Sunday, September 11, 2016
The House Judiciary Committee, Subcommittee on the Constitution and Civil Justice, will hold a hearing on Tuesday, September 13 at 11:00 a.m. on "Exploring Federal Diversity Jurisdiction."
- Mr. Charles Cooper, Partner, Cooper & Kirk, PLLC
- Ms. Joanna Shepherd, Professor of Law, Emory Law School
- Mr. Ronald Weich, Professor of Law, University of Baltimore
In 2014, Mr. Cooper co-authored an article, Complete Diversity and the Closing of the Federal Courts, which argued for minimal diversity as the jurisdictional standard and was published in the Harvard Journal of Law & Public Policy, a forum for conservative scholarship.
In 2015, Professor Shepherd published a study conducted for the National Association of Manufacturers entitled Estimating the Impact of a Minimal Diversity Standard on Federal Court Caseloads, which concluded:
This study shows that concerns of diversity jurisdiction burdening the federal courts are largely unfounded. Empirical analysis of almost 3,600 complaints filed in state court shows that replacing complete diversity with a minimal diversity standard would increase existing federal district court caseloads by less than 8 percent. Distributed evenly over existing federal judgeships, this caseload increase translates into an additional 43 cases per year for each judgeship.
Ronald Weich is the dean of University of Baltimore College of Law.
Hat tip: Altom Maglio.
Wednesday, September 7, 2016
Last week the U.S. Court of Appeals for the Eighth Circuit issued its decision in In re: Missouri Department of Corrections. The case involves a subpoena that two Mississippi death row inmates served on the Missouri Department of Corrections (MDOC) seeking discovery relating to Missouri’s use of pentobarbital in lethal injections, including the identities of its pentobarbital suppliers. The inmates are challenging Mississippi’s execution method (which does not use pentobarbital) as violating the Eighth Amendment.
MDOC moved to quash the subpoena, but the district court in Missouri denied the motion and ordered MDOC to produce most of the information sought by the inmates. The Eighth Circuit has now denied MDOC’s request for a writ of mandamus challenging that order. It’s a short six-page opinion, but it covers a lot of ground—from appellate mandamus, to whether a subpoena creates an undue burden under FRCP 45(d)(3)(A)(iv), to sovereign immunity, to the state secrets privilege.
Monday, August 22, 2016
Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)
Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.
Friday, August 19, 2016
Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.
From the opinion:
The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.
Thursday, August 4, 2016
Alabama Chief Justice Roy Moore’s federal lawsuit against the Alabama Judicial Inquiry Commission was dismissed today on Younger abstention grounds. Here’s the order:
Tuesday, June 28, 2016
How the Current Version of Rule 5 Frustrates Public Access to Discovery in the “Trump University” Lawsuit and Other Cases
Most people know by now that Cohen v. Donald Trump, No. 3:13-cv-02519, is a class action in federal court in San Diego alleging that Trump University defrauded thousands of consumers who purchased real estate courses. What is less widely reported is that the complaint alleges that Donald Trump violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a federal statute passed in 1970 to make it easier to prosecute members of organized crime – e.g., the Mafia. Specifically, the complaint alleges that Donald Trump violated RICO by conducting Trump University (the alleged criminal enterprise) through a “pattern of racketeering activity” consisting of crimes of mail fraud and wire fraud.
The Discovery Sought by the News Media
What does this have to do with the Federal Rules of Civil Procedure? Well, hang on. One of the latest skirmishes in the case is that major news media organizations (CNN, The Washington Post, CBS, and several others) have moved to intervene for the purpose of modifying the protective order so that the videotaped depositions of Donald Trump taken in the case may be released.
Earlier, the plaintiff tried to file portions of the videos in court as exhibits to his brief opposing Trump’s motion for summary judgment. The court returned the videos to the plaintiff for failing to comply with a court rule. The plaintiff promptly moved to file “a series of electronic files of video excerpts from the depositions of Trump, taken on December 10, 2015, and January 21, 2016.” Trump opposes the motion.
But meanwhile, plaintiff’s motion revealed the existence of two days of depositions of Trump in videotape form, of which plaintiff is only seeking to file a fraction. The putative intervenors (the news media) want it all.
Rule 5 Prohibits the Filing of Discovery in Court Until “Used in the Proceeding”
Perhaps one of the most somnolent of the Federal Rules of Civil Procedure is Rule 5, “Serving and Filing Pleadings and Other Papers.” Since 2000, Rule 5(d)(1) has prohibited the filing in court of discovery requests and responses (including initial disclosures, depositions, interrogatories, requests for documents, and requests for admission). From 1980 to 2000, Rule 5 allowed local courts to prohibit the filing of discovery. (Of course, once a party “uses” the discovery “in a proceeding” – for example, as an exhibit to a summary judgment motion – it must be filed in court.)
