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Tuesday, December 31, 2013

UPDATE: SDNY amends related-case rule to increase transparency over case assignments

Earlier this week, I noted the South District of New York's recent change to the related-case rule. Judge Nancy Gertner offers this intriguing comment regarding the change as it relates to Judge Scheindlin's conduct in the aforementioned Floyd case:

If the new case related assignment rules reported in this blog increase the transparency of the process, it is all to the good. Likewise if Professor MacFarlane’s work contributed to that end, she likewise deserves credit. But there are larger issues involved: Prior to these rules and at the time Floyd was filed, any party could have objected to the assignment of the cases to Judge Scheindlin, moved for her recusal, and waited for her response. If she declined recusal and wrote a decision, her opinion would have been appealed to the Second Circuit.

 

What is so troubling about this case is that none of this was done. Disqualification law reflects a skepticism about parties who move for disqualification only after they lose on the merits; it appears like a post hoc contrivance. While these parties did not move to disqualify ever – at the trial level, or at the appellate level (after at least one of the second circuit judges at oral argument effectively invited them to do so), they are happy to be indignant now.

 

Professor MacFarlane’s article reflects that same indignation, which is why I was troubled to find out that she had only left the NY Law Department in April of 2013, and that the SSRN posting did not reflect that fact (although, to be sure, she had not worked on these cases.) Presumably, that will be corrected in the published piece. Significantly, her piece cites to Mayor Bloomberg’s one sided “report” on Judge Scheindlin’s so called anti police bias, which counted only the cases in which she wrote an opinion suppressing evidence. It did not consider all of the cases in which motions to suppress were denied, with only a margin order (“denied.”) It attacks the judge personally and directly, claiming she insinuated herself into the case as a “player with a stake in outcome,” rather than suggesting, as an academic might, that the rules surely offer the potential for manipulation. It fails to give adequate consideration to the reason for the rule, as Judge Kopf wrote on his blog, namely to avoid duplication, the waste of judicial resources. And since there was no briefing, no fair process, Professor MacFarlane’s unanswered article – no, attack -- became the sole basis for the Second Circuit’s extraordinary decision to sua sponte remove the judge from the case.

The original post is attached below.

The Southern District of New York has changed its rules for the assignment of cases to judicial dockets. According to The New York Times:

Following public debate over how a federal judge in Manhattan came to oversee a 2008 lawsuit challenging the city’s stop-and-frisk policy, the Federal District Court in Manhattan on Monday [Dec. 23] announced new rules to make the assignment of cases more random and transparent, and to offer a means for parties to object to assignments.

Previously, a party to a lawsuit could request a particular judge for a case in which the facts were "related" to those of a case previously heard by that judge.  

But the rule has its critics. Earlier this month, for example, CRL&P highlighted Professor Katherine Macfarlane's critique of "nonrandom case assignment" in The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule Shapped the Evolution of Stop-and-Frisk LawProfessor Macfarlane argues that the related-case rule allows judges to step from behind the bench to influence--indeed to make--policy. According to Macfarlane, Judge Scheindlin did exactly that when she heard a series of stop-and-frisk cases, the culmination of which was her ruling in Floyd v. City of New York in which she held that New York City's stop-and-frisk program was unconstitutional. Macfarlane concludes:

Like the Fifth Circuit judge who packed civil rights cases with desegregationist judges, Judge Scheindlin's positions may be guided by the right moral compass and ultimately vindicated, if not by the Supreme Court, then by history. But the manner in which the Souther District of New York's local rules have allowed one judge to select certain cases, and use them to shape the development of important Constitutional law, gives off such an appearance of impropriety that the procedures that allow for such practices must be eliminated. "[T]o perform its high function in the best way, justice must satisfy the appearance of justice." (citing In re Yagman, 796 F.2d 1165, 1178 (9 th Cir. 1986) (internal citations omitted).

Although the appellate court questioned Judge Scheindlin impartiality and removed her from the case, it upheld her ruling. A federal appeals panel later found no bias or misconduct by Judge Scheindlin

The district's new rules require parties using the related-case rule to justify their request in writing; and, they provide an opportunity for objections from disagreeing parties. The judge still has the authority to determine the propriety of the request. But, the judge's decision is subject to review by a three-judge panel, which can require random assignment.

CRL&P related posts:

http://lawprofessors.typepad.com/civil_rights/2013/12/sdny-amends-related-case-rule-to-increase-transparency-over-case-assignments.html

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