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Same-sex divorce, separation of powers and cowardly lionesses

Whitley represents one party in a same-sex divorce being challenged in Texas by the state.
The Whitley Law Firm

For some reason known only to God, Bexar County has become ground zero for legal challenges to the state's anti-gay, same-sex marriage ban that was chiseled into the constitution in 2005.

This is where on Feb. 26, 2014 U.S. District Judge Orlando Garcia, in De Leon, et. al. v. Rick Perry, et. al., ruled the Texas ban on same-sex marriage was unconstitutional. Enforcement of his ruling is stayed pending the appeal to the U.S. Court of Appeals for the Fifth Circuit.

De Leon gets most of the attention, but my interest is another Bexar County case: "In the Matter of the Marriage of A.L.F.L. and K.L.L." This couple was legally married in 2010 in Wash., D.C. and now lives in San Antonio. Allison Leona Flood Lesh is the non-biological mom and Kristi Lyn Lesh gave birth to a girl that is now about 18 months old.

The timeline in this case is important to keep track of, so I will be entering the dates in bold type.

On April 22, 438th Judicial District Judge Barbara Hanson Nellermoe ruled the state's same-sex law was unconstitutional and denied a biological mother's motion to dismiss--Kristi doesn't want her wife with whom she is separated to have access to their daughter.

This case got a mention on the Daily Show, where Jon Stewart called Kristi a "dick" for using Wash. law to get married and Texas law to deny Allison rights to the fruit of that union.

Nellermoe then ordered that the non-biological mother's request for temporary orders be set for hearing, and that a copy of the order be sent to the Office of the Attorney General. (emphasis added)

On April 23, the day after Nellermoe said the law was unconstitutional, the Attorney General filed a petition for writ of mandamus and emergency motion for temporary relief at the Fourth Court of Appeals-San Antonio. On May 15, Justice Marialyn Barnard granted the writ and ordered Nellermoe to vacate her April 22 order and provide notice to the Attorney General, as required by Texas Government Code 402.010.

There are several seriously messed up things with what just happened there. First and second, why does the Attorney General have to have notice of a family law case, and why is the Fourth Court accommodating him? Third, Nellermoe did give notice. I just said that two paragraphs back!

Next, on May 28, Justices Barnard and Karen Angelini wrote a majority memorandum opinion explaining why they told Nellermoe to tear up her order. Allison, through her San Antonio attorney, Deanna L. Whitley, raised several arguments in her defense, all of which were struck down.

The main issue, as far as Barnard and Angelini were concerned was the statute, 402.010, which requires that anytime the constitutionality of any state law is challenged, the court is required to give notice to the Attorney General, in order to afford him the opportunity to intervene and defend state law.

If that sounds reasonable to you, you need a lesson in the separation of powers doctrine. Look at it like this. There is a road project. The Legislature gets to design the road--that's policy implementation. The governor gets to build the road--that's administrative oversight. And the public gets to ride on the road.

Where does the judicial branch fit in? The judicial branch is comprised of independent quality control engineers. These are third-party referees that--once the road is in use and getting tested in real time--make the calls about whether the traffic signals work as they should, the stop and yield signs are in the right place, and the off-ramps and all the other infrastructure works in harmony.

The people that designed the road don't then get to police its function, they don't get to declare that the road works as advertised. That would create conflicts of interest that I hope are obvious to anyone. I mean, imagine a city building inspector working for the architect that built your house? Get the picture?

Getting back to statute 402.010:

Barnard wrote, "Although the statute provides that the failure to provide notice as required does not deprive the trial court of jurisdiction, we conclude that the trial court's determination of the constitutional challenges without prior notice to the attorney general deprives the State of an important right and constitutes an abuse of discretion for which mandamus relief is available."

Allison contends the state does not have a justiciable interest in the outcome.

Speaking about the case on May 30, plaintiff attorney Whitley said, "It's a violation of the separation of powers doctrine to give a justiciable interest prior to a ruling to a co-equal branch of government."

