Partially overturning a decision of the San Antonio Court of Appeals, the Texas Supreme Court has sent the case seeking to enforce the so-called “Save Chick-fil-A Act” back to the trial court so that the plaintiffs may replead jurisdictional facts. In Patrick Van Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri v. City of San Antonio (No. 20-0725), the San Antonio Court of Appeals reversed a trial court order denying the city’s plea to the jurisdiction. The court of appeals held that since the Act, Chapter 2400, Government Code, took effect several months after the San Antonio city council approved a concession contract that excluded Chick-fil-A from the San Antonio airport, sovereign immunity had not been waived. The court of appeals ruled that the petitioners’ pleading could not be cured and did not remand for repleading.

SCOTX reversed, though it did not entirely disagree with the court of appeals.  In an opinion by Justice Huddle, the Court analyzed its prior rulings regarding the pleading requirements under statutes purporting to waive sovereign immunity based on allegations of prohibited government conduct (e.g., the Whistleblower Act, Texas Tort Claims Act). Here the petitioners’ pleading referenced Chapter 2400 but did not allege specifically how the city was in current violation of it. SCOTX determined that in order “to waive immunity, a plaintiff must plead sufficient facts to actually allege a violation of Chapter 2400. . . . Thus, to invoke Section 2400.004’s waiver of immunity, a plaintiff must plead facts describing actions that constitute the prohibited ‘adverse action’ the governmental entity took based on a person’s membership in, affiliation with, or support provided to a religious organization.” The petitioners did not do that here, but SCOTX found that since the petitioners’ pleading did not contain sufficient facts either way, the proper remedy was to send it back to the trial court for repleading. An amended pleading, the Court held, would have to describe specific actions by the City in violation of Chapter 2400.

SCOTX explicitly declined to reach the standing issue, despite being urged to do so by both sides. This is a big deal.By enacting Chapter 2400, the Legislature created a private right of action in which the plaintiff does not need to show an injury in fact. This appears to contradict SCOTUS precedent, expressly adopted by SCOTX, holding that to “maintain standing, a plaintiff must show: (1) an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the defendant’s challenged action; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision” [citing Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696 (Tex. 2021). But, since the Court held that the petitioners did not initially demonstrate a waiver of governmental immunity, it would be premature to consider the standing issue at this juncture. SCOTX invited the trial court and court of appeals to consider the issue, so assuming that happens, this will be back at the Court in the foreseeable future.

It is very difficult for us to understand how somebody has an “injury in fact” because they have to eat a Flyrite chicken sandwich at the airport rather than a Chick-Fil-A one. We realize that Chapter 2400 purports to be more general than that, but either we have a constitutional standing doctrine as an historic and integral part of common law jurisprudence or we have given over the courts to deal with whatever political issue of the day the party in power decides to hand off to judges. As we have stated before, SB 8 follows precisely the same pattern, and there’s no telling what might be next. Our judicial system is not built for this, and the more of this kind of thing we delegate to it, the more politicized it will become. If we can’t keep our courts above the fray, public confidence in their independence and impartiality will nosedive, as we are currently seeing at the federal level.

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