In re Newton et al., 146 S.W.3d 648 (Tex. 2004)
On October 18, 2004, the first day of early voting for the general election, Bobby Glaze and David Liebowitz, Democratic Party candidates for election to the Texas House of Representatives, districts 5 and 117 respectively, sued Associated Republicans of Texas Political Action Committee, an incorporated general-purpose political committee under TEX. ELEC. CODE § 251.001(14), and its treasurer, Norman F. Newton (collectively "ART PAC") for declaratory and injunctive relief in the 53rd Judicial District Court of Travis County, Texas.
The crux of plaintiffs Glaze and Liebowitz's argument was that for four years - since 2000 - ART PAC had been soliciting, accepting, and expending funds from other, unconnected corporations in violation of the Election Code, and that, if permitted to continue, such conduct would cause irreparable harm to the plaintiffs and diminish the public's faith in the Texas electoral process. On October 20, 2004, following a hearing at which the parties appeared by counsel but presented no evidence, the district court issued a temporary restraining order based solely on the plaintiffs' verified seven-page petition and counsel's argument. Curiously, and as D&W attorneys would later argue in its petition for writ of mandamus to the Texas Supreme Court, nothing in the plaintiffs' verified pleadings, which was the only evidence before the district court, suggested that the plaintiffs or anyone else had previously contested ART PAC's activities, even though they must be publicly reported.
The TRO prohibited ART PAC and others from soliciting, accepting, or spending corporate funds for fourteen days, the maximum period for which a TRO may issue. The district court set a temporary injunction hearing for November 3, the day after the general election, and after plaintiffs would no longer have the same incentive to pursue relief, having either won or lost their races. On October 22, 2004, ART PAC, represented by D&W Attorneys, petitioned the Texas Supreme Court for review by writ of mandamus. Based solely on written arguments, the Supreme Court granted mandamus relief to ART PAC.
While a TRO is normally not appealable, it argued that this was a matter of statewide importance as the election was already in progress; the issues were far from clear based on a brief, non-evidentiary TRO hearing; and ART PAC's substantial constitutional rights were being adversely affected. The Supreme Court agreed, stating, "[T]he plaintiffs' allegations raise important and difficult issues that have not been resolved by a trial on the merits. By granting a TRO on two days' notice after the election has begun, and by setting a temporary injunction hearing the day after the election is over, the district court has essentially made a final, non-appealable adjudication affecting ART PAC's right rights to participate in this election, rights that as ART PAC asserts, implicate its freedom of speech under the United States Constitution and the Texas Constitution." In re Newton, 146 S.W.3d at 652.
Based on the Supreme Court's direct orders, the district court vacated the TRO on October 26, 2004.
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