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Texas Supreme Court nullifies rule of law; impunity to reign

By   /   January 27, 2017  /   No Comments

Part 71 of 72 in the series Trouble in Texas
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BAD CALL: The Supreme Court of Texas has decided that government need not follow the law.

The Supreme Court of Texas punched a new loophole in state law Friday.

The loophole applies not to this law or that one, but to all of them.

Somehow, this judicial body that is supposedly averse to overruling laws established by democratic authority found a way to nullify any number of them with its unanimous ruling in the case of Hall v. McRaven.

Put another way, Wallace Hall was so clearly in the right here, the only principle the Supreme Court could invent to defeat him is one that nullifies the rule of law itself. And the court still needed to completely botch a basic factual question in order to get there.

The bigger problem is that government boards and officials in Texas are now free to behave with impunity, provided – and this isn’t much of a catch – these officials rank high enough to legally delegate authority to others. The Supreme Court has decided that if these boards and officials assign a subordinate to “interpret” the laws restricting the organization, then the subordinate is free to arrive at whatever interpretation is most convenient.

That interpretation, no matter how bad, cannot then be challenged in a Texas court. In other words, just have your counsel declare that laws that are in your way aren’t really in your way, and the Texas judiciary promises not to correct you.

Hyperbole? I’m biased, of course – my employer filed an amicus brief in the case supporting Hall – but the problem is plain to see for anyone, biased or unbiased.

Under the Supreme Court’s new principle, the act of delegating an interpretation creates an umbrella of lawful authority, which the lower official is then free to abuse in misinterpreting all other laws that might apply to the situation.

All those other laws then get lumped into a category called “collateral,” which the Supreme Court now interprets to mean non-binding on government officials, or at least unenforceable thanks to sovereign immunity.

If you would like to oblige government officials not to exceed their lawful authority by filing a lawsuit under the ultra vires doctrine, which Hall did, you may no longer challenge any lawbreaking the official did by “interpreting” those “collateral” laws out of existence. You can only challenge the original delegation of interpretation authority, which will be presumed lawful.

Got that?

Say an appraisal district values your modest house at a half-million dollars in violation of whatever caps and restrictions are on the books in your jurisdiction. You sue, claiming the appraiser had no authority to do that, citing laws the appraiser is plainly disregarding.

Well, under this new principle, so long as the chief appraiser delegated the authority to “interpret” the laws to another appraiser, you have no recourse.

In Hall’s case, the UT Board of Regents first voted to allow Hall to see the records of an investigation conducted by Kroll Associates, under a rule that required just two votes in favor.

Chancellor Bill McRaven’s lawyers had settled on a plan to block Hall – they would claim the Family Educational Rights and Privacy Act prevented McRaven from sharing the Kroll papers.

So his lawyers advised the board in private before the vote that they would redact the Kroll papers for “student privacy,” before showing anything to Hall, which meant blacking out, among other things, all records of the investigation itself.

Two months later, the board voted in favor of allowing McRaven to “interpret” FERPA and other law in deciding what to give Hall.

So Hall filed an ultra vires lawsuit, arguing that McRaven had exceeded his authority in refusing to share the records based on nothing but his own say-so, and that the board didn’t have the power to restrict his access at any point with any rule, or to immunize McRaven’s decision by “endorsing” it later.

Nothing in FERPA prohibits a university from sharing records with its board, and the Supreme Court noted that, in reaching its decision, it had assumed for the sake of argument that McRaven had misinterpreted FERPA.

But it held that ultra vires actions apply only to “the law authorizing [McRaven] to act,” meaning the board resolution, not the law he was tasked with interpreting or any other law he should theoretically obey. Therefore, McRaven’s “discretion in making that determination is otherwise unconstrained” by FERPA or any other law.

“Otherwise unconstrained.” Get used to seeing those words.

Making the law disappear

Needless to say, the decision flew in the face of precedent, which held officials absolutely immune only when they enjoyed “absolute discretion” to decide something, a rare freedom given that officials are surrounded by laws and policies.

For example, the court decided last year that Houston’s public works director had exceeded his authority by relying on aerial photographic surveys in a project rather than the “digital-map data or other similar reliable data as shall be determined by the director,” called for by statute.

The director had figured maps composed of digital photographs were “similar” to “digital-map data,” a call he had the express authority to make.

Still, the court second-guessed him. Yet the court purports to apply the same principle here in determining that McRaven was “unconstrained” by any law other than the one by which the board presumed to delegate him authority.

Who would want direct authority established by law, when delegated authority makes the law disappear?

Until now, the court has consistently applied the principle that “a public officer has no discretion or authority to misinterpret the law.” Yet, that is just what the court sanctioned.

