The Volokh Conspiracy

From Judge Kevin Castel (S.D.N.Y.)'s May 4 order in Mata v. Avianca, Inc.:

The Court is presented with an unprecedented circumstance. A submission filed by plaintiff's counsel in opposition to a motion to dismiss is replete with citations to non-existent cases. When the circumstance was called to the Court's attention by opposing counsel, the Court issued Orders requiring plaintiff's counsel to provide an affidavit annexing copies of certain judicial opinions of courts of record cited in his submission, and he has complied. Six of the submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations. Set forth below is an Order to show cause why plaintiff's counsel ought not be sanctioned.

The Court begins with a more complete description of what is meant by a nonexistent or bogus opinion. In support of his position that there was tolling of the statute of limitation under the Montreal Convention by reason of a bankruptcy stay, the plaintiff's submission leads off with a decision of the United States Court of Appeals for the Eleventh Circuit, Varghese v China South Airlines Ltd, 925 F.3d 1339 (11th Cir. 2019). Plaintiff's counsel, in response to the Court's Order, filed a copy of the decision, or at least an excerpt therefrom.

The Clerk of the United States Court of Appeals for the Eleventh Circuit, in response to this Court's inquiry, has confirmed that there has been no such case before the Eleventh Circuit with a party named Vargese or Varghese at any time since 2010, i.e., the commencement of that Court's present ECF system. He further states that the docket number appearing on the "opinion" furnished by plaintiff's counsel, Docket No. 18-13694, is for a case captioned George Cornea v. U.S. Attorney General, et al. Neither Westlaw nor Lexis has the case, and the case found at 925 F.3d 1339 is A.D. v Azar, 925 F.3d 1291 (D.C. Cir 2019). The bogus "Varghese" decision contains internal citations and quotes, which, in turn, are non-existent: …

The following five decisions submitted by plaintiff's counsel contain similar deficiencies and appear to be fake as well ….

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On the Supreme Court, there is a hierarchy for listing opinions. The majority opinion always comes first. When the Court is fractured, and there is no clear majority, the opinion with the most support is usually listed first. When the case is an absolute cluster, sometimes the opinion by the Justice with the most seniority is listed first, but there is some play in the joints. After the majority/controlling opinion, the concurrences are listed by seniority. Next come the concurrences in judgment only, which are also listed by seniority. Finally, the dissents are listed, which again are sorted by seniority.

When there are multiple dissents, the majority opinion will refer to a particular dissent as the "principal dissent." But the term "principal concurrence" is far more rare. A quick search of Westlaw reveals only one such usage before 2021. In Morrison v. National Australia Bank Ltd.(2010), Justice Scalia wrote the majority opinion, Justice Breyer wrote an opinion concurring in part, and concurring in judgment, and Justice Stevens wrote an opinion concurring only in judgment. Justice Scalia referred to Justice Stevens's opinion as the "principal concurrence."

More recently, the phrase "principal concurrence" has popped up twice. In Lange v. California (2021), Justice Kagan wrote the majority opinion, Justice Kavanaugh wrote a concurrence, Justice Thomas wrote an opinion concurring in part and concurring in judgment, and Chief Justice Roberts wrote an opinion concurring in judgment. Justice Kagan's majority opinion referred to Justice Kavanaugh's opinion as the "principal concurrence."

And yesterday, the Court decided Sackett v. EPA. Justice Alito wrote the majority opinion, Justice Thomas wrote a concurring opinion, Justice Kagan wrote a concurrence in judgment, and Justice Kavanaugh wrote a concurrence in judgment. Justice Kagan's dissent, again, referred to Justice Kavanaugh's separate writing as the "principal concurrence." Kagan's opinion, which had three votes, was listed first, because she has more seniority, but Kavanaugh's opinion had four votes. I suppose the number of votes makes it the "principal concurrence."

In two cases, decided in the span of two years Justice Kagan has referred to a Justice Kavanaugh concurrence as the "principal concurrence." Nothing much to see here, but I enjoy tracking these new nomenclatures on the Court.

Finally, I would be remiss if I did not point out an obvious pun, given the fact that President Nixon signed the Clean Water Act: SCOTUS said Sackett to me!

The Lemon test was established in 1971, the Clean Water Act was passed in 1972, and Roe was decided in 1973. The Nixon years are not having a good time at the Supreme Court.

On Thursday, a committee of the Texas House of Representatives recommended twenty articles of impeachment against Attorney General Ken Paxton. We are in somewhat uncharted waters. It seems there have been only two impeachments in Texas history. In 1917, a governor was impeached, but resigned before the Senate convicted him. And in 1975-76, a district judge was convicted, removed, and disqualified. In this post, I will provide a high-level overview of the impeachment process in Texas, with a focus on the particular issues that may arise in the Paxton case.

