The Due Process Problems With Enjoining Texas Clerks (Updated)

There are potential constitutional applications of S.B. 8. And an injunction against the clerks deprives citizens of the due process right to test those issues in court.

The oral argument in Whole Woman's Health v. Texas was a bit of a bait-and-switch. It became clear that the petitioner had backed off their claim that state court judges were proper defendants. Now, WWH, as well as the Solicitor General, pivoted to the clerks of court. This claim is problematic for many reasons.

As a threshold mater, this argument ignores the nuances of Texas law. Texas Rule of Civil Procedure 22 provides:

A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.

Texas SG Judd Stone explained:

I might point out, turning specifically to the assertions my friend on the other side has said regarding court clerks, that it's actually not even clear that injunctive relief against a court clerk would give him what he wants because, under Texas Rule of Civil Procedure 22, a petition is deemed filed upon receipt by the clerk. So the clerk doesn't have the opportunity to reject that petition. 

In other words, a complaint is filed without regard to the actions of the clerk. Before the clerk even realizes the complaint raises a claim under S.B. 8, the civil suit was already commenced! I'm sure the former civil procedure professors on the bench can take judicial notice of this rule.

Moreover, even if the clerk cannot docket a complaint, the presiding judge can do so. Justice Alito raised this point during argument:

JUSTICE ALITO: What if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don't want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I'll docket it myself? Then what?

Beyond this practical problem, there are several due process issues.

This remedy would be significantly overbroad. What if a Plaintiff filed a complaint that raised several causes of action, only one of which was S.B. 8? Under the proposed remedy, the clerk would have to bounce the entire complaint. I don't think a clerk, a mere ministerial employee, has the power to redact a complaint. Moreover, if the various claims formed the basis of subject matter jurisdiction--for example, satisfying an amount-in-controversy requirement--knocking out one claim would deprive the court of subject matter jurisdiction. Or what if the complaint was filed right before the statute of limitations ran? Now, the claim would be precluded. This remedy would lock the courthouse door to entirely lawful claims.

Finally, this remedy presumes that S.B. 8 is unconstitutional in all regards. The lawyer for WWH said S.B. 8 is "patently unconstitutional." And he said, under WWH, Courts are not to perform any severability analysis. The entire law must go! This argument is fundamentally flawed.  And courts must perform severability; the failure to do so in WWH was one of Justice Breyer's weakest moments. Apparently, the requirement to install smoke detectors in abortion clinics imposes an undue burden on abortion. Once again, Justice O'Connor's adage was apt: "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion." Add severability doctrine to that list.

Additionally, there are applications of the law that are potentially constitutional. For example, it isn't clear that insurance companies have a constitutional right to fund abortion. Third-party doctrine has not been stretched that far. Maybe the answer is yes. Maybe the answer is no. But the courts can sort out that issue.

Update: Justice Gorsuch asked a question about possible constitutional applications of the law:

JUSTICE GORSUCH: And what about the cases where S.B. 8 could be constitutionally applied, consistent with Roe and Casey? Should they [the clerks] file those lawsuits? Should they try and determine whether --which side of the line they fall on? I mean, post-viability, not for medical reasons, you know, that would meet a Roe and Casey test? Are they supposed to apply Roe and Casey themselves?

Jonathan Mitchell represents intervenors who plan to test the boundaries of this claim. He raised this argument during arguments:

The intervenors intend to sue those who violate Senate Bill 8 but only in response to conduct that falls outside the protections of Roe and Casey. The United States cannot seek or obtain relief that thwarts the enforcement of S.B. 8 in those situations. The statute contains emphatic severability and saving construction requirements, and courts are obligated to preserve the constitutional applications of statutes to the maximum possible extent. 

The United States also cannot seek or obtain relief that would prevent private individuals from suing under S.B. 8, because any such relief would be a flagrant violation of the Due Process Clause. A federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party. And a federal court cannot foreclose those individuals from suing under S.B. 8 when they have been given no opportunity to defend the merits of the lawsuit that they intend to bring. 

An overbroad injunction would prevent all of these plaintiffs from litigating their interests in court. This remedy would deprive countless plaintiffs of access to the courts. Abortion clinics are not the only entities in our polity with due process rights.

