Saturday, April 11, 2020

Judge ruled Abbott exceeded his authority on executive order limiting personal bonds, but the fight's not over

UPDATE: The Supreme Court of Texas on Saturday issued a temporary stay on Judge Livingston's Temporary Restraining Order, meaning Abbott's order for now is back in effect. The court has requested briefings on the subject, with responses from the litigants due on Monday. See coverage from the Texas Tribune.

ORIGINAL POST: Texas Governor Greg Abbott and Attorney General Ken Paxton took one on the chin yesterday when Travis County District Judge Lora Livingston issued a Temporary Restraining Order barring enforcement of the governor's executive order barring jail releases of people with current charges or past convictions involving violent offenses. See initial coverage from the Austin Statesman, and briefs from the plaintiffs and Abbott/Paxton's attorneys.

At another hearing scheduled for April 24, Judge Livingston will decide whether to turn the TRO into a full-blown injunction, if the Supreme Court of Texas doesn't beat her to the punch (see below). Here's Judge Livingston's letter explaining her decision.

Grits considered the executive order a barely disguised attack on bail reform efforts in Harris County and a warning shot aimed at other jurisdictions that might follow their lead. There was no obvious link between the order and protecting people from the coronavirus, and in fact, it increased risk of infections in Texas county jails. So I was glad to see Livingston's decision, though I also understand this is only the first step down a longer path.

Though I'm not a lawyer, when I read the government's response to the petition from the ACLU of Texas, the Fair Defense Project, and the Lawyers Committee for Human Rights, I suspected they would lose on the merits. Frankly, they didn't address most of the plaintiffs' arguments directly, sidestepping them with sweeping overstatements and absurd attacks that, if taken to their logical conclusion, would make Governor Abbott essentially an un-accountable dictator whenever he decided to declare a disaster. 

In their brief, Abbott's lawyers accused judges of "misusing" their authority to grant personal bonds, but in the hearing yesterday, they could not identify a single example of such misuse, despite Livingston repeatedly pressing lead counsel Adam Biggs on the point. Not. A. Single. One.

Indeed, Biggs was unable to identify how the governor's executive order related to the coronavirus at all. The "disaster" to which he was responding, Livingston pointed out, had nothing to do with judges' authority to issue personal bonds, which predated the rise of the virus. In essence, the virus was an excuse for the action, not the reason.

They also blew past the central arguments by the plaintiffs without addressing them, arguing against positions never taken. Plaintiffs contended the Disaster Act only authorized the governor to override "regulatory" statutes governing state agencies, not the Code of Criminal Procedure or the Texas Constitution. But Biggs and Co. argued that, "According to Plaintiffs’ interpretation, the Governor would have to run to the Texas Legislature any time one of his COVID-19-related executive orders—like the recent restrictions on social distancing—touches upon just one of Texas’ numerous statutes." This ignored the "regulatory" distinction in the Disaster Act on which the plaintiffs' central argument hinged and made it easy for for Livingston to ignore their position and rule against them. It was simply non-responsive.

Maybe the oddest of the governor's lawyers' arguments was that the plaintiffs were encouraging "the deaths of tens of thousands of ... Texans" by contending that only the Legislature could suspend non-"regulatory" statutes.
Plaintiffs’ theory is that only the Legislature should have meaningful power to suspend laws that prevent the State’s response to this growing threat. Apart from the lack of a textual basis for Plaintiffs’ arguments, the following shows why this theory cannot be correct and would lead to disastrous results. To take legislative action, the Legislature would need to convene in person at some centralized place (the presumptive location is the State Capitol in Austin). 
It would presumably take days, if not weeks, to assemble individual legislators in the State Capitol or anywhere else. There are 150 Texas House members and 31 Texas Senate members.193 Two-thirds of the members from each chamber (100 for the House and 21 for the Senate) would need to appear to have a “quorum to do business.”194 Plaintiffs’ theory thus raises the specter of 121 Texas legislators gathering on one central location in the midst of a highly infections deadly disease that can quickly ravage large groups of people in a closely-confined area. The problems continue. 
Once the vote is done and the legislators go their separate ways, what happens when the COVID-19 threat quadruples in the following week (as we have seen is all too possible), which necessitates more severe action and thus the suspension of additional statutes? Well, the process would start all over again.
According to Plaintiffs, this Court is required to interpret § 418.016(a) in a way that could realistically result in the deaths of numerous Texas Legislators and, due to built-in delays in the process, the deaths of tens of thousands of other Texans.
Frankly, that doesn't seem "realistic" at all, considering Texas has seen fewer that 12,000 cases overall and as of yesterday, 226 deaths. By contrast, the plaintiffs made solid arguments both in their brief and at the hearing that pretrial defendants in jail were at significantly greater risk of contracting the virus, an argument Abbott's lawyers simply ignored or downplayed. Judge Livingston, however, raised the point multiple times and considered it a reasonable thing for judges to take into account, especially since Biggs and Co. could identify no examples of judges "misusing" the authority, as their brief had claimed.

