A cheap shot

Yesterday, I asked: What do you think about the Second Circuit’s removal of Judge Shira Scheindlin? Today, I will provide the short version of my views.

As I have said before, federal trial judges know their place. We are the TTT of the federal judiciary. When the Circuit tells us to jump, we do so even if we don’t much like it. But, in return, we expect only one thing: no cheap shots.

The Second Circuit’s spontaneous decision, apparently without briefing and coming out of the blue, was factually predicated upon a “relatedness” question mentioned in the record before the Court of Appeals and in the footnoted NYT article referred to by the Circuit. But, if that was really the reason for the trial judge’s removal, the decision was both wrong, and, worse, unnecessary.

Judge Scheindlin was holding a hearing where the plaintiffs sought to reopen a case. The judge thought the case could not properly be reopened, but a new case could be filed as a “related case.” She said so on the record. The NYT article mentioned the judge’s statement. Apparently, the case that the judge suggested be “related” when filed is one of the cases before the Circuit. The Second Circuit thought the judge’s statement reflected a lack of impartiality.

The reason we have relatedness rules in the district courts is to avoid treating similar cases dissimilarly and because it wastes judicial resources by duplicating effort when two judges deal with similar issues.  The failure to enforce relatedness rules can cause a huge problem for the lawyers, the trial judge and the appeals court. The fact that Scheindlin told the lawyers that they could file a “related” case is exactly what I would have done. Indeed, I have done something similar in an extraordinarily high-profile case.

I authored both “partial birth abortion” decisions ultimately decided by Supreme Court. Dr. LeRoy Carhart brought both cases. In the second case, dealing with the federal statute, my chambers was notified by Dr. Carhart’s lawyers in advance that they would be filing suit and seeking an immediate emergency temporary restraining order the moment the President signed the bill. In turn, my chambers notified the United States Attorney’s office that suit would soon be filed and an emergency hearing would take place quickly thereafter.

I was then Chief Judge, and I instructed the Clerk to treat any such new case “as related” to the first Carhart case. That the cases were “related,” as Dr. Carhart’s lawyers later indicated when they filed the second suit, was simply not debatable. Indeed, the federal statute purported to expressly rebut my earlier factual findings. But, here’s the pertinent point for this discussion:

I affirmatively acted to intervene in the random assignment of cases, for among other reasons, because our local rule required enforcement and because requiring a new judge to take the nearly identical second abortion case would have unnecessarily burdened that judge who would have had to “reinvent the wheel” with little or no time to get up to speed. By then, I knew more about gynaecology than any man, who is not a doctor, has any right to know. Simply put, trial judges should be concerned with “relatedness”–for Christ’s sake, it’s our job.

Let me give you another example. I now have a very high-profile case–actually a series of cases that have now been consolidated. They became terribly screwed up because the lawyers did not initially “relate” them and the Clerk’s office failed to catch the problem. Those omissions resulted in conflicting decisions by my colleague and me on the same facts regarding qualified immunity as it pertained to the same defendants. Both went up to the Circuit at the same time as separate cases. Crazy! Costly! Wasteful! Inconsistent! Unnecessary! Embarrassing!

So, the Second Circuit’s removal of Judge Scheindlin because she told the parties to “relate” cases is dubious at best. Actually, I was going to write that it was “bullshit,” but decided against that description.

What then is going on? The Second Circuit judges are excellent judges and I am sure they are sincere in their concern. But the reason they have given for their unprecedented action is laughable. Something else must be going on. We are all left to speculate what the real reason might be. What is worse, we are confronted with the unhappy result that the appellate judges themselves are now open to the assertion (wholly rejected by me) that it is they who have a political or policy agenda.

And the startling thing is that this whole damn thing was unnecessary. The appellate judges could have granted the stay, and in the stay order provided that the trial judge “shall take no action inconsistent with the stay in this case or in any related cases.” That would have preserved the status quo while avoiding the unnecessary criticism of the trial judge.

If the appellate judges were worried about the judge’s impartiality, they could have called for a full exploration of that matter at a later date. At the very least, following a more regular process would have shielded the appellate judges from the assertion that they were acting as political hacks rather than impartial appellate judges unconcerned with whose ox was being gored. Frankly, this whole debacle is just mystifying to me.

