A Travis County district court judge who had argued a statute that allowed her to be deemed a vexatious litigant was unconstitutional lost that fight Monday when a Fifth Circuit panel affirmed dismissal of the lawsuit.
Judge Madeleine Connor, who has presided over the 353rd district court in Travis County since 2021, was among a group of six plaintiffs who filed a lawsuit against those they said were responsible for enforcing the statute they allege is unconstitutional: local administrative judge for Smith County, Judge Austin Reeve Jackson, Smith County District Clerk Penny Clarkston and the administrative director of the state’s Office of Court Administration, Megan LaVoie.
Judge Connor and her co-plaintiffs — Christine Reule, Harriet Nicholson, Rebecca Alexander Foster, Jimmy Lee Menifee and Tony Lamar Vann — were declared to be vexatious litigants after filing a series of unsuccessful pro se lawsuits. Chapter 11 of the Texas Civil Practice & Remedies Code lays out the framework for who can be declared a vexatious litigant, which bars the individual from filing pro se litigation without first getting the approval of the local administrative judge.
Currently, there are about 400 individuals on the list of vexatious litigants in Texas. The group of six filed this lawsuit seeking a court declaration that Chapter 11 is an unconstitutional ban on their ability to petition the courts.
The defendants argued that the vexatious litigants had no standing to bring this lawsuit and that the lawsuit should be tossed “because no justiciable case or controversy existed.”
U.S. District Judge Jeremy Kernodle agreed and tossed the lawsuit after finding there was a lack of standing. Judge Kernodle assumed without determining the vexatious litigants had suffered an injury, satisfying the first prong of standing, but found they failed to meet the bar on two other prongs: traceability and redressability.
The vexatious litigants filed notice they would be appealing that ruling in August 2023. The Fifth Circuit panel heard oral arguments July 8.
The Fifth Circuit agreed that the vexatious litigants failed to satisfy traceability or the causal connection between the alleged injury and the complained-of conduct of the defendants.
“First, if appellees all ceased discharging their duties under Chapter 11, nothing about appellants’ situation would change,” the panel explained. “Even if all LAJs across the state refused to evaluate and adjudicate vexatious litigants’ requests for permission to file new suits, all clerks of court across the state simply ignored their duties under Chapter 11 and docketed those suits, and LaVoie on behalf of OCA took down the webpage publishing the list of vexatious litigants, appellants would still not get the unfettered access to state courts they seek.”
“Under Chapter 11, they could still face contempt if they filed a new suit, and their suits could still be dismissed. Accordingly, appellants’ injury is not fairly traceable to appellees’ conduct.”
The panel found the vexatious litigants also failed to show redressability or that the remedy they sought would address the purported injury.
“In fact, if LAJs like Judge Jackson were enjoined from discharging their duties under Chapter 11, appellants would have no hope of ever getting into court again, because every action they filed would be dismissed for failure to obtain the permission their prefiling orders require,” the panel wrote. “And because appellees’ conduct did not cause appellants’ injury, altering or prohibiting that conduct will do nothing to redress it. Accordingly, appellants do not have standing to bring their claims against appellees because the relief they seek against appellees will not redress appellants’ injuries.”
Judge Connor lost her bid for re-election to the bench in the March Democratic primary.
Counsel for the defendants did not respond to a message seeking comment Tuesday.
Mary Loise Serafine of Austin, who represents the vexatious litigants, told The Lawbook on Tuesday she and her clients were disappointed by the ruling and were still considering whether to “take additional steps” to pursue the litigation.
“The panel expanded the Supreme Court’s Whole Woman’s Health decision far beyond its actual reasoning,” she said in a statement. “All that legislatures need to do, now, to protect unconstitutional statutes, is to have them carried out via new, unheard-of duties assigned to anyone within the machinery of the courts. That is not what Whole Woman’s Health held or intended.”
According to state records, Serafine is also listed as a vexatious litigant, having been added to the list in January 2021.
Judges Jerry E. Smith, Kurt D. Engelhardt and Irma Carrillo Ramirez sat on the panel.
The defendants are represented by David Iglesias of Iglesias Law Firm in Tyler, Thomas Wilson of Tyler, Heather Dyer of the Daniel Stark Law Firm in Bryan and Cole P. Wilson of the office of the attorney general.
The case number is 23-40478.