As a magistrate judge, as a Chief District Judge, and as an active district judge, I have had three opportunities to observe or participate in how our court dealt with a district judge* who was sick or old and where questions were raised about whether the district judge should continue to hear cases. Each case was different.
I will not write about those three cases. However, the reader might be interested knowing how we have addressed this behind-the-scenes question in light of my own ongoing cancer treatment. Hopefully, the take-away is that the federal trial courts are sensitive to this issue, proactive, and careful.
Among all federal judges, a federal district judge is unique in one respect. The federal district judge is the only Article III judge who has the general power to make a decision solely by himself or herself. This vests in district judges an awesome power and responsibility. Most of us never forget that we walk the tightrope alone, and if we fall off because of an infirmity we are likely to badly injure those below.
Like the narcissist that I sometimes am, here is my story and how our court dealt with my becoming old and sick.
Four days after my first wife unexpectedly died on December 26, 1986 of an unknown virus that attacked the electronics of her heart, and only a month before I was to become a magistrate judge, my stomach ulcer ruptured spilling the contents of my guts into my stomach cavity. Emergency surgery, replete with a huge scar, followed. Eight days afterwards, I was released. I weighed 137 pounds. I recovered (sort of) and began working in Omaha as an MJ in February of 1987. I had just turned 40.
I became a district judge in 1992 soon after turning 45. By the time I was a few years over 50, and while driving back from a strenuous trial in North Platte, I suffered a heart attack. The blockage was relieved by angioplasty. But not long thereafter the blockage came back. That was followed by another angioplasty and then a stent. I began to mend.
Several years after the heart attack, and during a routine check up, my cardiologist thought he heard the distinct murmur of a blockage of the right carotid artery. Testing confirmed it. Several days later, into the operating room I went. I lay partially sedated but awake (so they could talk to me and determine if I was having a stroke) while the talented vascular surgeon dissected the carotid and relieved the blockage. A year or so later, the right carotid was blocked again and the second endarterectomy was performed. This time it took.
As readers of this blog know, in early December of 2013, and while trying a high-profile jury trial out-of-state, my left leg and foot began to swell. Two deep vein thrombi were discovered and then were relieved by blood thinning medications. Severe pain persisted. I was 67.
More or less, the Chief Judge and my other judicial colleagues knew of my medical history. Even though I had taken senior status at 65, since I never missed much work and maintained a full caseload, I doubt that history gave my Chief Judge, the other active Article III judges or anyone else a concern about whether I could do my job competently as a senior district judge. That changed for me, and I suspect my colleagues, when I was diagnosed with stage III** classic Hodgkin’s lymphoma earlier this year.
Here in chronological order is a general description of what transpired behind-the-scenes:
- On February 27, 2014, I notified my colleagues that I had been diagnosed with lymphoma but that the disease had not been typed or staged. I outlined the process for typing and staging. I asserted that no change in the assignment procedures was required until I knew more about a precise diagnosis. My colleagues were supportive, and I promised to keep the Chief Judge, the other active Article III judges, the Clerk and her deputy advised. This was all done in writing.
- On March 6, 2014, I advised my colleagues in writing that I had Hodgkin’s lymphoma either stage III or IV. I also advised that even at these late stages the disease was curable according to the medical literature that I provided.
- On March 17, 2014, I advised my colleagues in writing that:
Today, I learned the following:
1. The nodule in my lung is probably a fungal infection that occurs frequently in this part of the country. The UNMC pathologist gave that tentative opinion this morning following a biopsy of my lung at UNMC on Friday. If that turns out to be true, the infection will be ignored for the time being and I will start treatment of the lymphoma.
2. After a biopsy last week, the bone marrow is free of the lymphoma.
3. Given the above, I have stage III, classical Hodgkin’s lymphoma. The five year survival rates are all over the board. From the literature I have reviewed, I estimate that I have somewhere between a 60 to 85 percent chance of being around to haunt you in the spring of 2019.
4. Dr. Armitage, a world leading expert, and Dr. Green, my treating oncologist in Lincoln, both agree that I should start a chemo protocol developed here in Nebraska for people over 60. I will receive treatment here in Lincoln.
