Posted on 09/06/2003 10:51:58 AM PDT by jmstein7
Note to readers: all that was decided here is that the Texas Supreme Court is not the court of original jurisdiction -- the court to start the action in. Even that was not deemed a final judgment, as the case was not dismissed "on the merits" -- i.e. the issue is still open to suit.
-- BEGIN ARTICLE -- Monday's order by the Texas Supreme Court, a one-sentence denial of a petition for a writ of mandamus, was amended later in the day with another single-sentence from three of the nine members of the court.
The original order denied a petition by Gov. Rick Perry and Lt. Gov. David Dewhurst for a writ of mandamus to force the 'Texas 11' back to Texas to complete the business of the Texas Senate. The 'Texas 11' are Senate Democrats who two weeks ago broke the Senate quorum by fleeing to New Mexico to stop a controversial congressional redistricting bill from coming to the Senate floor.
In its original one-sentence order Monday, the Supreme Court noted, "The following petition for writ of mandamus is denied: In re: Rick Perry, governor of the state of Texas, and David Dewhurst, lieutenant governor of the state of Texas and president of the Texas Senate."
Later in the day, the order was amended and this sentence added, "Justice Hecht, Justice Owen, and Justice Smith concur in the denial of the petition for writ of mandamus but would add the notation: "The Court denies the petition for writ of mandamus without regard to the merits of the constitutional arguments."
The three justices adding the notation are Justices Nathan Hecht, Priscilla Owen and Steven Smith.
Austin political consultant Tony Proffitt said the amended order "leaves the door open for further consideration under different circumstances."
The Texas Supreme Court generally is used to hearing cases that have made their way through the court system, not hot potato legislative issues whose first court appearance is being dropped on the high court's doorstep.
Attorneys for the 'Texas 11' said in their response to the GOP leadership's petition for a writ that for the high court to intervene would exceed the court's "limited statutory authority," would "violate bedrock separation of powers limitations set forth in the Texas Constitution" and would "be an unconstitutional intrusion into the legislative function."
The response also argues that the Supreme Court has no jurisdiction over individual members of the legislature and has "no statutory authority" over them. They note that the two houses of the legislature have authority through their own rules to compel attendance of absent members and the high court should not be involved in interpreting or enforcing those rules.
They argue that "courts have uniformly held that judicial enforcement of a legislative body's procedural rules violates the separation of powers." The response notes "it is the role of the legislative body, not the courts, to interpret and enforce its own rules."
Gov. Rick Perry said Monday a court resolution is "critical" to ending the standoff between the Senate Democrats and the GOP leadership. "Without a legal resolution, this constitutional abuse will be used in the future to again bring our government to a halt," he said.
And with the addition of "wiggle room" from the amended order by three of the court's justices, the door could still be open for a court decision on the issue.
On the other hand, Dewhurst indicated the remaining Senate members may take things into their own hands today when the Senate gathers again. He hinted Monday that the remaining senators might come up with their own "appropriate measures" to force the 11 to return. Those "measures" are also hinted to be in the form of fines. The question now is whether the remaining senators have the authority to impose fines or other measures unless they are specifically outlined in the Senate's rules, which were approved by Senate majority when the legislative session began.
To view the 'Texas 11's' response to the GOP petition for the writ of mandamus that was denied Monday, click on the link below.
http://www.freerepublic.com/focus/f-news/977257/posts
The justices did not close the door to such action. A winning brief will explain why a member of the legislative branch is a "public official" within the context of mandamus. It will also have to explain why this is a narrow case, i.e. why granting mandamus in this instant will nt lead to constituents suing their elected representatives every time they dn't like what is being done (which seems to be the court's concern).
The Texas Supreme Court has left the door open here, and the first person to file a brief that backs up the above propositions with good case law and arguments will have a good shot at success.
Since only three Justices noted that the dismissal was made without regard to constitutional issues, that sort of implies that the other six Justices don't agree.
Opinions?
I can understand the court being reluctant to act because the implication might be that the state police can then force the legislature to convene. That is a worrisome development but it illustrates just how wrong the Demoncrats are to "filibuster" the meetings of their own legislative body.
Assuming that the Texas Constitution allows the Senate to decide "where" it shall meet, I think the Republicans should just pack their bags and pursue the Democrats. If the Democrats are in Albuquerque, then convene in the lobby of the hotel and take role. The vivid picture of them calling out the names of people hiding upstairs could help to clarify just how serious their obstruction is.
Or that they did not hear it. When the time comes, if it does, they (the republicans) can request that a full panel hear the case (en banc).
In Kalifornia, I believe that the legislature has been in the habit of "stopping the clock" through a vote of its members in order to satisfy the requirements for passing a budget while actually passing it at a later time.
Perhaps the Texas Senate, convening in New Mexico, just needs to pass a resolution " that for the purposes of this session, Albuquerque, New Mexico shall be considered part of Austin, Texas".
This might even get the attention of New Mexicans who might fear an armed invasion and takeover of their state. This might be a good thing. The New Mexican State Police might escort the whole bunch back to the border with a invitation to solve their problems elsewhere.
They filed identical cases in District Court and at the Supreme Court. The Supreme Court ruled first.
Precedent. Precedent is always worth while.
So, when can we expect to hear from the Circuit Court. It would be fascinating to see the SAME copout on their part -- ''we're not the proper court in which to initiate this action'' -- wouldn't it?
Well, so much for mandamus as a way to hold our so-called ''representatives'' responsible for their actions.
Rooting for a lawful result, but expecting NOTHING.
FReegards!
I'm not positive about this, because the news coverage was so sketchy, but I believe the Attorney General filed it in the same state District Court where the Rats had filed their claims of Voting Rights Act violations, etc.
The Rats ultimately decided to make that claim in Federal Court down in Laredo, and the District Court dismissed the suit. As far as I know, the question is not in front of any judge right now.
It wouldn't be proper to try again right now, since the legislature is not in session.
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