THL_MayJune2024

HBA Welcomes Vinh Ho as New Executive Director A Lesson in History: The Origins of the Federal Constitution The Religious Accommodation Claim in Groff v. DeJoy What the Bill of Rights Means to Me 75th Annual Harvest Celebration Underwriters nch 2024 Law Day Contest Winners

lawyer

THE HOUSTON

inside...

Volume 61 – Number 6

May/June 2024

contents May/June 2024

Volume 61 Number 6

FEATURES

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12

Welcomes Vinh Ho as New 10 HBA Executive Director 12 Thank You From Mindy G. Davidson Lesson in History: The Origins of the 14 AFederal Constitution A Conversation with Judge Charles R. Eskridge and Paige Scobee Fish

Religious Accommodation Claim 17 The in Groff v. DeJoy: Arguing to Change the Standard

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What the Bill of Rights Means to Me 21 Introduction

by Rachael Thompson • The Singularity of the American Experience

By Jill Yaziji • The U.S. Bill of Rights: A Story of a Ukrainian-Born Attorney

By Anna DeMaggio • In the Greatest Nation of Immigrants, Civility Must Reign Supreme!

By John Ngunjiri • A New Citizen’s Oath: The Bill of Rights Through Immigrant Eyes

By Shannon Quadros

Annual Harvest Celebration 26 75th Underwriters 30 2024 Law Day Contest Winners

The Houston Lawyer

ON THE COVER (from top L):

• Commissioner Lesley Briones, HBA Gender Fairness Committee Co-Chair Judge Cheryl Elliott Thornton, HBA President Diana Gomez, HBA Gender Fairness Committee Co-Chair Stephanie Noble, Former HBA Executive Director Mindy G. Davidson, HBA Associate Executive Director Ashley Gagnon Steininger, HBA Marketing and Communications Director and Houston Lawyer Managing Editor Maggie Martin.

• Cater Dugan, Norton Rose Fulbright US LLP and Gender Fairness Committee Co-Chair; 2023-2024 HBA President Diana Gomez; Judge Cheryl Elliott Thornton, 164th District Court and Gender Fairness Committee Co-Chair; and Stephanie Noble, Vinson & Elkins LLP and Gender Fairness Committee Co-Chair.

• 2023-2024 HBA President Diana Gomez; Harris County Precinct 4 Commissioner Lesley Briones; Houston Bar Foundation Chair Linda Hester; Stephanie Noble, Vinson & Elkins LLP and Gender Fairness Committee Co-Chair; and former HBA Executive Director Mindy G. Davidson.

• Judge Cheryl Elliott Thornton, 164th District Court and Gender Fairness Committee Co-Chair; Stephanie Noble, Vinson & Elkins LLP and Gender Fairness Committee Co-Chair; Harris County Precinct 4 Commissioner Lesley Briones; Judge Ravi K. Sandill, 127th District Court; Judge Latosha Lewis Payne, 55th District Court; and 2023-2024 HBA President Diana Gomez.

• Alistair Dawson, Past HBA President and Beck Redden LLP, and William Hagans, Hagans Law, from the 2023-2024 Texas Bar Foundation Board of Trustees pose with Harris County Precinct 4 Commissioner Lesley Briones.

Photography: Courtesy Office of Harris County Precinct 4 Commissioner Lesley Briones.

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2024. All rights reserved.

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contents May/June 2024

Volume 61 Number 6

departments

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34

Message 6 President’s In Appreciation to Our Bar

By Diana Gomez

the Editor 8 From Bill of Rights

By Liz Malpass

Giving Back 32 Lawyers HBA Lactation Pod Initiative The Family 34 LawTheInSorrels Family THE RECORD 36 OFF Hee-Jin Chang: On Your Mark, Get

Set, Litigate

By Ciara Perritano

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37

in professionalism 37 A Profile The Honorable Keith P. Ellison U.S. District Judge for the Southern District of Texas A Profile in professionalism

Christopher L. Tritico Tritico Rainey, PLLC

Spotlight 40 committee The Law Week Committee:

Engaging the Bar with Houston’s Youths

By Chris Ainsworth

Section Spotlight 41 The Commercial and Consumer

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41

Law Section: Renewing its Commitment to Engagement and Education

By Brian Staley

trends 42 Legal Hold Your Horses: The Fifth Circuit

Amends Its Mandate Internal Operating Procedures

By Lane Morrison

New Constitutional Challenges Piling Up for the NLRB

By Paul M. Knettel

reviews 44 Media The Original Meaning of the 14th

Amendment: Its Letter and Spirit Reviewed by David T. López

The Houston Lawyer

45 Litigation MarketPlace 4 May/June 2024

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Behind the Lines: The Houston Lawyer Podcast Behind the Lines: The Houston Lawyer Podcast features in-depth conversations with Houston attorneys and judges, providing insight about the latest legal developments, as well as personal stories of the opportunities and challenges of serving the law. The podcast is the companion to The Houston Lawyer, where each episode focuses on the same themes as the magazine.

Learn more about the podcast and how you can subscribe by visiting hba.org/thehoustonlawyer thehoustonlawyer.com

May/June 2024

5

president’s message

By Diana Gomez Chamberlain Hrdlicka

The Houston Lawyer

I

In Appreciation to Our Bar

am writing my final message just a couple of weeks after I passed the HBA president’s gavel to my good friend, David Harrell, at the HBA Annual Dinner. It was a wonderful evening, filled with celebration, gratitude, and excitement for the coming Bar year. I dedicate my last column to recognizing just a few of our major accomplishments this past year, since it is impossible to enumerate all the outstanding partners who worked alongside us on one page. I invite you to visit hba.org to read more about these superb individuals.

First, I’m happy to say the HBA surpassed a membership of 11,000 strong this year, especially through the addition of attorneys five to 10 years into their practice and law school students. I am gratified to see a new generation join our longtime members in service and collegiality. The 74th Annual Harvest Celebration in November was a record-breaking fundraiser with nearly $1.1 million raised for Houston Volunteer Lawyers—one of the largest providers of pro bono services in Texas. And the 39th Annual HBA Eikenburg 8K Fun Run, which benefits The Center for Pursuit, raised over $96,000—the highest sponsorship amount in the event’s history.

I had three focus areas as HBA president: community service; attorney engagement; and pipeline programs. Through the efforts of so many, the HBA was able to make great strides in all three areas.

First, I am incredibly proud to report the first lactation pod was installed on May 8 at the Harris County Civil Courthouse. You can read more about this important access to justice initiative, and the outstanding partners and donors who helped make it possible on page 32 of this issue. We also unveiled the first LAWPod (Legal Access Workspace) on April 9, expanding law library services and access beyond downtown to residents throughout Harris County. Additionally, we worked closely with several members of our federal judiciary in naturalization ceremonies of our new citizens. It was a joy for me to take part in five naturalization ceremonies as HBA president, and for my children, Matthew and Elina, to lead the Pledge of Allegiance in one ceremony with new citizens originating from over 130 countries.

As part of attorney engagement, the HBA held its firstever multi-practice Bench Bar Conference on April 12, followed by our inaugural “Bites & Beverages for the Bar” at Hotel ZaZa. At both events, we brought together attorneys 6 May/June 2024

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and judiciary from all of Houston’s legal community–civil, criminal, state, federal, and all practice areas–for a full day of breakout discussions and collaboration. We also worked closely with the Houston Bar Association Auxiliary to prepare and stock Attorney Ready Rooms to support attorneys at the Harris County courthouses.

Finally, the HBA identified leaders who could help foster a stronger bond between the HBA and affinity bar associations. To that end, the HBA appointed 11 Ambassadors, including individuals from our ancillary bars–the Hispanic Bar Association of Houston, the Mexican American Bar Association, the Houston Lawyers Association, the Houston Young Lawyers Association, the Asian American Bar Association, and the South Asian Bar Association. We have seen unprecedented support from our ancillary bars this year, and I would especially like to thank HisBA, MABAH, HLA, HYLA, AABA, SABA, and MBA for your support. A special thanks to HisBA and HYLA for becoming the first and second board of directors to join the HBA’s 100 Club. The HBA also promoted employment opportunities at Houston law firms for high school students from historically underserved communities. Thanks to our efforts, we saw an increase in law firm work-study program partners.

None of these initiatives would have been possible without the support of so many wonderful people. I want to thank Mindy G. Davidson, who has led the HBA with unwavering dedication and enthusiasm for the past five years.

I look forward to seeing the HBA continue to grow with our new executive director, Vinh Ho. I’d also like to thank Chamberlain Hrdlicka for their support and encouragement throughout this year. Thank you to my very dear friend and colleague, Leslie Tan, and the rest of our team, Nora De La Garza, Rosa Reyes, and Lucas Meng. I’d also like to thank my wonderful family, especially my Mom and Dad, Cecilia and Juan Perez, my sister and brother-in-law, Melisa and Jose Luis Arajuo, and my brother and soon-to-be-brotherin-law, Javier Perez and Tu Lamb. Finally, I’d like to thank our wonderful children, Matthew and Elina, and the love of my life and my very best friend, Judge Michael Gomez. I can never thank you enough for your support.

We have accomplished so much this past year, and I look forward to working alongside David, the HBA Board of Directors, and HBA staff as we continue this good work in service of our profession and community.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

Diana Gomez

Collin Cox

David Harrell

Daniella Landers

Kaylan Dunn

Christopher V. Popov

Second Vice President

Greg Ulmer

DIRECTORS (2023-2025) Carter Dugan Jeff Oldham

Greg Moore Colin Pogge

DIRECTORS (2022-2024) Keri Brown Samantha Torres

Robert Painter

DIRECTORS (2023-2024) Seepan V. Parseghian

editorial staff Editor in Chief

Liz Malpass Associate Editors

Anna M. Archer Nikki Morris Andrew Pearce

Sydney Huber Bateman Lane Morrison Braden Riley

Editorial Board

Anietie Akpan Nicholas Beekhuizen Hon. Kyle Carter Teresa Hudson Harrison Long Dave Louie Raymond Panneton Hon. Josefina Rendón Kyle Steingreaber Mark Yablon

Jaclyn Barbosa Natasha Breaux Dasha K. Hodge Kristen Lee David T. Lopez Eli Medina Ciara Perritano Jennifer Smith Rachael Thompson

Managing Editor

Maggie Martin

HBA office staff Executive Director.................... Vinh Ho Associate Executive Director....... Ashley G. Steininger Executive Assistant and Director of Board Affairs............ Gina Pendleton Controller ............................... Sarah Kole Director, Marketing and Communications ..................... Maggie Martin Communications Specialist........ Briana Ramirez Education Coordinator ................. Alli Hessel Director, Projects and Events...... Bonnie Simmons Projects and Events Assistant..... Georgina Peña Director, Membership and Technology Services................. Ron Riojas

Advertising sales Design & production QUANTUM/SUR

10306 Olympia Dr., Houston, TX 77042 281.955.2449 • www.quantumsur.com Publisher

Leonel E. Mejía Production Manager

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May/June 2024

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from the editor

By Liz Malpass Baker Botts L.L.P.

Associate Editors

Anna M. Archer U.S. District Court

Sydney Huber Bateman Horne Rota Moos

Nikki Morris BakerHostetler

Lane Morrison Bush Seyferth

The Houston Lawyer

Andrew Pearce BoyarMiller

Braden Riley Marrow & Sheppard

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I

Bill of Rights

n a 2005 commencement address to Kenyon College, been interviewed to discuss aspects of the first, second, author David Foster Wallace began his speech with a fourth, and seventh amendments. parable about fish. An old fish swims past two young As we bring The Houston Lawyer’s 60th year to a close, fish one morning, and as he passes, he says, “MornI am proud of all that we have accomplished this year. ing boys, how’s the water?” The two young fish turn Though the contributions of our writers and editors to each other, bewildered. They have no idea what water speak for themselves, just before this final issue went is. Wallace used the story to make the point that “the to print, we learned that the State Bar of Texas had semost obvious, important lected The Houston Lawrealities are often the yer as the “Best Overall ones that are hardest to Newsletter” for the 2024 see and talk about.”

SBOT Stars of Texas Bars In this final issue of Awards. The magazine the Bar year, The Housalso won for the folton Lawyer covers one lowing submissions: of the most foundational News Article (“A Deep elements of American Dive Into the CROWN jurisprudence—the Bill Act: Stopping Hair Disof Rights. Even as attorcrimination One Strand neys, it is easy to take the Members of the 2023-2024 Houston Lawyer editorial board at the final at a Time” by Megan Bill of Rights for granted. meeting of the bar year.

