Umphress v. Hall

500 F.Supp.3d 553

Brian Keith UMPHRESS, Plaintiff,

v.David C. HALL, in his official capacity as Chair of the State Commission on Judicial Conduct et al., Defendants.

Civil Action No. 4:20-cv-00253-P

United States District Court, N.D. Texas, Fort Worth Division.

Signed November 12, 2020

Jonathan F. Mitchell, Austin, TX, Charles W. Fillmore, The Fillmore Law Firm LLP, Fort Worth, TX, David Lee Spiller, Mason Spiller, Reid Spiller, Spiller & Spiller, Jacksboro, TX, H. Dustin Fillmore, III, The Fillmore Law Firm LLP, Fort Worth, TX, Michael Dan Berry, Jeremiah Grant Dys, First Liberty Institute, Plano, TX, for Plaintiff.

John J. McKetta, III, Graves Dougherty Hearon & Moody, Austin, TX, David R. Schleicher, Schleicher Law Firm PLLC, Waco, TX, Roland K. Johnson, Harris Finley & Bogle, Fort Worth, TX, for Defendants.

AMENDED MEMORANDUM OPINION AND ORDER ¹

Mark Pittman, UNITED STATES DISTRICT JUDGE

Beginning with Chief Justice Roberts's dissent² and Justice Thomas's dissent³ to Obergefell , jurists have recognized that the fundamental rights of religious freedom and marriage (now including same-sex marriage) are on an inevitable collision course. See Davis v. Ermold, et al. , 592 U.S. ––––, 141 S.Ct. 3, 208 L.Ed.2d 137 (2020) (Thomas, J., statement respecting the denial of certiorari) (recognizing that "[d]ue to Obergefell , those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws"). The undersigned fully agrees that, at some point, a federal court will be called upon to resolve an actual controversy in which these rights are in direct conflict. This case is not that point.

First , Plaintiff Brian Keith Umphress, currently the County Judge of Jack County, Texas, simply has not alleged (and cannot allege) facts to demonstrate that he has standing to challenge Defendants David C. Hall, in his official capacity as Chair of the State Commission on Judicial Conduct; Ronald E. Bunch, in his official capacity as Vice-Chair of the State Commission on Judicial Conduct; David M. Patronella; Darrick L. McGill; Sujeeth B. Draksharam; Ruben G. Reyes; Valerie Ertz; Frederick C. Tate; Steve Fischer; Janis Holt; M. Patrick Maguire; and David Schenck, each in their official capacities as Members of the State Commission's ("Commission") application of Judicial Canon 4A(1) of the Texas Code of Judicial Conduct. Thus, the Constitution mandates that the Court dismiss this action as failing Article III's case or controversy requirement. Second , there is currently a Texas state-court case pending involving another Texas judge who was allegedly harmed by the Commission's application of Canon 4A(1) in the way that Judge Umphress complains of here. Because that case provides the most appropriate vehicle for the challenged state action to reach Texas's highest court, federalism compels the Court to abstain from considering the constitutionality of a state rule when the state's highest court has not yet had an opportunity review the matter.

Thus, as more fully explained below, the Court GRANTS the Commission's Motion to Dismiss for lack of jurisdiction.

BACKGROUND

A few months before filing his complaint, Judge Umphress heard that the Commission had issued a "public warning" to Judge Diane Hensley, a Justice of the Peace in McClennan County, Texas, because she had a policy of recusing herself from officiating at same-sex marriage ceremonies on account of her Christian faith. First Amended Complaint ("FAC") at ¶ 22, ECF No. 9. The Commission found that this particular policy violated Canon 4A(1) of the Texas Code of Judicial Conduct, which holds that "[a] judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge ...." Id. at ¶ 23. In their warning, the Commission stated that Judge Hensley "should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct." Id.

In response, Judge Hensley filed a class action lawsuit against the Commission asking for declaratory relief to the effect that justices of the peace do not violate Canon 4A(1) by (1) performing traditional weddings, but not same-sex weddings; (2) expressing public disapproval of homosexual activity; or (3) affiliating with a church that opposes same-sex marriages. Judge Hensley's lawsuit is currently pending in Travis County. See Hensley v. State Commission on Judicial Conduct et al. , No. D-1-GN-20-003926 in the 459th District Court of Travis County, Texas, Petition ¶¶ 80–81.

