Petition for Writ of Certiorari — Christine Reule, et al., Petitioners v. Austin Reeve Jackson, Judge, District Court of Texas, 114th District, et al.

NO. _________

In the

Supreme Court of the United States

CHRISTINE REULE, ET AL.,

Petitioners,

v.

HONORABLE REEVE JACKSON, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mary Louise Serafine

Counsel of Record

MARY LOUISE SERAFINE,

ATTORNEY & COUNSELOR AT LAW

3571 Far West Blvd., #3669

Austin, TX 78731

(512) 220-5452

serafine@mlserafine.com

January 21, 2025

SUPREME COURT PRESS

Counsel for Petitioners

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

This is a case that, as in the Court’s Whole Woman’s

Health proceeding, the state’s actors, affirmed by the

Fifth Circuit, claim that Petitioners cannot bring a

constitutional challenge to an egregiously unconstitutional state statute because there is no one to sue.

With no one to sue, Petitioners are said to lack Article

III standing, and the statute is beyond review by a

court, whether state or federal.

Petitioners assert they have standing. There are

conflicting decisions in four circuits.

The Question Presented Is:

Whether Petitioners have Article III standing to sue

for prospective declaratory and injunctive relief, having

sued the Texas clerks of court, local administrative

judges (LAJ’s)—who Petitioners assert are acting in

ministerial, not adjudicatory capacity—and the Director

of the state’s Office of Court Administration.

ii

PARTIES TO THE PROCEEDINGS

Petitioners and Plaintiff-Appellants below

●

Christine Reule

●

Harriet Nicholson

●

Rebecca Alexander Foster

●

Jimmy Lee Menifee

●

Tony Lamar Vann

●

Honorable Madeleine Connor

Respondents and Defendant-Appellees below

●

Honorable Reeve Jackson, exclusively in his

role as the Local Administrative Judge of

Smith County, Texas

●

Penny Clarkston, the District Clerk of Smith

County, Texas

●

Megan LaVoie, the Director of the Texas Office

of Court Administration

CORPORATE DISCLOSURE STATEMENT

No party is a corporate entity.

iii

LIST OF PROCEEDINGS

U.S. Court of Appeals, Fifth Circuit

No. 23-40478

Christine Reule et al., Plaintiff-Appellants v.

Hon. Reeve Jackson et al., Defendant-Appellees

Final Opinion: August 19, 2024

Rehearing Denial: September 23, 2024

_________________

U.S. District Court, E.D. Texas (Tyler)

No. 6:22-cv-367

Christine Reule et al., Plaintiffs v.

Hon. Reeve Jackson et al., Defendants

Memorandum Opinion: May 30, 2023

Order Denying Motion to Alter Judgment:

July 18, 2023

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 2

JURISDICTION.......................................................... 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 4

STATEMENT OF THE CASE .................................... 6

A. Procedural History ........................................... 6

B. Factual Background ......................................... 8

REASONS FOR GRANTING THE PETITION ....... 12

1. The Distinction Between a Judge’s

Ministerial and Adjudicatory Duties

Determines Standing, but at Least Four

Circuits Are in Conflict Over It ..................... 12

a. Third Circuit ............................................. 12

b. Eighth Circui ............................................ 17

c.

Ninth Circuit ............................................. 18

2. This Statute Should Not Escape Federal

Review, Because Texas Courts Likely Will

Not Further Review Its Constitutionality ..... 20

v

TABLE OF CONTENTS – Continued

Page

3. This Statute Should Not Escape Review

Because It Is Patently Unconstitutional,

and Hundreds of People in Texas Have

Been Unfairly Shorn of Their Rights to

Petition and to Access the Courts ................. 23

a. Lack of Narrow Tailoring ......................... 23

b. Arbitrariness ............................................. 25

c.

Lack of Recourse for Wrong Decisions—

Constitutional Violations That Are

Mis-Reported by the Fifth Circuit’s

Opinion ...................................................... 26

CONCLUSION.......................................................... 29

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Fifth Circuit (August 19, 2024) .................................. 1

Judgment, U.S. Court of Appeals for the

Fifth Circuit (August 19, 2024) ................................ 16

Order Denying Motion to Alter or Amend

the Judgment, U.S. District Court for the

Eastern District of Texas Tyler Division

(July 18, 2023)........................................................... 18

Memorandum Opinion and Order Granting

Motions to Dismiss, U.S. District Court for

the Eastern District of Texas Tyler Division

(May 30, 2023)........................................................... 24

REHEARING ORDER

Order Denying Petition for Rehearing,

U.S. Court of Appeals for the Fifth Circuit

(September 23, 2024) ................................................ 40

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitutional and Statutory Provisions

Involved ..................................................................... 42

U.S. Constitution, Article III, section 2 ............. 42

U.S. Constitution, Fourteenth Amendment ...... 42

42 U.S.C. § 1983 ................................................. 43

Tex. Civ. Prac. Rem. Code, Chapter 11 ............. 44

OTHER DOCUMENTS

Complaint for Declaratory and Injunctive Relief

(September 19, 2022).......................................... 53

vii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Allen v. DeBello,

861 F.3d 433 (3d Cir. 2017) ............................... 13

Argen v. Attorney Gen. N.J.,

No. 21-2571 (3rd Cir. Aug 16, 2022) ................. 13

Bank of Hope v. Miye Chon,

938 F.3d 389 (3d Cir. 2019) ......................... 12, 13

Bauer v. Texas,

341 F.3d 352 (5th Cir. 2003) ............................... 8

BE&K Constr. Co. v. NLRB,

536 U.S. 516 (2002) ........................................... 25

Bell A. Corp. v. Twombly,

550 U.S. 544, 127 S.Ct. 1955,

167 L.Ed.2d 929 (2007) ..................................... 10

Bierwirth v. Rio Rancho Props., LLC, No. 0317-00733-CV, 2018 WL 4610447 (Tex.

