Ethics Complaint Against Ken Paxton Reinstated

February 11, 2016
By David Lee
AUSTIN (CN) – An ethics complaint must be reinstated against Texas Attorney General Ken Paxton for his nonbinding opinion allowing officials to refuse to perform gay marriages on religious grounds because it alleges a violation of professional conduct rules, the Texas Supreme Court Board of Disciplinary Appeals ruled.
Filed by Houston attorney Eddie Rodriguez in July, the complaint was co-signed by more than 200 attorneys who said Paxton’s opinion urged county officials to violate the Constitution and their oaths of office.
The Office of Chief Disciplinary Counsel of the State Bar of Texas dismissed the complaint, but the state supreme court board reinstated it on Feb. 2.
Paxton issued his opinion days after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which struck down state bans on same-sex marriage and made it legal nationwide.
Paxton told judges and county clerks they can invoke their religious rights in refusing, but warned that they might be sued.
“County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses,” the opinion stated.
The attorneys urged Paxton to follow the law and serve as “an example of compliance for others” before filing their complaint.
They accuse him of violating the preamble of the State Bar of Texas Rules of Professional Conduct and several provisions of Rule 8.04 regarding misconduct.
“Passion in the pursuit of policy is an admirable attribute for our Texas leaders. Sometimes, however, our zeal for making the world conform to our beliefs conflicts with established law and ethical rules,” their July letter stated. “As Texas Attorney General, you have sworn an oath to protect the People of Texas, whether they be liberal or conservative, Democrat or Republican, or, as the case may be, ‘gay’ or ‘straight.'”
Rodriguez said Paxton faces penalties that include a reprimand or disbarment.
“Texas ethics rules prohibit any lawyer, including the attorney general, from counseling a client to engage in conduct that the lawyer knows is criminal or fraudulent,” Rodriguez said in a statement Wednesday.
Paxton spokeswoman Cynthia Meyer said Wednesday evening that Rodriguez’s complaint “has always lacked merit.”
“We are confident the legal process for resolving these complaints will bear that out,” Meyer said.
Paxton’s opinion was cited immediately by Hood County Clerk Katie Lang, who invoked her religious objection to gay marriage within days of the Obergefell ruling. A same-sex couple sued her in Fort Worth Federal Court after she repeatedly refused to issue them a marriage license and “humiliated” them.
After Lang relented, Hood County officials settled the lawsuit by paying the couple’s $44,000 legal bill.
Paxton’s opinion returned to the headlines last week when a Dallas County judge cited it as justification for his refusal to perform same-sex marriages.
Justice of the Peace Bill Metzger said on Feb. 3 that his “sincerely held religious beliefs” prevent him from being “forced to conduct anything but a traditional wedding.”
“Recently, I have been asked about my beliefs and stance on traditional marriage,” Metzger posted on Facebook. “I think it is important to point out that this is the law in Texas per Attorney General Ken Paxton’s legal interpretation via opinion KG-0025: ‘Justices of the peace retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections.'”
Dallas County Democratic Party officials immediately demanded Metzger’s resignation, accusing him of violating federal law and his oath of office.

From Courthouse News.

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Oklahoma Gives Same-Sex Ex Parental Rights