Mitchell, July/August It is often only when those liberties are threatened—a 2023); General Interest Story (“The Many Titles of Takind of draining of the water from the fish tank—that sha Schwikert Moser” by Dave Louie, January/February we remember that those liberties exist and that their 2024); Publications—Series of Articles, Substantive Law protection is vital to our understanding of our nation (J. Vance Lewis and Houston’s First African American and ourselves. From the protection of free speech to the Attorneys, by George “Trey” Gifford III; Ryan A. Cunguarantee of a fair trial, the Bill of Rights serves as a tesningham; Charles L. Sharman; and R. Michelle Boldon, tament to the enduring principles of individual liberty January/February 2024). that are the hallmark of our nation.

I am immensely grateful for the support and contriThis issue brings together a collection of personal stobutions of our talented editors and contributors, and ries about the Bill of Rights, all the more fitting because to 2023-2024 HBA President Diana Gomez, who has many of the rights protected by the first ten amendments guided the themes of these issues throughout the year. are so very personal. Shannon Quadros, Anna DeMagLooking ahead, I am excited to announce that Andrew gio, John Ngunjiri, and Jill Yaziji, naturalized citizens, Pearce, who served as this year’s articles editor, will be describe their own personal histories and gratitude for next year’s editor in chief. Andrew is a tremendous force these liberties. The Honorable Charles Eskridge and his of enthusiasm and I look forward to watching the magajudicial clerk, Paige Scobee Fish, discuss the illuminatzine thrive under his leadership. ing origins of the Constitution. My Baker Botts colleague Finally, the magazine would not be possible without and friend, Christopher Tutunjian, is also featured in Maggie Martin, our managing editor, yet her incredible an interview describing his role in the religious liberties contributions to the magazine only represent a small case Groff v. DeJoy, which was decided by the Supreme portion of her responsibilities as the director of marCourt of the United States last session. Thank you to keting and communications for the HBA. I cannot state our guest editors, Lane Morrison and Harrison Long. enough how grateful we all are for her.

On the year’s final installment of the podcast, Behind the As always, thank you for reading The Houston Lawyer, Lines, a full slate of attorneys and law professors have this year and in the years to come.

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May/June 2024

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HBA Welcomes Vinh Ho as New Executive Director, Thank You to Mindy G. Davidson for Dedicated Service to the Bar

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fter an extensive nationwide search, Houston atHo. “I have dedicated my career to public service and look torney Vinh Ho joined the Houston Bar Associaforward to serving Houston lawyers in furtherance of our tion as its new executive director on May 13. Ho profession and the administration of justice.” is an attorney with over 16 years of experience Ho succeeded Davidson, who served the HBA as its exin imecutive director since migration and fam2019 after a more ily law, civil matters, than 30-year legal and nonprofit leadcareer in Houston, ership. He succeeds focused on fiduciary Executive Director responsibility and Mindy G. Davidson, corporate goverwho retired in June nance. after an orderly tran“It has been a tresition. mendous honor to Ho was the senior serve as the HBA’s director of legal serexecutive director vices at the Randall and I am proud of all O. Sorrels Legal Clinthat our team has acics at South Texas complished over the College of Law Houspast five years. Vinh ton. Ho also served as brings fresh perspecexecutive director of tive and I believe the the Houston chapter future of the HBA Mindy G. Davidson and Vinh Ho pose at the HBA Annual Dinner on May 14, 2024. of Boat People SOS, will be very bright Inc., a nonprofit primarily serving the Vietnamese and under his leadership,” said Davidson.

Asian community, with branches across the United States HBA President Diana Gomez said Ho’s experience and and Southeast Asia. He has served on numerous nonprofit expertise will serve as a valuable resource as the organizaboards and numerous State Bar of Texas committees, intion continues to grow. cluding Legal Services to the Poor in Civil Matters and “We greatly appreciate Mindy Davidson’s contributions Laws Relating to Immigration and Nationality. Ho earned and are very excited to have Vinh Ho join us as executive his joint J.D./MBA from Texas Tech University and graddirector at such an important time for the organization,” uated magna cum laude from the University of Houston said HBA President Gomez. “Vinh’s background and expewith a BBA in Management Information Systems and a B.S. rience will be pivotal as we continue to expand the HBA’s in Biology. impact.”

“I am thrilled to join the Houston Bar Association,” said

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F

Thank You From Mindy G. Davidson

ive years went by in a flash. I am sincerely ciously supporting me for three years before her retirement. grateful for the I also want to thank Anne i ncompa r able Chandler (former ED of HBA Team: Houston Volunteer Law• Associate yers), Jessica Howton Executive DirecStool (HVL ED), Karen tor Ashley Gagnon Ramsey (Houston LawSteininger and Eduyer Referral Service ED) cation Coordinator and Nick Hall (Dispute Alli Hessel; Resolution Center ED) for • Marketing & collaborating with me to Communications move our collective group Director (and Manof organizations ever foraging Editor of The ward.

Houston Lawyer) It was an honor to Maggie Martin, and Mindy poses with HBA past presidents at a reception honoring Mindy and HBA Presi- have been a thought dent Diana Gomez. (L to R): Benny Agosto, Jr., Diana Gomez, Tommy Proctor, Mindy G. Communications partner for seven HBA Davidson, Alistair Dawson, Warren W. Harris, Travis J. Sales, and Bill Kroger.

Specialist Briana presidents and six HBF Ramirez; chairs. I have personally • Controller Sarah benefitted greatly from Kole; their wisdom and guid• Membership & Techance and look forward to nology Director Ron their lasting friendships.

Riojas; Heartfelt thanks to War• Executive Assistant ren Harris, Benny Agosand Director of to, Jr., Bill Kroger, JenniBoard Affairs Gina fer Hasley, Chris Popov, Pendleton; Diana Gomez, and David Former HBA Executive Director Mindy G. Davidson (fourth from the right) poses • Projects & Events Harrell, as well as to Trawith the HBA team, (L to R) HBA Executive Director Vinh Ho, Maggie Martin, Director Bonnie Sim- Briana Ramirez, Bonnie Simmons, Georgina Peña, HBA President Diana Gomez, vis Torrence, Susan Bickmons and Projects & Gina Pendleton, Ashley Gagnon Steininger, Sarah Kole, and Ron Riojas. ley, Polly Fohn, Christian Events Assistant Georgina Peña; and Garza, Monica Karuturi, and Linda Hester.

• Executive Director Vinh Ho (as of May 13, 2024).

There are many more who provided mentorship, support, learning moments, sympathetic ears, and friendship. I am To say that we are a lean and mean team does not do us grateful for you all. justice. Each and every one gives their all, whether by sharTo Vinh, congratulations on your new position! This is a ing vital historical knowledge about the Houston Bar or enterrific job, and you have a fantastic Team. I am excited to thusiastically embracing the role they have to play; and that see where you will take the Houston Bar next. is even when we don’t know what that role needs to be and Onward. have to figure it out together. It is impossible to describe the With every good wish, amount of work and dedication that this wonderful group of humans gives all day, every day, and from that the magic that Mindy G. Davidson, is produced. In this, I want to acknowledge former associate Former Executive Director, Houston Bar Association executive director, Tara Shockley, and thank her for so gra-

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Local Solutions. Global Reach.

Judge Charles R. Eskridge and Paige Scobee Fish

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HBA: Why was it important to you to take Judge Eskridge’s class?

Scobee Fish: Origins was one of the few classes in law school that actually dug deeply into the historical materials that underpin the Constitution. Part of what drew me to law school was my interest in government and constitutional law, so it was important to take advantage of this unique chance to dive into its history. I wanted to take a class where I could learn from firsthand sources how our framers developed our unique blend of democracy, republicanism, and federalism. And it was just an amazing opportunity to have Judge Eskridge as my professor, along with Judge Brantley Starr of the Northern District of Texas, who co-taught the class that year.

HBA: Can you give us an overview of the class?

Judge Eskridge: Well, it covers a lot of ground. Origins of the Federal Constitution presents an intensive introduction to the historical sources of the Constitution. With select readings of original source documents, we consider the common law and other influences on early American government and justice, such as Locke, Montesquieu, and Blackstone’s Commentaries; the colonial experience leading to and immediately following the American Revolution; documents and debate directly relevant to formation of individual constitutional provisions and amendments; and the initial experience and understanding of the Constitution, through to Justice Joseph Story’s Commentaries, in addition to later amendments. And while not the main focus, the class also considers the influence and use of this material on modern

HBA: What first got you interested in this topic?

Judge Eskridge: It actually traces way back for me. I quickly became aware of a gap in my legal education when I clerked for Justice Byron White just after law school. An extract in some prior opinion from The Federalist, or a quote from Blackstone’s Commentaries in a brief, would seem on its face fairly dispositive. But I had no broad understanding of its place in the development of an issue, beyond what the opinions themselves said. Law school depends a great deal on historical reference, but it isn’t designed as an advanced history class. And that always nagged at me a bit, until Fall 2008, when Justice Clarence Thomas gave the endowed lecture at my alma mater, Pepperdine University School of Law. He delivered it as a fireside chat of sorts, and I was fortunate to be one of three on a panel posing questions to him. He was asked about his interpretive philosophy and what he uses as guideposts when deciding difficult cases. In answering, he first paused to note that the classes on constitutional law are case-driven, typically focusing on the most recent cases that articulate current doctrine. And he said that he wished law schools had started first with a course called something like “The Formation of Our Constitution,” so that a broader view of history

A Lesson in History:

The Origins of the Federal Constitution udge Charles R. Eskridge, United States district judge for the Southern District of Texas, teaches a course of his own design called Origins of the Federal Constitution as an adjunct professor at the University of Texas School of Law and the University of Houston Law Center. His course materials are currently in the editorial process for publication by the Texas Review of Law & Politics (“TROLP”).

One of his current law clerks, Paige Scobee Fish, was his student during her 2L year at the University of Texas School of Law while also an editor for TROLP. The Houston Lawyer sat down with Judge Eskridge and Scobee Fish to ask a few questions about their experiences with the class.

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understanding of the Constitution.

could illuminate the various provisions and amendments, along with the problems and issues that the framers had under review in the early days of the Republic. I jotted that down, and it became my class, which I taught for the first time at the University of Houston Law Center in Spring 2010.

HBA: What was your biggest takeaway from the class?

Scobee Fish: The readings in Origins changed my perspective on the Constitution.

As Judge Eskridge often pointed out in class, it is amazing to consider how studied and prolific our founders were, as a generation.

The hundreds of pages of documents that he selected for the class syllabus are only a sliver of the total writings published during the drafting and ratification of the Constitution.

Alexander Hamilton himself wrote over 50 essays in the Federalist Papers in less than a year. Reading this vast [number] of primary sources showed me that, even if the framers didn’t agree on everything, and even if their decisions didn’t turn out perfectly, they put

an amount of thought and effort into reaching compromise that is almost unfathomable today. I took away from the class a new understanding and gratitude for their efforts and the constitutional system they designed.

HBA: How did you select the documents to include?

Judge Eskridge: In the main, the documents are distilled and edited from a truly remarkable five-volume compendium of original documents called The Founders’ Constitution.

The University of Chicago Press published this in conjunction with the 200th anniversary of the Constitution in 1987. All in, it’s about 7,000 pages of reference material. That is a monumental achievement, from which I selected a “greatest hits” that total approximately 1,000 pages, so the class covers about 70 pages each week. A note that the University of Chicago Press also performs a real public service in keeping a free, online, searchable version. The Press has also recently published a similar, two-volume treatise devoted to the Thirteenth, Fourteenth, and

Fifteenth Amendments, from which I’ve since designated further materials. And the research librarians at Pepperdine University School of Law assisted me when I taught my class there in Fall 2011, pulling legislative and background documents for the Sixteenth through Twenty-Seventh Amendments.

HBA: Why did TROLP decide to edit and publish these materials?

Scobee Fish: A number of my fellow classmates that semester were also editors at the journal. We all thought Origins was a unique and rare reading into primary sources and constitutional history and we wanted to share that opportunity with law students around the country. By editing Judge Eskridge’s collection of documents into an accessible format, we are hopeful that professors or judges will teach the class at other law schools. And consistent with TROLP’s mission to provide a forum for the discussion and debate of issues like federalism, originalism, constitutional history, and con-

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temporary constitutional law, it is also our hope that the Origins of the Federal Constitution textbook will provide legal scholars a helpful introductory guide for research and study of the Constitution.

HBA: Does this course and these documents influence your role as a judge?

Judge Eskridge: It does in some ways, although a district court judge doesn’t often have occasion to decide constitutional issues as an “original” matter. But it has definitely instilled in me the importance of understanding the exact text of any legal document and its meaning and context as written. And I guess as to the bigger picture—after gathering and sequencing the documents and having now taught the class ten times—I see the various provisions spread across the Constitution in a different way, as part of a seamless whole. And that’s true as to the responsibilities shared across many articles to the legislative, executive, and judicial branches, as well as the balance of powers between the federal and state governments.

For any power granted by the people to the government, there is a further connection to rights that specifically check and balance those powers.

HBA: How do you anticipate using what you learned in your legal career?