Let me sum up. Unintentionally I am sure, the panel of highly regarded and very smart judges on the Second Circuit that too hastily disqualified Judge Scheindlin, herself a highly respected trial judge, fractured the unwritten but critical social compact between federal trial judges and federal appellate judges that should bind those judges together as they seek to fulfill a common purpose. In short, “eating your young” is not a good way to foster collegiality.

RGK

23 responses

  1. All I want to be able to do is go into a law library, look up a case in the United States Reports, and be able to walk into a federal court, bring that case to the Court’s attention, and have a judge issue a ruling consistent with that “binding precedent” at need. Am I asking too much of you and your colleagues, Your Honor? [FWIW, the answer is in Standing Bear.]

    Cheap shots? As a fourth-tier toilet of our judicial system, forced to consume what Judge Kozinski has accurately described as “inedible sausage” unfit to feed to hogs, I’ve had too many beanballs thrown at me to worry about internecine warfare. This dispute ought to be styled Slime v. Slime. If Judge S. has the right to due process of law and its denial is offensive, on what lawful ground do your colleagues deny it to me, and why does it not precipitate equally lusty condemnation?

    RGK: “What then is going on? The Second Circuit judges are excellent judges and I am sure they are sincere in their concern.”

    Thank God computer keypads are coffee-resistant these days! :) “Excellent” judges are few and far between, and as discernible as a diamond in a dung-hill. Most–especially, the new ones–are political hacks who have no business being in their positions. (Scalia explains why, fwiw.)

    RGK: “In short, “eating your young” is not a good way to foster collegiality.”

    It is the judicial equivalent of the Republican Eleventh Commandment: “Thou shall not speak ill of fellow Republicans.” What I call “judicial omerta.” A plea for judges to act like Orcs, circling the wagons to protect wayward colleagues because they hate us more than they do each other.

    Thankfully, judges like CJ Kozinski of the Ninth, Posner of the Seventh, and the late Roger Miner of the Second had the ‘nads to expose the criminal enterprise known as our federal courts bare. The Cook County courts during Greylord had nothing on Colorado’s system; Posner in particular explains what judges actually do, and what they do is not pretty. But it would not do for this to be known generally, as Prof. D’Amato explains:

    “No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. … We perhaps demand too much of human nature if we expect judges to be unconcerned with the loss of public prestige that results from admitting that cases of serious judicial misconduct are not extraordinarily rare.”[1]

    When I speak of “judicial corruption,” I don’t refer to the simple appearance of impropriety — e.g., Vice-President Cheney and Justice Scalia, in a duck-blind — but rather, overt acts both subtle and pernicious, which can honestly be called “felonious.” As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observes:

    “Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”[2]

    If a little collegiality has to be sacrificed for candor–intellectual honesty is so laudable and notable among judges because it is so rare–and the public pressure on our judges to do a better job it is likely to precipitate, it is a good thing. The Second Circuit overstepped their bounds, but cabining criticism in is not an efficacious solution. I agree with Judge Miner: Informed criticism, documented in the manner I have done here, is an ethical obligation required of all parties.

    [1] Anthony D’Amato, Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Mich. L.R. 609, 609-10 (1990) available at http://anthonydamato.law.northwestern.edu/Adobefiles/A90n.pdf.
    [2] As cited in, D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990), available at http://anthonydamato.law.northwestern.edu/Adobefiles/A90f-ultimate.pdf.

  2. “Upon review of the record in these cases, we conclude…” (quoted from the Order) It appears they looked everywhere but the record to make this determination. I normally shy away or defend the Courts when the politicos try and impose their view of the world on a Court, as the cynical view of the other 2 branches is almost always misplaced when applied to the Judiciary.

    My only information is reading a few newspaper, magazine articles and the links provided previously. It strikes me that if an appellate court doesn’t like the fact finding they have to rely upon, then they need a new fact finder. This wasn’t a mistake or poor reasoning, this was given much more thought than that, basically for all the reasons you stated, Judge. The fact that neither party apparently questioned the district court’s ability or impartiality before this ruling, nor developed a record on the issue is most troubling, and left a Judge to defend herself by press release.

  3. Fabulous! Just right. Disqualification was never raised in the court below, in the appellate court. The issue wasn’t briefed; no record was made. Judge Scheindlin lacked the opportunity to write a decision. If she did, and they appealed it would be through mandamus, a proceeding in which she could have appeared through counsel. The only person loudly calling for her removal — I will say it — was the Mayor, and following his lead was precisely what an independent judiciary should not do.

