Fifth Circuit Orders Removal of District Court Judge from Institutional Reform Lawsuit for Alleged “Intemperate Conduct” During Contempt Proceedings

In M.D. v. Abbott, No. 24-40248 (5th Cir. Oct. 11, 2024), a Fifth Circuit panel reverses an order of contempt against the State of Texas and orders reassignment of a case involving the state’s foster care system to another federal district court judge.

“Plaintiffs are a class of minor children who challenged the constitutionality of the Texas foster care system under the Due Process Clause of the Fourteenth Amendment . . . . They filed suit in 2011 . . . .  After a bench trial, the district court found in favor of Plaintiffs in 2015 and awarded ‘expansive’ injunctive relief.”

The case made three subsequent trips to the Fifth Circuit, which modified and narrowed the scope of the injunction. On the third appeal, the district court was ordered “to begin implementing, without further changes, the modified injunction with the alterations we have made.”

The panel allows that the district court judge “has not further officially modified the terms of the injunction” since the third remand. Nevertheless, it concludes that the district court overstepped in the enforcement phase.

“This appeal instead involves a 427-page order issued by the district court on April 15, 2024. The order found one of the state defendants, Cecile Erwin Young, “in her official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas,” in contempt of Remedial Orders 3 and 10 of the injunction. The district court imposed a $50,000 daily fine for each order until the Health and Human Services Commission (‘HHSC’) leadership certifies that it is substantially compliant with the orders. The fines therefore total $100,000 per day.” The fines were to be held in trust for the class of foster children.

The Fifth Circuit first granted a stay of the contempt order pending appeal. In this opinion, it holds that the district court erred in at least three respects.

First, the order is in the form of a criminal rather than civil contempt, and thus the state was entitled as a matter of due process to a jury trial and proof beyond a reasonable doubt, which it did not get in this case. This is because instead of simply seeking to coerce the state into substantial compliance with the injunction, the contempt order demanded detailed disclosures concerning past non-feasance, extended its period of supervision, and provided that it would only “suspend” rather than vacate fines pending submission.

Second, the fines violate the state’s sovereign immunity. “Criminal contempt sanctions like those at issue here punish the state’s past malfeasance in violation of the Eleventh Amendment . . . . Federalism concerns are also heightened here, where a federal district court is obtaining these funds not from the surplus of a class action settlement fund, but rather from the attorney’s fees and contempt fines it chooses to excise from the state,” i.e., the fines being held in trust.

Third, the district court failed to address and find substantial compliance, a defense against civil contempt. “The state endeavored in good faith to comply with the court’s orders. For example, it spent over a hundred million dollars, overhauled internal policies, and lobbied for additional assistance from the Texas legislature.” And in the vast majority of investigations closed during 2021 and 2022, court-appointed monitors agreed with the state’s disposition.

Finally, the panel holds that “the district judge must be removed” on the ground that their conduct was “at odds” with “basic notions” of fairness and partiality, citing (over the space of nearly half of its 36-page opinion) numerous instances where the judge criticized the state’s presentation of its defense.

“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.’”

It concludes that the district court exceeded its judicial office with the contempt remedy.

“[A]s a general rule of law federal judges are not allowed to become permanent de facto superintendents of major state agencies . . . . 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 . . . . 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.”