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Empower Texans, Inc. v. Geren

United States District Court, W.D. Texas, Austin Division

May 23, 2019

EMPOWER TEXANS, INC., BRANDON C. WALTENS, AND DESTIN R. SENSKY, PLAINTIFFS,
v.
CHARLIE L. GEREN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE COMMITTEE ON HOUSE ADMINISTRATION OF THE TEXAS HOUSE OF REPRESENTATIVES, DEFENDANT.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

          LEE YEAKEL UNITED STATES DISTRICT JUDGE

         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 Plaintiffs 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.

         Plaintiff 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.[1] More specifically, Geren wrote:

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 that 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[2] and the Declaratory Judgment Act. See 42 U.S.C. § 1983; 28 U.S.C. §§ 2201, 2202. Empower Texans makes two claims: (1) Geren engaged in viewpoint discrimination in violation of the First Amendment when he refused to grant Empower Texans a House press credential; (2) Geren violated Empower Texans' procedural due process by not following the procedures in the House rules for issuing or denying press credentials. On May 16, 2019-with the Texas legislative session poised to end in nine days-Empower Texans moved for a temporary restraining order and preliminary injunction enjoining Geren from denying Empower Texans access to the floor of the House for the remainder of session. Empower Texans also seeks an order requiring Geren to issue House press credentials to Empower Texans.

         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 dismissal 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.[3] Because prevailing on the legislative-immunity claim would require dismissal of this action, the court first considers that claim. See e.g., Reeder v. Madigan,780 F.3d 799 (7th Cir. 2015) (affirming dismissal of claims where defendants were entitled to legislative immunity); Nat7 Ass 'n of Soc. Workers v. Harwood,69 F.3d 622, 635 (1st Cir. 1995) ("[T]he doctrine of absolute legislative immunity requires that the federal courts refuse to entertain the suit."); Consumer's Union of U.S., Inc. v. Periodical Correspondents' Ass'«., 515 F.2d 1341, ...


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