The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

Florida Judge Seeks To Enjoin Parties Not Before Her Court

And she is considering holding the Florida Attorney General in contempt for pointing out the limits of the judge's order

|

Florida enacted a law that permits law enforcement officials to arrest illegal aliens who enter the state. The ACLU filed suit against the state Attorney General, statewide prosecutors, and state attorneys, from enforcing the law. But the complaint did not name Florida law enforcement officials. Two days later, the District Court Judge entered an Ex Parte TRO "prohibiting Defendants and their officers, agents, employees, attorneys, and any person who are in active concert or participation with them from enforcing" the Florida Law. At a subsequent hearing, the Judge asked if she could bind all law enforcement officials, even if they are not parties or subject to the Defendants' control.

Attorney General James Uthmeier sent an email to state law enforcement officials. The email stated, in part, "It is my view that no lawful, legitimate order currently impedes your agencies from continuing to enforce Florida's new illegal entry and reentry laws."

The Attorney General's brief explains the position:

Those law-enforcement officers do not fit into the "traditional understanding of whom a federal injunction binds." Robinson, 83 F.4th at 878. They are not parties. Nor are they Defendants' "officers or agents," for Defendants have no power to control or direct their behavior. Fed. R. Civ. P. 65(d)(2)(B). And they are not invariably "in active concert or participation" with the Defendants, Robinson, 83 F.4th at 878, because independent law-enforcement officers are not "in privity" with Defendants, id. at 881. While the Attorney General communicated the Court's view that law enforcement should not make arrests under SB 4-C, he did so solely to comply with this Court's order—which Defendants maintain is unlawful. At most, this Court's injunction may extend only to non-party law-enforcement officers that "aid and abet" Defendants in violating the injunction, id. at 879—a vanishingly narrow group, seeing that Defendants have committed to abide by this Court's orders. The Court's injunction is overbroad to the extent it declares otherwise.

This is quite right. If the Plaintiffs sued the wrong defendants, that was their choice. We saw something similar during the same-sex marriage litigation in Alabama. The plaintiffs did not sue all of the probate judges, and as a result, judges who were not sued could not be subject to the injunction. The judge in that case acknowledged that the injunctions did not compel any nondefendant officers to issue licenses and did not compel issuance of licenses to any nonplaintiff couples. It took a class certification to bring in all of the probate judges and plaintiffs. (I discuss this history at pages 272-276 of this article.)

People often complain about universal injunctions against the federal government. But there are similar injunctions against state governments. The District Court cannot enter a "universal injunction" against all officials in the state. Justices Gorsuch and Kavanaugh made this point clear in Labrador v. Poe. The correct approach would be to certify a class of all named law enforcement officials. Of course, I don't think you can certify a class with an ex parte TRO, but D.C. federal judges do so consistently now.

The District Court judge is also determining whether to hold the Attorney General in contempt.

A Miami federal judge said Tuesday she was "surprised and shocked" when state Attorney General James Uthmeier first told police officers to obey her order not to arrest undocumented immigrants entering Florida but later said he "cannot prevent" them from making arrests under a new state law. U.S. District Judge Kathleen Williams is considering whether to find Uthmeier in contempt of court.

…

"What I am offended by is someone suggesting you don't have to follow my order, that it's not legitimate," Williams said.

The judge's order with regard to the named parties, and those under their supervision, was legitimate. But courts cannot issue orders against unrelated parties. The Attorney General, as the chief legal officer of the state, gave legal advice to the state. That is not a contemptible offense. I see shades of Judge Boasberg here, who urged the plaintiffs to replead their case, certified a class, ordered the planes to turn around, and then sought to hold the executive branch in contempt.

Worse still, this was all done following an Ex Parte TRO where an appeal is not even possible. I think contempt proceedings during these fast-moving proceedings, where there is not even an opportunity for an appeal, are a mistake.

The real issue, I think, is that judges have become too confident in their power to issue universal ex parte TROs. But when the executive branch seeks to hold a court to the conventional rules, the judges recoil.

To quote Justice Alito, "Both the Executive and the Judiciary have an obligation to follow the law." The executive branch has to enforce orders that bind the executive branch. And Courts cannot enjoin non-parties. Each branch must stay in their lane.