A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in a decision issued late Friday blasted the federal trial judge overseeing the litigation over the allegedly disgraceful conditions of the Texas foster care system for telling lawyers for the state of Texas that “doesn’t hurt” for state officials to “go over and above the minimum standards for protecting Texas children.
The federal appeals court panel said that U.S. District Judge Janis Jack has made courtroom remarks that “implied bias” that “raise serious questions concerning … the appearance of justice.”
The Fifth Circuit judges removed Judge Jack, who has overseen the foster case litigation for more than a decade, from the case and ordered the chief judge of the Southern District of Texas to assign the case to a new district judge.
In a 38-page unanimous opinion written by Judge Edith Jones, the court pointed to several times in court proceedings when the judge showed hostility toward the defendants.
The Fifth Circuit opinion cited excerpts that “show that the judge exhibits a sustained pattern, over the course of months and numerous hearings, of disrespect for the defendants and their counsel, but no such attitude toward the plaintiffs’ counsel. The judge’s demeanor exhibits a ‘high degree of antagonism,’ calling into doubt at least ‘the appearance of fairness’ for the state Defendants.”
Judge Jones also criticized Judge Jack for statements she made from the bench about why the state of Texas would pay their outside counsel at Gibson Dunn more than $1,300 an hour in legal fees to fight the court-ordered foster care system improvements instead of using that money to make the system better for the children.
Judge Jack found the state of Texas in contempt following a hearing in December 2023 for not taking the steps necessary to address the problems in the state’s foster care system. She ordered the state to pay a penalty of $100,000 a day until the problems were fixed.
The Fifth Circuit order reversed those contempt findings.
Legal experts who have followed the foster care litigation say the Fifth Circuit’s removal of Judge Jack from the case and reversing the contempt sanctions were not unexpected and were made on solid legal grounds. But those same legal experts said they were stunned by the overall indifference of the Fifth Circuit’s opinion to the problems that still exist in protecting children in the state’s foster care system.
The experts point to portions of the decision in which Judge Jones criticizes Judge Jack for simply asking state officials to do more to protect the best interests of the children than the state may be mandated by law.
“The district court, to begin with, urged and instigated the plaintiffs for several months to seek contempt,” Judge Jones wrote. “During the hearing, the judge repeatedly questioned the defendants’ unwillingness to exceed the requirements of the remedial decree.”
Judge Jones specifically pointed to Judge Jack telling lawyers for the state, “[I]t doesn’t hurt to go over and above, not just the minimum standards, but over and above.”
The Fifth Circuit opinion also appears to criticize Judge Jack for stating that the case brought much needed media and public scrutiny to the problems in the state’s system.
Judge Jones wrote that this statement by Judge Jack from the bench — “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” — demonstrated the trial court’s bias.
“The court’s interest in whether the state’s actions exceeded the scope of its remedial injunctive orders suggests the court has a substantial difficulty moving past the previously invalidated, overbroad remedial orders,” the Fifth Circuit opinion states.
Fifth Circuit judges Edith Clement and Corey Wilson joined Judge Jones’ opinion without additional comments.
Paul Yetter of Yetter Coleman is the lawyer for the plaintiffs, while Allyson Ho of Gibson, Dunn & Crutcher represents the state of Texas.
The case M.D. v. Abbott, Fifth Circuit case number 24-40248.