Heck, if McRaven had concluded that FERPA required him to share with Hall nothing but aerial photographic surveys, this court would have shrugged and said “sure, if you say so.”

“It is the mistake’s impact on the official’s authority that carries dispositive weight for ultra vires purposes,” the court intones, leaving itself an out to reinterpret the law according to its mood next time around.

The bigger the mistake, presumably, the better.

Sarcasm aside, every child knows that knowledge is power. By allowing a board majority to deprive a minority of information, the court has stripped every individual member of a city council or a school board of his or her individual power – the power to get to the truth and to convince others of it.

It has tossed aside the longstanding principle of “inherent right of access” for board members and such without even deigning to address it. And it found the authority for this not in any particular law, but somehow inherent in the Education Code that established the board.

This finding of actual “authority” to deny access to records – the authority the board had presumed to delegate – is mere question-begging.

By way of pretending that they’re not legislating from the bench, these judges say it’s up to the Legislature to explicitly state that an individual member should have a right of access, but ignore the obverse: they have destroyed a de facto right of access based on nothing more than a feeling.

Here’s a hypothetical for them: Say a state had nothing in law explicitly stating that each member of the Supreme Court had a right to review the entire record in each matter before them. Things had always been done that way, and nobody had ever seen the need to spell out the obvious. Then imagine a Supreme Court so corrupt that a majority presumed to delegate to the chief justice the authority to decide what materials, if any, the rest of the court could see.

Who among these judges would tolerate such an abuse? Yet they endorse such lawlessness elsewhere.

Error of fact

Worst of all for this case, if less relevant to the generalized destruction the court has just worked upon governance in Texas, their decision is entirely predicated upon a factual mistake.

The court swallowed a misrepresentation by Wallace Jefferson, McRaven’s attorney, about the only vote taken on whether Hall should get access to the records, which came on April 8, 2015.

For a court that is convinced that the only rules that matter here are those specifically established by the board under its general grant of authority from the Legislature, this court is shockingly blasé about what authority the board actually transferred to McRaven.

Under the rules on April 8, Hall only needed somebody to second his motion for access to whatever information he desired.

Hall moved for complete access to the records. He received a second and a third, and Chairman Paul Foster announced, “So that motion passes. It is my understanding that because the motion includes FERPA data, that nothing will happen immediately.”

The board members had just been advised during executive session that McRaven and the UT System lawyers would assert a need to redact FERPA information no matter what the board decided.

But you wouldn’t have to know that; the board’s actions are on the record.

Regents Alex Cranberg and Brenda Pejovich, who supported Hall, both asked questions about the motion during the meeting, and Jefferson misrepresented those questions to the Supreme Court as some sort of hedge or qualification.

Pejovich wanted the FERPA exclusion in Hall’s motion itself, but you can’t change somebody else’s motion under the Rules of Order. You can vote against it and move your preferred idea instead.

Regent Steve Hicks asked to amend Hall’s motion with a FERPA exclusion, which Hall rejected; counsel confirmed the rejection was proper.

“With that rejection of the amendment, Mr. Chairman, you should call for the vote on the original motion,” Hall’s motion, counsel Francie Frederick told Foster.

Hall and Cranberg voted yes, simply. That by itself granted Hall the right to see the records.

Pejovich also voted yes, while asking to qualify her approval, “With the understanding that there are processes and safeguards in place, specifically through the General Counsel’s office, that all information released will be deemed appropriate to be released in the manner in which it will be released or should I say reviewed. And with that, I vote yes.”

Foster even corrected her, saying, “I do not believe that is the motion but we will record your vote as yes.”

Afterward, Cranberg asked whether Hall could get the non-FERPA data immediately, “understanding that any FERPA data is subject to a review process involving the System offices,” as he had just been told that System would need to review it.

Simply put, the board voted to grant Hall unconditional access, and McRaven disregarded the instruction for months. And the court didn’t even notice that, in a lawsuit over that specific refusal.

This was the court’s understanding of events: “importantly, the two regents joining Hall conditioned their votes on the Chancellor’s office engaging in a review to determine which information was protected by FERPA.”


Months later, after Hall had filed a lawsuit against McRaven for refusing to abide by the board’s vote, the board changed its rules so McRaven could argue he was no longer to blame, and that Hall should have sued the board.

The court fell for it.

The majority opinion goes on to express sympathy for Hall’s aims, with the justices insisting their hands are tied and this is really a job for the Legislature.

Don’t buy it.

The Supreme Court twisted logic all on its own, and it failed to nail down the facts like a soon-to-be-fired cub reporter.

