It’s hard to keep track of it all.
Houston GOP activist Steve Hotze and a coalition of business owners and conservatives have launched a legal challenge claiming Gov. Greg Abbott’s emergency orders related to the coronavirus violate the Texas Constitution.
In a 34-page emergency pleading filed Friday, lawyers for Hotze as well as three pastors, state Rep. Bill Zedler and five business owners ask the Texas Supreme Court to strike down the orders.
Abbott’s office did not immediately respond to a request for comment.
Attorney Jared Woodfill argued in the petition that the governor does not have the power to issue mandates that suspend state laws and that he should have convened the Legislature instead.
“Our senators and state representatives have been muted because Gov. Abbott has chosen to act as a king, and that is fundamentally unconstitutional and fundamentally wrong,” Woodfill said.
Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.”
[…]
Woodfill said the petitioners’ goal is to set the precedent for governors’ authority during future emergencies.
“What’s going to happen if we have a COVID-20?” Woodfill said. “Are we going to again surrender all our constitutional rights?”
It’s hard to keep track of all the lawsuits and petitions coming from the Hotze machine, but I’m going to try. He and this same cohort (more or less) had previously filed a lawsuit in Travis County against Abbott and Paxton over the statewide stay at home orders. This had followed a lawsuit filed in March against the Harris County stay at home order, which he then tried to get fast-tracked to the Supreme Court but was denied. He then filed another lawsuit against Harris County over the face mask order and sought an emergency ruling from the Supreme Court on it, but by that time Abbott had issued an order overriding local orders and forbidding the requirement that face masks be worn. It’s not clear to me if this pleading is related to the Travis County lawsuit against Abbott and Paxton or if it is a second front in their war on anyone who dares to try to tell them what to do under any circumstance. I’m also not sure if that Harris County lawsuit is still in effect or if it has been mooted by subsequent state actions.
All right, so that’s where I think we are now. I’ll say again, I think there are very valid questions to be asked about what powers the Governor does and does not have in emergencies. When must the Legislature be involved? What if any laws can be superseded or suspended by executive order, and under what circumstance? What power does the Governor have to unilaterally overrule cities and counties, whose executives have their own emergency powers? There’s plenty of room for robust debate on these topics, and I hope the Lege addresses some of them in the spring. It’s clear that the Governor – and Mayors, and County Judges – need to have some latitude to take quick action in times of crisis, but it’s equally clear there needs to be some limits on that, in terms of scope and duration and jurisdiction. I don’t want any Governor to have unchecked power, least of all Greg Abbott. I also don’t want a bunch of nihilistic cranks to have the power to disregard public health and safety with impunity. I don’t want the worst people in the world to be the ones asking the questions that will affect all of us going forward. I hope the Supreme Court is up to the task of responding to this.
What concerns me more right now is that, in the face of plunging oil prices as well as COVID costs, Strangeabbott hasn’t called a special session of the Lege to tweak the current budget.
This is another place where Texas’ Constitution sux. Beyond the every-other-year banana republic issue, unlike in many states, the Lege cannot call itself into special session if a gov won’t act.
Gadfly, that is a good point, but I don’t know if they are able to figure out what to do with the budget at this time.
HOTZE BACK IN TEXAS SUPREME COURT, BUT NOT PRAYING
The latest case filed by Hotze/Woodfill in the Texas Supreme Court does relate to the Travis County suit against Abbott, but it’s not a regular appeal. Abbott/AG filed a plea to the jurisdiction, but the trial court docket reflects no ruling on it as of Saturday 5/31/2020). Cause No. D-1-GN-20-002146 (98th District Court).
Instead, they are again jumping the gun into the Texas Supreme Court with a mandamus filings (which is distinct from an appeal from the presumably forthcoming grant of the defendant’s plea to jurisdiction). The mandamus case has been assigned case No. 20-0430, styled In re Steven Hotze,MD et al).
The SCOTX clerk promptly broadcast the news of Hotze’s latest filing via his Twitter account (short style “In re Hotze”), which tells you that the SCOTX is receptive to this sort of thing. It will be interesting to see what they do with it, given that this is an attack from the right on the Governor’s use of executive emergency power. Hopefully, there at least be some amici, but they might get short shrift like the numberous medical professionals in the mail-vote case.
By way of appellate trivia, Hotze’s petition has a CONCLUSION, but no PRAYER. Believe it or not, the Texas Rules of Appellate Procedure—promulated by the Supreme Court– require supplicants to conclude their briefing with a PRAYER. TRAP 38.1(j). There is no exception for pastors, several of whom are with Hotze on his petition. Perhaps they don’t like the notion of supreme beings on the state court of last resort.
STATE CONSTITUTIONAL CLAIMS ONLY
Interestingly, Woodfill doesn’t make any FEDERAL constitutional arguments and cites no federal cases. Note, relatedly, that the US Supreme Court last week rejected a challenge to a COVID-19 related executive order issued by the Governor of California that limited occupancy in churches to 25%. See South Bay United Pentecostal Church et al v. Galvin Newsom, Governor of California, et al. (590 U.S. ___ (May 23, 2020).
In that case, the complaining church alleged unconstitutional discrimination against religion in violation of the First Amendment. The vote on denial of injunctive relief was close: 5:4. In a nominally concurring opinion Chief Justice Roberts opined that the executive branch was in a better position than the judiciary to respond to the evolving COVID-19 situation, and should be given leeway, and argument that the SCOTX will likely also find to its liking. The major disagreement between the majority and minority in the SCOTUS was the basis for comparing churches to other venues, such as grocery stores.
Here is an excerpt:
“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).”
In Texas, of course, the judiciary IS elected, and — at the last-resort level – in effect very partisan, given the lack of compositional diversity in “judicial temperament”. So that un-elected component of the reasoning is not as persuasive in the state action context in Texas. (Not that the SCOTX will acknowledge that they are a partisan body!).
PENDING HARRIS COUNTY ITERATIONS OF HOTZE V. HIDALGO: I, II, and III
As for Hotze’s trial-court filings, there are three. Two have hearing settings on Harris County’s pleas to the jurisdiction on June 5, and June 8, respectively. One already has an URL for an online Zoom session. At least one asks for frivolous-suit sanctions.
CALL FOR REASONED EMERGENCY-POWERS DISCOURSE
Kuff posed very good questions regarding emergency powers at state and local levels in Texas, and the interaction of those two levels, not to mention the role of Lege and judiciary in the whole power dynamic.
Notwithstanding the guilt-inducing visceral pleasure of watching the occasional slugfest here, I for one would very much welcome the input of Kuffians smarter and better-informed than moi, and have a substantive debate on these issues.