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State Supreme Court is skeptical of stay-at-home orders

They’re not ready to act yet, though.

In turning down a case challenging Gov. Greg Abbott’s order allowing certain Texas businesses to reopen, the Texas Supreme Court hinted Tuesday that it is sympathetic to constitutionality concerns raised by coronavirus restrictions.

The state’s highest civil court declined to take the case —spearheaded by a Dallas salon owner whose decision to open in defiance of the order prompted demonstrations and TV spots over the past few weeks — saying lower courts should first consider whether the restrictions should stand. The Texas Supreme Court is generally the “court of last resort.”

Justice James D. Blacklock wrote in the opinion Tuesday that during a public health emergency, the onus is on the government to explain why its measures are necessary and why other less restrictive measures would not adequately address the threat. District courts will need to decide how to judge whether that’s been accomplished, he wrote.

“When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns,” Blacklock wrote. “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”


The businesses argue in their suit that local authorities do not have the power to close businesses or threaten fines or jail time. The suit says that local stay-at-home orders mandating closures of certain, but not all businesses, are unconstitutional. Instead the governor should have convened a special legislative session as the Texas Constitution allows in the case of a “disease threat,” it says.

Business owners across Texas “are having their legal and constitutional rights, and the constitutional rights of their businesses, continuously infringed as long as these authorities are allowed to enforce executive orders, and particularly so when the executive orders are enforced arbitrarily,” the suit states.

They are seeking a court order to block enforcement of all local orders and had hoped to skip over district courts by going straight to the state high court.

I have to say, I don’t have any particular problem with this. They were right to send this back to the lower courts, which is where the facts can and should be established. They are right that local and state government must adequately justify their actions and not go overboard. There’s certainly a case to be made that Greg Abbott is doing way too much on his own, without involving or even informing legislators of his actions. Calling a special session to get things done takes time, which isn’t always in abundance, and we are in a place where no one really knows what is the optimal thing to do so we had been fairly cautious up till now. We will hopefully have a much better idea how to react – and have a federal government that is capable of responding to events like these – the next time we have to. In the meantime, it’s good and right to have a thorough discussion about what we should be doing and how we should be doing it, and making sure the government is accountable for its decisions.

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  1. Wolfgang says:


    The opinion in this case was a concurrence by Blacklock to which 3 more of 9 signed on. It was NOT the opinion of the court, collectively.

    Still 4 votes is enough for initial grant of a petition (to be decided by a majority on the merits, if they don’t change their mind), and Blacklock used the occasion to signal to the attorney for the petitioners (technically “realtors”) to argue (in the trial court) a novel constitutional test of “absolutely necessary” for the judicial review to constitutionality of the challenged order (as opposed to just normal least restrictive means to accomplish a compelling state interest). I think that’s noteworthy of constitutional scholars and students of judicial politics alike. It would obviously raise the level that would have to be met for the challenged order to survive the constitutional attack.

    Second, the SCOTX this morning ordered SHELLEY LUTHER immediately released on her habeas corpus petition (the docket sheet was not yet available when they posted the order sheet). Also, considering the imprecise reporting on the matter and the ensuing outcry, she was sent to jail for contempt of court (violation of TRO) and the “fines” where also for contempt ($500 per day of operation in defiance), and not directly for violations of the COVID-19 order. She appealed the TRO to the 5th Court of Appeals even though its not an appealable order. They are going to dismiss it and already sent out the WOJ warning/notice letter. She would have had to file a mandamus to challenge the TRO (rather than an interlocutory appeal), but the habeas case in the SCOTX probably makes that moot.

    Orders Pronounced May 7, 2020

    IN RE SHELLEY LUTHER; from Dallas County

    relator’s motion for emergency relief granted
    response requested due by 4:00 p.m., May 11, 2020

    [Note: The petition for writ of habeas corpus remains pending before this Court.]

  2. Wolfgang says:

    Correction: Relators, not realtors

    NO. 20-0340
    concurring in the denial of the petition for writ of mandamus.

    “The Constitution is not suspended when the government declares a state of disaster.” In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020). All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions.

    Government power cannot be exercised in conflict with these constitutions, even in a pandemic.

    In the weeks since American governments began taking emergency measures in response to the coronavirus, the sovereign people of this country have graciously and peacefully endured a suspension of their civil liberties without precedent in our nation’s history. In some parts of the country, churches have been closed by government decree, although Texas is a welcome exception. Nearly everywhere, the First Amendment “right of the people to peaceably assemble” has been suspended altogether. U.S. Const. amend. I. In many places, people are forbidden to leave their homes without a government-approved reason. Tens of millions can no longer earn a living because the government has declared their employers or their businesses “‘non-essential.’”

    Those who object to these restrictions should remember they were imposed by duly elected officials, vested by statute with broad emergency powers, who must make difficult decisions under
    difficult circumstances. At the same time, all of us—the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution, especially now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.

    Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government’s anti-virus actions. When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.

    Ideally, these debates would play out in the public square, not in courtrooms. No court should relish being asked to question the judgment of government officials who were elected to make difficult decisions in times such as these. However, when constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances.
    * * *
    This original petition, which challenges several local officials’ coronavirus response measures, should first be presented to the appropriate district courts. The Supreme Court is generally a court of last resort. Our original jurisdiction to issue the requested relief is doubtful, and the petition is presented without supporting affidavits and with no record on which the Court could base its inquiry. Just as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so. I therefore concur in the denial of the petition.
    James D. Blacklock
    OPINION DELIVERED: May 5, 2020

    — end of opinion


    In other COVID-19 litigation news, the Texas Supreme Court has transferred the voting-by-mail appeal from the Third Court of Appeals to the Fourteenth in Houston. I just had an amicus letter brief and request for the public posting of the appellate record rejected by the Austin Court of Appeals on that basis. At least they posted the plaintiffs’ and aligned intervenors’ motion for emergency relief, which will now be before our local appellate court. It basically argues that the temporary injunction is binding and remains in force (not superseded), and that Paxton is unlawfully defying it and spreading his contrary interpretation of who qualifies to vote by mail in times of pandemic. Also note that Paxton argues that “fear” of the pandemic is not enough, but that’s not the ruling, and fear does not equate risk of infection, or vulnerability to the virus in the absence of a vaccine or preexisting immunity (physical condition)