App.—Austin Sept. 25, 2018, no pet.) .............. 21

Brown v. Entertainment Merchants Ass’n,

564 US 786, 131 S.Ct. 2729 (2011) ..................... 1

Callaway v. Martin,

No. 02-16-00181-CV (Tex. App.—Fort

Worth, May 25, 2017) ........................................ 25

Clifton v. Walters,

308 S.W.3d 94 (Tex. App.—Fort Worth

2010, pet. denied) .............................................. 22

Connor v. Hooks,

No. 03-19-00198-CV (Tex. App.—Austin

Mar. 5, 2021)................................................ 21, 22

viii

TABLE OF AUTHORITIES – Continued

Page

Cooper v. McNulty,

No. 05-15-00801-CV, 2016 WL 6093999

(Tex. App.—Dallas Oct. 19, 2016, no pet.) ....... 21

Courthouse News Serv. v. Gilmer,

48 F.4th 908 (8th Cir. 2022)........................ 17, 18

De Long v. Hennessey,

912 F.2d 1144 (9th Cir. 1990) ..................... 24, 26

Dolenz v. Boundy,

No. 05-08- 01052-CV, 2009 WL 4283106

(Tex. App.—Dallas Dec. 2, 2009, no pet.) ......... 22

Emerson v. Holly Lake Ranch Ass’n,

No. 12-23-00316-CV (Tex. App.—Tyler

Jan. 3, 2024) ...................................................... 24

Farguson v. MBank Houston, N.A.,

808 F.2d 358 (5th Cir. 1986) ............................. 24

FDA v. Alliance for Hippocratic Medicine,

144 S. Ct. 1540 (2024) ......................................... 1

Guardianship of L.S.,

No. 14-15-00494-CV, 2017 WL 1416190

(Tex. App.—Houston [14th Dist.] Apr. 18,

2017, pet. denied) .............................................. 21

In re Johnson,

No. 07-07-00245-CV, 2008 WL 2681314

(Tex. App.—Amarillo July 9, 2008, orig.

proceeding)......................................................... 22

In re Johnson,

No. 07-09-00035-CV, 2009 WL 2632800

(Tex. App.—Amarillo Aug. 27, 2009, orig.

proceeding)......................................................... 22

ix

TABLE OF AUTHORITIES – Continued

Page

In re Johnson,

No. 14-22-00332-CV, 2022 WL 3093195

(Tex. App.—Houston [14th Dist.] Aug. 4,

2022) .................................................................. 28

In re Martin-Trigona,

737 F.2d 1254 (2nd Cir. 1984) .......................... 24

In re Potts,

357 S.W.3d 766 (Tex. App.—Houston

[14th Dist.] 2011, orig. proceeding) .................. 21

In re Potts,

399 S.W.3d 685 (Tex. App.—Houston

[14th Dist.] 2013, orig. proceeding) .................. 21

Johnson v. Cornelius, No. 07-11-00091-CV,

2011 WL 4485465 (Tex. App.—Amarillo

Sept. 28, 2011, no pet.) ...................................... 21

Johnson v. Gen. Bd. of Pension & Health

Benefits of the United Methodist Church,

2014 IL App (1st) 132910-U, No. 1-132910 (Ill. App. Oct 14, 2014) ....................... 13, 14

Johnson v. Sloan,

320 S.W.3d 388 (Tex. App.—El Paso 2010,

pet. denied) ........................................................ 22

Leonard v. Hearst Corp.,

No. 01-04-01023-CV, 2005 WL 3118700

(Tex. App.—Houston [1st Dist.] Nov. 23,

2005, pet. denied) .............................................. 22

Lexington Ins. Co. v. Mueller,

Nos. 23-55144 (9th Cir. Dec 06, 2024) .............. 20

x

TABLE OF AUTHORITIES – Continued

Page

Madugula v. FM 969 Commercial Dev.,

03-24-00565-CV (Tex. App.—Austin Oct.

2, 2024) ........................................................ 24, 28

Munoz v. Superior Court of Los Angeles

County, 91 F.4th 977 (9th Cir. 2024) .... 18, 19, 20

O’Hair v. White,

675 F.2d 680 (5th Cir. 1982) ............................... 2

Raines v. Byrd,

521 U.S. 811, 117 S.Ct. 2312,

138 L.Ed.2d 849 (1997) ....................................... 1

Reeves v. Cent. Hous. Nissan,

617 S.W.3d 676 (Tex. App.—Houston

(14th Dist.) 2021)............................................... 28

Ringgold-Lockhart v. County of Los Angeles,

761 F.3d 1057 (9th Cir. 2014) ..................... 10, 26

Shockome v. Reyes,

No. 07-22-00212-CV

(Tex. App.—Amarillo Aug. 31, 2023) ................ 28

Taylor v. Charter Medical Corp.,

162 F.3d 827 (5th Cir. 1998) ............................. 26

Thomas v. Adams,

No. 11-12-00312-CV, 2014 WL 5463528

(Tex. App.—Eastland Oct. 9, 2014, pet.

denied) ............................................................... 21

Thomas v. Culpepper,

No. 4:18-CV-814 (E.D. Tex. Sept. 20,

2019) .................................................................. 24

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ................. i, 7, 8, 14, 16, 17-21

xi

TABLE OF AUTHORITIES – Continued

Page

Wolfe v. Strankman,

392 F.3d 358 (9th Cir. 2004) ................. 18, 19, 20

Yasin v. Harris Cnty. Civil Courts at Large

Court 1, No. 01-23-00822-CV (Tex. App.—

Houston (1st Dist.) Jan 30, 2024) ..................... 28

Yazdchi v. Wells Fargo,

No. 01-21-00268-CV (Tex. App.—Houston

(1st Dist.) Dec. 13, 2022) ................................... 27

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ......................................... 1, 2, 17

U.S. Const. amend. XIV ...................................... 1, 4, 5

U.S. Const., Art. III, Sec. 2, cl. 1 ............................ 5, 8

STATUTES

28 U.S.C. § 1254(1) ..................................................... 3

28 U.S.C. § 1331 .......................................................... 7

28 U.S.C. § 1343(a) ..................................................... 7

42 U.S.C. § 1983 .......................................................... 4

Cal. Code Civ. Proc. § 391.8...................................... 23

Tex. Civ. Prac. & Rem. Code § 11.054............ 9, 25, 26

Tex. Civ. Prac. & Rem. Code § 11.054(1)(A) ............ 25

Tex. Civ. Prac. & Rem. Code § 11.054(1)(C) ............ 26

Tex. Civ. Prac. & Rem. Code § 11.054(3) ................. 26

Tex. Civ. Prac. & Rem. Code § 11.101(c)............ 23, 27

Tex. Civ. Prac. & Rem. Code § 11.102...................... 11

xii

TABLE OF AUTHORITIES – Continued

Page

Tex. Civ. Prac. & Rem. Code § 11.102(d) ................... 9

Tex. Civ. Prac. & Rem. Code § 11.103............ 9, 11, 28

Tex. Civ. Prac. & Rem. Code § 11.103(d) ................. 27

Tex. Civ. Prac. & Rem. Code § 11.104...................... 10

JUDICIAL RULES

Fed. R. Civ. P. 12(b)(6) .............................................. 10

OTHER AUTHORITIES

J. Roberts,

Article III Limits on Statutory Standing,

42 DUKE L. J. 1219 (1993) ................................... 1

1

PETITION FOR A WRIT OF CERTIORARI

If left in the published literature, the Fifth Circuit’s

reasoning and barriers to standing are a road map for

eliminating federal review of other constitutional rights

—in addition to violating the first and fourteenth

amendment rights at issue here.

