Tue Nov 5, 2013 by Anil Kalhan
The Appearance of Impropriety and Partiality (Dorf on Law)
(Posted at Dorf on Law)
Last weekâ€”a day late for â€œMischief Night,â€ but right in time for Halloweenâ€”a motions panel of the U.S. Court of Appeals for the Second Circuit, consisting of three long serving and distinguished Circuit Judges, JosÃ© 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. Scheindlinâ€”herself a long serving, distinguished, and highly respected judge in the Southern District of New Yorkâ€”holding that the New York Police Departmentâ€™s â€œstop and friskâ€ practices involve impermissible racial profiling in violation of the Constitution. Only days before the Cityâ€™s stay motion was filed in late September, the Second Circuit, in an order signed by Judge Richard Wesley, had denied the Cityâ€™s previous (and also belated) motion for an expedited appeal and briefing schedule, which somewhat undermined the Cityâ€™s claims to urgency and irreparable harm in its stay motion.
However, last Tuesday, Judges Cabranes, Walker, and Parker heard oral argument on the Cityâ€™s motion, and two days later, the three judges not only granted the Cityâ€™s motion to stay Judge Scheindlinâ€™s order pending appeal, but also, somewhat remarkably, summarily dismissed Judge Scheindlin from hearing the stop and frisk cases altogetherâ€”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 panelâ€™s order did not even mention, much less discuss, any of the substantive criteria governing whether a stay should be issuedâ€”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 judgesâ€™ two page order was devoted to slamming Judge Scheindlinâ€™s integrity, charging in rather cursory fashion that she had â€œcompromisedâ€ the â€œappearance of partiality surrounding this litigation.â€ (Presumably, the panel meant to accuse her of having â€œcompromisedâ€ the appearance of impartiality, not â€œpartiality,â€ when it dashed off its brief order.)
In support of that charge, the panel cited two data points. First, the panel noted Judge Scheindlinâ€™s supposedly â€œimproper applicationâ€ of the Southern Districtâ€™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 â€œsubstantial saving of judicial resources,â€ advance the â€œjust, efficient, and economical conductâ€ of the litigation, or serve the â€œconvenience of the parties or witnesses.â€ Second, the panel referred to a slew of news media articlesâ€”from the New York Times, New York Law Journal, Associated Press, and New Yorkerâ€”in which Judge Scheindlin â€œpurport[ed] to respond publicly to criticism of the District Court.â€ 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 â€œrun afoulâ€ of the Code of Conduct for U.S. Judges.
Well, â€œtrick or treatâ€ to you, too, Judges Cabranes, Walker, and Parkerâ€”shouldnâ€™t your order have directed members of the public to egg Judge Scheindlinâ€™s house and toilet paper her yard, for good measure? As Anna Merlan writes in the Village Voice, â€œThat whooshing sound you just heard are eyebrows shooting to hairlines on reportersâ€™ heads all over the city.â€ And not just reportersâ€™ heads. The motions panelâ€™s strange order has left lawyers, law professors, and even current and former judges themselves deeply â€œpuzzled.â€
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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 Circuitâ€™s own precedent, directing reassignment of a case upon remand to the district court is â€œan extraordinary remedy … [to] be reserved for the extraordinary case.â€ After all, as Justice Scalia has observed, â€œopinions held by judges as a result of what they learned in earlier proceedingsâ€ do not automatically amount to â€œbiasâ€ or â€œprejudice,â€ and it therefore â€œhas 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.â€
Was the Second Circuit presented with such â€œunusual circumstancesâ€ in this case as to require Judge Scheindlinâ€™s ouster? The evidence suggesting that seems rather scant. Judge Scheindlinâ€™s application of the â€œrelated caseâ€ 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 Scheindlinâ€™s comments might have touched raw nerves or raised hackles among some federal judges. Itâ€™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 â€œoverly cautiousâ€ because they are â€œfearfulâ€ or â€œwant a promotion,â€ or that â€œ[t]oo many judges, especially because so many of our judges come out of [the U.S. Attorneyâ€™s] office, become government judges.â€ 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 impartialâ€”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 â€œis enhanced, not diminished, by opportunities for public educationâ€ 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 â€œunusual circumstancesâ€ 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 â€œrecord,â€ 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, â€œ[i]f the appellate judges were worried about the judgeâ€™s impartiality, they could have called for a full exploration of that matter at a later date.â€
