US federal judiciary adopts policy to curtail 'judge shopping'

Credit: REUTERS/Andrew Kelly

By Nate Raymond

March 12 (Reuters) - The U.S. federal judiciary on Tuesday adopted a new policy aimed at curtailing "judge shopping" by state attorneys general, activists and companies who file lawsuits challenging government policies in courthouses where one or two sympathetic judges hear most cases.

The U.S. Judicial Conference, the judiciary's policymaking body, at a meeting in Washington, D.C., approved a policy that would require lawsuits seeking to block state or federal laws to be assigned a judge randomly throughout a federal district.

U.S. Circuit Judge Jeffrey Sutton, newly appointed chair of the Judicial Conference's executive committee, said the change was prompted by the "plethora of national, statewide injunctions" being issued by judges in such cases.

Nationwide injunctions allow a single judge in one federal district to block implementation of new rules across the entire U.S.

The policy change followed calls by Democratic President Joe Biden's administration, Democratic lawmakers, and the American Bar Association for the judiciary to eliminate case assignment mechanisms that allow litigants to effectively choose which judges will hear their challenges to government policies.

Those proposals came in response to concern over lawsuits filed in so-called single-judge divisions in Texas by Republican state attorneys general, conservative activists, and more recently companies and business groups challenging government policies.

Texas' smaller federal courthouses outside of Houston and Dallas in cities like Fort Worth, Amarillo or Lubbock whose one or two primary judges are Republican appointees, were the destination of choice for many of those lawsuits.

Many of the judges in those courthouses have a record of regularly siding with conservative litigants in rulings that have stymied Biden's immigration policies, invalidated gun control measures and blocked measures aimed at protecting LGBTQ rights.

By mid-February, Republican Texas Attorney General Ken Paxton had filed 37 lawsuits against the Biden administration in his state's district courts, 23 of which had at least a 95% chance of drawing the judge the state got, according research by Steve Vladeck, a law professor at the University of Texas.

The tactic gained national attention after conservative litigants filed a lawsuit before U.S. District Judge Matthew Kacsmaryk in the single-judge division of Amarillo, Texas, seeking to suspend approval of the abortion pill mifepristone, which he ordered in April.

Kacsmaryk, an appointee of former Republican President Donald Trump, was previously a conservative Christian legal activist involved in anti-abortion causes.

The U.S. Supreme Court has allowed the pill to remain on the market while it considers appeals in the case.

During a press conference following the Judicial Conference's closed-door meeting, Sutton noted that concerns about forum shopping and nationwide injunctions had been lingering for around a decade and that the policy was not just being adopted because of Texas.

Democratic attorneys general during Republican former President Donald Trump's administration had likewise sought out favorable venues to sue in to block his policies, such as his travel ban on seven mainly Muslim nations.

But, Texas' federal court have provided Republican activists a unique advantage because its four districts are broken into 29 divisions, the smallest of which have just one or two judges tasked with hearing cases filed there. Local rules had largely kept cases before judges in the division where they were filed.

Sutton said there were also "good historical reasons for single judge divisions" like those in Texas, saying "you want to have cases resolved locally in front of the jurors for whom the issue might be relevant."

The new policy as a result only applies to lawsuits seeking to bar or mandate state or federal actions. Those cases will now be assigned to judges throughout a federal district, rather than stay in the division in which they were filed.

"We get the idea of having local cases resolved locally but when the case is a declaratory judgment action, national injunction action obviously the stakes of the case go beyond that small town or that division," Sutton said.

(Reporting by Nate Raymond in Boston; Editing by David Gregorio and Alexia Garamfalvi)

((Nate.Raymond@thomsonreuters.com and Twitter @nateraymond; 347-243-6917; Reuters Messaging: nate.raymond.thomsonreuters.com@reuters.net))

The views and opinions expressed herein are the views and opinions of the author and do not necessarily reflect those of Nasdaq, Inc.

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