  4. Judge Kopf – I think that the issue of related cases may be something you can address in your blog – when you get to a little lull in your calendar. I have had situations in which I thought that the related case issue was extremely significant and there did not seem to be a way to monitor it. For example, I believe it is possible for attorneys to file cases that are actually related, but the attorneys do not specify that they are related. Then, the attorneys can bill for each individual case when there would only be one case in total if the related case procedure had been applied. After that, there is the real possibility, as you explained, of conflicting rulings. These conflicts and multiple proceedings permit the same lawyers to bill for numerous additional pleadings in the effort to address the conflicting rulings. I think that the judges are put in a very unfair position when that happens. Thus, I think that the issue of related cases deserves further scrutiny. Elaine Mittleman

  5. I wonder if the reason behind this very unusual action is that the Second Circuit may never get to review the case. In two days, New York will have an election for Mayor, and the likely winner has declared that he would drop the appeal. If the Second Circuit judges strongly disagree with how Judge Scheindlin presided over the case, they may have felt that unusual action was needed before the appeal was dropped. (This is intended just as a possible explanation, I should stress, not as a justification.)

    • Dear Professor Kerr,

      I suppose that is one explanation, but I doubt it. First, the makeup of the panel does not suggest any particular ideological bent that would have motivated such thing. Second, I just can’t believe that judges of the caliber of those on the panel would be that petty.

      All the best.

      RGK

      • Thanks for the reply, but I’m not suggesting it is an ideological issue. I’m just suggesting that the Second Circuit judges may think Judge Scheindlin went about a high-profile case in a seriously mistaken way. For a somewhat similar example of unusual appellate action, see the Supreme Court’s decision in Hollingsworth v. Perry (2010), taking the remarkable step of intervening and stopping Judge Walker’s broadcast of the federal trial on Prop 8. https://ecf.cand.uscourts.gov/cand/09cv2292/files/SCOTUS_Decision_1_13_10.pdf

        -Orin

        • Dear Orin,

          Like Elaine, you, too, may be interested in the following article from an academic who apparently has little use for local rules on relatedness and the judge’s use of that rule. I learned of this article after my post. See Katherine Macfarlane, The Danger of Nonrandom Case Assignment: How the Southern District of New York’s ‘Related Cases’ Rule has Shaped the Evolution of Stop-and-Frisk Law, (LSU August 22, 2013). Thanks to the Civil Procedure & Federal Courts Blog for the tip. Adam Steinman, Sunday, November 3, 2013, More on the Second Circuit’s Order in the Stop-and-Frisk Case.

          Here is the abstract:

          The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlier-filed case already on their docket. Unlike past stop-and-frisk scholarship, this article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence.

          The article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of oversight. The article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of “hot-spot policing.” The article turns to the stop-and-frisk litigation before Judge Scheindlin, using it to examine the serious — and substantive — consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. The article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, and advocates for the publication of assignment decisions as well as for motion practice challenging the assignments. Finally, it warns of the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment. Yet because her interpretation is so broad, her decisions may be reversed, and the rights at stake narrowed.

          It may be that the Second Circuit is upset with the judge’s use of the local rule over time, and that concern has been percolating sight unseen for some time. If that is so, the short order and even shorter explanation tossing the trial judge does a piss poor job of explaining the Court’s reasoning.

          All the best.

          RGK

          • This is very curious all the way around. So, the law review article suggests some suspicion regarding case assignments to the judge, accurately or not, and the Second Circuit jumps on it and disqualifies her? In the words of Dr. Lee from the OJ Simpson trial, “Something’s wrong.”

  6. From the outside looking in, this is what I see in the 2nd Circuit’s order. The relevant part of the order is this [emphasis mine]:

    Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”) ; see also Canon 3 (C )(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned….” ), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule….”

    This also is the USAF’s treatment of even the appearance of a conflict of interest as illegal which I mentioned in an earlier thread.

    Also, Judge Scheindlin said in an interview [citing her statement about the interview; emphasis mine]:

    I sided with the City and directed the plaintiffs to bring a new action rather than a contempt proceeding. I said I would take the case as related because the plaintiffs charged that the City had violated my order in Daniels.

