Gotta love a pre-holiday news dump.
The Texas Supreme Court on Tuesday ended a professional misconduct case against a top aide to Attorney General Ken Paxton for his role in challenging the 2020 election results, previewing a likely outcome for a similar case against Paxton.
In a 7-2 decision, the court dismissed a complaint against First Assistant Attorney General Brent Webster that was filed nearly four years ago by a committee of the State Bar of Texas. The committee initiated separate complaints against Webster and Paxton over their legal efforts to challenge the election results in four key battleground states won by Joe Biden.
Paxton’s election lawsuit, which was rejected by the U.S. Supreme Court for a lack of standing, made false claims and raised doubts about the election, the bar committee alleged.
The state bar, of which Paxton and Webster are members, prohibits lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation” in its professional conduct guidelines. Justices on the state supreme court, however, questioned during oral arguments whether the committee was basing its complaint on politics, not misconduct.
The all-Republican court’s ruling on Tuesday, authored by Justice Evan Young, describes the commission’s complaint as a “collateral attack” and reverses lower court rulings that had sided with the bar. The U.S. Supreme Court, not the state bar, had ultimate authority to address concerns with private or public attorneys in Texas, the justices argued.
See here for the previous update, here for the majority’s decision, and here for the dissent. KUT has a few words about the latter.
Justices Jeff Boyd and Debra Lehrmann dissented, saying the majority opinion reflected a “disdain and distrust” for the State Bar’s commission and its ability to discipline lawyers. Luckily, they added, the decision applies just to this case.
“Unfortunately, it does not reduce the damage it causes to the separation-of-powers doctrine,” Boyd wrote.
I’ll have a few more words to add in a minute, but first let me take a moment to salute Justice Lehrmann, who has been on quite a roll with high-profile dissents lately (she did miss one enormous opportunity, to her discredit, but we have to take what we can get). On the subject of that dissent, written by Justice Boyd, I’ll just give you the first paragraph, which tells you what you need to know.
This disciplinary proceeding against Texas attorney Brent Webster could easily fail for many reasons. But the constitutional separation of powers is not one of them. This doctrine prohibits the legislative, executive, and judicial “departments” from exercising “any power properly attached to either of the others.” TEX. CONST. art. II § 1.2 It does not separate powers that exist within a single department or restrict the means by which a department may exercise a power it properly possesses.3 Perhaps some other legal doctrine could prohibit the judicial branch from doing “collaterally” that which it can indisputably do “directly” (to use the Court’s new-found terminology), but the separation of powers between the branches does not. If (as the Court concedes) the judicial branch has inherent power to discipline an executive-branch attorney for engaging in professional misconduct, it may—consistent with the separation-of-powers doctrine—discipline that attorney through any lawful exercise of that power. The Court’s freshly minted direct/collateral distinction is unheard of in separation-of-powers jurisprudence. It lacks both legal support and logical sense. I must respectfully dissent.
My gut reaction on reading the Chron story and its quote from the majority opinion was that this was a bunch of baloney, made up by a Court in search of a reason to support its predetermined outcome. I see nothing in the dissent to suggest I’m off base on that. The Ken Paxton disciplinary case is still out there, and for obvious reasons I’m even more pessimistic about its future. Some people are just above accountability, that’s all there is to it. Happy effing New Year. The Trib has more.
JUDICIAL ABROGATION OF ACCOUNTABILITY FOR GOVERNMENT AGENTS
Yup. I disagree with Kuff regularly, but not on this matter.
What we have here is another prime example of much ink being spilled (or electronic equivalent) in an effort to justify removal of accountability from government wrongdoers. It’s been an ongoing program on the Texas high court. Technically, alleged wrongdoing, but we not we won’t get to the merits. Those have been off-limited too.
We are regaled with a total of 49 pages, but Justice Young doesn’t even bother to let the incredulous public know what misrepresentations were actually made in the AG’s SCOTUS filing that led to the attorney disciplinary action. And that’s – alas – totally in line with the doctrinal thrust on the Texas Hight Court:
IT’S ALL ABOUT AVOIDING THE MERITS – THAT’S WHAT COURT-FASHIONED JURISDICTIONAL DOCTRINES ARE DESIGNED TO DO
The new “no-collateral meddling” doctrine extemporized for the occasion in order to put the AG and his minions beyond the reach of the COMMISSION FOR LAWYER DISCIPLINE is right in line with the resurrection of a Republican version of the “principle” that the King is the Sovereign and can do no wrong. As a reminder, in a republican form of government, the people are supposed to be the ultimate sovereign, not those who govern. But if you think we have a republican form of government, you need to wake up to the doings of the Texas Supreme Court over the past decades to acquire a more nuanced appreciation of the current state of affairs.
Chief Nathan Hecht has been gone for less than 24 hours, so now it’s a little safer to call him out for inflicting the jurisprudential travesty of sovereign immunity upon the people of Texas.
