Von Dohlen v. City of San Antonio

643 S.W.3d 387

Patrick Von DOHLEN, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri, Petitioners,

v.CITY OF SAN ANTONIO, Respondent

No. 20-0725

Supreme Court of Texas.

Argued October 28, 2021

OPINION DELIVERED: April 1, 2022

H. Dustin Fillmore III, Charles W. Fillmore, Fort Worth, Jonathan F. Mitchell, for Petitioners.

Aimee Vidaurri, San Antonio, Peyton Craig, Daniel McNeel Lane Jr., for Respondent.

James Sullivan, Jeffrey Oldham, for Amicus Curiae Abbott, Greg.

Jeffrey C. Mateer, Austin, David J. Hacker, Kelly J. Shackelford, Plano, for Amici Curiae Texas Values, Texas Pastor Council.

Gene Hamilton, Heather Gebelin Hacker, Andrew B. Stephens, for Amicus Curiae America First Legal Foundation.

Matthew Krause, Douglas Bryan Hughes, for Amicus Curiae Members of the Texas State Legislature.

Justice Huddle delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, Justice Bland, and Justice Young joined.

The petitioners in this case allege that the San Antonio City Council voted to prohibit the opening of a Chick-fil-A in the San Antonio airport based, at least in part, on Chick-fil-A's contributions to religious organizations that councilmembers found objectionable. Some months later, Texas enacted the "Save Chick-fil-A law." The statute prohibits a governmental entity from taking any adverse action against any person based wholly or partly on the person's membership in, affiliation with, or support of a religious organization. Petitioners, who are would-be customers of the airport Chick-fil-A, sued the City, seeking declaratory and injunctive relief, plus costs and attorney's fees.

The City raised two jurisdictional challenges: governmental immunity and lack of standing. The trial court denied both, but the court of appeals reversed on governmental-immunity grounds and dismissed the case. We hold that petitioners’ live pleading does not demonstrate a waiver of governmental immunity. But because the pleading does not affirmatively negate the existence of jurisdiction, we reverse the court of appeals’ judgment and remand to allow petitioners an opportunity to replead.

I. Background

In March 2019, the San Antonio City Council considered whether to approve a proposed concession agreement pursuant to which concessionaire Paradies Lagardère would contract with various vendors who would operate in the San Antonio International Airport. The agreement as initially proposed contemplated the installation of a Chick-fil-A in a 985-square-foot space near Gate A6.

This proposal drew opposition at the March 21, 2019 City Council meeting. According to the petition, Councilmember Roberto Treviño objected to the concession agreement's inclusion of Chick-fil-A and "announced that he wanted Chick-fil-A banned from the San Antonio airport." He elaborated: "The inclusion of Chick-fil-A as a national brand tenant is something I cannot support. The heart of the LGBTQ community is in District One and the community has come together to voice its disapproval of this proposal because it includes a company with a legacy of anti-LGBTQ behavior." It is alleged that Treviño "moved to approve the agreement with Paradies Lagardère, but with an amendment [that] would direct the city's staff to work with Paradies Lagardère in replacing Chick-fil-A with another vendor."

The petition also alleges that, at that same meeting, Councilmember Manny Pelaez seconded Treviño's motion, citing Chick-fil-A's history of "funding anti-LGBTQ organizations." Petitioners allege Pelaez "explicitly stated that he wanted Chick-fil-A banned from the airport because of its donations to certain religious organizations." The petition quotes Pelaez as having said: "I want to make [ ] sure that when people traverse our airport, the first thing that they see is a San Antonio that is welcoming, and that they not see a symbol that for many people is a symbol of hate."

The petition alleges that some councilmembers opposed the effort to exclude Chick-fil-A from the airport. But, after debate, "the council voted 6-4, with one abstention, to approve the contract with Councilmember Treviño's amendment to ban Chick-fil-A from the airport."

The Texas Legislature responded later that year by passing Senate Bill 1978, popularly known as the "Save Chick-fil-A law." Codified at Chapter 2400 of the Government Code, the statute prohibits a governmental entity from taking "any adverse action against any person based wholly or partly on the person's membership in, affiliation with, or contribution, donation, or other support provided to a religious organization." TEX. GOV'T CODE § 2400.002. Section 2400.001 defines "adverse action" to mean "any action taken by a governmental entity" to, among other things, "withhold, reduce, exclude, terminate, or otherwise deny" the following:

• any grant, contract, subcontract, cooperative agreement, loan, scholarship, license, registration, accreditation, employment, or other similar status from or to a person; or

• access to a property, educational institution, speech forum, or charitable fund-raising campaign from or to a person.

