ABA House of Delegates Adopts Resolution Opposing Single-Judge Divisions (Updated)

Long before Judges Kacsmaryk and Tipton, there was Judge William Wayne Justice.

This week, the American Bar Association held its annual meeting. The House of Delegates adopted a resolution that opposed single-judge divisions:

RESOLVED, That the American Bar Association urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single United States District Judge without random assignment when such cases seek to enjoin or mandate the enforcement of a state or federal law or regulation and where any party, including intervenor(s), in such a case objects to the initial, non-random assignment within a reasonable time; and

FURTHER RESOLVED, That the American Bar Association urges that, in such situations, case assignments are made randomly and on a district-wide rather than division-wide basis.

These resolutions have no force on their own. Indeed, I have written how the ABA's influence has waned significantly, so it is difficult to put much stock in these sorts of statements.

On the merits, the resolution does not explain why these sort of assignments should be avoided. It simply takes it as a given that single-judge divisions are bad. But this issue is not self-evident. Absent allegations of bias, whether actual or perceived, what exactly is the reason for objecting to the assignment? The Department of Justice has attempted to make this argument in several Texas district courts. But, in my view at least, DOJ never actually makes the case. The most they can say is that "judge-shopping" affects how the public perceives the judiciary, and that perception problem warrants reassignment. That argument only works, though, if the judges who are shopped are behaving improperly. If the judges are neutral–as DOJ concedes they are–then any perception problem is just that, a perception. Indeed, DOJ can't even say what that perception is.

The bigger underlying issue is a simple fact: judge-shopping is not new. Every lawyer who has ever noticed a "related case" was trying to shop for a judge. Sure, there are issues of economy when a judge, already familiar with an issue, hears a "related" case. But that doctrine is malleable, and allows litigants to request a judge who, based on past practice, will be favorable.

More importantly, progressives have long taken advantage of judge-shopping in single-judge divisions. In a recent decision, Judge Wesley Hendrix of the Northern District of Texas-Lubbock Division denied DOJ's motion to transfer a case. His opinion explains that "single-judge divisions are not new." To no one's surprise, lawyers have long brought "suit in their preferred forum." Judge Hendrix writes about Judge William Wayne Justice:

In fact, history is replete with examples of plaintiffs repeatedly litigating in the same court. For example, the federal government chose to bring numerous Texas public-school desegregation cases before the same judge in the Eastern District of Texas. [FN3]

[FN3] See United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285 (E.D. Tex. 1969); United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970); United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971); United States v. Texas, 356 F. Supp. 469 (E.D. Tex. 1972); Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978); United States v. Texas, 498 F. Supp. 1356 (E.D. Tex. 1980); United States v. Texas, 523 F. Supp. 703 (E.D. Tex. 1981); United States v. Texas, 506 F. Supp. 405 (E.D. Tex. 1981); United States v. Texas, 628 F. Supp. 304 (E.D. Tex. 1985); see also Frank R. Kemerer, William Wayne Justice: A Judicial Biography 118 (University of Texas Press, 1st ed. 1991).

Never heard of Judge Justice? You should have. Perhaps his most familiar decision was the Supreme Court case that came to be known as Plyler v. Doe. He also single-handedly controlled the Texas prison system for nearly two decades. His obituary in the New York Times observed that "he came to be called the most powerful man in Texas by those who agreed with his largely liberal decisions and the most hated by those who differed."

How did Judge Justice attract so many significant cases? He long held court in single-judge divisions. And civil rights litigants routinely filed cases in his court. David Richards, a civil rights litigator, observed in the Texas Observer how liberals judge-shopped to Judge Justice:

In the not so secret world of lawyers, venue is frequently the linchpin of success in litigation.  Where a case is tried may be the most important factor in outcome. In short order the handful of Texas civil rights lawyers began to beat a path to Tyler, where the Judge heard every case filed in federal court.  He issued landmark decisions on reform of the Texas juvenile justice system, the Texas prison system and the education of alien school children, to name just a few.  Predictably, the Tyler docket became overcrowded and a new judge was assigned to hear a portion of the cases.  We were forced to scramble a bit in our venue search, for a while one was assured of getting Judge Justice if you filed in Sherman, Texas then that forum became uncertain.  In my last filing before him I had to pursue the Judge to Paris, Texas, where for a short time he had the entire docket.

It is not a secret that Judge Justice took steps to ensure that he maintained single-judge divisions. Mark Barringer wrote a book about case assignments on the Eastern District of Texas. It seems that between 1968 and 1970, Judge Justice had 100% of the filings in Tyler, Sherman, Paris, and Marshall. Between 1970 and 1979, Judge Justice maintained 100% of the cases filed in Paris. I could not determine the status of Judge Justice's docket between 1979 and 1982. In 1982, the Paris division was divided, so that Judge Justice would hear 2/3 of those cases. In 1984, Judge Robert Parker, a Carter appointee, was given 100% of the cases in Marshall and Paris. And in 1985, Judge Parker was given 100% of the assignments in Marshall, Texas. In 1992, Judge Justice was once again given 100% of all pending and new Paris division cases. A 1995 order preserved Judge Justice's 100% assignment of Paris cases. Judge Justice would take senior status in 1998, and he moved to Austin. That year, his case assignments were removed. The Paris division was removed by Congress in 2003.

Here is a summary that I think is complete. (Please e-mail me if I'm missing something; subtweets with screenshots are less helpful). Judge Justice appears to have had all of at least one division's case filings for the following periods:

• 1968-1970: 100% of Tyler, Sherman, Paris, and Marshall
• 1970-1979: 100% of Paris
• 1979-1982: Inconclusive
• 1982-1992: No 100% divisional assignment
• 1992-1997: 100% of Paris
• 1997-1998: No 100% divisional assignment

Today, Judge Justice is valorized on the left. The University of Texas named its public interest law center after Justice. Imagine that? The University of Texas honors a judge who sat in a single-judge division for decades, and routinely issued rulings in favor of like-minded litigants. Thankfully, there was no Twitter in the 1980s. Not everyone was so pleased. Professor Lino Graglia of the University of Texas said that Justice "wreaked more havoc and misery and injury to the people of Texas than any man in the last 25 years."

Long before Judges Kacsmaryk and Tipton, there was Judge William Wayne Justice. And Judge Justice is not alone. I have written about Judge Frank Johnson, who held a single-judge division in Montgomery, Alabama. Johnson, like Judge Justice, is lionized as a hero of the civil rights movement. I'm sure there are others.

As far as I am aware, the ABA did not adopt a resolution opposing Judge Justice's single-judge divisions. Judge-shopping is not new.

Update: The ABA also released a report in support of the resolution.