp. 997 (D. Md. 1976), and United States v. Mandel, 415 F.
Supp. 1025 (D. Md. 1976). But that case is inapposite.
First, a crucial aspect of Mandel is not present here. There, the district judge
reasoned that “the rationale for immunity from criminal prosecution is wholly
lacking” when a prosecution comes from the executive branch. Mandel, 415 F.
Supp. at 1031. As the judge explained, “[t]he executive has no reason to fear for
its independence as a co-equal branch of government as a consequence of any
criminal prosecution brought by itself.” Id.
3 See also United States v. Dowdy, 479 F.2d 213, 266 (4th Cir. 1973) (“Once it was
determined, as here, that the legislative function . . . was apparently being performed, the
propriety and the motivation for the action taken, as well as the detail of the acts performed,
are immune from judicial inquiry.”); Irons v. R.I. Ethics Comm’n, 973 A.2d 1124, 1131 (R.I.
2009) (“‘[A]s long as [a legislator’s] challenged actions, stripped of all considerations of
intent and motive, were legislative in character, the doctrine of absolute legislative immunity
protects them from such claims.’”); D’Amato, 167 Cal. App. 4th at 869 (“courts cannot
inquire into the impetus or motive behind legislative action”) (quotations omitted).
16
But the executive branch in Texas is not unitary. The Governor and the
Attorney General are separately elected. Moreover, the power to bring criminal
prosecutions in Texas is divided between the Attorney General and local district
attorneys, with the bulk of the authority in the hands of district attorneys. So the
chief executive of Texas does have reason to fear for his independence—as
evidenced by this very case, he is subject to criminal prosecution brought by
officials wholly outside of his authority.
Second, Governor Mandel was not entitled to legislative immunity in any
event. Mandel concerned the federal prosecution of a state official. As the U.S.
Supreme Court has made clear, legislative immunity does not apply in that context,
because immunity derives from the separations of powers within a sovereign, not
between sovereigns. See United States v. Gillock, 445 U.S. 360, 370 (1980).
Mandel did not involve a state prosecution of a state official and is thus
inapplicable to this case.
The special prosecutor has also cited Jorgensen v. Blagojevich, 811 N.E.2d
652 (Ill. 2004), and Clinton v. Jones, 520 U.S. 681 (1997), to argue that legislative
immunity should not apply in this case. But neither of those cases even remotely
supports that position.
Jorgensen involved a suit against a governor in his official capacity to
declare an official act unconstitutional. It had nothing to do with holding a
17
governor personally liable, either civilly or criminally, for an official
act. Obviously Governor Perry can be sued in his official capacity when a plaintiff
is seeking to declare a government action unlawful. That happens all the time. But
that has nothing to do with trying to hold him personally liable for a legislative act,
as is the case here. Indeed, Jorgensen itself explicitly acknowledged this
distinction:
We note, moreover, that the Judges have not sought to hold the
Governor personally liable for his actions, nor are they attempting to
force him to take or to refrain from taking any particular action. He
was named in the litigation because he was one of the state officials
involved in the sequence of events which led to the failure of the
Judges to receive their FY2004 COLAs. There is nothing unusual
about his inclusion as a party. Examples of Illinois governors being
joined as defendants in cases seeking declaratory and injunctive relief
based on alleged violations of state constitutional and legal
requirements are commonplace.
Jorgensen, 811 N.E.2d at 666 (emphasis added).
The special prosecutor curiously omitted this passage from his discussion of
Jorgensen in the court below, even though it appears immediately before the
passage that the special prosecutor chose to block quote. See Appellee’s COA Br.
46-47. This omission is telling. After all, this passage shows that a governor
would have legislative immunity if someone were seeking to hold him “personally
liable for his actions,” id.—as the special prosecutor is attempting to do here.
Clinton is not helpful to the special prosecutor either. The Supreme Court
there said that immunity does not apply to unofficial conduct—but that it would
18
apply to official acts. As the Court explained, “[t]he principal rationale for
affording certain public servants immunity from suits for money damages arising
out of their official acts is inapplicable to unofficial conduct.” Clinton, 520 U.S. at
692-93. Here, Governor Perry is being held criminally liable for an official act (a
veto), not for any unofficial conduct, so he is entitled to immunity.