Scobee Fish: I’d echo what Judge Eskridge said. Learning to critically read the text of the Constitution taught me the importance of critically reading any legal text. And familiarizing myself with the vast array of primary sources in the course has made me much better prepared to research and make legal arguments bolstered by history. Plus, many of the documents themselves provide excellent examples of persuasive legal writing. Take Alexander Hamilton’s pithy phrase from Federalist 78, the judiciary as the “least dangerous branch,”—that argument won the day at ratification, and almost every American lawyer today still knows it by heart. I think everyone who takes the class walks away with the goal to be as incisive a lawyer as Hamilton was—or Madison or Jay or Wilson or [the] many, many others that we read!

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HBA: If you had to pick a single, favorite document, which would it be?

Judge Eskridge: James Madison recorded in his notes from the Convention the speech that Benjamin Franklin, at age 82, gave on the last day of their proceedings, September 17, 1787. His was a call to reach across lingering differences, and to put aside vanity and personal preference in favor of the continued strength and security of a nation whose future was still very much in doubt. If I can just quote a short passage: “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others…I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility—and to make manifest our unanimity, put his name to this instrument.” We cover this speech as the fifth document in our first class, and I come back to it again and again throughout the course. I think it really stands alone in its time for his wisdom, and it certainly stands apart from political speeches and discourse of the present day.

HBA: Same question to you. What was your single favorite document?

Scobee Fish: Judge Eskridge stole my favorite document! But if I had to choose a runner-up, it would be George Washington’s Farewell Address, which he gave as he left the presidency in 1796. It is one of the last documents we read for the last day of class.

And each time I read it again, I’m struck first

by President Washington’s humility—he begins with a “deep acknowledgment of that debt of gratitude which I owe to my beloved country.” And then by his realism as he acknowledges the fragility of the new Constitution and uncertainty as to whether it will possibly last. He warns solemnly about the

dangers of disunity and the fragility of the newly ratified Constitution. But most importantly, I am struck by his optimism— that such uncertainty can be addressed by adhering faithfully to the Constitution, “by respecting all the words the framers wrote, by facing facts, and by seeking to understand their meaning for living people.” And if we do so, he says, despite differences, the American people can again fight a common cause and “triumph[] together.” His words always remind us that maintaining the Constitution is hard and never-ending work, but, as long as we do that work—and remain unified in that goal—our country will continue to prosper even in challenging times.

The Honorable Judge Charles R. Eskridge, United States district court judge for the Southern District of Texas, received his J.D. from Pepperdine University School of Law and went to college at Trinity University. He served as a law clerk to the Honorable Chief Judge Charles Clark of the United States Court of Appeals for the Fifth Circuit, as a law clerk to Justice Byron White of the Supreme Court of the United States, and as a special assistant to the Honorable Howard Holtzmann of the Iran/U.S. Claims Tribunal in The Hague. Before appointment to the bench, he was in private practice in Houston, litigating complex commercial disputes.

Paige Scobee Fish is a law clerk for the Honorable Charles R. Eskridge. She received her J.D. from the University of Texas in 2023 and went to college at the University of Wisconsin. Before law school, she worked as a government relations associate at a lobbying firm in Madison, Wisconsin. Following her clerkship with Judge Eskridge, she will clerk for the Honorable Judge Don Willett on the United States Court of Appeals for the Fifth Circuit.

Arguing to Change the Standard

The editorial board of The Houston Lawyer and the Podcast Subcommittee strive to ensure the podcast content is relevant and interesting to people practicing law in the greater Houston area and that the guests are people a wide variety of Houston lawyers would like to hear from. Tutunjian, a Houston-based associate who had the opportunity to play a major role in a First Amendment case that went all the way to the U.S. Supreme Court, is one such guest. The following transcription of the interview has been condensed and amended for print:

ehind the Lines: The Houston Lawyer Podcast debuted on October 30, 2020, as a companion to The Houston Lawyer magazine. The theme of each episode is based on the topic of the current issue of The Houston Lawyer. The podcast is available on every major podcast platform. Most listeners are from the Houston area, but there are regular listen-

AA: Can you start out by telling us a little bit about how Baker Botts got involved in this case?

CT: Yes, absolutely. We were retained after the district court granted summary judgment in favor of Louis DeJoy, the postmaster general. The trial counsel knew they wanted to appeal to the Third Circuit, and they got in touch with First Liberty Institute. First Liberty Institute

By Anna Archer

The Religious Accommodation claim in Groff v. DeJoy:

B

(An Interview from Behind the Lines, The Houston Lawyer Podcast, Season 4, Episode 2) ers from all over the world. Most episodes are accredited for Texas CLE credit.1 In October 2023, Behind the Lines Host Anna Archer (AA) interviewed Baker Botts Associate Christopher Tutunjian (CT) about his work on the Groff v. DeJoy2 case, in which the firm represented the plaintiff, Gerald Groff, pro bono. This interview exemplifies the significant learning opportunity the podcast provides.

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you’ll have to show up like everyone else.”

Well, Mr. Groff stuck by his convictions and did not show up to work. He received progressive discipline over the course of about two years. And then, eventually, knowing termination was around the corner, he resigned and brought a lawsuit under Title VII of the Civil Rights Act. I will provide some AA: So, you guys started out background on Mr. Groff’s doing the appeals rather than claim. He brought a rethe basic litigation at district ligious accommodation court, and the plaintiff had ...[employers] claim. Under the Civil lost in the district court?

CT: That’s right. After First have to Rights Act, employers candiscriminate on the Liberty reached out to us, accommodate not basis of religion. And they Aaron asked me if I was interemployees’ reli- have to accommodate emested in working on this case, and I definitely was. That was gious practices ployees’ religious practices unless the employer can back in May of 2021. We’ve unless the demonstrate that the acbeen working on this for a long time. employer can commodation would imdemonstrate that pose an undue hardship on the conduct of the emAA: It sounds like it was a the accommoda- ployer’s business. And in great opportunity for you to get to work on such an intertion would impose a 1977 opinion of the case titled Trans World Airlines esting case. Could you tell an undue hardship vs. Hardison3, the U.S. Suthe listeners, keeping in mind that some of our listeners on the conduct preme Court held that an may be law students, or even of the employer’s employer’s business sufnon-lawyers, a little bit about fers an “undue hardship” business.” whenever accommodatthe facts of the case?

CT: So, our client—Gerald ing an employee’s religious Groff—is an evangelical Christian from exercise would require the employer to Lancaster, Pennsylvania. He believes that bear more than a de minimis cost. So, the the Sunday Sabbath should be a day of Court equated undue hardship with anyworship and rest and that he should abthing more than a de minimis cost. stain from secular work on that day. He Hardison absolutely gutted Title VII’s was a mailman for the U.S. Postal Service. accommodation provision. Lower courts Ordinarily, you would think if your reembraced the de minimus cost language ligious beliefs prevent you from working and virtually always sided with employon Sundays, being a mailman is a pretty ers at the summary judgment stage. good job for you. But, when the Postal Courts regularly held that any cost, any Service signed a contract with Amazon to loss of efficiency, anything that the emdeliver packages on Sundays, Mr. Groff ployer could point to, would be enough was forced to work on Sundays. He ofto get the employer off the hook. And so, fered to pick up extra shifts on Saturdays for the last 47 years since Hardison was and throughout the week to make up for decided, Title VII’s accommodation promissing work on Sunday. But the postvision has been something of a dead letmaster at Mr. Groff’s mail station said, ter in the law.

“No, you’re going to have to work. I’ll Attempts were made over the last few try to find a replacement for you, but if years to get the U.S. Supreme Court to that doesn’t work, and no one volunteers, revisit Hardison and overrule it, but the reached out to Aaron Streett here at Baker Botts and asked if Baker Botts was interested in taking on this case. We very much were, and so we were the lead appellate counsel throughout the proceedings in the Third Circuit, and we took it all the way up to the U.S. Supreme Court.

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‘‘

Court denied review. However, a couple justices issued dissents from denial of certiorari, and they all pointed out that they were ready and willing to revisit Hardison in an appropriate case. And then in 2023, our case caught the Court’s eyes, and the Court granted review to revisit Hardison.

AA: Whenever you were first approached to do this case, were you thinking about those dissents and how it might be time and this might be the case?

CT: Yes, we definitely were. We read those dissents from denial of certiorari, and we read the opinions in those cases to get a sense of, okay, what was the problem with those cases? Were there vehicle issues? What can we do in the chance we lose at the Third Circuit to preserve a good record for getting the Supreme Court’s attention?

We had a really good record in the trial court and felt that even under Hardison’s de minimis standard, summary judgment should have been granted in our favor, or at a minimum remanded for a trial. So, we were optimistic that we could win at the Third Circuit. But we also planned for the contingency or possibility that we were going to lose in the Third Circuit, and we would be ready to petition the Court for cert at that point.

AA: That was a really good summary of everything about the case. What was your role throughout that process?

CT: I took the first cut at drafting all the briefs in the Third Circuit and the Supreme Court. It was a great experience to work on a very interesting and very important case and to do brainstorming and outlining and figure out how we were going to structure our arguments. So, that was a lot of fun. I also got to argue the case in the Third Circuit, which was my first appellate argument. I’m so very thankful to have had that opportunity through this case.

When we got to the Supreme Court, I kept leading with the brief writing, but Aaron argued at that level. A big part of

the job was getting him ready for the arguments. I was doing a lot of research and coming up with ways to craft answers to questions that we knew we were going to get. So, I wrote additional research memos so that Aaron could review them and be ready to tackle those issues at the argument.

And then during the argument itself, I was present and second chaired. I sat next to Aaron and passed him notes. And when the solicitor general was arguing, we conferred together and with the other two members of our team who were seated at our table to make sure that we hit all the points that we wanted to in our rebuttal period.

We waited a few months after the argument, and we got the decision at the end of June. And it was a very good decision. The case was remanded to the district court to apply the new standard in the first instance. The district court has asked us to file renewed motions for summary judgment in light of the Su-

preme Court’s decision.

AA: So, did the Supreme Court do exactly what you’d asked it to do? Or did the justices modify their ruling in some way differently than you expected?

CT: It was a little different than what we expected, but we got very close to everything that we wanted. The Court had granted review on two issues (1) whether the Court should overrule Hardison’s de minimis standard; and (2) whether undue hardship can be demonstrated by merely showing that an accommodation burdens coworkers rather than the business itself.

On the first question, we asked the Court to just do away with Hardison— overrule it and interpret it in line with every other civil rights statute that has an accommodation provision and uses the term “undue hardship.” The Americans with Disabilities Act is a good example of that. It defines “undue hardship” to mean “significant difficulty or expense”

in light of the conduct of the employer’s operations.4 And so we asked the Court to follow the plain meaning of “undue hardship.”

The solicitor general took an interesting approach and argued that Hardison shouldn’t be overruled and instead just needed to be clarified. Her position was that the de minimis language was “loose language” and the true holding of Hardison was that employers are not obligated to bear substantial costs when accommodating employees. She pointed to footnote 14 in the Hardison opinion, where the Court seems to have suggested the true governing standard was substantial costs and not de minimis costs. We responded that in a vacuum substantial cost sounds pretty good. It doesn’t seem that different from significant difficulty or expense. The issue was the solicitor general wanted to keep some bright-line per se rules, if you will, that an employer never has to pay overtime to find a replacement worker, never has to involun-

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tarily swap the shifts of employees, and other things like that, which would really undercut a substantial cost test and make her formulation a bit hollow.

When we got to the argument, it was very clear that the Court was done with the de minimis standard. It was just a question of what the new standard would be. And when the opinion came down, it was a unanimous 9-0 opinion, and the Court’s holding was that undue hardship means substantial increased costs in relation to the conduct of the employer’s particular business, which sounds a bit like the solicitor general’s formulation.

But, the Court makes very clear that this is a context-dependent inquiry. It’s going to be very fact dependent, and you have to consider every possible accommodation—nothing is out of the realm of possibility. So, involuntary shift swaps, the payment of overtime, anything. The Court said “substantial costs,” which kind of sounds like the solicitor general’s position. But in rejecting her bright-line, hard-and-fast rules and making clear that it’s context dependent, it’s very close to the context-dependent significant difficulty or expense tests that we asked for.

The Court didn’t formally overrule Hardison because the justices said that Hardison actually embraced a substantialcost test and that if you look at footnote 14 and some other features of the opinion, you can see that. That was an interesting rereading of Hardison. For the last 50 years, everyone has understood Hardison to be a de minimis cost test—lower courts, practitioners, academics, professors, everybody, but I guess we all just missed it. We just didn’t read the opinion close enough.

But they found a way to get to the right answer without having to overrule Hardison, and they were able to do it with keeping all nine justices together. I think when they can do that, they’re happy to get everybody on board.

AA: So, they elected to clarify, as opposed to overruling. But they’ve been overruling so much lately, maybe that might have 20 May/June 2024

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played into the decision to phase it that way a little bit?

