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The status of the mask mandate lawsuits

The Chron does a roundup.

Texas courtrooms have become a busy place this August, with Attorney General Ken Paxton battling school districts, cities, counties and nonprofits to defend Gov. Greg Abbott’s ban on local mask mandates aimed at preventing the spread of COVID-19.

Tracking the status of lawsuits can be dizzying.

“The way I like to think about it is there are four big buckets of cases and then there are some little minor cases out there,” said Harris County Attorney Christian Menefee, whose county has sued both Paxton and Abbott over the ban on mask orders.

Those buckets include Harris County’s lawsuit; one brought by a group of school districts; one from Bexar County and San Antonio; and one from Dallas County. Those cases are the furthest along in the legal process, Menefee said, and he expects a final decision on Abbott’s mask order rules to come from one of those cases.

Harris County’s lawsuit and the school districts’ are proceeding along the same track, Menefee said. Local officials cheered a ruling late Thursday by the state Supreme Court, on a procedural question, that allowed the county’s mask mandate to stay in place for now.

The all-Republican high court could have ruled on the merits of the question, but chose not to, instead punting it to a lower court. This signals that the court isn’t yet prepared to offer a final decision on whether or not mask mandates across the state will be allowed to remain in place, he said.

“They could rule whenever. The fact that they haven’t issued a ruling I think is encouraging because I think that means they’re thinking about it,” Menefee said. “If they do that, that’s going to be the law of the land for Texas,” applying to all cases.

[…]

In Bexar County and San Antonio’s case, local officials won a temporary injunction from an appeal, allowing their mask mandates to remain in place while their case is pending. A trial is scheduled for December. Paxton’s office is likely to appeal that to the state Supreme Court.

Meanwhile, Dallas County is fighting for a temporary restraining order to allow it to keep the mask mandate in place for the short term, a step that precedes arguments over a temporary injunction. That decision would last longer, months rather than weeks.

The stragglers, as Menefee described them, include a Fort Bend County case and a lawsuit from the Southern Center for Child Advocacy over many of the same issues.

A Fort Bend County district judge on Thursday granted the county a temporary injunction it its legal challenge to Abbott’s ban on mask mandates. County Judge KP George said it “removed the hurdles that have prevented our municipalities and school districts from taking the same action to protect their communities and the children…”

Thursday’s ruling should remain in place until the issue goes to trial in at least 45 days. Or Paxton could appeal the lower court’s decision to the state Supreme Court, as he has others, leaving it up to them to decide.

Hope that helps a little. And as a reminder of the legal questions, Erica Greider talks to an expert.

Steve Vladeck, a professor at the University of Texas School at Law, reckons that local officials still face an uphill battle in their legal battles.

The Supreme Court of Texas, he explained, didn’t side against the state on the substantive question. It simply concluded that Paxton had skipped a step in the legal process, meaning that the statewide restraining order against Abbott’s executive order remains in effect while Paxton retraces his steps.

The TEA guidance on masks, similarly, isn’t a policy change on the agency’s part; rather, it’s a recognition that a temporary restraining order issued by Travis County District Judge Jan Soife blocking the enforcement of Abbott’s latest executive order remains in effect, while litigation is pending.

“The real bottom line is that Judge Soifer’s TROs are still in effect today, but they may not be tomorrow,” Vladeck said.

Vladeck thinks it’s more likely than not that the state’s highest court will eventually side with Abbott; after all, he noted, it previously issued stays against local mask mandates issued in Dallas and Bexar County — that’s “more than nothing, when it comes to reading tea leaves.”

At the heart of the case, Vladeck continued, are genuine substantive questions about the scope of the governor’s powers under the Texas Disaster Act of 1975.

“I think we can safely say they’re broad,” Vladeck said. “The problem is they’re surely not limitless.”

Judge Soifer, you may recall, ruled in both the Harris County case and the Southern Center for Child Advocacy case. As we have seen, there is a range of opinion on this litigation from the legal community. I tend to think Vladeck is right about what will happen – however subtle some of the legal questions are, there’s also the politics of it, and the Supreme Court is much more likely to give Greg Abbott what he wants than not – but it’s not an obvious question to answer. We should know more pretty quickly.

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4 Comments

  1. Kibitzer Curiae says:

    Re: “Battle over local mask mandates plays out across Texas courtrooms as state Supreme Court delays final ruling.” Edward McKinley HOUSTON CHRONICLE

    The Houston Chronicle’s headline is right on point. The SCOTX decision last Thursday was a cop-out, to be blunt.

    Paxton’s litigators ended up being blamed for having made a mistake, worse, it was insinuated that they were incompetent. This is wholely undeserved.

    If blame is to be allocated, the Supremes themselves have richly earned it. They endeavored to be as murky about the interim disposition as possible. Couldn’t be bothered to issue even one sentence to explain for the benefit of millions of Texans affected by Abbott’s order their rationale for denying the petition in Tex. 21-0701, and left enough ambiguity even for those in the legal know to go off in different directions.