In contrast, before 1980, Rule 5 required the filing of discovery – depositions, interrogatories, and so forth – in court. The only reason that was publicly stated for the change to prohibiting the filing of discovery in court was that the copies for filing could be expensive and that the courts did not have enough physical storage space. But now that everything is digital, it would seem that the issues of expense and physical storage space are moot.
Monday, May 16, 2016
The Senate Judiciary Committee will hold hearings on Wednesday, May 18, 2016, at 10:00 a.m., on the nominations of:
Donald Karl Schott, to be United States Circuit Judge for the Seventh Circuit
Paul Lewis Abrams, to be United States District Judge for the Central District of California
Stephanie A. Finley, to be United States District Judge for the Western District of Louisiana
Claude J. Kelly III, to be United States District Judge for the Eastern District of Louisiana
Winfield D. Ong, to be United States District Judge for the Southern District of Indiana
On Thursday, May 19, 2016, at 10:00 a.m., the Committee will consider the nominations of:
Ronald G. Russell, to be United States District Judge for the District of Utah
Inga S. Bernstein, to be United States District Judge for the District of Massachusetts
Stephanie A. Gallagher, to be United States District Judge for the District of Maryland
Suzanne Mitchell, to be United States District Judge for the Western District of Oklahoma
Scott L. Palk, to be United States District Judge for the Western District of Oklahoma
Monday, March 21, 2016
If you have been gnashing your teeth over Senate Republicans' stated refusal to vote on the nomination of Judge Merrick Garland to the Supreme Court, here is some information that may make you feel a little better.
- Judge Garland was a member of the Judicial Conference of the United States, which voted to approve the amendments to the FRCP that took effect on Dec. 1, 2015. (I and many others have described those amendments as "anti-plaintiff.")
- I cannot discover if Judge Garland actually is or has been a member of the conservative Federalist Society, but he has numerous links to the Society:
- He listed in the "Experts" link of the website of the Federalist Society. (It should be noted that the website states that a person’s listing on the Experts page does not imply any “endorsement or relationship between the person and the Federalist Society.”)
- Judge Garland moderated a panel called "Changing the Federal Rules of Civil Procedure: Has the Time Come?" on Dec. 9, 2010 hosted by the Federalist Society at the National Press Club in Washington, D.C. One of the panelists argued that discovery costs should routinely be shifted to the party requesting the discovery (something that defense interests have lobbied for ever since, with partial success in the amendment to Rule 26(c)(1)(B)). Another panelist argued that Rule 4(b), allowing a subpoena to issue against a defendant without a preliminary hearing, is unconstitutional. A third panelist described Twombly and Iqbal as “perfectly sensible cases.” Of course, merely by moderating the panel, Judge Garland cannot be understood to be endorsing any of these views.
- By my count, Judge Garland has also moderated about ten other panels hosted by The Federalist Society. See, e.g., here and here. In fact, at the panel on the FRCP described above, the person who introduced Judge Garland as the moderator said to him, “You are a repeat moderator for Federalist Society events.”
President Obama’s political calculation in nominating Judge Garland may be even shrewder than anyone’s given him credit for.
Friday, February 5, 2016
A bill to prohibit corporations from forcing arbitration of certain disputes, Restoring Statutory Rights Act, S.2506, was introduced on February 4 by Senator Patrick Leahy (D-VT).
Sunday, January 31, 2016
A bill to extend federal jurisdiction to claims for theft of trade secrets, the Defend Trade Secrets Act of 2015 (S. 1890), has been reported out of committee to the full chamber. Trade secrets are largely the subject of state law, and the federal courts currently lack jurisdiction of a claim for theft of trade secrets, unless there is diversity of citizenship or joinder with a transactionally-related federal-question claim such as trademark infringement.
The bill is co-sponsored by Republicans and Democrats.
The bill creates a civil action with original federal jurisdiction brought by “an owner of a trade secret that is misappropriated . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” The bill sets conditions for the “seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”
The bill would also create a cause of action by “a person who suffers damage by reason of a wrongful or excessive seizure.”
