Tue Nov 5, 2013 by Anil Kalhan
The Appearance of Impropriety and Partiality (Dorf on Law)
(Posted at Dorf on Law)
Last week—a day late for “Mischief Night,” but right in time for Halloween—a motions panel of the U.S. Court of Appeals for the Second Circuit, consisting of three long serving and distinguished Circuit Judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., issued what must surely rank among the most bizarre stay orders that court has ever issued. The stay was (rather belatedly) sought by the City of New York in an appeal from an August decision by U.S. District Judge Shira A. Scheindlin—herself a long serving, distinguished, and highly respected judge in the Southern District of New York—holding that the New York Police Department’s “stop and frisk” practices involve impermissible racial profiling in violation of the Constitution. Only days before the City’s stay motion was filed in late September, the Second Circuit, in an order signed by Judge Richard Wesley, had denied the City’s previous (and also belated) motion for an expedited appeal and briefing schedule, which somewhat undermined the City’s claims to urgency and irreparable harm in its stay motion.
However, last Tuesday, Judges Cabranes, Walker, and Parker heard oral argument on the City’s motion, and two days later, the three judges not only granted the City’s motion to stay Judge Scheindlin’s order pending appeal, but also, somewhat remarkably, summarily dismissed Judge Scheindlin from hearing the stop and frisk cases altogether—which no party to the litigation sought or briefed. Even more remarkably, the panel did so with immediate effect, rather than ordering briefing and further consideration of its concerns or waiting until adjudication of the merits of the appeal and remand to the District Court. The panel’s order did not even mention, much less discuss, any of the substantive criteria governing whether a stay should be issued—likelihood of success on the merits, irreparable harm to the applicant, injury to other parties, and furtherance of the public interest. Instead, the entirety of the judges’ two page order was devoted to slamming Judge Scheindlin’s integrity, charging in rather cursory fashion that she had “compromised” the “appearance of partiality surrounding this litigation.” (Presumably, the panel meant to accuse her of having “compromised” the appearance of impartiality, not “partiality,” when it dashed off its brief order.)
In support of that charge, the panel cited two data points. First, the panel noted Judge Scheindlin’s supposedly “improper application” of the Southern District’s Local Rule 13(a), which permits district judges, in their discretion, to preside over civil cases that are related to each other if it would result in “substantial saving of judicial resources,” advance the “just, efficient, and economical conduct” of the litigation, or serve the “convenience of the parties or witnesses.” Second, the panel referred to a slew of news media articles—from the New York Times, New York Law Journal, Associated Press, and New Yorker—in which Judge Scheindlin “purport[ed] to respond publicly to criticism of the District Court.” On that basis, the panel concluded, Judge Scheindlin had not simply acted in a manner that warranted (without further explanation) a stay of her order pending appellate review, but had gone even further to “run afoul” of the Code of Conduct for U.S. Judges.
Well, “trick or treat” to you, too, Judges Cabranes, Walker, and Parker—shouldn’t your order have directed members of the public to egg Judge Scheindlin’s house and toilet paper her yard, for good measure? As Anna Merlan writes in the Village Voice, “That whooshing sound you just heard are eyebrows shooting to hairlines on reporters’ heads all over the city.” And not just reporters’ heads. The motions panel’s strange order has left lawyers, law professors, and even current and former judges themselves deeply “puzzled.”
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A federal court of appeals certainly has authority to direct a district court, upon remand of a case, to reassign that case to a different district judge under appropriate circumstances. But under the Second Circuit’s own precedent, directing reassignment of a case upon remand to the district court is “an extraordinary remedy … [to] be reserved for the extraordinary case.” After all, as Justice Scalia has observed, “opinions held by judges as a result of what they learned in earlier proceedings” do not automatically amount to “bias” or “prejudice,” and it therefore “has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.”