***
Allowing Count I to proceed would utterly defeat the purpose of legislative
immunity. Just like legislators, governors acting in their legislative capacity “must
enjoy the same ability to speak and act in their legislative capacities, without fear
of retribution, either criminally or civilly, because of what they say or how they
vote.” Holton, 997 A.2d at 856. Governors “may be called upon to answer for
their legislative conduct to the citizens who elected them, which is what democracy
is all about.” Id. “[B]ut they may not be compelled to defend their legislative
conduct to a prosecutor, to a grand jury or to a court.” Id.
Indeed, as dangerous as the prosecution’s theory originally was, it has
become even more striking with the amended indictment and bill of particulars
filed on February 13, 2015. Under the theory of that amended indictment, it is now
a crime for the Governor to veto an appropriation—or for any government official
to do any official act—for any purpose other than “for the sole benefit of the
people of the State of Texas,” such as “for the benefit of any private or individual
19
purpose, private business, political party, or other.” So if a prosecutor decides that
a government official did something even in part because it benefited the official’s
prospect of election to higher office, or improved the standing of the official’s
party, or just improved his reputation—anything at all other than solely benefiting
the people of Texas—that is enough for a criminal prosecution.
This is far removed from the wisdom of the Framers, who recognized that
politicians harbor personal ambitions as well as public-spiritedness; that
“[a]mbition must be made to counteract ambition”; that “[t]he interest of the man”
is an important aspect of defending “the constitutional rights” of his office; and
that so long as men are not angels, the law must actually rely on “the private
interest of every individual” officeholder, and not just on officeholders’ “better
motives,” as an important part of our political system. Federalist No. 51
(Madison).
Moreover, it is important that Count I be dismissed right now—not after
Governor Perry has stood trial. The whole point of legislative immunity is that it
protects individuals from being put in jeopardy as a result of their legislative acts.
That goal can only be achieved if legislative immunity can be asserted before trial.
See, e.g., Perry, 60 S.W.3d at 860 (“legislators ‘should be protected not only from
the consequences of litigation’s results but also from the burden of defending
themselves’” (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)); Tenney,
20
341 U.S. at 372, 377 (“The privilege of legislators to be free from arrest or civil
process for what they do or say in legislative proceedings has taproots in the
Parliamentary struggles of the Sixteenth and Seventeenth Centuries . . . The
privilege would be of little value if they could be subjected to the cost and
inconvenience and distractions of a trial upon a conclusion of the pleader, or to the
hazard of a judgment against them based upon a jury’s speculation as to
motives.”).
II. Count II of the Indictment Should Be Dismissed, Because It
Criminalizes Speech Protected by the First Amendment of the U.S.
Constitution.
Count II of the indictment alleges that Governor Perry violated the law by
“threatening” to use his veto powers if a government official did not resign her
post. But he has every right to do just that. Criminalizing Governor Perry’s threat
to veto legislation violates his right to freedom of speech under the Texas and U.S.
Constitutions. This Count must also be dismissed, as the Third Court of Appeals
correctly concluded.
1. A political official has the right to threaten to perform an official act
in order to persuade another government official to engage in some other official
act. That is not a crime—it is core political speech. See, e.g., Watts v. United
States, 394 U.S. 705, 707 (1969) (“What is a threat must be distinguished from
what is constitutionally protected speech.”).
21
The Waco Court of Appeals said precisely that in a similar case twenty-five
years ago. See State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no
writ). In that case, a county judge “was charged with having made a threat to take
action as a public official in an attempt to coerce another public official into
performing an official act.” Id. at 272. Specifically, the defendant in Hanson
threatened to terminate some of the county’s funding in order to coerce a district
judge to fire a county auditor and to coerce a county attorney to revoke an
individual’s probation. Id. at 271-72. Both the trial court and the court of appeals
correctly dismissed the charges. As the court explained, in this sort of political
context, “[c]oercion of a lawful act by a threat of lawful action is protected free
expression.” Id. at 272.
