Summary
In this concurrence in the judgment, Justice Blacklock agrees that the plaintiffs’ claims against the City of San Antonio should be remanded for repleading but disagrees that the petition failed to state a claim under Chapter 2400 of the Texas Government Code. He reasons that the City Council’s forward-looking instruction to exclude Chick-fil-A could support a credible threat of a continuing or threatened statutory violation after Chapter 2400 took effect.
Topics
Practice areas
Questions Presented
- Whether plaintiffs' live pleading sufficiently alleged a violation or threatened violation of Chapter 2400 of the Texas Government Code to invoke the statute's waiver of governmental immunity.
- Whether plaintiffs seeking prospective injunctive relief were required to plead a completed post-effective-date act of enforcement rather than a credible threat that the City would continue carrying out its exclusionary policy.
- Whether the dismissal should be reversed and the case remanded for repleading in light of intervening facts potentially affecting the continued viability of the claims.
Holdings
- The dismissal of plaintiffs' claims was reversed and the case was remanded for repleading.
- In the author's view, plaintiffs seeking prospective injunctions against an unlawful government policy need not plead that the policy has already been carried out; they must plead facts establishing a credible threat of future enforcement or implementation.
- The author agreed that governmental immunity bars the action unless plaintiffs actually allege a violation of Chapter 2400 by pleading facts that state a viable claim under the statute.
Key quotations
“Any acts in furtherance of that exclusionary goal would surely qualify as a violation of Chapter 2400, which broadly prohibits “any adverse action” against “any person” to “withhold, reduce, exclude, terminate, or otherwise deny any . . . contract” based “wholly or partly” on the person’s “contribution, donation, or other support provided to a religious organization.”” (2)
“We typically do not require plaintiffs seeking injunctions against unlawful government policies to plead facts demonstrating that the policy has already been carried out.” (3)
“To the contrary, we require plaintiffs to plead not a past act of enforcement under the challenged law but only that “there exists a credible threat of prosecution thereunder.”” (3)
“When those policies violate the law, prospective protection in the courts should be equally available no matter the caption on the offending government document.” (5)
Factual background
In March 2019, the San Antonio city council voted to approve an airport concessions agreement while directing city staff to work toward replacing Chick-fil-A because of its religious views on marriage and its support for religious organizations. Chapter 2400 of the Texas Government Code, which prohibits adverse governmental action based wholly or partly on support for a religious organization and authorizes suits for threatened violations, took effect on September 1, 2019. Plaintiffs sued the City, alleging that the city council's forward-looking instruction created a continuing threat of exclusion after Chapter 2400 became effective.
Procedural history
Plaintiffs sued the City of San Antonio under Chapter 2400 after the city council directed city staff to pursue the exclusion of Chick-fil-A from concessions at the San Antonio airport. The claims were dismissed, and the case reached the Supreme Court of Texas on petition for review. The judgment reversed the dismissal and remanded for repleading.
Remand instructions
Remand for repleading, while considering intervening factual developments that may affect the continued viability of some or all of plaintiffs' claims and the court's jurisdiction.