Was the Second Circuit presented with such “unusual circumstances” in this case as to require Judge Scheindlin’s ouster? The evidence suggesting that seems rather scant. Judge Scheindlin’s application of the “related case” rule itself seems rather mundane. The current stop and frisk case alleges a violation of her order in a prior case over which she presided, which would seem to squarely make the two cases related. But even if she had incorrectly applied Local Rule 13(a), that obviously does not by itself amount to a violation of the canons of judicial conduct. As for her public statements, while individuals certainly might disagree as to whether they were well-advised on her part, none of them concerned the stop and frisk cases themselves, and none of them seem any more or less remarkable than the kinds of interviews that Supreme Court justices and other federal judges routinely give these days. Undoubtedly some of Judge Scheindlin’s comments might have touched raw nerves or raised hackles among some federal judges. It’s quite likely, for example, that some federal judges do not appreciate hearing her suggestion that there might be members of the federal judiciary who are “overly cautious” because they are “fearful” or “want a promotion,” or that “[t]oo many judges, especially because so many of our judges come out of [the U.S. Attorney’s] office, become government judges.” Those are certainly strong and potentially unsettling assertions. At the same time, the basic message she conveyed about her own approach to judging was unremarkable: judges should be evenhanded and impartial—treating the government, for example, as any other litigant rather than affording it deference. In any event, as Professor Deborah Rhode writes in the New York Times, judges are protected by the First Amendment, and the credibility of the judiciary “is enhanced, not diminished, by opportunities for public education” and deliberation about how courts function, even if those discussions might be uncomfortable.
On the other hand, as former U.S. District Judge Nancy Gertner has suggested, what does seem to present “unusual circumstances” in this case is the odd and irregular manner in which Judges Cabranes, Walker, and Parker themselves have rushed to dismiss Judge Scheindlin from these cases so aggressively and swiftly. While the motions panel purports to base its decision upon a review of the “record,” none of the information upon which it relies actually appears in the judicial record. Moreover, the panel also offers no explanation for its decision to launch an immediate strike to oust Judge Scheindlin from the case, as if there were a grave and imminent threat to the integrity of the judicial process simply by having her name associated with it, rather than awaiting full adjudication of the merits to fully ascertain what the precise circumstances of their remand ultimately would entail. As U.S. District Judge Richard Kopf has noted, “[i]f 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.”
The panel’s haste is particularly odd given its decision to grant to the City’s stay motion. After all, as Professor Judith Resnik observes, because the panel’s decision to grant the stay “left the district court with nothing to do” while the appeal is pending, there was no urgency for the panel to determine right away who would preside over the case upon remand. While the panel partially remanded the cases after issuing its order for the sole purpose of directing the District Court to oust and replace Judge Scheindlin with another judge, as long as the stay is in place, nothing else will happen with these cases in the District Court until the appeal has been adjudicated on the merits. In a similarly gratuitous manner, the panel’s order purports to stay not only the remedial process ordered by Judge Scheindlin, which requires the NYPD to cooperate with an independent, court-appointed monitor to develop reforms to its practices, but also her separate order detailing her findings of liability—which, by its terms, does not require the City to do anything, and as to which the panel’s stay order is therefore entirely symbolic. The panel’s only apparent purpose of “staying” those findings of liability, therefore, seems the expressive purpose of piling on.
By acting so precipitously, the panel denied Judge Scheindlin any opportunity to respond to its allegations of judicial misconduct—allegations that are inherently serious, by their nature—before it published and gave judicial imprimatur to its rather casual conclusion that she had “run afoul” of the canons of judicial conduct. Especially since no party had sought her recusal or disqualification, her own interests have gone entirely unrepresented before the Second Circuit. The picture stands in sharp contrast to circumstances in which a party seeks a writ of mandamus against a district judge, in which the appellate court presumably would have appointed counsel to represent the judge’s interests in a more complete proceeding—for example, as the Second Circuit recently has done in a challenge to Judge Jed Rakoff’s decision not to approve a settlement between the SEC and Citigroup. In the absence of a similar opportunity to be formally heard, Judge Scheindlin has been left to issue a short public response to Judges Cabranes, Walker, and Parker—a response that calls their characterizations of her actions into some doubt. Certainly, it would have been much better to have permitted the development of those competing claims more deliberately in an actual proceeding.
