The Lone Star State of Judge-Shopping: A Case against the Biden Administration and a Democrat-Biden Lawsuit
The Justice Department is downplaying its allegations that Texas is “judge shopping” in its lawsuits against the Biden administration.
In order to fight back against the Lone Star State’s pattern of filing cases, the department is attempting to pick the judges it will hear them from, in a way that will allow it to choose the judges that hear them.
The DOJ asked Kacsmaryk to transfer a Texas lawsuit against the administration, which challenges climate change related regulations for investors, to another district. The department asked a judge to intervene in a case against the yearly spending bill that Biden signed late last year.
With its tactics, Texas can “circumvent the random assignment system by never filing in Divisions where they have a non-trivial chance of not knowing what judge they are likely to be assigned,” the DOJ said in brief submitted to Tipton this week.
“It’s an utterly nonsensical argument to make because we have every right to file a lawsuit where our clients are injured,” Erik Baptist – a senior counsel at Alliance Defending Freedom, which is representing the abortion pill challengers – told CNN. He pointed to an individual plaintiff in the lawsuit, Dr. Shaun Jester, who practices near Amarillo.
“There are numerous compelling reasons for these cases to be heard where they are filed,” Paige Wiley, a Paxton spokesperson, told CNN in an email. She accused the Biden administration of “perpetuating” a “baseless smear” of judge-shopping that “risks undermining the public’s trust in the legal system.”
Forum shopping is embraced by both the left and the right side of the courtroom. Progressives were strategic in where they brought cases against the Trump administration. But legal experts say there’s a distinction between the practice then and the current trends, because with the Trump-era cases, those lawsuits were filed in courthouses where one of several Democratic-appointed judges could be assigned the case.
The DOJ attorney was grilled by the judge on whether the department was suggesting that the judge would be unfair.
The DOJ attorney was told by the judge that they could change the perception of fairness by saying on the record that they believed that he would give them a fair shake.
There was an immigration case filed in Victoria because the office of the governor felt like it knew how the judge ran his court room, and because Tipton was familiar with the statutes relevant to the case.
In the Lubbock division, Hendrix hears two-thirds of the lawsuits, which are filed in northwest Texas and several hours away from the state’s biggest cities. DOJ, with its Monday request in the spending legislation case, asked the judge to move the lawsuit to DC or to Austin. The National Board of Review awarded a grant to a non-profit organization in Houston, which the department asserts is the sole allegation about Texas.
Kacsmaryk, meanwhile, is assigned every civil case filed in Amarillo, another division in northern Texas. The judge ruled in favor of the state of Texas in disputes with the Biden administration over protections for lesbian, gay, and bisexual people. The upcoming ruling in the medication abortion case could be issued any day now, so he is now in the national spotlight.
The lead plaintiff in that case, a medical organization called the Alliance for Hippocratic Medicine, filed its paperwork incorporating in Amarillo just a few months before filing the lawsuit. The attorney for the organization said that the filing location was not chosen to get the case before Kacsmaryk.
“Congress has authorized the American public to sue federal agencies where the American public has actually been injured and where they reside,” Baptist said. “And that’s exactly what Dr. Jester did here. He filed this lawsuit with the other plaintiffs in this case because he is based in the Amarillo area, and therefore, we filed this lawsuit where he resides.”
Leif Olson, an attorney in Paxton’s office, told Tipton at last week’s hearing that “I don’t know why our office chooses to file in seven divisions over and over,” referring to the seven divisions DOJ highlighted in its briefs.
“The long and short of it, Your Honor, is that the public interest is served by having the case decided fairly and quickly. It is available in the Victoria Division.
“Don’t you think if the public heard the Department of Justice say that, that it would go a long way towards addressing your public perception concern?” The judge said something.
The battle for state and local power: The case of Texas prosecutors vs. county attorneys in the aftermath of Dobbs v. Jackson
The battle between state and local authorities in Texas is not going well. It’s an escalating dispute over who has what power — and when.
The criminal district attorneys in Texas’ big cities are mostly Democrats. Some chief prosecutors have told their communities they will not pursue criminal cases against women who seek abortions or families who receive gender-affirming health care for their children. (Several later said they would make decisions on a case-by-case basis.)
“There is an interesting philosophical debate about where power should rest in a state-local system,” says Ann Bowman, a professor at Texas A&M’s Bush School of Government. “How much the state should have, how much local government should have.”
The clash has echoes in other state-local power struggles. In Mississippi, Republican state lawmakers have proposed installing state-appointed judges in the City of Jackson and giving the capitol police force citywide jurisdiction. Democrats control Jackson, it’s 83% Black and controlled by them.
If county sheriffs don’t enforce the new requirements that owners of semi-automatic rifles register with the state, they’ll be out of a job.
That includes one from Texas Rep. David Cook, a Republican from the Fort Worth area. His bill would ban district attorneys from having a policy of not enforcing any particular offense. Financial penalties would be set by the bill.
“As a district attorney, you have a job which entails looking at all the cases that are brought in and judging each case on a case-by-case basis,” Cook says. If you’re making blanket statements and giving blanket immunity then you’re not doing your job.
In Georgia, similar legislation is moving. The state would create a commission to supervise prosecutors, and they could be disciplined or removed if they did not charge a particular crime.
Several of the same progressive prosecutors in Texas who made statements after the Dobbs v. Jackson Women’s Health Organization decision aren’t doing interviews on the proposed bills. The state association of district and county attorneys told members the flood of prosecutor-related bills “deserves your full attention.”
The Nueces County District Attorney Mark Gonzalez is facing a separate effort to remove him from office, and he believes that the group may have been hasty in their announcement not to prosecute abortion cases.
Gonzalez says that the statement may have broken the camel’s back. I think it’s best for us not to say anything since it might be something we didn’t accomplish.
Source: https://www.npr.org/2023/03/03/1160475174/these-texas-das-refused-to-prosecute-abortion-republican-lawmakers-want-them-sto
Reply to the “Comment on ‘Dependence of the Texas Legislature on Prosecutive Action’” by A.J. Gonzalez
Yet he sees the bills to curb local prosecutors as part of a larger backlash against a more progressive approach to law enforcement, one that seeks to reduce mass incarceration and prevent its damaging effects.
Gonzalez says that they have a different approach to making changes, which can affect people of color and lower economic status. I don’t know why that is such a big deal.
Not every local official gets blowback for bucking the state. There was no plan to force a group of Texas sheriffs to wear a mask when they refused to obey the law. Some experts say that’s because sheriffs align more with the conservative leadership of the state.
Gonzalez says he has no written policy about pursuing certain crimes but tells his office to simply “do the right thing.” He won’t be running for reelection, so will be happy to stay out of the way when new law is brought before a court.