Judge Umphress⁴ asserts that he engages in numerous extrajudicial activities—namely, being a member and supporter of a church that "adheres to longstanding Christian teaching that marriage exists only between one man and one woman, and that homosexual conduct of any sort is immoral and contrary to Holy Scripture"—that expose him to discipline under the Commission's interpretation of Canon 4A(1) as expressed in Hensley's case. FAC at 2. Moreover, he alleges that although he officiates traditional weddings, he refuses to officiate same-sex weddings on the basis of his Christian faith and his contention that same-sex marriage remains illegal under Texas law. Id. Judge Umphress contends that because he plans to run for reelection in 2022 on the platform that Obergefell was wrongly decided, and because he intends to continue officiating traditional but not same-sex weddings, he is susceptible to discipline from the Commission. Id. at ¶ 26. Thus, Judge Umphress seeks declaratory and equitable relief against the Commission's possible future enforcement of Judicial Canon 4A(1) of the Texas Code of Judicial Conduct, claiming that the Commission's actions against a different judge located in a different county chilled his First Amendment rights. Id. at ¶¶ 37, 44, 54, 63, 74, 77.

In a Joint Status Report filed by the parties in this case, the Commission asserted, inter alia , that Judge Umphress

is not, and has not been, the subject of any investigation or disciplinary proceeding ... [and] that neither the Commission [on Judicial Conduct] nor any Texas court has—to date—expressed the view that Canon 4A(1) would be violated by a judge's choice of church for worship, nor (without more), a judge's choice to decline to perform same-sex marriages, nor a judge's choice to campaign on a platform that opposes same-sex marriage and Obergefell .

Joint Status Report at 2–3; see also Habersham Declaration in Support of Defendants’ Mt. to Dismiss or Transfer at ¶ 7, ECF No. 7-1. The parties later appeared for a hearing at which the Commission's counsel unequivocally confirmed that based on Judge Umphress's pleaded activities: (1) he faced no disciplinary action from the Commission; (2) the Commission does not plan to take any disciplinary action against him; (3), his choice to decline to perform same-sex marriages and to campaign on a platform that opposes same-sex marriage and Obergefell is not violative of the Commission's interpretation of Canon 4A(1); and (4) there is no allegation of facts that the Commission would take action against him. ECF No. 20. Importantly, Judge Umphress does not dispute the Commission's assertions. See generally , Joint Status Report; FAC; ECF No. 20.

Now before the Court are two motions filed by Commission. The first is a Motion to Abstain and the second is a Motion to Dismiss Based on Lack of Subject Matter Jurisdiction ("Motion to Dismiss"), Abstention, and Lack of Standing. ECF Nos. 23, 25. The motions were fully briefed and are now ripe for review.

ANALYSIS

Here, there is simply no case or controversy between the parties and, indeed, no credible indication that there will be a future case or controversy between the parties presenting the Court with a dispute to adjudicate. Judge Umphress is not running for office until 2022, he continues to engage in his allegedly chilled behavior, the Commission expressly stated that it has not and will not prosecute him for his allegedly chilled behavior, and there is a currently pending state court case involving another judge on precisely the same state-law issues at bar that would render a decision on the federal constitutional questions presented unnecessary. For the reasons explained below, the Court finds that Judge Umphress lacks standing and that his claims are unripe. Alternatively, even if the Court had jurisdiction over this action, it would abstain under R.R. Comm'n of Tex. v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).⁵

A. Judge Umphress lacks standing because the alleged injury lacks imminence and there is no credible threat of prosecution.

Standing, at its "irreducible constitutional minimum," requires plaintiffs "to demonstrate [that]: they have suffered an ‘injury in fact’; the injury is ‘fairly traceable’ to the defendant's actions; and the injury will likely ... be redressed by a favorable decision." Henderson v. Stalder , 287 F.3d 374, 378 (5th Cir. 2002) (cleaned up) (citing Public Citizen, Inc. v. Bomer , 274 F.3d 212, 217 (5th Cir. 2001) and quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "The party invoking federal jurisdiction bears the burden of establishing ... each element ... in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561, 112 S.Ct. 2130 (collecting cases).

Significantly, an allegedly forthcoming injury must be "certainly impending." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ("[W]e have repeatedly reiterated that threatened injury must be certainly impending...