CT: Yeah, it’s interesting because they haven’t shied away from overruling big precedents. I think, though, that, you know, a couple of things in this kind of new Court over the last few years, they have found ways on big issues that are not necessarily hot button attention grabbing issues, to keep together and rule 9-0 and kind of get to the right outcome. And I think in these days, they’re very happy to do that.

I think just from how argument went, all the justices agreed that there was a better formulation and a right formulation out there for undue hardship. It’s just when it comes to using the word “overrule” some justices would prefer not to do that. And they were able to accommodate everyone’s views and get it all into a 9-0 opinion.

Another interesting kind of feature is that this was an April case, and the opinions for April cases have to be written very quickly and finalized quickly to get things out the door by the end of June when the term ends. And so sometimes that can impact how the Court tackles cases since they are running low on time.

ones that have outcomes that everyone agrees on.

CT: Yeah, this Court’s at an interesting time. And so, you know, I think it’s good that for an issue like this—religious liberty—it’s good to have a unanimous Court and to show that all nine justices are behind it. It just goes to show how wrong the decision in Hardison was. The justices all recognized it and cleared it up.

AA: That’s really nice, though, that they can all kind of get together and figure out a way to make it work that everyone agreed with. I just feel like that’s sometimes rare.

CT: An interesting feature of this term, even though there were some very big split decisions, 6-3 and 5-4, the number of cases that were unanimous was actually higher than usual the last few years.

Also, the Court took less than 60 cases.

I think I read somewhere that’s the least amount of cases like since the Civil War. So, it’s just all very interesting.

Christopher Tutunjian is a litigation senior associate in the Houston office of Baker Botts L.L.P. As a member of the firm’s Appellate Practice Group, he represents clients in federal and state courts of appeals, including the Supreme Court of the United States and the Supreme Court of Texas. Prior to joining Baker Botts, Christopher served as a law clerk to the Honorable Daniel P. Collins of the United States Court of Appeals for the Ninth Circuit.

AA: I’ve heard that, too. That’s interesting that there actually are more cases that were unanimous than usual, because what we tend to hear about are always the cases where it’s a divided court.

So, I guess you just don’t hear about the

AA: It seems like it will just be a stronger case for the future because it’s unanimous. So, I just commend you for being able to have a major influence on the law as such a young associate, and I want to thank you for taking the time to be on Behind the Lines.

CT: My pleasure. Thank you.

Anna Archer serves as an associate editor on The Houston Lawyer editorial board, and she is the host of Behind the Lines: The Houston Lawyer Podcast. She started hosting the podcast in October 2021. Brooksie Boutet was the original host of the podcast.

Endnotes 1. Access to and recent CLE course numbers for recent episodes of Behind the Lines may be found at: https://www.hba. org/?pg=The-Houston-Lawyer-CMTE. 2. 600 U.S. 447 (2023).

3. 432 U.S. 63 (1977).

4. 42 U.S.C. § 12111(10).

What the Bill of Rights Means to Me

F

Introduction by Rachael Thompson

or those of us who have grown up as citizens in the United States, it can be easy to take for granted the freedoms and rights enumerated in the Bill of Rights. We have always lived under the umbrella of freedom and liberty provided by these important rights. But for those naturalized citizens who came to the United States from countries without such guaranteed rights and protections, the Bill of Rights takes on a heightened meaning and importance that we can all learn from and appreciate. The following reflections

from a few of our colleagues who are naturalized citizens provide some valuable perspective on just what the Bill of Rights truly means.

Rachael Thompson is an associate at Winston & Strawn LLP, focusing on complex commercial litigation, energy and environmental matters, and international arbitration. She has served on the editorial board of The Houston Lawyer since 2022.

The Singularity of the American Experience

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By Jill Yaziji

y naturalization ceremony of February 1996 ushered in a desire to study law. I already had a Ph.D. from the University of Texas at Austin, but I wanted to do more than teach literature. I had come from a country of men without laws, and now I had become part of a country of “laws, not men.”1 Having been born and raised in Syria, a country often on the precipice of political turmoil and war, my perspective was different than that of my American friends.

I did not take the rule of law for granted and I felt that much could be done in a democratic system of governance. Law school offered a path into that experience.

When I became a citizen, I had no legal training. I embraced the greatness of my adopted country, but I did not quite understand the singularity of American constitutionalism. The Constitution of the United States and the Bill of Rights were concepts I studied to pass the citizenship test. It would be years before I came to grasp how the rights of American citizens were so ingrained in the American psyche. In early 1947, Eleanor Roosevelt chaired the committee on drafting the Universal Declaration of Human Rights (“UDHR”), aided by P. C. Chang of China and Charles Malik of Lebanon.2 I wondered why the UDHR, proclaimed by the United Nations General Assembly in Paris in 1948,3 remained an unrealized model of the Bill of Rights, enumerated

in the United States almost one and a half centuries earlier.

Both the Bill of Rights and the UDHR were envisioned in the aftermath of wars and great internal strife. Both intended to establish basic inalienable rights for citizens that no government or police force could take away. Both sought to guarantee the freedom of speech, conscience, religion, and equal protection regardless of race, sex, religion, or ethnicity. Yet, while these rights have become enshrined, exercised, and protected in the United

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States, they remain far-fetched, fragile, and fleeting for people around the globe.

So, what were the crucial differences between the Bill of Rights and the UDHR? Why did the former develop into a solid political experience and the latter remain mere concepts in need of realization? I pondered this question, especially in the wake of the strife in Jill Yaziji just after being sworn in.

Syria—where 50% of the population was in the grip of hunger in 2023.4 The answer is multifaceted, with cultural, regional, and politi-

cal nuances. But it fundamentally lies in how conflicts are framed and resolved. The difference lies in the ability of the United States to resolve conflict in a legal manner and the empowerment of an independent judiciary to interpret the law of the land. The Bill of Rights was only a set of principles, until, years later, Marbury v.

Madison established that the Court had the power to invalidate acts of Congress that violated the U.S. Constitution. With Marbury v. Madison, judicial review was born, and with it came the many protections that Americans enjoy today.

Laws are only words on the page in the absence of an independent judiciary to interpret them and a legal system to enforce them. This is the singularity of the American experience.

Jill Yaziji is the principal of Yaziji Law Firm, PLLC and former board member and editor in chief of The Houston Lawyer.

The U.S. Bill of Rights:

A Story of a Ukrainian-Born Attorney

By Anna DeMaggio

This article reflects on the meaning of the U.S. Bill of Rights to an immigrant, who is a Ukrainian-trained and U.S.-licensed attorney.

L

ike most immigrants arriving in the U.S., I have been fascinated by this country’s freedoms.

Eastern Europe’s law is based on the civil code, which leaves less room for economic analysis of the laws. The Soviet regime enhanced the rigidity of the legal system and created draconian penalties and institutions that make the government seem more important than its people. Nevertheless, to this date, Ukrainians continue to fight for their freedoms.

I am a Zaporizhzhya native,5 and freedom is fundamental to me by way of the region’s history.6 Both historic and current events have led Ukrainians to value human rights and freedom, and to not take them lightly. Pylyp Orlyk, a Ukrainian, drafted the first European Constitution in 1710;7 his constitution contains the first mention of an independent jury trial. Ukrainian lands (and people coming with them) were torn between contiguous countries through centuries, though Kyiv was the first and largest settleAnna DeMaggio being sworn in ment of the Slavic tribes and a during a naturalization ceremony. successful governmental entity for a time.8 Kyiv still boasts the magnificent architecture and art of those times.9 At the turn of the 20th century, Ukrainian 22 May/June 2024

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historian and statesman Mykhailo Hrushevsky10 and the dissidents fought for Ukrainian freedom.11 Ukraine was also one of the main forces in the WWII oppression of Nazism.12 The book Red Famine: Stalin’s War on Ukraine by Anne Applebaum also explains why human rights are vital to Ukrainians.13 In the United States, human rights and freedoms are essential to the legal system. The American legal system places human life above all other values. The Preamble of the Constitution says, “We the People.” Diversity is encouraged in all areas of life. This is why professionals from all over the world enjoy the benefits premised on the freedoms of religion, assembly, speech, press, bearing of arms, the right to a speedy impartial trial and jury trial, and to be secure in one’s home, person, and belongings. To me, this means collaborating within the community ethically and based on good faith and equity.

I cherish the hope that someday, the freedoms contained in the Bill of Rights will be available to Ukrainians. In the meantime, I am forever grateful for being a licensed attorney in the U.S. with an opportunity to serve others.

Anna DeMaggio is a Texas- and New Yorkbarred attorney who works as counsel at Orion, where she is responsible for the company’s concrete division. Prior to receiving her Master of Laws degree from the University of Chicago Law School as a Turk’s Fellow, she obtained her Bachelor’s and Master of International Law (equivalent of college and Juris Doctor degrees, respectively) in Kyiv University, Ukraine.

In the Greatest Nation of Immigrants, Civility Must Reign Supreme!

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By John Ngunjiri

tion of the tenets that led to earning it. The United States of America is great, and we must ensure it remains so by doing f the original 12 proposed articles of amendment our part in promoting civility, tolerance, and the submitted to Congress in September rule of law. The Bill of Rights are part of the liv1789, only 10 (Articles 3 through 12) ing Constitution, as they embody the freedoms of made that initial cut and were ratified speech, press, worship, assembly, redress of grievinto the Constitution on December 15, Greatness is not ances; the freedom from unreasonable searches 1791. These ten amendments became what we know given—it must be and seizure; the right to a fair and speedy trial by today as the Bill of Rights.14 Among the axioms guiding this land of the free earned; yet, like an impartial jury of our peers; the freedom from excessive bail or cruel and unusual punishment; towards becoming a stronger union is the rule of human life, it is and the preservation of power of government in, law under a government of integrity, with a passion fleeting and must to, for, and by the People. Our founding fathers, in of patriotism. The law generally reflects and promotes a society’s core values. Traditional norms and be nourished with their own wisdom and judgment, found it so imto bake these rights into the supreme law ideals influence and inform the law with regard to care and protection perative of the land in order to form a more perfect union. what is right and just and what is wrong and unjust. of the tenets that For the rule of law to prevail, civility must remain Laws promote society’s goals of protecting basic human rights, fairness in resolving conflicts, enhancled to earning it.” supreme, and we must unwaveringly defend its operating manual—the U.S. Constitution. ing stability and order, encouraging desired social and economic behavior, and representing the will of the majority John Ngunjiri is an energy and infra(i.e., democracy) while preserving the rights of the minority. structure M&A attorney with Norton Rose Respecting and abiding by the law enable liberty and life to Fulbright US LLP at its Houston office. Prior coexist in harmony and, as is often the case, disregarding the to joining the firm in 2022, John worked as an law results in the actor’s and their victim’s inability to enjoy engineer and capital projects professional for life or liberty.

Exxon Mobil Corporation’s Global Projects The inalienable rights afforded by the Bill of Rights apply to Company. He graduated from the University every person—regardless of their nationality, country of origin, of Houston Law Center with a J.D. and LL.M (Energy, Environ. race, color, ethnicity, creed, religion, gender, sex, sexual orien& Natural Resources) in 2021. tation, sexual identity, education, age, disability, or any other distinguishing characteristic or trait—and must be jealously protected and never be abused. And thus, patriotism calls us to participate in ensuring equal opportunity, tolerance in the face of distinguishing characteristics or traits, and civility and good will for others whose opinions may vary from our own.

The most powerful and natural resource in any undertaking is the human beings themselves, yet as any resource that has been at humanity’s disposal, people continue to be abused and shredded by our selfish and greedy nature. The tapestry of our differences is what makes us unique beings, and it is sheer arrogance to ignore such differences. As a first-generation American, a philosopher, and as an attorney of color, it is not lost to me the toil, unselfish sacrifice, and unbraced courage that the giants before me have endured to pave way for my generation and those to come.

Greatness is not given—it must be earned; yet, like human life, it is fleeting and must be nourished with care and protec-

‘‘

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A New Citizen’s Oath:

The Bill of Rights Through Immigrant Eyes

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By Shannon Quadros

Whether we are advocating for a client’s right to free speech, defending against unreasonable searches and seizures, or enor all but four of the first 40 years of my life, I have suring a fair jury trial, the first 10 amendments are both our been an immigrant. For most of my life, I never had shield and our guide as attorneys. While these are the tools we the right to vote, the general freedom to say things use to protect our clients, they are also a sobering reminder that might challenge the social or political status quo, of the fragile nature of liberty and the or the unqualified right to peperpetual need to protect it. tition the government of the countries The First Amendment’s guarantees I lived in, and I certainly did not have 15 of freedom of speech, religion, and the right to keep and bear arms. assembly are particularly poignant In the summer of 2017, in North to me. I went to a Catholic school in Houston, I took the solemn oath that an Islamic kingdom. My school was marked the culmination of my jourfull of students who did not share my ney to American citizenship. This moCatholic faith. I went from being in ment was not merely a formal ceremoa religious minority to being in the ny, but a profound pledge of allegiance majority just by taking a school bus. to the ideals, Constitution, and laws That change came twice a day. It made of the United States, including the reme acutely aware of how a minority vered Bill of Rights.16 Having already group could feel under the weight of been a practicing attorney by then, I a majority. It also taught me that the had made my allegiance known when fabric of a stable civil society can be I swore to uphold the Constitution of Shannon Quadros (left) poses with the Honorable Gray H. the United States and the State of Tex- Miller and Harris County District Clerk Chris Daniel after woven out of different yarn.

