Week in Review (and more)

Vacatur after settlement, appointment of amici, and a certified question that hasn't been accepted

Welcome back to 14th and Colorado. It’s been too long. Today’s post addresses some interesting recent developments and a case (or two) that have the potential to impact the code of judicial conduct.

Vacatur after settlement

In an earlier post, I highlighted how Justices will telegraph their interests and views on various issues in concurrences and concurrences in the denial of petitions. Last week, the Court’s newest Justice, joined by Justice Busby, did just that in a short concurrence. Justice Sullivan shared his views about parties seeking vacatur of the court of appeals’ opinion when they settle after filing a petition for review. In short, absent extraordinary circumstances, these requests are unlikely to be granted and lawyers should rarely, if ever, file them going forward.

In four cases, parties who had filed a petition for review asked the Court to vacate the court of appeals’ judgment and the court’s opinion. Two rules of appellate procedure allow the courts of appeals and the Supreme Court to do this: 42.1 and 56.3, respectively.

Rule 42.1(c):

Effect on Court's Opinion. In dismissing a proceeding, the appellate court will determine whether to withdraw any opinion it has already issued. An agreement or motion for dismissal cannot be conditioned on withdrawal of the opinion.

Rule 56.3:

If a case is settled by agreement of the parties and the parties so move, the Supreme Court may grant the petition if it has not already been granted and, without hearing argument or considering the merits, render a judgment to effectuate the agreement. The Supreme Court's action may include setting aside the judgment of the court of appeals or the trial court without regard to the merits and remanding the case to the trial court. . . . In any event, the Supreme Court's order does not vacate the court of appeals’ opinion unless the order specifically provides otherwise. An agreement or motion cannot be conditioned on vacating the court of appeals’ opinion.

As Justice Sullivan’s concurrence notes, the federal courts have adopted a presumption against vacatur when a case settles, except in very narrow circumstances. Quoting Justice Scalia, he wrote that “Munsingwear vacatur, proclaimed that ‘mootness by reason of settlement does not justify vacatur of a judgment under review,’ though ‘exceptional circumstances may conceivably counsel in favor of such a course.’” That is, in federal court, settlement does not typically result in the court of appeals judgment being vacated.

The Texas Supreme Court took a different approach until 1993, vacating nearly every opinion when the parties settled. But, as is the case with a growing number of issues at the Court, there has been a shift towards the federal courts’ way of doing things. But we’re not quite there—in Texas the judgment can be vacated without also vacating the opinion. Current Texas Rules of Appellate procedure adopt a similar presumption against vactur. While the Court typically grants motions for vacatur of the judgment, it has granted vacatur of the opinion just twice—Brazos River Authority v. City of Houston, No. 21-0642, 2022 WL 4099236 (Tex. Sept. 2, 2022), and Farley v. Miranda, No. 22-0113, 2023 WL 2358183, at *1 (Tex. Jan. 13, 2023). Those cases presented extraordinary circumstances—Brazos River Authority was vacated “[b]ecause the State was not a party to the settlement and the issues presented may be of consequence in other contexts” and Farley was remanded to the court of appeals for consideration of whether to vacate the opinion. The court of appeals ultimately withdrew its opinion in Farley. But, to avoid gamesmanship and wasting the Court’s limited time and resources, Justice Sullivan believes that granting a motion to vacate the court of appeals’ opinion should continue to be rare.

Bottom line: don’t file these unless you think you have very good cause to do so going forward.

Amici appointed to defend “no guns in bars” law

I’m straying a bit outside of the Texas state appellate courts for a moment to highlight an interesting order from Judge Mark Pittman of the Northern District of Texas (Fort Worth Division). Judge Pittman often finds himself assigned to hot-button cases (SEAL vaccine mandate, student loan debt forgiveness, cap on credit card late fees, and on and on). This time he is presiding over a suit challenging Texas Penal Code § 46.03, which prevents carrying firearms (and other specified weapons) in a variety of places, including schools and postsecondary educational institutions, polling places, courts, racetracks, the secure area of airports, bars, sporting events, and a variety of other places. The Texas Attorney General refused to defend the law on the merits. Having waived any argument on the merits, Judge Pittman was faced with either ruling on standing or appointing an amicus to defend the law. He did the latter.

