The Texas Supreme Court on Monday rejected the state Republican Party’s appeal of a lower court’s decision regarding its in-person Houston convention, all but ensuring that Mayor Sylvester Turner’s move to cancel the event will stand.
In an unsigned “per curiam” opinion, the court ruled that while the Texas GOP has the constitutional right to hold a convention, “those rights do not allow it to simply commandeer use” of the George R. Brown Convention Center, where the event was set to take place Thursday through Saturday.
“Houston First’s only duty to allow the party use of the center for its convention is under the terms of the parties’ agreement, not a constitution,” the opinion stated.
[…]
The Supreme Court also rejected a petition for a writ of mandamus — a court order requiring the city to reverse the cancellation — from Steve Hotze, a Houston Republican activist who challenged the convention cancellation along with three other plaintiffs.
Justice John Devine filed the lone dissenting opinion, arguing that the court had standing to rule on the Texas GOP’s case and that Houston First breached its contract with the party by canceling. Devine also dissented from the court’s decision to deny Hotze’s petition.
Meanwhile, Justice Jeff Boyd decided not to participate in the decision. He is one of four justices whom the Texas Democratic Party called on to recuse from the case, due to their sponsorship of the convention. The other three justices — Chief Justice Nathan Hecht and Justices Jane Bland and Brett Busby — opted not to recuse themselves.
See here, here, and here for the background. The ruling was more or less along the lines of that AG brief that supported the city’s position, that this was a matter of contract law, not election law. This was a writ of mandamus, asking for a quick ruling from SCOTX without waiting for the district court to issue a judgment. The denial of the writ means that the case goes back to the district court, but since this shindig was supposed to start on Friday – indeed, some preliminaries are already underway, presumably in virtual fashion – there ain’t much time for that. For their sake, I sure hope the RPT has its contingency plans for an online convention ready to go. You know, like the TDP had for its convention back in March. Mayor Turner’s statement is herer, and the Trib, the Press, and the DMN have more.
UPDATE: It’s official, the GOP will have a virtual convention. Here’s the updated Chron story.
A SLIGHTLY DIFFERENT TAKE ON THE SUPREME PORTION
OF THE CORONA CONVENTION KERFUFFLE …
Since I am working on a scholarly article about this stuff — which ideally should contribute to the public discourse some “original” thought, though not “originalist”, let me throw out some food for thought on this, and invite others to take issue with it:
“PER CURIAM” OPINION IS NO BIG DEAL
In re Texas Republican Party, No. 20-0525 (Tex. Jul. 13, 2020) is a short opinion (3 pages) that resolves the mandamus case on a single and very concise issue: whether or not the “legal duty” that can be enforced through an ELECTION CODE MANDAMUS includes a duty that arises from a contract in addition to a duty imposed by public law, ie whether the term “law” in the statute includes legal obligations that were voluntarily assumed by contacting parties.
The Court answered that question with a NO. Justice John Devine disagreed, and wrote a (much longer) dissent, explaining why he read and interpreted the statutory text differently. Justice Boyd stayed out of the fray (as is customary, with stating a reason).
It is of little import that the majority opinion does not have an identified author. We can simply attribute it to all members of the court who either (1) did not dissent or concur, or (b) are not listed as “not participating”. If any one of the additional justices wasn’t comfortable with the resolution of this case, he or she could have written separately, or noted their divergence without separate opinion, as Justice Divine did in the companion case brought by Steven Hotze (No. 20-0524), which the SCOTX denied, rather than dismissing it. The latter challenged the TRO denial by Harris County District Judge Larry Weiman, sitting as ancillary judge in Cause No. 2020-40714.
THE SUPREMES DIDN’T DENY MANDAMUS IN THE GOP MANDAMUS (ON THE MERITS), THEY INSTEAD DISMISSED THE PETITION
For purposes of general discussion, and practical effect, it makes no difference whether the supreme court denied or dismissed the GOP’s petition. Bottom line is that the Republicans didn’t get the relief they sought from the Supreme Court. So far, so good, but the distinction is not merely a matter of legal sticklerism.
Here is why it matters: (1) They didn’t actually decide the force-majeure contract issue, and they didn’t rule in favor of Mayor Turner. The trial court will have to decide whether the mayor is even a proper defendant (City of Houston and Major filed a plea to the jurisdiction, which has not yet been ruled upon).
(2) The supreme court dismissed the mandamus petition against all respondents for LACK OF JURISDICTION. That means that the merits of the dispute can’t be reached because without jurisdiction there is nothing for the court to decide.
The reason for lack of jurisdiction is the Supreme Court’s determination (debatable as it may be as an academic question) that the nature of the complaint presented by the GOP does not fit the requirements of the statute that authorizes this special statutory mandamus proceeding, which is Texas Election Code Section 274.061. According to the majority, it did not fit because the Republicans were trying to enforce a duty predicated upon a contract, not “law” as they defined it. So, the procedural vehicle created by section 274.061 wasn’t available to them to get a merits hearing in the supreme court.
SUBCHAPTER D. MANDAMUS BY APPELLATE COURT
Sec. 273.061. JURISDICTION. The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.
Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986.
That said, the Supremes’ jurisdictional dismissal of the GOP CONVENTION MANDAMUS is somewhat ironic because the they did not similarly find lack of mandamus jurisdiction in the VOTE-BY-MAIL MANDAMUS. See In re State of Texas, No. 20-0394, 2020 WL 2759629, 2020 Tex. LEXIS 452 (Tex. May 27, 2020).