Here in the United States, I believe as as part of the New Lawyer Oath.17 speaking at a naturalization ceremony in 2018. we take for granted that we can peaceably assemble and peIn 2018, I had the great privilege of speaking to new citizens tition our government for redress of grievances. I have witat the Houston naturalization ceremony at the invitation of the nessed and been pricked by the lingering sting of tear gas in Honorable Gray H. Miller, U.S. district judge for the Southern places where citizens do not have such guarantees, and are District of Texas. There, I was able to reflect, as I do here, on a compelled to accept, without question, what their unelected few provisions of the Bill of Rights, both as a new citizen and rulers require. as a guardian of the laws that define them.

Words and ideas transform societies, but they do not develThe Bill of Rights informs every aspect of law practice. op in the dark. I see my role, as a civil litigator, to serve as a conduit for my clients to seek legal redress and make case law, which is law nonetheless, by bringing their words and ideas to light. For it is the words and ideas of ordinary citizens that animate the law and spark change.

Since many immigrants come from countries where government interference into private life is commonplace, the Fourth Amendment’s protection against unjustified searches and seizures is important to them. Especially because in many cases it was easy for the military, police, or paramilitary to seize them or their belongings without even acknowledging what was happening. For the longest time, I could not fathom growing up in a country where I could have the power to say “no” to someone with a badge or where those figures with a badge were obligated to respect that refusal. Now, I find I cannot settle for anything less.

Trial attorneys, whether criminal or civil, find great comfort 24 May/June 2024

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in Amendments VI through VIII of the Constitution. The right to speedy trial, assistance of counsel, jury trial, and the prohibition on cruel and unusual punishment, seem like nothing but common sense to me now. However, even a cursory comparative legal class would show that these rights are often the exception rather than the norm around the world.

The Bill of Rights is more than just an abstract legal document to me. It exemplifies the best of what America stands for: a dedication to liberty, equality, and justice. As a naturalized citizen and attorney, I am aware of both the benefits and duties that come with American citizenship. Every day in my law practice, and as one of the directors representing Harris County on the Board of the State Bar of Texas, I work to protect the ideals inherent in the Bill of Rights, ensuring that they are not merely words on a page, but are embodied in the lives of the clients I represent.

Shannon Quadros is the managing shareholder of Quadros, Migl & Crosby PLLC. His practice focuses on construction and real estate litigation and arbitration. He also regularly serves as a panel mediator and arbitrator with the American Arbitration Association and the BBB. He currently serves as a Director­—Place 6 (Harris County) on the Board of Directors for the State Bar of Texas.

Endnotes 1. JOHN ADAMS, PAPERS OF JOHN ADAMS, Volume 4, 1776.

2. Universal Declaration of Human Rights (1948), Drafting History, United Nations, Last Updated on May 24, 2024, https://research.un.org/en/undhr/draftingcommittee.

3. Universal Declaration of Human Rights, United Nations, available at: https://www.un.org/en/ about-us/universal-declaration-of-human-rights.

4. Half of Syria’s population faces hunger as conflict passes 12-year milestone and earthquakes deepen economic woes, World Food Programme, March 14, 2023, https://www.wfp.org/news/half-syrias-population-faces-hunger-conflict-passes-12-year-milestone-and-earthquakes-deepen.

5. Zaporizhya is a city in southeast Ukraine situated on the banks of the Dnieper River.

6. Allsa Ballard Lin, The Cossacks, Ukraine’s Paradigmatic Warriors, ORIGINS (Jan. 2023), https://origins.osu.edu/read/cossacks-ukraines-paradigmatic-warriors?language_content_ entity=en/..

7. Vitaliia Tomakhiv, Pylyp Orlyk’s Constitution, U.S. UKRAINE FOUNDATION, (Apr. 16, 2024), https://usukraine.org/blog/pylyp-orlyk.

8. Kievan Rus, BRITTANICA, https://www.britannica.com/topic/Kyivan-Rus/ (last visited on April 18, 2024).

9. Ukraine Summary, BRITTANICA, https://www.britannica.com/summary/Ukraine/ (last visited on April 18, 2024).

10. Heiko Muhr, The Man who Anchored Ukraine in the West: Mykhailo Hrushevsky and the Historical Geography of Eastern Europe, BERKELEY LIBRARY UPDATE (Mar. 13, 2022) https://update.lib. berkeley.edu/2022/03/13/the-man-who-anchored-ukraine-in-the-west-mykhailo-hrushevskyand-the-historical-geography-of-eastern-europe/.

11. John (Ivan) Jaworsky, How Important Were the Soviet Dissidents: The Case of Ukraine, ACADEMIA (2020) https://www.academia.edu/43483331/How_Important_Were_the_Soviet_Dissidents_ The_Case_of_Ukraine/.

12. Katya Cengel, The 20th-Century History Behind Russia’s Invasion of Ukraine, SMITHSONIAN MAGAZINE (Mar. 4, 2022), https://www.smithsonianmag.com/history/the-20th-centuryhistory-behind-russias-invasion-of-ukraine-180979672/.

13. ANNE APPELBAUM, RED FAMINE: STALIN’S WAR ON UKRAINE (2017).

14. Congress Submits the First Constitutional Amendments to the States, United States Senate, https:// www.senate.gov/about/origins-foundations/senate-and-constitution/congress-submits-firstamendments-to-states.htm.

15. U.S. Constitution, Amend. I-X. 16. Jessie Kratz, The First Amendments to the U.S. Constitution, NATIONAL ARCHIVES (Sept.

25, 2019), https://prologue.blogs.archives.gov/2019/09/25/the-first-amendments-to-the-u-sconstitution/.

17. New Lawyer Oath, State Bar of Texas, https://www.texasbar.com/AM/Template.cfm?

S e c t ion = Ne w_ L a w ye r_ For m s _ a n d _ Fe e s1& Te m pl at e = /C M /C ont e nt D i s pl a y. cfm&ContentID=29062.

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Benefiting Houston Volunteer Lawyers Monday, November 11, 2024 · 7:00 – 10:00 p.m.

River Oaks Country Club

100% of net proceeds raised for the Harvest Celebration directly benefit pro bono efforts in our community through Houston Volunteer Lawyers

Thank you to the early underwriters of the 75th Annual Harvest Celebration (as of May 21, 2024).

To learn more about sponsoring the Harvest Celebration, visit hba.org/harvest.

Diamond Sponsors

Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright Vinson & Elkins LLP Williams Hart & Boundas, LLP

Ruby Sponsors

AZA Law HBA Litigation Section

Sapphire Sponsors

Blank Rome LLP Harris County District Attorney’s Office Morgan, Lewis & Bockius LLP Winston & Strawn LLP

Gold Sponsors

Beck Redden LLP Hicks Thomas LLP King & Spalding LLP W. Michael and Laurie D. Moreland

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Barry & Sue Abrams Jane & Doug Bland ConocoPhillips Foley & Lardner LLP Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Penny L. & Craig B. Glidden Tom & Debbie Godbold Haynes and Boone, LLP Linda & Tracy Hester Hicks Davis Wynn, P.C. JAMS Jones Day Liskow 26 May/June 2024

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McGuireWoods LLP Ryan & Dawson Shipley Snell Montgomery LLP Wright Close & Barger, LLP Yetter Coleman LLP

Bronze Sponsors

Christian Attar Bissinger, Oshman, Williams & Strasburger LLP Clark Hill Cokinos | Young Coné PLLC Collin & Jacquelyn Cox Dentons US LLP Diggs & Sadler Energy Transfer Fogler, Brar, O’Neil & Gray LLP Gray Reed Hagans David & Tammie Harrell Hon. Kristen Hawkins HBA Energy Law Section HBA Federal Practice Section Houston Lawyer Referral Service, Inc. Jackson Walker LLP Jenkins and Kamin, LLP Kean Miller Mahendru, PC McDowell Hetherington LLP Munsch Hardt Kopf & Harr, P.C. Jeff Paine & Brandon Holcomb, Goldman Sachs Pillsbury Winthrop Shaw Pittman LLP Porter Hedges LLP Reed Smith LLP Reynolds Frizzell LLP Skadden, Arps, Slate, Meagher & Flom LLP South Texas College of Law Houston University of Houston Law Center Womble Bond Dickinson (US) LLP

Crystal Sponsors

Sharon M. Beausoleil Susan L. Bickley & Bob Scott Bragg Law PC Hon. Harvey Brown The Buck Family Fund Hon. Brett & Erin Busby Bush Seyferth PLLC BWA Video, Inc. David Toy Law Firm Mindy & Joshua Davidson Wendy & Alistair Dawson Amy Catherine Dinn Emma Doineau Eric & Kami D’Olive Kaylan & John Dunn Ali Foyt Lynn & Stewart W. Gagnon Roland Garcia Harris Hoss Mediations & Arbitrations David T. Harvin Gregory & Jennifer A. Hasley HBA Juvenile Law Section Jim & Cisselon Nichols Hurd IMS Legal Strategies | Juris Medicus Shae Keefe & Mark Jacobs Sara & Jason Keith Daniella D. Landers Elizabeth & Russell Lewis Tim & Ginnie McConn MehaffyWeber PC Hon. Margaret Mirabal Hon. Daryl L. Moore Nathan Sommers Gibson Dillon PC Christopher Northcutt Jeff & Melissa Oldham Olson & Olson, LLP Connie H. Pfeiffer Hon. Margaret Poissant Quadros Migl & Crosby PLLC Hon. Frank Rynd Travis & Sandy Sales

Quentin & Aerin Smith Brooks & Jacquelyn Tobin Samantha Torres & Jimmy Hollowell Hilary Tyson Sandy & Greg Ulmer Roy & Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP Krisina Zuñiga & Rick Houghton

Friend Sponsors

Hon. Terry Adams Hon. Julie Countiss Sylvia Mayer with S. Mayer Law Hon. Veronica Rivas-Molloy & David Molloy Jane Langdell Robinson Hon. Robert Schaffer Hon. Charles Spain & John Adcock Travis Torrence

Other Sponsors

Anthony & Antoinette Franklyn In honor of Vinh Ho

In-Kind Sponsors

Innovative Legal Solutions

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27

Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Angela Solice, Attorney at Law Archie Law PLLC Baker Botts L.L.P. BakerHostetler LLP Balch & Bingham LLP Beck Redden LLP Blank Rome LLP Bracewell LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Coane & Associates Dentons US LLP Elizabeth S. Pagel, PLLC Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Hasley Scarano, L.L.P. Haynes and Boone, LLP Hunton Andrews Kurth LLP Jackson Walker, LLP Jenkins & Kamin, LLP Jeremy Northum, Attorney at Law

King & Spalding LLP Kirkland & Ellis LLP Law Office of Cindi L. Rickman Law Office of Norma Levine Trusch Law Office of Robert E. Price Law Offices of Omonzusi Imobioh Limbaga Law Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright O’Melveny & Myers LLP Painter Law Firm PLLC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell USA, Inc. Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Sorrels Law Squire Patton Boggs The Ericksen Law Firm The Jurek Law Group, PLLC Travis Bryan Law Group, PLLC Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP

2024 Law Day Contest Winners

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Voices of Democracy

he first place winners of this year’s HBA Law Day Contest were recognized during the 2024 HBA Diversity, Equity and Inclusion Summer Associate Luncheon, held on June 6, 2024 in downtown Houston. Read more about Law Day and the contest on page 40.

HBA Law Day Contest First Place Winners

Photography Contest (Grades 9-12) One Person, One Vote Cruzvania Torres, Blanson CTE High School (Aldine ISD), Teacher: Vanessa Guerra (Second place in the statewide contest)

K-2nd Grade Poster Contest Itzel Ortega, Patterson Elementary (Houston ISD), Teacher: Deborah Coats (Second place in the statewide contest)

Thank you to our volunteers, participants, and partners who helped make our programming possible. Learn more about this year’s HBA’s Law Day activities at hba.org/lawday.

3rd-5th Grade Poster Contest HBA Law Day Contest Winner Lynneah Baldwin poses next to her winning entry with her parents, Lizanne Douglas and Desmond Baldwin, at the HBA Diversity, Equity and Inclusion Summer Associate Luncheon on June 6.

