Thursday, April 23, 2020

Judges may do what they please after Tx Supreme Court says Abbott executive order unenforceable

The Supreme Court's ruling on Greg Abbott's executive order was fascinating to me. They upheld the executive order, but their reasoning amounted to "It's okay to keep it in place because it's completely unenforceable and nothing can or will happen to judges who ignore it."

See initial coverage from the Texas Tribune. Here's the order itself.

The court acknowledged the Governor is not above the law or the constitution, but decided the judges in this case were essentially under no credible threat that anything would happen to them if they violated the order:
We acknowledge the plaintiff judges’ allegation that they face a threat of criminal prosecution if they do not follow the executive order. Any threat to prosecute a judge for his or her judicial decisions raises grave separation-of-powers concerns. The judges, however, do not explain why well-established principles of judicial immunity are insufficient to counter such threats. Troubling as these threatened prosecutions would be, the defendants have disclaimed any such intention, and the judges have not shown a credible threat they actually will be prosecuted. As a result, even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in this case does not give the judges standing to seek the invalidation of GA-13. 
The court considered the threat of enforcement of GA-13 a non-issue because "the executive branch cannot criminally prosecute judges for deciding cases based on what they understand the law to be." In the end, they declared, "Applying the correct law in each individual case is the judge’s job as an institutional matter."

The court found that, even if judges were to openly violate the executive order, "there is no 'credible threat of prosecution.'” Indeed, they noted, "the State in its briefing disclaims any intention by the Governor or the Attorney General to affirmatively enforce GA-13."

Moreover, if local district attorneys tried to enforce the order, the judges would be protected by judicial immunity: "even if criminal prosecution of judges were genuinely threatened, the plaintiffs offer no reason to doubt that long-established principles of judicial immunity provide adequate protection." Said the opinion, "Judicial immunity prevents such 'domination by other branches' by giving a judge absolute immunity from liability for official judicial acts performed within the scope of his or her jurisdiction."

I'm not an attorney, but as Grits reads this, the plaintiffs technically lost the case but won the issue. Judges may simply ignore the executive order with full confidence that it cannot be enforced.

And they should.

RELATED: On Twitter, Judge Elsa Alcala opined, "Have they met the GAW faction of the CCA? LOL. It is an interesting issue that the civil high court is assessing what the criminal high court would hold re criminal prosecution." That's a fair point. But even so, I have a hard time imagining even the Government-Always-Wins faction on the Court of Criminal Appeals finding a theory to justify getting past absolute judicial immunity. I suppose I wouldn't put it past them to try.


Anonymous said...

So it seems to me that the courts are saying the Governors orders are unenforceable for anyone. Judges aren't above the law, I know they think they are.

Gritsforbreakfast said...

Not above the law, but the way to address their violations are to appeal their rulings, said the court, not to threaten to throw them in jail, which was the Governor's approach in his executive order.

Anonymous said...

Sorry Grits have to disagree. If the Governor's order is legal then the judges must follow it just like judges think we must follow their orders. If the judges can ignore the legal order then it stands to reason that the general public can ignore any orders issued by the judges.

We don't get to pick and choose, neither do the judges.

Anonymous said...

I should add, if the judges don't like the general public ignoring their orders/rulings then the judges should appeal the general public's ruling not threaten to throw us in jail (sarcasm).

Gritsforbreakfast said...

@12:06/16 - They didn't say the order was legal. It was decided based on a "standing" issue. In fact, they said, if enforced, the order would violate separation of powers. But it cannot be, so judges have nothing to fear if they ignore it. Read the ruling.

Anonymous said...

I quote "The constitution is not suspended...", seems clear enough. The governor's orders must not be enforceable. So if it's not suspended for judges rulings, must not be suspended for the general public.

Gritsforbreakfast said...

Yeah, that's a cherrypicked quote, 10:08. Read the part about the judges having "absolute immunity." The general public does NOT have that.

Anonymous said...

Judges don't have immunity from criminal prosecution, so I guess it depends on if the Governor's order is considered a civil issue or a criminal issue. All it would take is a DA and sheriff willing to charge and arrest a judge to find out, I agree it would be hard to find this combination.

Gritsforbreakfast said...

They DO have immunity from criminal prosecution if engaged in a function that's part of their judicial duties. See Mireless v. Waco, in which a judge ordered cops to "rough up" a defense attorney to teach him a lesson but was deemed immune by SCOTUS.

Setting bail falls SQUARELY within the scope of their judicial duties. The Texas Supreme Court is correct that they are immune from enforcement of the governor's order.

Gritsforbreakfast said...

From SCOTUS in Mireless v. Waco: "our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i. e., actions not taken in the judge's judicial capacity. Forrester v. White, 484 U. S., at 227-229; Stump v. Sparkman, 435 U. S., at 360. *12 Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356-357; Bradley v. Fisher, 13 Wall., at 351."

Clearly, neither of those apply to judges setting bail amounts.

Anonymous said...

"When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980)"

It would appear to me if a judge knows the bail laws (and since they filed suit over it they would), then the judge would be acting in the face of clearly valid statutes.

Purely academic since this is never going to be litigated.