Indeed, the argument that the Legislature convening would kill "tens of thousands" of people ignores the fact that the Texas Constitution includes a pandemic exception that allows the Legislature to convene outside of Austin if the capitol faces a "disease threat."
Sec. 8. CONVENING LEGISLATURE ON EXTRAORDINARY OCCASIONS. (a) The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place, in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefor shall state specifically the purpose for which the Legislature is convened.
However far afield some of these debates seemed, they didn't play a major role in the judge's decision. From her commentary at the hearing (thanks to the Texas Observer's Michael Barajas for sharing a recording), Judge Livingston's central motivation appeared to be protecting the powers of the judiciary from infringement by the executive branch. This passage from her explanatory letter (linked above) made that clear:
many of the orders in Executive Order GA-13 strip away the discretion of the judiciary and potentially subject its judges to mandamus or criminal action with little or no rationale in coping with the current health crisis. Instead, the order appears to address an unsubstantiated fear that the judges of the state will abandon their legal obligation to balance the interests of the public, individuals accused, but not convicted of criminal offenses, and the victims of those alleged offenses. The judges of this state were required to balance these very interests every day prior to the disaster declaration, and they are required to do so every day once the disaster declaration ends. The exercise of judicial discretion falls squarely within the purview of the judicial branch of our government. To be clear, the judges of this State may not abandon their responsibility in this regard, but neither may it be taken away from them by executive order. 
From this non-lawyer's perspective, the governor's attorneys made it awfully easy for Livingston to rule against them by ignoring central arguments from the plaintiffs and instead railing against straw men. They overstated their own case to a significant degree and downplayed plaintiffs' most important points to an even greater one. I was surprised their response wasn't stronger.

That said, it's possible the governor could prevail, anyway. As Grits was wrapping up this post, word came that Abbott's lawyers will file a mandamus action with the Supreme Court of Texas today, essentially performing an end run around the normal channels of judicial review.

Will the Supreme Court's loyalties lie more with the constitutional authority of the judicial branch or their partisan affiliations? Is Greg Abbott merely a governor whose powers are constrained by the constitution and state law, or a king who may do what he pleases so long as he declares a "disaster" first? Or will the Republican-led Supreme Court have the foresight to understand that their party won't always control Texas' statewide offices and enforce constitutional limits so that future governors won't also run amok?

Those are the big-picture questions before them, and though I think Judge Livingston was right on the facts and the law, Grits couldn't begin to guess what the final answers will be.

MORE: See Judge Elsa Alcala's analysis.


Lee said...

Isn't Paxton out on bail at the moment?

Les Smith said...

This public health crisis is addressing the call for a revised set of values in criminal justice, improving the effective administration of justice and with reintegration as a goal will minimize the need for incarceration, save jurisdictions money, and enhance community health and safety.

Anonymous said...

I've already seen daily documented conditions (ie. inhumane conditions) inmates are experiencing before the virus. The virus will ravage the jails including the inmates and guards. The jails will be at risk of inmates harmed by the time the guards either refuse to maintain security or enter areas. And I'm really curious how it is possible after a month of lockdown with no visitors, how the hell is the drug problem much much worse right now? (I've already known the answer for years reading the detailed journals I have from the inside). The State and TDCJ are squarely and solely liable for the well-being of the inmates. They won't be able to get thru this with fake inspections and made up reporting. I challenge everyone to write any political figure you can, all the way up to AG Barr and President Trump...not just to save lives during this pandemic but to expose the horrid conditions that is 'the norm' within TDCJ. Not all guard and TDCJ officials are bad, but many are and the good-spirited ones apparently turn a blind eye. Inmates are scared to report due to the retribution that will be passed down to them a month after reporting so that it just looks like it is the inmate and nothing to do with what they reported. And where is OSHA and TCEQ???