Lynneah also took first place in the statewide contest.

Lynneah Baldwin, Palmer Elementary (Fort Bend ISD), Teacher: Danielle Johnson

Special Needs Photography Contest (Ages 12-22) A Jury is a Team Jonathan Tejada, Carl Wunsche Sr. High School (Spring ISD), Teacher: Lucas Lytle 30 May/June 2024

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Special Needs Poster Contest (Grades 9-12) Corey Brown, Jr., Carl Wunsche Sr. High School (Spring ISD), Teacher: Kevin Jukkola

First Place:

Houston Bar Association Law Day Essay Contest

Legos and Democracy

By Nathan Giang

DeBakey High School, Houston ISD

L

The first place winner of this year’s essay contest was Nathan Giang, a student at DeBakey High School for Health Professions (Houston ISD). Nathan’s teacher was Qian Zhang.

Read his essay below. Nathan also placed third in the statewide contest.

egos are the building block of our democratic system. Just as Lego bricks come in different colors and shapes, our political opinions are diverse, shaped by our lived experiences.

When we snap these lego bricks together—these diverse political opinions—we create a mosaic of voices that collectively produce the beauty in our democratic system. Expressing political views and voting are integral in our democracy because they allow this beautiful mosaic of Legos to come together, creating more refined political policies, sparking creativity, and forging unity—not division—among the American people.

From the very beginning of our country, a mosaic of contrasting opinions led to more refined political policies. During the Constitutional Convention of 1787, delegates from different states gathered to develop a new framework for the United States government. There were differing opinions on the balance of power between the federal government and the states and the rights of individuals. Despite these differences in political opinions, the delegates discussed their issues in a civil manner and resorted to compromise in constructing a new form of government for the United States. Ultimately, the convention drafted and ratified the Constitution—the very document that our government is based on—and the Bill of Rights—the document that gives us the right to vote. The Constitutional Convention illustrates how diverse political opinions can come together to refine the political policies, demonstrating the beauty that is created from a mosaic of distinct voices.

Furthermore, the expression of political opinion spawns creativity. Upton Sinclair was a writer who

centered his career around political critique. After witnessing the squalid conditions in Chicago’s 20th century meatpacking industry, Sinclair wrote The Jungle, a novel criticizing a lack of oversight and regulation from the federal government. Sinclair’s political opinions ignited his own creative expression. In turn, his creative expression spawned advocacy movements for cleaner meatpacking standards across the country. This encouraged more voters to vote for political officials who would enact legislation that put cleaner meat on their dinner tables. In essence, creativity spawns from the expression of political thought, creating political advocacy movements and encouraging citizens to vote.

When people are united among a common political cause or motivation to vote, the American people become more united. At first, this seems contradictory: how do differing political opinions lead to unity? In recent years, the exact opposite seems to be true—political polarization seems to be increasing. However, it’s not the political polarization that matters; it’s the fact that political polarization actually leads to unity. Recent polling data shows that more and more Americans are showing up to vote, most notably, in the 2020 presidential election. The motivating factor behind these Americans is that they care about their issues so much, they are more compelled to vote. This strengthens the value that unites all Americans: democracy. The beauty of democracy lies in disagreement—that when we have differing opinions with each other, we push one another to enact more refined policies, more creative thought, and more unity in our shared support for democracy.

thehoustonlawyer.com

May/June 2024

31

LAWYERS GIVING BACK

HBA Lactation Pod Initiative

A

The Houston Lawyer

Photo credit: Courtesy Office of Harris County Precinct 4 Commissioner Lesley Briones

s one of the HBA’s key initiatives during the 2023-2024 nal Justice Center, Harris County Jury Assembly Room, and the Bar Year, President Diana Gomez partnered with the Harris County Robert W. Hainsworth Law Library.

The lactation pod for the County Harris County District Law Library is funded by a $24,500 Courts, led by Judge grant from the Texas Bar FoundaLatosha Lewis Payne, tion. The lactation pod for the CrimJudge Ravi K. Sandill, Judge Miinal Justice Center is funded by a chael Gomez, and Judge Cheryl El$30,000 grant from the Houston Bar liott Thornton, as well as the Harris Foundation, which is the charitable County Commissioners Court, led arm of the HBA.*

by Commissioner Lesley Briones, “The Houston Bar Foundation is the Administrative Office of the proud to support such an important District Courts of Harris County, access to justice initiative,” said HBF and the Office of the County En(L to R) Judge Cheryl Elliott Thornton, HBA Gender Fairness Committee Chair Linda Hester. “We are thrilled gineer to install lactation pods in Co-chair and judge of the 164th District Court; Stephanie Noble, HBA the Harris County Court Complex. Gender Fairness Committee Co-chair and partner at Vinson & Elkins to support this lactation pod with The first lactation pod opened at the LLP; Harris County Commissioner Lesley Briones, Precinct 4; Judge Ravi funds from the Foundation’s new K. Sandill, judge of the 127th District Court; Judge Latosha Lewis Payne, Harris County Civil Courthouse on judge of the 55th District Court; and 2023-2024 HBA President Diana annual grant program, established Gomez, pose as they are about to cut the ribbon to officially open the to broaden the Foundation’s impact, May 8, 2024. which is dedicated to the Houston The HBA led the fundraising ef- Mamava XL Lactation Pod at the Harris County Civil Courthouse. community.” forts to purchase the lactation pods.

Stephanie Noble is a co-chair of These efforts were spearheaded the HBA Gender Fairness Comby the HBA’s Gender Fairness Committee and a partner at Vinson & mittee.

Elkins, which generously donated HBA President Diana Gomez said funds for the initiative. this is a crucial access to justice “This is a meaningful milestone initiative that will make a material for our legal community, not only difference in the daily lives of many because mothers now have much young mothers in the legal profession HBA Gender Fairness Committee co-chairs Carter Dugan, Judge Cheryl needed access to lactation spaces in and greater Houston community.

Elliott Thornton, and Stephanie Noble pose with 2023-2024 HBA Presi“As a mother, an attorney, and dent Diana Gomez in front of the lactation pod in the Harris County Civil our courthouses, but also because the Houston Bar came together to president of the Houston Bar As- Courthouse on May 8, 2024. identify and address a need. Support sociation, I am incredibly proud to came from everywhere, through join our partners in unveiling the firms, local groups, and individuals. very first lactation pod at the HarIt’s lovely to see our legal communiris County Civil Courthouse,” said ty banding together to make lasting Gomez. “These lactation pods unchange.” derscore the importance of women The HBA’s partnership with Harris in the legal profession and sends the County entities to bring the lactation message that women are welcome pod initiative to fruition was recently and belong in the courthouse.” recognized by the 2024 State Bar of In addition to the funds raised for Harris County Commissioner Lesley Briones presents a certificate to Texas Stars of Texas Bars Award for the pod being installed at the Harmembers of the HBA. (L to R: Harris County Commissioner Lesley Briones, ris County Civil Courthouse, the HBA Gender Fairness Committee Co-chair Judge Cheryl Elliott Thornton, Outstanding Partnership.

Houston Bar Association obtained funding for lactation pods to be installed in the Harris County Crimi32 May/June 2024

2023-2024 HBA President Diana Gomez, HBA Gender Fairness Committee Co-chair Stephanie Noble, former HBA Executive Director Mindy G. Davidson, HBA Associate Executive Director Ashley Gagnon Steinger, and HBA Marketing and Communications Director Maggie Martin).

thehoustonlawyer.com

*All HBA members are members of the Houston Bar Foundation. Support the Foundation by joining our Fellows program today at hba.org.

LAWYERS GIVING BACK

Thank You! The Houston Bar Association would like to recognize the following firms, groups, and individuals who donated to this important access to justice initiative. $30,000 and above

Gregory Cokinos/Cokinos Young

Kelli Norfleet

Houston Bar Foundation

Judge Tanya Garrison

Courtney Palm

Harris County Attorney

Julie and Tom Pradel

Christian D. Menefee

The Greenwood Prather

$20,000 and above Texas Bar Foundation

Catherine Hounfodji Attorney Stefanie M. Gonzalez

$15,000 and above Vinson & Elkins LLP

Quintero Quadros Migl & Crosby PLLC

Law Firm PC Robin Raasch Emery Richards Denise Scofield Re’Necia Sherald

$5,000 and above

Other

Ashley Gagnon Steininger

Beck Redden LLP

Amar Raval P.C.

Jessica Hart Steinmann

Mindy and Joshua Davidson

Anna Archer

Kaylen Strench

Haynes & Boone LLP

Valisa Berber-Thayer

Amy Dunn Taylor

Brooksie Bonvillain Boutet

Donna Thomisee

$2,500 and above

Melanie Bragg, Bragg Law

Judge Cheryl Elliott Thornton,

Baker Botts L.L.P.

Natasha Breaux

Chamberlain Hrdlicka

Lauren Brogdon

Samantha Torres

Pillsbury Winthrop Shaw

Ellen Conley

Monica Uddin

Kate David - Husch Blackwell

Roy and Dominique Varner

Susman Godfrey LLP

Kaitlyn Dawson

Vasquez Waite PLLC

Winston Strawn LLP

Attorney Donald Wyatt PC

Brittany Ringel Walton

Judge Keith P. Ellison

Jordan Warshauer

$1,000 and above

Caite Irene Evans

Tiffany Santhavi Watts

Andrews Myers

Polly Fohn

Krisina Zuñiga

BakerHostetler LLP

Laura Gibson

Harris County Public Defender’s

Diana Gomez

It is particularly special to recognize

Morgan Haenchen

that all of the current and former

HBA Gender Fairness Committee

Kelly E. Hanen

women presidents of the HBA and

Hughes Watters & Askanase, LLP

Jennifer A. Hasley

HYLA came together to support this

Lynne Liberato

Laura Leckman Hedge

project.

Kristin Kruse Lotz

Fraser Holmes

LyondellBasell

Richard T. Howell, Jr.

Porter Hedges LLP

Phillip R. Livingston

Brooks Tobin and Jacquelyn

Stephanie Lucie

Pittman LLP

Office

Rex Tobin Yetter Coleman LLP

164th Civil District Court

Photo credit: Courtesy Office of Harris County Precinct 4 Commissioner Lesley Briones

Kim Phuong Mai Brittny Curry Mandarino McCarthy Arntz ADR

$500 and above

Shayne and Hon. David Newell

AZA: Ahmad, Zavitsanos & Mensing

Stephanie L. Noble thehoustonlawyer.com

May/June 2024

33

LAW IN THE FAMILY

The Houston Lawyer

R

The Sorrels Family

andy Sorrels and Alexandra Farias-Sorrels, both first-generation lawyers, are the husband/wife founders of Sorrels Law. At six years old, Alex set her sights on attending law school. Alex’s parents encouraged her to be either “a lawyer or a doctor,” because in their eyes, those careers were the epitome of success.

Alex’s education was heavily influenced by her paternal grandmother, who was Alex’s elementary school principal at HISD’s Thomas Jefferson Elementary.

Alex’s maternal grandmother, a migrant farm worker from Mexico, was a single mother of eight children. Although not traditionally educated, Alex’s grandmother taught her invaluable principles and lessons about honesty, work ethic, sacrifice, family, and the Christian faith. She did not speak English, which is how Alex learned to speak Spanish fluently.

Alex graduated with honors from the University of Miami for her undergraduate degree, and with honors from the University of Miami School of Law. She worked at the Supreme Court of Texas as a briefing attorney, clerking for the Honorable David Medina, before going into Big Law at Morgan Lewis & Bockius in Houston.

Randy’s father was in the U.S. Army. His parents encouraged Randy to chase his dreams, and by high school he focused on becoming a lawyer. Randy went to Houston Christian University on a soccer scholarship and graduated with honors. After graduating from South Texas College of Law Houston (with honors), Randy started his career at Fulbright & Jaworski as a defense lawyer. Three years later, he switched sides of the docket. In 2021, he and Alex started Sorrels Law. The firm specializes in plaintiffs’ personal injury and business litigation.

Now, with over 20 lawyers, Sorrels Law has offices in Houston, Austin, and Dallas.

The Sorrels have six children–with many connections to the legal field–with the two youngest (ages five and one-year-old) still undecided.

34 May/June 2024

thehoustonlawyer.com

Darby Sorrels decided to become a lawyer while attending St. Agnes Academy. After completing her degree at Baylor University (Honors College), Darby attended the University of Texas School of Law, where she was the managing editor of the Texas Journal of Oil, Gas and Energy Law. Today, Darby is an energy transactions associate at Haynes and Boone in Houston.

Garrett Sorrels–Darby’s twin brother–focused in on law while on the debate team at St. Thomas High School. He also attended Baylor University and the University of Texas School of Law, where he decided to take the transactional law route in the practice. He met his fiancé, Kamryn McPike, at UT, and they now live in Houston where Garrett is the associate general counsel for Advanced Diagnostics, handling commercial matters in the healthcare and hospitality fields.