Article 15 of the Texas Constitution governs the impeachment process. Section 1 states that the House of Representatives has the "power of impeachment." Presumably, a simple majority is enough to impeach, but that threshold is not clearly spelled out. Sections 2 and 3 provide that the impeachment shall be tried by the Senate, and 2/3 of the Senators "present" are required to impeach. (The same threshold is used in the federal Constitution). Section 4 includes a provision that mirrors the Impeachment Disqualification Clause in the federal Constitution: "Judgement in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State." However, Section 5 provides a unique wrinkle: after an article of impeachment is "preferred" to the Senate, the impeached officer "shall be suspended from the exercise of the duties of their office, during the pendency of such impeachment." In other words, an impeached official is temporarily removed from office. And the Governor may make a "provisional appointment." (Governor Abbott could pick someone from Paxton's staff, or one of the Republicans who challenged Paxton in last year's primary, or a "caretaker" to fill the gap for a short time).

Section 7 seems to provide the legislature some additional authority with regard to impeachment. It provide, "The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution." In the federal system, Congress has adopted various rules governing impeachment. For example, evidence can be heard by a Senate committee, rather than by the full Senate. Judge Walter Nixon challenged this delegation of authority as being inconsistent with the federal Constitution. The U.S. Supreme Court declined to resolve that issue on justiciability grounds, but did leave open the possibility that some deviations from the process spelled out in the Constitution could be justiciable. (Chief Justice Rehnquist flagged this issue during oral argument.) Section 7 seems to expressly delegate the power to the legislature to establish certain rules by law. And "by law," as a general matter, means through actual legislation, rather than by single-house resolution.

Those laws appear in Chapter 665 of the Government Code. At quick glance, Article 15 does not provide a standard for impeachment, such as "high crimes and misdemeanors." Section 665.062 lists specific causes for removal "by address," including "willful neglect of duty," "incompetency," and "breach of trust." But, pursuant to Section 665.051, the Attorney General is not subject to removal "by address." So these grounds are not directly relevant for Paxton.

Subchapter D of Chapter 665 includes one provision: Section 665.081. It provides, in part: "An officer in this state may not be removed from office for an act the officer may have committed before the officer's election to office." Many of the allegations against Paxton occurred before Paxton was elected to a third term in office in November 2022. And Paxton's lawyer has cited Section 665.081 as a possible defense. He contends that the voters re-elected Paxton, with full knowledge of the allegations against him.

Overturning elections begins behind closed doors.
pic.twitter.com/Mved9ddU3i

— Attorney General Ken Paxton (@KenPaxtonTX) May 25, 2023

Section 665.081 can be read in two different ways. First, an officer cannot be removed for an act he committed before being elected to his current term in office. Second, an officer cannot be removed for an act he committed before being elected to his first term of his current position. Under the first reading, Paxton could not be removed for conduct that occurred before November 2022. Under the second reading, Paxton could not be removed for conduct that occurred before November 2014, when he was elected to his first term.

The Texas courts have recognized something called the "forgiveness doctrine." The Texas Supreme Court described it this way:

Neither may removal [of judges] be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C.S. [An older version of Section 665.081] .

But this doctrine has limits:

We hold that the willful and persistent acts of misconduct committed by Judge Carrillo prior to his last election were such as to cast just as much public discredit upon the judiciary as if they had been committed after the election; and they were not in any manner absolved by his election.

The Texas Supreme Court opined on this standard in a disciplinary proceeding of the lone impeached district judge:

In Brown, supra, we recognized that the sound rationale for this doctrine is that the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official if the public knows about such misconduct prior to the election. If, on the other hand, the misconduct is unknown to the public prior to the election and is of such willful nature as to cast public discredit upon the judiciary, it cannot be said that the judge was forgiven by his election or re-election.

And a later decision by the Court of Appeals applied this doctrine:

There is language in Brown, Bates and Carrillo which completely disposes of any doubt over the applicability of the "forgiveness" doctrine to article 5986. According to Brown and Carrillo, it was essentially an attempt by the Supreme Court in Laughlin to articulate the "spirit" of article 5986, which prompted the court to use that language which has come to stand for the "forgiveness" doctrine. According to Bates, the phrases "prior term" and "forgiveness" mean essentially the same thing. Thus, it is an unavoidable conclusion that the "forgiveness" doctrine merely states the rationale behind article 5986 and the "prior term" rule.

Should the forgiveness doctrine apply to an official who is re-elected? The Texas Court of Criminal Appeals addressed this issue, indirectly, in Williams v. State, 150 S.W.2d 803 (1941):

Appellant's next contention is that if the evidence shows that he sold the bonds and converted the money to his own use and benefit prior to his re-election as County Attorney in 1936, that, therefore, he cannot be prosecuted for the offense so charged, because Article 5986 of the Revised Civil Statutes, relieves of the prosecution. The article referred to reads as follows: "No officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office."

To hold that a person running for office might commit murder, burglary, theft, robbery, rape or any of those offenses and thereafter be elected to office would be relieved from punishment is the most monstrous proposition that the writer of this opinion has ever heard advanced in justification of any of such offenses. To so hold would be contrary, not only to every law on the subject, but also to public policy. We think that the Legislature, in the enactment of said law, meant that the same should apply to any offense committed relating to misfeasance of office and certainly not to make him immune to punishment for any other offense. We therefore overrule appellant's contention.

