CAUSE NO. 99-_____

IN THE DISTRICT COURT
OF TRAVIS COUNTY, TEXAS





TEXANS UNITED EDUCATION
FUND, INC., DOWNWINDERS AT
RISK, and RICK ABRAHAM, ROGER
BAKER, and JIM BALDAUF,

Plaintiffs

v.

GEORGE W. BUSH,
GOVERNOR OF TEXAS, and TEXAS
DEPARTMENT OF PUBLIC SAFETY
and its Commisioners, James B. Francis,
Robert B. Holt, and M. Colleen McHugh,

Defendants





PLAINTIFFS' ORIGINAL PETITION

  1. Plaintiffs seek declaratory and injunctive relief as specified below. Discovery is intended to be conducted under Level 3 of the Texas Rules of Civil Procedure 190.

INTRODUCTION

  1. In violation of the Texas Constitution, Texas state police have been authorized and encouraged to exclude people who peacefully express opinions on the public sidewalk outside the grounds of the Governor's Mansion, and to arrest people who assert the right to free speech as protected by Article I of the Texas Constitution. On at least four days since March 1999, environmentalists from several groups -- all speaking out for clean air, critical of state policies encouraging industrial pollution -- have been ordered off the sidewalk, with several people arrested and jailed.
  2. These arrests came during a time of vital legislative action, which almost resulted in passage of laws to clean Texas air. Industrial polluters won that round, while environmentalists were locked up when they could have been educating the public or lobbying on the issues.
  3. Following the second day of arrests in March, the first protester jailed notified Governor Bush that citizens would return to the public sidewalk to express their views. The Governor was assured that citizens would not block the sidewalk or interfere with people going to and from the Mansion. The Governor was asked to notify the Department of Public Safety to prevent further arrests and respect the citizen’s state constitutional rights to express their opinions. Following this notification, citizens returned, did not block the sidewalk, but were arrested and jailed again. While environmentalists were jailed, the Governor of Texas held a televised press conference in which he expressly stated "support" for the exclusionary policy, and sending protesters to prison.
  4. "The rules have changed," said the Governor, when asked why police officers excluded, then arrested and jailed people walking peacefully on the sidewalk. But later, when asked for any rules in writing, both the Office of the Governor and the Department of Public Safety said there were none. Officials of both the Office of the Governor and the Department have stated that the decision how to enforce the hidden rules, including the decision whether to arrest people, is left entirely to officers on the scene. Thus, state police have unbridled discretion to make up, enforce, and change rules affecting the expression of opinions.
  5. Months after the jailings, Travis County's attorney has announced that the state will not prosecute the actual charges made to arrest and jail the environmentalists -- because there was no violation of any law. Ominously, however, the County's attorney reported that the Department still asserts the right to bring new charges against these same people, and admits the decision to bring the charges would depend on whether the people continue to seek to express their opinions, however peacefully. Thus the Department claims an open-ended right to prosecute the individual Plaintiffs, if they stand on the sidewalk and criticize the Governor.
  6. These hidden rules that essentially give unlimited police discretion to exclude and arrest critics, when they make criticism in public, violate Texas Constitutional rights to free speech, petition, equal protection, due process, and freedom from unreasonable seizures.
  7. Plaintiffs bring this case to secure these state constitutional rights, because public sidewalks provide an important way to communicate with the public, including messages explaining the vital need for clean air.

PARTIES

  1. Plaintiff Texans United Education Fund, with an office in Houston and active across the state, for more than a decade, has brought together communities of people trying to protect themselves from industrial pollution. Tens of thousands of Texans have supported this work. Frequently, educational efforts involve individuals and small groups peacefully walking on public sidewalks, displaying small signs and handing out literature. This activity is made more difficult when members, staff and volunteers are excluded from the sidewalk at the Governor's Mansion, on pain of arrest.
  2. Plaintiff Downwinders At Risk, headquartered in Cedar Hill and active in Ellis, Dallas, and Tarrant counties, has organized families and individuals adversely affected by state actions that increase air pollution. The public sidewalk is an important place for Plaintiff to reach and educate potential supporters.
  3. Plaintiffs Rick Abraham of Houston, Roger Baker of Austin, and Jim Baldauf of Austin each were arrested by state police after they sought to express opinions on the sidewalk at the Governor’s Mansion, despite the fact that they broke no law.
  4. Defendant George W. Bush is Governor of Texas. He has the duty and authority to uphold the Constitution of Texas. He has been involved in developing, and supports, the arbitrary, hidden rules challenged in this case, and has approved the specific enforcement of the these rules against Plaintiffs. He has a residence at the Governor’s Mansion, in Austin, Texas.
  5. Defendant Texas Department of Public Safety is charged to enforce the law consistently with the Texas Constitution. Its staff has been involved in developing the arbitrary, hidden rules challenged here, and its officers have enforced the challenged rules without guidelines. Defendants James B. Francis, Robert B. Holt, and M. Colleen McHugh, appointed by the Governor, are the Public Safety Commissioners, with duty and authority to assure that the Department upholds the Texas Constitution. The Department has a main office in Austin, Texas.