Kam and Garrett will be married in November 2024.

Logan Burke married Randy’s oldest daughter, Ashley. He quickly knew he wanted to become an attorney while double majoring in business and history at Baylor University. Logan graduated from South Texas College of Law Houston and went to work at Kane Russell Coleman Logan. Today, he is a senior director in the Houston office, where he defends and prosecutes a wide variety of civil lawsuits, including catastrophic personal injury, commercial, and business torts cases.

Kam McPike realized she wanted to be a lawyer while working with FTI Consulting in Chicago. Her father, an appellate attorney in Chicago, was thrilled. Kam’s undergraduate degree is from Washington and Lee University, and she graduated from the University of Texas School of Law–where she met Garrett during their 1L orientation. Kam is an associate at Akin Gump Strauss Hauer & Feld, where she specializes in energy transition projects and climate policy/regulatory compliance.

Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Buck Keenan LLP Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Dobrowski Stafford LLP Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Gordon Rees Scully & Mansukhani, LLP Hagans Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Jackson Lewis P.C. Jenkins & Kamin, LLP Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne Kean Miller Kilpatrick Townsend & Stockton LLP Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP

Liskow McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, LLP Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane Sponsel Miller Greenberg PLLC Stuart PC Taunton Snyder & Parish Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP

West Mermis Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart & Boundas, LLP Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Bradley Arant Boult Cummings LLP Bush & Ramirez, PLLC Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom LLP McDowell & Hetherington LLP Wilson Cribbs & Goren PC Yetter Coleman LLP Firms of 50-99 Attorneys AZA Law BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker Morgan, Lewis & Bockius LLP Susman Godfrey L.L.P. Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP

Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Lone Star Legal Aid Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals Local Bar Association Boards of Directors Hispanic Bar Association of Houston Houston Young Lawyers Association

OFF THE RECORD

Hee-Jin Chang:

On Your Mark, Get Set, Litigate

A

The Houston Lawyer

By Ciara Perritano

two-time Olympian, former Texas Longhorn swimlic policy in 2013. Chang rounded out her academic career at mer (or “swammer,” as they call themselves), toddlerthe University of Houston School of Law and graduated with mom, and litigator, Hee-Jin Chang is no stranger to a her J.D. in 2016. She is currently a litigator at Spence, Desenberg high-pressure environment. As the Paris 2024 & Lee, PLLC. Olympics commence, I took the opportunity How does the world’s bigto speak with Chang about her impressive Olympic past, gest stage compare to the life, and litigation career. courtroom? Litigation proChang’s swimming career began when her mom envides Chang with the adrenarolled her in swimming at about six years old. Chang line rush of competing in the needed an outlet for her abundance of energy. Although pool while simultaneously Chang expressed interest in trying allowing her to advocate for Hee-Jin Chang swimming. something more daring, like rock her clients. Chang attributed climbing, her mom opted for a safer, many of her academic and professionnon-contact sport—in hindsight, her al successes to her athletic habits. For mom was onto something.

Chang, entering the courtroom is simiWhen asked when she realized she lar to lining up behind the pool blocks. was “good” at swimming, Chang modShe compared trial strategy to that of estly answered, “probably when I made preparing for a big meet. The key to the Olympic team.” I laughed at this success both in the courtroom and in response, as surely she knew she was the pool? Preparation, preparation, good at the sport prior to appearing at preparation. the Olympics. She explained that she Above all, however, Chang believes just loved the sport and always wanted that her biggest and most rewarding to be in the pool. She recalled a childchallenge has been her newest role: hood story when she demanded to working mom. Even Olympic-level compete at a swim meet despite havtraining does not compare to practicing a high fever. Her parents told her ing law with a toddler. Chang wants she needed to rest, but she insisted on attorney moms to know that workracing. She excelled at the meet despite ing and being a mother is doable, but the fever. She would soon realize that as cliché as it is, it takes her love for the sport would lead to a(n) (Olympic) village.

Olympic-qualifying times.

An Olympian’s advice to At just 13 years old, Chang qualified for her first Olympics, moms...don’t be afraid to representing South Korea in the 2000 Sydney Olympics. She ask for help at work and competed in the 50-meter freestyle, 100-meter freestyle, and at home. Although you 4x100-meter medley relay. Chang returned to the 2008 Olymcan’t do it all, you can abpics in Beijing and competed again in the 50-meter freestyle solutely do it. and 100-meter freestyle.

Ciara Perritano is Despite Chang’s extraordinary athletic career, a future in currently a business litigation associate at Winstead PC advocacy was always in the back of her mind. Chang swam and enjoys highlighting the accomplishments of her professionally after graduating from the University of Texas at talented friends. She is on the editorial board of The Austin in 2009. In 2011, she set aside the goggles and attended Houston Lawyer.

Georgetown University, where she received her master’s in pub36 May/June 2024

thehoustonlawyer.com

A Profile

in pro f e s s io n a l i s m

I

The Honorable Keith P. Ellison

U.S. District Judge for the Southern District of Texas Recipient of the 2024 Justice Eugene A. Cook Professionalism Award

learned the meaning of professionalism before I even knew of the word.

When I was quite young, I heard an old-time Washingtonian speak of the last days on the Supreme Court of justices John Marshall Harlan II and Hugo Lafayette Black. The year was 1971 and, by then, both men were having more bad days than good days.

Justice Harlan was almost completely blind, though he remained strong of frame. Justice Black, by contrast, had eyesight that was true, but had grown quite feeble. Each evening around 6:30, these two old soldiers—veterans of the First World War—could be seen making their way through the marbled corridors of the Court toward their waiting rides. Justice Harlan’s strong right arm was a crutch for Justice Black. Justice Black’s bright blue eyes served also for his unsighted brother.

They waved aside the many proffers of help from law clerks and court security officers. They wanted to make it on their own. Their day’s work was done. Their life’s work was almost done.

And they were together. They were together not because they had been in constant agreement on the work of the Court. In truth, they had seldom agreed. They disagreed throughout the 1950s and 1960s on the long-running incorporation debate. And, they had disagreed that very summer on the Pentagon Papers case. They were together because each had a granite commitment to the rule of law, and abiding respect for one another’s conscientious, though conflicting, interpretation of it.

Each man died before the year was out. They are buried near one another in Arlington National Cemetery.

But their final days provided the template for professionalism. After the last brief has been filed, after the last argument has been heard, we must come together as colleagues. Our relationship not only undiminished, but actually enhanced by, the process we have been through.

This goal becomes increasingly important as hard feelings and even enmity dominate so much of public life. To provide an exemplar of professionalism becomes our challenge and our mission.

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A Profile

in pro f e s s io n a l i s m

W

Christopher L. Tritico Tritico Rainey, PLLC

Recipient of the 2024 Justice Eugene A. Cook Professionalism Award

hen I was a young boy and extending through my entire life, my dad always said be nice to everyone you come across. He exemplified this throughout his life. Dad lived 92 years with a smile on his face. I never once heard him say a negative word to anyone, even to those who were being negative to him. It is with this backdrop that I started my career.

My first teacher termination hearing was against Kelly Frels and Janet Horton. At that time, I had been a lawyer for just over a year. I had no earthly idea what I was doing or what the process was, I had never been to a school board meeting. Kelly saw that look of utter terror in my eyes. He pulled me aside and explained the process to me. He was kind and friendly…then they kicked my butt.

I believe like those who showed me, that we can get so much more for our clients by being the biggest professional in every room we are in. It means being nice to everyone, even those who are unkind to you. It means helping those who can’t help themselves. It means giving back.

Professionalism means helping a young lawyer struggling through their first trial or deposition. Sitting with them afterwards and telling them what they can do better. It means reaching out to a friend who is struggling and in need of assistance.

It means standing up for that which you believe in, all the time, every time.

It has been my privilege for 36 years to stand up for our Constitution. I have spent every day of my career proud of what I do and how I do it.

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COMMITTEE SPOTLIGHT

The Law Week Committee:

L

Engaging the Bar with Houston’s Youths

The Houston Lawyer

By Chris Ainsworth

aw Day is a designated national holiday that occurs annually on May 1. Since 1958, Law Day has been sponsored and promoted by the American Bar Association and the Houston Bar Association. The HBA’s Law Week Committee works to sponsor activities for Law Day by engaging youths in the values of the legal profession through a series of contests and by fostering dialogues between legal professionals and youths.

One of the cornerstone initiatives of the Law Week Committee is its annual Law Day Contest, which invites students to express their creativity and engage with important legal and civic themes through art, photography, and editorial writing.

This year’s theme, “Voices of Democracy,” prompts students to explain or depict the value of voting and of expressing political views within our democratic system. Previous themes have included “Civics, Civility, and Collaboration” and “The Constitution in Times of Change.”

Members of the Law Week Committee promote these contests among parents and educators. Members of the committee are also asked to help recruit judges for the contests and to serve as judges themselves.

Divided into different age brackets, with special categories for students with special needs, the contests offer cash prizes to winners and their teachers. The top entries are entered into the State Bar of Texas’ Law Day Contest, where they have achieved significant success. Last year, HBA-sponsored entries placed in four of the seven statewide competitions, winning first place in three categories. Those participants won scholarships in addition to the cash prizes awarded in the local competition.

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This year’s awards were presented at the HBA’s Diversity, Equity and Inclusion Summer Association Luncheon on June 6. Photos of this year’s winners and the winning essay are published in this issue on pages 30-31.

In addition to the Law Day Contest, the Law Week Committee has organized a dialogue program that brings judges and attorneys into schools to explain the role of judges and the rules by which judges are bound—all to hopefully demystify the legal system. The American Bar Association helpfully provides lesson plans on various topics, such as freedom of speech, which can be adapted for use in these dialogues. Participants in these dialogues have remarked that the teachers and students have been very receptive and have engaged in lively discussion, with one such session even resembling a law school class.

Beyond its specific programs, the Law Week Committee serves as a reminder to its members of the broader purpose and values of their profession. Committee members witness youth engaging with concepts such as democracy, freedom of speech, and the rule of law. In the midst of the day-to-day minutiae of law practice, service in the Law Week Committee affords members a reminder of the role we play in society and an opportunity to ground ourselves in the values of our profession.

Chris Ainsworth is an assistant district attorney in the Grand Jury Division of the Harris County District Attorney’s Office. He is a 2023-2024 co-chair of the Law Week Committee, along with Simone Bray of the Harris County Public Defender’s Office, and Nicole Su of Cozen O’Connor.

Section Spotlight

The Commercial and Consumer Law Section:

T

Renewing its Commitment to Engagement and Education

By Brian Staley

he Houston Bar Association’s Commercial and Con• “I Need to Investigate What?! That’s Gross (and Other sumer Law Section is made up of hundreds of members Legal Developments Regarding FCRA Investigations)” prefrom state government agencies to large firms and solo sented by Sabrina Neff, equity partner at Husch Blackwell, practitioners. Our members come from a wide range LLP; and of backgrounds and practice in a variety of subjects • “Residential Evictions” presented by Brian Cweren, of ranging from creditor’s rights, Cweren Law Firm. consumer defense, financial regulation, business litigation, comPersonally, I would like to thank mercial collections, community our officers, Vice Chair Jonathan association law, landlord-tenant Clark of Hoover Slovacek LLP and law, commercial leasing, and Secretary-Treasurer Don Turbymore. The broad and varied backfill of Devlin, Naylor & Turbyfill, ground and practice areas always PLLC, for supporting me over the makes for lively and informative past year in returning the section discussions at our luncheons. to activity after the hiatus caused The section hosts a monthly by the pandemic. Our incoming in-person CLE lunch featuring officers for 2024-2025 are Chair a variety of informed and expePeter Newman of Midland Credit rienced practitioners presenting Management, Inc., Vice Chair on a topic in their area of experElias Yazbeck of McGinnis Lotise, followed by a question and chridge, and Secretary-Treasurer discussion format. Our speakers Benjamin Sanchez of Sanchez Law (L to R) Secretary-Treasurer Don Turbyfill, incoming Vice Chair Elias over the past year have covered Yazbeck, attorney Sabrina Neff, Chair Brian Staley, and incoming Firm. I look forward to another various topics of interest to our Chair Peter Newman. great year for the section under members, including: their leadership. Next year, the section plans to continue its CLE • “Homeowners Associations: Consumer Protections & lunches, but is also planning a social event for its members and Current Trends” presented by Jonathan Clark of Hoover a joint CLE event with the Texas Creditors Bar Association.

Slovacek LLP; • “Civil Procedure in Justice Courts” presented by David Brian Staley is senior staff counsel at the Houston office of MidPatronella, retired justice of the peace, Precinct 1, Place 2; land Credit Management, Inc, an Encore Capital Group company.

