The following comes from a Dec. 1 article by Ronald Rotunda, professor of jurisprudence at Chapman University on the Verdict section of Justia.com.
Courts often complain about judge-shopping—lawyers who try to game the system to make sure that a particular judge or panel of judges hear their cases. In the Seventh Circuit, for example, the official Practitioner’s Handbook for Appeals assures us:
Assignments of judges to panels are made about a month before the oral argument on a random basis. In death penalty appeals, panels are randomly assigned when the appeal is docketed. Cir. R. 22(a)(2). Each judge is assigned to sit approximately the same number of times per term with each of his or her colleagues.
This rather specific rule is simply one example. As one study published in the Texas Law Review concluded, “To create neutrality, all federal circuits purport to rely on the random assignment of judges to panels.…”
Yes, lawyers may not manipulate the system to assure that certain judges sit or do not sit on case. That is what the case law tells us. It turns out, however, that the court does not practice what it preaches, at least when one considers the Ninth Circuit. Statisticians use “bias” as meaning a deviation from the expected outcome. When a three-judge panel of the Ninth Circuit invalidated state bans on same-sex marriage in Idaho and Nevada in October 2014, the panel included both Judge Stephen
Reinhardt and Judge Marsha S. Berzon. Since 2010, the Ninth Circuit has heard 11 gay rights cases. Judge Reinhardt was on the panel in four of them while Judge Berzon was on five. Eighteen of the court’s active judges served on no same-sex marriage case. How likely are these panels the product of chance? The brief filed by Coalition for the Protection of Marriage presents its statistical analysis and methodology that shows the odds are 441-to-1. They are asking for the case to be reheard en banc. That would remove the objection that in the Ninth Circuit, some cases are more random than others are.
If the Ninth Circuit has not been entirely random in its assignment of cases that would hardly be the first time a court was caught with its hands in the cookie jar. Another statistical study, which professors of political science and law from Washington and Lee School of Law, Emory University, and Pennsylvania State University came to similar conclusions. They examined a different universe of cases—the discretion held by chief judges to designate district court judges to three-judge appellate panels. Their result, published in the University of New Hampshire Law Review in 2012, also concluded that there was “clear and consistent evidence that chief judges, in making designation decisions, tend to choose individuals with similar ideologies,” in an attempt to influence the outcome. A 2014 study by law professors from the University of Chicago and Duke came to similar conclusions. They did not limit themselves to a subset of cases (e.g., same-sex marriage) but instead assembled “the largest dataset of panel assignments of those courts constructed to date.” Their conclusion of non-randomness was contrary to the “fundamental academic assumption” that three-judge panels in the federal circuits are “randomly configured.” The authors have a “roughly 98% confidence that the evidence of non-randomness that we detected for the ideological balance of panels cannot be explained by chance alone.” One of the professors in this study added, “If any of the 12 circuits are using a nonrandom process, it’s most likely to be the Ninth Circuit.” That is the stellar reputation that the Ninth Circuit now has.
A lawyer for the plaintiffs in the Ninth Circuit case denied that there was non-random selection of judges, but how would he know? He was not involved with selecting the panel. What is more interesting is the response of the Ninth Circuit. It denied that it assigned cases in a non-random manner. Then, it noted, almost casually, that the procedure, apparently after the complaint, has now changed:
Until recently, though, the court used a different procedure for assigning cases on a fast track, like the marriage case. They were assigned to the available panel with the most senior presiding judge, said the Ninth Circuit’s chief judge, Alex Kozinski. Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.
That procedure was changed to ensure “more randomness,” Ms. [Cathy A.] Catterson [the Ninth Circuit’s top administrator] said. (Emphasis added.)
This response raises more questions than it answers. First, if the prior practice (“a different procedure”) was good, why did it end when the complaints became public? Second, why would anyone assign to the most senior presiding judge all “cases on a fast track”? Third, why are marriage cases on a fast track? Finally, how does randomness become “more randomness”? The Administrator never answered any of these questions.
When Judge Kozinski was asked, “When (if ever) were Ninth Circuit judges generally informed of this practice [of assigning expedited cases to the available panel with the most senior presiding judge]?”, his response was, “I don’t know. Perhaps before my time.” When he was asked what was the justification for the prior practice, his response was, “Can’t say I gave it much thought.”
All this speculation would end if the Ninth Circuit (and other circuits as well) made their assignment procedures transparent. Whatever formula they use, they can tell us. When they deviate from that formula, they tell us what they did and why they did it….
To read original article, click here.
So, now I can truly see how there is no true justice in this world, and how we must suffer the consequences, all of us, for the miscarriage of justice. There is no such thing as inequality, but it exist in the minds onlly of those who would have me believe that I am treating anyone any differently because of their choice of lifestyle and attachment to homosexuality. No heroism exists there (Ninth Circus Court) either. Too bad. It might have done us all a lot of good.
Sour grapes . . .
Sour grapes? Not likely and I’m cautiously optimistic that justice and truth will finally prevail! After all God does will have the last word.
The article fails to mention the tremendous importance of ‘Legal Clerks’ – Chosen by the Judges to ‘assist’ them throughout the system, but also part of the mechanism by which Cases are assigned and handled.