Plaintiffs, aided by Firearms Policy Coalition, challenged the Texas law, and the Attorney General’s office refused to defend it on the merits. On its cross-motion for summary judgment, the AG limited its defense to arguments that the plaintiffs lacked standing. In the AG’s view, the law is indefensible—there is no historical analogue. (“Given the lack of suitably analogous predecessor legislation, Defendant agrees with Plaintiffs that ‘an American tradition justifying the State’s’ restrictions codified in §§ 46.03(a)(4), (7), and (8) cannot be identified. Id. at 70.”).

Taking a page out of Southern District of New York Judge Dale Ho’s playbook, Judge Pittman appointed a high-profile amicus to defend the law—former Fifth Circuit Judge and now-Gibson Dunn partner Gregg Costa (Judge Pittman also appointed SMU’s Eric Ruben). Friday’s deadline to object has come and gone and Plaintiffs do not oppose the appointments—they noted their intent to amend their complaint to name new defendants, which may change whether amici are necessary. Though I imagine it’s unlikely anything will change.

In the Adams case, Judge Dale Ho appointed Paul Clement—among the best-known (and highly-regarded) conservative litigators in the country—to address whether the case against the mayor should be dismissed with or without prejudice. It was not the first time Clement had been appointed to represent a cause seemingly antithetical to his personal views. In 2019, the Supreme Court appointed Clement as amicus to defend the CFPB. Judge Pittman’s appointment strikes an interesting though not identical note.

Judge Costa, widely respected as a brilliant legal mind and an excellent writer, resigned from the Fifth Circuit in 2022—the court that could eventually review Judge Pittman’s decision. Costa undoubtedly has the inside-baseball knowledge to understand how his former colleagues on the Fifth Circuit will view the case. In that respect, this is an incredibly savvy move by Judge Pittman. But Costa was often in dissent on the conservative-leaning Fifth Circuit. There is little doubt he will do an admirable job on this assignment. But, unlike Clement being appointed to represent “liberal” causes, Costa is not known for being an arch-conservative who would ordinarily find himself on the other side of Second Amendment cases. So it’s not clear that this appointment will insulate Judge Pittman from criticism should he uphold the law in the same way as Clement’s appointments. Nor does it necessarily make it more likely the Fifth Circuit will affirm should Judge Pittman uphold the law. That court has had no qualms with disagreeing with Judge Costa’s views. We’ll see how the case progresses (and what other interesting legal questions Judge Pittman finds before him).

A certified question not yet accepted

Speaking of other interesting cases before Judge Pittman, I wanted to flag a pending (that’s part of what makes it interesting!) certified question that started in his court.

I’ve previously written about certified questions at the Supreme Court. As I noted, the Court almost reflexively accepts these questions and calls for briefing—a departure from its ordinary process of calling for briefs on the merits before granting the case—though we’ll see how much longer the briefs-before-grant practice lasts after the Supreme Court Advisory Committee was tasked with reviewing the practice. But the most recently certified question, Umphress v. Hall, has not been accepted yet, weeks after it was certified. Instead, the Court called for briefs on the merits and directed the parties to “address whether any party’s position on the certified question has changed in a way that could affect the continued justiciability of the case.”

The case will feel familiar to avid Court watchers—it’s a Hensley v. State Commission on Judicial Conduct redux. Indeed, Umphress’s case was previously dismissed under Pullman abstention because Hensley, involving interpretation of the same canon of the judicial conduct code, was pending in state court.

Umphress, a county judge, declines to perform same-sex marriages on religious grounds. He is challenging Canon 4A(1) of the Texas Code of Judicial Conduct, which requires Texas state judges to conduct their extra-judicial activities in a manner that does not call into question their impartiality. The Fifth Circuit certified the following question

Does Canon 4A(1) of the Texas Code of Judicial Conduct prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?

Umphress brings five claims for declaratory and injunctive relief: (1) that neither Obergefell nor the Constitution requires officiants to perform same-sex weddings; (2) that the Commission’s interpretation and application of the Canon (a) violates the First Amendment, (b) is unconstitutionally vague, and (c) violates the Free Exercise Clause; and (3) that Obergefell was wrongly decided.

The Commission moved to dismiss for lack of subject matter jurisdiction and sought abstention under Pullman. The district court granted the motion to dismiss, holding that Umphress lacked standing and that his claims were unripe. The court concluded in the alternative that “[e]ven if . . . Umphress had standing and his claims were ripe, [it] would abstain under Pullman.” Umphress appealed.