A state need only place enforcement of an unconstitutional statute in the hands of state agents related

in some way to the judicial branch. With no one to sue

and without standing, the statute and agents are protected from judicial review.

This Court recently opined that limitations on

standing implement “the Framers’ concept of the

proper—and properly limited—role of the courts in a

democratic society.” FDA v. Alliance for Hippocratic

Medicine, 144 S. Ct. 1540, 1555 (2024) (quoting J.

Roberts, Article III Limits on Statutory Standing, 42

DUKE L. J. 1219, 1220 (1993) (cleaned up)). This means

that federal courts allow some issues “to percolate and

potentially be resolved by the political branches in the

democratic process.” Id. (citing Raines v. Byrd, 521

U.S. 811, 829-830, 117 S.Ct. 2312, 138 L.Ed.2d 849

(1997).

But at the same time the Court has opined that

“a legislature cannot create new categories of unprotected speech simply by weighing the value of a

particular category against its social costs and then

punishing it if it fails the test.” Brown v. Entertainment

Merchants Ass’n, 564 US 786, 131 S.Ct. 2729, 2731

(2011) (citations omitted) (finding that California law

2

restricting violent video games violated freedom of

speech) (Scalia, J.).

Indeed the Fifth Circuit has acknowledged that

the very purpose of the Bill of Rights was to remove

fundamental rights “from the rough and tumble of the

political process . . . . ” O’Hair v. White, 675 F.2d 680,

689 (5th Cir. 1982) (en banc) (cleaned up).

Petitioners urge that percolating in the political

branches and weighing interests “democratically” is

precisely what the Bill of Rights was intended to

prevent.

Not only lawyers but ordinary Americans want to

know whether the doctrine of Article III standing

contains the seed of eroding the Bill of Rights.

Petitioners ask the Court to grant the writ, reverse

the decisions below, and clarify how Article III standing impacts the first amendment.

OPINIONS BELOW

The Fifth Circuit’s published opinion and judgment are Reule v. Jackson, No. 23-40478 (5th Cir. Aug.

19, 2024), reported at Reule v. Jackson, 114 F.4th 360

(5th Cir. 2024), and shown at App. 1. Unofficial citations

are 2024 U.S. App. LEXIS 20912 **; and 2024 WL

3858127.

The Fifth Circuit’s order denying rehearing and

rehearing en banc is reproduced at App. 40.

The District Court’s Memorandum Opinion and

Order Granting Motions to Dismiss is Document 46 in

3

Reule v. Jackson, No. 6:22-cv- 367-JDK, 2023 WL

3724770 (E.D. Tex. May 30, 2023), shown at App. 24.

The District Court’s Order Denying Motion to

Alter or Amend the Judgment is Document 51 in Reule

v. Jackson, No. 6:22-cv-367-JDK, 2023 WL 5346056

(E.D. Tex. July 18, 2023), shown at App. 18.

The Texas statute at issue is Chapter 11, Texas

Civil Practice & Remedies Code, shown at App. 44.

Petitioners’ Complaint is Document 1 in Reule v.

Jackson, No. 6:22-cv-367-JDK, shown at App. 53.

JURISDICTION

The court of appeals issued the opinion and judgment sought to be reviewed here on August 19, 2024.

App. 1. Petitioners’ timely-filed petition for rehearing

was denied on September 23, 2024. App. 40. The court

of appeals issued its mandate on October 1, 2024. On

November 24, 2024 Justice Alito extended Petitioners’

deadline to file a petition for certiorari to January 21,

2025.

The Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions involved

are Section 1983 of Title 42 of the U.S. Code; the U.S.

Constitution’s Article III, Section 2, Clause 1; the

Fourteenth Amendment of the U.S. Constitution; and

Chapter 11 of the Texas Civil Practice & Remedies

Code.

***

Section 1983 of Title 42 of the U.S. Code, as

amended in 1996, provides in relevant part:

42 U.S.C. § 1983

Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable.

5

U.S. Constitution, Article III, Section 2, Clause 1

Judicial Branch. Justiciability.

Cases or Controversies

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—

to all Cases affecting Ambassadors, other public

Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction;—to Controversies to

which the United States shall be a Party;—to

Controversies between two or more States;—

between a State and Citizens of another State,—

between Citizens of different States,—between

Citizens of the same State claiming Lands under

Grants of different States, and between a State,

or the Citizens thereof, and foreign States, Citizens or Subjects.

***

U.S. Constitution, amend. XIV, sec. 1, in relevant

part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Chapter 11 of the Texas Civil Practice &

Remedies Code (“Vexatious Litigants”) is reproduced

at App 53.

6

STATEMENT OF THE CASE

A.

Procedural History

Each of the six Petitioners was designated a

“vexatious litigant” in the past; each has suffered dire

consequences since then when he or she was victimized

by a tortfeasor but could not sue for relief. Each challenges the facial and as-applied constitutionality of the

Texas Vexatious Litigant statute and seeks declaratory

and injunctive relief.1 App. 53, Complaint.

As stated at oral argument at the Fifth Circuit,

Petitioners do not urge that every limitation on

vexatious litigants’ future filings would be unconstitutional. But the Texas statute is unconstitutional

because, first, it violates due process. It effectively

blocks plaintiffs from defending against the “vexatious”

designation because it imposes an automatic stay as

soon as defendant files the motion to designate plaintiff vexatious; thus plaintiff is barred from filing any

motions to defend against the designation.

Also there are effectively no appeals from the

designation or from denials of permission to file later

papers—contrary to misstatements in the appellate

opinion otherwise. There are poor written records of

proceedings under the statute and no records at all in

the case of requests for and denials of permissions.

1 The statute was passed in 1997 and is codified at Chapter 11,

Texas Civil Practice & Remedies Code.

7

Petitioners also allege that the statute is void for

vagueness, overbroad, not narrowly tailored, and

imposes a prior restraint on speech.

Petitioners filed their complaint in the Tyler

Division of the Eastern District of Texas under 28

U.S.C. §§ 1331 and 1343(a), because the first-named

petitioner, Christine Reule, lives in Smith County,

Texas where she was designated a “vexatious litigant”

during a lawsuit there.

The remaining five petitioners live and were

designated “vexatious litigants” in their respective

home counties in Texas.

Who was sued. Petitioners sued the three state

agents who carry out the rejection of their future

lawsuits or papers. That is, they do not seek to vacate

the orders to designate them vexatious. They seek only

prospective relief to restore their rights to petition and

to access the courts in the future.