I know from personal experience of one Former Clerk in the Idaho Federal Courts (since reportedly promoted to the 9th Circuit) who Deliberately Sabotaged a Case I had filed – by Dismissing it for “Failure to Pay Fees” – nearly a month After the Check doing so had cleared my bank. This was Not an ‘accident’ – and when I contacted the Court by phone ( by chance speaking with the Only Male employed there at the time – and Not ‘my clerk’) – Who quickly confirmed the Cleared and Cashed payment already recorded – But too late, Damage Done.
Of course ‘they’ had to Protect a Defendant in the suit (the ‘Most Moral Womyn in Idaho’ – Then Deputy Attorney General / Chair of the Idaho Bar ‘moral character’ screening committee) – who literally spat in my face during a formal hearing inside Bar HQ – the Misandrist Lie that:
“Misandry is Not a Real Word you can look up in Webster’s Dictionary!”
Although the Word & Explanation of MISANDRY is quite easily found in the copy of Webster’s on display for public use, located in the lobby of the same Bar HQ.
The implication in this brief is bad enough, that someone in the 9th circuit had their finger on the scales of justice. It is not even an open secret, it is widely known, that the ninth circuit, the largest one in the nation, is not precisely random. The ninth circuit hears cases in several venues. Not all judges sit in all venues. So if a case is brought in San Francisco, there are a number of judges who will never hear that case at the initial appeal level. There is a seniority preference, so a more senior judge is likely to get a particular case. Furthermore, not every judge is full time. So a part time judge is less likely to get assigned a case. And then, of course, a judge isn’t assigned a case if he or she already has a full caseload. So right there, you have a series of things that makes the process less than random. But is an un-random process fair? Yes of course it can be, so long as the cases are not distributed in an unfair way. It happens that the seniority preference made it a little more likely that a Judge like Reinhardt got more cases than a junior judge. Was any of that unfair? No, it was a process followed correctly, and to go and cast aspersions upon the staff of the court by pretending that the process was purely random really irks Judges.
I know one who is ‘Casting Aspersions’ on the Sanctity of our ‘justice’ system and its mechanisms – from the Inside:
California State Bar in Turmoil After Shake-up Triggers …
Nov 14, 2014 … The California State Bar was thrown into turmoil this week after its ousted executive director struck back with retaliation claims alleging that he … lawsuit filed in California state court Thursday that the state bar fired him from his
& Fired California Bar official files whistle-blower suit
Nov 14, 2014 … (Reuters) – The fired executive director of the State Bar of California filed a whistle -blower lawsuit against the organization on Thursday the
Lessons from a lawsuit | The Sacramento Bee
Nov 19, 2014 … Joe Dunn’s acrimonious departure as the California State Bar’s executive director has lawyers everywhere talking, since the quasi-public …
Fired California bar official said he tried to expose …
Nov 13, 2014 … The ousted executive director of the State Bar of California sued the lawyer’s group Thursday, saying he was fired because he tried to expose …
The editors chose to edit out the parts of my comment where I took them to task for implying that the judges were motivated by money when they headlined their view that judges had their “hands in the cookie jar”. There is absolutely no evidence that even if judicial case assignments were less than completely random, that there was some hanky panky money exchanging hands. Editors should answer for their accusations, not edit away concerns of bad journalism.
Please refer to the comments policy, which is located above and below the comment box. Comments over 250 words are edited for length.
I know of a Case in the ‘Bad Ole Days’ when CA still had a hierarchy of Courts, including both ‘Justice & Municipal Courts’- that have since been eliminated in a highly questionable ‘consolidation’ into Superior Courts.
The Temporary Part Time Acting Superior Court Judge in a case against the County of Santa Barbara for Political Retaliatory Termination, also happened to be a Full Time ‘Justice Court’ Judge, Employed by the Same County who were the Defendants = and who also Employed the Opposing County Counsel too.
The Judge arrived for a Hearing in the Case about 20 minutes Late (a big no no for anybody else) – and immediately apologized for being tardy, saying he had been held up across the street at the Same Board of Supervisors.as were ultimate Defendants – making a plea for Funding for His Job in Solvang.
To put it more simply – the Judge was late for Trial because he was busy asking the Defendants (represented by County Counsel) to Fund his Salary.
3 guesses how that turned out – because guess is all you can do – the CA Courts not only De-Published the Appeal but ‘scrubbed the sink’ to make the stink of Ungood Facts Disappear – legally at least.
BTW – I still have copies.
So what stops you from publishing them? you can get a free website at wordpress.com.
One thing you and I may agree upon, Mr. McDermott, is that all court documents should be free to download. Instead, most courts use a system that charges outrageous fees to download items that, by law, should be public documents, as I’m sure you are aware.
The 9th Circuit Court of Appeals is overturned by the Supreme Court more than any other Court in the Nation.
Other States have asked to be redistricted out of the 9th Circuit, with no luck to date.
Any MANIPULATION of any Court System by lawyers or others – should be a CRIME itself.
Required TRANSPARENCY on ALL procedures should be in full effect at all times.
Sandra – I suggest you remember the axiom that:
“Those who respect the law or enjoy sausage, should never watch either being made.”
I submit the same applies to Lawyers and Law School – which has become a Political Indoctrination Camp ruled ruthlessly by the Gaystapo Alliance, with a specific mission to rid the field of those who fail to pander to the Turkey Baster Creationist Agenda of Misandry.
The “non-sequitur” comic from 12/3/14 was particularly evocative of the true nature of the ‘justice’ system in this obscene age of Abomination.