Misrule of Law

There is so much bad news every day that we must savor the occasional victories. And last week, the U.S. Court of Appeals for the Fifth Circuit delivered a victory to the state of Texas in the form of a decision removing U.S. District Court Judge Janis Jack from a long-running case in the Southern District of Texas, where Judge Jack had micromanaged the state’s foster care system, with increasingly high-handed, activist rulings, for 13 years.  The case was brought by a law firm as a “pro bono” matter—for the “public good.” The ensuing litigation turned into a marathon nightmare, possibly brought to an end—at last—by the Fifth Circuit. The 36-page opinion was authored by Judge Edith Jones and joined by Judge Cory Wilson and Judge Edith Clement. 

I wrote about this lawsuit for Law & Liberty in a pair of articles in 2018 (here and here). As I stated in part 1 of the article:

The lawsuit was filed in 2011 by a New York-based advocacy group, Children’s Rights, which was originally a project of the ACLU.  It has dragged on for nearly a decade, resulting in an initial order in December 2015 and another, 116-page decision, on January 19, 2018. (The Fifth Circuit immediately stayed that decision pending appeal.) The case is an archetypal “institutional reform litigation”—Judge Jack, appointed by President Bill Clinton, is a liberal activist; the plaintiffs were seeking a political objective, greater funding for foster care; and the judge employed the familiar gimmick of making up a new constitutional right, the novel “right to be free from an unreasonable risk of harm.”

As with all such lawsuits, the transparent goal was to circumvent the legislature and effect social change by judicial fiat. The primary difference between this case and prior foster care lawsuits against other states is that Texas declined to enter into a consent decree and fought the case instead. 

From part 2 of the article:

The difference between the space program and institutional reform ligation is that NASA lacked the ability to set its own budget. If the political process fails to deliver enough government largesse to suit the activists’ demand, litigants have learned that federal judges—eager to win the praise of the liberal establishment—will intervene to shake more money out of the taxpayers’ pockets.

In that regard, since 2011 lawyers representing a New York advocacy group (and serial litigant), Children’s Rights, have pursued a class action lawsuit in federal court challenging the state of Texas’ child welfare system. The plaintiffs filed the case in Corpus Christi, Texas, a backwater venue stacked with liberal activist judges–forum-shopping, in other words. (The Left’s meritless challenges to Texas’ voter ID statute were filed in Corpus Christi for the same reason.) The case was assigned to Judge Janis Graham Jack, an appointee of President Bill Clinton, and her rulings have been predictably tilted in the plaintiffs’ favor throughout the litigation.

Texas, with a population of over 28 million people, is home to about 20,000 minors who, tragically, are permanent wards of the state due to parental neglect or abuse. These unfortunate children are enrolled in the state’s foster care system, under the direction of the Texas Department of Family and Protective Services (DFPS). Long-term foster care represents the last resort of social service agencies, reserved for only the worst cases, from irreparably broken or dysfunctional homes. Rescuing children from their near-Dickensian plight is an enormous and perilous undertaking; reality is inevitably more complicated than the sentimental depictions of orphans in movies such as Boys Town.

These problems present an ongoing challenge for the state’s social services agencies, which it is Texas’ sovereign right to administer. Judge Jack, however, saw problems in Texas’ foster care system as an opportunity to anoint herself Social Worker-in-Chief, and to place the DFPS under de facto federal receivership. Jack risibly concluded that the disparate circumstances of Texas’ foster youth, throughout the vast state, presented sufficient commonality to certify a class action of 12,000 foster children under Rule 23. Jack compounded this error by inventing a constitutional right protecting the class members: the substantive due process “right to be free from an unreasonable risk of harm.” Without any precedent whatever, Jack ruled that Texas owes a duty to foster children, under the U.S. Constitution, to protect them from the risk of experiencing any harm, both physical and emotional.

Following the “institutional reform litigation” playbook, Jack appointed two out-of-state “experts” to serve as “special masters,” charging the state’s taxpayers’ $345 an hour to determine what specific measures the state was obligated to adopt to comply with this amorphous duty. The special masters, in turn, commissioned two studies by researchers at the University of Texas. Experts hiring experts, on the state’s nickel, is reminiscent of the New York City special education fiasco.

After two years of work by the special masters (and their staffs), at a cost of $1.5 million, they made 56 quasi-legislative recommendations to Jack, including ordering DFPS to improve supervision, provide better health care, implement better staffing ratios (by hiring more caseworkers), provide a 24-hour hotline to report abuse, create a comprehensive computerized data base incorporating records for each foster child, and many other costly reforms. Again, these unproven, spare-no-expense remedies resemble the model UN ordered by Judge Clark in Kansas City.

On January 19, 2018, over the state’s objections, Jack issued a decision adopting most of the special masters’ recommendations in the form of an injunction—dictating to DFPS how to operate its foster care system.  In effect, Jack ruled that the special masters’ subjective “best practices” for foster care established a minimum standard under the Constitution. This is pure judicial imperialism.

Because the case has been pending for nearly a decade, with a trial held in December 2014 and a liability finding against the state in December 2015, the Texas legislature had in the meantime appropriated more money to DFPS for foster care reforms—a lot more money.  In December 2016, legislators gave DFPS $150 million in emergency funds to hire more caseworkers. In the last legislative session, DFPS was awarded $ 4 billion for the 2018-19 biennial budget, up from $3.5 billion for the previous two-year budget. According to news reports, “That includes about $300 million to continue pay raises for caseworkers and another $88 million to more than 1,000 caseworkers over the next two years. The department also has $95 million to boost payments to foster care families and other providers.”

