Progressive Lawyers Engage In Actual Judge Shopping In Alabama

"Surreptitious Steps" to draw a Carter appointee in a deep red state demonstrate why the Judicial Conference's policy would not work.

From what I've gathered, the Judicial Conference's ill-fated policy is all-but-dead. What a blunder it was. Rather than focusing on areas of bipartisan agreement like patent and bankruptcy reform, the judges leaned into a contentious, hot-button issue. I worry that the well has now been poisoned for broad reform, though I'll share some thoughts in due course about how to improve things.

For now, I'd like to highlight some actual judge shopping in Alabama. And none of this judge shopping occurred in single-judge divisions. You see, Alabama has very few Democratic-appointed district court judges. By my rough count, in the entire state, there is one active Obama nominee, and two senior appointees from Clinton and Carter. The Carter appointee, Judge Myron Thompson in Montgomery (Middle District of Alabama), is well known for ruling in favor of progressive litigants. Unsurprisingly, if you are a progressive litigant in Alabama, you will do everything in your power to get the case assigned to Judge Thompson.

Which brings us to the present case. In 2022, Alabama enacted the Vulnerable Child Compassion and Protection Act, which prohibits certain medical procedures for minors. As could be expected, the law was subject to immediate challenges by all the usual suspects.

Their strategy, which was revealed in a panel report, is striking. Here is the (rough) chronology.

1. 4/8/2022 - Ladinsky complaint filed in NDAL by National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders, Southern Poverty Law Center, and Human Rights Campaign.
2. 4/11/2022 - The NDAL case was randomly assigned to Judge Annemarie Axon (Trump appointee).
3. 4/11/2022 - Walker complaint filed in MDAL by ACLU, Lambda Legal, and Transgender Law Center. The civil cover sheet marked the case as related to Corbitt v. Taylor. Corbitt was a challenge to an Alabama policy regarding the listing of gender on drivers' licenses. That case had been closed in January 2021. The only lingering issue was attorney's fees. Judge Thompson presided over Corbitt. The attorneys "marked Walker related to Corbitt because they wanted Walker assigned to Judge Thompson." The attorneys admitted that "they considered Judge Thompson a favorable draw because of his handling of Corbitt and that he ruled in favor of the plaintiffs who asserted transgender rights claims."
4. 4/12/2022 - Walker randomly assigned to Chief Judge Emily Marks (Trump appointee). Walker plaintiffs filed a motion to reassign to Judge Thompson. Counsel had also called Judge Thompson's chambers and spoke with the judge's law clerk to flag the pending motion for preliminary injunction. At that time, Walker had not been assigned to Judge Thompson. (The lawyer at first denied making such a call, but later admitted it; the panel found his testimony was "troubling.") The counsel never called Chief Judge Marks to flag the pending motion.
5. 4/13/2022 - Chief Judge Marks entered an order to show cause why the case should not be transferred to the Northern District. The parties did not oppose the transfer.
6. 4/15/2022 - Walker reassigned to NDAL, and the case was randomly assigned to Judge Burke (a Trump appointee). That day, Judge Axon also transferred Ladinsky to Judge Burke. About two hours after Ladinsky was assigned to Judge Burke, the Walker and Ladinsky plaintiffs filed a notice of voluntary dismissal. This dismissal was made, "even though (as [counsel] admit) time was of the essence and their stated goal was to move quickly to enjoin what they viewed as an unconstitutional law, abruptly stopping their pursuit of emergency relief."
7. 4/16/2022 - Counsel for Ladinksy plaintiffs tell the press that they plan to refile their case "immediately."
8. 4/18/2022 - Judge Burke denied the TRO as moot because of voluntary dismissal, but noted the press reports that the Plaintiffs planned to refile. Judge Burke stated, "At the risk of stating the obvious, [p]laintiffs' course of conduct could give the appearance of judge shopping—'a particularly pernicious form of forum shopping'—a practice that has the propensity to create the appearance of impropriety in the judicial system."
9. 4/19/2022 - A new group of plaintiffs, led by Eknes-Tucker, filed suit in the Middle District of Alabama signed by the same lawyers who filed Ladinsky. The lawyers found new plaintiffs, because were "concerned that they would be accused of judge shopping if they filed a new action with the same plaintiffs."  The case was randomly assigned not to Judge Thompson, but to Judge Huffaker (Trump appointee).
10. 4/20/2022 - Judge Huffaker transferred the case to Judge Burke.