So too here. Governor Perry has been charged with attempting to “coerce” a
lawful, official act (the voluntary resignation of a public official) by threatening to
take a lawful, official act (the veto of an appropriations bill).4 That is protected
free expression, and the Governor cannot be prosecuted for it.
The prosecution has previously attempted to distinguish Hanson by
suggesting that Governor Perry was acting unlawfully when he made his alleged
4 We accept here for purposes of argument the special prosecutor’s position that D.A.
Lehmberg’s resignation would have constituted an official act. But if leaving office is not an
official act, then the elements of Section 36.03(a)(1) would not be satisfied, since that statute
refers only to attempts to influence the exercise of “official power” or “official duty.”
22
“threat,” because he did not have the authority or control to request the resignation
of D.A. Lehmberg. Appellee’s COA Br. 25. But government officials are
obviously allowed to use their powers to influence even those over whom they do
not have direct supervision. A Senator may condition his vote for an
appropriations bill on the resignation of a Cabinet Secretary, even though only the
President can fire the Secretary. A President may threaten to veto a bill unless
Senators agree to ratify a treaty, even though the President has no authority to
directly mandate the signing of the treaty. There is nothing criminal about this sort
of political hardball.
2. The consequences of allowing Governor Perry to be prosecuted under
this law would be both far-reaching and devastating. The prosecution’s theory of
the case would criminalize a vast swath of constitutionally protected—and
common—political speech. For example, it would make it illegal for:
• a legislator to tell the Governor, “if you appoint John Smith to this
position, I won’t vote for this law you want me to support”;
• a Governor to tell a legislator, “if you don’t amend this bill in a particular
way, I’ll veto it”;
• a state legislator to tell a U.S. Senator, “if you vote for this federal bill,
I’ll vote against this state law that you like”;
• a legislator to tell the Governor, “if you don’t resign, I’ll vote to impeach
you”; or
23
• a government employee to tell his supervisor, “if you don’t give me a
raise, I’ll ask for a transfer to a different department.”
Nor need we limit ourselves to hypotheticals. Consider, for example, what
happened during the Texas Youth Commission controversy in 2007. Countless
state legislators across the political spectrum demanded the resignation of the
commissioners—and threatened legislative action if they refused. “[Senator]
Ogden said the Finance Committee is prepared to use the power of the purse to
influence change at TYC . . . . He said significant changes will have to occur
within TYC, enough for him to have confidence to recommend to his committee
members that ‘any appropriation’ should go to the agency.” Lawmakers Decry
Abuses Within Texas Youth Commission, TEXAS SENATE NEWS, Feb. 27, 2007. See
also Perry: Board to Resign, WAXAHACHIE DAILY LIGHT, Mar. 15, 2007 (“[At] a
meeting of the joint committee charged with addressing problems at the TYC,
lawmakers asked for the resignation of the board members, going so far as to pass
a vote of no confidence against the board.”).
Likewise, when U.S. Senator Larry Craig was arrested for indecent conduct
in a public restroom, “Republican leaders embarrassed by Craig’s behavior and
news conference threatened to conduct hearings if Craig did not resign.” Hardball
with Chris Matthews, MSNBC (Sept. 5, 2007), transcript available at
http://www.nbcnews.com/id/20623566/ns/msnbc-hardball_with_chris_matthews/t/
hardball-chris-matthews-sept.
24
And when it was revealed that U.S. Representative Anthony Weiner had sent
sexually themed photographs of himself via Twitter, “his fate was sealed . . . when
party leaders in Congress and President Barack Obama began vociferously calling
for him to go and threatened to remove him from various committees.” Alex
Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd Twitter Photographs,
TELEGRAPH (U.K.), June 16, 2011.
According to the prosecution in this case, it would have been a crime under
Texas law for any of those officials to demand the resignation of other officials,
and then to inform the other officials of potential retaliatory legislative actions if
they refused. That cannot be correct. What the Texas legislators did in 2007, what
the U.S. Senate Republican leadership did in 2007, and what the U.S. House
Democratic leadership did in 2011 was neither criminal nor capable of being
criminalized—it was protected political speech.
