Hall v. McRaven, Supreme Court of Texas and Judge Don Willett’s Sovereign Immunity Concurrence

Hall v. McRaven,

Supreme Court of Texas, No. 16‐0773

(January 27, 2017)

Justice Devine (Opinion linked here); Justice Willett (Concurring); Justice Guzman (Concurring); Justice Lehrmann (Concurring); Justice Brown (Concurring)

In the context of a squabble within the University of Texas administration, the Supreme Court of Texas sought to clarify the ultra vires exception to sovereign immunity. The Court first explained how to determine whether a subordinate or higher official should be named as a defendant. The Court also held an official’s misinterpretation of a particular law is not ultra vires if the official has unconstrained discretion to interpret that law.

An independent investigation revealed underqualified students had been admitted to UT Austin after influential individuals intervened on their behalf. Hall, a regent of the University of Texas System, asked McRaven, the UT System’s chancellor, for the documents underlying the investigation. This raised concerns under FERPA, a federal privacy law that protects certain student information but contains an exception for an official with a “legitimate educational interest.”

UT’s Board of Regents adopted a two-step process.

First, McRaven would provide Hall the documents, redacting information McRaven determined to be FERPA-protected.

Then, Hall could provide reasons he was entitled to specific information, and the Chairman of the Board of Regents would determine whether the FERPA exception applied.

Hall sued McRaven, but not Hall’s fellow Regents, asserting an unfettered right to the unredacted records.  He argued McRaven’s refusal to provide the records was ultra vires.

An exception to sovereign immunity, an ultra vires claim requires a plaintiff to allege a state official acted without legal authority or failed to perform a purely ministerial act.

If a law gives an official some discretion to interpret or apply it, an official may nonetheless act ultra vires if he exceeds the authority given to him or acts in conflict with the law. The courts below held McRaven was immune from suit and the ultra vires exception did not apply.

The Supreme Court first addressed whether McRaven was the proper party for Hall’s ultra vires suit.

If a higher official deprives a subordinate official of all discretion regarding a particular act, an ultra vires suit cannot lie against the subordinate for performing that act.

The Court held Hall’s ultra vires suit was properly brought against McRaven in only one narrow respect: the first step of the procedure gave McRaven discretion to interpret FERPA.

But Hall’s broader indictments—that he had an unfettered right to access the information and that FERPA was categorically inapplicable to his requests—were complaints about limits imposed by the Board of Regents.

If Hall wished to challenge these limits, he needed to bring an ultra vires suit against the Regents, not McRaven.

The Court then held McRaven’s alleged misinterpretation of FERPA was not ultra vires.

In prior ultra vires cases, the Court had stated an official generally lacks discretion to misinterpret the law.

The Court found these cases distinguishable for two reasons.

First, the prior cases addressed an interpretation of the law that enabled the official to act; here, McRaven was empowered to interpret FERPA, a collateral law.

Second, in at least one prior case, the official’s exercise of discretion was subject to explicit constraints; here, McRaven was simply tasked with interpreting FERPA without any express limitations on his authority.

The Court concluded McRaven had “absolute” authority to interpret FERPA.

Accordingly, McRaven’s alleged misinterpretation was not ultra vires, and McRaven was entitled to have the case against him dismissed on immunity grounds.

The Court was unanimous in its analysis of the ultra vires issue.

Four justices wrote separate concurrences, however, to address the merits of the dispute over Hall’s ability to access the records, even though his claims against McRaven were barred at the threshold.

Hall v. McRaven,

Supreme Court of Texas, No. 16‐0773

(January 27, 2017)

Wallace Hall, a regent for The University of Texas System, sued the System’s Chancellor, William McRaven, for McRaven’s refusal to grant Hall complete access to records containing student-admissions information.

At the heart of the case are issues central to governance in higher education.

Does a university regent have an inherent right to access information? If so, how unfettered is that right?

Can an institution invoke federal privacy law, namely the Family Educational Rights and Privacy Act (FERPA), to redact information and limit a regent’s quest for complete access?

These are important questions, but before a court can reach them, a plaintiff must overcome the state’s sovereign immunity.