Thus defendant-respondents are: (1) all Texas

clerks of court, designated as a class of defendants

represented by Respondent Clerk Clarkston; (2) all

Texas local administrative judges, designated as a

class of defendants represented by Respondent Judge

Jackson;2 and (3) Respondent Megan LaVoie, whose

office publishes and circulates the list of those designated

2 When this case was first filed, the local administrative judge

(LAJ) of Smith County was the Honorable Jack Skeen, Jr., later

replaced in that role by the Honorable Austin Reeve Jackson.

The fact that Judge Jackson and Clerk Penny Clarkston are

respondents here—and also were respondents in this Court’s

decision in Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021)

—is pure happenstance and without significance.

8

“vexatious litigants” so that the clerks know whose

filings to reject.

Petitioners maintain that, even if LAJ’s cannot be

sued, the remaining defendant-respondents—clerks

of court and the Director of the Office of Court Administration—are sufficient to establish standing. A Ninth

Circuit case has recognized standing in a comparable

case. See infra.

The district court dismissed Petitioners’ complaint

without prejudice, reasoning that Petitioners lacked

Article III standing to sue.3 The Fifth Circuit held oral

argument on July 8, 2024. It later affirmed the district

court’s decision and reported almost verbatim its facts,

assumptions, and reasoning. Both courts claimed

reliance on Whole Woman’s Health v. Jackson, 595

U.S. 30 (2021) and Bauer v. Texas, 341 F.3d 352 (5th

Cir. 2003).

Notably, Petitioners did not bring suit against

any trial judge who initially designated a plaintiff

“vexatious,” believing they are performing an adjudicatory duty.

B.

Factual Background

Critically, the Texas statute, App. 46, does not

require that the trial judge designating the plaintiff a

“vexatious litigant” actually determine that plaintiff

has ever filed a lawsuit or paper that is vexatious or

frivolous. Instead, the trial judge need find only that

3 The district court’s opinion reported about Petitioners’ counsel

being designated a “vexatious litigant” herself. No such material

was in the court’s record or raised by any party. The opinion is

inaccurate and fails to report that the designation was on appeal;

it was reversed by the Supreme Court of Texas.

9

a plaintiff, in a case before the trial judge, (1) is

prosecuting a suit that does not have a “reasonable

probability” of success (that is, meets a higher standard than is normally permitted under notice pleading); and that plaintiff (2) has previously prosecuted

five “litigations” pro se in which he did not prevail—

for any reason, whether want of jurisdiction, plaintiff’s

own dismissal, failure to prosecute quickly enough, or

actual loss on the merits. Alternatively, there are less

frequently used substitutes for this second criterion—

although they too do not require the trial judge to

determine for himself whether a plaintiff has ever

filed a vexatious or frivolous suit. See App. 46, Vexatious

Litigants statute, § 11.054.

At the time this petition is filed, about 425 people

in Texas have been designated “vexatious litigants.”4

They are barred permanently from filing “litigations”—

except under representation by counsel—in every state

court in Texas, against anyone, for any reason, unless

they obtain permission from the “local administrative

judge” of the county.5 Under the statute, permission

is granted only if the local administrative judge finds

that the attempted litigation affirmatively has “merit.”

This too is a higher standard than that required under

Texas’s fair-notice pleading standard, which is comparable to federal notice pleading. Without permission,

the vexatious litigant’s filing is rejected by state-court

4 The list of such litigants is published by the Texas Office of

Court Administration, whose Director is defendant-respondent

Megan LaVoie, at https://tinyurl.com/ycybrpju

5 See App. 49-51, Civil Practice & Remedies Code §§ 11.102(d)

(requiring pre-filing court order that grants permission) and

11.103 (requiring clerks to reject attempted filings except by

order of the LAJ).

10

clerks in every Texas jurisdiction at every level and

never filed. No written records are kept of requests for

permission or their outcomes.

Petitioners maintain that, under Texas’s fair notice

standard, it is virtually impossible for the LAJ to

determine if a suit has “merit.” Indeed the Ninth Circuit

has opined that under notice pleading, it is not possible

to tell whether a claim has “merit.”

[C]ourts cannot properly say whether a suit

is “meritorious” from pleadings alone. A

lawsuit need not be meritorious to proceed

past the motion-to-dismiss stage[.]

[]

And even as to the propriety of a Rule

12(b)(6) dismissal, whether a case merits

dismissal for failure to state a claim is often

determinable only after briefing and argument; it is often not a decision accurately to

be made at a pre-filing stage.

Ringgold-Lockhart v. County of Los Angeles, 761 F.3d

1057, 1066 (9th Cir. 2014) (citing Bell A. Corp. v.

Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007) (internal quotation marks omitted)).

The enforcement scheme. Petitioners’ Complaint

sets out Chapter 11’s enforcement method. App. 53,

Complaint, ¶¶ 27-29. The first step—after the trial

judge, during a regular proceeding, declares plaintiff

a “vexatious litigant”—is for the trial judge or the

district clerk to send the order to that effect and the

order imposing the prefiling bar to the Office of Court

Administration (OCA). App. 52, Tex. Civ. Prac. & Rem.

Code § 11.104. The OCA then adds the name to the

11

list of “vexatious litigants” published on its website

and distributes the list to all clerks of court.

The purpose of this is to warn potential defendants

as well as to notify clerks of court. All Texas clerks of

court—for the lower courts, appellate courts, and

Supreme Court—must reject for filing any new pro se

claims by persons on the list, unless the person has

obtained permission from the local administrative judge.

App. 49-50, Tex. Civ. Prac. & Rem. Code §§ 11.102,

11.103.

To see how this works, consider first-named petitioner, Ms. Reule. Her neighbor removed one of her

puppies from Reule’s yard. A video shows that the

neighbor repeatedly shot at the puppy as it hyperventilated and ran here and there in terror. The

neighbor then shot and killed the puppy, showed Reule

a video of it, and taunted Reule, saying that, as a vexatious litigant, Reule could not sue him. App. 53, Complaint. App. 67-68.

The local administrative judge of the county did

not grant Ms. Reule’s request for permission to sue,

nor later did the new LAJ who replaced him. Each

time Reule filed for a writ of mandamus—as the

statute appears to allow when permission is denied.

But the state court of appeals held it lacked jurisdiction

because Reule could not get permission to file the

petition for writ from either of the local administrative

judges—the same ones who had denied permission to

sue in the first place. App. 66, Complaint, ¶¶ 53-55

(explaining mandamus as a ruse). Thus there was no

proceeding in which Reule could seek relief or even

prevention of similar acts in the future.

12

REASONS FOR GRANTING THE PETITION

1.

