DocketNumber: Cause No. 1:19-CV-422-LY
Citation Numbers: 388 F. Supp. 3d 738
Judges: Yeakel
Filed Date: 5/23/2019
Status: Precedential
Modified Date: 7/25/2022
Before the court in the above-styled and numbered cause are Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction filed May 16, 2019 (Dkt. No. 8), Defendant's Motion to Dismiss Plaintiff's First Amended Complaint filed May 16, 2019 (Dkt. No. 11), Plaintiffs' Response to Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint filed May 16, 2019 (Dkt. No. 12), Defendant's Opposed Motion to Stay Pending Resolution of Defendant's Motion to Dismiss Based on Legislative Immunity filed May 17, 2019 (Dkt. No. 13), Plaintiffs' Response to Defendant's Opposed Motion to Stay Pending Resolution of Defendant's Motion to Dismiss Based on Legislative Immunity filed May 20, 2019 (Dkt. No. 17), and Defendant's Opposition to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction filed May 21, 2019 (Dkt. No. 19). On May 22, 2019, the court held a hearing on the motions at which all parties were represented by counsel. Having considered the motions, responses, attachments to all pleadings, the exhibits presented at the hearing, the applicable law, and the arguments of counsel, the court will grant the motion to dismiss for the reasons to follow.
I. BACKGROUND
At the opening of the 86th Legislative Session, the Texas House of Representatives unanimously passed House Rule 5, which restricts the issuance of media credentials and the accompanying right to sit in the press seating area on the House floor to an employee of a news organization determined to be "principally a general news organization" whose "publications ... are editorially independent of any group ... that lobbies the government or that is not principally a general news organization." Tex. H.R. 5, § 20, 86th Leg., R.S. (2019). On January 29, 2019, the House granted Defendant Charlie L. Geren ("Geren"), Chairman of the Committee on House Administration the authority to act on the Committee's behalf in matters involving the management of House facilities, coordination with House support personnel, and general enforcement of the House policies and procedures. The Committee on House Administration is tasked under the House Rules "with jurisdiction over ... administrative operation of the house and its employees ... [and] all admissions to the floor during sessions of the house." Tex. H.R. 3, § 16, 86th Leg., R.S. (2019). In that capacity, the Committee receives applications from media representatives and issues pass cards to qualifying applicants for purposes of access to the press area on the floor of the House, while the House is in session.
*740Plaintiff Empower Texans, Inc. ("Empower Texans") publishes a variety of news products, including the Texas Scorecard, a news magazine published in print to subscribers across Texas on a bi-weekly basis during sessions of the Texas Legislature and monthly during the interims. Texas Scorecard articles are also published online on a daily basis, as a weekly email digest, and on social media through the Empower Texans Facebook page, which has over 202,700 followers. This is no small number, Empower Texans contends, because it is more followers than all but four of Texas's largest daily newspapers. Empower Texans also produces a variety of other news products, including a weekly radio program, a weekly online video broadcast, and a daily email news digest.
Empower Texans characterizes its relationship with Geren as antagonistic. Occasionally, the dispute has spilled into the public eye on social media, as when Geren tweets aggressively at employees of Empower Texans. Empower Texans posits Geren's distaste stems from Empower Texans' endorsements of Geren's challengers in Republican primaries, as well as Empower Texans' grading of Geren's performance on the organization's Fiscal Responsibility Index.
On January 3, 2019, Plaintiffs Brandon C. Waltens and Destin R. Sensky, reporters for Empower Texans, each submitted media-credentials applications to the Texas House and Texas Senate. A media credential would allow Waltens and Sensky to access the press area on the floor of the House, near the Speaker's dais, as well as access to the area around the rail surrounding members' desks. Empower Texans' claims the press area provides a superior vantage point than that available from the public gallery. The press area also provides a superior auditory advantage: it allows reporters to listen to side conversations between members. The Senate, which has a different standard for press credentials than the House, immediately issued credentials to Waltens and Sensky. On January 4, 2019, Geren sent letters to Waltens and Sensky informing them that their applications for media credentials were denied, because Texas Scorecard is associated with an organization that advocates for matters before the Legislature.
It is [sic] has come to my attention that the organization you are employed by, Texas Scorecard, has a close association with a general-purpose political committee (GPAC) and that the organization's website prominently display advocacy on policy matters before the legislature. Based on this information, I believe that you are not eligible for a media credential.
Geren explained that eligibility for a news-media credential is determined in accordance with House Rule 5. Geren remarked that, "[a]ccording to records available on the Texas Ethics Commission website, a GPAC with the name Empower Texans PAC is located at the same address given for your employer." Based on this information, Geren surmised that "Texas Scorecard is not an entity 'whose publication or operations are editorially independent of any institution, foundation, or interest group that lobbies the government or that is not principally a general news organization.' " Geren concluded that "it is my determination *741that you are not eligible for a news media credential based on Rule 5." Geren ended the letter with the following: "[i]f you believe this determination has been made in error, please feel free to provide me with any additional information you feel is relevant to the determination."