5. I will go through six cycles of treatment. Each treatment cycle lasts 28 days. I receive chemo drugs on the 1st and 8th days by infusion into my port. On days 1-14, I also take chemo medications by mouth. Days 15-28 are for rest and no chemo is administered. Radiation is not usually required.
6. I will start the protocol as soon as the final pathology report on my lung is received by Dr. Green confirming that I have a fungal infection and not cancer in the lung. That is, I should start chemo in a week or so.
7. Dr. Green advises that I should not plan on conducting trials during the first cycle–that is, for about a month after I start chemo, I should not plan on conducting trials because I could be very sick. If the first cycle goes well, I may be able to handle trials thereafter, particularly during the last 2 weeks of each cycle. But my functionality as a trial judge (always suspect in the minds of many) is yet to be determined.
8. Judge Zwart is managing my trial calendar with the foregoing in mind. If trials become necessary during the first month, I will ask LSC to reassign cases. After the first month of treatment, I should know better how I will be able to handle trials. As for sentencings and other short matters, Kris [my judicial assistant] and I will manage those that have been previously set with the idea that I should be able to be on the bench for short periods of time. For new sentencing matters, I ask Judge Zwart to schedule them in accordance with the above and pursuant to our oral discussions.
- On March 26, 2014, I advised my colleagues that I had started my treatment. I described in some detail what the treatment was like.
- Soon after March 26, 2014, the Chief Judge, the other active district judges, the Clerk and her deputy conferred or corresponded with me and the following was done: (1) my career law clerks*** were instructed in writing to contact the Chief Judge if they felt I could not perform my duties competently and they were to do so without consulting me; (2) the Chief Judge, the Clerk and her deputy were provided in writing with permission to consult my physician without notifying me and to secure any and all information they desired at any time and that such permission was considered by me to be irrevocable; (3) the Chief Judge, the Clerk and her deputy were given in writing the user name and password necessary to access my electronic medical records and they were given irrevocable permission to do so without notifying me; (4) General Order 2014-02 “IN RE: JUDGE KOPF’S CANCER DIAGNOSIS AND TREATMENT” was entered generally advising the bar and the public of my condition and how the court would deal with my illness including the fact that the court was taking steps to monitor my condition; and (5) at my request, a non-jury civil trial scheduled for early April was reassigned to Judge Gerrard who graciously offered to take it.
- Following completion of the active part of the first cycle, my doctor wrote a report that included this statement about my ability to work:”Fully active, able to carry on all predisease activities without restrictions.” I provided the Chief Judge, the Clerk and her deputy with a copy of that report.
- On April 30, 2014, I advised the Chief Judge, the Clerk and her deputy, the two other active district judges and Magistrate Judge Zwart that my doctor had advised that I was doing very well, but that my fatigue, while fully expected, was likely to increase with each cycle. Tentative plans were instituted on both a short term basis and a longer term basis to deal with the possibility that I might be unable to try one or more cases due to the increased fatigue level. That is where we stand today.
Kopf is old and sick, what should the court do? Now you know what we did. Other courts and other judges might find better ways. I don’t hold out our approach as a model. I do, however, suggest that we in the District of Nebraska take these problems seriously, and deal with them responsibly. And that is a small part of what goes on behind-the-scenes.
*As Chief Judge, and otherwise, I have also dealt with two magistrate judges who had serious illnesses But, those situations pose different problems, and are not the focus of this post. The focus here is on district judges who exercise Article III power and who enjoy Article III protections. Those powers and protections cover Article III judges who have taken senior status but continue to work (as is their right). However, is up to the Chief Judge of the local court to determine the extent to which the senior judge will be given a caseload. See 28 U.S.C, § 294.
**A stage III is assigned when the disease is found in lymph nodes above and below the mid-line of the body but not in the bone marrow.
*** Jim is 62. Jan is right around 50. Jan has been with me over 20 years and Jim has been with me more than a decade. I would literally trust either one with my life. They are brilliant and experienced lawyers who take their responsibilities seriously and I have no doubt that they would contact the Chief Judge if that became necessary. They are just the best.