The entirely predictable result of the panel’s casual, thinly supported conclusion that Judge Scheindlin has violated the canons of judicial conduct in such a publicly charged case—without affording her any opportunity to respond to and contest that assertion—has been to drag her character and reputation through the mud. The aftermath of the order has unleashed considerable vitriol against Judge Schedinlin by politicians and other detractors, the indignity of fending off tabloid stalkarazzi, and somewhat wild speculation about whether she might face professional sanctions. In short, in the words of Judge Kopf, the order by Judges Cabranes, Walker, and Parker seems very much “a cheap shot.”
For months, New York Mayor Michael Bloomberg, NYPD Commissioner Raymond Kelly, and other City officials have actively campaigned to delegitimize both Judge Scheindlin and the stop-and-frisk litigation itself, casually leveling attacks upon her integrity and even ordering the preparation of a dossier criticizing her as biased against law enforcement and circulating it to journalists while the stop and frisk trial was still underway. But at no point, in either the District Court or the Second Circuit, has the City directly sought Judge Scheindlin’s recusal or disqualification or claimed that she has violated the canons of judicial conduct. How and why these allegations concerning Judge Scheindlin’s character and integrity—what counsel for the plaintiffs has termed a “whisper campaign” against Judge Scheindlin—infected the motions panel’s formal consideration of the City’s stay motion, and how and why they constitute an appropriate basis for her immediate ouster, without briefing and argument by the parties or an opportunity for Judge Scheindlin herself to respond, would seem to demand a relatively full explanation and justification by Judges Cabranes, Walker, and Parker. Good luck, however, trying to find that in their two page directive.
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Both Judge Gertner and Judge Kopf have suggested that the bizarre nature and circumstances of the motions panel’s order raise questions about whether it is Judges Cabranes, Walker, and Parker, rather than Judge Scheindlin, who have “breached the rules” of judicial conduct. In a manner rich with irony, coming from a panel that had just faulted Judge Scheindlin for her application of the Southern District’s related cases rule, the three judges announced that, “[i]n the interest of judicial economy,” the motions panel would retain jurisdiction to hear the merits of the appeal “in due course,” rather than having that case randomly assigned to another panel. (“Evidently when it comes to related cases,” writes Professor David Cole, “what’s sauce for the district court is not sauce for the court of appeals.”) At the same time, the three judges went out of their way to assure that in acting immediately to take out Judge Scheindlin, they “intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.” Should that assurance be taken at face value? Like so much else in this appeal, the assertion is peculiar—not least because the criteria for granting or denying a stay actually required them to consider the likelihood that the City might prevail on the merits as one factor. Because the panel’s order does not furnish any explanation or reasons for why it concluded the City has satisfied those criteria, there is no basis to know the extent to which its conclusion rests on an assessment of the City’s position on the merits as opposed to the other traditional stay factors, but regardless it does make the panel’s assertion somewhat strange.
Moreover, even if the three judges have not exhibited any actual impropriety or partiality (which one of course must presume), on the very logic by which they have taken out Judge Scheindlin, the irregular nature and circumstances surrounding their order might raise questions about the appearance of propriety and impartiality of their own adjudication. As Judge Kopf writes:
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. . . .
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.
The likelihood that such questions might be raised has always been especially high in these particular cases given their politically charged nature. Politicians and commentators who disagreed with Judge Scheindlin’s decision have rushed to characterize the panel’s decision as significant primarily for its supposed political salience in the final days of the mayoral election. In welcoming the decision as giving a boost to his own campaign, for example, mayoral candidate Joe Lhota—who has long criticized Judge Scheindlin and accused her of harboring anti-NYPD bias—quickly asserted that the “[t]he entire core of [rival and front runner Bill de Blasio’s] campaign just fell apart” as a result of the panel’s decision, in part because “[y]ou’ve got Bill de Blasio standing side by side with someone who has no judicial temperament.” Lhota supporter Rudolph Giuliani went even further, asserting that de Blasio should apologize to the NYPD in light of the “vindicat[ion]” by Judges Cabranes, Walker, and Parker of the NYPD’s stop and frisk practices.