    Had she stopped with her first sentence, I would see no problem; she was merely suggesting a course of action that would allow the litigant to get their case heard. Her second sentence likely was a legitimate anticipation that the new case would be assigned to her, via the court’s random assignment process as informed by its requirement to assign related cases to the same judge.

    Might it not be the case that the 2nd Circuit saw that second sentence, though, as the bridge too far, giving an appearance of impropriety (albeit they might have been clearer about this in their opinion)? Is the 2nd Circuit’s ruling, of necessity, limited to the fact that Scheindlin suggested filing in a different format, and they were ignoring her second sentence? Is the ruling, of necessity, taking the suggestion that the new format would be a related case as inappropriate by itself? It seems to me that an appearance of impropriety is in her suggestion, before her district system had assigned the case, that she’d be the one taking it.

    (Indeed, the 2nd Circuit–and all courts IMNSHO–could stand to be clearer in many of their rulings; they’re not only writing for the lawyers and other courts, but for us unwashed masses, too.)

    Eric Hines

  7. With respect, your reference to your partial birth cases could not be more different
    The issue here was that while Judge Scheindlin was free to observe that the second suit could be filed, the fact that it would be a related case was utterly irrelevant to the proceeding. Telling counsel the an argument would be better raised in a different suit or context is one thing – but why the need to reassure, advise or even mention which judge would have the case Or, more to the point, that she would take the case. As the previous poster mentioned, it might very well be that the sentence was meant as a prediction, but that does not mean that it cannot be interpreted as an indication of desire for the case – which you must admit would be very improper. This is especially problematic in light of her later comments, highlighting that she was going to take the case.
    In your PB cases, COUNSEL advised you that they would be filing the case, and you took it, correctly, as a related case. The Second Circuit’s issue was not that she took it as a related case, but rather that her comments, taken as a whole, could reasonably be interpreted as expressing a desire to preside over the case. NOTHING that you did in the PB case (you did nothing more than follow the related case rule) raises such an implication.

    • Dear agoldf,

      If I were her, I would mention the “related case” rule because the lawyers were trying to raise a “related” issue in the reopening proceedings or so it seems to me. Since the judge realized that the issues were related but reopening was not proper, she properly advised the parties of the related case issue so there would not be an erroneous random assignment to another judge that would be improper under the related case rule. What am I missing?

      All the best.

      RGK

      • Thank you for your reply.
        I guess I struggle with this part of your argument:
        “so there would not be an erroneous random assignment to another judge that would be improper under the related case rule”
        I must defer to your knowledge of the system – perhaps advising counsel would be standard and necessary – but I do not see that is was relevant to remind and advise counsel. I mean, although possibly technically “erroneous” and “improper” utilizing those words In my view far overstates the importance of the related case doctrine. In essence, I find it hard to believe that ensuring that the rule is invoked is of sufficient importance to completely explain her comment.
        I agree that she was free to clarify internally that she was to get any follow on case (instruct the clerk or something of that nature), but, per the rule, the question is if an observer could reasonably interpret her actions to indicate bias To me (especially in light of her subsequent actions) the answer is clear. Again, I do not say she was biased, I only say that one need not be hypersensitive to think that she was expressing interest in keeping the case, rather than merely predicting or noting the related case doctrine for the record.
        Thanks.

        • Dear Anonymous,

          As a practical matter, once a case has been improperly but randomly assigned to another judge in violation of the “relatedness” rule it is very hard to unring the bell. Internally, it may require the Chief Judge to step in and reassign the related case back to the original judge and that is frustrating to the judges and, more importantly, confusing to lawyers and litigants who do not understand what the hell is going on. Sometimes it is not even possible because the new case has gotten too far along and the second judge has invested too much time in the case to give it up.

          The second example I gave in my post–where the relatedness rule was violated but no reassignment occurred and which resulted in contradictory qualified immunity rulings, based on the same facts and the same defendants, being appealed to the Circuit at the same time in two separate appeals–is a good example of the waste of judicial resources and undue cost to the parties that can and does happen when the rule is not followed.

          From the above, I can see why Judge S. said what she said. Whether Judge S. had her own agenda I do not know. But, I would not derive such a conclusion based solely upon her “relatedness” remark.

          All the best.