• “The Debtor Perspective on Judgment Collection” presentLicensed in Texas, Arizona, and Colorado, he practices in the area ed by attorney Rich Tomlinson; of creditor’s rights, collections, and civil litigation. Brian is the • “All About the Harris County Civil Courts at Law” pre2023-2024 chair of the Commercial and Consumer Law Section, sented by Judge Jim Kovach, presiding judge of Harris a fellow of the Texas Bar Foundation, and a member of the Texas County Civil Court at Law No. 2; Creditor’s Bar Association. thehoustonlawyer.com

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LEGAL TRENDS

the delay caused, but shed some light on the mandate, and the clerk will enter an Hold Your Horses: its nature: order withholding the mandate,” but “the Especially where no petition for reidentity of the judge will not be disclosed The Fifth Circuit hearing has been filed, the attorneys in the order.” and the public have no way of knowing Though this revised IOP will not elimiAmends Its Mandate why a case is lingering or whether the nate the secrecy shielding which judge absence of a mandate is intentional or a has requested the hold or for what reaclerical oversight. A judge may place an son, it should at least provide some comInternal Operating internal, confidential hold on the manfort to involved litigants in knowing why date (which is never shown on the pubthere has been an unexpected delay beProcedures lic docket), either with or without a retween the court’s judgment and order and 7

O

The Houston Lawyer

By Lane Morrison

n February 5, 2024, the Fifth Circuit amended its Internal Operating Procedures (“IOP”) to make a little clearer one of its biggest open secrets. For some time, there has been an unwritten (at least to the public) rule that any sitting Fifth Circuit judge could place an internal, confidential hold on the mandate following the panel’s opinion and judgment issuance, even if no party had requested rehearing or a motion to stay the mandate. Notably, under the Federal Rules of Appellate Procedure, the circuit court must issue its mandate seven days “after the time to file a petition for rehearing expires, or [seven] days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later” and the court “may shorten or extend the time by order.”1 So, if a Fifth Circuit judge requested that the mandate be held, affected litigants were often left to wonder—when weeks and even months passed after the court’s opinion and judgment with no mandate—what was the reason for the delay?

In 2023, Judge Smith became one of the few (if not only) judges to ever write about the practice. In United States v.

Ramirez, in dissenting from a denial of a rehearing en banc, Judge Smith highlighted that the court’s mandate did not issue for more than four months after the original majority opinion and dissent.2 He noted the “considerable confusion” 42 May/June 2024

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hearing petition. A matter can linger in seeming inaction for weeks or months until the court resolves it either by an en banc poll or the judge’s withdrawal of his or her hold on the mandate.3 The court has long acknowledged its inherent ability to “shorten or enlarge the specified period” in which it must issue a mandate and that there is no requirement in Rule 41 that such a decision “be formal, written, or that the parties be given notice of it, though this might be desirable.”4 And Judge Smith noted in Ramirez that the practice reflects “the fact that this court takes its work seriously and carefully scrutinizes panel opinions, irrespective of whether the losing side seeks rehearing.”5 But the court has decided to make the practice a bit more transparent.

Despite the absence of any requirement in Rule 41 to do so, the court has decided to at least notify the parties of when an internal mandate hold has occurred. The court’s amended Rule 41 IOP now briefly explains a judges’ ability to hold mandates in certain situations: “Any active Fifth Circuit Judge may request that the court withhold issuance of its mandate.

This is often done to resolve differences between the judge who requests that the mandate be withheld and the panel or to request that the court be polled on whether rehearing en banc should be granted whether or not a petition for rehearing en banc has been filed by a party.”6 Under the court’s new IOP, “if a mandate is withheld, the [withholding] judge shall notify the clerk to withhold

its mandate.

Lane Morrison is a senior litigation associate at Bush Seyferth PLLC. He focuses his practice on product liability and class action defense and is heavily involved in drafting and arguing critical trial motions and appeals. He is the committee and section spotlight editor for The Houston Lawyer.

Endnotes

1. Fed. R. App. P. 41(b).

2. 82 F.4th 384, 386 (5th Cir. 2023) (Smith, J. dissenting).

3. Id. at 386 n.3.

4. Sparks v. Duval Cnty. Ranch Co., Inc., 604 F.2d 976, 979 (5th Cir. 1979), aff’d sub nom. Dennis v. Sparks, 449 U.S. 24 (1980).

5. 82 F.4th at 386 n.3.

6. Rules and Internal Operating Procedures of the United States Court of Appeals for the Fifth Circuit, at 38.

7. Id.

New Constitutional Challenges Piling Up for the NLRB

A

By Paul M. Knettel

novel strategy has emerged in response to complaints of unfair labor practices by the National Labor Relations Board (“NLRB”)—challenging the constitutional authority of the NLRB itself.

The NLRB was created in 1935 and enforces the National Labor Relations Act (“NLRA”), which generally protects em-

LEGAL TRENDS

ployees’ ability to organize labor unions, collectively bargain with their employers, and engage in other protected concerted activity relating to their working conditions. The NLRA also limits practices by labor organizations and their members that obstruct commerce and lead to industrial unrest.1 The NLRB generally consists of a five-person board and a general counsel, the members of which are appointed by the U.S. president with the consent of the senate. The board is a quasi-judicial body that reviews decisions of the agency’s administrative law judges (“ALJs”) relating to unfair labor practice charges—claims that either employers or labor unions have violated the NLRA—and petitions for elections related to union representation. The board also engages in rulemaking to interpret and carry out the NLRA. The general counsel is responsible for the investigation and prosecution of unfair labor practice charges.2 Recently, in response to unfair labor practice charges filed against them, companies are challenging the NLRB’s constitutionality and authority. Specifically, companies have argued that the NLRB’s structure is unconstitutional because it places limits on the president’s ability to fire its board members and ALJs. According to the challengers, these limits violate the U.S. Constitution’s separation of powers doctrine, as the board members and ALJs exercise substantial executive branch powers in carrying out the NLRA but are not sufficiently accountable to the head of that branch, the president.3 Another challenge being lodged against the NLRB is that its proceedings violate companies’ rights to due process under the Constitution. The due process arguments stem from allegations that NLRB’s board members both approve agency litigators’ requests to seek injunctive relief for alleged unfair labor practices (known as Section 10(j) relief), and also preside over board proceedings

related to the same alleged unfair labor practices. The challengers argue that this means the board acts as both prosecutor and adjudicator in the same case, which the Supreme Court has held violates the Constitution’s due process guarantee.4 Additionally, companies have challenged the NLRB’s authority as a quasijudicial body that makes decisions about whether unfair labor practices have occurred and, if so, determines what the remedies for such unfair labor practices should be—arguing that this authority violates the right to a trial by jury under the Seventh Amendment to the Constitution. Although the right to a jury trial does not generally apply to suits seeking equitable relief, the companies argue that the NLRB has inappropriately expanded the remedies that may be awarded in unfair labor practice cases to include monetary damages that, therefore, trigger their rights to a jury trial.5 Finally, a challenge has been lodged that the NLRB general counsel’s interpretation of the NLRA and requests to the board violate the Constitution under the major questions doctrine and associated principles of non-delegation. These doctrines essentially require Congress to speak clearly before federal agencies are allowed to make decisions that have significant economic or political impacts.6 The NLRB has been around for a long time, and the Supreme Court previously upheld the NLRA’s constitutionality in its 1937 NLRB v. Jones & Laughlin Steel Corporation decision. But it is still not overly surprising to see these recent challenges to the agency’s authority.

The NLRB under the Biden administration has been quite assertive, issuing thousands of unfair labor practice complaints,7 and overturning several of its own precedents in favor of much more employee- and union-friendly standards.8 Additionally, the Supreme Court currently has a conservative majority that has been willing to curtail

federal agency powers, likely emboldening companies to challenge longstanding institutions and processes.9 Of course, the current challenges to the NLRB’s authority have not yet been decided by the Supreme Court, so whether any of these arguments will be ultimately successful remains to be seen.

Paul M. Knettel is a labor and employment attorney at BakerHostetler LLP. Endnotes

1. 29 U.S.C. § 151.

2. NATIONAL LABOR RELATIONS BOARD, Who We Are, https://www.nlrb.gov/about-nlrb/who-we-are.

3. Complaint for Declaratory and Injunctive Relief, Space Exploration Technologies Corp. v. Nat’l Lab. Rel. Bd., et al., in the U.S. District Court for the Western District of Texas, Waco, Civ. No. 24-421, available at https://s3.documentcloud.org/documents/24438708/ space_exploration_technologies_v_national_labor_ relations_board__txsdce-24-00001__00010.pdf.

4. Id. 5. Id. 6. Amazon.com Services LLC’s Answer to Second Amended Consolidated Complaint, National Labor Relations Board, available at https://aboutblaw.com/ bcMF. 7. NATIONAL LABOR RELATIONS BOARD, Unfair Labor Practice Charges Filed Each Year, https://www. nlrb.gov/reports/nlrb-case-activity-reports/unfairlabor-practice-cases/intake/unfair-labor-practicecharges.

8. Braden Campbell, Biden-Era NLRB Faces Make-OrBreak Year In 2024, LAW360 (Jan. 1, 2024), https:// www.law360.com/employment-authority/articles/ 1779201.

9. John Kruzel, Explainer: How is the ‘war on the administrative state’ faring at the Supreme Court?, REUTERS (Jan. 19, 2024), https://www.reuters.com/ legal/how-is-war-administrative-state-faring-supremecourt-2024-01-19/.

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Media Reviews

The Original Meaning of the 14th Amendment: Its Letter and Spirit

By Evan D. Bernick and Randy E. Barnett Published by Belknap Press: An Imprint of Harvard University Press Reviewed by David T. López

The Houston Lawyer The Houston Lawyer

A

dopted three years after the end of the Civil War, the Fourteenth Amendment has been, and continues to be, vitally significant in our time. It has been applied or interpreted in issues as diverse as determining rights to samesex marriage and abortion, as well as the pending potential disqualification of a presidential candidate.

Constitutional law professors Randy E. Barnett and Evan Bernick posit that such application and interpretation must give due consideration to the origin of the amendment in the context of debates and arguments about the Constitution before the Civil War’s abolishment of slavery.

Barnett is the Patrick Hotung Professor of Constitutional Law at Georgetown University Law Center and director of the Georgetown Center for the Constitution, while Bernick is an assistant professor at Northern Illinois University.

With fair and objective reliance on primary sources, Barnett and Bernick trace the history of the amendment from the original arguments against slavery to the Declaration of Independence and the common law. After the abolition of slavery failed to end repression and inequality in the South, the amendment sought to enshrine in the Constitution 44 May/June 2024

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originated in the writings of radical ana plethora of important rights, including tislavery scholars about citizenship and the well-known rights to citizenship, votwas subsequently adopted by activists. ing, due process, and equal protection, as Accordingly, they suggest judges should well as lesser emphasized rights, such as interpret its provisions with reference to the right to regulate representation and the Civil Rights Act of 1866 and the postthe disqualification from public office of war provisions in the Constitution. individuals who foster or participate in To properly apply the due process an insurrection against the nation. clause legislation, the authors suggest, The book has merited praise from naone must establish laws that are necessary tional publications, legal scholars, and and proper and give full consideration to historians. In particular, it has been recany deprivation of a person’s life, liberty, ognized for its even-handed exploration or property. They must ensure of the principles underthat such legislation’s applicagirding the amendment, tion is consistent with constisuggesting instances in tutionally proper ends—that which the Supreme Court The authors suggest is, to congressional power that did not appear to fully consider the letter and inthat substantive is limited to its few, specificaltent of the language, and due process should ly defined purposes.

The equal protection proposing practical docbe interpreted to clause, although intended to trines for implementing key provisions. protect fundamental address any denial by a state of the protection of its laws, The authors rights beyond mere also encompasses discriminasuggest that substantive due proprocedural fairness, tion in the provision of such cess should be inbalancing individual protection to some while denying it to others. Its applicaterpreted to prorights and governtion confronts the problem of tect fundamental rights beyond ment interests, and generality, and it is suggested that its implementation must mere procedural preventing state law deal with “antisubjugation,” fairness, balancing individual from infringing on that is, application that by its rights and govprivacy, liberty, generality encompasses prior generalization. ernment interests, and and property.”

The book deals extensively preventing state law from with these concepts in proinfringing on privacy, liberposing the spirit of the provisions of ty, and property. the amendment, with fair and objective To fully understand the original description and reference to case law. It meaning of the Fourteenth Amendment, provides a firm basis for a better underthey insist, one must necessarily interstanding and improved application of a pret constitutional provisions based on key protector of human rights. It is well the framers’ purposes, debates, and hisworth a careful read and utilization as a torical context in light of contemporary cogent and useful reference. issues. To promote such analysis, they separately and thoroughly examine each of the clauses and how they might be apDavid T. López is a long-time litigator and plied. domestic and international arbitrator and For example, according to the authors, mediator. He is a member of The Houston the privileges and immunities clause Lawyer editorial board.

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