Yesterday the Texas Supreme Court heard oral arguments in Von Dohlen v. City of San Antonio (No. 20-0275). This case arose from the City of San Antonio’s decision to require a subcontractor to substitute another food vendor for Chick-fil-A at the city airport allegedly based on the objection of city councilmembers to Chick-fil-A’s “legacy of anti-LGBTQ” behavior. In 2019 Legislature responded to the City’s action by enacting §2400.002, Government Code, to prohibit governmental entities from taking any adverse action against a person or business based on “membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.” Days after the bill went into effect, the plaintiffs filed suit against the City alleging that the City violated the law by excluding Chick-fil-A from the airport because of its past and present contributions to religious organizations opposed to homosexuality. The City filed a plea to the jurisdiction (sovereign immunity) and a Rule 91a motion to dismiss for lack of standing. The trial judge denied both motions. The City filed an accelerated appeal to the San Antonio Court of Appeals.
In an opinion authored by Chief Justice Sandee Bryan Marion, the court held that the trial court erred in not dismissing the case based on the City’s plea to the jurisdiction. The court of appeals did not reach the standing issue. The City argued that because the new law became effective after the City had entered into the agreement with the subcontractor and was not retroactive, its waiver of sovereign immunity provision did not apply to the contract at that time. The issue, however, came down to whether the City committed an ongoing violation of the new law by “continuing” to exclude Chick-fil-A. The plaintiffs argued that the City’s post-September 1 negotiations regarding airport food vendors and intention to locate a restaurant in space “earmarked for Chick-fil-A” constitute ongoing violations of the statute. They sought an injunction requiring the city to install a Chick-fil-A restaurant in the airport. The City responded that the old law applies and that the plaintiffs were merely trying to reverse an action they didn’t like and was lawful at the time the action was taken.
The court of appeals’ analysis commenced with a review of the law of governmental immunity as it relates to an action seeking to cancel or nullify a contract made for the benefit of the state. If such invalidation of the contract is the only “plausible remedy,” governmental immunity bars both the suit and the liability. The court of appeals had no trouble finding that the plaintiffs, by seeking to reverse the contract and install a Chick-fil-A at the airport, in effect sought invalidation of a government contract entered into prior to the date of the new law. Consequently, the court of appeals reversed the trial court and rendered judgment for the City based on lack of jurisdiction.
The parties’ briefs to SCOTX draw the standing issue starkly. The plaintiffs argue that the Legislature can confer standing by statute to anyone for just about any purpose, particularized injury or not. They cite a number of precedents that distinguish common law standing from standing granted by statute, such as §2400.002, to support their contention. The city likewise cites a substantial body of SCOTUS and SCOTX authority to support its argument that there is a federal and state constitutional minimum standing threshold that requires a plaintiff to demonstrate an injury that a court is competent to redress. This threshold is mandated both by separation of powers, which denies courts from issuing advisory opinions on abstract questions, and the Open Courts provision, which grants access to the courts only to a person “for an injury done him.” The city argues further that Texas jurisprudence on standing closely parallels SCOTUS precedent, including a 2018 SCOTX opinion stating that “Texas has adopted the constitutional standing test employed by the federal courts.” Tex. Bd. Of Chiropractic Examiners v. Tex. Med. Ass’n, 616 S.W.3d 558,567. According to the city, the “minimum constitutional elements for standing under Texas and Federal law are (1) an injury in fact, (2) the injury is fairly traceable to the defendant’s conduct, and (3) the injury will be redressed by the requested relief” [citing Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012)]. The city contends that the plaintiffs have not satisfied any prong of the test. There is also the added difficulty that the relief requested by the plaintiffs would require a court to order the cancellation of a binding contract and order two non-parties (Chick-fil-A and the city’s subcontractor) to enter into a contract with one another. Consequently, the plaintiffs in effect seek nothing but an advisory opinion, which the Texas Constitution prohibits.
This case, along with the two federal challenges to SB 8 before SCOTUS (and being argued today), could determine whether legislative attempts to avoid direct enforcement of statutes by conferring standing on the general public take wing into other realms. With respect to this case, the issue could have been avoided had Chick-fil-A, the injured party, filed suit under the statute (though the retroactivity issue would still have been problematic for them, not to mention the publicity that such a suit would have attracted). Section 2400.003 authorizes a “person” to “assert an actual or threatened violation” of the statute and seek injunctive and declaratory relief, along with costs and attorney’s fees. The plaintiffs contend that they are “persons” asserting an actual violation and thus have standing to bring suit. But the statute still refers to remedies that a court can actually provide, implying that the “persons” must have an injury that the court can redress. Put another way, it’s not as clear as it might be that §2400.003 really confers standing on these plaintiffs in any event.
SCOTX will tell us something, but they might not reach the merits of the issue. The Court could simply affirm the court of appeals and say that since the alleged violation occurred before the effective date of the legislation, sovereign immunity bars the suit. That would be a clean solution that puts off the standing question to another day. Or it might tackle the issue head on in the interest of developing further standing doctrine jurisprudence. One way or the other, we shall see.