Hard to keep track of all these, I know.
The state of Texas and Gov. Greg Abbott have denied a Dallas salon owner’s allegations that COVID-19 emergency orders suspending state laws are unconstitutional.
Abbott and the state specifically denied allegations that the Texas Disaster Act of 1975 “improperly delegates power to the governor and local executive officials,” said the defendants’ answer, filed Tuesday in Dallas County district court.
It’s a constitutional attack that the state of Texas is now defending in multiple courts, as business owners file lawsuits against the government over COVID-19 shutdown orders, or the definitions of essential versus nonessential businesses.
Litigants in multiple cases have gone to the Texas Supreme Court with disputes that arose because of the pandemic, but the high court hasn’t yet accepted an appeal to decide the dispute. But one justice, John Devine, signaled in a concurring opinion that Abbott’s practice of suspending Texas laws during the pandemic was a violation of the Texas Constitution.
“We are going to amend our claims to ask for a temporary injunction, which we are certain will be denied. Then we will start marching it up the ladder to the Texas Supreme Court,” said Warren Norred, who represents Shelley Luther, the Dallas salon owner. “All these cases that have hit the Supreme Court, the high court has said, ‘We’re waiting patiently for you guys to get us a case in the proper channels.’ … They’re watching, but they’ve been very reluctant to act, until we on the litigation side do it right.”
This particular case involves Luther, who made international headlines when she was jailed for contempt of court because she violated a judge’s temporary restraining order. Luther had opened her salon during a time a government shutdown order didn’t allow it, and so the city of Dallas sued her and won the order that said she had to close down again. When a Dallas district judge jailed her for violating his court order, she filed a writ of habeas corpus to the Supreme Court and won an emergency stay that released her from jail. Her habeas writ appeal is still pending.
Later in the litigation, Luther brought the state and Abbott into the case by filing a counterclaim. It alleged that the Texas Disaster Act of 1975, the law that underlies the Dallas emergency rules, is void because it unconstitutionally delegates legislative power that belongs to the governor, county judges and city mayors. She argued that the emergency rules violate separation of powers, are void for vagueness, violate due process and equal protection, and more.
Far as I can tell, the original lawsuit was filed in April. I didn’t blog about it at the time (though I have been following other litigation about coronavirus and executive power pretty closely), and Google searches for a lawsuit in Dallas County involving coronavirus and Greg Abbott run into a wall at May 7, when there were a million stories about Shelley Luther totally pwning Abbott and his shutdown order. Anyway, the state’s response is what you’d expect – the plaintiffs have no standing, the court has no jurisdiction, the law in question is totally legal, etc. This is just in the district court, and we all know it’s going to end up at the Supreme Court, so settle in and get comfortable. We’re just getting started, and there’s a long road ahead.