Empower Texans claims Geren's letter-down to the typos-matches a 2017 letter denying media credentials to employees of Empower Texans. In 2017, Empower Texans was denied media credentials, in part, because the presence of a "GPAC located at Empower Texans' address." Empower Texans alleges that the facts changed between 2017 and 2019. Importantly, Empower Texans claims that when Geren sent the January 2019 letter, Empower Texans PAC was registered with the Texas Ethics Commission at an address in Cove, Texas that was not associated with Empower Texans. Empower Texans surmises that Geren's use of an outdated address as the reason for denying press credentials is evidence of Geren's bad faith and proof of a pretense to cover for his viewpoint discrimination against Empower Texans.
A several-month back-and-forth ensued between Empower Texans and the House Business Office. In response to a letter sent by Empower Texans, on February 26, 2019, the Business Office wrote the following information potentially indicating that Empower Texans' applications were still under review:
To process their applications, I need additional information to verify their eligibility under Rule 5 Section 20 of the Rules of the Texas House. Can you please provide me with information sufficient to verify that Empower Texans Inc. d/b/a Texas Scorecard is editorially independent of any institution, foundation, or interest group that lobbies the government or is not principally a general news organization?
Empower Texans followed up with several letters, including information on Empower Texans' status and the organization's concerns about the breadth of House Rule 5. Empower Texans also sought to clarify whether their applications for media credentials had been denied or were still being processed. Empower Texans contends that the Business Office never provided a meaningful response to its letters.
Empower Texans commenced this lawsuit on April 16, 2019. In an amended complaint filed May 14, 2019, Empower Texans sues Geren in his official capacity under Section 1983
Geren responded on May 16, 2019, with a motion to dismiss Empower Texans' action. See Fed. R. Civ. P. 12(b)(1), (6). Geren argues that the doctrine of absolute legislative immunity requires immediate *742dismissal of this action, because Geren is immune from suit for any press-credential decisions made under the House Rules. Thus, any consideration of the merits of Empower Texans' claims or the constitutionality of Geren's actions would be an impermissible encroachment on the Texas Legislature. Geren also moves to stay consideration of the emergency relief requested by Empower Texans until this court resolves Geren's claim of legislative immunity.
II. LEGISLATIVE IMMUNITY
State legislators are entitled to "absolute immunity from civil liability for their legislative activities." Bogan v. Scott-Harris ,
The purpose of legislative immunity "is to insure that the legislative function may be performed independently without fear of outside interference."
Though "[t]he heart of the Clause is speech or debate in either House," immunity extends to protect matters that are "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation." Gravel v. United States ,
Speech or Debate Clause jurisprudence demonstrates that a legislator's acts qualify as legitimate legislative activity where, as here, those acts are "part of the legislative process itself" and directed toward the internal workings of the legislative process. Brewster , 408 U.S. at 528,
The First and Seventh Circuits have considered state rules governing floor access in state legislatures. See Nat'l Ass'n of Soc. Workers v. Harwood ,
*744In Harwood , a group of private, non-profit organizations sued the speaker of the Rhode Island House of Representatives.
The court also rejected the as-applied challenge to the rule under the First and Fourteenth Amendments. The court analogized the as-applied challenge to arguments made and rejected by the Supreme Court in Eastland. In Eastland , plaintiffs argued that " 'once it is alleged that First Amendment rights may be infringed by congressional action the Judiciary may intervene to protect [First Amendment] rights.' "
In Reeder v. Madigan ,
In Consumers Union of United States, Inc. v. Periodical Correspondents' Ass'n , *745Consumer Reports magazine was denied access to Congress's Periodical Press Galleries based upon rules of the Senate and House.
III. APPLICATION
The first issue before this court is whether the House's rule governing access to the press area on the floor of the House while the House is in session is an integral part of the communicative and deliberative processes of the House and shielded from challenge by legislative immunity. House Rule 5 restricts the issuance of media credentials and the accompanying right to sit on the House floor to employees of an editorially-independent entity that is "principally a general news organization." House Rule 5 is "part of the legislative process," designed to protect the integrity of the legislative process more broadly by preventing those not associated with a general news organization from accessing the floor of the House during deliberations. A rule restricting access to the House floor and to the railing surrounding members' desks "necessarily affects the manner in which the House conducts its most characteristic legislative functions, e.g. , debating and voting," and "comprises 'an integral part of the deliberative and communicative processes.' " Harwood ,
Empower Texans also challenges the application of House Rule 5 to it, claiming that Geren engaged in viewpoint discrimination when Geren denied Empower Texans' application for press credentials.
