There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”


It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

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One Response to There’s a lot of COVID litigation out there

  1. The TEXAS LAWYER is paywalled, so I don’t know if this was covered …


    On July 22, 2020 the Hotze-Woodfill pair filed another mandamus petition in the Texas Supreme Court. (docketed as No. 20-0563).

    This one is from the denial of a TRO signed by Harris County Judge Larry Weiman in one of his lawsuits against County Judge Lina Hidalgo. TROs can’t be appealed, hence the mandamus petition. This one is about the face covering order. It’s an encore. The prior one became moot, thanks to the Governor. I propose to dub it the LINA UNMASKING, or the MASK-DOWN MANDAMUS, to be more alliterative. –

    – With apologies to MASK-UP MAYOR Sylvester Turner.

    Steven Hotze has at least one amigo on the high court, Justice Devine, who went out of his way to express constitutional concerns in No. 20-0430 while agreeing with his eight brethren & sistren that they lacked mandamus powers to entertain the dear Doc’s petition. In re Hotze, MD, No. 20-0430 (Tex. 2020)(Opinion by Justice Devine concurring in dismissal of mandamus petition against Governor Abbott for want of jurisdiction).

    There was no predicate litigation in the trial court, and it is doubtful that the Governor can even be mandamused — yes, that’s a verb in Legalese — at all. The former issue came up before and resulted in denial, rather than jurisdictional dismissal, based on the eminently sensible rationale that the case should first be presented to a trial court of proper jurisdiction. See In re Salon a La Mode, No. 20-0340, ___ S.W.3d ___ (Tex. May 5, 2020) (Opinion by Blacklock, joined by three others including Justice Devine, concurring in the denial of mandamus relief). Devine cites that case in his concurrence in Hotze 20-0430, but does not offer much in the way of a constitutional analysis.


    There are basically three arguments: (1) That the Texas Disaster Act is unconstitutional because it involves an impermissible delegation of legislative powers to the executive branch, thus violating the separations of powers principle enshrined in the Texas Constitution; (2) that the Governor exceeded his powers under the Act (assuming it is constitutional), which is an “ultra-vires” claim, and that (3) the Governor’s order is unconstitutional because the classification between essential and nonessential businesses is arbitrary (this applies to the business “shut-down” or occupancy-restricting orders).

    The latter is an equal-protection-type argument that can be made under the analogous equal-rights clause of the Texas constitution. (It might also apply in the bar vs. restaurant context). Additionally, there is also a due process/due course of law argument, but it’s flimsy because the constitution does not expressly protect the asserted “right” to run a business.

    Devine didn’t offer much of a constitutional analysis in his concurrent bewailing the impending dissipation of the “promise of liberty.” Nothing about substantive due process or the constitutional underpinnings of “economic liberty”, although he invokes the right of business owners to make a living and cites Don Willett’s concurrence in Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015)), which made some waves in legal circles at the time.

    Devine might try harder next time, but the existing jurisprudence is not very helpful, and some serious constitutional activism would in order. Nor does one lone justice make for a majority going against Governor Abbott, who himself is of course a former member of the august body and continues to stand in its good graces (not to mention that several incumbents are his picks).

    The Patel case involved government overreach in the sphere of licensing (eye brow threading, if that means anything to you) and has nothing to do with emergency powers needed in crisis to mount an effective response. So while Devine uses the vehicle of an unnecessary concurrence in a jurisdictionally nonviable case to voice his concerns about the governor’s emergency-related actions, and to signal support and sympathy for his constituents (Devine will soon be the only originally-elected-rather-than-appointed member of the SCOTX), he has yet to offer a spirited argument why the Disaster Act should be struck down, and how that wouldn’t take the prudence out of the jurisprudence.

    As for impingement upon liberty and living, it just so happens that health and safety works in the government’s favor here, given the type of disaster at issue. An epidemic is one of the covered events in the Disaster Act. The lamented impoverishment of businesses (subsuming corporations) seems like a dubious extension of liberties possessed by Texans; — the life-and-blood genus of Texans, that is: still living, but mortal, and prone to succumb to the novel virus in the absence of natural immunity, vaccine, or cure.

    Nor does Devine suggest any judicial remedies for unconstitutional gubernatorial crisis management. The Legislature obviously cannot coordinate a disaster response when it is not even in session. And a bicameral multi-member body is not efficient enough to provide central direction and rapid responses in a dynamic situation as it evolves on the ground. Think about Congress waging war, as distinguished from passing a War Powers Resolution or a Declaration of War, and providing the funding. It’s indispensable for there to be a commander in charge of the troops. So what then is the alternative if the Disaster Act is discarded lock, stock, and barrel, to pay homage to a yet inchoate and nebulous constitutional guarantee of economic liberty? That may be an emerging niche opportunity for freshly minted appellate talent. In the meantime, you have to divine that for yourself.


