Texas Attorney General Ken Paxton will not have to testify in court as part of a lawsuit over whether abortion funds can help people access the procedure in states where it’s still legal.
A three-judge panel of the Fifth Circuit Court of Appeals on Tuesday overruled an order from U.S. District Judge Robert Pitman for Paxton to appear, finding that he should have first ruled on Paxton’s motion to dismiss and that plaintiffs had not proven “exceptional circumstances” existed that would require his testimony. Paxton has argued the court should toss the suit because he has sovereign immunity, a legal principle that protects state officers and agencies from lawsuits.
Attorneys general rarely testify, as their office’s lawyers are typically able to explain the high-ranking official’s viewpoint and legal argument.
In its ruling Tuesday, the panel of Republican-appointed judges sided with Paxton, who had argued that it would be unduly burdensome for him to testify and that he did not have any unique knowledge of his office’s enforcement policies.
“The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions,” the panel wrote in its ruling Tuesday, referencing Paxton’s public statements. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”
If this sounds familiar, it’s because the Fifth Circuit made a basically identical ruling in September. I was puzzled about the reason why this was litigated again, but a link in this story tells me that the district court judge had ordered Paxton to testify a second time, a couple of weeks after the Fifth Circuit ruled initially. I had just missed that story.
My reaction this time is the same as last time, which is that this doesn’t sound unreasonable, but as there’s every reason to be deeply suspicious of the Fifth Circuit I’d like to see an actual lawyer tell me that it’s reasonable, so that I don’t feel like a chump. Anyway, I guess the bottom line is that nothing much new has happened with this lawsuit.