Planned Parenthood of Greater Tex. Surgical Health Servs. v. City of Lubbock
| Citation | 542 F.Supp.3d 465 |
| Decision Date | 01 June 2021 |
| Docket Number | No. 5:21-CV-114-H,5:21-CV-114-H |
| Parties | PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, on behalf of itself, its staff, physicians, and patients, et al., Plaintiffs, v. CITY OF LUBBOCK, TEXAS, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Robin M. Green, Law Offices of Robin M. Green, Lubbock, TX, Adriana Cecilia Pinon, Pro Hac Vice, Andre Segura, ACLU Foundation of Texas Inc., Houston, TX, Alan E. Schoenfeld, Pro Hac Vice, Cindy Y. Pan, Pro Hac Vice, Lori A. Martin, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Melissa A. Cohen, Pro Hac Vice, Planned Parenthood Federation of America, New York, NY, David Lehn, Pro Hac Vice, Paul Wolfson, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Richard Muniz, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Vikram Iyer, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, CA, for Plaintiff Planned Parenthood of Greater Texas Surgical Health Services.
Adriana Cecilia Pinon, Pro Hac Vice, ACLU Foundation of Texas Inc., Houston, TX, Alan E. Schoenfeld, Pro Hac Vice, Cindy Y. Pan, Pro Hac Vice, Lori A. Martin, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Melissa A. Cohen, Pro Hac Vice, Planned Parenthood Federation of America, New York, NY, David Lehn, Pro Hac Vice, Paul Wolfson, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Richard Muniz, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Robin M. Green, Law Offices of Robin M. Green, Lubbock, TX, Vikram Iyer, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, CA, for Plaintiff G. Sealy Massingill, M.D.
Andrew Bowman Stephens, Heather Gebelin Hacker, Hacker Stephens LLP, Austin, TX, Fernando M. Bustos, Bustos Law Firm PC, Lubbock, TX, for Defendant.
ORDER DISMISSING CASE FOR LACK OF JURISDICTION
The genesis of this dispute is a City of Lubbock ordinance declaring the city a "sanctuary city for the unborn." The ordinance includes a private-enforcement section allowing certain family members and citizens to sue abortion providers or those who aid or abet abortions. Citizen-suit enforcement may not be brought by the city, and anyone sued may assert cases like Roe v. Wade as a defense to liability. Instead of waiting to be sued and challenging the ordinance in response, plaintiffs sued Lubbock to "enjoin the city from maintaining in force, enforcing, or giving legal effect to the ordinance" and to declare it invalid. Plaintiffs allege the ordinance is invalid because it violates federal constitutional rights, could not validly create civil liability between private parties, and is preempted by state law. But plaintiffs admit that even if the Court gave them everything they wanted, the Court's ruling would not bar private citizens from bringing suit in state court, bind the state judiciary by its ruling, or force the ordinance's repeal. Because the ability to remedy a plaintiff's injury through a favorable decision is a prerequisite to a plaintiff's standing to sue—an ability absent here—the Court dismisses the case for lack of jurisdiction.
The requirements of standing are long-established and must be present in every case, regardless of the suit's subject matter. The U.S. Constitution and binding precedent make clear that federal courts do not exist to render advisory opinions on a law's validity. Rather, this Court is limited to resolving actual cases and controversies. To invoke this Court's authority, plaintiffs have the burden to show an injury that is fairly traceable to the city's conduct and likely to be redressed by a favorable decision. Because plaintiffs fail to show that any relief provided by this Court is likely to redress the injury at issue—citizen suits brought in state court—the Court lacks jurisdiction.
Fifth Circuit precedent compels this result. Twenty years ago, the Fifth Circuit heard a similar dispute involving a Louisiana law that allowed private parties to sue abortion providers for damages, and the en banc court dismissed the case because the plaintiffs lacked standing. Okpalobi v. Foster , 244 F.3d 405, 429 (5th Cir. 2001) (en banc); id. at 429–32 (Higginbotham, J., concurring). The court "[did] not challenge that the plaintiffs [were] suffering a threatened injury." Instead, in addition to a lack of causation, the court relied on the fact that the plaintiffs’ "injury [could not] be redressed by these defendants—that is, these defendants [could not] prevent purely private litigants from filing and prosecuting a cause of action under Act 825 and [could not] prevent the courts of Louisiana from processing and hearing these private tort cases." Id.