And so too here. Just as Texas legislators were entitled to demand the
resignation of the members of the Youth Commission, and just as members of
Congress were entitled to demand the resignation of a Senator and a
Representative who had disgraced their offices, Governor Perry was entitled to
demand the resignation of an official who he felt was no longer serving the best
interests of the Texans he was elected to represent—and to promise to use his
25
constitutionally prescribed veto power to achieve his goal. That is protected
speech, and the State cannot criminalize any of it.
3. The vast amount of protected speech that would be deemed criminal
under the prosecution’s theory reveals another fundamental problem with this
Count: the statute, as interpreted by the prosecution, is unconstitutionally
overbroad and therefore facially invalid. Thus, even though Governor Perry
engaged in constitutionally protected expression, in fact no one can be prosecuted
under this statute.
A law is unconstitutionally overbroad if “a substantial number of its
applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S.
442, 449 n.6 (2008) (quotations omitted). And the possibility of prosecutorial
discretion cannot save an overbroad statute. “[T]he First Amendment protects
against the Government; it does not leave us at the mercy of noblesse oblige. We
would not uphold an unconstitutional statute merely because the Government
promised to use it responsibly.” United States v. Stevens, 559 U.S. 460, 480
(2010). Here, the law—again, as interpreted by the prosecution—would plainly
26
capture an overwhelming amount of protected speech. It is accordingly
unconstitutionally overbroad. 5
The prosecution has argued that the statute is not overbroad because
coercive threats are not entitled to First Amendment protection. Appellee’s COA
Br. 14 & nn. 30-32 (citing Duncantell v. State, 230 S.W.3d 835, 843-44 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d)). But threatening to engage in an
official act in order to “coerce” someone to take an official act is not a punishable
threat; it is protected political speech. See Hanson, 793 S.W.2d at 272.
And Duncantell provides no different. That case made the simple point that
interfering with a police officer while he is on the street performing a law
enforcement function is not expressive activity. See Duncantell, 230 S.W.3d at
844 (addressing interference with a “peace officer performing a duty imposed by
law, such as investigating an accident or arresting a criminal suspect”). It does not
mean that, for instance, a newspaper can be punished for harshly criticizing the
5 The prosecution has argued that “if the court can identify any factual circumstance in which
the statute is valid, the facial challenge must fail”—and accordingly provides hypothetical
applications of the statute that it claims would not violate the First Amendment. Appellee’s
COA Br. 15-16. But that is the opposite of the overbreadth doctrine, which provides that a
law must be facially struck down so long as a “substantial number”—not all—of its
applications are unconstitutional. “[T]he possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that protected speech
of others may be muted.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). The
overbreadth doctrine is, in that sense, an exception to the traditional approach to facial
challenge to statutes—an exception that the prosecution seems to have forgotten.
27
police, even when that interferes with officers’ authority and thus makes it harder
for them to perform their duties. It does not mean that a legislator can be punished
for voting against a bill that would better fund police officers, because that too
would make it harder for police officers to perform their duties. Likewise, it does
not mean that a Governor can be punished for demanding the resignation of a D.A.
simply because that would mean the D.A. would no longer be performing the
duties of a D.A.
4. The prosecution has also argued that Governor Perry’s speech is
actually “government speech”—and thus any regulation of his speech is wholly
exempt from First Amendment scrutiny. See, e.g., Appellee’s COA Br. 9-10 &
nn. 11-18 (citing Garcetti v. Ceballos, 547 U.S. 410, 422 (2006); Pickering v. Bd.
of Educ., 391 U.S. 563, 568 (1968)).
But the speech of elected officials at issue here is simply not government
speech as defined by the Garcetti line of cases. 6 Indeed, common sense demands
that it not be government speech. Does the special prosecutor truly believe that the
6 See, e.g., Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir. 2007) (“We are persuaded that the
preferable course ought not draw directly upon the Pickering-Garcetti line of cases for
sorting the free speech rights of employees elected to state office.”); Rangra v. Brown, 566
F.3d 515, 523-24 (5th Cir. 2009) (“None of the Supreme Court’s public employee speech
decisions qualifies or limits the First Amendment’s protection of elected government
officials’ speech.”), on reh’g en banc, 576 F.3d 531 (5th Cir. 2009) (mooted). “The manifest
function of the First Amendment in a representative government requires that legislators be
given the widest latitude to express their views on issues of policy.” Bond v. Floyd, 385 U.S.
