When Jane Doe told the Office of Refugee Resettlement (ORR) last month that she did not want an abortion and did not want Rochelle Garza and Myles Garza as her lawyers, she may have unwittingly exposed questionable conduct by abortion-rights advocates seeking to circumvent Texas’ parental notification law.
Marc Rylander, the Director of Communications for the Texas Attorney General’s office, confirmed yesterday in a statement that its office “opened an investigation into this situation after reading public reports indicating a possible abuse of the judicial bypass law.” Rylander added that they “will continue to be vigilant any time the lives of mothers and children are at stake.”
News first broke of the potential abuse of the judicial bypass law in early February when the ORR filed papers in federal court to prevent the Garzas from forcing the government to bring Doe before a state court judge for permission for an abortion she did not want. At that time, few facts were known. But on Thursday, in ruling that the ORR should instead bring Doe before a federal judge to state her wishes, the Fifth Circuit Court of Appeals filled in some of the details — and they are suspect.
Here’s what we know now: Jane Doe is a “barely 14-year-old” girl who was detained when she tried to illegally cross the border from Mexico into the United States. The ORR, which is charged with caring for unaccompanied minors, placed Doe in a shelter in Brownsville, Texas. There, in mid-January during a medical examination, doctors learned that Doe was 6 weeks pregnant.
The attorneys of record for Jane Doe on appeal, Myles Garza and Susan Hays — more on her shortly — added additional “facts” in a brief to the Fifth Circuit. But as Judge Edith Jones noted in her partial concurrence and partial dissent to Thursday’s ruling, “These ‘facts’ are nowhere in the record before us, and are described only ‘to the best information and belief’ of the lawyers—which is odd, since they were personally involved in one conversation with Doe and in presenting their ex parte case to the state court. The ‘facts’ are stated neither in their capacity as ‘officers of the court’ nor as a declaration under penalty of perjury. ORR, in contrast, supported its motion for stay with an official’s properly executed affidavit.”
But as Garza and Hays tell it in their legal brief, Doe expressed an interest in “obtaining an abortion to a ‘person interviewing her about her needs.’ That person referred Jane Doe to a nonprofit organization that assists minors in Texas who are facing unplanned pregnancies and need help with legal issues, including access to judicial bypass.” In turn, “That nonprofit referred the matter to Myles Garza and Rochelle Garza of Garza & Garza Law, PLLC.” The Garzas later met with Doe, who apparently indicated she wanted an abortion, but according to Doe they “made” her sign a form naming them her legal representatives for immigration matters.
The Garzas proceeded to state court and sought to be appointed Doe’s representatives for purposes of obtaining a judicial bypass to the Texas law requiring parental notification prior to an abortion. The state court judge appointed Rochelle to serve as Doe’s guardian ad litem and named Myles her attorney ad litem. The Garzas also scheduled a February 12 date for Doe to appear before a state court judge for a judicial bypass hearing. However, after Doe told the ORR that she did not want an abortion and did not want the Garzas help any more, the ORR refused to take her to state court, and instead filed legal documents to remove the case to federal court.
The district court refused to take the case and instead ordered the ORR to head back to state court. Last week, the Fifth Circuit ruled that a federal judge — not a state judge — should speak with Doe alone to determine whether she still desires an abortion, and, if not, the matter is over.
On Friday, I explained that while the court correctly ruled a federal judge should determine Doe’s intent, the remainder of the opinion makes a mockery of the Supremacy Clause by subjugating the federal government to the whim of a state court judge. What I didn’t explore, though, were the facts underlying the case and what it reveals about nonprofits that provide so-called “help” with legal issues related to the Texas judicial bypass system.
Although the Fifth Circuit did not name the “nonprofit organization” to whom Doe was supposedly referred, Hays, who was brought on, presumably by the Garzas, to serve as Doe’s lead attorney on appeal is the Legal Director and co-founder of Jane’s Due Process. On its webpage, Jane’s Due Process boasts that “it provides free legal representation to any minor seeking judicial bypass for an abortion.”
Doe’s referral to the Garzas by “the nonprofit organization that assists minors in Texas [with] … access to judicial bypass” is troubling. Myles and Rochelle Garza practice law together as Garza & Garza, PLLC, and after meeting with Doe briefly, they filed papers in state court for Rochelle to serve as Doe’s guardian ad litem and for Myles to represent Doe as her attorney ad litem, or “for the lawsuit.”
That just means they sought this appointment “for the lawsuit” related to the judicial bypass proceedings to the parental notification law. The two roles differ: “The primary duty of the guardian ad litem is to seek a court ruling consistent with the guardian’s assessment of the best interest of the minor. The attorney ad litem is obligated to seek the objective desired by the client, regardless of his or her assessment of the consistency of that objective with the minor’s best interest.”
Before 2016, Texas’s judicial bypass law allowed an attorney to serve as both a guardian ad litem and an attorney ad litem, so long as “there is no conflict of interest in the same person serving” these dual roles. But effective Jan. 1, 2016, the judicial bypass law expressly provided that the same attorney could not serve in these dual roles.
While the appointment of law partners may not technically violate the text of the law, it clearly violates the spirit of the law. And the entire scenario is extremely sketchy: A “barely 14-year-old” girl reaches out to an organization for help in obtaining a judicial bypass to parental notification. Jane’s Due Process promotes itself as having “a network of referral attorneys across Texas,” “trained to take judicial bypass cases,” and informs girls that “[i]f you want to apply for a judicial bypass, we will automatically assign you one of our attorneys.” Doe is directed to the Garza & Garza law firm, and then Rochelle is appointed her guardian ad litem — “to represent the best interest of the minor” — while her partner-in-law is to do Doe’s bidding, except in this case, he doesn’t because Doe no longer wants an abortion.
