Forum Shopping in California

Just leave your heart, and nationwide injunction, in San Francisco.

California, like Texas, is a big state. And there are many districts and divisions in which the California Attorney General can file suit. Perhaps the most logical choice would be the Sacramento Division of the Eastern District of California? That's where the state capitol is located after all. At least based on my recollection, during the Trump years, the California Attorney General did not choose this venue. Why could this possibly be? Well there are six district judges in that duty station: three were appointed by President Obama, and three were appointed by the Presidents Bush. 50/50 is lousy odds. But you know who did file suit against California in Sacramento? The United States Attorney General, who challenged California's sanctuary laws in the state capitol. He was willing to take his chances there. Anything is better than the city by the bay.

Based on my recollection, the California Attorney General would routinely file strategic cases in the San Francisco division of the Northern District of California. And, wouldn't you know it, 100% of the judges in that division were appointed by Democratic presidents. All of them. Presidents Trump and George W. Bush had zero nominees to the San Francisco division. And given that these judges had to survive the blue slip process led by Senator Dianne Feinstein, I doubt these judges were closet conservatives. For example, one of President George H.W. Bush's nominees to the San Francisco division was none other than Judge Vaughn Walker, who presided over the Prop 8 case. Indeed, I suspect that many of the Reagan, Bush 41, and Bush 43 district court appointees in California were in fact moderates-leaning-liberal, in order to get the blue slip. It's a miracle that St. Benitez made it through in San Diego. Alas, he is always under attack, as his Second Amendment opinions are automatically en banc'd by circuit rule (or something like that).

For the California Attorney General, there is no need to judge shop or forum shop. Just leave your heart, and nationwide injunction, in San Francisco.

There are other examples, of course. The New York Attorney General could file strategic suits in Albany, the state capital. But it routinely files in the Southern District of New York. By contrast, conservative litigants challenge COVID restrictions and gun control laws in Albany. There is a 50/50 shot at drawing a Republican-appointed judge. The Maryland Attorney General could have sued Trump over the Emoluments Clause in the Baltimore division of the District of Maryland, but he chose the Greenbelt division. Lo and behold, all the judges in Greenbelt are Democratic appointees. In New Jersey, the Attorney General recently tried to transfer a Second Amendment from a Trump appointee to a more favorable judge. Don't forget liberal judge shopping in Texas to the Austin and Laredo divisions. And so on.

All litigants carefully choose their forums, including state Attorneys General. I find this debate over forum-shopping nearly as exhausting as counting how many times the Supreme Court takes action on the emergency docket. Sing it Tony.

Comments

[Frank Drackman]

Ironic that Gavin Newsom-Guilfoyle's embryonic 0-24" candidacy will be "aborted" in the womb, not now, but in South Carolina, when he has to explain why the murderer of a baby (OK, it's the DemoKKKrats, murdering babies doesn't get you cancelled) can't get the Death Penalty
https://www.cbsnews.com/news/goshen-shooting-suspects-arrested-california-killed-6-people-baby/
This was effin Visalia, it's practically Iowa if you replaced all the Gringos with hard working Mexicans,
and before any of you Poindexters tell me they still have the Death Penalty in California (I know, 699 on Death Row, more than Texas, Florida and (almost) Alabama combined) No executions since 2006, when was the last murder??
And Newsome did take credit for the "Moratorium" (on executions, not murders)
California Gov. Gavin Newsom signed an executive order on Wednesday that put a moratorium on the executions of the 737 inmates currently incarcerated in the Western Hemisphere’s largest death row.

While the order is largely symbolic – California has not executed an inmate since 2006 amid legal challenges – it still marks a major victory for opponents of capital punishment given the state’s size and its national political influence.

“I’ve gotten a sense over many, many years of the disparity in our criminal justice system,” Newsom said during a press conference on Wednesday. “We can make a more enlightened choice.”

Frank

[Dr. Ed 2]

NH state law says their primary must be first. I can see them refusing to put Brandon on the ballot -- and ignoring his victory.

Remember that the state legislature has the right to do whatever it pleases.

[Dr. Ed 2]

https://www.msn.com/en-us/news/politics/joe-bidens-primary-plan-will-fail-democrats-in-new-hampshire-promise/ar-AA178ALF

"The New Hampshire legislature in 1975 enacted a law allowing the secretary of state to move the primary a week before any other state’s election."

[Krychek_2]

So what would happen if every state passed a law that their primary must be first?

[Calliope]

Then we can get to the true dream of the political class, an election season that never ends.

[Mr. Bumble]

With the time it takes to count ballots and the media speculation on who the next candidates will be, I thought we already achieved that.