116, 135-37 (1966).
28
Legislature could, with a veto-proof majority, prevent the Governor from saying
anything at all on particular topics? Of course not—yet that is precisely what the
Legislature could do if Governor Perry’s speech were deemed government speech.
Moreover, even if this Garcetti argument is taken seriously, it is further
undermined by the fact that Section 36.03(a)(1) is not limited to speech by elected
officials. See TEX. PENAL CODE § 36.03(a)(1) (“A person commits an offense if
. . .”) (emphasis added). It would also apply to newspaper publishers, advocacy
groups, and average citizens who make constitutionally protected statements in an
attempt to influence legal acts (much as Governor Perry did here). Criminalizing
such speech is plainly unconstitutional—and Section 36.03(a)(1) is thus
unconstitutionally overbroad.
5. The prosecution has previously declared that “[t]he ‘Coercion of a
Public Servant’ statute does not make the favored/disfavored expression distinction
that would raise constitutional [content-discrimination] concern.” Appellee’s COA
Br. 20. But the prosecution offers no explanation for this statement—which is
unsurprising, because the statute is plainly content based. It specifically singles
out speech that is intended to affect an act by a public official. See Reed v. Town
of Gilbert, 135 S. Ct. 2218, 2227 (2015) (“Government regulation of speech is
content based if a law applies to particular speech because of,” among other things,
the “message expressed” in the speech or the “function or purpose” of the speech).
29
6. The prosecution has also oddly argued that the law is constitutional
because “[w]here one public servant is threatened by another public servant . . . the
possibility that the public servant speaker may assert First Amendment protection
is precisely what makes the coercive threat so effective in seeking to influence the
public servant listener.” Appellee’s COA Br. 8. The prosecution concluded that
“[t]his precisely is the legitimate basis for courts allowing the State to regulate and
put limits on a public servant’s speech with greater latitude than regulating speech
of a private citizen.” Id.
But that cannot be right. Is the prosecution really arguing that if a public
official has a First Amendment right to say something, the Legislature actually has
a greater basis for regulating that speech? If anything, the opposite is true: the
First Amendment is particularly crucial when the Legislature is trying to restrict
protected political speech in an attempt to diminish its effectiveness.
***
Last year, President Obama threatened to issue various executive orders if
Congressional Republicans refused to pass comprehensive immigration reform.
See, e.g., President Barack Obama, Remarks by the President in a Press
Conference (Nov. 5, 2014), transcript available at http://www.whitehouse.gov/the-
press-office/2014/11/05/remarks-president-press-conference; Neil Munro, Priebus:
Obama Executive Amnesty Is A ‘Nuclear Threat,’ THE DAILY CALLER (Nov. 7,
30
2014), available at http://dailycaller.com/2014/11/07/priebus-obama-executive-
amnesty-is-a-nuclear-threat.
The President later followed through on that threat. To be sure, those
executive actions are highly controversial and are currently the subject of
litigation. But no one could seriously argue that President Obama’s political
statements regarding those actions are unprotected by the First Amendment and
subject to potential criminal prosecution.
So too here. Just as President Obama can tell Congressional Republicans (as
he did at an official White House press conference), “You send me a bill that I can
sign, and those executive actions go away,” Governor Perry can tell a convicted
government official essentially the same thing: “You resign, and my veto goes
away.”
