So how did Judge Smith Issue The Emergency Stay in the Planned Parenthood Case?

May 2nd, 2012

Ian Millhiser breaks down the timeline:

Yesterday afternoon, a federal trial court in Texas granted a preliminary injunction preventing the state from cutting off women’s health funds to Planned Parenthood. The trial court’s opinion was written by Judge Lee Yeakel — a George W. Bush appointee — and it is 24 pages long, including substantial analysis of difficult constitutional doctrines such as the scope of the First Amendment right to free speech and the “unconstitutional conditions” doctrine. Significantly, the Bush-appointed trial judge was concerned that Texas stripped funds from Planned Parenthood because it disapproved of the organization’s advocacy in favor of women’s health — a direct attack on Planned Parenthood’s First Amendment rights if Yeakel is correct.

This morning, less than 24 hours after Yeakel handed down his decision, Judge Smith handed down a two sentence decision of his own:

IT IS ORDERED that appellant’s motion for stay pending appeal is GRANTED pending further order of this court. This order is entered by a single judge pursuant to FED. R. APP. P. 8(a)(2)(D).

FED. R. APP. P. 8(a)(2)(D) provides:

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

I have a few questions.

First, how was Judge Smith approached? Does the 5th Circuit have some kind of roster, or rotation for emergency motions? Or did Attorney General Greg Abbot just call Smith. (Maybe Judge Jones was not available).

Second, did Texas ever contact the clerk in order to seek a three-judge panel? Did the clerk ever attempt to assemble a three-judge panel? Did Judge Smith refer this matter to a three-judge panel?

Third, did Judge Smith, when he was informed, seek the views of the opposing party, or grant the stay ex parte?

Fourth, let’s parse the statute a bit.

Is this an exceptional case? Did the time requirements make rounding up a three judge panel impracticable? Was Texas on the verge of cutting a check to Planned Parenthood? Would waiting for a few more hours, or gasp, a day, have created irreparable harm?

Judge Smith ordered the parties to file a response by 5:00 p.m. Tuesday (that happened already). Let’s see what happens.

Judge Smith sure has been in the news a lot of late.

Update: The State’s motion for an emergency stay answers some of my questions:

Given the time pressure caused by Planned Parenthood’s litigation strategy, it
was impracticable for Texas to file this motion first in the district court. See FED. R.
APP. P. 8(a)(2)(A)(i). Moreover, in light of the district court’s ruling earlier today, the
district court’s likely ruling on that motion is apparent. Given the timing of Judge
Yeakel’s ruling, it also was impossible for Texas to file this motion in the Fifth Circuit’s clerk’s office by 2 PM. See 5TH CIR. R. 27.3. And given the exceptional circumstances forced upon the State and the court because of the plaintiffs’ dilatory filing,
this motion should be considered by a single circuit judge if necessary. See FED. R.
APP. P. 8(a)(2)(D).
Undersigned counsel certifies (1) that this motion was preceded by multiple telephone calls to the clerk’s office before 2 PM today, and (2) that the facts supporting
emergency consideration of this motion are true and complete to the best of counsel’s
knowledge. See 5TH CIR. R. 27.3. Undersigned counsel further certifies that the parties conferred by email regarding this motion, and Planned Parenthood opposes it.
See id.

Update: Two days later, a three-judge panel, consisting of Smith, Davis, and Pardo reversed the grant of the stay. The order provides a timeline which fills in some of the details:

Shortly before noon on April 30, 2012, the district court entered the injunction that is appealed, explaining itself in a 23-page order. The State immediately filed a notice of appeal, then prepared a 23-page motion for stay pending
appeal that was filed in this court at about 10:30 p.m. In its motion, the State
represented that “the administrative provisions at issue are scheduled to go into
effect (and Texas will be irreparably injured if they do not) at midnight tonight
[April 30].”
A few minutes before midnight, the motion was submitted to a judge of
this court who, pursuant to FED. R. APP. P. 8(a)(2)(D), temporarily granted the
motion for stay based on the stated emergency and in order to provide for an
orderly review by the full motions panel after any subsequent filings by the parties. The court, through its Clerk, directed the plaintiffs to file a response to the
motion by 5:00 p.m. May 1.

So the notice was filed immediately (around noon). The brief was field at 10:30 p.m. The order was granted about 90 minute after that at midnight. I’m still failing to see why the other two judges were not consulted, or asked to sign off on the order.

The opinion faults Texas for failing to address the leading precedent on point–I suppose when you grant an order ex parte, you only see only side of the argument:

Our conclusion rests in part on the State’s continuing reluctance to
address the obviously relevant opinion in Sanchez. Despite the plaintiffs’ and
the district court’s having relied extensively on that authority, which binds this
panel to the extent it is applicable, the State never mentioned it (as far as we can
tell from the record) in the district court and did not refer to it in any way in its
motion for stay pending appeal. Nor has the State sought leave to supplement
its submission with a response to Sanchez or the plaintiffs’ focus on the affidavit
referred to above.
Accordingly, a stay pending appeal is no longer appropriate under the
current record and in light of the early stage of these proceedings.

And in other news, Arizona signed into law a bill banning funding to Planned Parenthood. I suspect a suit in the 9th Circuit will meet the same fate as the suit in the 5th Circuit, minus any stays.