Thursday, November 7, 2013

Judge Scheindlin fights back

On October 31, the Court of Appeals stayed (but did not overrule) Judge Scheindlin's ruling on stop and frisks in New York City and also removed her from the case, concluding that she had "run afoul" of the Judicial Code of Conduct in steering the case into her courtroom and also in speaking publicly about the case.

The case is Ligon/Floyd v. City of New York. That sua sponte ruling from the Second Circuit generated much attention. The stop and frisk case is a big deal in that Judge Scheindlin held that the City had violated the Fourth and Fourteenth Amendments in frisking people without reasonable suspicion of any criminal activity, and that the practices amounted to racial profiling. (Hat tip to the Constitutional Law Prof Blog, written by one of my favorite law professors, Ruthann Robson).

Now Judge Scheindlin is fighting back, and she wants the Court of Appeals to reinstate her to the case. She is using some well-known lawyers, including Burt Neuborne, Norman Dorsen and Frederick A.O. Schwartz, Jr., in filing a "request for leave to file motion to address order of disqualification." I have never seen this before, and I don't know if the Court of Appeals has ever reversed itself on a disqualification ruling.

Through her lawyers, Judge Scheindlin notes that she has served with distinction since 1994 and presided over an extensive trial in Floyd v. City of New York, the stop and frisk case, and also presided over a hearing on a motion for a preliminary injunction in Ligon v, City of New York, which also involved the City's stop and frisk practices. At no point in this case did anyone seek Judge Scheindlin's disqualification.

Judge Scheindlin argues that the disqualification order was procedurally deficient because Federal Rule of Appellate Procedure 21 requires that judges will receive notice of any allegations of misbehavior when they are charged with misconduct, and an opportunity to be heard. That did not happen here, Judge Scheindlin says, which violates due process. She also argues that the Court of Appeals got it wrong in concluding that Judge Scheindlin had violated the Code of Conduct in suggesting that the lawyers file the Floyd action and mark it as a related case to another stop and frisk matter that she was handling, Daniels v. City of New York.  In Daniels, the lawyers wanted to "raise newly discovered evidence concerning the allegedly racially discriminatory nature of the NYPD's 'stop and frisk' practices." According to Judge Scheindlin's motion, as the Daniels case had settled, that was not the time to discuss the new evidence, hence the suggestion that the lawyers file a new case. (For the non-lawyers, cases are sometimes filed as related cases if they involve similar legal issues or parties to another case before the same judge). Here is the transcript from that fateful conference.

The motion further challenges the Second Circuit's finding that Judge Scheindlin violated the rules in speaking publicly about the stop and frisk cases. The motion attaches the press articles in which she had allegedly violated neutrality. In the articles, she refused to discuss the legal issues in those cases, and discussed constitutional law and the judicial process in general. The motion adds that "discussion of important legal issues by members of the judiciary enriches the dialogue that is crucial to public understanding of the rule of law, and is consistent with the values underlying the First Amendment."   

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