One of the remedies that is authorized is, of course, damages:
[a court may] (B) award—
(I) damages for actual loss caused by the misappropriation of the trade secret; and
(II) damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss; or
(ii) in lieu of damages measured by any other methods, the damages caused by the misappropriation measured by imposition of liability for a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret . . .
(As an aside: Could (B)(ii) be characterized as an award of statutory damages, currently under attack in the Supreme Court in Spokeo, Inc. v. Robins?)
A brief description of the bill’s background by David J. Kappos, former director of the United States Patent & Trademark Office, is in thehill.com.
Sunday, January 10, 2016
On January 8, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016. (The L.A. Times called the "fairness in class action" part of the title "Orwellian" and "shameless.")
For additional coverage of the bill, see our post from last Friday.
The bill goes to the Senate next for consideration.
Friday, January 8, 2016
The House of Representatives is close to taking up a bill (H.R. 1927) that some are calling the "Volkswagen bail-out bill" due to its stymieing effect on class actions. Another part of the bill, the Huffington Post charges, "would force the online disclosure of sensitive personal information of sick and dying asbestos victims seeking compensation for their illnesses."
When we last reported on this bill, it dealt only with class actions. That bill has now been amended and combined with another bill on asbestos claims, resulting in the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015."
The latest draft of the portion of the bill on class actions reads as follows:
SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.
(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.
(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal Rules of Civil Procedure that certifies a class seeking monetary relief for personal injury or economic loss shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.
The House Judiciary Committee has issued House Report 114-328 on the class action portion of the bill. The Democrats opposing the bill stated in their dissenting views that the bill is “a solution in search of a problem” and “represents the latest attempt to shield corporate wrongdoers and deny plaintiffs access to justice.” They concluded:
H.R. 1927 is an unnecessary bill that threatens to deny millions of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing new burdens on them and by circumventing the congressionally created Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and bar.
Meanwhile, at the annual meeting of the Association of American Law Schools, members of the Advisory Committee on Civil Rules are scheduled to discuss potential class actions reforms today. I am not at the conference this year, and would be interested to learn if anyone mentions H.R. 1927 and how that bill might relate to proposals before the Advisory Committee.
The House yesterday passed a resolution limiting amendments to and debate on the bill.
Professor Alexandra D. Lahav testified against the bill last April.
Thursday, January 7, 2016
Up on the Courts Law section of JOTWELL this week is Robin Effron’s essay, Anti-Plaintiff Bias in the New Federal Rules of Civil Procedure. Robin reviews Patricia Hatamyar Moore’s recent article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083 (2015).
Thursday, December 31, 2015
As if New Year’s Eve wasn’t exciting enough, Chief Justice Roberts has released his 2015 Year-End Report on the Federal Judiciary. He emphasizes the recent amendments to the Federal Rules of Civil Procedure (prefaced by a two-page wind-up about 19th-century dueling practices).
Wednesday, September 30, 2015
The House Judiciary Committee held a hearing yesterday on a bill entitled “The Fraudulent Joinder Act of 2015.” Minority witness, Professor Lonny Hoffman, testified against the bill.
The bill, H.R. 3624, provides:
Section 1447(c) of title 28, United States Code, is amended by adding at the end the following:
“A motion for remand, and any opposition thereto, may include affidavit or other evidence showing a plausible claim for relief against each nondiverse defendant, or the lack thereof, or indicating a good faith intention to prosecute the action against each nondiverse defendant or to seek a joint judgment, or the lack of such a good faith intent. The district court shall deny a motion to remand if it finds that the complaint does not state a plausible claim for relief against a nondiverse defendant under applicable state law or there is no good faith intention to prosecute the action against a nondiverse defendant or to seek a joint judgment.”
Professor Hoffman explains the bill’s effect: “The bill would replace the existing common law fraudulent joinder test with a statutory test that places the burden on the plaintiff to prove that her claims against the non-diverse defendant are ‘plausible’ and brought in ‘good faith.’ Overall, the bill would make proving fraudulent joinder much easier than it is under current law.”
One of the majority witnesses, Elizabeth Milito, Senior Executive Counsel of the National Federation of Independent Business Small Business Legal Center, asserted the need for the bill:
[F]or a small business owner being served with lawsuit generates significant trepidation, disgust, and yes, uncertainty.
Because litigation entails angst and great expense for small businesses, NFIB is pleased to see this Committee’s attention focused on the issue of fraudulent joinder. Fraudulent joinder remains a source of confusion and unnecessary litigation in our courts and impacts far too many innocent small businesses. The situation unfolds as follows: plaintiffs’ attorneys will name a small business – such as a local pharmacy or insurance agent – with little connection to the complaint in order to deny the federal courts of jurisdiction. In many instances, the plaintiff has no intention of imposing liability on the fraudulently joined party. With courts divided over the standard for finding that a defendant is fraudulently joined, the small business is forced to engage in protracted litigation when all they want is to be dismissed from the case entirely.