    The other challenge – distinct from the theoretical merits of a constitutional re-pondering and re-envisioning – is the one of the structural reality of litigation against governmental entities. If you sue the Governor, the Attorney General will defend him, and the AG usually has his way with the SCOTX in those types of cases. See, for an example involving emergency powers, In re Abbott, No. 20-0291, 2020 WL 1943226 (Tex. Apr. 23, 2020) (per curiam) (granting the Governor mandamus relief in case in which misdemeanor judges challenged EO-13 and had obtained a TRO from a Travis County trial court).

    That’s the Governor’s BREED-THE-VIRUS-IN-JAIL ORDER. It was constitutionally infirm under the separations of powers principle (state const. argument) and did not even advance the goal of coping with the declared public health disaster (ultra vires argument), but the Supremes ruled for the Guv anyway, albeit not on the merits. – They did so in a per curiam, i.e., unsigned and therefore unattributable opinion.

    As much as I am a critic of the AG his political priorities, their briefing is consistently top of the line. Can’t say the same for the private attorneys, where the quality is mixed and mistakes are made. Shelley Luther’s attorney, for example, appealed the temporary restraining order (TRO) under which Luther went to jail for contempt of court even though a TRO cannot be appealed and has an expiration date. While an interlocutory appeal from an order granting or denying a temporary injunction is authorized by statute, no corresponding statutory provision authorizes an appeal from the grant or denial of a TRO. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4). Unsurprisingly, the Dallas Court of Appeals dismissed the appeal for want of jurisdiction. S&B HOT MESS ENTERPRISES, LLC D/B/A SALON A LA MODE AND SHELLEY LUTHER v. CITY OF DALLAS, No. 05-20-00502-CV (Tex.App.- Dallas, Jul. 15, 2020).

    But if the complaints attorneys are prominent Republicans, they have a good chance of getting favored treatment nonetheless, such as a COURTESY CONCURRENCE that can then be cited in support in the next iteration of a challenged to a COVID-19 order. See Blacklock concur in Salon a la Mode (Luther’s shop by another name), which Devine cites in his own jurisdictional-dismissal concur in In re Hotze, No. 20-0430 (Tex. 2020).


    Shelley Luther’s attorney also got her instantly released from jail, and the SCOTX is still sitting on the case and pondering what to do with her habeas corpus petition (No. 20-0363). Unlike the GOP Convention hot potato (In re Republican Party of Texas, No. 20-0525 (Tex. Jul 13, 2020), they probably can’t just toss it for lack of jurisdiction because then she would have to go back to jail for another 5 out of 7 days (she is currently at liberty from the local lockup on a personal non-dollar bond). They might have to kill the order itself, declaring it void.
    Of course, you never know what they will come up with. Perhaps they will absolve her of her “crime” by spinning or distilling (pick your preferred occupational metaphor) a constitutional salon-running liberty out of the Texas constitution. That would be a crowning achievement befitting the occasion, what with the crisis induced by a corona-shaped virus coming to a head.

    They have already granted Luther leave for her attorney to make novel arguments in an amended filing (the original petition relied on technicalities, such as lack of specificity in the order).

    At least thematically and setting-wise, a second À LA MODE ruling could be woven into the eyebrow-threading precedent to form a harmonized SALON JURISPRUDENCE, and since the salon services are also hands-on, perhaps the newly discovered liberty can even be hooked up to the long line of constitutional cases protecting intimate association of the not-so commercial sort.

    The evolving SALON JURISPRUDENCE could then be coupled with Hotze’s unmasking bid (contra government overreach in mandated orifice covering, which has spawned much jurisprudence of its own over the years), and with the complaints of bar owners (the ones without SOB licenses) about gubernatorial interference with their equally constitutionalizeable right to lubricate unstructured pre- or quasi-intimate person-to-person associational activities of their patrons with liquor.

    Multiple strands of preexisting constitutional liberty jurisprudence can be artfully woven into a new tapestry by our contemporary guardians of the bulwarks of liberty. All it will take is a bit of new-found ingenuity. Let those who would rule by fiat do the kowtowing.


    There is a discernible and veritably eyebrow-raising silver lining on the legal front. Devinely premonitioned early scintillas of a bright future for the legal biz at the end of the tunnel and yonder.

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