The panel concluded, "Behind the scenes, counsel took surreptitious steps calculated to steer Walker to Judge Thompson even before filing their motion to have Walker reassigned to him." And the lawyers "made plans and took steps in an attempt to manipulate the assignment of these cases." Ironically, the panel noted, Judge Burke ruled for the Eknes-Tucker plaintiffs in part. A Trump judge!

This sequence of events, which was well known in Alabama, proves how pernicious actual judge shopping is. And this practice has nothing to do with single-judge divisions. Skilled lawyers know how to direct cases to favorable forums. Here, they made some ill-advised statements to the press, and got caught. But in many other cases, they are not caught. I will wait to see breathless outrage on social media about this actual judge shopping. If ADF did something like this, they would be crucified.

How would the much-vaunted Judicial Conference have worked here? Who knows!? There were so many assignments and reassignments, coupled with suits filed in competing divisions, all based on random draws. These choices were deliberately made by the plaintiffs to gum up the system. Plus, the coversheet and "Related Case" gambit throws a wrench in any assignment wheel. Often, staff in the clerk's office have to decide whether to reassign a "related" case. This case involved "two cases [that were] filed in the same district and there [was] a question about whether they should be consolidated or otherwise transferred so that the same judge presides over them." Resolving this issue is "not so much a rule as a practice." It is complex, and requires some judging. It would not surprise me if judges in the trenches looked at the Judicial Conference's policy and recognized that it would be impossible to actually apply in the real world--especially in light of potential gamesmanship. After all, parties can trigger reassignment just by seeking statewide relief. Or, a case could be dismissed and re-filed, as the plaintiffs did here. Or the same complaint can be filed in multiple districts, with the hopes of getting the best draw.

The attorneys in the Alabama case work at leading law firms and civil rights organizations. They have every interest in avoiding random draws in red states. For these reasons, I suspect they would quietly oppose the judicial conference's policy.

Comments

[JudgesFed]

Blackman’s insinuation (usage of italicized “actual”) that his side doesn’t judge shop is so pathetic.

He has yet to rationally explain why the litigants behind Danco/FDA mysteriously set up shop in Amarillo and sued the FDA 3 months later in order to get - surprise - Kacsmayrk, Josh’s good buddy.

But perhaps it makes for awkward cocktail parties if you badmouth your friends. See, it’s good when MY side does it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You're too anxious to read too much into "actual". This article focuses on judge shopping in a multi-judge district, and how the proposed policy change would not affect it.

[Rev. Arthur L. Kirkland]

You're either lying or a dope.

Disaffected clingers gonna cling together.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Heh. Any time you wade into something, you confirm whatever you're arguing against.

[Rev. Arthur L. Kirkland]

Maybe you are too dumb to recognize what Blackman was trying to signal with "actual."

You might be a candidate to attend South Texas College of Law Houston!

[Purple Martin]

"This article focuses on judge shopping in a multi-judge district, and how the proposed policy change would not affect it."

It doesn't you know. At least Josh claims it doesn't, emphasizing the claim with the awesome interrobang:

"How would the much-vaunted Judicial Conference have worked here? Who knows!?"

...and Josh wouldn't be trying to fool you would he!?

[MaddogEngineer]

How do you get to the conclusion that his “actual” is an affirmation that his side doesn’t judge shop? It doesn't surprise me in the least that he would choose not to focus on that in any blogging here.

But if he believes that, it’s scurrilous, because almost certainly conservative activists have attempted something similar. That doesn’t negate the reality that these Alabama lawyers were likely judge shopping, and will likely be sanctioned for doing so.

[Orbital Mechanic]

"Alabama has very few Democratic-appointed district court judges. By my rough count, in the entire state, there is one active Obama nominee, and two senior appointees from Clinton and Carter. "

In Alabama it would appear that there is virtually no reason for a litigant seeking a right-wing ruling to judge shop.

[Lee Moore]

On strictly Alabaman matters perhaps. But on general federal matters you would prefer to have any appeal go to the 5th circuit rather than the 11th, so it would be best to sneak over to Texas to start the ball rolling, if you can.