The Fifth Circuit’s decision

The Fifth Circuit disagreed with Judge Pittman’s decision on standing—the panel concluded that Umphress satisfied its three-prong test for pre-enforcement challenges. First, Umphress has shown “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Second, Umphress has shown that his intended future conduct is “arguably proscribed by” Canon 4A(1)—he did so by pointing to the public warning against Hensley for engaging in materially identical behavior. Third, Umphress has shown that “the threat of [Canon 4A(1)’s] future enforcement is substantial.” Again, the Fifth Circuit relied on the Commission’s public warning against Hensley, coupled with its refusal to disavow enforcement against him, to conclude that he met the final prong.

The Court inquired about mootness after the Commission withdrew its public warning against Hensley but ultimately concluded nothing mooted the case.

On Pullman abstention, the Fifth Circuit concluded that subsequent developments have made it unlikely the state courts will answer the state-law question on its merits. So the Court declined to abstain. As I will discuss below, it’s not clear that the state courts will be able to avoid the merits—the relief sought in Hensley means that the withdrawal of the warning almost certainly does not moot the case. Despite declining to abstain, the Court concluded that the best path was to certify the question above to the Supreme Court. That certification remains pending with the opening brief due June 2 (barring any extensions). The Court’s order instructed the parties to address whether their positions have changed on the certified question in a way that affects justiciability (likely mootness).

The Court may be looking to conserve judicial resources here by refusing to accept the question just yet. In Hensley, then-Justice Blacklock, joined by Justice Devine, penned a concurrence noting that he would have reached the merits and concluded that “[t]he Commission’s actions did violate Hensley’s legal rights, and the procedural quirks of this case do not prevent this Court from saving everyone a lot of time and trouble by saying so now.” And Justice Young, in a separate concurrence, admittedly tipped his hand about his view on the merits—“I doubt that respondents have much reason to push the case on the merits all the way back to this Court.” Given Umphres’s counsel is continuing to argue for a decision on the merits in Hensley (more on that just below), and at least three of the Justices have tipped their hand that they would side with a judge refusing to perform same-sex weddings, the question was probably directed at the Commission (a bit of “are you sure you don’t want to disclaim enforcement of this rule in this kind of situation?”). We’ll see what happens in a few weeks when the first brief comes in (barring any extensions).

Hensley back before the Austin Court of Appeals

Coincidentally, Hensley was recently argued in the Austin Court of Appeals. After the Supreme Court remanded the case, holding that her challenge to Canon 4(A) was not an impermissible collateral the commission. The argument spent some time on the mootness issue—did the Commission’s withdrawal of the public warning moot the case? Hensley argues that for several reasons it did not: (1) voluntary cessation cannot moot it, (2) Hensley is seeking damages under TRFRA for lost income, and (3) she is seeking attorneys’ fees under the UDJA and seeking fees prevents mootness in Texas courts (this stands in contrast to federal court where seeking fees alone cannot keep an otherwise moot case alive). The Court seemed skeptical of the Commission’s attempt to argue the case was moot—she has a TRFRA claim for damages and a UDJA claim for attorney’s fees—unripe, or Hensley was estopped.

On the merits, Hensley’s counsel raised the writ of erasure fallacy—court decisions declaring a law unconstitutional do not erase the law from existence. According to counsel, state law banning gay marriage remains on the books after the Supreme Court’s decision in Obergefell. See, e.g., Art. 1, §32 of the Constitution; §6.204 of the Family Code. The court of appeals swiftly shut down any discussion of whether Obergefell should be overturned. But he pointed out that Hensley’s refusal to marry same-sex couples is consistent with state law, even if those laws are unenforceable. So the state cannot have a compelling interest in applying Canon 4A to prohibit her conduct. The situation, he noted, might be different if she had refused to marry interracial couples. Counsel for the Commission had relatively little to say about the merits and seemed to suggest that it was only her comments to the news, not her refusal to marry same-sex couples, that was problematic.

The Court questioned whether they should reach the merits because the trial court had not. The parties disagreed. Hensley said that sending back to the trial could would not be an efficient use of judicial resources. The Commission believes there are fact issues and wants to litigate the TRFRA claim in the trial court—the court of appeals should confine itself to the mootness issue. We’ll have to wait to see what the Court does in this case and what the Supreme Court does in Umphress.