As we reported yesterday, Judge David Peeples found constitutional fault with SB 8’s procedural requirements and barriers. Today we look more closely at the three fatal infirmities that he identified in the law.
Standing. In this space we have previously conveyed our own doubts about SB 8’s universal authorization for “any person” to sue “any person” who performs or aids and abets an illegal abortion. Under any normal circumstances, we simply cannot comprehend how the civil courts have constitutional jurisdiction in the absence of a “case or controversy” involving a party that has allegedly suffered a specific, concrete injury. As Justice Peeples points out, SCOTX has very recently restated the purposes of the constitutional standing doctrine, which “derives from the Texas Constitution’s provision for separation of powers among the branches of government, which denies the judiciary authority to decide issues in the abstract, and from the open courts provision, which provides court access only to a ‘person for an injury done him.’” In re Abbott, 601 S.W.3d 802 (Tex. 2020). Texas courts have adopted the federal standing doctrine, which requires plaintiffs to demonstrate “that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a ‘close relationship’ to a harm traditionally recognized as a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including . . . reputational harm.” Spokeo Inc. v. Robins, 578 U.S. 330, 340-41 (2016).
TRL argues that the standing doctrine does not apply because SB 8 confers statutory standing. They cite a 1915 SCOTX decision that allowed a private person to seek an injunction against a “bawdy house” without having to show that the person was “personally injured by the acts complained of.” Spence v. Fenchler, 189 S.W. 597 (Tex. 1915). In the event, the plaintiff in Spence owned a home near the bawdy house and pleaded concrete injury in the form of loss of property value. And when SCOTX revisited Spence in Scott v. Board of Adjustment, 405 S.W.2d 55 (Tex. 1966), it said that the legislature could confer standing to a person without a particularized injury to challenge certain decisions by public bodies (i.e., taxpayers), as long as such a grant remained “within constitutional bounds.” As Justice Peeples points out, nothing cited by TRL authorized one private citizen to sue another private citizen for mandatory damages “without showing any connection to, or harm from, the defendant or the conduct. . . . It is one thing to authorize taxpayers or citizens to file suits against government officials to make them obey a law, and to compensate these private attorneys general for their time and trouble and their attorney fees with money from the state treasury, as statutes sometimes do. It is quite another thing to incentivize citizens or persons to file suits against other private citizens to extract money from them, with no pretense of compensating the claimant for anything.”
As to statutory standing trumping constitutional standing, SCOTUS has made it clear that Congress “may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is. . . . [I]f the law of Article III did not require plaintiffs to demonstrate a ‘concrete harm,’ Congress could authorize virtually any citizen to bring a statutory damages suit against virtually any defendant who violated virtually any federal law.” TransUnion LLC v. Ramirez, 141 S.Ct. 2200, 2204-2208 (2021). This is exactly what SB 8 does. It authorizes “any citizen” to bring “a statutory damages suit” against “any defendant” for an alleged violation of state law. Regardless of anything else SB 8 does, this should be the end of the inquiry.
Punishment without due process. But lack of standing is not the end of the inquiry. Plaintiffs contend that SB 8 imposes a mandatory statutory minimum of $10,000 that violates procedural and substantive constitutional due process rights. Specifically, SB 8’s damages are not compensatory but punitive in nature. Under Texas law, punitive damages may only be awarded when “the claimant proves with clear and convincing evidence that his harm resulted from fraud, malice, or gross negligence.” § 41.003(a), CPRC. Under SB 8, however, the claimant does not have to prove injury, simply a violation of the statute. “SB 8 does not come close to satisfying constitutional due process,” Judge Peeples states. “Instead it lessens the procedural rights enjoyed by other civil litigants, such as a court and jury with discretionto assess damages, and fair notice of what the court and jury may consider when to deciding whether to award more than the statutory minimum.” To make matters worse, a claimant may multiply the penalty simply by adding more defendants, a defendant who challenges the constitutionality of the statute or who is wrongfully sued can never recover attorney’s fees, and res judicata does not apply to bar additional claims against the same defendant on the same facts. In the absence of even the barest due process protections, SB 8’s punitive damages provision is unconstitutional.
Delegation of enforcement power. The whole point of SB 8’s private enforcement mechanism is to empower “any person” to enforce Texas’ anti-abortion statutes without any involvement or participation by the state. When SB 8 was passed, of course, SCOTUS had not yet decided Dobbs, so the drafters of SB 8 designed the bill to wire around a constitutional challenge in federal or state courts. But, as Judge Peeples points out, “SB 8 grants to 21 million Texans the power to bring cases without any guidance, supervision, or screening. There is no guidance in the statute and no guidance from any public official. There is nothing to prevent a billionaire from Texas or another state, motivated by ideology, from setting up an enforcement system by locating a few willing Texans who live in favorable counties in venue to file suits in their home counties and enforce SB 8 across Texas” (this may be happening right now). Judge Peeples then walks through an 8-factor test for determining the constitutionality of a statutory delegation of authority to private persons. These factors include: meaningful review of the private delegate’s actions by the state, whether the delegate has a monetary incentive, whether the delegate has special training or qualifications to exercise the power, whether the Legislature provided any standards, and whether those affected by the delegate’s actions are adequately represented in the decision-making process. Justice Peeples found that SB 8 met none of these standards.
As we noted in yesterday’s post, Plaintiffs are asking the Austin Court of Appeals to affirm Judge Peeples’ findings, whereas TRL seeks a narrower ruling on the TCPA and standing issues alone. Judge Peeples’ opinion is thoughtful, deliberate, well founded on the relevant authority, and, in our view, entirely correct as to SB 8’s radical and unconstitutional revision of civil procedure. How (and when) higher courts will view these issues certainly remains to be seen, but Judge Peeples has provided a lot for them to hang their hat on.