Federal police against ‘judge shopping’ is guidance, not binding, officials say

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By journalsofus.com

Leaders of the federal judiciary on Friday released the text of a revised policy leader District courts will randomly assign judges in civil cases that have state or national implications, making clear that the policy is a recommendation and that they cannot force district courts to follow it.

The Judicial Administration and Case Management Committee of the Judicial Conference of the United States, the policymaking body for federal courts, released the guidance after receive intense pushback about the change of the judges, conservative legislators and judicial experts.

On Tuesday, conference officials announced that cases with state or national implications that are filed in single-judge divisions it should no longer be automatically assigned to judges who presides there. These divisions exist in rural areas of the country, where courts are far apart.

District courts can continue to assign cases to a single-judge division if those cases do not seek to enjoin or order state or federal actions through declaratory judgments or injunctive relief, the Judicial Conference said. When random assignments are required, the case must be assigned to a judge within the same judicial district.

The policy does not apply to criminal or bankruptcy cases, according to the memo released Friday. “Case assignment in the context of bankruptcy remains under study.”

The memo, shared with district court judges across the country, includes guidance explaining how judges could follow the updated rule “while recognizing the legal authority and discretion that district courts have with respect to the allocation of cases”.

Judicial Conference officials said they intend to address widespread concerns about “judge shopping,” or filing a lawsuit in a court where the only judge is known or suspected to be sympathetic to a particular cause. The tactic has generated scrutiny in abortionimmigration and environmental cases, among other hot topics, as well as in patent casesthat have been concentrated in a single judge court in the Waco division of the Western District of Texas.

But the proposed changes to address concerns have generated a wave of new objections, with some saying the new policy violates federal statute 28 USC 137, which says the chief judges of each district court are responsible for assigning cases.

In Friday’s memo, the committee said it was giving instructions on how to discourage searches for judges, not issuing a direct mandate, which would conflict with the case assignment authority of the chief justices.

The policies and accompanying guidance “should not be viewed as undermining a court’s authority or discretion,” said Jackie Koszczuk, spokeswoman for the Administrative Office of the U.S. Courts. “Rather, they establish several ways for courts to align their case assignment practices with the Judicial Conference’s long-standing policy of random case assignment.”

Russell Wheeler, a judicial expert at the Brookings Institution, said the guidance “suggests, without saying so directly,” that conference officials are acting under their authority under federal statute 28 USC 331 to “submit suggestions and recommendations to the various courts.” to promote uniformity.” of management procedures and the expeditious conduct of judicial matters.”

“The confusion has been resolved and the Guide to First Reading seems eminently sensible,” Wheeler said in an email.

“This guidance was helpful,” Chief Judge Randy Crane of the Southern District of Texas wrote in an email. “He made it clear that the policy adopted by the Committee and the Conference was not a mandate. As such, he does not conflict with the legal authority of each court to manage your file. The guidance reflects that it is only an encouragement to the courts.”

Democratic and Republican members of Congress, the biden administration and organizations like American Bar Association have raised concerns about the selection of judges in the past, and Chief Justice John G. Roberts Jr. also highlighted the issue in his 2021 year-end report of the Federal Judicial Branch.

In November 2021, Sen. Thom Tillis (R-N.C.) and then-Democratic Sen. Patrick Leahy of Vermont criticized the “extreme concentration” of patent cases in U.S. District Judge Alan Albright’s division in Waco. in a letter Addressed to Roberts, who oversees the Judicial Conference, the senators asked the chief justice to order the policymaking body to investigate the matter and implement reforms.

“We believe this creates an appearance of irregularity that damages the reputation of the federal judiciary for the fair and equal administration of the law,” they wrote.

In issuing its guidelines, the Court Administration and Case Management Committee noted that “public confidence in the case assignment process requires transparency” and suggested that judicial districts post their case assignment rules on their websites. and “avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge” unless there is a specific determination that the case should be heard in a particular location.

“The Judicial Conference’s long-standing policies supporting random assignment of cases and ensuring that district judges remain generalists discourage both the search for judges and the assignment of cases based on the perceived merits or abilities of a particular judge. “, reads the memo.

Much of the backlash against the new policy direction came from conservative judges and lawmakers, who accused the Judicial Conference and Democrats such as Senate Majority Leader Charles E. Schumer (New York) of a power grab. to conservative jurists in isolated jurisdictions.

Two days after the revised policy was announced, before details were made public, Senate Minority Leader Mitch McConnell (R-Ky.) sent letters to about a dozen chief justices across the country advising them to ignore the change, saying it was up to them “to manage their court’s caseload in accordance with the dictates of circumstances and conventions.” local”.

The letter was also signed by Sen. John Cornyn (R-Texas) and Tillis, who in 2021 questioned the concentration of patent cases in Waco. A spokesman for Tillis did not respond to a request for comment on the senator’s position Friday or early Saturday.

On Friday, after the text of the new guidance was released, a conservative judge on the U.S. Court of Appeals for the Fifth Circuit said he was “glad to see that people seem to be backing off.”

“Judges should follow the law and leave politics to Congress,” U.S. District Judge James Ho said in an email. “The last thing we should do is manipulate the rules to favor a particular political point of view.”

Other judges have expressed concerns about practicality.

Chief Judge Alia Moses of the Western District of Texas said it was difficult to imagine how a policy of randomly assigning cases would work in her remote district, where the next courthouse may be several days’ drive away. The desire to avoid directing a specific lawsuit to a particular judge “is understandable,” Moses said in an email, “but difficult to apply in the real world in a district that is 93,000 square miles in size.”

In announcing the policy Tuesday, Chief Judge of the U.S. Court of Appeals for District 6 Jeffrey Sutton, chairman of the Judicial Conference executive committee, He told reporters that one option to address geographical distance issues could be to hold some court proceedings online.

Wheeler, the judicial expert, questioned whether the conference will be able to persuade all district courts to follow the policy. He said judicial leaders could use the rule-making process to amend the Federal Rules of Civil Proceduregoverning civil proceedings in district courts.

But given the “hostile reaction, especially from those where the practice of searching for judges has flourished,” such a move would be “hard work,” he said.

“That leaves Congress. Dream in.”

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