Id. § 2400.001(1)(A), (F).

Under the heading "Relief Available," the statute provides:

A person may assert an actual or threatened violation of Section 2400.002 as a claim or defense in a judicial or administrative proceeding and obtain: (1) injunctive relief; (2) declaratory relief; and (3) court costs and reasonable attorney's fees.

Id. § 2400.003(a). And Section 2400.004, entitled "Immunity Waived," provides:

A person who alleges a violation of Section 2400.002 may sue the governmental entity for the relief provided under Section 2400.003. Sovereign or governmental immunity, as applicable, is waived and abolished to the extent of liability for that relief.

Id. § 2400.004.

Chapter 2400 was signed into law in June 2019 and took effect September 1, 2019. Act of May 23, 2019, 86th Leg., R.S., ch. 666, 2019 Tex. Gen. Laws 1939 (current version at TEX. GOV'T CODE §§ 2400.001 –.005). Four days later, petitioners, who are five individuals residing in Bexar, Kendall, and Comal County, sued the City and Paradies¹ in Bexar County district court, asserting a violation of Section 2400.002. Petitioners allege that they have standing because they "use[ ] the San Antonio airport for travel and would patronize Chick-fil-A if the city had not banned it from the airport."

Petitioners allege "[t]he city of San Antonio is violating section 2400.002 by banning Chick-fil-A from its airport." They further allege: "The city's continued exclusion of Chick-fil-A is based ‘wholly or partly’ on Chick-fil-A's past and present contributions, donations, and support for certain religious organizations, including the Salvation Army and the Fellowship of Christian Athletes, which it provides through [ ] WinShape, its charitable foundation."

The petition requests the following relief:

• a declaration that the City violated and continues to violate Section 2400.002 by banning Chick-fil-A from the San Antonio airport;

• a temporary and permanent injunction that prevents the City from excluding Chick-fil-A from the San Antonio airport;

• a temporary and permanent injunction that compels the City to install a Chick-fil-A restaurant in the San Antonio airport, consistent with the proposal submitted by Paradies before the Treviño amendment;

• a temporary and permanent injunction that prohibits the City from taking any adverse action against Chick-fil-A or any other person or entity based wholly or partly on that person or entity's support for religious organizations that oppose homosexual behavior; • all costs of suit and reasonable attorney's fees; and

• all other appropriate relief.

To support their request for a temporary injunction, petitioners allege they "will suffer probable, imminent, and irreparable injury absent a temporary injunction." They add that "[t]he plaintiffs have a probable right to relief because Councilmember Treviño and Pelaez's statements show that the city's exclusion of Chick-fil-A from the San Antonio airport is at least ‘partly’ based on Chick-fil-A's donations to a religious organization."

The City sought dismissal based on governmental immunity and lack of standing. The City argues, first, that Chapter 2400 does not reach the City's March 21, 2019 conduct—the City Council's vote to amend the concession agreement to exclude Chick-fil-A—because Chapter 2400 was not in effect at the time, and the petition alleges no facts to support the notion that the City violated Section 2400.002 on or after its September 1, 2019 effective date. The City's standing challenge is premised on its contention that petitioners have suffered no injury in fact because being deprived of the ability to buy Chick-fil-A products at the airport is not a concrete, particularized injury, either actual or imminent.

Petitioners dispute the City's contention that Section 2400.004 authorizes lawsuits only by the person who has suffered adverse action at the hands of the governmental entity. They argue that, under Section 2400.004, a person need only "allege" a violation to sue, regardless of whether that person was the victim of the adverse action. They argue, in the alternative, that if a concrete, particularized injury must be shown, theirs qualify. With respect to the statute's temporal reach, petitioners acknowledge that Chapter 2400 did not take effect until September 1, 2019, and is not retroactive. They agree therefore that the City Council's March 21, 2019 vote did not violate Chapter 2400. Rather, they argue the City's exclusion of Chick-fil-A was "ongoing" and that they seek relief solely for the City's actions on or after September 1, 2019.

After a hearing, the trial court denied the City's jurisdictional challenges, and the City appealed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). The Fourth Court of Appeals reversed the trial court's order denying the City's plea to the jurisdiction and rendered judgment...