In opposition to the bill, Professor Hoffman’s introduction summarizes his testimony:
There is no warrant for amending 28 U.S.C. §1447. More than a century old, fraudulent joinder law is well-settled and strikes the proper balance among competing policies in how it evaluates the joinder of non-diverse defendants. With recognition that there are sound reasons for not trying to exhaustively examine the merits of the plaintiff’s claims immediately after removal, courts across the circuits uniformly impose a high burden on the defendant to demonstrate that a non-diverse defendant’s joinder was improper. That burden can only be met if the defendant establishes that the joinder of the diversity-destroying party in the state court action was made without a reasonable basis of proving any liability against that party. By greatly expanding the scope of the fraudulent joinder inquiry, this bill would displace the well-functioning law with wasteful adjudications that district courts are ill-equipped to undertake at the remand stage, burdening the judicial system and raising litigation costs for all parties, especially for plaintiffs on whom this bill imposes the burden of proof. Finally, by requiring that courts resolve merits inquiries that under current law are decided by state courts, the proposed amendments to §1447 raise federalism concerns.
Monday, September 28, 2015
Professor Suja Thomas (University of Illinois College of Law) and Professor Renee Lettow Lerner (George Washington University School of Law) recently participated in a debate on civil juries under the auspices of the Federalist Society's Litigation Practice Group. Professor Thomas argued in favor of the civil jury, while Professor Lerner argued the civil jury's downsides.
Friday, September 25, 2015
Professors Benjamin Means and Joseph Seiner (University of South Carolina School of Law) have posted on SSRN their essay, "Navigating the Uber Economy," forthcoming in U.C. Davis Law Review.
In litigation against ride-sharing companies Uber and Lyft, former drivers have alleged that they were misclassified as independent contractors and denied employment benefits. The companies have countered that they do not employ drivers and merely license access to a platform that matches those who need rides with nearby available drivers. At stake are the prospects, not only for Uber and Lyft, but for a nascent, multi-billion dollar "on-demand" economy.
Unfortunately, existing laws fail to provide adequate guidance regarding the distinction between independent contractors and employees, especially when applied to the hybrid working arrangements characteristic of a modern economy. Under the Fair Labor Standards Act and analogous state laws, courts consider several factors to assess the "economic reality" of a worker's alleged employment status; yet, there is no objective basis for prioritizing those factors.
This Essay argues that the classification of workers as independent contractors or employees should be shaped by an overarching inquiry: how much flexibility does the individual have in the working relationship? Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule. Our approach is novel and would provide an objective basis for adjudicating classification disputes, especially those that arise in the context of the on-demand economy. By reducing legal uncertainty, we would ensure both that workers receive appropriate protections under existing law and that businesses are able to innovate without fear of unknown liabilities.
Tuesday, September 15, 2015
NPR this morning has a story entitled "When Cyber Fraud Hits Businesses, Banks May Not Offer Protection." It describes some instances in which small businesses that had their bank accounts drained by cyber fraud were unpleasantly surprised to find that their banks were not legally obligated to reimburse them (unlike in most cases for bank accounts owned by individuals).
The story of one company contradicted the frequent assertion by defendants that defendants in civil suits are often "forced to settle" because the costs of defense exceed the claim. One of the victimized businesses found its checking account down by $545,000 due to cyber fraud:
[The owner of the construction company involved] thought his bank . . . would reimburse him. It refused, and he sued. [The owner] says the bank threw a huge amount of resources at the case. He says he discovered in mediation that the bank had spent "in excess of $1.2 million fighting this, when we offered to settle this for $200,000."
[The construction company] lost the first round but won on appeal when a panel of judges concluded [the bank's] security had not been commercially reasonable.
Another small business lost $14,000 due to cyber fraud, and its owner "considered suing [his bank], but was advised he'd spend much more on legal fees than he'd recover."
Friday, September 11, 2015
So you send a survey to people whose job depends on how well they do defending their $100-million-plus employer in court and ask them how fair and reasonable the courts are. If they just lost a big verdict in Texas, they probably think juries in Texas are unfair and the judge who tried the case is an idiot. (A friend who was born and raised on a farm said that it was like asking foxes to rate how fairly the farmer guarded the henhouse.)