The Distinction Between a Judge’s

Ministerial

and Adjudicatory Duties

Determines Standing, but at Least Four

Circuits Are in Conflict Over It6

The Third, Eighth, and Ninth Circuits have set

forth reasoning about when a judge may or may not

become a defendant. Those decisions are in conflict

with the Fifth Circuit’s reasoning here. As noted, Petitioners sued the Texas LAJ’s because they represent

part of the enforcement scheme. Petitioners maintain,

however, that even if the LAJ was not a defendantrespondents (which Petitioners maintain he is), the

remaining defendant-respondents—the clerks of court

and the Director of the state’s Office of Court Administration—are sufficient defendant-respondents to provide “some connection” to enforcement that enables

Article III standing.

a. Third Circuit.

The Third Circuit has determined that, because

“[c]ourts have inherent power to keep their proceedings fair and orderly,” their doing so is not in the

nature of a neutral adjudication. Bank of Hope v. Miye

Chon, 938 F.3d 389, 392, 394 (3d Cir. 2019). Thus,

when a judge crafts a gag order, it is ministerial or

administrative in character, not adjudicatory, because

6 As a general matter, the duties of a local administrative judge

are entirely ministerial and administrative, such as supervising

the distribution of caseloads, recommending security, etc. Tex.

Gov’t Code § 74.092, “Duties of Local Administrative Judge.”

13

it is “non-merits” Id. That is, it does not bear on the

merits of each side’s position in the litigation; it does

not bear on who wins. As a result, such a judge can be

sued for declaratory relief under Section 1983 for such

rulings. Argen v. Attorney Gen. N.J., No. 21-2571 (3rd

Cir. Aug 16, 2022) (non-precedential but citing Allen

v. DeBello, 861 F.3d 433, 440 (3d Cir. 2017).

The key is that gag orders are unrelated to

adjudicating the merits issues between the parties.

In the same way, an LAJ who grants or denies

permission to file a claim is not adjudicating who wins.

Indeed, the LAJ will almost always not even know

defendant’s side of the story and certainly will not

have papers from defendant at the time of resolving

permission. The LAJ’s contribution to enforcing the

Vexatious Litigants statute is not adjudication of the

claim. Instead the LAJ does no more than contribute

to keeping the “vexatious litigant” out of the courts.

This same reasoning to distinguish ministerial

from adjudicatory functions is employed by Illinois state

courts. One case has distinguished between ministerial

and adjudicatory judicial actions in order to determine

whether an interlocutory appeal was available. Johnson

v. Gen. Bd. of Pension & Health Benefits of the United

Methodist Church, 2014 IL App (1st) 132910-U, No. 113-2910 (Ill. App. Oct 14, 2014).

In Johnson, the Illinois appellate court explained

that when an order impinges upon or restrains a party’s

rights external to the litigation, it is adjudicatory and

immediately appealable as of right. Johnson, No. 113-2910 at ¶ 15. “In contrast, a ministerial or administrative order does not affect the relationship of the

parties in their everyday activity apart from the liti-

14

gation. . . . ” Id. at ¶ 16. Thus, such ministerial orders

are not eligible for interlocutory appeal.

By contrast, the Fifth Circuit’s Opinion does no

more than repeat the district court’s informal observation that “there is nothing ministerial or administrative about [the LAJ’s] duty [in deciding permissions]:

it is precisely the type of adjudicatory function judges

perform every day. . . . ” App. 9, Opinion at 8. This boils

down to a circular observation that deciding permission is not ministerial because it is adjudicatory.

More importantly, judges do not perform such

tasks as deciding permissions ever, much less “every

day.” There is never a time when—before service on a

defendant or before a defendant’s appearance in the

case—a judge nixes even initiation of a suit by refusing

permission to file it. We are not aware of a state or

federal rule of procedure that allows a judge to refuse

even to allow a suit to be filed. Instead, our courts

universally begin proceedings after a claimant files a

claim against the other on the public record and serves

it on defendant.

The same is true of clerks. Never do clerks deny

the mere filing of a claim on the court’s public record.

Petitioners here—far contrary to the Petitioners in

Whole Woman’s Health—are suing clerks to compel

them to do what they are supposed to be doing: filing

claims on the public record. Petitioners in Whole

Woman’s Health, by contrast, sought to prevent clerks

from performing that task in suits under Senate Bill 8.

In sum, local administrative judges decide permissions under this statute in a way they never do in their

adjudicatory role. Even when both sides appear before

a trial judge after a claim is filed, the judge is not

15

permitted to dismiss the claim outright—unless, of

course, a claimant lacks a legible claim, does not

present it to the court, fails to pay a filing fee, or an

equally-mechanical act that clerks, rather than judges,

usually decide.

Instead, a sitting judge must allow the claimant

to be heard; the judge should garner evidence from

both sides. And the judge must rule on some type of

motion by one of the parties in order to have jurisdiction to rule. The sitting judge must also, as an initial

matter, assure himself that he has subject matter

jurisdiction and personal jurisdiction over the parties.

In short, permissions to file a suit do not alter the

relationship of the parties; indeed the parties are not

both present yet. Thus the LAJ’s task in deciding

permissions is ministerial, as a gag order is.

There are other differences between the LAJ’s

deciding permissions and the adjudicatory tasks that

sitting trial judges actually do perform every day:

i.

Before the LAJ, there is no requirement of

written records, of either the request or the

outcome.

ii.

Requests for permission from litigants

designated vexatious are not made in the

courtroom; the LAJ is not presiding, enrobed,

or with the parties before him or her.

iii. Petitioners are aware of requests for permission being made and denied only by telephone

and email to and from the LAJ’s staff.

iv. There is no court reporter or recorder present.

16

Fifth Circuit’s Opinion errs regarding traceability. Petitioners urge that the Opinion of the Fifth

Circuit errs in concluding that the LAJ is adjudicating

a claim, instead of performing the ministerial duty of

allowing a suit to be filed. In addition, the Opinion

errs in concluding that Petitioners fail the test for

causation and redressability because even if respondent state agents “all ceased discharging their duties

under [the statute] nothing about [Petitioners’] situation would change.”

Even if . . . all clerks of court across the state

simply ignored their duties . . . and docketed

those suits, and LaVoie on behalf of OCA

took down the webpage publishing the list of

vexatious litigants, [Petitioners] would still

not get the unfettered access to state courts

they seek.”

App. 12, Opinion at 10.

The reason Petitioners’ situation would not change,

according to the Opinion, is that under the statute,

“they could still face contempt if they filed a new suit,

and their suits could still be dismissed.” Id.

In other words, the Opinion reasons, under Petitioner’s requested injunction and declaration that the

statute is unconstitutional, Texas courts would still

enforce the Vexatious Litigants statute anyway, holding

such litigants in contempt, presumably forcing them

into jail time and perhaps paying fines.