    Let’s recap this:

    All that accompanied their denial of Paxton’s trifecta mandamus (challenging three TROs in three different cases brought by different types of plaintiffs, all signed by Judge Soifer) was a reference to an appellate rule that sets forth the required content of a petition in a mandamus proceeding. That includes a requirement to explain why the relief-seeking party (called “relator” in a mandamus proceeding rather than petitioner or appellant) didn’t go to the court of appeals first. This applies in situations where both the SCOTX and the COA have jurisdiction and the relator choses to head directly to the Supreme Court.

    So, as long as they give a compelling reason why they went straight to the SCOTX, they have NOT failed to comply with the rule if they skipped the court of appeals. And they did so comply here with express reference to the rule:

    “In accordance with Texas Rule of Appellate Procedure 52.3(e), this petition is being filed in this Court without first being presented to the Third Court of Appeals. The urgency and significance of the matters addressed in the petition constitute compelling reasons for the petition to be filed directly in this Court. Only this Court can provide the statewide answer that is needed.”

    At least one of the opposing parties raised the issue of rushing it and skipping the court of appeals in their response, so the Solicitor General actually followed up on the reason with this:

    “A mandamus petition may be filed directly in this Court when a compelling reason justifies skipping the court of appeals. Tex. R. App. P. 52.3(e). And here, there is a compelling reason: Only this Court can provide the statewide answer that will resolve this increasingly sprawling dispute. See Mand Pet. vii, 17.”

    BOTTOM LINE: You don’t have to be an expert in jurisprudential science or an authority in tea-leaf divination. All you have to do is look at the documents and the referenced rule. The record here speaks for itself, so to speak.

    For whatever reason, the Supremes weren’t ready to decide the legality of Abbott’s mask mandate ban at this time, as Menefee explains, and they availed themselves of a mechanism to deny the petition that decided nothing of substance – not a single one of the multiple legal arguments — and left themselves all options open. Meanwhile business interests are also clamoring for a supreme statewide resolution – and legal certainty — for their own benefit by filing amicus briefs in the still-pending cases in which the SCOTX previously issued stay orders (Tex. Nos. 21-0686 and 21-0687).

    Nor do the Supremes even apply the implied “COA-first” rule consistently. To reach that conclusion it is necessary to look how they handle other cases that present the same procedural posture.

    PARTY-LINE JURISPRUDENCE AND RULE OPTIONALITY

    Putting the summary SCOTX disposition in Tex. 21-0701 in context, has it cought anyone’s attention that the SCOTX just a few days earlier had no trouble granting extraordinary relief without first allowing the court of appeals to weigh in? See In re Abbott, No. 21-0677 (Tex. Aug. 17, 2021).

    In that case, Governor Abbott and the GOP House Speaker were going after the absent Lege Dems. Procedurally speaking, the scenario is very similar. Abbott and Phelan were challenging a trial court TRO from Travis County with a manadamus petition filed by the Attorney General on their behalf. And they had NOT gone to the Third Court of Appeals before they came praying to the all-GOP supreme court for intervention. The Court graced them with a lengthy 18-page opinion that resolved the legality of the arrest warrents conclusively.

    Note that the Dems expressly complained about the leapfroggin’ in that case:

    — quote start —

    [N]either of the Petitions’ statements of jurisdiction state a compelling reason why the petition cannot be presented to the court of appeals pursuant to Texas Rule of Appellate Procedure 52.3(e). The alleged exigencies justifying the Petition, which are disputed below, could have been presented just as well to the court of appeals. […]

    The real, unspoken reason the Republican Relators skipped the court of appeals is that five of the six sitting justices in the Third Court of Appeals are Democrats, while every one of the eight sitting justices in this Court are Republicans. Relators’ political party preferences are not a valid basis to disrupt the Texas Government Code and Rules.

    This Court is supposed to make decisions “irrespective of the political forces at play.” Terrazas v. Ramirez, 829 S.W.2d 712, 717 n. 10 (Tex. 1991). If partisan politics alone is a “compelling reason” to ignore civil procedure, then all public confidence and semblance of integrity in our judicial system is lost.

    — quote end —

    Also note that Speaker Phelan filed an amended petition – through a former member of the SCOTX now in private practice – and didn’t ask for permission to do so. Apparently that’s no problem since the Speaker and his appellate attorney are both fellow Republicans. Steven Hotze and the Harris County Republican Party received the same sub silentio courtesy when they sued Harris County Clerk Chris Hollins (a Democrat) directly in the SCOTX last year. See Tex. 20-0671.

    JUDICIAL POLITICS

    In Tex. 21-0667, however, it was not just an amended petition, but a private lawyer taking over for the Attorney General, who arguably had a conflict representing the interests of officials in two separate branches of state government, though Governor Abbott and Speaker Phelan obviously shared the *political* interest in having the SCOTX remove an obstacle to the arrest of their political opponents. That was a compelling priority for both of them. And for their fellow Republicans on the supreme court likewise, as is now clear.