Jane’s Due Process seems bent on circumventing the parental notification provisions by referring girls to attorneys who will advocate for a judicial bypass. For instance, Jane Doe bemoans any state court decision that a minor must inform a parent before having an abortion, venting in its 2016 action report that, “In the years before 2016, two to three bypasses were denied,” but after passage of “the most restrictive parental involvement law in the country, those numbers have quadrupled.” And should there be any doubt about the pro-abortion prejudices of Jane’s Due Process, consider that the organization tells the girls to schedule an ultrasound appointment at an abortion clinic, “NOT at a crisis pregnancy center.”
While it may be an attorney ad litem’s duty to virguously push for a judicial bypass of the parental notification requirement, if that is the girl’s wish, the guardian ad litem must represent the girl’s best interest and that necessitates an unbiased consideration of the situation. Yet, in this case, the guardian appointed to look after Doe was referred by an abortion-rights’ advocate.
Judge Jones recognized this reality in her dissent in Doe v. ORR, writing there were several assumptions in the majority’s analysis that “must be exposed in order to prevent the continued sidesteping of ORR’s custodial role by advocacy groups seeking to extend abortion rights. Doe is a pawn in a fight for control over the federal government’s relationship with unaccompanied alien children who are in custody because they haven’t been legally admitted to the United States.”
Judge Jones adds that “the district court, aided by a neutral guardian ad litem and if necessary, a conflict-free attorney ad litem, should proceed to resolve whether an abortion is in the best interests of the ‘barely-14-year old’ minor.” In fact, as Judge Jones explained, the ORR “suggested a highly qualified attorney to become Doe’s neutral guardian ad litem in this federal court matter. ORR cogently observes that if the Garzas truly had the best interests of Doe in mind, they would not oppose the agency’s request that the federal district court appoint a truly neutral guardian ad litem.”
The two-judge majority in the Doe case calls Judge Jones’ comments “needless judicial spin,” and stresses that Jane Doe’s lawyers “serve as officers of the court subject to its rules of candor … ” But those same rules of candor governed the attorneys involved in Garza v. Hargan — where the same Rochelle Garza served as the original Jane Doe plaintiff’s guardian ad litem. In that case, the ACLU, which represented Garza in her role as guardian, argued that an unaccompanied, unadmitted, illegal alien minor had a constitutional right to an abortion.
After winning a victory from the en banc D.C. Circuit, the ORR informed the ACLU it would be seeking a stay the following morning to appeal the case to the Supreme Court. But the ACLU, who had agreed to keep the government apprised of the timing of Jane Doe 1’s abortion, instead moved the appointment up a day and into the early-morning hours to prevent an appeal to the Supreme Court.
The Department of Justice asked the Supreme Court to vacate the appellate court’s decision based on the ACLU’s “candor” in that Garza case. To date, the high court has discussed the case at five separate conferences, the most recent being Friday. And in preparation for the fifth conference, the justices requested the sealed records from the lower court, showing that the Supreme Court is taking this matter seriously and that at least one justice is likely authoring a decision on the matter.
Meanwhile, the Texas Attorney General’s investigation into Rochelle Garza and Myles Garza is on-going. On Monday, Linda Eads, a lawyer representing the Garzas, responded to the Attorney General’s February 20, 2018, investigative letter. The majority of Eads’ 5-page “response,” challenged the federal government’s conduct and claims, as well as “the tone of your questions to the Garzas.”
For instance, Eads relayed the Garzas’ belief that the documents the ORR produced to show that Jane Doe no longer wishes to terminate her pregnancy are “not credible.” Eads added that the federal case contained “information that likely came from the state court file” and requested “that the Office of the Attorney General investigate how the confidential information filed in the judicial bypass case in the state court in Cameron County became known to federal employees who filed the removal petition in the above-titled matter. Apparently, some of this confidential information also became known to media represetatives. See Footnote 13 of your letter.”
The remainder of the letter mainly claimed that the Garzas could not answer the Attorney General’s questions without violating their duties of confidentiaility under Chapter 33 of the Texas Family Code. However, Eads did confirm that “Ms. Garza has been apointed as a guardian ad litem in several other judicial bypass applications,” and that “[n]o ethical walls have been established between Mr. Garza and Ms. Garza.” The Garzas’ attorney claimed that there was “no reason” to establish such a wall,” because “[t]he Garzas are each pursuing the same goals for their client at this time. There is no conflict.”
However, given the disparate duties of a guardian ad litem and an attorney ad litem, and the Texas legislature’s recent amendment to the judicial bypass law requiring different individuals serve in those roles, it is unclear whether the Texas Attorney General’s office will agree with Eads’ assessment. In fact, in its investagative letter to the Garzas, the Attorney General asked, “What ethical walls have you established between Mr. Garza and Ms. Garza within the firm of Garza and Garza PLLC to ensure that you do not violate Texas Family Code section 33.003€, prohibiting the guardian ad litem from also serving as the minor’s attorney ad litem?”
It may be some time before we know the results of the Texas Attorney General’s investigation into the Garzas. On Friday, however, we will likely known whether Jane Doe has rid herself of the Garzas when federal judge Rolando Olvera holds an ex parte hearing at 2:00 p.m., presumably to comply with the Fifth Circuit’s remand directive that he determine Jane Doe’s desires concerning her pregnancy. While that hearing will be sealed, as the Fifth Circuit noted, if Doe confirms that she does not want an abortion, the matter will be over — at least for her.
The Garzas and the ACLU must wait a little longer to learn their fate.