Absent a statutory waiver of immunity by the Legislature, Hall can proceed only if McRaven’s actions in redacting the records were ultra vires—without state authority. The courts below held that McRaven’s conduct was not ultra vires and that sovereign immunity required dismissal.

We agree and affirm.

The sovereign may, however, waive or limit its immunity. But the Legislature has not waived immunity for suits like Hall’s.

Nevertheless, in certain narrow instances, a suit against a state official can proceed even in the absence of a waiver of immunity if the official’s actions are ultra vires.

City of El Paso, v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

An ultra vires action requires a plaintiff to “allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”

Id.

We recently clarified what it means for an official to act “without legal authority.”

See Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).

We said that “a government officer with some discretion to interpret and apply a law may nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of his granted authority or if his acts conflict with the law itself.”

Id.

“Ministerial acts,” on the other hand, are those “where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.”

Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)).

The basic justification for this ultra vires exception to sovereign immunity is that ultra vires acts—or those acts without authority—should not be considered acts of the state at all.

Cobb v. Harrington, 190 S.W.2d 709, 712 (Tex. 1945). Consequently, “ultra vires suits do not attempt to exert control over the state—they attempt to reassert the control of the state” over one of its agents.

Heinrich, 284 S.W.3d at 372.

Political Questions and the Ultra Vires Conundrum

THE ULTIMATE POLITICAL QUESTION: IS A JUDICIAL RULING ULTRA VIRES?

This Part confronts the challenges that serious allegations of ultra vires action by the judicial branch in failing to apply the political question doctrine would pose. It begins by addressing two questions that the prospect of ultra vires action by the courts make inescapable.

First, are ultra vires judicial decisions nevertheless legally and morally binding?

Second, if not, then who should decide, and who as a sociological matter would have the power to decide, whether judicial action is ultra vires?

With these questions, a new dimension of the concept of political questions assumes a crystalline importance. One might maintain that the courts should decide, authoritatively in all cases, whether their decisions are intra vires and thus binding on officials of the political branches. But another possibility would be that the Constitution, as properly interpreted, assigns the responsibility for determining whether judicial rulings are ultra vires and thus whether they are legally binding to nonjudicial institutions or officials.

This Part begins by offering a brisk, negative answer to the question whether ultra vires judicial rulings—defined as those in which courts overstep the outer bounds of their jurisdiction in purporting to resolve a constitutional question—are legally binding.

It then argues that courts cannot authoritatively determine the outer boundaries of their own jurisdiction in cases of manifest overreach.

Although differing in important respects from judicially identified political questions, questions concerning whether courts have acted ultra vires and thus forfeited claims to obedience are political questions in a more ultimate sense, committed for authoritative resolution to nonjudicial decision-makers, as Attorney General Bates suggested in Merryman.234

In resolving such questions, officials of the political branches, and ultimately the American people, should afford strong deference to judicial rulings, but they should not regard themselves as estopped from assessing whether a judicial decision is intra vires.

The Nonbinding Character of Ultra Vires Judicial Rulings

Almost by definition, a purportedly authoritative decision-maker acting in excess of legal authority has no legal entitlement to obedience.

The law recognizes as much in various contexts, including that of military justice. Service personnel are obliged to obey orders by their superiors within the scope of their superiors’ authority, but not if a superior directs manifestly unlawful behavior such as war crimes.235

The difficulty lies in tracing the outer bounds of legal authority once it is recognized that jurisdiction encompasses the authority to decide erroneously, sometimes including about the scope of an institution’s actual jurisdiction.236

I return to this point below.

CONCLUSION

Though courts may attempt to resolve issues about the outer reaches of their own power, judicial answers that are ultra vires, as gauged by an appropriately deferential measure, would have no legal title to obedience.

The disobedience of a judicial order could have terrifying, quasi-anarchic consequences.

But the theoretical possibility of disobedience should occasion no regret.

Political questions in the ultimate sense—

which provide the backdrop against which courts recognize political questions in the doctrinal sense

—occupy the conceptual terrain that separates constitutional government under law from government by judiciary.