[John F. Carr]

The same thing that would happen if two baseball players got contracts with the right to be the highest paid player.

[hoppy025]

They should just refuse to put on the ballot anyone who shits his diapers. That way they don't have to revise the law next time.

[Androcles]

I was with the US Justice Department for over 3 decades, with many lawsuits against states. We always, as a matter of policy, filed suits in the district in which the state capital was located. Always.

[Frank Drackman]

Wow, that's so interesting.

[Dr. Ed 2]

But you had principles....

[Androcles]

I think the judges -- and they were all 3-judge courts (Voting rights) -- would have been very irritated at DoJ forum shopping. They always were irritated enough to have 3 judges tied up.

[SgtDad]

Another example: W.D. Wash, Seattle Div. vs. Tacoma Div. The difference is fading, though.

I’m waiting for lawyers to get sued for malpractice alleging negligent forum shopping.

[Dilan Esper]

2 posts carrying water for judge shopping. How completely intellectually dishonest.

[Dilan Esper]

To be clear, if Blackman thinks it is great for obscure ideologues to be specifically selected in single judge districts because the plaintiff knows they will ignore controlling precedent to enter a NATIONWIDE INJUNCTION AGAINST THE PRESIDENT OF THE UNITED STATES, he should make that argument. But it is dishonesty of the first order to engage in this sort of misdirection instead of defending the actual practice.

[Dilan Esper]

I'm not sure if Prof. Volokh is reading the comments, but it would be nice to invite Prof. Steve Vladeck in (he's the Professor that Blackman is subtweeting in these posts) to respond to Prof. Blackman. Prof. Vladeck knows this subject backwards and forwards and I suspect it would not turn out well for Prof. Blackman.

[MonitorsMost]

I think Vladeck’s op-ed is pretty dishonest in trying to distinguish single judge districts from other types of forum shopping. I think Blackman is correct to point out that it’s not an honest line to draw when filing in the San Francisco division is effectively the same result as filing in the Amarillo division.

Vladeck is in the same realm as Chemerinsky where the level of intellectual honesty plummets in an op-ed directed towards a lay audience which is dramatically different than the honesty directed towards a lawyer audience. Lowering yourself to post-Trump Blackman is not exactly a good standard of practice.

[N/A]

I'm not sure that's quite right. Even judges nominated by the same party have an array of idiosyncrasies and differing viewpoints. Just like Republican-appointed judges are not monolithic, neither are Democratic-appointed judges. I get it--filing in SF probably means getting a judge with a viewpoint advocates for "liberal" causes would prefer. Still, there's a roll of the dice on who it's going to be. That seems different from single-judge districts. There's not even the semblance of a dice roll.

I suppose you could fairly call the dice perfunctory if there's virtually 100% odds they land the way you want (i.e. it's "effectively" the same as a single district). But to the extent appearances are important--and they undoubtedly are in the broader context of adjudicating alleged biases in the judiciary (e.g. consider the standard for a recusal motion)--single judge districts seem to create a problem that a stacked division like SF does not.

I'll also point out that the Austin Division in Texas (i.e. where the state capitol is located) is split 50/50 between republican/democratic appointees, and the democrat was a former USA of a district with one of the heaviest criminal dockets in the country who never (as far as I know) publicly complained about prosecuting immigration cases or took issue with strict border policies. The Austin division not at all comparable to the SF division. But I'd bet most, if not all, of the state AGs bringing cases in Amarillo themselves live in Austin. If nothing else, filing a case 500 miles/an 8-hour drive away from your home base (where you could have just as easily filed) appears a little strange.

In any case, I don't think it's an issue with an easy answer either way. I second the motion for a Blackman/Vladeck debate on the issue hosted here at VC.

[bacchys]

"All litigants" do it, but Blackman the far right hack is especially incensed about Democrats doing it...

[Michael P]

It's hilarious how the mind-readers know that JB is simultaneously defending and criticizing the practice of forum shopping.

[Rev. Arthur L. Kirkland]

It's a miracle that St. Benitez made it through in San Diego.

Because Republicans were going to be bothered by an unqualified, nondescript conservative candidate?

[Adabsurdum]

WRONG! I'm a member of CAND and that's not how it works. Civil cases that don't concern an incident in a particular county get randomly assigned to any CAND division. Local Rule 3-2. Also, SF and Oakland are the same division, even for local actions you're randomly assigned between the two. Ibid. So a state wide action could end up anywhere from San Jose to Eureka.

CACD is even larger of a district, and it makes sense not to file in Sacramento because you can get reassigned to a court very far away. It's also a slower acting court in my experience.

