Monday, March 19, 2012

Necessity and Impossibility

One of the commentators to my prior post on the difficulties of proceeding before the Supreme Court with the complaint issued by the Judicial Commission against Justice David Prosser thinks the matter easily resolved by the so-called common law "Rule of Necessity." In a case called Will v. United States, the United States Supreme Court held that a district court could hear a challenge to a law that reduced the compensation of all district judges. Although 28 U.S.C. sec. 455 required disqualification of a judge in any matter "in which his impartiality might reasonably be questioned or where he has a financial interest in the subject matter in controversy or is a party to the proceeding," the Court concluded that Congress had not intended to repeal the common law rule of necessity. In it's view, an interested judge could hear the case because there would be no other judge to hear it.

It's a fair point and the idea had occurred to me, but I don't think it works here. First, whether Wisconsin law abrogated the rule of necessity is a point on which Will does not control. Second, and more fundamentally, there is a difference between a rule that allows a judge with an interest to hear a case and one that requires a judge who has been a participant to the events at issue to hear a case. Being a witness and being a judge who must evaluate the witnesses are fundamentally incompatible roles.

We can imagine that a judge might set aside his personal interest, but how is he to set aside what he saw? Recusal rules occasionally do make it impossible to get an outcome and, in the unusual circumstances of this case, that may well be what will happen.

Consider the alternative. At best, we are going to have a proceeding in which the extrajudicial impressions formed by the members of the Court will control the outcome. This is inconsistent with judicial function and, even if permitted, something of an empty gesture. Judges - like any other human being - are not going to disbelieve their own eyes because someone else has settled upon a different version of events.

In this case, the rule of Necessity is trumped by the fact of Impossibility.

I continue to believe that this should have been - and could have been - handled in another way.

So what to do now?

The best outcome would be for the parties to reach some creative resolution. I don't think that Justice Prosser will agree to a public reprimand, but perhaps the matter could be resolved by some type of conciliatory statement and commitment to civility - ideally joined in by all members of the Court. But this may be unlikely.

The second best would be to raise the issue of disqualification promptly. If the Court is not inclined to hear the case, then it would be best for this to happen before there is discovery and a evidentiary hearing, neither of which may be helpful or edifying.

The worst outcome would be full blown litigation. I can imagine discovery into the source of leaks to the press and into the background of the participants which would not be helpful to the Court's image or to its interpersonal dynamics - all for little or no gain.

I, for one, hope that can be avoided. But maybe it can't.

31 comments:

Anonymous said...

OK, you want Wisconsin law? Try the Comment to Wisconsin Supreme Court Rule 60.04(4). "By decisional law, the rule of necessity may override the rule of recusal." Among the triggers for recusal under SCR 60.04(4) is 60.04(4)(e): "The judge . . . Is . . . likely to be a material witness."

And you think there's a material difference between being a witness and having a financial interest? As previously noted the case that spawned this hoary doctrine involved a judge who was a party to the case he had to decide. Talk about having a financial interest, and being a witness!

If the justices who observed this unfortunate incident recuse themselves, they will be avoiding their duty to decide the case. The Rule of Necessity is recognized not just by the U.S. Supremes, but in our own Wisconsin Judicial Code of Ethics.

Anonymous said...

And I'm not particularly impressed by your attempt to argue that being a witness is "fundamentally incompatible" with being the arbiter of case, whereas having a financial interest isn't. The petit jury as first comprised in England consisted of twelve men of the community who were expected to make inquiries and often had first-hand knowledge of the events at issue; having first-hand knowledge of the facts was deemed a help, not a hindrance, to being a fact finder. It's only in modern times that ignorance of the facts has been deemed a necessary precondition to being able to find facts fairly.

Anonymous said...

By the way the case was not called Will v. United States, but United States v. Will. There is a Will v. United States, 389 U.S. 90, and it indeed involves the self-same cantankerous Hubert of the Northern District of Illinois. But that's not the Rule of Necessity case, which is United States v. Will, 449 U.S. 200.

George Mitchell said...

These are no doubt important — and maybe even interesting — legal issues.

But they detract from Rick's original post and on the many problems inherent in pursuing this matter to what clearly will be a jumbled "conclusion."

Rick Esenberg said...

Anon


Overriding a statute is a different issuse and overriding it in this case is not resolved by anything tht you cite. I am not an expert on the doctrine of necessity but deploying it in an ethical or criminal matter in which the due process rights of the accused are paramount suggests to me that it cannot be reflexively invoked.

