Wednesday, November 13, 2013

Second Circuit Clarifies Its Opinion to Remove District Judge

Bench_and_Bar_Vanity_Fair_5_December_1891In a 15 page opinion (with extensive appendices) issue late Wednesday, In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin, which we discussed here.   Calling her a "long serving and distinguished jurist of the United States District Court for the Southern District of New York," the Second Circuit panel nevertheless again concluded that "reassignment is advisable to preserve the appearance of justice."

In a separate order and opinion, the panel denied the motion of Judge Scheindlin's attorneys to appear.

Recall that the underlying controversy involves Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York  regarding the NYPD's implementation of stop and frisk as violative of equal protection. 

In today's opinion, the panel 

"explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”

The explanation stresses that the opinion is based on the appearance of partiality rather than any "findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin."  Again, this appearance of partiality is twofold.  First, there are the judge's statements on the record in a related case.  After quoting some of the statements, the panel concluded:

We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.

(emphasis added).

Second, the panel considered - - - as the  "statements described below" - - - the judge's statements to the press.  While the panel noted the judge  "did not specifically mention the Floyd or Ligon cases in her media interviews," nevertheless, the context was critical.  And while "nothing prohibits a judge from giving an interview to the media,"

judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”

The panel opinion does not reference the First Amendment.  The panel did, however, reference the Code of Conduct for United States Judges, but only to disavow its mention in the earlier order.  Here, the Second Circuit panel of judges wrote,

We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act. . . .

But as to the removal - - - or reassignment - - - the panel again found this to be the proper remedy.  Reassignment, the panel wrote, "while not an everyday occurrence, is not unusual in this Circuit."  In support of this, the panel cited nine cases from 1999 - 2011.  The panel also noted it occurs in other circuits.  [UPDATE: For scholarship on this topic, see here].

Thus, the opinion softens some of the original language, expanding on the relatively brief previous order, but does not waver from the conclusion or remedy.  If the original order was a "slap" as some people characterized it, this replacement is more of a stern lecture rendered in patronizing and disappointed tones.

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