The panelâ€™s haste is particularly odd given its decision to grant to the Cityâ€™s stay motion. After all, as Professor Judith Resnik observes, because the panelâ€™s decision to grant the stay â€œleft the district court with nothing to doâ€ 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 panelâ€™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 liabilityâ€”which, by its terms, does not require the City to do anything, and as to which the panelâ€™s stay order is therefore entirely symbolic. The panelâ€™s only apparent purpose of â€œstayingâ€ 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 misconductâ€”allegations that are inherently serious, by their natureâ€”before it published and gave judicial imprimatur to its rather casual conclusion that she had â€œrun afoulâ€ 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 judgeâ€™s interests in a more complete proceedingâ€”for example, as the Second Circuit recently has done in a challenge to Judge Jed Rakoffâ€™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 Parkerâ€”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 panelâ€™s casual, thinly supported conclusion that Judge Scheindlin has violated the canons of judicial conduct in such a publicly charged caseâ€”without affording her any opportunity to respond to and contest that assertionâ€”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 â€œa cheap shot.â€
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 Scheindlinâ€™s recusal or disqualification or claimed that she has violated the canons of judicial conduct. How and why these allegations concerning Judge Scheindlinâ€™s character and integrityâ€”what counsel for the plaintiffs has termed a â€œwhisper campaignâ€ against Judge Scheindlinâ€”infected the motions panelâ€™s formal consideration of the Cityâ€™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 panelâ€™s order raise questions about whether it is Judges Cabranes, Walker, and Parker, rather than Judge Scheindlin, who have â€œbreached the rulesâ€ 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 Districtâ€™s related cases rule, the three judges announced that, â€œ[i]n the interest of judicial economy,â€ the motions panel would retain jurisdiction to hear the merits of the appeal â€œin due course,â€ rather than having that case randomly assigned to another panel. (â€œEvidently when it comes to related cases,â€ writes Professor David Cole, â€œwhatâ€™s sauce for the district court is not sauce for the court of appeals.â€) At the same time, the three judges went out of their way to assure that in acting immediately to take out Judge Scheindlin, they â€œintimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.â€ Should that assurance be taken at face value? Like so much else in this appeal, the assertion is peculiarâ€”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 panelâ€™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 Cityâ€™s position on the merits as opposed to the other traditional stay factors, but regardless it does make the panelâ€™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 Scheindlinâ€™s decision have rushed to characterize the panelâ€™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 Lhotaâ€”who has long criticized Judge Scheindlin and accused her of harboring anti-NYPD biasâ€”quickly asserted that the â€œ[t]he entire core of [rival and front runner Bill de Blasioâ€™s] campaign just fell apartâ€ as a result of the panelâ€™s decision, in part because â€œ[y]ouâ€™ve got Bill de Blasio standing side by side with someone who has no judicial temperament.â€ Lhota supporter Rudolph Giuliani went even further, asserting that de Blasio should apologize to the NYPD in light of the â€œvindicat[ion]â€ by Judges Cabranes, Walker, and Parker of the NYPDâ€™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 weekâ€™s oral argument on the stay motion, the Cityâ€™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 argumentâ€”during which the judges (at least based on public reports) criticized the Cityâ€™s attorneys for pursuing the appeal â€œat a snailâ€™s paceâ€ and not â€œact[ing] with real urgency,â€ and intimated that they might choose on their own to adjudicate the appeal more quickly than the parties themselves had contemplatedâ€”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 â€œto be heard and decided by the end of the year.â€ Which, of course, would also conveniently permit the case to be fully decided before the next mayor is sworn into officeâ€”and thereby would preclude him from withdrawing the appeal and accepting Judge Scheindlinâ€™s order if he wished to do so, as de Blasio, the mayoral front runner, has indicated he would.
Regardless of the judgesâ€™ actual intentionsâ€”which of course we can and must presume to involve good faith, sincerity, fairness, and impartialityâ€”do these shifting litigation positions, taken together with the panelâ€™s comments at oral argument, suggest an appearance of having been influenced by the motions panelâ€™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 panelâ€™s own interpretation and criticism of Judge Scheindlinâ€™s actions, perhaps some observers might reasonably conclude that they do. At the very least, as Judge Kopf notes, the judgesâ€™ failure to â€œfollow a more regular processâ€ has left people to wonder, as he puts it, whether â€œit is they,â€ rather than Judge Scheindlin, â€œwho have a political or policy agenda.â€ Police columnist Len Levitt suggests an even simpler motivation: â€œNo matter how you slice, splice or dice it, those three big boys on the bench made it personal. They don’t like the lady.â€ 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 NYPDâ€™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 â€”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, â€œJudges 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.â€
Her worry hardly seems misplaced. But with all the well-deserved attention on the implications of the panelâ€™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.