    Opinion at: https://casetext.com/case/in-re-abbott-2011

    These leading Republicans couldn’t be bothered to complain about the emergency ex parte TRO (granted by a criminal court judge on Sunday night) to the presiding judge of the court to which the Dems’ case against Abbott and the Speaker was assigned (Judge Livingston, 261st Civil District Court), not to mention seeking mandamus relief in the Third Court of Appeals first. They had to secure immediate supreme intervention, and had to be accommodated overnight with a stay order.

  2. Kibitzer Curiae says:

    IN RE GREG ABBOTT, COMMANDER IN CHIEF – AUG 24, 2021 NOON UPDATE:

    We now have another confusing Supreme Court case that’s not really an appeal:

    The San Antonio mask-mandate case is back in the Supreme Court. The Docket No. is 21-0720. Easy to remember. The most recent case involving the TROs from Travis County was No. 21-0702. The digit “2” has moved up, so to speak. This is part and parcel of Round II, the temporary injunction (TI) phase. The prior one (Tex. 21-0687) involved the temporary restraining order (TRO).

    THIS IS ANOTHER MANDAMUS AGAINST AN *APPELLATE* COURT

    Note the procedural posture here: The San Antonio case is not ready for an appeal from the Fourth Court of Appeals to the SCOTX because the interlocutory appeal of the trial’s courts termporary inunction remains pending there.

    They would have to decide the appeal with an opinion and judgment to provide a basis for Abbott to file a further appeal to the SCOTX as the court of last resort by petition for review (PFR), which is the regular way to do it.

    So, since an appeal to the SCOTX is not yet possible, Paxton’s litigators are now attacking the Fourth COA’s grant of temporary relief in a mandamus proceeding in the SCOTX. The appellate court is here the respondent, not the trial court judge (as most recently in Tex 21-0701).

    They used the same appellate litigation tactic in the vote-by-mail case last year. See Tex. No. 20-0401 (Stay order against 14th Court of Appeals in State v. Texas Dem. Party et al, No. 14-20-00358-CV, granted May 15, 2020).

    WHAT HAPPENED AT THE INTERMEDIATE APELLATE LEVEL ?

    The Fourth Court of Appeals reinstated the temporary injunction granted by the San Antonio trial court as a temporary order of its own, pending resolution of the appeal on the merits. That’s based on the premise that the mere filing of the notice of interlocutory appeal on behalf of Defendant Abbott triggered an automatic stay (supersedeas) of the trial court’s order, thereby depriving it of legal effect while the appeal was ongoing. The City of SA and Bexar County filed an emergency motion asking the appellate court to reinstate the temporary injunction under the COA’s own authority to issue temporary orders. Paxton’s litigator now try to get the Supremes to stay/undo this reinstatement order by the lower appellate court.

    The pending appeal is called “interlocutory” because it is from a temporary order (in the form of a temporary injunction against enforcement of the mask-mandate portion of Abbott’s GA-38), not a final judgment that declaring the challenged portion of GA-38 illegal or unconstitutional.

    Once again, it’s a sequel in the IN RE GREG ABBOTT series.

    Docket here: https://search.txcourts.gov/Case.aspx?cn=21-0720&coa=cossup
    [Note however that it is not updated in real time; so any documents filed or issued today may not show up until later or past midnight].

  3. Kibitzer Curiae says:

    Oops … the triple-mandamus case against Travis County District Judge Soifer was actually Tex. 21-0701, ie. not ending in 2. To err is human, to make necessary corrections imperative.

    Curiosity: The attorney for the Southern Center filed a motion for sanctions against his nemesis in that case … what were they thinking?

    https://search.txcourts.gov/Case.aspx?cn=21-0701&coa=cossup

    Another Curiosity: The Sovereign’s Impotence as Raison for an Instant Remedy from the High Court

    In his emergency filing, the AG complains of irreparable injury to the “State” but the underlying lawsuit is against Greg Abbott, the Governor, and seeks equitable relief against him on ultra vires grounds. (Ultra vires is Latin for acting beyond one’s power or legal authority.) And Greg Abbott is the Relator here in the supreme court, rather than The State of Texas qua entity.

    Apparently, we are now to accept the notion that there is no difference between the elected Ruler and the State.

    In a similar vein, the AG asserts that in a disaster that he has declared, Abbott is in charge of “state business” and that “state business” encompasses everything, including ingress and egress as it relates to face coverings.

    For historical grounding of that idea, look up — > L’état, c’est moi

    Also of interest, this quote from last year’s case in which Paxton actually sued in the name of The State:

    The sovereign “would be impotent to ‘enforce its own laws’ if it could not temporarily enjoin those breaking them pending trial.” State v. Hollins, 620 S.W.3d 400, 410 (Tex. 2020) (per curiam).

    Commentorial note: This is an ongoing saga … correction of errors, if any, and updates welcome.

  4. […] here and here for some background; yes, all of this litigation is hard to keep track of. This post is likely to be already out of date by the time it publishes in the morning. I’ll […]