Fifth Circuit Grants Mandamus to Quash Subpoena of State Attorney General’s Testimony Until Sovereign Immunity Issue Is Decided

In In re Ken Paxton, No. 22-50882 (5th Cir. Nov. 14, 2022), the panel grants a writ of mandamus directing that the district court quash a subpoena of Texas Attorney General Paxton until the judge decides whether he should be dismissed from the action owing to sovereign immunity.

The underlying lawsuit challenged the potential extraterritorial application of Texas’s Human Life Protection Act (HLPA). “Plaintiffs are organizations that pay for abortions and an abortion provider . . . . They sued Paxton and other officials, claiming the anticipated enforcement of Texas’s abortion laws violates their First Amendment rights and their right to interstate travel” by purporting to extend to out-of-state activity. The Attorney General moved to dismiss on grounds of sovereign immunity and Article III standing.

 “Before the district court ruled on Paxton’s motion to dismiss, Plaintiffs separately subpoenaed Paxton in his official and individual capacities. They contended they were entitled to examine Paxton personally to clarify his power to enforce the challenged laws because his public statements—including official advisories, campaign statements, and tweets—allegedly contradicted his court filings on that point.”

After initially granting the motion to quash, the judge was persuaded to reconsider. The district court ruled that the Attorney General possessed “unique, first-hand” knowledge essential to deciding the immunity issue. It “also determined that testifying would not unduly burden Paxton. While recognizing that high-level officials have significant duties, the court stated: ‘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.’ Paxton’s ‘many public statements and interviews,’ the court thought, belied the notion that testifying would burden his time.”

The Fifth Circuit, on petition for writ of mandamus (28 U.S.C. § 1651(a)), directs the district court to quash the subpoena. The standards for issuing the writ are that “(1) the petitioner must show his right to the writ is clear and indisputable; (2) the petitioner must have no other adequate means of obtaining relief; and (3) the issuing court must be satisfied in its own discretion that the writ is appropriate under the circumstances.”

Regarding (1), the right to the writ, the panel holds that the district court failed to execute a non-discretionary duty to ensure its own jurisdiction before it permitted the Attorney General’s testimony to proceed. The “order explicitly postpones Paxton’s assertion of sovereign immunity pending his deposition. But sovereign immunity provides immunity from suit, not mere immunity from damages.”

The panel disagrees that his testimony is required to decide immunity. “Whether Paxton may be sued under the Ex parte Young exception to sovereign immunity does not turn on Paxton’s campaign statements or tweets. Rather, it turns principally on whether Paxton ‘is statutorily tasked with enforcing the challenged law.’ . . . . The same inquiry also informs the standing question . . . . In other words, Paxton’s jurisdictional defenses can be assessed by reference to Texas law. His personal deposition answers are irrelevant.”

“Apart from the jurisdictional question, the district court also clearly abused its discretion by refusing to quash the subpoenas.” It holds that “exceptional circumstances” do not exist for deposing a constitutional officer of the state.  “Before requiring such ‘apex’ testimony [of high officials], 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.” Here, the panel concludes that if any testimony about the office’s enforcement plans were required, a representative could testify instead. “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 . . . . 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.’ . . . . [But t]he fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions.”

Regarding (2), an interlocutory appeal was not an adequate means to vindicate the Attorney General’s rights. “Plaintiffs have moved to dismiss Paxton’s appeal for lack of jurisdiction. On the one hand, they argue that Paxton should not receive the writ because he can receive relief via his appeal. On the other, they seek to prevent the appeal’s resolution on the merits by challenging our jurisdiction . . . . [T]hey cannot do both. Paxton’s appeal is thus not an adequate alternative.”

Finally, regarding (3), the panel holds that its discretion is appropriately exercised here. “[T]he errors are ones that cannot be rectified as the case progresses. Paxton’s compelled testimony cannot be undone or corrected by the district court or a reviewing court once it occurs. We are therefore satisfied that, under the circumstances, we should exercise our discretion to issue the writ.”

In a concurring opinion, Judge Higginbotham would grant the writ but rely on unresolved standing issues, rather than sovereign immunity. “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.”

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