But they didn’t kill off the possibility of it being saved, either.
Conservative activists suing the City of San Antonio alleging it violated the Texas “Save Chick-fil-a” law have not presented evidence of a violation, the Texas State Supreme Court ruled Friday morning, as it sent the case back down to a trial court.
The case stems back to a 2019 city council decision to deny the chain’s request to open a restaurant at the San Antonio International Airport because of what a council member described as the company’s support for Christian groups with anti-LGBTQ agendas.
Later that year, Gov. Greg Abbott signed into law — Chick-fil-A cup in-hand — the bill that allows any individual to sue governments that have taken “adverse actions” against corporations due to their support for religious organizations.
A group of people from the San Antonio area, including a conservative activist and former council candidate Patrick von Dohlen, sued the city under the new law. They are represented by lawyer Jonathan Mitchell, a former state solicitor general who helped write the legislation and are backed by amicus briefs from 62 Republican state lawmakers and Abbott.
The justices said the plaintiffs did not “not allege sufficient facts” to sue a governmental body for official action. The court said actions taken before the law was in effect couldn’t be considered as violations of it, and past actions couldn’t be used to assume that the city would in the future violate the law.
“But, more importantly, we do not think the city’s March 2019 conduct standing alone permits a reasonable inference that there exists a “credible threat” of a post-September 1, 2019 adverse action against Chick-fil-A by the city,” the court’s ruling says. “Indeed, the contrary is true. Rather than assume the city would violate (the law), we presume the city would comply with (the law), until the contrary is shown.”
See here, here, and here for some background, and here for the court’s decision, which is fairly technical but still pretty straightforward. The bottom line is that because the San Antonio Council decision to not go with Chick-fil-A was made six months before the dumb “Save Chick-fil-a” law was passed, the justices who joined the majority opinion ruled that the plaintiffs could not claim there was a violation of the law. They also did not accept the argument that the city would have violated the law had it been on the books at the time, which the two concurring justices asserted. They did overturn the appeals court’s dismissal of the lawsuit on the grounds that the plaintiffs should be allowed to make a live pleading with the law now in effect, but I suspect that will be a hollow victory. I say that based in part on the Court’s observation that the city likely would have complied with the law if it had existed at the time, and partly because of this footnote at the end of the decision:
Finally, we note this case may present another jurisdictional issue that has not yet been addressed and should be considered on remand: whether Chick-fil-A’s public statement that it is no longer interested in pursuing a space in the San Antonio airport renders the case moot.
I mean, maybe Chick-fil-A doesn’t want you to try to save it.
Also, too, was the issue of standing, which I noted for its proximity to the state lawsuits against SB8. As is its wont, the Court sidestepped the matter:
Because we hold that petitioners have not demonstrated a waiver of governmental immunity and should have the opportunity to replead, we decline petitioners’ invitation to address standing at this stage. Standing should be determined based on a plaintiff’s live pleading, and it would be premature for us to weigh in on the City’s standing arguments before petitioners have repleaded.
In other words, we’ll deal with it if they sue again. Never decide today what you can put off till tomorrow. Bloomberg and the San Antonio Report has more.
SCOTX AND SUPREME SUSPENSE
Re: “Never decide today what you can put off till tomorrow.”
That’s a succinct and fitting way of putting it. Do you remember what they did on the issue of whether ERCOT can be sued? Punted on it likewise, albeit with a different abstention rationale. See Elec. Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, (Tex. March 19, 2021)(dismissing, after having granted review).
“We granted review and consolidated the two causes because these issues—which include whether the Texas Public Utility Commission has exclusive jurisdiction over Panda’s claims and whether sovereign immunity applies to ERCOT and protects it from Panda’s suit—are important to the parties and to our state’s jurisprudence. But after the court of appeals rendered its decision, and before the parties asked us to review that decision, the trial court entered a final judgment in the underlying suit, and that judgment is now the subject of a separate appeal pending in the court of appeals. Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek.”
Interesting detail in the current case: Chick-fil-A isn’t even a party to the litigation, but the company’s interest in the airport concession (or lack thereof) as nonparties could nevertheless kill off the case under the mootness doctrine.
But the appeal was all about the jurisdictional threshold issues. The plaintiffs’ standing (or lack thereof) was and remains just one of them. The dispute now goes back to the trial court, bypassing the San Antonio Court of Appeals, whose dismissal of the case the SCOTX just reversed with all deliberate speed covering a time frame of circa 15 months. Petition filed 12/4/2020 after multiple extensions; forwarded to the court 01/05/2021. The San Antonio Court of Appeals thus doesn’t get to weigh in on whether the plaintiffs had standing. At least not yet.
Before the case went to the SCOTX, the court of appeals had concluded that the would-be Chick-fil-A airport customers’ claims were barred by immunity and that the plaintiffs didn’t have to be given an opportunity to amend their petition because the jurisdictional defect could not be cured. Based on that determination, the intermediate court of appeals hadn’t reached the standing issue because it was unnecessary to their disposition of the appeal. See City of San Antonio v. Von Dohlen, 612 S.W.3d 503 (August 18, 2020).
https://scholar.google.com/scholar_case?case=1493799147619639220&q=+04-20-00071-CV&hl=en&as_sdt=6,44