Petition For Writ Of Injunction - Supreme Court Of Texas: Fill & Download for Free

I think we need to begin by looking at the origins (or is that oranges…I’m not sure) of this case.In early May 2020. the County Secretaries, in several Texas Counties, including counties around Houston, Austin, El Paso, San Antonio and Dallas started telling residents that they would accept COVID-19 as an disability for requesting a mail-in ballot.Texas Governor, Greg Abbott, and Attorney General, Ken Paxton, issued an order telling those county secretaries that they would be violating State Law and be prosecuted for failing to uphold their office if they followed took such actions.This lead to those counties, including a few Republican run counties, suing the State of Texas. This went to the Texas Supreme Court. Ken Paxton was requesting an injunction on the counties refusing them from allowing COVID-19 as an excuse and suggesting removal of office because they would be violating State Law. The Texas Supreme Court ruled in favor of the State of Texas, declaring that COVID-19 did not fit the lawful definition of a disability; however, it refused to issue the injunction or agree to removal from office of the County Secretaries.The Texas Supreme Court’s decision stated:Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances. One is if the voter has a “disability” as defined by statute.The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. [sic] We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code.But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. [sic] Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.Therefore, with that, the Texas Supreme Court allowed County Secretaries and Clerks to move forward in good faith.But where does the US Supreme Court come into play? Well, at the same time that the Texas Supreme Court made this decision the Texas Democratic Party filed suit in Federal Court to force Texas to expand mail-in voting. In mid-May U.S. District Judge Fred Biery ruled that Texas must allow all voters fearful of becoming infected at polling places to vote by mail even if they wouldn’t ordinarily qualify for mail-in ballots under state election law. However, the US 5th Circuit Court of Appeals stayed that order while the State of Texas appeals the order.So what does all this really mean? Well, Greg Abbott, and Ken Paxton want to limit mail-in voting, while county officials in several counties want to expand it. The federal courts are considering the case, but will not get to it before the State Primary. However, the Texas Supreme Court has ruled that the county officials will be operating in good faith to uphold the interests of voters.Basically, it is in the hands of country officials regardless of what the Governor or Attorney General think.

