OCTOBER 19, 2009
OPEN LETTER TO CCPSAT MEMBERS
As you may know by now, the lawsuit filed in the U.S. District Court against the Texas
Supreme Court and the Process Server Review Board was dismissed without
prejudice. Today was the deadline for filing an appeal or motion for new trial. After
much consideration, we have decided not to pursue a remedy in the federal courts.
Our decision was based on several factors. First and foremost, the dismissal order
shows that the judge was unaware apparently of how the certification program came
to be. The judge’s ruling erroneously states that Rule 14, RJA, “created the program
and the PSRB.” Thus, the judge’s decision to dismiss the suit is based on the
misconception that members of the PSRB have always acted under the authority and
direction of Rule 14. It also means the judge did not understand that a majority of the
infractions listed in the complaint happened during a time when the PSRB had no
authority to do what Rule 14 now allows. Most importantly, it means the court did not
understand how the program and the PSRB were actually created. This last issue
speaks to the core problem; a separation of powers violation that has, in turn, caused
constitutional violations.
The misunderstanding of the time line suggests the court was oblivious to the
indefensible reality of the PSRB's violations of Constitutional rights of citizens. The
removal of one from his/her career without any mechanism for appeal, and without any
basis in law/statute for the authority of such an action is unheard of. The loss of time
at the job, and the expense of an attorney to defend against a board that had no
authority for 21 months to even conduct investigations or issue discipline seems
impossible to have overlooked.
The court claims we did not provide evidence proving Texans have a right to
participate in the certification program; we believe we did and it would be
unreasonable to think that process server certification by the Texas Supreme Court is
not “open to everyone.” Regardless of whether or not the Supreme Court has the
authority to create regulation, the program exists under the color of law which means
anyone over eighteen years of age has a right to apply. This “common-law” doctrine
has long been accepted in Texas law.
Finally, we came to the conclusion that the judge’s reasoning and subsequent order of
dismissal may be insurmountable. We provided a time line for the judge and we
provided copies of Rule 14, including the date the program was implemented and the
date Rule 14 was created (some two years later.) We also provided the judge with
evidence that Texans do have the right to pursue an occupation in Texas. In light of
all these factors, we came to the conclusion that a remedy through the federal court
system would be, more likely than not, unattainable. Though we do not contend the
judge was wrong necessarily insomuch as we feel his understanding of the true
picture has been misconstrued.
It is, however, important for everyone to understand how close we came to appealing
the judge’s decision based on a major development that occurred during the 81st
legislative session. Just as the session was beginning, the defendants' motion to
dismiss was filed. It claimed the members of the Court and the PSRB were protected
by governmental and/or judicial immunity and, therefore, a lawsuit could not be
brought against them. While the federal judge was deliberating whether or not this
was true (especially for the voluntary PSRB members), a bill was filed that would have
given the PSRB indemnification from lawsuits. The obvious question… If immunity
already extends to members of the PSRB as the motion claimed, why was such a bill
(SB 1651) filed? We believe this makes it clear that members of the PSRB do not
have immunity; the very issue the federal court judge was attempting to determine. An
appeal or motion for new trial would have included this very telling bit of evidence.
Because our suit was dismissed without prejudice, allegations in the complaint remain
unanswered and the merits are still viable, including the new information described
above. Without prejudice means the dismissal was not a move backwards, but more a
failure to advance our cause; and it is certainly no victory for the defendants. It simply
means the judge believes we did not establish to his satisfaction grounds to bring our
case before the federal court. However, it would be naive to treat the dismissal as a
nod of approval by the United States District Court.
On a positive note, this experience has shown there are a great many of you out there
who, some quietly, some openly, support the fundamental principles the lawsuit was
intended to protect. These are the same principles on which the CCPSAT is
founded. Without your support and generous donations, the suit may have never
been filed.
We will now refocus our efforts on other fronts. As always, we will continue to defend
and protect the rights of our members and all process servers.
Sincerely,
Tod Pendergrass, Dana McMichael and Billy D. Deel
Founding Directors, CCPSAT