[Rev. Arthur L. Kirkland]

STATES RANKED BY EDUCATIONAL ATTAINMENT
(includes territories; 52 jurisdictions ranked)

HIGH SCHOOL DIPLOMA
Alabama 45

COLLEGE DEGREE
Alabama 47

ADVANCED DEGREE
Alabama 39

STATES RANKED BY RELIGIOUS BELIEF
Alabama 1

STATES RANKED BY REPUBLICAN AFFILIATION
Alabama 4

STATES RANKED BY HALF-EDUCATED BIGOTS>
Alabama 3

STATES RANKED BY DRAWLING DUMBASSES
Alabama 2

The Fifth Circuit, in general, covers a can't-keep-up stretch of bigoted, poorly educated, economically inadequate, superstition-addled, obsolete communities. The judges of the Fifth Circuit reflect the downscale, low-quality, objectionable communities from which they are drawn.

[mse326]

1. If this is so easy to do, I'm not sure why you complained about the unfairness to conservative plaintiffs. Seems like it should be just as easy to do something like this instead of going to a single judge district court

2. Stuff like this can and should be addressed, either in the way courts assign cases (find some way to screen for this type of stuff) or sanctions of the attorneys when they are caught. The state or government if it is federal should be able to tell if someone is using this tactic against them and they can flag it to the court.

3. No one ever claimed the single judge district was the only form of judge shopping, just that it was particularly easy to see and address.

[Lee Moore]

If your likelihood of success depends on who the judge is, then so long as you don’t lie or break any other rules it would seem to me like bad lawyering not to aim for a friendly judge. And if you draw a judge who you know is likely to be hostile, why wouldn’t you drop the case ?

The problem is not judge shopping. The problem is that it is WORTH judge shopping. Which indicates that we have the rule of judges not the rule of law.

[Drewski]

Well, yes, but that's a perennial and probably unsolvable problem. We could probably improve but people strongly disagree on how to go about that, so meanwhile we have to work around it as best we can with case assignment rules and appellate panels and so forth.

[Lee Moore]

1. No doubt, but this makes "anti-judge shopping" reform one of those "somethings" to be found in the exchange :

"something must be done !'
"this is something ! "
"let's do it then !"

It's a "something" that is unrelated to the problem - bad or hacky district judges producing bad or hacky judgements. Which occurs whether the judges are shopped or not. A bad or hacky judgement arising from a judge randomly assigned to a case is just as bad, and needs reversing just as much, as a bad or hacky judgement arising from a shopped judge.

2. "We could probably improve but people strongly disagree on how to go about that" - and the task of finding the necessary political will to resolve those disagreements successfully is much the greater if one political team feels the pain from the status quo, and the other doesn't. A good share of pain for each team is a wonderful conciliator.

3. And the solution obviously lies in :
(a) having appeals court judges who are less bad and less hacky than district court judges, and
(b) having appeal procedures that allow bad/hacky district courts to be reversed sharpish, without the pretense that a district court's "findings" deserve deference even when it is obvious that they don't.

In the meantime, a "look squirrel !" something does more harm than good, if it makes one team complacent about the need for a solution to the actual problem.

[David Nieporent]

TL;DR: "Some liberals tried to engage in judge shopping in Alabama, but it failed because there was no single judge division they could file in to guarantee that they would get the judge they wanted. Therefore, this proves that the Judicial Conference's new policy to stop people from abusing single judge divisions won't work."

If anyone can figure out the connection between the first and second sentences, they are infinitely smarter than Josh Blackman, who could provide no explanation for that conclusion.

(In reality, this is just IKYABWAI? from Blackman. He is so desperate to salvage his insane jihad against an eminently sensible policy that he had a tantrum about because he couldn't wait two days to find out what the policy was, that he's just desperately trying to find a 'liberals do it too' angle.)

[Drewski]

Blackman has been livid ever since Steve Vladek started tweeting about it - his meltdown over the memo was just him looking for any lame excuse to discredit the policy.

[David Nieporent]

Note that Blackman isn't even smart enough to understand the random anecdote he's talking about. He writes, "Unsurprisingly, if you are a progressive litigant in Alabama, you will do everything in your power to get the case assigned to Judge Thompson," despite the fact that the first set of plaintiffs to file suit in his anecdote — "4/8/2022—Ladinsky complaint filed in NDAL" — filed in a district in which it was guaranteed that Judge Thompson couldn't hear the case. Which is literally exactly the opposite of "doing everything in their power to get the case assigned to Judge Thompson."