Compile all those subjective answers, assign some ordinal numbers to them, and rank the fifty states: that’s about the long and short of the U.S. Chamber Institute for Legal Reform’s 2015 "lawsuit climate survey" conducted by Harris Poll "to explore how fair and reasonable the states’ tort liability systems are perceived to be by U.S. businesses." (The full report is here.)
To be fair, if you read the report carefully, it does not misrepresent what it purports to show. It never says it is a random survey (and it isn't). It explains that the only people asked to participate are lawyers and other executives who are in charge of litigation for companies with at least $100 million in annual revenues. (It doesn’t say, but it’s fairly obvious, that these companies are overwhelmingly defendants, not plaintiffs, in lawsuits.) The report admits that what it measures are these executives’ “perceptions” (p. 3 of the Executive Summary), not any objectively quantifiable element of a state’s justice system, such as the caseload per judge.
But the sheer repetition of the ensuing headlines (egged on by the Chamber's state-specific press releases) encourages the casual reader to elide the difference between objective reality and the subjective perceptions of a very distinct interest group. A sampling:
"Florida's 'lawsuit climate' hits all-time low, Chamber survey says" (Tampa Bay Times)
"Survey: Missouri’s Lawsuit Climate Hits All-Time Low, Ranks Among Nation’s Worst" (Associated Press, via ABC's WAAY-TV)
Once again, Louisiana’s lawsuit climate ranked second worst in US (Greater Baton Rouge Business Report)
And that's not even counting the "coverage" of the survey by news-like websites that are owned by the U.S. Chamber of Commerce, such as the West Virginia Record and the Madison-St. Clair Record, or op-eds planted by the U.S. Chamber Institute for Legal Reform.
Anyway, the purpose of this post is not to go through the myriad glaring problems with the survey. But I can't resist pointing out one of many examples: the survey respondents really couldn't help calling Cook County, Illinois or Miami-Dade County "among the worst city or county courts." That is because the survey respondents were given twelve listed locations to pick from, which included those two locations, and the respondents would have had to think of any other jurisdiction on their own. Question 637 (p. 127 of the full report) is:
Thinking about the entire country, which of the following do you think are the worst city or county courts? That is, which city or county courts have the least fair and reasonable litigation environment for both defendants and plaintiffs? Please select up to two responses.
1 Chicago or Cook County, Illinois
2 Los Angeles, California
3 San Francisco, California
4 Philadelphia, Pennsylvania
5 Madison County, Illinois
6 Miami or Dade County, Florida
7 New Orleans or Orleans Parish, Louisiana
8 New York, New York
9 East Texas
10 St. Louis, Missouri
11 Detroit, Michigan
12 Washington, DC
13 Other [ONLINE: (Please specify)] [ PHONE: CAPTURE RESPONE]
14 Not sure
99 Decline to answer [EXCLUSIVE] [PHONE ONLY]
The twelve listed locations were randomized for each survey respondent, so they were not necessarily listed in the order above for any given respondent. But it's a great example of the availability heuristic.
Anyway, setting aside the problems with the survey, I noticed this: in general, the fewer people who live in a state, the better that state's "lawsuit climate" is perceived.
Many of the top-ranked states (with the “best” perceived “litigation climates”) in the Chamber's survey are states with the fewest people. Using census data for 2014, I ranked the states from 1 to 50, from most populous to least populous. For example, California has the largest population, so is ranked #1, and Wyoming has the fewest people, so it's ranked #50. I then compared the 15 least populous states (ranked 36-50) with the "best" 15 states in the U.S. Chamber's survey (ranked 1-15). Ten states were on both lists: Alaska, Delaware, Idaho, Maine, Nebraska, New Hampshire, North Dakota, South Dakota, Vermont, and Wyoming.
In other words, the Chamber rankings are negatively correlated with the population rankings: in general, as the state's population goes down, the perception of its "lawsuit climate" goes up. Here is a scatterplot of the fifty states and a fitted line:
I’ve labeled two of the fifty data points as examples. California is ranked #1 in population (the y-axis) and #47 in the Chamber survey (the x-axis). Delaware is ranked #45 in population and #1 in the Chamber survey (the “best” in the country).
So what does this all mean? Of course, correlation is not the same as causation. But maybe if there are fewer people, there are fewer things to go wrong (industrial accidents, adverse drug reactions, discriminatory employment decisions), so there are fewer lawsuits. Just a simple-minded theory.
Wednesday, July 1, 2015
In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”
According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.