In Bryan , the court evaluated a series of actions by local officials-the mayor, city council, and alderman-that were alleged to have thwarted a proposed apartment development in a constitutionally significant way.
*746The first test focuses on the nature of the facts used to reach the given decision. If the underlying facts on which the decision is based are "legislative facts," such as "generalizations concerning a policy or state of affairs," then the decision is legislative. If the facts used in the decision making are more specific, such as those that relate to particular individuals or situations, then the decision is administrative. The second test focuses on the "particularity of the impact of the state action." If the action involves establishment of a general policy, it is legislative; if the action single[s] out specific individuals and affect[s] them differently from others, it is administrative.
This court does not view the guidelines applied in Bryan as providing guidance to the facts of this case. The court emphasized that it was not adopting the test Cutting used in the local zoning context as the test for legislative immunity, but rather "us[ing] the [test] as general guidelines" in a factually analogous case. Bryan ,
Empower Texans argues that Geren's action does not involve the determination of a policy, but rather is directed at Waltens and Sensky alone, and thus is not a legislative act. See Bryan ,
A rule controlling those who have access to the press area on the House floor and the railing surrounding members' desks "necessarily affects the manner in which the House conducts its most characteristic legislative functions, e.g. , debating and voting," and "comprises 'an integral part of the deliberative and communicative processes.' " Harwood ,
Empower Texans next argues that the Court in Supreme Court of Virginia adopted the standard that enforcement of a rule is not a legislative action. The Court "made no such pronouncement." Reeder ,
Empower Texans also argues that Consumers Union , Harwood , and Reeder are readily distinguishable from this case because no allegations were made that the legislators acted in bad faith in refusing to issue a press pass. The Supreme Court has consistently stated that "the motive or intent of the official" is irrelevant when considering the application of legislative immunity. Bogan ,
have been charged with losing sight of their duty of disinterestedness. 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. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.
Tenney ,
IV. CONCLUSION
Legislative immunity protects legislatures and legislators in establishing and applying rules that they deem most conducive to conducting legislative business. House Rule 5, which regulates who may access the press area on the floor of the House and the railing around the members' desks during deliberations, necessarily affects the manner, tenor, and nature of those deliberations. House Rule 5's application, necessarily plays an integral role in ensuring that the core legislative functions-such as debating, voting, speech making, and the deliberative process itself-are not disrupted by those who have a stake in advocating for the very legislation being deliberated on the floor. Geren is entitled to absolute legislative immunity from suit, and Empower Texans' claims must be dismissed without consideration of the merits of Empower Texans' underlying claims.
Absolute legislative immunity-as the name suggests and as applied by the Supreme Court-sweeps quite broadly, and it *748can be read to protect a great deal of behavior that is "part and parcel" of the legislative process. Gravel , 408 U.S. at 626,
IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss Plaintiff's First Amended Complaint filed May 16, 2019 (Dkt. No. 11) is GRANTED.
IT IS FURTHER ORDERED that Empower Texans, Inc., Brandon C. Waltens, and Destin R. Sensky claims against Charlie L. Geren, in his official capacity as Chairman of the Committee on House Administration of the Texas House of Representatives are DISMISSED with prejudice as barred by legislative immunity.
In light of the above, the court does not reach Plaintiffs' requests for emergency relief.
The press credentials were requested by Waltens and Sensky individually, and Geren's letters were sent to them individually. For simplicity, the court will refer to the requests jointly as press credentials for Empower Texans. Additionally, because the interests of Plaintiffs do not diverge, they will be referred to collectively as "Empower Texans," except as needed for clarity.
Congress passed Section 1983 of Title 42 of the United States Code in 1871, which entitles an injured person to relief if a state official violates his or her constitutional rights.
Because of the few remaining days in the Regular Session of the 86th Legislature, the court DENIES Geren's motion to stay (Dkt. No. 13) and entertains argument on both Plaintiffs' request for emergency relief and Defendant's motion to dismiss.
The standards for considering a motion to dismiss are well established and will not be repeated here.
Empower Texans contends that Geren has not conclusively denied the requested press credentials. Geren's January 4, 2019 letter states "it is my determination that you are not eligible for a news media credential based on Rule 5." However, the letter was written before the 86th Legislature convened. Empower Texans has unsuccessfully attempted to resolve the dispute through the House Business Office. This places at issue the question of whether there is an actual case or controversy in the absence of an unequivocal denial. The fact remains, however, that the credentials have not been issued, in spite of a timely request having been made. For purposes of this order, the court presumes without deciding that the request has been denied.
The issues before this court have been presented in the context of absolute legislative immunity. Broader issues are present here. Should a United States District Court interfere with the internal operating procedures of a legislature of a sovereign state, or should the court refrain from doing so under the doctrine of separation of powers or federalism as applied to the relationship between the states and the federal republic or both? The court leaves these questions unanswered.