Thursday, August 23, 2012

 
RUNNING THE CLOCK IN THE BEGUM/GARCIA ELECTION CONTEST

ADDENDUM:  I got so wrapped up in explaining the process I  forgot my to make my point.  All of these motions filed by Erin Garcia's counsel are simply to run the clock.  On Notice to the SOS, all Mike Cowen needs to do is certify he has provided notice.  He can provide notice in the morning.  On the issue of failing to state a claim, if the motion is valid Mike Cowen simply needs to amend before the hearing.  If he waits until being ordered to do same, it is then Mike allowing the clock to run.

Apparently Mayor Martinez's law partner has decided to represent Erin Garcia - so the Herald says.  I am not sure what was filed in the case, because I have not seen it.  If it is true that Michael Cowen failed to follow Section 241.003 of the election code, it will blow my mind.  If the allegation is true, Judge Banales lacks jurisdiction to proceed until the Secretary of State is noticed. 

 http://law.onecle.com/texas/election/241.003.00.html

I did some quick legal research on this issue and cannot find wherein this has been an issue on appeal/mandamus in the past.  The SOS is a mandatory person to be noticed.  You cannot normally proceed in a lawsuit until all the parties are served. Is noticed the same as served for jurisdictional purposes.  I do not know.   It is possible the appellate court could find this is not jurisdictional.

If the allegation is true, it is consistent with the other part of Erin's defense.  Michael Cowen has failed to specifically plead a cause of action.

If want to see how an election contest is done - read this

http://www.alicetx.com/news/article_ed5a435e-c7de-11e1-8bfc-0019bb2963f4.html

It seem to me Michael Cowen did not bother to read the election code before filing the lawsuit.  Judge Banales' cannot dismiss the lawsuit on this issue.  It sounds like a Special  Exception has been filed, but I am not sure.  The issue concerning the SOS should be a Plea to the Jurisdiction.  If the court has no jurisdiction until the SOS is noticed with a copy of the lawsuit, then Judge Banales cannot act other than to abate the lawsuit until the statutory requirements are met.  If he does act, Erin Garcia would have a solid mandamus.  Hopefully her attorney knows questions of law in an election contest are taken on mandamus and not appeal. 

On the issue of failure to state a claim, the court must provided the plaintiff an opportunity to cure before dismissal of the lawsuit.  The problem is, in this case it may be moot by that point.  If Michael Cowen had a half a brain he would read the election code and properly plead the case before it comes down to a hearing. 

The clock is running, and of course instead of blaming herself and her son for failing to hire a qualified attorney in Election Contests Yolanda Begum will blame Tony Martinez and the Democratic Party.  This is what is lost on Yolanda Begum, being a judge or good attorney is not about a result.  It is never about the result.  Justice is not the result.  Justice is loyalty to the process.  Sometimes the process will get it wrong, but on balance it does not.  This is what separates the US from tyrannies. 

9 comments:

Anonymous said...

check out Texas Election Code
1.006, 145.032. Administratively, the last day and time to take a name off the Novenber ballot is today at 5pm. The only thing lacking is a motion to dismiss on Monday the 27th with Judge Banales.

BobbyWC said...

§ 145.032. DEADLINE FOR WITHDRAWAL. A candidate may not
withdraw from the general election after the 74th day before
election day.


I could be wrong, but withdrawal from a race by the candidate may not be the same as a judge ording same.

I'm trying to check how the court of appeals in the pena hernandez made their calculations - right now I cannot seem to access their page - the second I access it I will post something as a comment

Anonymous said...

I am not a lawyer, but I do believe it says withdraw or be removed for cause. Please check

BobbyWC said...

again second post of the statute you reference

§ 145.032. DEADLINE FOR WITHDRAWAL. A candidate may not
withdraw from the general election after the 74th day before
election day.

BobbyWC said...

If you click her you might be able to see the pena opinion - they chose a date of 45 days before the election - when mail ballots are sent - they could have backed it out even more for printing. Ruben did not even inform the court that the Texas Constitution had changed and thereby the law they were using was no longer valid - he did some 40 days later ask the Texas Supreme Court to intervene - it was too late at that point

Bobby WC

Anonymous said...

Have you all seen the election calendar on the Texas Sec of State website: http://www.sos.state.tx.us/elections/candidates/guide/dates.shtml

According to the site, it does say that Aug 24 is the "Last day candidates may withdraw OR BE DECLARED INELIGIBLE FROM GENERAL ELECTION."

The site references: Tex. Elec. Code Ann. §§ 1.006, 145.032.

Thanks for your coverage of this interesting issue...

BobbyWC said...

First of all thanks for submitting a link to support your argument - with me such an act could lead to a love affair - the word ineligible could be key - I am not saying you are right or wrong - I simply do not know and am not willing to do the research -

When you call the SOS office it seems many people seem to think the federal court order concerning redistricting has changed some of the standard dates - I guess when it becomes a question of law the SOS will take a position

Bobby WC

Anonymous said...

Another relevant statute:

Tex. Elec. Code 145.039 ("If a candidate dies or is declared ineligible after the 74th day before election day, the candidate's name shall be placed on the ballot.")

So I would think there's a mootness problem--i.e. even if the Court takes as true all of the Plaintiff's allegations, for the sake of argument, the Court still cannot grant the relief requested (ordering the removal of Erin's name from the ballot) after August 24, 2012, due to Section 145.039. Admittedly, I'm no expert, so I could also be wrong...

BobbyWC said...

The term ineligible to me means, you do not meet the requirements to be a candidate - felony conviction - living in the district - things like that - but I do not know - we shall see if there is a hearing on Monday or Tuesday

Bobby WC