FACTS

  1. Plaintiffs advocate for Texans who want to breathe clean air. They believe the Governor, his appointees, and the Legislature have allowed pollution in our state to reach dangerous levels, and the government's course will bring more pollution that harms us all. To educate public officials, and the public, these environmentalists and others repeatedly have traveled to Austin, and conducted peaceful rallies. Four times environmentalists chose to express opinions peacefully and lawfully on the sidewalk outside the Governor's Mansion, and each time one or more was arrested – precisely because they exercised the right to free speech guaranteed by the Texas Constitution.
  2. Until this year, for decades, this sidewalk at the Governor's Mansion has been the regular site of press conferences, rallies, informational pickets, and protests by people with opinions on many issues. In addition to being near the Mansion, this sidewalk has the advantage of being a common path for persons traveling to and from Capitol Hill. Physically, the sidewalk is similar to other public sidewalks in Austin, and in other cities. Nothing posted at or near this sidewalk -- indeed, nothing posted anywhere -- remotely suggests that people on this sidewalk are at all prohibited from exercising their right to free speech.

The New, Arbitrary, Hidden Rule Against Free Speech

  1. However, starting in March 1999, some people exercising their constitutional rights on the Governor's Mansion sidewalk have been punished. Police officers have said some people must leave the sidewalk, on pain of arrest, because they are expressing an opinion, while others have been allowed to remain. According to state officials, pedestrians are not excluded; instead, the new rules exclude only persons exercising their rights to free speech.
  2. Texas Department of Public Safety spokesmen confirm that officers have been given authority to arrest people if, for example, the person carries a small sign on the sidewalk. However, even this unwritten policy is selectively and arbitrarily enforced. While some people have been arrested, others doing the same thing at the same time were not arrested.
  3. People regularly walk, meet and talk, read newspapers, take pictures, and otherwise use the sidewalk without intrusion by police officers. The effort to restrict speech was illustrated one day when the environmentalists were arrested; police asked a woman if she was a protester and, being told no, let her stay on the sidewalk.
  4. No specific guidelines tell officers who is or is not to be excluded or arrested. Instead, as a Department spokesman explained, police officers have unlimited discretion to arrest, even if all a person does is carry a small sign. Thus, on May 25, one spokesman stated: "I think if you've got one or two people carrying signs I think probably they will let it slide, but there's no guarantee of that." This was quoted in newspaper accounts, among those attached as Exhibit A and incorporated by reference. Newspaper, radio, and television accounts provide the only information about the new policy that has been made available to the public.
  5. The contents of the rules are hidden, and unknown. Nothing in writing tells the police, much less citizens, who -- or what -- is or is not allowed on the sidewalk.
  6. On June 9, 1999, the American Civil Liberties Union of Texas wrote to the Governor, asking for any writing concerning what rules govern "people who picket or demonstrate on the sidewalks surrounding the Governor's mansion". On June 23, an Assistant General Counsel wrote that "[t]he Office of the Governor does not have any materials responsive to your request." (Exhibit B, incorporated by reference)
  7. The ACLU also wrote the Texas Department of Public Safety, seeking any writing relating to "protesting outside the Governor's Mansion". On August 10, the Assistant Chief for Legal Services responded that "[t]he Department does not have any records in response to your request." (Exhibit C, incorporated by reference)
  8. ACLU's Executive Director then called the Department's designated contact, Allen Smiley, explained that many Department spokesmen had referred to new rules regarding free speech on the sidewalk, and again asked for anything in writing. The Mr. Smiley promised to check again, later calling to reaffirm -- there is nothing. Nor was there ever an official announcement that new rules were being considered, much less adopted.
  9. But there are, indeed, new rules. At a televised press conference on April 19, 1999, the third day of arrests, Governor Bush confirmed: "the Rules have changed". The Governor gave his approval, stating "I support the decision to change the rules". Most disturbing in light of the total lack of anything in writing, the Governor stated there are "Rules of Access now; people have just gotta understand what the Rules are."
  10. A Department spokesman stated the rules were changed by a Lieutenant. They have not been published. Despite the potential criminal implications, they were not adopted by the legislature. Still, according to the Governor, whatever they may be: "The rules are fair".
  11. However, there is no proper reason for new rules suppressing free speech, no consistent reason has even been given. Both the Governor and Department of Public Safety officials have claimed the new rules reflect on-going construction at the Governor's Mansion. However, when construction was done, it took place beyond a locked iron gate that separates the public sidewalk from the Mansion and grounds. The sidewalk, and indeed the grounds, have been used by the public during the same period of construction.
  12. Under the new rules, whatever they may be, environmentalists walking in small groups, or even alone, repeatedly have been told they must leave the sidewalk, or be arrested – even when there were no construction activities. This is no idle threat: on at least four different days, environmentalists have been arrested when they did not leave the sidewalk fast enough to suit state police officers. These are by no means random arrests. Each day many police officers, sometimes more officers than environmentalists, made arrests under watchful eyes of supervisory officers as well as unidentified officials.