November 19, 2015
By David Lee
OKLAHOMA CITY (CN) – Unmarried same-sex spouses who are not biological parents but raised a child together have standing to ask courts for parental and custody rights, the Oklahoma Supreme Court said in a landmark ruling Tuesday.
In a unanimous opinion, the nine justices concluded that an Oklahoma County judge erred in finding that plaintiff Charlene Ramey lacked standing as a nonbiological parent when she sought custody and visitation for her son.
She has separated from her same-sex partner, Kimberly Sutton, who as biological parent denied Ramey’s status as a parent. The women were involved with each other before the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges this year.
Ramey sued in 2014 seeking custody but the state district judge granted Sutton’s motion to dismiss for lack of standing in March this year.
Writing for the court on Tuesday, Justice Joseph M. Watt said Ramey was “not a mere ‘third party’ like a nanny, friend or relative,” as the trial court concluded.
“On the contrary, Ramey has been intimately involved in the conception, birth and parenting of their child, at the request and invitation of Sutton,” the opinion states. “Ramey has stood in the most sacred role as parent to their child and always been referred to as ‘Mom’ by their child. The community, school, medical providers and extended family have all known Ramey as the ‘other parent,’ all with the knowledge and mutual agreement of Sutton. The uncertainty facing Ramey, as reflected in this litigation, is the exact peril identified in Obergefell.”
Watt said this case is intended to recognize unmarried same-sex couples who before Obergefell participated in family planning and shared responsibility for the child.
“Public policy dictates that the district court consider the best interests of the child and extend standing to the nonbiological parent to pursue hearings on custody and visitation,” the opinion states. “This decision does not extend any additional rights to step-parents, grandparents, or others. Accordingly, we find the district court erred in granting the motion to dismiss, and that Ramey has standing to pursue a best interests of the child hearing.”
Ramey is represented by the American Civil Liberties Union of Oklahoma. Its director Brady Henderson said the ruling will help address inequities in child custody cases involving same-sex couples.
“This opinion makes it clear that courts can’t penalize children who have same-sex parents,” Henderson said Tuesday.
The ruling will allow the cases of Rebekkah Newland and Jennifer Fleming to go forward. Both women seek access and visitation to their children who were parented by same-sex couples, Henderson said.
Ramey said that Tuesday was “an overwhelming day of emotion and joy” for her.
“Today is relief,” she said in a statement. “Today, our great state recognized that I have been nothing but true as a mom to my son and our relationship. Today starts another chapter of hope. I love you, son.”
Ramey said she was “devastated” when she was evicted from the couple’s home.
Troy Stevenson, executive director of the advocacy group Freedom Oklahoma, said the court’s ruling is one of the most important cases to come through the state since Obergefell.
“I’m really proud of the Oklahoma Supreme Court for giving this case its day in court,” Stevenson said. “The worst thing I can imagine is for a child to be ripped away from its mother.”

From Courthouse News.

Texas County Pays To Settle Gay Marriage Snit

August 18, 2015
By David Lee
FORT WORTH (CN) – A Texas county will pay $44,000 to settle a civil rights lawsuit over its clerk’s refusal to issue a gay couple a marriage license for religious reasons, the couple’s attorneys said.
James Cato and Joe Stapleton, of Granbury, sued Hood County Clerk Katie Lang in Federal Court on July 6 after she repeatedly refused to issue them a license. The men applied after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 struck down state bans on same-sex marriage.
Obergefell invalidated a voter-approved 2005 amendment to the Texas Constitution that defined marriage between a man and a woman.
Hood County’s seat, Granbury, is about 40 miles southwest of Fort Worth.
The men said they were “humiliated” by Lang and her staff, who had six deputies sent to guard the office during their latest attempt to get married.
Lang publicly blasted the Supreme Court for “newly inventing” a constitutional right to gay marriage. She cited a June 28 nonbinding opinion by Attorney General Ken Paxton, who urged county clerks and justices of the peace not to issue licenses or perform same-sex marriages if they had religious objections.
Lang then changed her mind, saying her employees could issue same-sex marriage licenses when her office received updated forms from the state. When she turned the plaintiffs away again claiming, there would be a three-week delay in receiving the updated forms, the men sued. Within hours, Lang issued them a marriage license on the office’s existing forms.
Attorneys Jan Soifer and Austin Kaplan, both of Austin, said Monday the county agreed to pay their clients more than $43,800 in attorneys’ fees to settle the lawsuit. They said Cato and Stapleton were “subjected to degrading and disrespectful treatment and unnecessary and malicious delay” in waiting to be married and suffered “significant emotional and mental distress” by having to hire lawyers to get married.
“Hood County’s potential financial exposure for damages and attorneys’ fees in the lawsuit exceeded half a million dollars, not including the amount the county would have had to pay its own lawyers to defend this case,” the attorneys said in a statement. “To avoid this exposure to Hood County taxpayers for the actions of Clerk Land and her Liberty Institute lawyer, Cato and Stapleton agreed to waive any recovery for the harm this caused them and agreed to drop the lawsuit if their attorneys were paid for the legal work done to enforce their civil rights.”
The attorneys will donate a portion of the settlement fee to the Equality Texas Foundation, a gay rights group.
Soifer said Lang is “fortunate” that county commissioners agreed to settle the lawsuit and spare her and the county from “significant financial exposure.”
Cato said he and his spouse are “overjoyed” at the outcome. They are now man and husband.
Lang could not be reached for comment Monday evening.

From Courthouse News.

