'Must be removed': Fifth Circuit bounces Clinton-appointed judge from long-running Texas foster care system abuse case after Greg Abbott asks for her removal

A federal judge appointed by Bill Clinton was removed from a high-profile child abuse case this week by a panel of Republican-appointed judges on the Fifth Circuit Court of Appeals.

The removal of U.S. District Court Judge Janis Graham Jack came at the urging of Texas Gov. Greg Abbott (R) in a long-running case about inadequacies in the Lone Star State’s foster care system.

“Several facts compel bringing this case before a more disinterested tribunal,” the opinion and order authored by Judge Edith Jones reads.

The underlying case is a class action lawsuit against the Department of Family and Protective Services (DFPS). In 2015, Jack found state’s foster care system unconstitutional and imposed hefty fines along with mandating wide-ranging reforms. A team of monitors were also appointed to oversee compliance with the court’s orders. Texas, in turn, serially failed to comply or modernize.

At one point in 2019 Jack threatened to throw state officials in jail and fined the state $50,000 per day for failing to provide around-the-clock supervision to children in large group homes. Multiple foster care facilities were closed, according to the San Antonio Express-News , because even the DFPS commissioner admitted they had been “unsafe for decades.” Court monitors reported at least 23 children died while in the care of foster care shelters and facilities licensed by the Texas government during a period from the summer of 2019 to May 2021. Problems with the system are widely assumed to be ongoing.

Here’s how the appeals court framed the matter:

As this court originally found, the state of Texas had seriously neglected the management of its foster care system, resulting in constitutional violations against vulnerable children that this court affirmed. Nearly a decade has passed since the district court entered its first judgment ordering remedial relief. The state has been under constant, intrusive, and costly surveillance by a team of monitors and the district court ever since.

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On April 15, Jack upped the ante: fining Texas $100,000 per day for certain violations in a contempt order. The district court, however, opened up the possibility of substantial compliance with earlier orders in order to cure the contempt – and avoid paying the fines.

In the appellate court order, the judges said the lower court’s contempt order was essentially nonsensical.

“[M]uch of the April 15 Order squarely focuses on whether the Defendants’ past conduct was in compliance with the Remedial Orders,” the Fifth Circuit says. “The April 15 Order requires the Defendants to pay $100,000 per day until they certify that certain investigations ‘closed from December 4, 2023 until the date of the State’s certification, are substantially compliant with the Remedial Order 3’ and that other ‘open’ investigations’ comply with Remedial Order 10. The Defendants can do nothing to render any already-untimely investigations timely.”

In other words, Texas complained that Jack’s contempt order required a truly impossible task: ensuring that already-shuttered investigations complied with obligations imposed by the district court in the future. The appeals court agreed with this understanding.

The appeals court also said the contempt order – and its associated fines – had become so burdensome that it effectively became transmogrified into criminal contempt – which requires a jury trial.

One particular point of contention, the Fifth Circuit said, was that Jack “urged and instigated” the plaintiffs to “seek contempt” for months before the order was issued in the first place.

In sum, the panel found that Jack had “become too personally involved in the proceedings” and that she expressed “a highly antagonistic demeanor toward” the State of Texas defendants.

Notably, the appellate court also opined that the state “intends to continue improving the foster care system in good faith” and took the judge to task for what they viewed as overreach.

“[A]s a general rule of law federal judges are not allowed to become permanent de facto superintendents of major state agencies,” the court observed. “Nor, under the federalist structure created by the Constitution, is it appropriate for federal court intervention to thwart the state’s self-management, where the state is taking strides to eliminate the abuses that led to the original decree.”

The critique continued at length:

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.

Additionally, the Fifth Circuit chided Jack for her “intemperate conduct on the bench,” including a finding that her “mode of questioning” the state’s objections during hearings was “inappropriate.”

“We have carefully considered the record and the applicable law before concluding that this case must be reassigned to another judge,” the court ruled.  “The district judge must be removed.”

Sarah Rumpf contributed to this report.

The post ‘Must be removed’: Fifth Circuit bounces Clinton-appointed judge from long-running Texas foster care system abuse case after Greg Abbott asks for her removal first appeared on Law & Crime .