At bottom, the "clerk" argument sounds in judicial supremacy. There must be someone to sue, so we'll enjoin the hapless clerk. Wrong. There are no "loopholes" or "chinks" in federal law. The law either permits a suit, or it doesn't. And if the law is flawed, then Congress can make a change. A penalty is not a tax. A state exchange is not a federal exchange. Not every right has a remedy. Remember, Marbury was dismissed for a lack of jurisdiction. Even John Marshall understood that maxim.

Comments

[Dilan Esper]

This is BS. There are no constitutional applications of this statute. Because the unconstitutionality has nothing to do with what abortions are being sued over- it arises from the statute's purpose of effect in evading judicial review.

Texas can enact a constitutional statute banning abortions SCOTUS says it can ban. It can enact a statute that pushes the envelope and then argue SCOTUS should narrow or overturn Casey. But what it can't do is this. There is not a single constitutional application of this statute, because the entire scheme has a chilling effect on the exercise of constitutional rights.

[Brett Bellmore]

"There are no constitutional applications of this statute."

The requirement to do a test for a fetal heartbeat prior to any abortion, at least, seems fairly unproblematic constitutionally.

[Dilan Esper]

Sever it then.

[Gandydancer]

Did you even read the post?

Or yourself? ("There are no constitutional applications of this statute.")

[Dilan Esper]

There's no constitutional application of the statute we are talking about, which is the bounty hunting statute. The fact they may have logrolled some other provisions into it has no import- those can be severed.

Blackman is looking for ways to prevent a facial challenge to the bounty hunting statute. That's why he's looking for "constitutional applications". There are none- the whole scheme violates due process.

[Michael Ejercito]

How so?

In no way does this law evade judicial review.

As a matter of fact, the law is subject to judicial review when anyone sues on the basis of this law.

S.B. 8 has no more a chilling effect than libel, slander, or intentional infliction of emotional distress laws.

[Jason Cavanaugh]

Did you wake up today and decide that you were going to utter lies, or is this something you've been doing your entire life?

[Gandydancer]

I just assumed that you've always done it, so that you just did is no surprise.

[ReaderY]

A nonstarter. The oral argument made clear that the Justices are looking for a way to fit this case into general schema of Ex Parte Young that would avoid doing things like enjoining members of a state’s judicial branch. Maybe Justice Thomas’s suggestion, maybe some other. A narrow but adequate set of defendants, as close to traditional state enforcement agents as will do the job.

There’s no need to enjoin court clerks. It’s not going to happen.

[Commenter_XY]

I read your synopsis of oral argument...Thx for that.

My guess is they'll grab at Justice Thomas' 'private attorneys general' approach.

[Gandydancer]

Enjoin everyone in the US from filing suit?

That would be novel.

[Jaypd]

Seek help

[David Nieporent]

In other words, a complaint is filed without regard to the actions of the clerk.

Those are indeed "other words," because that's not remotely what the Texas Rules of Civil Procedure say.

Rule 22 doesn't say one word about cases being deemed automatically filed without action of the clerk. Here is the full text of Rule 22: "A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk." That's an instruction to litigants, not a statement about the role of clerks.

Rule 5, in contrast, does use the phrase "deemed filed," but the context is about timing — that a timely mailed document is deemed filed by the deadline.

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time.

But note what it says: that a timely mailed document "shall be filed by the clerk" — not that that it shall be deemed automatically filed by the mere fact of submitting it.

[Ben_]

Texas legislature can change that rule next legislative session.

[Noscitur a sociis]

Surely you're not suggesting that a state legislature should change the law to try to prevent a constitutional challenge!

[Ben_]

No. I’m saying if "clerks" are the weak point that the court uses against Texas, Texas legislators can change the law to eliminate the clerks' role. So SCOTUS might enjoin clerks this year and find that next year the clerks don’t matter and things are back exactly where they are now.

[Sarcastr0]

That sure sounds like you want to avoid Constitutional review.

Which is just what NY did with it's gun laws. But I guess if it's for your side, it's good and moral, eh?

[Gandydancer]

It's certainly good and moral to evade unconstitutional interventions by SCOTUS in the laws of Texas. Changing Rule 5 to read "if received by the clerk not more than ten days tardily, shall be deemed filed in time" or ""if received by the court not more than ten days tardily, shall be deemed filed in time" doesn't cause me any obvious offence.