The Arrests

  1. On March 11, 1999, some two dozen environmentalists including from all over Texas gathered at the sidewalk outside the Governor's Mansion. Including members of Downwinders at Risk, they stood in opposition to an impending decision to allow the burning of hazardous waste. They hoped to influence the Governor, who appointed those who would grant the polluter permission. They brought petitions with thousands of signatures, as well as signs and personal costumes.
  2. Officers on duty refused to allow the environmentalists to spread the petition along the edge of the sidewalk. The protesters asked if they might hold the petition in their hands, and stand in a long line at one side -- not blocking, but hopefully educating passers-by. Department of Public Safety officers, accompanied by unidentified men in blue suits, told them to leave the sidewalk, or they would be arrested. The protesters decided to pack up and leave, and most did.
  3. One of the last few protesters did not leave fast enough. She had come with Downwinders at Risk, people who lived downwind from dangerous polluters, and was dressed as a smokestack, to illustrate the problem. As she was in the process of removing her costume, a state police officer grabbed her arms, placed her under arrest, and handcuffed her. After her costume was removed, she was forced into the squad car.
  4. This woman, active with her PTA and so called the PTA Mom, had come from near Dallas with her 12 year old son, a diabetic, and he had just gone to the bathroom at the Capitol, several minutes away. The officer ultimately released the woman, but only on the following condition: "get off this property and not come back".
  5. Two weeks later, on March 29, came the first day of legislative hearings on a "voluntary compliance program" for industrial polluters, much criticized by environmentalists. Some 50 Texans gathered at the Governor's Mansion to voice disapproval. As with the other group, state police threatened to arrest people who did not leave the sidewalk. Most then left because they could not risk arrest -- they needed to go to the Capitol to lobby.
  6. Rick Abraham did not leave fast enough. The last environmentalist on the sidewalk, he was arrested and charged with "blocking a passageway", even though he clearly was not blocking anything, all by himself. At the time of his arrest, he was walking away from the Mansion entrance, which was not even open. The police handcuffed him, put him in the squad car, and took him to jail -- where he was held overnight.
  7. On April 19, 1999, environmentalists active with many groups, including Texans United Education Fund, returned to the Governor's Mansion. Once again, they sought peacefully to call for clean air. The Department responded with more police than environmentalists.
  8. The police announced that environmentalists could not stay on the sidewalk. Then, almost immediately, police arrested four people, including Roger Baker. They were handcuffed, placed in the squad car, and hauled off to jail. Many hours later they were charged with obstructing a passageway, which they had not done; after nearly 10 hours in jail, they were finally released.
  9. On May 25, environmentalists returned to the sidewalk, to express their concerns about Texas environmental problems. Again they were entirely peaceful. Again they were told to leave the sidewalk. This time police arrested Jim Baldauf.
  10. Like the others, he was handcuffed, placed in the squad car, and taken to jail, where he was held overnight. The next day, upon being released, he was told that he never had been charged with anything.

All Charges Dropped, But Threats Of Prosecution Remain

  1. As reported in the press (Exhibit A) on August 13, 1999, Travis County reported it would not pursue the criminal charges against the environmentalists -- because the charges have no merit. However, the Department has threatened to find some other law to prosecute if the environmentalists continue to express their opinions on the sidewalk.
  2. Meanwhile the Governor continues to support unlimited discretion for the police to arrest protesters. According to the Governor's spokeswoman, "it's [the police officer's] decision about whether [people expressing opinions] should be arrested."

CLAIMS

  1. During the last days of the legislative session in May, environmentalists came close to winning the battle for mandatory compliance with air pollution standards. The protests may well have influenced this debate. As their issues remain, Plaintiffs intend to return to Austin for further protest. They would like to be able to do so peacefully outside the Governor's Mansion, without fear of exclusion or arrest.
  2. Defendants’ use of arbitrary, hidden rules to exclude law-abiding citizens from expressing opinions on public sidewalks, and even to arrest peaceful advocates, violates basic rights under the Texas Constitution, particularly Article I §8 ("liberty to speak") & §27 (assembly & petition). See also §3 (equal rights), §9 (no unreasonable arrests), §19 ("due course of law") & §29 (Texas "Bill of Rights" cannot be violated by state agencies or officials).
  3. Plaintiffs therefore seek declaratory judgment to secure their rights to freedom of expression on the Governor’s Mansion sidewalk.
  4. Plaintiffs may seek a temporary injunction against enforcement of the unconstitutional rules pending resolution of this matter, upon further pleading. As appropriate, Plaintiffs will seek final injunctive relief.
  5. All conditions precedent have been performed or have occurred.

PRAYER FOR RELIEF

As specified above, this Petition seeks declaratory and injunctive relief, costs and attorney fees, and all other relief to which Plaintiffs may be entitled.

Respectfully submitted,

___________________

David A. Kahne
Attorney-in-Charge
SBN 00790129
Law Office of David A. Kahne
ACLU Cooperating Counsel
P.O. Box 66386
Houston, Texas 77266


Of counsel:

Terrill L. Flenniken
SBN 07136200
Law Offices of Terrill L. Flenniken
405 North Baylor
Brenham, Texas 77833

David Kairys
1719 N. Broad Street
Philadelphia, PA 19122

Attorneys for Plaintiffs