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FTC Seeks End to District Court "Divisions," Expansion of Live Audio (Starting with N.D. Texas)

With the existence of divisions within U.S. District Courts enabling plaintiffs to pick the judge that will hear their case, Fix the Court is calling on Congress to get rid of these arbitrary partitions nationwide in favor of a more equitable case assignment system.

Lawmakers could do this quite simply. “No District Court shall, upon enactment, be composed of divisions,” they’d write. “Any case filed in a District Court after enactment shall be assigned to one of its judges, or to a judge sitting within the District by designation, at random.”

Under this plan, once a case is filed at the federal courthouse in Waco, Tex., for instance, the case would then be assigned to any one of the 11 active or six senior judges who sit in the Western District of Texas, or to a judge sitting there by assignment, and not to, say, the lone Article III judge stationed in the Waco Division.

A nearly identical scheme was implemented by W.D. Texas last year in the patent context, after patent litigants had for years sought to file in the Waco Division in order to draw a specific judge, Alan Albright. At a time when judge-shopping has become and will remain prevalent, far beyond patents — and, let’s be honest, given the rules, both political sides would love to do it — FTC would like to see the District’s proposal expanded to include all types of cases, though again, we believe congressional pressure or legislation will be necessary to make it happen.

Judge-shopping is again in the news this week, with N.D. Texas Judge Matthew Kacsmaryk — the only Article III judge in the district’s Amarillo Division and who’s hearing a case of national importance due to a blatant instance of judge-shopping — hearing arguments in that very case on Wednesday.

“With what we know about judge-shopping, not to mention the ease and prevalence of remote proceedings in a post-pandemic world, the benefits of random assignment across a district outweigh any benefits of judicial divisions,” FTC’s Gabe Roth said. “If states as large and as diverse as Colorado and Florida can function without divisions, then so too can districts in states like Arkansas (two districts with nine divisions), California (four districts, with C.D. Calif. comprising three divisions), Texas (four districts with 27 divisions) and the 15 other states that are partitioned into divisions. Congress must step in and solve what the judiciary itself has refused to fix.”

Do it live
Also today, FTC is calling for the expansion of live audio streaming in the nation’s 94 federal district courts and 90 federal bankruptcy courts. Currently, 31 of them are participating in a three-year live audio pilot program for civil cases that may end as soon as Tuesday, when the Judicial Conference of the U.S. will hold its biannual meeting in Washington and a new broadcast policy may be announced. FTC has long maintained that permitting live audio and/or live video in federal trial court proceedings is an essential part of a modern, open third branch.

The rules are there ain’t no rules
On Sunday, FTC’s Roth requested that Wednesday’s hearing in N.D. Texas’ Alliance for Hippocratic Medicine, et al., v. U.S. Food and Drug Administration, et al., 22-223, a case that could lead to removal of mifepristone from doctors’ offices and pharmacies across the country, be livestreamed to the public.

According to reports, Judge Kacsmaryk wasn’t planning on docketing the hearing until late Tuesday, per the Washington Post, in order to “try to minimize disruptions and possible protests,” though also effectively shutting out much of the press and public given Amarillo’s distance from any major U.S. city.

Early Monday morning, a rejection came from the clerk: “Proceedings of our court are open to the media and the general public. Current Judicial Conference policy does not permit what you have requested,” Clerk Karen Mitchell wrote.

But with the broadcast policy up in the air — again, the Judicial Conference meets Tuesday, and the hearing is Wednesday — there’s reason to believe live audio in N.D. Texas could be approved by the judiciary’s higher ups. (Also, there’s no “punishment” if N.D. Texas did go live, especially given safety concerns.)

With 17 of the 26 members of the Conference — all of the circuit court judges on it, plus judges from D. Puerto Rico, D. Minnesota, D.D.C. and the Court of International Trade, not to mention JCUS President Officer and CJOTUS John Roberts — permitting livestreaming in their courtrooms, there’s reason to believe, per Roth’s letter, that “plans to livestream Wednesday’s hearing […] would garner ample support from judicial administrators at the national level.”

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