          RGK

  8. “But, if that was really the reason for the trial judge’s removal, the decision was both wrong, and, worse, unnecessary.”

    I am curious: why is a Court of Appeals deciding something unnecessary worse than deciding something incorrectly?

    • David,

      When you are dealing with a judge’s reputation, writing an unnecessary opinion is particularly harmful to the sense of collegiality that I think is critical between trial judges and appellate judges. Substitute “personal” for “unnecessary” to get a better sense of my meaning. All the best.

      RGK

  9. This entire interchange is fascinating. I agree that “something else is going on.” (Such as: a mayoral election….)

    But on the merits, the Second Circuit’s decision that there had been a Rule 14 violation may not be so far-fetched. I was in the courtroom to hear the FLOYD arguments last week, and was astonished when the Hon. Jose Cabranes began his questioning of NY corporation counsel by asking her why the City had not objected to the assignment of this case to Judge Scheindlin. (Nancy, you are right: the court raised the issue sua sponte, which is odd to say the least.) Cabranes asked counsel if the DANIELS case had already been concluded when Judge Scheindlin suggested that FLOYD be assigned to her as “related.” I got the impression that the Circuit’s interpretation of Rule 14 was that new cases would be assigned as “related” only if the previous case to which they are supposedly related is still pending. Apparently DANIELS was not. (I do not know whether in fact it was concluded or not.) Of course the Rule is unclear about that. It leaves a lot of discretion to the judges themselves to work collegially in assignment practices. Cabranes also made noises about “a checklist” and the dark side of “checking the boxes.” I am unclear to what he was referring.

    Another unusual issue raised during the questioning — and I wouldn’t even call it “questioning of counsel,” since it was more like “rambling statements about issues that affect this case” — was that the NEW YORK TIMES broke this story in August, 2013. That is, the NYT reporter Joseph Goldstein wrote about the FLOYD litigation and quoted Scheindlin’s “I probably shouldn’t say this, but” suggestion. The judges made somewhat sneering references to “the paper of record” that “everyone reads” and that something had arisen from the TIMES which would affect this case. I later looked this up, and personally it seems odd to me that the TIMES reported it in May 2013 in the run-up to the FLOYD decision, rather than years before when the case was filed (when the judge made the suggestion to file it and get it assigned to her as “related.”) Why did the TIMES reporter pick up on this, years later, with the result that the judges of the Second Circuit became alerted to the issue? Curiouser and curiouser, as Alice would say in Wonderland. Journalists might say “who leaked?”

    I came away from those two hours down at Foley Square shaking my head and wondering if I had just seen a worse example of judicial activism than Judge Scheindlin’s. The issue of whether the remedies she had ordered were so detailed as to render the U.S. District Court the manager of the New York City Police Department had been briefed and argued, but the Circuit judges seemed not to be very interested in this. There was some discussion of it and there should have been a lot more. (Let me say here that I agree 100% with her ruling on the “liability” phase, i.e. that stop-and-frisk as practiced by the NYPD is unconstitutional under the 4th and 14th amendments, but am concerned that the remedies ordered, in the absence of a federal DOJ intervention with a monitoring component, might be administered in such a way as to be not as effective as the judge contemplates.)

    But wait! There’s MORE!

    After the Second Circuit stayed the order, they had to find a new judge to whom the FLOYD case would be assigned. Even though it is stayed, it has to have a “home” judge until it concludes. They removed Scheindlin, so which district judge would get the case?

    Presumably the district court spun the assignment wheel, and it settled on John Koeltl. Fine. But wait! Faster than you can say “news cycle,” he was removed and another judge appointed: Annaliese Torres. This game of musical chairs has made the courts, both district and Circuit, look nutty. Or worse, corrupt because somehow tied to mayoral political battles. I am not saying there is anything inappropriate; I am saying that…well, there is this “appearance of impropriety” thing, you know?

    • Candace,

      Fascinating. Thanks for taking the time to provide your thorough report.

      “Nutty” is an apt description of this sad state of affairs. “All too human” might work also–if, like me, you are prone to be charitable regarding the motives of each and everyone of the judges.

      All the best.

      RGK

  10. Pingback: Stop-and-frisk judge fights her removal from case; brief says she was ‘completely blindsided’

  11. Pingback: Judge Scheindlin and the Second Circuit to date. | The Researching Paralegal

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