Institutional Reform Litigation and the Demise of Democracy: Part II

This is the second of two posts regarding an ongoing federal court lawsuit against the state of Texas’ foster care system, M.D. v. Abbott, now pending before the Fifth Circuit.

State-run foster care systems are frequent targets of “institutional reform litigation.” Most states have been sued in federal court by activist groups alleging deficiencies.  The reasons are obvious: foster care is a messy business, fraught with tragic situations and involving the most vulnerable members of society—children. Let us stipulate that child abuse and parental neglect are serious problems, deserving our compassion and attention. Let us also recognize that the problem is complex and defies easy solutions. The disintegration of the family unit is a catastrophe. No matter how much money is spent attempting to repair the damage of broken and dysfunctional families, the results will be imperfect. Critics will always be able to identify flaws, especially in hindsight.

The desire to help children is a powerful temptation to intervene when the status quo seems unsatisfactory—as it often does with intractable social problems. From a more cynical perspective, “compassion” is also an excuse frequently seized upon by opportunistic special interest groups and power-hungry judges to usurp authority properly entrusted to elected officials.  Particularly when children are involved, utopian liberal activists view solving social problems the way JFK viewed a moon landing—as a lofty goal to accomplish with enough taxpayer funding. (Recall that Hillary Clinton’s political mentor, Marion Wright Edelman, was the founder of the Children’s Defense Fund.)

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. Texas Attorney General Ken Paxton issued a statement, declaring that

Texas has a solemn responsibility to care for children removed from their homes due to neglect and abuse of all kinds, and last year the Legislature approved landmark changes in the foster care system. When unelected judges improperly assume control of state institutions, Texas officials cannot make the policy they’ve been entrusted to make. …The judge and special masters acted outside of their legal authority and ordered a plan that is both incomplete and impractical. We are asking the Fifth Circuit to correct this error. Responsibility for determining policy priorities and implementing best practices lies with the legislative and executive branches of government, and future lawmakers must have the flexibility to adapt as needs change. This plan effectively binds all foster care options in favor of the opinions of the Special Masters.

The Fifth Circuit has an opportunity—and an obligation—to restore popular sovereignty and democratic rule in the Lone Star State. Government by judiciary is inconsistent with federalism, and Jack’s lawless frolic must be resoundingly overturned.

Reader Discussion

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on February 14, 2018 at 10:49:41 am

Good piece! Nothing surprises me anymore re: The Black Robes and their willingness to arrogate to themselves the rightful power(s) of the Legislative.

Speaking of which:

under what pretext does the Judge presume to "appropriate" and expend the peoples tax monies? Did the Court pay the $1.5 million to the Special Masters? (assuming of course that the Legislature had not previously provided the Court with some slush fund).

Why does the Legislature defer to the Court? why not require the court to "request" an appropriation from the Legislature?

Surely, there must be some tools the Legislature may employ to limit this practice.

If the Courts will not defer to the Legislature, why should the Legislature defer to the Courts.

(I am only half joking here, BTW)

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Image of gabe
on February 14, 2018 at 10:57:56 am

You know that I am a strong supporter of substantive due process. But that doesn’t mean that I support this. The question is have these children been deprived of “life, liberty, or property” by the state? I cannot imagine how you could argue that, and the judge doesn’t even try in her opinion. Now, I think you can properly incorporate physical abuse under life (if you read some of the founders statements), so if the state was the one physically abusing the children, that the judge could order that stopped. But that isn’t what is happening here. Liberty for children has always been understood to be limited by the wishes of their parents, which for foster children is the state, and so there is some diminished expectation of liberty for children. But none of the problems in this case have to do with the liberty of the children. Instead it is things like the lack of 24-hour awake-night supervision that they are complaining about. As if a parent who goes to sleep is abusing their children and harming their life. This is silly.

But I got a question: Why were the experts hired “on the state’s nickel”? Before that occurs, it should be appealable. The judge cannot require them to pay money without a final decision.

The Court in this case cannot even describe what would be constitutional under her interpretation of the Constitution saying that the "it would be impractical for the Court to craft.” Instead laying out “goals” which is clearly way beyond what the constitution requires. The natural rights of life, liberty and property and negative rights prohibiting causing harm none of which the state is even accused of.

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Image of Devin Watkins
Devin Watkins
on February 14, 2018 at 12:23:19 pm

OK, I figured it out.

Judge Jack is the principal exponent for the font of "Minor Wisdom" so prominently announced on the facade of the courthouse.

How apt!