[Krayt]

Someone has to take it out of the in box and process it physically into the court system.

[Ben_]

Pointing out how the suggested "solution" is temporary and vulnerable to simple workarounds is not advocacy of any outcome.

[Life of Brian]

Rule 22 doesn't say one word about cases being deemed automatically filed without action of the clerk.

On the other hand, there just might be ages-old Texas case law speaking to that exact question.

That took about 30 seconds to find, so I presume you didn't bother looking.

[David Nieporent]

That's not what the linked case says. What the linked case is about is about the timing of a filing: if you leave it with the clerk, the filing is treated as having occurred as of the time you left it there, rather than when the clerk got around to processing it. As the opinion explains, "The purpose of this rule is to protect a diligent party from being penalized by the errors and omissions of the court clerk." But of course a clerk not docketing a filing because there is an injunction forbidding it is not an error or omission.

Nobody disputes that if SCOTUS issues an injunction against a court clerk and an SB8 suit is then submitted to said clerk, that if the issue arises later the date of the submission would be treated as the date of the suit. But that's a separate question from whether the suit is deemed filed in the first place.

[Life of Brian]

What the linked case is about is about the timing of a filing: if you leave it with the clerk, the filing is treated as having occurred as of the time you left it there, rather than when the clerk got around to processing it.

Nice try, but you're trying to recover from your gratuitous attempted dunking on the Texas SG by arguing a distinction without a difference. If the case is deemed filed when received by the clerk, no further action (or inaction) by the clerk can change that.

Nobody disputes that if SCOTUS issues an injunction against a court clerk and an SB8 suit is then submitted to said clerk, that if the issue arises later the date of the submission would be treated as the date of the suit. But that's a separate question from whether the suit is deemed filed in the first place.

Metaphysical gibberish. A case "deemed filed" is... well, filed. First rule of holes, dude.

[Gandydancer]

You have a big gotcha there: The TX SG said "Rule 22" when he should have said "Rule 5"?

[David Nieporent]

Moreover, even if the clerk cannot docket a complaint, the presiding judge can do so. Justice Alito raised this point during argument:

Alito asked a question. He didn't "raise this point," because it's something that's made up. No authority was cited for that proposition.

[Gandydancer]

Your nutty attempt to come up with a way to deny TX courts the ability to consider SB8 suits is what is without precedent. And to what purpose? To deny TX judges the ability to hear cases that they ought, according to the provisions of SB8, rule as without merit because Casey is not yet "overturned", or rule as perfectly Constitional because, as Gorsuch suggests, they are "post-viability, not for medical reasons, you know, that would meet a Roe and Casey test?"

[Mark Leen]

Don't forget the freedom to petition (not just due process).

[Commenter_XY]

All I will say is that Jonathan Mitchell is one smart dude. If he is as sharp as I think, I'd hire him tomorrow as my company's counsel.

For all the complaints and bellyaching I am reading here, maybe some of you fine lawyers will figure out how this unique construction can be applied in other settings. The genie is out of the bottle already. You best get on with it, now.

SCoTUS will be busy. I can see a veritable cottage industry of SB8-like cases in the next few years. Shades of Obamacare cases....Oy.

[David Nieporent]

All I will say is that Jonathan Mitchell is one smart dude. If he is as sharp as I think, I'd hire him tomorrow as my company's counsel.

He's clever, which is not necessarily the same thing as smart. He did think of almost everything to stop abortion in the state. But if the end result is (as I and most observers expect) the end result is just the Supreme Court blocking SB8 under a new approach, then how smart was he?

And if the end result is that SCOTUS allows SB8 and then other states use the same approach to enact unconstitutional laws that defeat things he likes (such as the RKBA) then how smart was he?

[John F. Carr]

If the plaintiffs have given up defending the order they won below, the court could send the case back for further consideration in light of the concession. With some suggestions perhaps. (But that backfired in _Pennhurst v. Halderman_ if I recall correctly; the court had suggested a state law resolution forgetting that the federal court had no power to order state officials to obey state law.)

