An appeals court recently kicked a lawsuit to the curb that was filed last year against the City of San Antonio when it rejected a Chick-fil-A franchise from operating at the San Antonio airport.
Lawyers for the losing plaintiffs say they plan to take the matter to the Texas Supreme Court.
In a six-page opinion, the Fourth Court of Appeals in San Antonio ruled Aug. 19 that the city’s governmental immunity applies because the lawsuit sought to cancel or nullify a contract made to the benefit of the state.
The case grew out of a March 2019 decision by the San Antonio city council to ban Chick-fil-A from the airport when two council members objected to the company’s “legacy of anti-LGBTQ behavior.”
The city’s Chick-fil-A ban prompted a debate over religious association. The Texas legislature subsequently responded with legislation — popularly known as the “Save the Chick-fil-A law” — prohibiting governmental entities from taking any adverse action against any person or business based on “membership in, affiliation with, or contribution, donation or other support provided to a religious organization.”
Days after that law took effect, a group of conservative plaintiffs sued Chick-fil-A in San Antonio state court, alleging the City of San Antonio violated Government Code chapter 2400 by continuing to ban Chick-fil-A in the airport based on its support for religious organizations that oppose homosexual behavior, the opinion says. The plaintiff group includes San Antonio residents Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke and Daniel Petri. Von Dohlen ran for San Antonio’s city council but lost the general election last May.
When the trial court refused to dismiss the case on the question of governmental immunity and Rule 91a, the City of San Antonio filed an accelerated appeal, arguing that the plaintiffs’ suit had a “transparent purpose … to reverse an action by the city that they concede was not unlawful at the time it was taken.”
The case was argued in July by San Antonio Norton Rose Fulbright partner Neel Lane on behalf of the city. Austin lawyer Jonathan Mitchell of Mitchell Law argued for the plaintiffs. Mitchell is a Trump nominee for Chairman of the Administrative Conference of the United States.
“Appellees seek effectively to undo an invalidate a contract previously approved by the city council, compel the city to re-open the contract approval process, and require the city to re-award the contract to a subcontractor that will operate a Chick-fil-A restaurant in the airport,” Chief Justice Sandee Bryan Marion wrote in the opinion. “Appellees’ claims, therefore, are barred by governmental immunity from both suit and liability.”
Lane told The Texas Lawbook that his client “never punished anyone based on support of a religious charity, which is what the statute protects against.
“The Court of Appeals never reached that question because of its common sense conclusion that the statute did not have waive the city’s immunity from suit for a vote that occurred before the statute took effect,” he said. “It’s a fundamentally conservative ruling that the Supreme Court is unlikely to overturn.”
Mitchell told The Texas Lawbook that his clients plan to appeal the decision to the Texas Supreme Court.
“The Chick-fil-A statute enacted last session specifically waived and abolished the city’s governmental immunity,” he said. “The Court rules that our lawsuit is barred by governmental immunity. The rule of law cannot exist when courts defy enacted statutory language in this fashion.”
The Norton Rose Fulbright team representing the City of San Antonio also includes associate Aimee Vidaurri from the firm’s San Antonio office and associate Peyton Craig from the firm’s Houston office.
The plaintiffs’ legal team also includes Fort Worth lawyers H. Dustin Fillmore and Charles Fillmore of The Fillmore Law Firm.