Devin is correct above, and in a similar situation in Washington State, the State supreme Court exceeded its proper role when determining the "goals" that the Legislature should achieve when funding education. Had they simply ended their decision with a statement that the State had failed to meet it's *paramount duty* to educate the young, it would have been fine - but NOOOOO! - they had to go beyond that. Indeed, the court imposed daily fines on the Legislature for failure to meet the policy (funding) objectives of the Court.

Fine! - pay the fine AND deductthat amount from the court's budget in the next biennial funding.

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Image of gabe
on February 14, 2018 at 12:47:19 pm

It's pretty clear that what is needed are executives--Governors and Presidents--who will simply ignore federal district court decisions and even possibly circuit court decisions and even possibly Supreme Court decisions. Such behavior would not "provoke a Constitutional crisis"; the crisis has already been provoked, by the judiciary. There is no kind of logic, mathematical, political or otherwise, that necessitates continued deference to an overweening judiciary just because for the last century that has been the practice. An Executive Branch ignoring a Judicial decision, on the basis of its own interpretation of the law at issue, would be just the sort of "check" and "balance" to the Judicial power that would give real effect to the principle of "separation of powers." And if I were Gov. Abbott, I would make it a point to defy this particular district court ruling, because Trump isn't Eisenhower and this is not the age of Jim Crow; he is not going to send in troops to enforce the decision.

Of course, lawyers and, especially, law professors, will unite in frenzied opposition to such an act, in a manner that will make "The Resistance"TM and NeverTrump look mild by comparison. Political affiliation won't matter; all lawyers and law professors (especially) are creatures of the Judicial power and belong to it heart, body and soul. The one thing they will all be able to agree on is that no judicial decision can be ignored. Some will grudgingly allow "jury nullification," but not outright disobedience to the command of a federal judge.

Even the redoubtable Pulliam is, after all, a lawyer and can only envision one judicial maneuver being corrected by a further judicial maneuver. The devolution of this country into a regime where every political and social question is engulfed in the quicksand of litigation lasting decades and costing tens of millions, where a single judge sitting in a single local district somewhere can bring the entire operation of state and national government to its knees or to a halt for 10 - 20 years, where judges feel perfectly at liberty to pronounce eliminations of old rights and discoveries of new rights at will, without let or hindrance, with no check save by their own prudential calculations, is a scandal crying out for bold action to correct.

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Image of QET
on February 14, 2018 at 15:02:05 pm

Before ignoring the court order, how about he appeals it. I cannot imagine the circuit court (yet alone the Supreme Court) is going to let this stand.

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Image of Devin Watkins
Devin Watkins
on February 14, 2018 at 15:25:26 pm

My point is that this decision is just one of many similar overweening decisions, part of a pattern that seems to be growing more pronounced especially in the Trump era. Litigating and appealing take years and years and years and provides no incentive for judges not to continue such behavior. If an an appeal is fighting fire with fire, what I am suggesting is that we now start to fight fire with water.

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Image of QET
on February 14, 2018 at 16:01:39 pm


Playing Devils advocate here:

To appeal is to willingly place oneself within the restraints and the limits created and deployed by the Judiciary. As QET argues, one is then trapped within the judicial frame of reference and irrespective of the success of the appeal, one cedes to the Judicial that which it has arrogated to itself -ultimate and final authority on constitutional questions.

As Greg Weiner has argued on these pages, "institutional ambition" is (was) a critical component, the exercise of which by ALL branches was essential, in Mr Madison's scheme.

How is that the only Branch that asserts it's institutional ambition is the Judiciary. Yes, this includes the Executive which also defers to the Judicial as evidenced by another minor Judicial functionary ruling that the Executive has not provided HIM with sufficient reason that Obama's DACA doo-doo is unconstitutional and therefore may not be dismantled.

It may very well be time to simply ignore the fantastical musings and ruminations of the Judicial and assert the *intended* co-equal status of the other branches in determining constitutionality.

For more fun, Google "graffiti & New York city & $6.7 million" where you will find more judicial lunacy.

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Image of gabe
on February 16, 2018 at 09:54:39 am

The Fifth Circuit panel reportedly commented on Judge Jack’s finding that foster care children have a constitutional right to drivers ed. So there is hope. https://www.dallasnews.com/news/texas-politics/2018/02/15/texas-pushes-back-federal-judges-foster-care-ruling-though-childrens-lawyers-say-let-rip

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Image of Mark Pulliam
Mark Pulliam
on August 16, 2018 at 21:34:15 pm

Is there nothing new on reversing Judge Jack's work?

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Image of Phil Beaver
Phil Beaver

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.