Astonishingly, notwithstanding these greatly increased appropriations, Jack concluded that the state’s voluntary remedies, while “indeed admirable, …cannot deprive a court of the power to order relief.” Her attitude was “hundreds of millions of dollars in additional state spending—so what?” In her 116-page ruling, Jack kept the state under the jurisdiction of her special masters as “monitors” for three years! Jack has effectively hijacked the state’s control of its own foster care system, using the lawsuit as a pretense for progressive social engineering. Perhaps the clearest indication that M.D. v. Abbott is a leftist crusade against Texas’ Republican-dominated state government is the liberal establishment’s canonization of the plaintiffs’ lawyer, Paul Yetter, and Judge Jack as “Attorney of the Year” and “Texan of the Year,” respectively.

The protracted litigation has largely escaped appellate review to date, for lack of an appealable final judgment. The issuance of an injunction, however, finally ended Jack’s unsupervised mayhem in the Southern District of Texas, Corpus Christi division. The Fifth Circuit issued an immediate stay of Jack’s decision, pending appeal, a sure sign of disapproval. 

There were intervening developments between 2018 on the issuance of the Fifth Circuit’s decision, including holding state officials in contempt of court and imposing a fine against the state of Texas in the amount of $100,000 per day. These rulings were reversed by the Fifth Circuit, but the unanimous panel decision went further, removing Judge Jack from the case due to her obvious bias against the state of Texas and defiance of previous rulings by the Fifth Circuit. This type of forced reassignment is rare and remarkable. Only the most persistent scofflaw of a judge would warrant such a harsh—but in this case well-deserved–rebuke.

Judge Jones’ decision included this scathing criticism of Judge Jack’s conduct in the courtroom:

Our comprehensive review of the district judge’s conduct throughout the three-day contempt hearing in December 2023 that brought this issue to fruition repeatedly exhibits a highly antagonistic demeanor toward the Defendants. The district court, to begin with, urged and instigated the Plaintiffs for several months to seek contempt. During the hearing, the judge repeatedly questioned the Defendants’ unwillingness to exceed the requirements of the remedial decree: “I told the State that this is not anything to do with the Court, but they have resources in these monitors . . . that they can use. . . . Nothing. Nothing.” And toward the end of the hearing: “[I]t doesn’t hurt to go over and above, not just the minimum standards, but over and above.” And relatively soon thereafter: “I’m thankful to the public attention that the press has shown this. Sometimes it’s just very important to call this out to the public, and that’s the organ to do that.” The court’s interest in whether the state’s actions exceeded the scope of its remedial injunctive orders suggests the court has a “substantial difficulty” moving past the previously invalidated, overbroad remedial orders.

Judge Jack made injudicious and personal comments directed at one of the state’s lawyers, Allyson Ho, who is married to Fifth Circuit Judge James Ho. The Fifth Circuit concluded that “the district judge’s remarks continued in a vein that failed to demonstrate disinterestedness and evenhandedness.” This is an understatement. Judge Jack’s demeanor was tyrannical and abusive. The Fifth Circuit opinion quoted from the district court transcript, calling Judge Jack’s tone “caustic”:

During another witness’s testimony, the judge remarked: “I don’t know how the State sleeps at night with this. I really don’t.” Following Defense cross-examination of that witness, when counsel said, “No further questions from this witness,” the judge replied: “I would hope not. Thank you.”…

The above excerpts show that the judge exhibits a sustained pattern, over the course of months and numerous hearings, of disrespect for the Defendants and their counsel, but no such attitude toward the Plaintiffs’ counsel. The judge’s demeanor exhibits a “high degree of antagonism,” calling into doubt at least “the appearance of fairness” for the state Defendants.

The Fifth Circuit concluded:

Several facts compel bringing this case before a more disinterested tribunal. First, that the district judge has become too personally involved in the proceedings seems evident from the episodes recounted above.

Second, it is necessary to reconsider the continued adversarial nature of this proceeding. Here, the judge indicated the strong possibility, arising from over 200 pages’ discussion in the 427-page order that resulted in this appeal, that there will be further contempt orders or that the foster care system will be placed in receivership….

Nor are federal judges even suited, by training or temperament, to manage institutions, personnel, or the provision of vital state services, even if counselled by monitors. In this case particularly, the integrity of oversight may have been further put at risk by the trial court’s creation of a “fund,” based on plaintiffs’ attorneys’ foregoing their court-approved fees, that the court may evidently disburse at its discretion. Federal judges should not be personally allocating resources from the state’s taxpayers for purposes not directly tied to and controlled by the state itself in order to abide by a court decree.

This is a highly-unusual smackdown of a district judge who had behaved like a bully and an advocate, clearly favoring one side to the dispute.

Hooray to Judge Edith Jones (whom, unfortunately, President George H.W. Bush considered but passed over for an appointment to the U.S. Supreme Court in 1990, in favor of the disappointing David Souter) and the other members of the Fifth Circuit panel, and to the state of Texas and its combat-worn legal team, who had to persevere a decade of abuse from an unfit, left-wing activist. Kudos also to the state’s appellate counsel, Allyson Ho of the firm Gibson, Dunn & Crutcher. And hooray for the rule of law.