I can't emphasize that enough. What the state of Texas is doing is just freaking weird. In most states, there is no such law. I would be surprised if there was any other state with such a law. The way a challenge to state law normally works is some John Doe who is suffering real damage because of a law gets a judge to review it. If the judge agrees with John Doe, the judge declares the law unconstitutional.

At that point, the state intervenes on appeal! It's called an APPEAL! And the appellate courts give it a look and if they agree with the trial judge, then that's it. And then the legislators that wrote that stupid law piss and moan and call judges dirty names, and life goes on.

Barnard wrote on, "Finally, (Allison) contends that the trial court did not abuse its discretion because it acted in accordance with a recent order issued by the U.S. District Court for the Western District of Texas in the case of De Leon v. Perry."

Well, that's different, Barnard said, because De Leon involves two homosexual couples--one seeking recognition of an out of state marriage and one seeking to marry in Texas. And the Attorney General was a party to the litigation from the start, so the notice requirement was not an issue.

Leaving the proper notice issue aside for a moment, Whitley would make another distinction.

"We're arguing the child born of the marriage is a subset classification. Our argument is different than that in De Leon because we're asserting the child born of the marriage cannot be denied her right to have a relationship with both of her parents," Whitley said.

That is a laudable goal. Amen. But while the parties are fighting for gay rights, or fighting against gay rights, I don't want to lose sight of the fact that the judiciary--in this case represented by Barnard and Angelini--chose not to stand up to the Attorney General. But the third justice, Justice Rebecca Martinez, did.

Issuing her dissent the same day as the majority's, Martinez agreed with Whitley on the case law, Ex parte Lo, an October 2013 decision from the Texas Court of Criminal Appeals that declared 402.010 unconstitutional.

In Texas, civil courts do not fall under the jurisdiction of the Texas Court of Criminal Appeals. Civil courts bow to the Texas Supreme Court, but that court hasn't taken on 402.010.

"Although, I recognize that the Court of Criminal Appeals does not have jurisdiction over civil proceedings, the statute in question applies to both civil and criminal proceedings and I find the court's analysis regarding separation of powers to be equally availing here," Martinez said.

That's the twist in this tale that I find unacceptable. The Court of Criminal Appeals had already told the Attorney General to go screw himself, the law is unconstitutional. The court had shown leadership and a pair of justices on the civil side wouldn't take the next step.

Quoting from Ex parte Lo, Martinez said, the entry of final judgment "is a core judicial power; it falls within that judicial realm of judicial proceedings 'so vital to the efficient functioning of a court as to be beyond legislative power,'" and the provision prohibiting entry of a final judgment absent 45-days' notice to the attorney general creates "a constitutionally intolerable imposition on a court's power to enter a final judgment."

Martinez said it's not within the judiciary's purview to accomplish the Legislature's goals, "nor is it the judiciary's mandate to cooperate with the state's preferences. While the attorney general does have an interest in defending the state's laws, the judiciary's authority to consider and resolve constitutional issues should not take a back seat to legislative interests, nor be hindered by them."

"Certainly, the state has failed to show it lacks an adequate remedy by appeal, and notably the majority entirely refrains from addressing the second element of our writ authority," Martinez said.

Of that second element, Whitley said, "A writ of mandamus is an extraordinary remedy and a court will only issue this if there is no other remedy, and the state has a remedy by simply appealing."

Whitley filed a motion for rehearing en banc (by all seven justices of the entire court). See, there's one more aggravating twist to this case. Nellermoe granted a hearing to attorney from the Attorney General's office.

On May 14, the state made its case for jurisdiction and Nellermoe rejected it. When the Fourth Court issued its order to vacate on May 15, it was unaware that the state had already participated, Whitley said.

Whitley said the Attorney General's response to her rehearing request is due June 2.

Whitley's co-counsel is Judith Wemmert. Kristi Lyn Lesh is represented by Barry L. Efron of Efron & Efron Law Offices in San Antonio.