As to your other comment, it strikes me as too abstract. They aren't "mere" witnesses, they are the only witnesses in a case in which the only issue is what happened. Each has publicly committed themselves to a version of the events. (Nothing wrong with that; they were interviewed by the police.)

Yes, it is in "modern times" that we have come to believe that extrajudicial knowledge is potentially disqualifying but it is modern times in which we live. That will affect how we view this "hoary" doctrine. Today, we would regard "making inquiries" or resolving cases on special knowledge gained outside the proceedings as entirely imporper.

So the source of knowledge that we are dealing with here is inextricably bound up with the merits in a way which I think is problematic. You can put aslde your self interest. You can't put aside what you believe to be true.

But - and you don't address this - let's assume that none of that matters. Let's assume that the Justices own views of what happened ought to be permitted full sway. We should, in effect, let them decide the case on the hasis of what they saw outside of the proceeding,

Several problems remain. What wes the justification for apparently crediting some of what the people who will decide the case said that they saw and not others? What is to be gained by a proceeding in which the people who will decide the case have already committed themselves to a particular account of the event?

We know how the impressions of the various witnesses differ. In light of that, I fail to understand how this complaint is supposed to accomplish anything and I am afraid that it can do great harm to the institution.

I am just one member of the bar and commentator, but, hoy, I just can't see this as a good idea. There were better alternatives.

Rick Esenberg said...

As far as my flipping the caption, you are well aware that we are talking about the same case.

Anonymous said...

Hypothetical. Richard Posner, Frank Easterbrook, and Diane Wood are hearing oral argument of an appeal. Counsel for the appellant gets so upset with one of Wood's questions that he runs up to her and puts his hands around her neck. All three judges witness this. Can the panel exercise summary contempt powers to hold the lawyer in contempt?

Anonymous said...

How about you just get a Federal appeals court to make the decision. They are of approximately equal stature and would have no fear of any kind of reprisal since they are outside the State court system. I'm not talking a trail just the same process the SC would go through with a different set of judges.

George Mitchell said...

Judge Wood startles the Court by leaving the bench to approach counsel with her fist raised. Counsel (reflexively?) raises his arms and his hands touch Judge Wood's neck. Witnesses to this flurry of activity have different recollections.

Anonymous said...

The point, George, is that it's well settled that courts have the power to punish contempts committed in the presence of the judges, and to which the judges are witnesses. Where a court sits in panels of more than one judge, there may indeed be different perceptions of what occurred. Nonetheless, that the judges were witnesses doesn't disqualify them from meting out contempt sanctions, or deciding that contempt sanctions aren't appropriate. So I don't get what's so problematic about the justices of the Wisconsin Supreme Court who witnessed this incident deciding whether it's appropriate or not to issue a sanction, where the Rule of Necessity would suggest that their service is required because otherwise no adjudication is possible.

John Foust said...

Some guy says it's all that darn media coverage and public scrutiny that is making the Supreme Court look so bad. Clearly what we need is to stop looking for these moments when the justices are misbehaving and acting unprofessionally, and presto, they'll go away, and we'll again have faith in our judiciary, as we did in the golden age.

Anonymous said...

Oh, can I really, really hope that Gableman and Ziegler and Prosser actually will recuse themselves from a case, just to show that they do know what recusal is and even know how to do it? Hilarity would ensue across the state!

That's the marvelous point of this case that I had not foreseen -- that this would raise the question of recusal, and that we would now see them eager to use it. It just gets weirder by the day in Wisconsin.

George Mitchell said...

This must be like the 12-step program.

So very hard not to respond to people who have no names.

Tom said...

What, John, you don't think it's human nature to act out more when you have an audience? Any third grade teacher or reality tv-show exec can tell you that.

Rick Esenberg said...

Anon 1:32

This is not a summary contempt proceeding. It is a separate proceeding in which the judges have already committed themselves to a version of the events.

While the panel may be able to impose summary contempt, there may well be an argument that they ought not to do so where there is a material issue of fact as to what actually occurred. And it is not at all clear to me that it would be able to sit on a subsequent criminal contempt after they had given statements to the police.

Nor would the rule of Necessity change things. There is an entire body of law suggesting that a judge cannot sit on a criminal contempt in which the contemnor's conduct has constituted an attack on the judge.

There is another line of cases - the so called "one man grand jury" cases - in which certain types of commitment of the judge to a position earlier in a proceeding (e.g., that a witness has lied) precludes him from trying that issue subsquently (e.g., determining whether or not the witness did lie).