The Fifth Circuit reaffirmed this holding twelve years later in K.P. v. LeBlanc (LeBlanc II ), 729 F.3d 427 (5th Cir. 2013), where abortion providers challenged the constitutionality of the same private-enforcement provision in a lawsuit against board members of a medical-malpractice patient fund that excluded participation with respect to abortion-related procedures. Id. at 433. Citing Okpalobi , the Court held that "it is the private plaintiff, bringing a private lawsuit under Act 825, who causes the injury of which the plaintiffs complain," and because "enjoining the [b]oard [p]arties from ‘enforcing’ the cause of action would not address their role in administering the [f]und[,] ... declaratory and injunctive relief directed at the [b]oard [defendants] would not redress the [p]roviders’ injury." Id. at 437 (citing Okpalobi , 244 F.3d at 431–32 (Higginbotham, J., concurring)).
In contrast with Okpalobi and LeBlanc , the Fifth Circuit found standing was present in Allstate Ins. Co. v. Abbott , 495 F.3d 151, 159 (5th Cir. 2007), and plaintiffs claim this is the controlling case here. But the state waived Eleventh Amendment immunity in Allstate , subjecting it to an injunction against enforcing the statute at issue. Because the court considered the state itself, and not just a state officer, to be the real defendant, any declaratory or injunctive relief awarded in Allstate bound the entire state, which necessarily included the state courts. The same is not true here because even though the city also does not have governmental immunity,1 it does not and cannot control the state courts that will hear the private-enforcement lawsuits. And the plaintiffs’ assertion that the city's lack of governmental immunity gives them standing to challenge the ordinance is undermined by the fact that the defendants in LeBlanc II did not have immunity, yet the Fifth Circuit found that standing was not present.
Finally, even assuming the Court had jurisdiction, it would abstain under the Pullman doctrine to permit the state courts to first resolve an important and unsettled question of state law before resolving the federal constitutional issues. The federal constitutional claim in this case necessarily depends on the validity of the city ordinance. And it is currently unclear under state law whether the private-enforcement mechanism in the ordinance was enacted ultra vires. Although the Texas Solicitor General believes that the plaintiffs’ challenge to the city's ability to create the private cause of action will ultimately fail, he recognizes that relevant case law provides "both sides in this case [with] respectable arguments to make about the scope of a city's authority to expand tort liability." Dkt. No. 47 at 2–4. Thus, the elements for Pullman abstention are met in this case. Moreover, the totality of the circumstances weighs in favor of abstention, especially given that the issue involves an important and uniquely state-based decision regarding the balance of power between state and local governments. And finally, although there is no pending state proceeding on this matter, "the probability that any federal adjudication [in this case] would be effectively advisory is so great that this concern alone is sufficient to justify abstention." Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 11 n.9, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (citing R.R. Comm'n of Tex. v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) ).
In September 2020, a committee of Lubbock residents filed a petition proposing "[a]n ordinance outlawing abortion within the City of Lubbock, declaring Lubbock a sanctuary city for the unborn." Dkt. No. 14 at 94.2 The petition proposed that the ordinance "be submitted to the city council to either pass and adopt the proposed initiative or to call a special election in accordance with the election code." Id. More than 25 percent of the qualified voters within the city—as determined by the number voting at the last regular municipal election—signed the petition. See id. at 147, 159.
The city retained outside counsel to analyze whether the proposed ordinance would be valid if passed. Id. at 110, 112–28. In a memorandum addressed to the Lubbock City Attorney, outside counsel opined that "[t]he [p]roposed [o]rdinance is inconsistent with the United States and Texas Constitutions," and "both the criminal and civil provisions of the [p]roposed [o]rdinance are inconsistent with the present law of the State of Texas" and, therefore, preempted by state law and ineffective. Id. at 128. After receiving this memorandum, the city announced that a petition to consider the ordinance had been submitted to the city council and released a statement indicating that the proposed ordinance was contrary to Texas Law. Id. at 110.
Because the petition had enough verified signatures to force a vote by the city council on whether to adopt the ordinance, the city council held a meeting in November 2020. Id. at 110, 132. At the meeting, the city council voted unanimously to reject the ordinance. Id. at 110, 130.
Despite this rejection, the city's charter allows for voter-proposed ordinances to be put up for a city-wide...
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