[Martinned2]

The lesson here is, of course, that it is better to have important decisions made by three (or more) randomly selected judges rather than one randomly selected judge.

[ReaderY]

Are laws against rape, murder, and robbery ill-considered because people do it anyway? Do anecdotal examples of people doing it and getting away with it establish that these laws are a bad idea?

[Davy C]

To be fair, I've heard the "people will do it anyway" argument used in anything from speeding limits to drug criminalization to abortion.

[David Bremer]

Worse, they supposedly tried to do it, but failed.* Along the way, a judge noted that it appeared that the plaintiffs were forum shopping. When a case was re-filed it, the randomly assigned judge assigned the case to the same judge that noted the appearance of forum shopping.

It's like saying the Scooby Doo crew proves laws against swindles and schemes don't work, because the swindlers would have gotten by with it if it weren't for those meddling kids. If someone can help me understand the logic, I'd appreciate it.

Mr. Blackman, please, take this from your friends here in the comments - step away from the keyboard. You're making yourself look worse with each of these posts. And honestly, considering you've repeatedly posted ill-supported arguments chasing political goals over the past couple years, that's a feat that is getting harder and harder to do.

*As David Nieporent points out above, the plaintiffs didn't try very hard. The first case was filed in a district in which they wouldn't get Judge Thompson, disproving Blackman's central thesis.

[Nige]

Don't hate the playa, hate the game.

[John F. Carr]

How would you write a rule to hold lawyers accountable when they switch clients to reset the record and pretend the next case is new? This happens in corporate law as well, when the law firm wants Acme Widgets to be found unsafe and doesn't care whose name is on the caption.

[Please, Daivd, Seek Help]

It’s really bizarre that you posted _several_ times about how the worst thing to happen in the western world in the last 10,000 years was that the Judicial Conference took a period of two days between posting a press release announcing their policy, and actually announcing their policy. Not the policy itself, but the temerity to, again, wait two days between the press release and the actual release of the policy. This was a serious issue to you. You were really, really worried and upset.

And now, less than a week later, you have declared that it’s so self-evidently ineffective, it’s moribund, it doesn’t matter, no one cares.

Also, how was the policy much-vaunted, when, again, as you point out, the policy is completely dead on arrival and was never taken seriously? You can't simultaneously hold that evil Big Lib Judicial Conference Is Making Mean Old Rules Which Is Socialism And Also Muslim Communism and also hold that they're completely inert and ineffectual. It can only be one of those two things.

Do you think maybe this will prompt some self-reflection about the way you let yourself get worked up over nothing at all? Please, please, please, touch grass.

[TheAmazingEmu]

Of course attorneys try to Judge shop. This is why there was a proposal by the court to prevent them from doing it. Other examples of Judge shopping doesn't create an argument that the problem shouldn't be fixed.

[Noscitur a sociis]

More importantly, as has been noted repeatedly, the attempt to judge shop here didn't work: the system as currently constituted prevented it, so there's no need to change it. If the district courts in Texas had similarly robust measures in place to prevent the (different) attempts there, then there would have similarly been no need for a change there. But they didn't, and here we are.

[Randal]

It's a race between Josh and Steve to see who can lose the most brain cells to MAGA the quickest.

I will wait to see breathless outrage on social media about this actual judge shopping.

Once again, the partisan voices in your head are leading you astray. No one would care about the right-wing forum shopping if it weren't for the MAGA judges who consistently issue insane, nation-wide injunctions. Get back to me once Thompson does that a few times and we'll talk. Especially if the Eleventh Circuit starts backing him up.

[Rev. Arthur L. Kirkland]

.

Especially if the Eleventh Circuit starts backing him up.

Isn't the Eleventh Circuit the Fifth Circuit with a smaller trailer, an older pickup truck (14 years old instead of 11), but more cars sitting on concrete blocks and flying Confederate flags in the front yard?

[Stephen Lathrop]

Note to Josh Blackman: a chain of evidence does not work like a stack of evidence. Any weak link snaps the chain; the stack hasn't got any links to snap.

[Vryedni]

Lucky for Josh he doesn't read his comment threads. This one was brutal.