Just in time for his departure the TEXAS TRIBUNE did a puff piece that says virtually nothing about the huge damage his court has inflicted and upon ordinary Texans. … And keeps inflicting. Just look at the tort/immunity cases decided December 31, 2024. Police and other agents of the state get to harm and hurt people and there is no recourse because they have been rendered immune thanks to judicial supremacy in Texas. And it’s not just the police. It goes for all agents of the State when they cause injury. They are largely beyond the reach of the tort systems that applies to private actors (though “officers of the court” have also been bestowed with tort immunity even in private litigation).
JUDICIAL NEGATION OF TEXANS’ LEGAL RECOURSE IN A NUTSHELL:
Texas constitution: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
— except when agents of the government inflict injury upon you or government entities breach their contracts with you. Then we have this, thanks to the Hecht Court (previously Wallace Jefferson):
Sovereign immunity = You can’t sue us. We are the State (the current “King”).
Government immunity = No matter what we do, you can’t sue us because we partake of the sovereignty of the State.
Official immunity = We are government agents. You say we did you wrong, but we did whatever we did in good faith, so you will just have to suck it up.
And what’s the rationale for the modern, republican, version of royal immunity that removes accountability and lets government wrongdoers off the hook?
Well, if Texans were allowed to sue government entities and agents they might actually win (i.e., vindicate a meritorious claim) and the defendants would then have to pay damages to compensate prevailing plaintiffs for the injury they have suffered. Like other defendants. We can’t have that!
BOTTOM LINE: The Hecht Court has eviscerated the open courts provision of the Texas Bill of Rights through a judge-made doctrine that dates back to the British monarchy. Then it was “the King can do no wrong”. Now it’s: the State of Texas and its subdivisions and agents can do no wrong.
And you can see the echos even in the opinion by Justice Evans in Webster’s case: The King’s solicitors were special people, so why shouldn’t the republican attorney general (or his first lieutenant) enjoy such royal privilege and deference likewise?
KEY COURT-REMEDY-THWARTING CASE
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. Sup. Ct. 2006)(Hecht, J.), cited 942 times acc. to Google Scholar.
https://scholar.google.com/scholar?hl=en&as_sdt=6%2C44&q=tooke+v.+city+of+mexia&btnG=
Justice [Phil] JOHNSON filed an opinion concurring in part and dissenting in part.
Justice [Harriet] O’NEILL filed a dissenting opinion.
Justice [Don] WILLETT did not participate in the decision.
The only book I recall not finish reading was Moby Dick. I found it dull and slow-moving. I did better reading the World Book Encyclopedia.
Why use ten words when several hundred will work just as well?
Marvin Zindler it is “hell to be poor.”
ADDING GRAVITAS
Justice Evan Young – not Evans [sic] actually outdid then-Justice Hecht by raw page count. But that’s misleading because it is affected by formating.
That’s also why the appellate rules (TRAPs) set a word limit for appellate briefs (which must be certified) and minimum font size and margins.
Here is how they measure up:
Webster opinion by Young: 49 pages (13,437 words when text pasted to Word)
Tooke opinion by Hecht: 41 pages (16,036 words when HTML pasted to Word)
Hecht has 115 footnots. Young uses in-text citations.
HYPOTHESIS: The more outrageous the ruling and disposition of the case, the longer the opinion endeavoring to justify it.
THE STATE OF TEXAS CAN DON NO WRONG? – What the Hecht!
The doctrine of governmental immunity arose hundreds of years ago from the idea that “the king can do no wrong,” but it remains a fundamental principle of Texas law, intended “to shield the public from the costs and consequences of improvident actions of their governments.” Tooke v. City of Mexia, 197 S.W.3d 325, 331-332 (Tex. 2006).
ADD: …. at the expense of people that have been harmed by “improvident” government action, like a police car hitting you, an uninvolved motorist, while chasing a prostitution customer.
Governmental immunity includes both immunity from liability, “which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006).
A governmental entity that enters into a contract “necessarily waives immunity from liability, voluntarily binding itself like any other party to the terms of agreement, but it does not waive immunity from suit.”
SO, you have contracted with the government you just can’t go to court to enforce it if you don’t get paid. But the government party can sue you on the same contract if you breach it.
Unlike immunity from liability, immunity from suit deprives the courts of jurisdiction and thus completely bars the plaintiff’s claim. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).
Meaning, you don’t get your day in court because the merits of your claim against a governmental entity can’t be reached. Your case will be dismissed as jurisdictionally barred.
And that’s what just happend in Webster too:
THERE GOES THE JURISDICTION
Because we conclude that the commission’s case is nonjusticiable under the separation-of-powers doctrine, we do not reach the first ssistant’s alternative sovereign-immunity argument. The court of appeals’ judgment is reversed. We reinstate the trial court’s judgment dismissing the case for lack of subject-matter jurisdiction.
Evan A. Young
Justice
OPINION DELIVERED: December 31, 2024
Brent Edward Webster v. Commission for Lawyer Discipline, No. 23-0694 (Tex. Dec. 31, 2024).
Too many judges are bought, so there is a need for wordy opinions that justify the legal ruling that has been bought. My two cents.