But of course, you only do sufficient research when defending conservatives, like the article about Texas. When you are blindly partisan against liberals, you just say whatever gets you more clicks from the partisans. Always bringing down the intellectual honestly of this blog to cater to the partisans!

[Dilan Esper]

If this is correct, this is a bad enough error that Prof. Blackman needs to offer a correction. You might want to write Prof. Volokh about it.

[Rev. Arthur L. Kirkland]

If you expect this blog to correct a mistake . . . welcome, newbie!

[John F. Carr]

Thanks for the pointer. The policy looks good on paper. Applied to Texas it would prevent liberals from betting on getting Pittman by filing in the Austin and prevent Paxton from getting a sure thing by filing in Victoria.

The Northern District of California has a division with no judges. If you want to try your case in Eureka you must consent to trial before a magistrate.

[John F. Carr]

According to Wikipedia all the active judges in the Northern District are Obama or Biden appointees, so the intra-circuit assignment policy does not affect the odds of getting a Democrat-appointed judge. Three senior judges were appointed by Bushes.

The Eastern District is similar to the Northern. If you are shopping based on the appointing President's ideology there is no reason to prefer Northern over Eastern or Eastern over Northern.

The Central District has a majority of Republican-appointed judges. The Southern District has a few.

[Brian Kennedy]

Is it entirely clear that State AGs can properly choose a district that does not contain the state capital? It has been a while since I looked at the issue (and as a retiree I'm too cheap to subscribe to Westlaw and too lazy too fire it up in any event), but IIRC the issue was undecided, perhaps because defendants are so reluctant to raise venue issues. The 11th Circuit, I recall, has held that Florida is a resident of every district in Florida (duh) for venue purposes as a defendant. But it does not necessarily follow that it is a resident of every such district for venue purposes when it is a plaintiff. Cf. 28 USC 1391(c)(2).

[Brian Kennedy]

I now recall that there were a couple of decisions from the E.D. Pa. a while back that told the Pennsylvania AG that he couldn't file state-plaintiff cases (that didn't have some factual nexus to the E.D. Pa.) in that district, but that he had to file in Harrisburg instead.

[hoppy025]

Forum shopping is only okay when liberals do it.

[EscherEnigma]

Call me when lawyers, as a group, actually want to put a stop to forum shopping.

Honestly, it sounds like one of those things that you could get a large majority of the population behind, but that politicians --and lawyers-- would never get behind.

[Paul McKaskle]

Though I'm no fan of the current California AG, his main office is in Oakland, CA within the Northern District Federal Court. So, it isn't surprising that his office files suits in that district. The AG does have an office in Sacramento, but it is much smaller than the one in Oakland.

The California Supreme Court also sits in San Francisco, not Sacramento (though it does have a small office there and also in Los Angeles and hears cases in both other locations on several occasions each year).

[Xenantaya]

I'm sure I'm missing something, but do the single judge districts really matter for injunctions against federal statutes or programs? I'd think the circuit court where the case is filed is far more important.

Specifically, whether a case challenging a federal statute is before Judge Kacsmaryk, a judge in Austin or Houston, or a panel of three judges from across Texas, after he/she/they rule, that ruling is going to be appealed to the Fifth Circuit. That appeal will come very soon in the litigation if there is a preliminary injunction motion, and probably still quite soon even if there isn't. The Fifth Circuit is going to review the ruling without much, or any, deference given that it presents primarily legal issues, and then make the "final" ruling, subject to cert, right? Or is there some case where the Fifth Circuit deferred to Judge Kacsmaryk's (or some other judge's) ruling in a challenge to invalidate a federal statute, regulation, or policy?

I could understand how in more fact intensive disputes that typically do not involve a PI a single-judge district may be of more concern. If, say, the judge in a one-judge district consistently makes pro-plaintiff Daubert and evidentiary rulings, that may put unreasonable pressure on defendants to settle. And in such circumstances, even if a case gets to the 5th Circuit, they might defer to the judge's abuse-of-discretion rulings. But I don't think the US gov is being cowed into disadvantageous settlements in challenges to federal policies. Happy to be corrected if I'm wrong.

[Bill Falcon]

Counties should be able to leave their home states as long as they can geographically touch or though through other countries leaving. Most of NY would join with western PA to join Ohio, leaving a rump NYC state (a good thing) and so on. Also if a majority of State legistlatures agree, any federal law or judicary decision could be overturned. Time for States to impose themselves on a corrupt federal govt.