This case concerned a criminal prosecution, though it would seem to suggest that the Forgiveness Doctrine would not immunize an official from removal based on conduct prior to re-election. However, none of these cases arose in the direct context of an impeachment. (Westlaw lists about two dozen references in the "Notes of Decision" under the Statute.) Ultimately, the Senate, when sitting as a court of impeachment, would have to resolve this question of law.

Of course, Paxton may seek some sort of judicial intervention. As a general matter, the Texas courts have far more permissive rules concerning standing and justiciability. And, as I noted earlier, Walter Nixon v. United States did leave open the possibility that certain issues concerning impeachment may be justiciable. For example, what would happen if someone other than the Chief Justice presided over a presidential impeachment? The construction of this statute, in the government code, may provide a justiciable question--especially since the Texas Supreme Court has already interpreted the forgiveness doctrine.

My thoughts here are based on somewhat abbreviated research, in an area where there is little precedent. If I missed something, please email me, and I would be happy to post an update.

Update: In 1924, the Texas Supreme Court opined on the fact that the state Constitution does not define the impeachable offenses. This case concerned the Governor who resigned before the Senate convicted and disqualified him. Apparently, he tried to get back on the ballot, but the Court held that he was disqualified.

While impeachable offenses are not defined in the Constitution, they are very clearly designated or pointed out by the term 'impeachment,' which at once connotes the offenses to be considered and the procedure for the trial thereof.

Impeachment,' at the time of the adoption of the Constitution, was an established and well-understood procedure in English and American parliamentary law, and it had been resorted to from time to time in the former country for perhaps 500 years. It was designed, primarily, to reach those in high places guilty to official delinquencies or maladministration. It was settled that the wrongs justifying impeachment need not be statutory offenses or common-law offenses, or even offenses against any positive law. *97 Generally speaking, they were designated as high crimes and misdemeanors, which, in effect meant nothing more than grave official wrongs.

In the nature of things, these offenses cannot be defined, except in the most general way. A definition can, at best, do little more than state the principle upon which the offense rests. Consequently, no attempt was usually made to define impeachable offenses, and the futility as well as the unwisdom of attempting to do so has been commented upon. In the Constitution of the United States impeachable offenses are designated as 'treason, bribery, or other high crimes and misdemeanors.' Const. U. S. art. 2, s 4. Substantially the same language is used in many of the state Constitutions. In others 'misdemeanors in office,' 'maladministration,' 'oppression in office,' and the like, are declared to be impeachable offenses.

And more importantly, the Court opined on the role of the judiciary with regard to impeachment:

This opinion should not be concluded without a statement as to the status under our organic law of the judgment of the Senate, sitting as a court of impeachment. It is unquestionably true that such judgment cannot be called in question in any tribunal whatsoever, except for lack of jurisdiction or excess of constitutional power. For instance, an attempt by the Senate to try an officer who had not been impeached by the House, or to pronounce a judgment other than that authorized by section 3, of article 15, would be without effect and its action void. The Senate must decide both the law and the facts. It must determine whether or not the articles presented by the House set forth impeachable offenses, and it must determine whether or not these charges and sustained by the evidence produced. Its action with reference to these matters is undoubtedly within its constitutional power and jurisdiction. This is as it should be. The power reposed in the Senate in such case is great, but it must be lodged somewhere, and experience shows there is no better place. The courts, in proper cases, may always inquire whether any department of the government has acted outside of and beyond its constitutional authority. The acts of the Senate, sitting as a court of impeachment, are not exempt from this judicial power; but so **894 long as the Senate acts within its constitutional jurisdiction, its decisions are final. As to impeachment, it is a court of original, exclusive, and final jurisdiction.

Update: The House released a memorandum, which contended that Section 665.062 "does not apply when the Texas Constitution authorizes a procedure for removing a state officer." Rather, this section "only applies when the Legislature enacts a statutory method for removal under Section 7, Article XV, Texas Constitution." A 1976 decision of the Texas Supreme Court, In Re Carrillo, provides some support for this postion:

As heretofore indicated, substantially all of the misconduct set forth above occurred prior to November 5, 1974, when Judge Carrillo was re-elected to the office of district judge. He insists that Article 5986, V.A.C.S. is applicable. It reads:

"No officer in this State shall be removed from office for any act he may have committed prior to his election to office."

We have heretofore held that the above statute does not apply to the office of district judge. In re Brown and In re Laughlin, supra. Section 7 of Article XV of the Texas Constitution authorizes the Legislature to provide for the removal of officers for whom the methods of removal are not provided in the Constitution. This proceeding for removal is authorized by the Constitution, and for that reason Article 5986 is not applicable.

But the Court still followed the "spirit of the decision."

The memorandum also points out that the impeachment of Governor James P. Ferguson concerned "conduct that occurred before and during the 1916 election."