I separate the following into “background”, which are procedures that are helpful to know to understand how extraordinary this matter is, and “motion”, which is the issue defined by the pleadings.Background:In general, the federal court system expects that trial-level courts (generally district courts, but including Article 1 courts such as the bankruptcy, immigration, tax and other specialized courts) will be made to the 12 federal courts of appeal for the respective judicial districts. There are a few specialized courts authorized to hear appeals from trial-level courts, as for instance the several Bankruptcy Appellate Panels. Further appeal from these specialized appellate courts follow the usual route.Any appeal from the courts of appeal commonly are made via petitions for writs of certiorari (see, e.g., 28 USC 2101) and the granting of those are discretionary with the Supreme Court. Even there, there may be narrow exceptions. See, in general, 28 USC 1253: “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”There are, however, certain cases which enter the Supreme Court directly, so that no appeal would be permitted. One group of cases are those which can be brought immediately before the Supreme Court. See Art. 3, sec. 2: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.”In addition, it is possible for a federal court to ask an appellate court to permit an immediate appeal on some particular issue by “certification” of the question by the judge of the court then having the matter before it. Rule 19 of the Supreme Court’s rules permit this: “A United States court of appeals may certify to this Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they shall be stated separately and with precision. The certificate shall be prepared as required by Rule 33.2 and shall be signed by the clerk of the court of appeals.” Note that only the court of appeals having jurisdiction already is to originate this. The parties become involved, however. Part 2 of the Rule says “When a question is certified by a United States court of appeals, this Court, on its own motion or that of a party, may consider and decide the entire matter in controversy. See 28 USC 1254(2) Note that the issue has to already be before a court of appeals, which commonly would mean that a trial-level court has already done something. The court of appeals has to certify the question - basically, ask the Supreme Court to take jurisdiction over the issue as certified. And then, of course, the Supreme Court has to accept the certification.MotionIn the case of Barry v. Sessions commenced in November, 2018, the petitioners want Rosenstein to be acting AG instead of Michael Whitaker, pending nomination and confirmation of someone else. Those petitioners (mostly the State of Maryland) have filed a motion directly with the Supreme Court to ask for a ruling on the constitutionality of Whitaker’s appointment to head the DOJ. The text of this motion can be read at https://www.courthousenews.com/wp-content/uploads/2018/11/Michael-Whitaker.pdfHere the argument is set out in the first paragraph of the motion and in the petitioners’ summary: “Petitioner respectfully moves this Court to substitute Rod J. Rosenstein in his official capacity as Acting Attorney General for Jefferson B. Sessions III, who resigned on November 7, 2018. The President that day purported to designate Matthew G. Whitaker as Acting Attorney General.Note: Whitaker may be unconfirmable; among other things, he supports what is called “nullification” whereby a state may “nullify” a federal law it doesn’t like. See Whitaker said he supports state's rights to nullify federal law).Michaels argues that, in fact, Rosenstein — as the Senate-confirmed Deputy Attorney General — should have automatically succeeded to the role of Acting Attorney General under 28 U.S.C. § 508(a). Further, he argues that the appointment of Whitaker violated Article II of the Constitution. “ The petitioners’ summary of their argument is: “The Attorney General Succession Act unambiguously deems Deputy Attorney General Rod Rosenstein the Acting Attorney General. There is no merit to the Government’s contrary argument that Congress empowered the President to choose whether to permit automatic succession under that statute or instead to choose a successor under the Vacancies Act. Indeed, given the absence of any exigency, the Appointments Clause only permits a Senate-confirmed official to serve as Acting Attorney General.”Thus, the factual and procedural backdrop is unusual You might ask how this motion got to the court of appeals in the first place, but it actually followed the customary route described above. The movant, Barry Michaels, originally filed a lawsuit in March of 2016 against Sessions as the then federal AG challenging the constitutionality of the federal ban on possession of firearms by convicted felons because he was affected by its outcome in the way you would expect from such a motion. Nothing there to attract any special attention.After losing his motion in the trial-level court, Michaels filed a petition for certiorari on June 27, in which the government’s response was not due on December 17 of this year. But then, stuff happened. In the first week of November, Sessions “resigned” on the order of Trump, who appointed Whitaker to take over as AG, bypassing Rosenstein. Usually, a new AG just files a little pleading coming in as successor in interest, but the appointment of Whitaker was anything but normal.Here is where things became, shall we say, different. Michaels is represented by Florida lawyer Michael Zapin and a team of lawyers from Goldstein & Russell, P.C., which is a firm led by SCOTUSblog founder Tom Goldstein. I admit that I read and enjoy SCOTUSblog myself. On behalf of Michaels, the firm moved the Supreme Court to “substitute” the appropriate successor to Sessions. In Michael’s view, this could not be Whitaker when a Senate-approved successor was the correct person. See a good summary of Michaels’ legal argument written by a friend of Michaels’ law firm at Whitaker appointment dispute reaches Supreme Court - SCOTUSblogThe administration has responded by asking that Whitaker’s appointment be approved, warning that “chaos” will result if it is not. See a good overview at US justice chief challenged in Supreme Court Here is an opinion piece agreeing with the feds: Opinion | Whitaker May Be a Bad Choice, but He’s a Legal One And see Is Trump’s pick of Matthew Whitaker for acting AG legal? and https://www.washingtonpost.com/politics/2018/11/14/matthew-whitakers-shaky-legal-footing-explained/You might think that Michaels is on his own here, but the State of Maryland has joined in the dispute, but on a different argument, and has asked for an injunction declaring that Whitaker is not the legitimate acting attorney general as a matter of law, and that the “position and all its powers” instead rightfully belongs to the deputy attorney general, Rod J. Rosenstein: “Mr. Trump may not bypass the constitutional and statutory requirements for appointing someone to that office”. Here’s the state’s pleading at https://int.nyt.com/data/documenthelper/486-state-of-maryland-challenge-to/6ef94e5387c778dd921f/optimized/full.pdf#page=1The state has asked that the Justices “expedite” the matter - something hardly likely, but it certainly may result in a certain sorting of the sheep from the goats. (Note: I grew up on a dairy farm in South Texas, but another branch of my family raised sheep in northern Texas, so I can say that a sheep giving wool, meat and tiny sheep is much more valuable than a goat giving mostly annoyance and sneaky head butts, yet most people I ask about this little saying seem to think that the goats are preferable. I don’t understand it. Among other distasteful things, billys - male goats - like to pee in their beards, thinking I suppose that it makes them more attractive. It does certainly warn the nannies and any down-wind humans that a billy is nearby.)Anyway, to finally answer the actual query, SCOTUS has choices: accept cert and decide the primary issue of the constitutional requirements for service as AG; decline cert conditionally and let the court of appeals live with this for a while and shape up the record for SCOTUS; or decline to hear it now for some procedural irregularity which SCOTUS can always find if they don’t want to hear something. My personal choice would be this: SCOTUS, if sufficiently annoyed with the administration’s cheap crack about “Obama judges”, asks that the parties present their arguments to the court of appeals. This will take the suit into the time frame of the new Congress, give some time to see if the chaos argued for by the feds actually appears, and see if the politicians can’t solve their own mess for a change. Congress might presumably be distracted by a potential shutdown of the government over Trump’s demands of billions for his wall - again. Then SCOTUS could ride to the rescue, accepting cert assuming that whomever the AG is at that point still wants to argue about it. This would give the issue time to go away, letting SCOTUS look independent and judicial, and serve notice that it is not SCOTUS’ job to drag the administration out of whatever mess it has currently created. It’s what I would do if I were Roberts. But then I once was reproved for laughing about some legal point and firmly told that there was “nothing funny about the law”. Plainly I lived in different courts or in an area of the law that appreciated gallows humor, because I have frequently been amused by what happens in courthouses.But that’s just me.

In cases between states, the Supreme Court functions as a court of original jurisdiction (trial court) and not as an appellate court so jurisdiction is mandatory. This does not mean, of course, that the Court must give full consideration to the case as it can be dismissed. If extensive fact finding is required, the court can appoint masters to gather evidence. The Pennsylvania case is a normal application for a writ of certiorari. The Supreme Court refused to grant injunctive relief in a one-sentence opinion. Really normal judicial operations functioning normally.