Judge Cancels Contempt Hearing for Texas AG

August 11, 2015
By David Lee
SAN ANTONIO (CN) – CN) – A federal judge canceled a Wednesday contempt hearing for Texas Attorney General Ken Paxton and the state’s top public health official after they agreed to issue new guidelines allowing gay parents and spouses to be listed on birth and death certificates.
The mess began on Aug. 5 when John Allen Stone-Hoskins, of Conroe, asked U.S. District Judge Orlando Garcia to hold Paxton and Texas Department of State Health Services Interim Commissioner Kirk Cole in contempt for refusing to issue a death certificate for his deceased husband, showing Stone-Hoskins as his spouse.
Judge Garcia on July 7 had permanently enjoined the state from enforcing Texas laws that ban or do not recognize gay marriage, after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges. Texas voters had approved an amendment to the state constitution in 2005 that defined marriage as only between a man and a woman.
Garcia ordered Paxton and Cole to appear before him at a contempt hearing this week to explain their actions. They folded and issued Stone-Hoskins the death certificate on Friday, but the hearing was not canceled because other people who say they were denied similar vital records wanted to attend.
Lambda Legal senior counsel Ken Upton Jr. wrote to Garcia on Friday that the Department of State Health Services continued to deny accurate birth certificates to children of same-sex couples. Upton said he and his clients, Susan Leigh Jorgeson and Robin Bass Jorgeson, planned to attend the hearing after they were denied an updated birth certificate on Aug. 5.
“While it appears the defendants have issued the specific corrected death certificate you ordered, they are by no means complying with the permanent injunction you entered against them in this matter,” Upton told the judge, according to the Texas Observer.
Stone-Hoskins’ attorney, Neel Lane with Akin Gump in San Antonio, told The Dallas Morning News that state attorneys told Garcia in a conference call Monday that Texas will issue new rules this week allowing same-sex coupled to be listed on birth and death certificates. Garcia then canceled the contempt hearing. If the rules are acceptable, there will be no further hearings in the case, Lane said.
“Same-sex marriages are entitled to every benefit, recognition and dignity that every other marriage is entitled to,” Lane told the newspaper. “From the state’s point of view, this should be the final chapter.”
Paxton filed a request hours earlier to quash Stone-Hoskins’ motion for him to appear at the hearing, claiming that neither he nor Cole should be compelled to appear. Any “high-ranking government official should not be compelled to personally appear and testify absent extraordinary circumstances,” the motion stated.
Stone-Hoskins, who is dying, wanted the change made to plan for the passing of his estate, and to have his marriage recognized on his husband’s death certificate.
“The need for relief is urgent. John is terminally ill,” his motion stated. “Doctors estimate he has no more than 45 to 60 days to live. Before he received this grim prognosis, John was married to James Stone-Hoskins. James died intestate in January 2015. At the time of his death, defendants refused to list John as his surviving spouse on James’ death certificate because, although John and James had been lawfully married in New Mexico, they were both men.”
Such changes are “routinely and promptly” given to surviving spouses of heterosexual married couples, the motion stated.
“John cannot do this, however, because defendants refuse to recognize John and James’s lawful out-of-state marriage and refuse to correct James’s death certificate,” the motion stated. “Thus, defendants continue to prevent John from gaining title to James’s estate as his surviving spouse, and continue to deprive him the dignity guaranteed by the Fourteenth Amendment.”

From Courthouse News.

Texas Buckles to Threat of Contempt Order

August 10, 2015
By David Lee
SAN ANTONIO (CN) – Texas officials issued a death certificate recognizing a dead man’s husband after a federal judge threatened to hold them in contempt of court for violating his order.
John Allen Stone-Hoskins, of Conroe, asked the court Wednesday to hold Texas Attorney General Greg Paxton and Texas Department of State Health Services Interim Commissioner Kirk Cole in contempt for refusing to make the correction after U.S. District Judge Orlando Garcia permanently enjoined the state on July 7 from enforcing state laws that ban or do not recognize gay marriage.
Garcia’s order came a week after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges struck down state bans on same-sex marriage nationwide. Texas voters approved an amendment to the state constitution in 2005 that defined marriage as only between a man and a woman.
Garcia ordered Paxton and Cole to appear before him on Aug. 12 to face contempt of court charges, for refusing to change James’ status from “single” on his death certificate.
One day later, DSHS issued an amendment to the death certificate of Stone-Hoskins’ deceased husband, James. They were married last year in New Mexico.
“It now lists John Allen Stone-Hoskins V as his spouse,” the agency said in a statement. “The amended death certificate was issued this evening as ordered by the U.S. District Court and requested by John Stone-Hoskins.”
Stone-Hoskins, who is dying, wanted the change made to plan for the passing of his estate, and to have his marriage recognized on James’ death certificate.
“The need for relief is urgent. John is terminally ill,” his 8-page motion stated. “Doctors estimate he has no more than 45 to 60 days to live. Before he received this grim prognosis, John was married to James Stone-Hoskins. James died intestate in January 2015. At the time of his death, defendants refused to list John as his surviving spouse on James’ death certificate because, although John and James had been lawfully married in New Mexico, they were both men.”
Such changes are “routinely and promptly” given to surviving spouses of heterosexual married couples, the motion stated.
“John cannot do this, however, because defendants refuse to recognize John and James’s lawful out-of-state marriage and refuse to correct James’s death certificate,” the motion stated. “Thus, defendants continue to prevent John from gaining title to James’s estate as his surviving spouse, and continue to deprive him the dignity guaranteed by the Fourteenth Amendment.”
Stone-Hoskins’ attorney, Neel Lane with Akin Gump in San Antonio, did not immediately respond to a request for comment Friday. He told Bloomberg News he would oppose the defendants’ motion to cancel the contempt hearing.