Anonymous said...

In my opinion: Judge Livingston and the Texas Supreme Court are incompetent for Texas. They do not Honor the Texas Constitution or the sovereign people of Texas, past results have proven this point. Texas is a great country and should be respected. Texas people have land rights that most States do not have if we can keep politicians from selling Texas out. The Courts should not be back logged if doing their job for the people and the Texas Supreme Court should not be able to deny a Texas Sovereign their day to be heard. Trial Courts are not always honest as with Trial Court Lawyers. I personally am disappointed in Texas leadership when the Office of Governor fails to uphold and respect the Official Documents of previous Governors that were signed and sealed documents. Why do the people not have a Court seperate from CORPORATION COURTS?

P. Ghosh said...

And I quote the blog as it is written with the public's well being at hand, not the Governor's interest in the States Cash Cow. This State government has been exposed enough to where the injunction may very well issue. However, Kenny Paxton? Has he ever gone to court for the 3 felony indictments for;
"On July 28, 2015, a state grand jury indicted Paxton on three criminal charges: two counts of securities fraud (a first-degree felony) and one count of failing to register with state securities regulators (a third-degree felony)".

"Though I'm not a lawyer, when I read the government's response to the petition from the ACLU of Texas, the Fair Defense Project, and the Lawyers Committee for Human Rights, I suspected they would lose on the merits. Frankly, they didn't address most of the plaintiffs' arguments directly, sidestepping them with sweeping overstatements and absurd attacks that, if taken to their logical conclusion, would make Governor Abbott essentially an un-accountable dictator whenever he decided to declare a disaster."

Lane Thibodeaux said...

The Petition for Writ of Mandamus (Petition) and Motion for Stay (Motion) — a 16 page Petition and 12 page Motion — were likely drafted before the hearing Friday by Judge Livingston. If not, immediately after the hearing given the tenor questions directed at the AG lawyer. The SoT's Motion and Petition were filed at noon on Saturday.

Direct appeal to SCOTX makes sense on several for the SoT—bypasses the 3rd CoA where the SoT had less chance of winning. 4 of 6 Justices on the 3rd CoA are Democrats, including Justice Gisela Triana who is the D nominee for SCOTX and running against GOP Justice Brett Busby who was appointed by Governor Abbot in March of 2019. SCOTX would have been asked to accept the case regardless. Better sooner than later was probably in the fore by the SoT. Responsive pleading by TCDLA due by 5:00p today. Just speculation, but expect a fast SCOTX decision, perhaps before end of this week.

The biggest issue for TCDLA/plaintiffs was focused on by Judge Livingston toward the end of the hearing — standing to bring the injunctive relief requested. The SoT's argument is that no inmate affected is part of the request for injunctive relief, and thus there is no injury-in-fact.

Lane Thibodeaux said...

The TCDLA/plaintiff's and their amici — the National Association of Criminal Defense Lawyers (NACL) — have filed responsive briefs in the State's mandamus appeal in SCOTX. The standing issue that IMO was the most problematic for TCDLA/plaintiffs is well handled. The TCDLA/Plaintiffs write at pg. 6 of their Brief: "Absent a TRO, GA-13 [Gov. Abbott's Ex Order] will thwart judges’ constitutional and statutory authority to issue personal bonds for certain classes of people. The judges are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the Constitution and Legislature, or obeying GA-13."

This is going to be an interesting call given the current make-up of SCOTX.

Three of the SCOTX Justices — Blacklock, Busby and Bland — were appointed by Gov. Abbott. Busby has a viable Dem opponent in the November 2020 general election, Justice Gisela Triana, currently on the Third Court of Appeals in Austin. Justice Blacklock was not only appointed by Gov. Abbott in 2018, but worked for Abbott as General Counsel. Blacklock also previously worked for Abbott when Abbott was Texas Attorney General. Justice Bland was both a district and court of appeals judge before being appointed to SCOTX. While on the COA, she was conservative, but a straight shooter.

If I had to bet mother-in-law money on the outcome, it would be on denial of the SoT mandamus. Either way there will be plenty of opinions, concurring and, likely, dissenting.