Devine Dissents on COVID-19 Shutdowns in Texas

26 Pages Posted: 5 Aug 2020

Date Written: August 3, 2020

Abstract

On July 17, 2020 the Texas Supreme Court dismissed a challenge to Governor Greg Abbott’s executive orders issued pursuant to the TEXAS DISASTER ACT in efforts to contain the spread of COVID-19.

In re Hotze, No. 20-0430 (Tex. Jul. 17, 2020) (orig. proceeding)

This legal action challenging the use of emergency powers during the pandemic—one of several--was brought by Steven Hotze, MD, a conservative political activist, joined by an assortment of affiliated co-petitioners. All were represented by the same Texas attorney, Jared Woodfill, himself a prominent Republican.

The fact that the Texas Supreme Court dismissed the case was no surprise because it was initiated directly in the court of last resort, with no constitutional or statutory authorization for it. The statute that provides for mandamus relief expressly excludes the Governor as a target. What is more noteworthy, however, is the issuance of a dissenting opinion in the guise of a concurrence sympathetic to Hotze's challenge to Governor Greg Abbott's handling of the pandemic.

The all-Republican SCOTX disposed of Case No. 20-0430 by ordering dismissal for want of jurisdiction without any additional explanation; one justice however, John P. Devine, nevertheless issued a five-page opinion, which none of the other justices joined.

This stands in contrast to an earlier challenge of similar nature, which was likewise rejected but managed to attract four justices for a concurring opinion that was not essential to the disposition of the case. In re Salon a La Mode, No. 20-0340, ___ S.W.3d ___ (Tex. 2020) (Blacklock, J., concurring in the denial of the petition for writ of mandamus). Justice Devine cited the earlier opinion by Justice Blacklock, but did not garner the support of any of his colleagues in the Hotze case.

Justice Devine also parted ways with his colleagues on the dismissed of a mandamus petition relating the GOP’s state planned in-person convention in Houston for lack of jurisdiction. In that case, he wrote a ten-page dissent. See In re Republican Party of Texas, No. 20-0525 (Tex. July 13, 2020). In a companion mandamus case, Hotze complained of the denial of a temporary restraining order relating to the convention in a Houston trial court, which as docketed as No. 20-0524 in the supreme court. The SCOTX denied mandamus relief in that case at the same time it dismissed the GOP’s petition, but Justice Devine dissented, albeit without a separate opinion.

Clearly, Justice Devine stands apart from the rest – at least on COVID-related issues -- even though the other eight members of the Court are fellow Republicans and resolve the majority of cases unanimously.

Which raises the question: How and why?

I conclude that the answer can be found in judicial politics, with no need to delve into the matter of distinctive jurisprudential theories or doctrine-driven explanations.

Seven members of the Texas Supreme Court were initially chosen and appointed by a Republican Governor. John Devine is one of two who was not, and is the only associate justice on the SCOTX who won election after having defeated a Republican incumbent in a Republican primary. He did so with Tea Party support. While the Court has a long-standing statist bias and has sided with the Governor and the Attorney General in COVID-19-related cases, Justice John P. Devine caters to a different constituency: the far right of the Texas GOP. His actions on the Court reflects that.

In multiple cases involving different legal issues, Devine has demonstrated his willingness to go out of his way to lend legitimacy to conservative activist Steven Hotze, who is a prolific cause-driven litigant, and widely viewed as a right-wing extremist.

In the Texas Republicans' fight over the 2020 State Convention, Justice Devine would have used the High Court's mandamus power to force the City of Houston to host the GOP Convention at the George R. Brown Convention Center in the midst of the current pandemic after the event was cancelled by local officials pursuant to a force majeure clause in the contract to avert the occurrence of a super-spreader event. See In re Republican Party of Texas, No. 20-0525 (Tex. July 13, 2020) (per curiam dismissal; dissent to dismissal by Justice Devine).

Keywords: COVID-19 Litigation, Judicial Politics, Texas Supreme Court, Texas GOP, Republican Party, Intra-Party Conflict

JEL Classification: K10, K20, K30, K40, K41, K42

Suggested Citation

Hirczy de Mino, Wolfgang, Devine Dissents on COVID-19 Shutdowns in Texas (August 3, 2020). Available at SSRN: https://ssrn.com/abstract=3664781 or http://dx.doi.org/10.2139/ssrn.3664781

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