Moreover, while it is exceedingly difficult to know for sure without seeing the full transcript, in the aftermath of last week’s oral argument on the stay motion, the City’s shifting positions concerning its desired brief schedule might be interpreted by some as raising an appearance of having been shaped or influenced by the comments of judges at oral argument. In its previous motion to expedite the appeal, which the Second Circuit denied, the City sought a briefing schedule in which the appeal would not be fully briefed until the end of January 2014. However, after the oral argument—during which the judges (at least based on public reports) criticized the City’s attorneys for pursuing the appeal “at a snail’s pace” and not “act[ing] with real urgency,” and intimated that they might choose on their own to adjudicate the appeal more quickly than the parties themselves had contemplated—counsel for the City rather suddenly expressed a newfound desire for a briefing schedule in which briefing would be complete by December 12, 2013, which, the City argued, would permit the appeal “to be heard and decided by the end of the year.” Which, of course, would also conveniently permit the case to be fully decided before the next mayor is sworn into office—and thereby would preclude him from withdrawing the appeal and accepting Judge Scheindlin’s order if he wished to do so, as de Blasio, the mayoral front runner, has indicated he would.
Regardless of the judges’ actual intentions—which of course we can and must presume to involve good faith, sincerity, fairness, and impartiality—do these shifting litigation positions, taken together with the panel’s comments at oral argument, suggest an appearance of having been influenced by the motions panel’s own possible preference to decide this case on the merits swiftly, before the next mayor is sworn into office and has the opportunity to withdraw the appeal? By the logic of the panel’s own interpretation and criticism of Judge Scheindlin’s actions, perhaps some observers might reasonably conclude that they do. At the very least, as Judge Kopf notes, the judges’ failure to “follow a more regular process” has left people to wonder, as he puts it, whether “it is they,” rather than Judge Scheindlin, “who have a political or policy agenda.” Police columnist Len Levitt suggests an even simpler motivation: “No matter how you slice, splice or dice it, those three big boys on the bench made it personal. They don’t like the lady.” My point is not to endorse any of these views. It seems all but certain, however, that greater procedural regularity and more fully developed reason-giving by the panel would have reduced the space for these questions about the appearance of impropriety and partiality.
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So what happens next? According to former New York Supreme Court Judge Emily Jane Goodman, counsel for the plaintiffs have indicated that they intended to seek en banc review of the panel decision and may seek recusal of Judges Cabranes, Walker, and Parker. And as many observers have noted, the ultimate fate of the NYPD’s stop and frisk practices themselves will likely depend more on the decisions taken by the next mayor than on what happens in the Second Circuit.
But more hangs in the balance here than the fate of stop and frisk itself. The actions of the Bloomberg administration in this litigation have marked out a template by which powerful and well-resourced litigants might actively seek to intimidate or delegitimize a judge while litigation is underway in hopes of triggering their acquiescence or ouster —whether by directly intimidating them or by indirectly inducing others, including appellate judges, to heed casual allegations of judicial bias and partiality, but without putting themselves on the line to make those allegations directly. As Judge Scheindlin herself stated in one of the interviews for which Judges Cabranes, Walker, and Parker have evidently faulted her, “Judges can’t really easily defend themselves. … To attack the judge personally is completely inappropriate and intimidates judges or it is intended to intimidate judges or it has an effect on other judges and that worries me.”
Her worry hardly seems misplaced. But with all the well-deserved attention on the implications of the panel’s decision for the future of stop and frisk practices themselves, this basic issue of judicial independence for trial court judges has been relegated somewhat to the background. The issues arising from this appeal involve more than Judge Scheindlin herself, and involve more than stop and frisk. Those who care about judicial independence and the integrity of the judicial process might wish to give more attention to the risks of allowing the kind of strategy pursued by the Bloomberg administration to prevail without raising questions about its propriety, and of permitting the appellate panel in this case implicitly to legitimize and give its stamp of approval to that strategy by so casually and nonchalantly throwing Judge Scheindlin and her reputation under the bus.