The Volokh Conspiracy

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Texas AG Needn't Testify in Case Alleging Texas Intends to Punish Participation in Out-of-State Abortions

The panel relies on, among other things, "the Apex doctrine."


From In re Paxton, decided yesterday by the Fifth Circuit (Judge Stuart Kyle Duncan, joined by Judge Cory Wilson, with Judge Patrick Higginbotham agreeing on this point):

Believing Texas intends to enforce its abortion laws to penalize their out-of-state actions, Plaintiffs sued Texas Attorney General Ken Paxton. Paxton moved to dismiss the suit for lack of subject matter jurisdiction. Plaintiffs then issued subpoenas to obtain Paxton's testimony…. [T]he district court … ordered Paxton to testify either at a deposition or evidentiary hearing.

No, said the Fifth Circuit, for various reasons, including this:

"[E]xceptional circumstances must exist before the involuntary depositions of high agency officials are permitted." Before requiring such "apex" testimony, courts must consider: (1) the deponent's high-ranking status; (2) the substantive reasons for the deposition; and (3) the potential burden the deposition would impose on the deponent. A district court commits a "clear abuse of discretion" when it compels apex testimony absent extraordinary circumstances. No such circumstances exist here.

Only the second and third factors are disputed. As for the second factor, substantive need, the district court found Paxton's testimony was necessary to clarify his enforcement policy due to purported contradictions between his court filings and public statements. It concluded testimony was needed from Paxton himself because he had "unique, first-hand knowledge" from "ha[ving] inserted himself into this dispute by repeatedly tweeting and giving interviews about the [challenged law]." "Paxton alone," the district court thought, could "explain[ ] his thoughts and statements." We disagree.

The district court ignored the rationale for limiting apex testimony to exceptional circumstances. High-ranking officials—state attorneys general being the paradigm case—are often drawn into lawsuits. They cannot perform their duties if they are not personally shielded from the burdens of litigation. Accordingly, a "key aspect" of the analysis "is whether the [sought after] information … can be obtained from other witnesses." Where it can, apex testimony is justified only in the "rarest of cases." This is not one of those rare cases.

The district court conceded the "plain fact that lawyers at the Attorney General's Office may articulate the Office's [enforcement] policies." So, by the court's own admission, if there is a need to clarify the office's enforcement policy, a representative can do so on the Attorney General's behalf. The court nonetheless treated Paxton as having unique information merely because he made public statements about a matter that later became the subject of litigation. That does not follow. Paxton's personal "thoughts and statements" have no bearing on his office's legal authority to enforce Texas's abortion laws or any other law. To accept the district court's position would undermine the exceptional circumstances test. It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.

Similarly, the district court erred in holding that compelling Paxton's testimony would not unduly burden him. The court reasoned that if Paxton has time to give public statements, he has time to testify: "It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements." Again, this reasoning would eviscerate the exceptional circumstances test. "High ranking government officials have greater duties and time constraints than other witnesses." Those duties often involve communicating with the public on matters of public interest. The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions….

Judge Higginbotham's separate concurrence explains more about the plaintiffs' concerns:

Plaintiffs fear that Attorney General Ken Paxton will pursue civil liability for assisting Texans to obtain abortion healthcare in states not prohibiting abortion, chilling their exercise of free speech and their constitutional right to interstate travel. On the extant record, these assertions are not fanciful.

Plaintiffs' briefs cite to statements assertedly made by Attorney General Paxton in media interviews, press releases, and twitter posts promising, among other things, "to make people pay if they're going to do abortions;" that Attorney General Paxton clarified in his briefings that the State's interest in protecting unborn Texans "continues whether the Texan mother seeks an abortion in Denver or Dallas, in Las Cruces or Lamesa." Plaintiffs also point to statements by other state officials, who while lacking specific enforcement authority under state law nonetheless fuel a climate of fear of suit or prosecution. {Plaintiffs cite, for example, a letter sent by a group of State legislators who threatened an organization with criminal liability for "reimburs[ing] the travel costs of employees who leave Texas to murder their unborn children."} …

Plaintiffs seek testimony from Attorney General Paxton while at the same time urging that his statements—their content and inconsistency, including in these proceedings—chill their constitutionally protected rights. It signifies that these inferences are drawn from the present record: Indeed, Attorney General Paxton argues to this Court that the potential liability Plaintiffs fear is "nonexistent," while at the same time he argues that when "procurement takes the form of a bus ticket for the pregnant Texan to an abortion clinic, or the paying from Texas of the cost of a pregnant Texan's hotel room adjacent to that clinic, it does not matter if the travel and hotel are in Albuquerque or Austin" for the State to have an interested in protecting the unborn.

The point is that, on the record at hand, a trier of fact, which we are not, could find there is sufficient evidence of an unsettling and chilling want of clarity in statements by officials with enforcement authority made against a chorus of state officials without enforcement power to allow this case to proceed. Those issues and the jurisdictional issue of Plaintiffs' standing, including any discovery they may entail, remain for the district court.