Moreover, if this prosecution is not immediately dismissed, the chilling
effect on political discourse will be disastrous. Any public official who seeks to
drive criminally or disgracefully behaving officials out of office will now rightly
fear that a district attorney from the other side of the political spectrum would
prosecute him—just as Governor Perry is being prosecuted here today. 7
7 See, e.g., Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, MAIN JUSTICE (Oct.
13, 2009), available at http://www.mainjustice.com/2009/10/13/doggett-no-retreat-on-us-
attorney-picks/ (quoting statement of U.S. Representative Lloyd Doggett recommending
[Footnote continued on next page]
31
If Governor Perry is forced to endure a criminal trial, then the damage will
already be done—even if he is ultimately acquitted. The mere knowledge that an
indictment can be maintained would itself chill a vast spectrum of constitutionally
protected political speech by other political officials. See Hanson, 793 S.W.2d at
273 (“A vague statute that potentially could punish protected political debate
violates due process because of its chilling effect on the exercise of that essential
right.”) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
The special prosecutor has argued that there is no chilling effect, both
because the statute has been on the books for decades and because no speech has
been chilled since the start of Governor Perry’s prosecution. Appellee’s COA
Br. 16-17. As to the first reason, of course the mere existence of the statute did not
chill free speech. After all, until this special prosecutor came along, no one would
have thought that they could be prosecuted for engaging in constitutionally
protected political speech (as Hanson confirmed).
As to the second reason, the special prosecutor might actually be correct that
Governor Perry’s prosecution has not yet chilled any speech—but that is only
because most people expect the case to promptly end because of its obvious
constitutional flaws. But if it does not end immediately, that expectation will be
[Footnote continued from previous page]
“LULAC-supported Michael McCrum” for appointment as U.S. Attorney by President
Obama).
32
shattered and the constitutional rights of public officials everywhere will be
chilled.
That is why an immediate writ of habeas corpus is necessary in this case.
This Court should announce—right now—that it is unconstitutional to prosecute
Governor Perry for his protected political speech.
CONCLUSION
The flaws in this indictment strike at the heart of the separation of powers
doctrine enshrined in the Texas Constitution, as well as the freedoms protected by
both the First Amendment of the U.S. Constitution and Article I, Section 8 of the
Texas Constitution. So this prosecution must end immediately. The application
for a writ of habeas corpus should be granted.
33
DATED: October 21, 2015 Respectfully submitted,
/s/ James C. Ho
Eugene Volokh James C. Ho
California Bar No. 194464 Texas Bar No. 24052766
Gary T. Schwartz Professor of Law Prerak Shah
SCOTT & CYAN BANISTER Texas Bar No. 24075053
FIRST AMENDMENT CLINIC Bradley G. Hubbard
UCLA SCHOOL OF LAW Texas Bar No. 24090174
385 Charles E. Young Dr. East GIBSON, DUNN & CRUTCHER LLP
Los Angeles, CA 90095 2100 McKinney Avenue, Suite 1100
Tel.: (310) 206-3926 Dallas, TX 75201-6912
volokh@law.ucla.edu Tel.: (214) 698-3264
Fax: (214) 571-2917
jho@gibsondunn.com
pshah@gibsondunn.com
bhubbard@gibsondunn.com
COUNSEL FOR AMICI CURIAE
34
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief satisfies the word-limit requirements for
amicus briefs contained in the Texas Rules of Appellate Procedure, because it
contains a total of 7,643 words, excluding the portions that can be excluded
pursuant to those same rules.
/s/ James C. Ho
James C. Ho
35
CERTIFICATE OF SERVICE
I hereby certify that, on October 21, 2015, a true and correct copy of the
foregoing was served via electronic mail on the following counsel of record for all
parties in this case:
Lisa C. McMinn David L. Botsford
State Prosecuting Attorney BOTSFORD & ROARK
P.O. Box 13046 1307 West Avenue
Austin, Texas 78711 Austin, TX 78701
Michael McCrum Anthony G. Buzbee
District Attorney Pro Tem THE BUZBEE LAW FIRM
Travis County, Texas JPMorgan Chase Tower
700 N. St. Mary’s St., Suite 1900 600 Travis Street, Suite 7300
San Antonio, TX 78205 Houston, TX 77002
David M. Gonzalez Thomas R. Phillips
Assistant District Attorney Pro Tem BAKER BOTTS LLP
Travis County, Texas 98 San Jacinto Boulevard, Suite 1500
206 East 9th Street, Suite 1511 Austin, TX 78701
Austin, TX 78701
Counsel for the State of Texas Counsel for Applicant
/s/ James C. Ho
James C. Ho
36