Note that in that very recent case the Supremes concluded that the respondents—the election clerks– had NO LEGAL DUTY to ascertain or determine whether the voters were entitled to claim “disability”, and that mandamus was therefore not available. They nevertheless proceeded to decide a statutory construction issue that did not implicate the election clerks, and offered a less-than-helpful advisory opinion to Texas VOTERS. (Less than helpful because the voters still don’t know what *IS* required to claim “disability” for absentee voting purposes, having been informed that lack of immunity to COVID-19 ALONE is *NOT* sufficient.)
In the ABSENTEE VOTING MANDAMUS, of course, the Attorney General, litigating as “The State” was the petitioner seeking relief, and the Attorney General has the ear of Supremes. That holds true of the GOP convention case also, in which the Solicitor General (second-highest official in the Attorney General’s Litigation Shop) was invited by the SCOTX to file a brief to express the “views” of the “State”.
— Supreme bottom line in both cases: “WE AGREE WITH THE STATE”.
AN ELECTION CODE MANDAMUS IS DIFFERENT FROM AN ORDINARY APPEAL
Unlike a regular lawsuit, a Sec. 273.061 complaint under the Election Code is filed directly in an appellate court and normally that’s an intermediate court of appeals, rather than the Texas Supreme Court (an issue not addressed in the court’s opinion this time). An ordinary appeal challenges a order or judgment of a lower court.
Much of the media mischaracterized the nature of Case No. 20-0525, and it is easily seen why. Like the VOTE-BY-MAIL MANDAMUS, the GOP CONVENTION MANDAMUS relates to other pending litigation in trial courts, and the supreme courts’ opinions even discuss the ongoing litigation in the opinion. So, it very much looks like an appeal. But that does not change its unique nature.
The Texas Election Code allows for enforcement of election-related or convention-related legal duties by filing a case directly in an appellate court against a governmental actor or a private one. In an ordinary mandamus case, by contrast, the respondent is typically a judge. Not so here.
Why does it matter that this was not an appeal?
It matters because the mandamus decision does not necessary terminate the pending related case in the lower court, and it didn’t in this case. The Texas Supreme Court rushed to get its decision out over the weekend, just in time for the temporary injunction hearing scheduled for 9:30 am Monday morning in Harris County district court before Judge Daryl Moore. Expert testimony was taken at the hearing held over Zoom, and the temporary injunction request was denied later that day, with findings issued in the order.
As of 4 pm. Thursday, July 16, the state GOP convention has been unable to resolve computer issues to credential the thousands of delegates and begin the convention, which had been scheduled to begin at 9 a.m.
So does Mayor Turner’s order equate to a form of voter suppression?
Re: “Does Mayor Turner’s order equate to a form of voter suppression?”
No, it does not and here is why: (1) There is no mayor’s ORDER cancelling the convention (no regulatory or executive action). Nor was he even a party/signatory to the contract (facility “license agreement”) between the Texas GOP and Houston First Corp. Corporations, of course, have to act through human agents, but Mayor Turner didn’t sign either for himself or for the City, or for Houston First. The persons who did sign were those with authority act on behalf of bind the corporation to contractual duties.
To the extent it can be said that the Mayor instructed or urged Houston First to exercise the force-major termination option, so what? The legal question was whether the exercise of the option was proper (in conformity with the contract under the circumstances, ie deteriorating local epidemic), not what the motives of the Majors were. Notwithstanding all the diatribe dispatched in his direction, Turner did what he did in order to protect public health, so his motives (assuming they were relevant at all) were anything but improper, notwithstanding all the sound and fury. The “incendiary” language did not come from the Major, instead the GOP attorneys used the vehicle of court pleadings cast aspersion and to try to score political points.
That said, I see grounds to argue that the SCOTX would have had grounds to note mandamus jurisdiction in this type of scenario involving a party’s convention. To that extent, I can support Justice Devine’s dissent, and therefore disagree with the majority. But they should have denied the petition on the merits for failure to satisfy the requirements for such extraordinary relief.
I can’t agree that the supreme court should resolve the FACT issues over the invocation of the force majeure clause by the Houston First in the GOP’s favor.
That’s what the hearing on Monday in Harris County District Court was mostly about. (I was on of the online spectators on the Zoom session). The GOP got its day in court and lost on the merits of its contract claim and request for extraordinary relief in the form of specific performance by injunction.
I find it rather shocking that Justice Devine felt comfortable substituting himself as factfinder based on the mandamus briefs and even diagnosing an absence of evidence in them. Whatever evidence there was in the record would have supported a finding that the Houston First was within its rights to terminate the contract as a matter of law (comparable to a summary judgment in some other contract case), but not to grant equitable relief (specific performance) to the other party.
(2) The Republicans’ failure to work out the jinks with their online procedures and voting mechanism is their problem (internal party affair). Why should Major Turner be responsible for that? The Mayor does not have an duties imposed by law to organize the Republican’s biennial convention. Much less to help them with their technical issues.
The GOP’s incompetence isn’t Turner’s fault
Mainstream,
Not voter suppression.
More like euthenasia.
Pingback: Federal judge rules GOP can have its in person convention – Off the Kuff