[Sidney r finkel]

Prof. Blackman tries very hard to make his argument work, but in the end it fails, just like every other argument in favor of the procedures in this issue fail. There is simply no way to turn an unconstitutional legal statute and procedure into a constitutional one and still have the United States be a constitutional democracy.

In fact Prof. Blackman seems to lack an understanding of what an injunction is, although we all know that is not the case. But he needs to portray himself as not understanding the concept of an injunction in order to make his argument, and that by itself is fatal to his position.

The Court, assuming it is true to its constitutional responsibilities and not simply a forum whereby Justices may assert their political and policy beliefs (yes, we're talking about you Thomas, Alito and Gorsuch) simply issues a temporary injunction against SB 8 in favor of a party seeking to overturn the Act, and litigation proceeds from that. Remember, this argument is not about the Act itself or even about abortion rights, it's about whether or not enforcement of the Act is stayed pending adjudification of it constitutionality. This is something that happens routinely in our judicial system.

The opponents of abortion simply want to use a 'workaround' to legally prohibit constitutionally protected (so far) rights. It is an ugly, cynical destructive strategy and illustrates their contempt for law and the Constitution.

[Krayt]

There is simply no way to turn an unconstitutional legal statute and procedure into a constitutional one and still have the United States be a constitutional democracy.

We like democracy, until we don't, then run to courts to overturn democracy.

I am fine with new, unenumerated rights, even ones that would not have been considered such originally.

But I do not run around squeaking "democracy uber alles! Ignore those dead racist white rich men and blow by constitutional protections that slow down what we want to do!"

"Wait! We don't want the other side to do something even though arrived at democratically? I have a newfound respect for freedom. For the moment."

This country is great because it is free. Not because it is a democracy. Democracy is the servant of freedom, not its boss.

[Jason Cavanaugh]

"An overbroad injunction would prevent all of these plaintiffs from litigating their interests in court."

Stop beclowning yourself, Blackman. You're arguing in favor of a prima facie unconstitutional law purely because of your partisan views regarding the right which is being attacked.

You're ignoring that it violates the concept of Constitutional supremacy. You're ignoring that it violates the 14th Amendment (in more than one manner). You're ignoring that it violates the entire system of checks and balances.

If you'd like to challenge my characterization of your nonsense, by all means start explaining how you'd support a similar vigilante bounty system against those who (as a completely random example) write blog posts or author books.

You constantly complain about SCOTUS arriving at the decision first and creating legal reasoning to suit that decision....

Get a mirror, bro.

The tears you've shed over SB 8 being (presumably) properly rejected as an affront to American legal values demonstrate precisely why a resume stating "South Texas College of Law Houston" should be immediately filed in the circular bin - as should any future blog posts or claims of 'guardrails.'

[Sarcastr0]

Executive officers are enjoined from enforcing the unconstitutional all the time.
I fail to see how this is any different.

[Gandydancer]

Texas SG Judd Stone misspoke. The clerk is ordered by TX law to file a suit when received by Rule 5, not Rule 22:

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

https://casetext.com/rule/texas-court-rules/texas-rules-of-civil-procedure/part-i-general-rules/rule-5-enlargement-of-time

[David Nieporent]

You didn't read carefully. Note what it says. Not that the paper is automatically filed by dint of having been submitted, but that it shall be filed by the clerk. That's a command to the clerk; without the clerk's action, it isn't filed yet. To be sure, that action is ministerial, but that doesn't change the necessity of the action.

[WPHDM]

The word "shall" hardly leaves any discretion. Should suffice to compel performance of a ministerial duty, such as by mandamus.

But, in practice, it may not be as simple, and lack of litigation savvy is often a barrier. See below:

IN RE ROBERT LEE HICKS, Relator.
No. 01-21-00186-CV.
Court of Appeals of Texas, First District, Houston.

Opinion issued April 27, 2021.
Original Proceeding on Petition for Writ of Mandamus.

MEMORANDUM OPINION
PER CURIAM.

Relator, Robert Lee Hicks, incarcerated and acting pro se, has filed a petition for writ of mandamus with this Court seeking to compel the respondent, the Honorable K. Randall Hufstetler, the presiding judge of the 300th District Court in Brazoria County, Texas to "file [his] Texas Tort Claim[] because[] [Brazoria County] District Clerk, Rhonda Barchak[,] refuse[s] to perform her lawful duties as a district clerk" to file Hicks's pleading.

