United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

No. 20-11216 FILED April 4, 2025 Lyle W. Cayce Brian Keith Umphress, Clerk

Plaintiff—Appellant,

versus David C. Hall, in his official capacity as Chair of the State Commission on Judicial Conduct; Janis Holt, in her official capacity as Secretary of the State Commission on Judicial Conduct; David M. Patronella, Darrick L. McGill, Sujeeth B. Draksharam, Ronald Bunch, Valerie Ertz, Frederick C. Tate, M. Patrick Maguire, David Schenck, Steve Fischer, and Clifton Roberson, in their official capacities as Members of the State Commission on Judicial Conduct,

Defendants—Appellees.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-253

Before Smith, Richman, and Graves, Circuit Judges. Per Curiam: Canon 4A(1) of the Texas Code of Judicial Conduct requires Texas state judges to conduct their extra-judicial activities in a manner that does not call into question their impartiality. The State Commission on Judicial Con- Case: 20-11216 Document: 113-1 Page: 2 Date Filed: 04/04/2025

No. 20-11216

duct, through issuance of a now-rescinded warning, applied that provision to Dianne Hensley, a justice of the peace, for publicly refusing, for religious rea- sons, to perform same-sex weddings while continuing to perform opposite- sex weddings. Hensley sued the Commission in state court, where her case is still pending. Meanwhile, Brian Umphress, a county judge who—like Hensley— declines to perform same-sex marriages on religious grounds, is challenging, in federal court, the Commission’s application of Canon 4A(1). He contends that applying the Canon to a judge’s refusal to officiate at same-sex weddings is unconstitutional. His contention, however, raises a threshold issue of state law for which there is no controlling precedent: As a matter of Texas law, do judges violate Canon 4A(1) by publicly refusing to perform same-sex wed- dings on moral or religious grounds while continuing to officiate at opposite- sex weddings? The district court dismissed for want of subject matter jurisdiction, holding that Umphress lacked standing and that his claims were not ripe. The court also observed that even if it had jurisdiction, it would have abstained under the Pullman 1 doctrine. Because Umphress has standing, and his claims are ripe, we reverse the dismissal based on lack of subject matter jurisdiction. Moreover, because state-court litigation appears unlikely to yield an answer to the crucial thresh- old question of Texas law, we decline to abstain under Pullman, but, instead, certify that question to the Supreme Court of Texas:

1 R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941).

2 Case: 20-11216 Document: 113-1 Page: 3 Date Filed: 04/04/2025

No. 20-11216

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS, UNDER ART. 5, §3-C OF THE TEXAS CONSTITUTION AND RULE 58 OF THE TEXAS RULES OF APPELLATE PROCEDURE. TO THE SUPREME COURT OF TE