So much happened on Good Friday with A.A.R.P. v. Trump that one item has slipped through the cracks. The ACLU made a request for an injunction after hours on the voicemail of Judge Hendrix’s chambers. At the time, I found that request problematic, but had bigger fish to fry. Judge Hendrix has now issued an order addressing that voicemail.
First, it is prohibited to engage in ex parte communications with judges.
The Code of Conduct for United States Judges explains that judges should not permit or consider ex parte communications “or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers.” Code of Conduct for United States Judges, Canon 3(A)(4). Even when circumstances may require such communications, the Canon limits such communications to situations where “the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication.” Code of Conduct for United States Judges, Canon 3(A)(4)(b).
This rule is well known to anyone who has spent time in a district court. When I was clerking, lawyer would routinely call to ask about cases. As a clerk, the most I could discuss were procedural matters, like scheduling hearings or deadline extensions. If there was any sort of substantive question, my response was “put it in a motion.” That way, all of the parties could see the request, have a chance to respond, and there would be a public record. Nine times out of ten, they never filed a motion, because they didn’t want to actually make the request public. In rare cases, there was some urgent matter that needed the judge’s attention. At that time, the courtroom deputy would try to get at least one lawyer from each part on the phone. When all of the lawyers were present, then and only then would the judge join the conference call. (These were the days before Zoom.) The court reporter was also present. That call was then treated as an official proceeding, that would be docketed. All of these rules are designed to eliminate the risk of ex parte communications about a case.
This sort of knowledge would largely be unknown to appellate lawyers or those who only clerked in an appellate court. It would never happen that any lawyers would ever talk to a circuit judge or their clerks. On rare occasions while clerking at the Sixth Circuit, I would see counsel at oral argument that I knew. To avoid any appearance of impropriety, I would decline to say anything more than “hello.”
Second, Judge Hendrix explains that the voicemail left by Lee Gelernt, counsel for the ACLU, would seem to be an impermissible ex parte communication:
The ex parte communication from attorney Lee Gelernt, counsel for the petitioners, does not meet this narrow exception. The voicemail addresses substantive matters, with Mr. Gelernt informing the Court that his “clients at the Bluebonnet Detention Center are being given orders to sign, Alien Enemy orders, and told they may be removed as soon as tonight or first thing in the morning” and that “[t]his is related to the Alien Enemies Act.” See attachment. Mr. Gelernt further stated that “[i]t appears that [his clients] are being asked to—to be—to sign papers for their immediate removal.” Id. Mr. Gelernt also asked “to talk to the Judge immediately” or “have the Judge issue an order to have [his clients] not removed.” Id. These communications go directly to the substance of the petitioners’ first motion for a temporary restraining order (Dkt. No. 2) and the subsequent motion for the same relief (Dkt. No. 30). In discussing substantive matters, seeking to talk to the Court immediately, and alternatively seeking to have the Judge issue such an order, the Court believes that Mr. Gelernt could have gained a substantive advantage in the proceedings by obtaining a temporary restraining order and a procedural and tactical advantage by making the request off the record, ex parte, and in the evening.
I think Judge Hendrix’s analysis is quite right. The mere fact that the plaintiffs perceive an emergency does not excuse the plaintiffs from following the usual rules. Then again, the Supreme Court ignored a host of procedural rules in this case, so maybe the ACLU thought the call was cool. Process formalism lives in Texas, but not at the Supreme Court.
Third, Gelernt was on notice not to leave voicemails, as the court said all requests had to be made in writing:
Mr. Gelernt left this voicemail even though the Court earlier ordered the petitioners to explain why they should not be required to provide notice to the Court based on the exception laid out in Federal Rule of Civil Procedure 65(b) or otherwise provide notice to the government. Dkt. No. 8 at 1–2. The petitioners did not file a supplemental brief explaining why the Rule 65(b) exception applied and instead provided notice to Acting United States Attorney for the Northern District of Texas Chad Meacham. Dkt. No. 11. The Court thus notes that the petitioners had not established prior to the voicemail any reason to believe that ex parte communications of any kind were appropriate.
Fourth, Judge Hendrix did not issue an order to show cause–unlike Judge Boasberg–but simply provided notice to the government:
The Court therefore enters this Order notifying the government of the contents of this voicemail. The Court did not return Mr. Gelernt’s phone call and did not otherwise have any ex parte communications with the petitioners or their counsel. Attached to this Order is a transcript of the voicemail. See Attachment. Should any of the parties believe that a response is necessary, they may move for leave to respond.
Once again, the fine federal judges of Texas exhibit more restraint than the active federal judges in the Beltway. It’s still not clear for me why Judge Boasberg would hold an emergency hearing, and interrogate DOJ lawyers, where he clearly lacks jurisdiction to proceed. And for those who may not know, Judge Hendrix was originally nominated by President Obama, though his nomination expired, and he was then appointed by Trump. Likewise, Judge Ramirez was appointed by President Biden. There you have it–Obama and Biden nominees who enforce the rules of procedure in a fair fashion. That is more than can be said for Chief Justice Roberts and the Trump appointees on the Supreme Court.
I still think there is more to this story regarding the timing. There was some forum shopping shenanigans by civil rights groups in the Alabama transgender case. It is not the case that only conservative lawyers bend the rules.
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