It could have held McRaven accountable. It chose not to, for reasons of its own.

Contact Jon Cassidy at [email protected] or @jpcassidy000.

Part of 72 in the series Trouble in Texas
  1. Texas’ Rep. Pitts announces retirement after improper influence story
  2. University of Texas regents show support for Wallace Hall
  3. Case against UT regent Wallace Hall is a sham — here’s proof
  4. Texas senator got $477k for supposed ‘cameo’ appearance in Wallace Hall lawsuit
  5. Lawmaker admits pulling strings on UT admissions
  6. Trustee accused of crime for rejecting dodgy accounting
  7. Longhorns: Senator used clout in UT law school admissions
  8. Children of Texas lawmakers get into UT School of Law, but struggle to pass bar exam
  9. Chancellor is probing favoritism in UT admissions
  10. UT report: Charge against Hall is legally ‘absurd’
  11. Attorney in UT case hides six-figure charges despite terms of contract
  12. University of Texas clout scandal grows as new e-mails surface
  13. Four more get into UT Law despite low LSATs
  14. Reports on UT favoritism, impeachment expected soon
  15. Attorney: Secret tape covered up by lawmakers proves regent’s innocence
  16. Dozens of UT Law’s least qualified students are connected politically
  17. University of Texas uncovers admissions corruption, halts investigation
  18. UT admissions: Straus, Branch, Pitts pulled strings
  19. Who got the 128? UT Law admits students with bad LSAT scores
  20. Patrick’s win may doom Hall impeachment effort
  21. Chancellor promises complete investigation of UT admissions
  22. Board to decide UT president’s fate Thursday
  23. Texas politicians smarten up, ditch UT pres this time around
  24. Tribune story may have doomed UT’s Powers
  25. Academics condone the privilege they denounce
  26. Three essential stories on the UT admissions scandal
  27. Texas AG Greg Abbott embraces Roe v. Wade
  28. Roe v. Wade is AG’s new pretext for blocking Texas law school investigation
  29. Two UT regents pressed for records destruction
  30. New crime invented for Hall: assisted guesswork
  31. Texas lawmaker failed to disclose his own clout letter in UT flap
  32. Texas legislator Fischer insists on role in UT investigation
  33. Hutchison pulled strings for friends’ kids and grandkids at UT
  34. Ex-UT Law dean’s credit card bill: $400k in four years
  35. Abbott’s UT picks are pro-affirmative action
  36. Report: University of Texas showed favoritism to thousands
  37. Kroll ignored hundreds of weak UT applications
  38. Billionaire defends UT admissions privileges for ‘leaders’
  39. Weak admissions to University of Texas Law increased after Sager’s ouster
  40. Kroll report takes dig at Watchdog.org
  41. Hicks won’t stop UT’s backdoor admits
  42. Texas governor’s wife was on UT nominee’s payroll
  43. Bill to limit UT oversight clears committee
  44. UT regent blasts speaker for ‘abuse of office’
  45. Texas politician rebuts himself with apparently plagiarized letter
  46. Pay-to-play scandal involves UT dean, Texas Exes
  47. Supreme Court asked to look at UT’s backdoor admissions program
  48. Lawmakers want UT applications shielded from scrutiny
  49. McRaven makes UT scandal his own
  50. An open letter to Attorney General Ken Paxton on the UT cover-up
  51. Chancellor Bill McRaven’s UT cover-up has no defenders
  52. UT’s back door still open, but can’t stay secret, AG rules
  53. Whitewash: Kroll left dozens of bad LSATs out of UT report
  54. McRaven’s defense to Hall lawsuit refuted by own words
  55. Ready for the end of affirmative action?
  56. UT admissions scandal is 10 times bigger than official report
  57. McRaven trolls Dallas Morning News
  58. Powers to get top salary at UT Law
  59. UT sues to block Watchdog access to admissions investigation
  60. UT approves ‘Spinal Tap’ policy for backdoor admissions
  61. Admissions survey: No, UT, everybody doesn’t do it
  62. UT admissions scandal prompts new investigation
  63. Ticket scandal a black mark for UT, DA
  64. Showdown over UT cover-up nears end
  65. McRaven’s rationale for UT cover-up denounced by regents, AG
  66. High court to decide if University of Texas can deep-six investigation
  67. High court hears arguments on whether UT can bury investigation
  68. Testimony by UT contradicts story fed high court
  69. These ‘horns ain’t loyal, McRaven finds
  70. UT’s Hall challenges Abbott over board picks
  71. Texas Supreme Court nullifies rule of law; impunity to reign
  72. The battle for the Kroll records goes on

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Jon Cassidy was a former Houston-based reporter for Watchdog.org.