Episode No. 78- ODonnell v. Harris County- The Case That Will Not Die

So this was a lawsuit that was filed years ago by a group of plaintiff's attorneys.

It's been reported in the news that one of the commissioners for the Harris County Commissioner's Court, Rodney Ellis, invited the attorneys to come to Harris County to sue over the bail practice.

Litigation was initiated.

The sitting judges opposed the litigation.

The trial court issued a preliminary injunction that was appealed to the Fifth Circuit and then the Fifth Circuit reversed the preliminary injunction on the grounds that it was overly broad.

And so the trial court issued a second preliminary injunction and I would argue that the second preliminary injunction was worse than the first and so again it went up on appeal and this time there was a hearing on whether to stay the preliminary injunction.

And I think I did some research at the time, and it's very rare that the Fifth Circuit would have oral arguments on a request for an emergency stay.

But they had oral arguments, and they ruled that the additional elements of the preliminary injunction that had been added by Lee Rosenthal... should be stayed because there was a high likelihood of success by the judges on the merits because preliminary injunction got rid of cash bonds and that was found to be improper by the Fifth Circuit and beyond the scope of what the judge could grant.

Also, there was a lot of discussion about the judge had found a procedural deficiency under procedural due process.

And the court determined that once a procedural defect was found, then the remedy had to be a procedural remedy as well.

So if you've identified that there's no opportunity for a hearing, then the remedy is a hearing.

And then once you remedy that, then the analysis goes from heightened scrutiny back down to rational basis scrutiny to determine what the county is doing is proper.

But the funny thing happened after the Court of Appeals issued its stay of the second preliminary injunction, there was an election.

During the election, the judges were criticized for spending $8 million to defend their practices.

And so the judges who were in the lawsuit, they all lost, and they were replaced by Democrat judges who all promised to settle the litigation.

And in the settlement, so once the new judges took office, they filed a motion to dismiss the appeal because they no longer wanted to prosecute it.

They wanted to just settle and give in.

And so a motion was filed to vacate the opinion at the Court of Appeals in addition to a motion to dismiss.

The motion to dismiss was granted, but the Court of Appeals issued an opinion saying the opinion on the stay continued to be the law for the Fifth District or the Fifth Circuit Court of Appeals.

And I think that comes into play and is important later on.

The case goes back down.

The new judges enter into a settlement.

They give the plaintiffs essentially everything they want.

And in some instances, I believe they give them the relief that the Court of Appeals says they were not entitled to.

And I think that may come back and be important on this most recent ruling once it is appealed.