This is a bizarre conclusion. First, it assumes that

Petitioners’ requested declaratory relief (that the

statute is unconstitutional) would be ignored by Texas

judges, and they would continue to enforce the provision

on contempt.

17

Petitioners urge that this would never occur. Nor

would most Texas lawyers file such motions. Second,

Petitioners would have to win only an appropriate

provision in the declaration or injunction to quell contempt proceedings.

Finally, according to the Opinion, even if

Respondents “all ceased discharging their duties,” id.,

the provision on contempt would somehow still be

alive and enforceable. If this were true, every draconian,

unconstitutional statute that a state legislature could

devise could easily be impenetrable to review by

putting a contempt-for-violation provision in the statute,

thereby quelling causation and redressability and

defeating Article III standing.

Petitioners urge that this has never happened and

should not now be presumed to happen.

b. Eighth Circuit

The Eighth Circuit has decided a case in which a

clerk of court is a proper defendant in a first amendment

lawsuit. Courthouse News Serv. v. Gilmer, 48 F.4th

908 (8th Cir. 2022) (Stras, J.). There, the Gilmer panel

decided that Whole Woman’s Health did not issue an

absolute rule that clerks and judges could never be

sued. Instead, the panel noted that the rule of Whole

Woman’s Health contained important “qualifiers.”

Gilmer quoted Whole Woman’s Health:

Far from laying out an absolute rule, the

Court [in Whole Woman’s Health] said that it

“does not normally permit federal courts to

issue injunctions against state-court judges

or clerks” because “[u]sually, those individuals

do not enforce state laws as executive offi-

18

cials might; instead, they work to resolve

disputes between parties.”

Gilmer quoting Whole Woman’s Health and adding

emphases, 48 F.4th at 912.

Fifth Circuit’s Opinion diverges. Petitioners

recognize that the Eighth Circuit is talking about

sovereign immunity, while the Fifth Circuit is talking

about standing. Nevertheless, these courts take opposite approaches on whether Whole Woman’s Health

articulated a “rule” that lower courts must follow.

Contrary to the Eighth Circuit’s Opinion, the Fifth

Circuit’s Opinion views Whole Woman’s Health as providing a “rule” to be followed by the lower courts and

advancing that, in making LAJ’s defendants, Petitioners

violated “the rule articulated in Whole Woman’s Health.”

App. 9, Opinion at 8.

c. Ninth Circuit

The Ninth Circuit issued an opinion in Wolfe v.

Strankman, 392 F.3d 358 (9th Cir. 2004) in which,

contrary to the Opinion here, the former vexatious

litigant and plaintiff Mr. Strankman had standing to

pursue a challenge to the constitutionality of the California vexatious litigants statute. Strankman allowed

suit to progress against two defendants—the Chief

Justice of the California Supreme Court and an employee of the California Judicial Council—who enforced

the statute in their administrative, not judicial, capacities. These defendants had roles similar to DefendantRespondent LaVoie in the instant case.

More recently, in Munoz v. Superior Court of Los

Angeles County, 91 F.4th 977 (9th Cir. 2024), the Ninth

Circuit dismissed suits against judges acting in their

19

judicial capacity on grounds of sovereign and judicial

immunity. In addition, the court in Munoz distinguished Strankman:

In [Wolfe v. Strankman], we allowed some

claims against judicial defendants to go

forward when sued in their administrative,

as opposed to judicial, capacity.

Munoz, 91 F.4th at 981, n. 1 (emphasis added).

But the Fifth Circuit’s Opinion here complains

that Petitioners’ reference to Strankman is no longer

viable because it has been “overturned” by Munoz.

App. 15, Opinion at 13. Petitioners respectfully disagree.

Even the Fifth Circuit’s Opinion recognizes that Munoz

said only that

[t]o the extent [Strankman] can be read to

hold that the Ex parte Young exception

allows injunctions against judges acting in

their judicial capacity, that conclusion is

“clearly irreconcilable” with [Whole Woman’s

Health] and thus overruled.

Munoz, 91 F.4th at 981.

But as plainly stated, Munoz “overruled” Strankman only to the extent that Strankman allowed suit

“against judges acting in their judicial capacity.” This

is exactly what Strankman did not allow. It allowed

claims against defendants only in their administrative

capacity. Strankman dismissed any judges who were

acting in adjudicatory capacity. Thus, the statement

in Munoz in no sense “overruled” Strankman.

After Munoz was issued, a different panel of the

Ninth Circuit decided whether Whole Woman’s Health

would prevent a suit against Native American tribal

20

judges. If Whole Woman’s Health was strictly interpreted, tribal judges should not be subject to suit. But

the panel in Lexington Ins. Co. v. Mueller, Nos. 23-55144,

23-55193 (9th Cir. Dec 06, 2024) determined that

Whole Woman’s Health did not apply to tribal judges;

thus the Lexington party had standing to sue the

defendants for injunctive relief in federal court. This

was so although the panel acknowledged “tension”

between Whole Woman’s Health and the Ninth Circuit’s

precedents.

Finally, Petitioners wish to note that the Ninth

Circuit’s opinion in Wolfe v. Strankman has been cited

by district courts 80 times—since Munoz was issued.

It is true that five such courts erroneously referred to

Strankman as “overruled”. But the remaining 75

courts citing Strankman do so without noting that

Strankman was overruled or impaired in any way. In

sum, we conclude that the Ninth Circuit’s Strankman

decision is in conflict with the Opinion here and that

Strankman has not been overruled.

2.

This Statute Should Not Escape Federal

Review, Because Texas Courts Likely Will

Not Further Review Its Constitutionality.

This Court in Whole Woman’s Health v. Jackson

suggested that a method to obtain constitutional

review, if the Supreme Court did not provide it, is that

“petitioners . . . would be able to raise the Constitution as a defense in any S. B. 8 enforcement action

brought by others against them.” Whole Woman’s

Health, 595 U.S. at 43.

The Court has opined that “many federal constitutional rights are as a practical matter asserted typically

21

as defenses to state-law claims . . . . ” Whole Woman’s

Health at 595 U.S. at 49-50, 142 S.Ct. at 538.

But that solution cannot come to life in the case

of the Vexatious Litigants statute because, first, there

are no enforcement actions that can be expected. The

vexatious litigants have already been designated as

such, and if the enforcement scheme works—the OCA

publishes their names and the clerks reject their

filings—there is nothing more to enforce.

More importantly, Texas appellate courts, and

one federal district court have pronounced the Vexatious

Litigants statute as constitutional. Courts of Appeals

now routinely reject briefing that raises constitutional

questions.

The Court of Appeals at Austin has collected the

many cases across the state that “have repeatedly and

consistently rejected constitutional challenges to [the

Vexatious Litigants statute].” Connor v. Hooks, No.