[EscherEnigma]

Also if a majority of State legistlatures agree, any federal law or judicary decision could be overturned. </blockquote.
It's called a constitutional convention, and no state is confident enough that things would go their way to try.

[linarobber]

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[TheAvengers]

Do gay men like Vaughn Walker, as they're violently penetrating their "husbands," resulting in an explosive full body orgasm culminating in the ejaculation of gallons of HIV infected semen into their colons, realize how disgusting their lifestyle is?

[MonitorsMost]

No issue with Walker on Prop 8 other than his attempts to flout the video recording of proceeding rules of the district and circuit. His actions were weird but it is a minor quibble.

He was also the king of trying to stop collusive class action settlements, making plaintiffs counsel submit bids on being the class representative.

[Krychek_2]

You obviously think about this a lot.

[EscherEnigma]

Gallons?

You have a very high esteem of the sexual prowess of gay men.

[Dilan Esper]

The whole problem here is because he's being an intellectually dishonest online hack rather than a law professor, Prof. Blackman isn't stating his position at all. Presumably he loves lawless rulings from unelected far right single judge district judges selected by plaintiffs despite their districts having nothing to do with the case that strike down the policies of the duly elected President of the United States (hereinafter LRFUFRSJDJSBPDTDHNTDWTCTSDTPOTDEPOTUS). But he doesn't want to say that outright (perhaps because he knows there is no LEGAL argument that justifies that), so instead he puts two posts up about how single judge districts have advantages and other litigants forum shop. Which are both true but have nothing to do with LRFUFRSJDJSBPDTDHNTDWTCTSDTPOTDEPOTUS.

This is something that dumb randos do in arguments. It's something dishonest politicians do. But it's not something an EDUCATOR should do. He should write a post setting out what his position is, and specifically responding to the (very strong) arguments made by Prof. Vladeck as to why LRFUFRSJDJSBPDTDHNTDWTCTSDTPOTDEPOTUS are bad, instead of this juvenile and entirely dishonest subtweeting.

[Krychek_2]

Right, like the old joke: What’s gray and comes in pints? Answer: Elephants.

[Michael P]

What a monster, to describe legal practices and trade-offs without inveighing for or against a practice! Truly, how did the world fail to recognize such bad faith before someone devised the acronym LRFUFRSJDJSBPDTDHNTDWTCTSDTPOTDEPOTUS?

[MaddogEngineer]

You seem pretty riled up about what Blackman has been posting on this topic. Particularly because he allegedly (according to you) doesn’t want to state outright his objection. Ironic, because you are doing the very thing to him that you are accusing him of. I’ve read all your postings trying to figure out what exactly you think makes him a dishonest online hack rather than a law professor.

Maybe you could be more specific, before accusing him? (And convince me you have a point, unlike him.) Why do you think, if he is reacting to something another professor has written, that he has to do it in a way in which you approve?

Historically I’ve found his postings curious, and often unnecessary , but I don’t understand why you are so agitated about them.

There’s been plenty of lawless national injunctions by district court judges who appear hostile to whoever was/is the sitting president of the United States over the past 6+ years. I honestly can’t tell whether Blackman is for or against such national injunctions, or whether he lacks any principles, being for the rulings he likes and against those he doesn’t. But then, neither have you about his position. Beyond naming calling.

[myself]

I honestly can’t tell whether Blackman is for or against such national injunctions, or whether he lacks any principles, being for the rulings he likes and against those he doesn’t.

That's deliberate rhetorical slight of hand by Blackman.

The actual controversy is Judges like Judge Matthew J. Kacsmaryk, extreme partisans who will happily hand out nationwide injunctions on flimsy legal reasoning.

And since he's in a single Judge district if you want a nationwide injunction you file in his district and you get an incredibly biased ruling that will stand for months or years before it gets overturned (if ever).

It's a great situation if you you like those outcomes, but it's pretty indefensible to say it's a good system. So how do you defend this status quo?

Well first you want to make sure people don't feel motivated to do anything about it. So you make fixing the problem sound infeasible while making sure to never clearly state why it's a problem in the first place.

And then you create a false equivalency by throwing out a bunch of "the other side is doing it also!" while again, avoiding pointing out exactly what your side is being accused of.

Again, the goal isn't to actually defend (or even acknowledge) the practice of district shopping to get bizarre rulings from Kacsmaryk, even Blackman probably understands that's indefensible. Instead the goal is to undercut arguments to do something about the problem.

So yes, "intellectually dishonest online hack" is a rather apt description of Blackman.

[bernard11]

Isn't what's going on some premature gloating and rubbing of hands by Josh over the likely outcome of the mifepristone lawsuit?