We deny the petition.

Background
In his mandamus petition, Hicks states that on January 28, 2021 he "filed" a "Texas Tort Claim" with the Brazoria County district clerk's office. However, the following day, on January 29, 2021, the district clerk "sent [the] documents back," stating that they were not filed because Hicks had failed to "comply with [chapter] 14 of the [Texas] Civil Practices and Remedies Code." According to Hicks, he then "sent" an original petition, a pauper's oath with a signed affidavit, and a certified copy of his "Inmate Trust Fund Account" for a period of six months as required by chapter 14 of the Civil Practices and Remedies Code. See generally TEX. CIV. PRAC. & REM. CODE § 14.014 ("Inmate Litigation"). Yet, on March 25, 2021, the Brazoria County District Clerk "sent all [of] [Hicks's] documents back, and used `white-out' to erase the previous file date (1-28-21) and time (10:17 a.m.) from [his] original tort claim-petition."

Hicks asserts that the Brazoria County District Clerk's failure to accept and file his pleadings has resulted in her "refusing to officially perform her public duties as clerk of the court." And as such, respondent "now has a ministerial duty . . . to file all [Hicks's] pleadings."

Analysis
In his mandamus petition, Hicks seeks to have this Court compel the trial court to "file" his "pleadings." Generally, the duty to "file" a party's documents falls to the district clerk. See TEX. R. CIV. P. 24 ("Duty of Clerk"). A district clerk does not have discretion to determine whether a document tendered should be filed. See In re Bernard, 993 S.W.2d 453, 454-55 (Tex. App.-Houston [1st Dist. 1999, orig. proceeding) (O'Connor, J., concurring) ("The district clerk has a duty to accept and file all pleadings presented for filing."). Any determination that a pleading is not in the correct form, or is defective in some other manner, is for the judge, not the district clerk. See id. Hicks asserts that the Brazoria County District Court failed to perform her duty to "file" his "Texas Tort Claim."

Notably, this Court does not have the authority to issue a writ of mandamus against the district clerk, other than to protect our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221. Because we lack the authority to issue a writ of mandamus against a district clerk, any such failure of a district clerk is insufficient to establish entitlement to mandamus relief from this Court. Accordingly, "[w]hen a district clerk refuses to accept a pleading for filing, the party should attempt to file the pleading directly with the district judge, explaining in a verified motion that the clerk refused to accept the pleading for filing." Bernard, 993 S.W.2d at 454-55 (O'Connor, J., concurring); see also TEX. R. CIV. P. 74.

Although we do not have authority to issue a writ of mandamus against a district clerk, we do have authority to issue a writ of mandamus against a trial court judge within the district of this Court. See TEX. GOV'T CODE ANN. § 22.221. Here, Hicks has sought mandamus relief against respondent, the presiding judge of the 300th District Court in Brazoria County, over whom we do have mandamus authority. As such, if the trial court refused to accept a verified motion, notifying it that the district clerk refused to accept Hicks's filing, "this Court would have jurisdiction under our mandamus power to direct the district judge to file the pleading." Bernard, 993 S.W.2d at 454-55 (O'Connor, J., concurring).

In a mandamus proceeding, the relator has the burden to provide this Court "with a sufficient record to establish [his] right to mandamus relief." Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). Hicks has failed to provide any record with his mandamus petition, including proof of his filings which the Brazoria County District Clerk purportedly refused to accept, or any evidence that Hicks attempted to file a verified motion, directly with the trial court, notifying it that the district clerk had refused to accept his "Texas Tort Claim." See TEX. R. APP. P. 52.7(a)(1) (requiring relator to file "certified or sworn document that is material to the relator's claim for relief and that was filed in any underlying proceeding"); see also In re Bernard, 993 S.W.2d at 454-55 (O'Connor, J., concurring). Thus, Hicks has not provided this Court with a record establishing his right to mandamus relief.[1]

Accordingly, we deny Hicks's petition for writ of mandamus. All pending motions are dismissed as moot.

[1] We also note that Hicks' mandamus petition fails to comply with the requirements for the "form and contents of petition" for an original proceeding filed in this Court as set forth by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3.