A Little Too Ironic

 So Ken Paxton went to the Texas Supreme Court to remove 13 Texas Representatives from office (lowering quorum to 90 from 100).  Yeah, Ken, that’ll work.

Here’s the problem with Paxton’s petition. Well, one of the problems:

But the Texas Constitution and state statutory law also authorize a direct action seeking a writ of quo warranto in the state Supreme Court. Article V, Section 4 of the Texas Constitution provides that the legislature “may confer original jurisdiction on the Supreme Court to issue writs of quo warranto.” The legislature, in turn, has authorized the high court to issue writs of quo warranto against “any officer of state government except the governor[.]”

Abbott argues that because a member of the Texas House is an “officer of state government,” the Supreme Court has jurisdiction to hear his quo warranto action. To support this claim, he cites a 19th-century Texas Supreme Court case, which he describes as holding that the phrase “officer of state government” must be “given its plain meaning.”

Conveniently, the governor’s lawyers ignore more than a century’s worth of rulings in which Texas courts have have narrowly construed the meaning of that phrase. As early as 1903, in Betts v. Johnson, the state’s Supreme Court held that the legislature intended “to include only such state officers as are charged with the general administration of state affairs, namely, the heads of the state departments.” More recently, in In re Nolo Press/Folk Law, Inc., the Texas Supreme Court described the phrase as applying only to a “small circle” of state officials. The court explained:

We have construed this phrase to refer, not to every State official at every level, but only to chief administrative officers—the heads of State departments and agencies who are charged with the general administration of State affairs.

As these authorities make clear, the Texas Supreme Court’s longstanding interpretation of “officer of state government” is limited to state-level administrative officials in the executive branch—not members of the legislature. You wouldn’t know that from Abbott’s brief, because he cites none of those cases.

Now, that analysis is about Abbott’s petition to remove Gene Wu; but Paxton’s petition to remove Wu and 12 others is subject to the same defect.

There’s another jurisdictional problem relevant to both Abbott and Paxton’s petitions:

Even if Abbott manages to overcome the aforementioned jurisdictional hurdles, there’s no guarantee that the state Supreme Court will agree to hear the case. The justices have rarely entertained direct actions to the Supreme Court for a writ of quo warranto. And, on several occasions, it has required parties seeking the writ to first pursue their claims in the district court. That course of action may be particularly appropriate here given that there are bound to be disputed questions of fact concerning Rep. Wu’s conduct and intent.

Questions of fact are decided at a trial, in a trial (not appellate) court.

...in a 1873 case called Honey v. Graham, the justices made clear that the question of whether a public officer “abandoned” his or her office is a fact question to be resolved in court.

Appellate courts can decide whether questions of law were properly presented to triers of fact; but they cannot sit as courts of original jurisdiction, trying and determining questions of fact. Questions of fact can only be resolved by triers of fact; in trials.

There’s another problem, too:

Finally, there are serious questions as to whether the case is even justiciable. Courts generally avoid intervening in entirely internal legislative disputes, recognizing that political questions are best resolved within the legislature itself. And the Texas Supreme Court has on at least one occasion refused to get involved in a legislative dispute concerning quorum-breaking. Given that Abbott’s petition essentially asks the court to intervene in internal legislative matters, there are prudential reasons why the Texas Supreme Court might decline to hear it on justiciability grounds

These are all questions of law, the kind appellate courts deal in.

Now let’s look at Paxton’s reported distinction/argument (from the Texas Tribune, not a Lawfare review of the pleadings). Paxton said he’d have to take this to 50 (or at least 13) district courts (remember?). 

But in Friday’s filing, he argued that the Texas Supreme Court has the right to rule directly on this case, especially when there is a need to swiftly resolve the matter.

Not swift resolution of the problems of floods in Texas, but of Trump’s need for five more seats in Texas. A political emergency, IOW. Doesn’t count, on the same grounds of justiciability. And the whole constitutional issue of due process of law.

Abandonment of office is a question of fact. That means it must be decided by a trier of fact, being a judge or a jury. Ken Paxton doesn’t have time for 13 jury trials in 13 counties. He’s trying to keep up with Cornyn’s escalation of getting help (maybe?) from the FBI. This is a fight between Cornyn and Paxton for the GOP primary vote in Texas.

If the Texas Supremes were to grant Paxton’s petition (remember, they must allow the action before they can rule on the action) and immediately rule on the petition, granting it, that would open a federal court challenge for 13 parties denied their 14th Amendment rights (due process and equal protection). This is not Paxton seriously seeking a quick remedy. The Court would at least have to allow 13 hearings, or one long, raucous one. The complications of working that out are just a bit daunting and, again, can’t be ironed out by the 18th (end of the session). Paxton knows that.

He’s just playing to one up Cornyn, if he can. His gesture is as empty as Cornyn’s claim the FBI is chasing down rogue legislators. What’s the endgame there? What’s Paxton’s endgame? Or Trump’s, with Maxwell?

None of them know. But all three are playing the same game. The same helpless game. Isn’t it ironic? Don’t you think?