Under Analysis: Was this Halloween really scary?

 Charles Kramer, The Levison Group

Sometimes things happen in the law that cause us to pause and inquire further. Sometimes things happen in the law that seem appropriate for the day upon which they occur. This past Halloween, Oct. 31, 2013, a three judge second circuit panel may have accomplished both. 

The New York police department has a policy known as “stop and frisk” which its opponents claim unfairly targets minorities. U.S. District Judge Shira Scheindlin is the judge assigned to a long running case challenging the practice. After hearing some preliminary evidence, this past August the judge issued an order requiring the department to alter its policy while the case went forward. She held the city violated the civil rights of blacks and Hispanics because evidence showed they were stopped and questioned substantially more often than others. She assigned a formal “monitor” to help instituted departmental training and a change of practice with regard to the procedure.

In response, in a somewhat unprecedented and definitely rare and unusual act, on Halloween day the Second Circuit stayed enforcement of Scheindlin’s order, and removed her from the case all together — a tact no party had asked for. 

Opponents are outraged, saying the action was hasty, premature, based on a skewed reading of the evidence, and ignores a rule allowing judges accused of wrongdoing to defend themselves before discipline is imposed. Constitutional scholars are quietly concerned. The Second Circuit panel that removed the judge, has declared it did so because it found she misapplied the law and because she gave media interviews during the trial, raising questions of her impartiality.

Even if this is the case, however, the removal of the judge from the case seems to be directed at changing a perceived probable outcome, than with any attempt to preserve the integrity of the system. It is tantamount to Major League Baseball removing an umpire in the middle of a game because he calls a ball that bounces in the dirt a strike. Even if the error is manifest, the punishment and its effect on the integrity of the game far outweighs the miscue.

Adding further grist to the mill of would-be conspiracy theorists is the fact that, not only was the judge not given an opportunity to defend herself, but the parties to the pending litigation were not given any notice of the possibility that the judge would be removed, and were also not given an opportunity to be heard. In addition, Mayor-elect Bill de Blasio, who takes office in January, is already on record saying that the City will not appeal the judge’s ruling and will follow it, once he takes office, and has set out a plan to reach amicable accords with the plaintiffs and eliminate federal oversight all together. It thus appears the Appeals Court is attempting to prevent that from happening as well.

The bottom line is that, if the 2d Circuit felt the judge’s ruling was in error, it took the right step in staying its enforcement. However, removing a District Court judge because it disagreed with the ruling, subjects the entire federal judicial system to allegations of politicism, retaliation, and result shopping. Basically, it seems the appellate court didn’t like the way Mom was addressing the situation, so decided to take steps to allow the defendants to ask Dad next time instead. If so, the Court has adopted an approachloved by adolescents but improper for Federal Courts..

More insight, facts and evidence may ultimately shed light on the reason for the unique appellate action, and may show some justification for it. In the meantime, however, hold your constitution tightly. 

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Under Analysis is a nationally syndicated column. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman, Berger, P.C. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com.

© 2013 Under Analysis L.L.C.