From Courthouse News.

Federal Judge Threatens Contempt of Texas Attorney General and Health Official Over Gay Death Certificate

August 6, 2015
David Lee
SAN ANTONIO (CN) – Texas Attorney General Ken Paxton may be held in contempt of court for refusing to issue a death certificate recognizing a dead man’s husband, in violation of a court order, a federal judge said Wednesday.
U.S. District Judge Orlando Garcia ordered Paxton and Texas Health Services Interim Commissioner Kirk Cole to appear before him next week.
“The purpose of this hearing is to determine whether defendants should be held in contempt for disobedience of this Court’s July 7, 2015 order, permanently enjoining defendants from enforcing any Texas’s laws that prohibit or fail to recognize same-sex marriage,” the 2-page order states.
“The parties may submit written pleadings and responses in relation to the motion for contempt, and for this Court’s consideration, no later than Monday August 10, 2015.”
Garcia’s July 7 injunction came a week after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges struck down state bans on same-sex marriage nationwide.
Relying on that order , John Allen Stone-Hoskins, of Conroe, filed a motion to intervene and for contempt on Wednesday in a closely followed 2013 case that sought to strike down Texas’ constitutional ban on same-sex marriage.
“The need for relief is urgent. John is terminally ill,” the 8-page motion states. “Doctors estimate he has no more than 45 to 60 days to live. Before he received this grim prognosis, John was married to James Stone-Hoskins. James died intestate in January 2015. At the time of his death, defendants refused to list John as his surviving spouse on James’ death certificate because, although John and James had been lawfully married in New Mexico, they were both men. John filed all of the necessary paperwork to amend James’ death certificate to list John as his spouse after this Court lifted the stay of its preliminary injunction, and has repeatedly asked the state to amend the certificate on numerous occasions since. The relief John seeks has been routinely and promptly afforded surviving spouses of opposite-sex marriages.”
Stone-Hoskins wants the change to plan for the passing of his estate when he dies, and have his marriage recognized on James’ death certificate.
“John cannot do this, however, because defendants refuse to recognize John and James’s lawful out-of-state marriage and refuse to correct James’s death certificate,” the motion states. “Thus, defendants continue to prevent John from gaining title to James’s estate as his surviving spouse, and continue to deprive him the dignity guaranteed by the Fourteenth Amendment.”
Paxton could not be reached for comment Wednesday evening.
Stone-Hoskins’ attorney, Neel Lane, with Akin Gump in San Antonio, said his client is “delighted” with the judge’s ruling.
“Like many other gay and lesbian citizens, John and his late husband James were denied the respect and dignity they were entitled to under the Constitution,” Lane told The Dallas Morning News. “Judge Orlando Garcia immediately recognized the injustice of the State’s actions in refusing to amend James’ death certificate, and we are grateful that he took swift action.”
Paxton has had a rough month. A criminal indictment charging him with three felony counts of securities violations was unsealed Monday in Collin County. If convicted, he could be sentenced to life in state prison .
In July, Paxton was criticized for issuing a non-binding opinion on Obergefell that urged county clerks and judges not to issue same-sex marriage licenses if doing so was against their religious beliefs.
In his letter to the judges and clerks of court, Paxton wrote that the Supreme Court “again ignored the text and spirit” of the Constitution by legalizing same-sex marriage and “manufacture[d] a right” that does not exist.
“In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live,” he said at the time.
Paxton’s advice resulted in an ethics complaint being filed against him with the State Bar.
Paxton’s attorney has said a gag order on the felony securities charges prevents the attorney general from talking about that case.

From Courthouse News.