03-19-00198-CV (Tex. App.—Austin Mar. 5, 2021). We

show in the margin only a few of the raft of cases that

pronounced the statute constitutional—as of 2021.7

7 Bierwirth v. Rio Rancho Props., LLC, No. 03-17-00733-CV,

2018 WL 4610447, at *4 (Tex. App.—Austin Sept. 25, 2018, no

pet.) (mem. op.); Guardianship of L.S., No. 14-15-00494-CV, 2017

WL 1416190, at *5 (Tex. App.—Houston [14th Dist.] Apr. 18,

2017, pet. denied) (mem. op.); Cooper v. McNulty, No. 05-1500801-CV, 2016 WL 6093999, at *4 (Tex. App.—Dallas Oct. 19,

2016, no pet.) (mem. op.); Thomas v. Adams, No. 11-12-00312CV, 2014 WL 5463528, at *2 (Tex. App.—Eastland Oct. 9, 2014,

pet. denied) (mem. op.); In re Potts, 399 S.W.3d 685, 688–90 (Tex.

App.—Houston [14th Dist.] 2013, orig. proceeding); Johnson v.

Cornelius, No. 07-11-00091-CV, 2011 WL 4485465, at *5 (Tex.

App.—Amarillo Sept. 28, 2011, no pet.) (mem. op.); In re Potts,

357 S.W.3d 766, 769 (Tex. App.—Houston [14th Dist.] 2011, orig.

proceeding); Johnson v. Sloan, 320 S.W.3d 388, 389–90 (Tex.

22

There are more cases reaching the same result since

then, and we find no case that has left the door open

for a constitutional challenge. Indeed the Austin

Court of Appeals has noted that “[e]ven if we were

inclined to revisit the issue, ‘[w]e may not overrule a

prior panel opinion of this court absent an intervening

change in the law by the Legislature or a higher court

or by decision of this court sitting en banc.’” Connor v.

Hooks at n. 11. (citations omitted).

Despite the certainty with which Texas courts

have uniformly pronounced the statute “constitutional,”

no Texas court has actually analyzed the text or

applied any constitutional tests. The statute has

never been compared to other punishments or been

analyzed as vague, overbroad or without narrow

tailoring, for example. Virtually all courts have repeated

only the statement that the statute is “constitutional”

when compared to its purpose of eliminating vexatious

litigants from the courts. This is not sufficient constitutional analysis, but Texas courts seem disinclined to

pursue the question further.

App.—El Paso 2010, pet. denied); Clifton v. Walters, 308 S.W.3d

94, 101–02 (Tex. App.—Fort Worth 2010, pet. denied); Dolenz v.

Boundy, No. 05-08- 01052-CV, 2009 WL 4283106, at *3–4 (Tex.

App.—Dallas Dec. 2, 2009, no pet.) (mem. op.); In re Johnson, No. 0709-00035-CV, 2009 WL 2632800, at *1 (Tex. App.—Amarillo Aug.

27, 2009, orig. proceeding) (mem. op.); In re Johnson, No. 07-0700245-CV, 2008 WL 2681314, at *2 (Tex. App.—Amarillo July 9,

2008, orig. proceeding) (mem. op.); Leonard v. Hearst Corp., No.

01-04-01023-CV, 2005 WL 3118700, at *8 (Tex. App.—Houston

[1st Dist.] Nov. 23, 2005, pet. denied) (mem. op.).

23

3.

This Statute Should Not Escape Review

Because It Is Patently Unconstitutional, and

Hundreds of People in Texas Have Been

Unfairly Shorn of Their Rights to Petition

and to Access the Courts

The statute is unconstitutional in numerous

ways. See App. 67, Complaint. The three most important

are that (1) the punishment is not narrowly tailored;

(2) the statute encourages arbitrary and capricious

decision making because the statute is vague and the

standards unclear; and (3) the person designated

vexatious has no recourse. We note that the Fifth

Circuit’s Opinion mis-reports that appeal and mandamus are available without permission. But Texas

courts have interpreted those sections as not permitting

appeal if the LAJ does not give permission. We believe

that people designated “vexatious” are severely chilled

in asking for permission. We are aware of only a handful

of requests being made, only one of which was granted.

a. Lack of Narrow Tailoring

As an initial matter, the statute strips the “vexatious litigant” of his pro se right to petition too

broadly—that is, except through counsel or by permission, he is barred in every Texas court for any reason,

against any defendant, permanently. App. 48, Civ. Prac.

& Rem. Code § 11.101(c). And the Texas statute has

no mechanism to un-do the designation, regardless of

the passage of time. By contrast, the California statute

concerning vexatious litigants—which otherwise is

nearly identical to the Texas statute—allows the litigant

to apply once a year to have the designation removed.

Cal. Code Civ. Proc. § 391.8.

24

The Texas statute also imposes the pre-filing bar

as widely as possible, that is, covering all state courts.8

It is useful to compare the over-broad punishment

imposed by the Texas statute with pre-filing injunctions

imposed on vexatious litigants by federal courts. Federal courts, when they impose pre-filing injunctions,

use narrow tailoring. Farguson v. MBank Houston,

N.A., 808 F.2d 358, 360 (5th Cir. 1986) (affirming narrow

injunction that bars only the same claims against the

same defendants); In re Martin-Trigona, 737 F.2d

1254 (2nd Cir. 1984) (Winter, J.) (placing further

limits on district court’s injunction, although plaintiff

had filed some 250 suits and papers across the

nation); Thomas v. Culpepper, No. 4:18-CV-814 (E.D.

Tex. Sept. 20, 2019) (Mazzant, J.) (pre-filing injunction

bars only pro se suits on a particular overly-litigated

home repair dispute). See also De Long v. Hennessey,

912 F.2d 1144, 1148 (9th Cir. 1990) (“If we are to permit

pre-filing restrictive orders, these orders must be narrowly tailored to closely fit the specific vice encountered”).

Indeed the statute so patently states that the

vexatious litigant is barred from all state courts that,

when some trial judges try to limit their pre-filing

order, the appellate courts nix those orders and rule

that, because the statute’s bar is so broad, trial judges

actually are not permitted to attempt to enter a

narrower order. See, e.g., Emerson v. Holly Lake Ranch

Ass’n, No. 12-23-00316-CV, 2-3 (Tex. App.—Tyler Jan. 3,

2024); Madugula v. FM 969 Commercial Dev., 03-2400565-CV (Tex. App.—Austin Oct. 2, 2024).

8 There is only a minor exception for orders by constitutional

county courts.

25

b. Arbitrariness

The Texas Vexatious Litigants statute is also

arbitrary because it does not require the court making

the designation to find that the litigant has ever filed

even a single vexatious or frivolous suit. App. 5, Tex.

