Legal experts said a district court judge should have refused to hear a case brought by state Senate candidate Brian Birdwell, R-Granbury, who sought in late April to prove in court that he met residency requirements.

On April 20, Birdwell petitioned the Hood County District Court to issue what’s called a declaratory judgment, but in his lawsuit he didn’t name any other parties.

Six days later, Judge William Brigham, a retired appeals court judge assigned to the case, affirmed that Birdwell had been a state resident for the past five years, thus meeting a constitutional requirement for Senate candidates.

Granbury Republican Brian Birdwell is in a runoff for the state Senate seat vacated by Kip Averitt.

But the finding is undermined by the fact that only one party, Birdwell, was named in the case, according to several Baylor University Law School professors and lawyers asked to review it.

Only Birdwell’s attorneys made arguments and submitted evidence to the judge, and potential parties, including Birdwell’s three special election opponents, weren’t notified before the proceedings.

And documents Birdwell’s opponents have argued show he isn’t eligible to run weren’t presented to the court.

Austin lawyer Buck Woods, an election law specialist, said the case lacked a necessary component for a lawsuit: a genuine controversy between two or more parties.

“It was shocking to me a state district judge would do anything like that,” Woods said, likening the ruling to a jurist issuing a judgment that somebody is “a good guy.”

Leading up to the hearing, Birdwell and one of his opponents, David Sibley, tussled over the issue of eligibility.

Sibley’s campaign unearthed Virginia voter-registration records that showed Birdwell signed up to vote in that state in 2004 and voted as recently as 2006.

Birdwell’s campaign fired back, criticizing Sibley for claiming a property tax exemption on his Austin house available only to Travis County residents while maintaining he was a Waco resident.

Sibley campaign officials unsuccessfully argued that Secretary of State officials should leave Birdwell off the ballot because of eligibility questions, but neither Sibley nor two other candidates lodged a formal court challenge to Birdwell’s candidacy.

Records left out

In the April hearing, Birdwell’s attorneys submitted 90 pages of evidence, including news articles referencing the eligibility fight between Birdwell and Sibley. But Birdwell’s attorneys did not include the Virginia voting records.

“This type of one-party proceeding — where a party sues nobody and asks a judge a question — seems to be in grave tension with the proper role of the courts at either the state or federal level,” Baylor law professor Rory Ryan said in an e-mail.

“No matter how important or interesting a question is, courts are prohibited by the Constitution from answering a question until it comes to them in the form of a dispute among adverse litigants,” Ryan said.

Attacking suit authority

Baylor law professor Jim Wren said that because only Birdwell was named in the petition, the Granbury Republican lacked standing, or legal authority, to bring suit.

When asked Tuesday to respond to questions about the case, Brigham said, “I’ll have absolutely no comment whatsoever.”

Brigham was assigned to the case after Hood County District Judge Ralph Walton recused himself.

A Birdwell spokeswoman didn’t directly respond to questions about legal proceedings, though she said Sibley was orchestrating “a whisper campaign” to discredit Birdwell when it comes to eligibility questions.

An attorney for Birdwell said she wasn’t authorized to respond to questions but forwarded them to Rene Diaz, a former district judge from San Antonio.

Never challenged

According to Diaz, critics of the Hood County ruling have not shown one-party declaratory judgments are prohibited under the state’s Declaratory Judgment Act, even if they’re unusual.

“Could it be challenged? Maybe,” Diaz said, before noting that no one has done so.

“I think that the unwillingness to challenge it proves that Birdwell was essentially right on the residency issues,” he said.

Whether a challenge would be necessary is an open question. Critics of the ruling have argued that the case, because it involved just a single party, is void.

“Imagine your surprise if you found out your neighbor had just obtained a judgment that somehow bound you but you never had a chance to show up with your lawyers and defend (yourself),” Ryan said.

“Well, due process prohibits that from happening, and it’s certainly not true that judges can get around this by issuing declaratory judgments in one-party cases.”

mshapiro@wacotrib.com

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