Texas Lawmaker Still Fighting Gay Marriage

July 28, 2015
By David Lee
DALLAS (CN) – A Texas state lawmaker on Monday asked his attorney general to determine whether state agencies “raced” too quickly to recognize same-sex marriage benefits.
Rep. Dan Flynn, R-Canton, said the state need not issue same-sex licenses or grant such spouses benefits because the Legislature has not appropriated any money for it.
The Employees Retirement System of Texas granted state benefits to same-sex spouses after the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 struck down state bans on same-sex marriage.
The ruling invalidated a voter-approved amendment to the Texas Constitution that defines marriage as between a man and woman.
The Department of State Health Services then removed “man” and “woman” spaces from its marriage applications and inserted “applicant” spaces instead, Flynn said.
“Specifically, my question is what procedure a state agency should follow if the U.S. or Texas Supreme Court recognizes a new constitutional right and compliance with that ruling requires the expenditure of additional state funds,” Flynn’s July 27 letter states.
“I would submit that because only the Legislature may appropriate funds, an agency must follow the state law process for receiving additional funding needed to comply with a court order.”
Flynn claims that all gay marriage licenses issued by county clerks are void because the Legislature has not acted.
“Texas law remains silent as to marriage other than between one man and one woman,” he wrote. “Therefore pursuant to the non-delegation doctrine, Texas state agencies, including DSHS, cannot act without authorization from the legislature. Without state agency action to implement same-sex marriage, local county clerks lack authority to award same-sex marriage licenses.”
Flynn asked Attorney General Ken Paxton to issue a non-binding legal opinion to determine whether action by the Legislature is required to implement same-sex marriage in Texas.
“Without revision to Texas statute, are marriage licenses issued to same-sex individuals since June 26, 2015, valid?” Flynn asked. “Absent further action by the Texas Legislature, do state agencies have authority to adopt policies and procedures to grant other benefits, specifically including employment benefit programs and adoption, arising under Texas law to same-sex couples? In the event that the Texas legislature does not amend current law, what action could the federal government take to implement same-sex marriage?”
Flynn said the Texas Family Code could be “easily rewritten” to allow same-sex marriages, but that state lawmakers have not met or acted in response to Obergefell.
“Although the Texas Constitution vests legislative powers solely with the Texas Legislature, no action has been taken that would create same-sex marriage under Texas law,” Flynn wrote. “Absent legislative action, no Texas law defines or otherwise establishes marriage between homosexual couples. Can the state award what does not exist?”
Flynn said county clerks may not issue marriage licenses if applicants fail to meet the state definition of marriage being between one man and one woman.
“It does not, for example, provide for a marriage between two persons, whereas the federal court could have struck any specificity defining two persons as those of opposite sex,” Flynn wrote. “Yet, Texas county clerks have proceeded to issue marriage licenses despite the Texas state law provisions that remain even after the federal district court’s declaration as to the unconstitutionality of ‘law denying same-sex couples the right to marry.’ As all legislative powers are vested with the Texas legislature, state agencies and local government officials cannot issue same-sex marriage licenses without revision to Texas statutes by the Texas Legislature providing for the same.”
Paxton was criticized roundly for his first non-binding legal opinion on Obergefell. Two days after the Supreme Court ruling, he urged county clerks and judges not to issue same-sex marriage licenses or perform such marriages if doing so would violate their religious beliefs. He acknowledged that local officials would likely be sued if they followed his recommendation.
Paxton said the Supreme Court “again ignored the text and spirit” of the Constitution in legalizing same-sex marriage and “manufacture[d] a right” that does not exist.
“In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live,” Paxton said at the time.
“Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution.”
Former Rusk County Clerk Joyce Lewis-Kugle resigned on July 9 after refusing to issue same-sex marriage licenses. Rusk County District Attorney Michael Jimerson said he told Lewis-Kugle she could follow Paxton’s recommendation but she would probably be sued.
“The Supreme Court is the law of the land ,” Jimerson said he told her. “You can either resign in protest or issue the licenses.”
Hood County Clerk Katie Lang was forced to issue a same-sex marriage license on July 6 after refusing to issue them, citing Paxton’s opinion. She invoked her personal religious objections in refusing, but changed her mind and said other employees of her office would issue same-sex marriage licenses. She was sued in Federal Court by a gay couple who said they were “humiliated” by Lang and her staff when they tried to apply for a marriage license and were told there would be a weeks-long delay in getting updated forms from state officials. The couple pointed out that the forms were already available on the Internet.
Flynn’s District 2 covers Rains, Hunt and Van Zandt counties, east of Dallas and just west of Tyler. Flynn, 72, is serving his seventh term in the Legislature. In 2008 he wrote a bill requiring that public documents be written only in English. He said it would encourage people to learn the language. He describes himself on his home Web page as a “noted conservative,” a businessman, banker and rancher.

From Courthouse News.