Civ. Prac. & Rem. Code § 11.054. Instead, Chapter 11

requires only that the judge meet two criteria:

Prong One: that “there is not a reasonable

probability that the plaintiff will prevail” in the

litigation at hand; and

Prong Two: that the plaintiff, in the previous

seven years, carried out at least five pro se “litigations”

that were “finally determined adversely” to him. App.

5, Civ. Prac. & Rem. Code § 11.054(1)(A).

The statute is arbitrary because losing a case is

not a sign of vexatious or frivolous conduct. A suit can

be “unsuccessful but reasonably based.” BE&K Constr.

Co. v. NLRB, 536 U.S. 516, 532 (2002). Even losing all

“causes of action does not necessarily mean that [plaintiff’s] claims were groundless.” Callaway v. Martin,

No. 02-16-00181-CV (Tex. App.—Fort Worth, May 25,

2017) (collecting cases).

The statute does permit alternative methods of

meeting Prong Two, but review of a random sampling

of the orders issued since the statute was passed

indicates that counting cases ending “adversely” to

plaintiff, as sub-section 11.054(1)(A) permits, appears

most frequently.

In any event the alternative methods of meeting

Prong Two also do not require that the trial judge

making the designation find for herself that plaintiff

actually made vexatious or frivolous filings. Id. at

26

§ 11.054. At most the trial judge might take notice

that a different court identified the plaintiff as

“vexatious.” App. 46-47, Civ. Prac. & Rem. Code

§§ 11.054(1)(C) 11.054(3). But adopting the findings

of other courts is contrary to evidentiary standards

because “courts generally cannot take notice of findings

of fact from other proceedings for the truth asserted

therein because these are disputable and usually are

disputed.” Taylor v. Charter Medical Corp., 162 F.3d

827, 830 (5th Cir. 1998).

Thus, the statute encourages the vexatious designation based upon an unreliable measure (counting five

cases lost) or at most relying on disputed findings

from other courts, who likely employ different criteria.

Again the Texas statute is unlike federal designations of vexatiousness because, when federal courts

do issue prefiling orders, they must “make substantive

findings of frivolousness or harassment.” RinggoldLockhart v. County of Los Angeles, 761 F.3d 1057, 1062

(9th Cir. 2014). See also De Long v. Hennessey, 912

F.2d 1144 (9th Cir. 1990) (setting detailed requirements

for constitutionality of a pre-filing injunction).

c. Lack of Recourse for Wrong Decisions—

Constitutional Violations That Are MisReported by the Fifth Circuit’s Opinion

As in other states, Texas permits at least one

freely-taken appeal after a negative legal outcome,

and some outcomes may be corrected on mandamus.

But the Texas Vexatious Litigant statute is apparently

unique because it permits neither of these forms of

relief without the amorphous permission from the

LAJ. Far from providing protection when the vexatious

designation is wrongly imposed, the statute provides

27

no route of relief on this life-long impairment of the

right to petition and denial of due process.

The Fifth Circuit’s opinion erroneously reports

that there is recourse:

Once a litigant has been declared vexatious,

the court may enter a prefiling order precluding

that litigant from filing future suits pro se

without first obtaining permission from a local

administrative judge (“LAJ”). [] A prefiling

order is appealable, and that appeal may be

taken without permission from an LAJ.

App. 2 (citing §§ 11.101(c), 11.103(d)) (emphasis added).

But neither the sub-sections cited nor any others

say unequivocally that a litigant designated vexatious

may file an appeal of a pre-filing order without first

obtaining LAJ permission. There is only language that

the litigant may file; it doesn’t say she may do so

without permission.

Texas courts are uniform in holding that, to

appeal, one must have permission. And the requirement is jurisdictional.9 Yazdchi v. Wells Fargo, No.

01-21-00268-CV (Tex. App.—Houston (1st Dist.) Dec.

13, 2022) (“[c]ourt intends to dismiss [vexatious litigant’s] appeal for lack of jurisdiction unless appellant

provides this Court with proof of permission to appeal

from the local administrative judge”) (citing App. 50-51,

9 We find only one exception where the Tyler Court of Appeals

has stated in a footnote that [t]here is an exception [from the

requirement of permission] for appeals from the prefiling order.

But the statement is dictum, not holding. In Re: Christine Reule,

No. 12-22-00271-CV at * n. 2 (Tex. App.—Tyler Nov. 30, 2022)

(mem. op.)

28

Tex. Civ. Prac. & Rem. Code § 11.103); Madugula v.

FM 969 Commercial Dev., No. 03-24-00565-CV (Tex.

App.—Austin Oct. 2, 2024) (“vexatious litigant must

. . . obtain[] permission from the appropriate local

administrative judge to file an appeal); Reeves v. Cent.

Hous. Nissan, 617 S.W.3d 676, 678 (Tex. App.—Houston

(14th Dist.) 2021) (court will “dismiss this appeal . . .

unless . . . Reeves obtain[s] an order from the local

administrative judge. . . . ); Shockome v. Reyes, No.

07-22-00212-CV (Tex. App.—Amarillo Aug. 31, 2023)

(same); Yasin v. Harris Cnty. Civil Courts at Large

Court 1, No. 01-23-00822-CV (Tex. App.—Houston (1st

Dist.) Jan 30, 2024).

Equally, the Fifth Circuit reports, erroneously,

that if the LAJ rejects permission to file a future suit,

and although it cannot be directly appealed, “‘the litigant

may apply for a writ of mandamus’ to obtain review of

the LAJ’s ruling.” App. 8 (Opinion at 7). The Opinion

then references section 11.102(f) of the statute.

Unfortunately the statute says nothing about freely

seeking mandamus without counsel or permission. It

merely says that the litigant make seek mandamus; it

doesn’t say how. Texas courts have interpreted the

statute’s language contrary to the Fifth Circuit’s Opinion, Texas courts hold that “[a]bsent an order granting

[a litigant designated vexatious] permission to file [an]

original proceeding, we lack jurisdiction.” and dismiss on

those grounds. In Re: Christine Reule, Relator, No. 1222-00271-CV (Tex. App.—Tyler Nov. 30, 2022) (mem.

op.) (citing In re Johnson, No. 14-22-00332-CV, 2022

WL 3093195, at *1 (Tex. App.—Houston [14th Dist.]

Aug. 4, 2022) (same).

29

CONCLUSION

Petitioners respectfully ask that the petition for

a writ of certiorari be granted.

Respectfully submitted,

Mary Louise Serafine

Counsel of Record

MARY LOUISE SERAFINE,

ATTORNEY & COUNSELOR AT LAW

3571 Far West Blvd., #3669

Austin, TX 78731

(512) 220-5452

serafine@mlserafine.com

Counsel for Petitioners

January 21, 2025