In these cases, recusal is constitutionally mandated, i.e., participation by the judge constitutes a due process violation. If that's so, I don't think the Rule of Necessity can trump the duty to recuse. This common law doctrine does not suspend constitutional guarantees.

I don't know that the obligation of recusal here rises to constitutional level - I'd have to think about that - but it at least approaches it.


My difficulty with your argument is that it is too abstracted and removed from the facts of this case. To say that there is a rule of necessity that might permit departure from traditional rules governing recusal in some cases doesn't mean that it permits it in every case.

George's comments go to the other issues that I raised. The problem here isn't only the difficulty in proceeding. There are many other difficulties.

Rick Esenberg said...

Anon 7:18

I suppose there is some irony but only if you refuse to consider the differences between the cases in which those justices declined to step down and this one.

Your comment mirrors those of our proponent of the rule of necessity (maybe you're the same person) in that it is overly abstract.

You want to say that they were "against" recusal before and might be "for" it now. But recusal is not something that one is "for" or "against" without regard to the circumstances.

In any event, I do not believe that the issue should be raised by motions to recuse. It should be raised by a motion to dismiss based on the impossibility of the matter being pursued to conclusion.

Anonymous said...

Prosser should recuse. Bradley should recuse (and due process requires that she do so). There's no due process violation in having the other justices rule on the matter merely because most of them witnessed it, or even because the justice had earlier publicly or privately given an account of the event, or "committed" to some version of it. Heck, if that were the rule, due process would mandate that motions for reconsideration be assigned to a different judge. It's just silly to say that a judge cannot be a fair arbiter because they witnessed something. We expect judges to be fair arbiters based on what they witness in court. There are disqualification rules based on knowledge that judges possess from extrajudicial sources, but these concerns don't rise to the level of due process violations; indeed, we expect and allow for judges to take judicial notice of things that are learned from extrajudicial sources. The Rule of Necessity recognizes that, if no forum is available in the absence of an otherwise disqualified judge or justice, some litigant is being deprived of any opportunity for a hearing. That's a due process concern, too.

Anonymous said...

Thank you, Mr. Foust, for the link. I particularly find this statement by Gableman to be amusing.

"Let me be frank. The suggestion that more public scrutiny of the court’s internal operations would foster greater civility is at best disingenuous and at worst ludicrous. When animosity arises in legislative bodies, for example, public attention does not foster greater civility, it polarizes the body and fuels grandstanding. Even more to the point, the recent difficulties at the court cannot plausibly be said to result from a lack of publicity. If anything, it is just the opposite."

Yes, on one hand, more publicity about the juvenile behavior by both sides will indeed lead to partisanship finger pointing and will ultimately not resolve the matter between the left and the right on the Court. On the other hand, the issue NOT about civility, it is about transparency. That is all I hear from conservatives these days. Since the Wisconsin Supreme Court is an elective position, the public has the right to know to what extent are the interactions among its members best serving the interests of justice. Certainly We The People realize that those individuals with competing ideologies will get testy. But it is clear that BOTH those on the left and those on the right, through their own actions, have necessitated the heightened scrutiny. Ultimately, this investigation into the Prosser-Bradley affair will result in NOTHING being accomplished. Law professors can argue all they want about recusal or no recusal on the part of those participants involved in this sordid affair. It's an academic exercise. The grandstanding by BOTH factions on the court, complemented by their boorish behavior, will continue to undermine their credibility in the eyes of the Wisconsin citizens.


George Mitchell--So very hard not to respond to people who have no names.

Actually, all you have to do is type. It's pretty easy.
Besides, who cares if it's an anony? The content is more important than the name, or lack thereof.

Rick Esenberg said...

The motion for reconsideration example is inapposite. The "bias" in that instance consists of impressions and commitments formed as a result of the information acquired during the proceeding. The impressions of the witnesses here - and the views they have expressed - are extrajudicial.

And, no, we do not simply "we expect and allow for judges to take judicial notice of things that are learned from extrajudicial sources." The circumstances under which that may be done are limited and do not extend to things about which there is not general agreement.

Nor is it "silly to say that a judge cannot be a fair arbiter because they witnessed something." If that were the case, then there would be no prohibition against a judge acting in a case in which he or she is a material witness. Yet we find such in both the Judicial Code and the statute.

The rule of necessity is a seldom invoked doctrine that cannot override - particularly in a criminal or disciplinary proceeding - the basic right to an impartial tribunal. And, yes, I do think that does trump the "right" of a prosecutor to bring charges.

Anonymous said...

Let's say Prosser lunged at Bradley during an oral argument, and all the other justices were witnesses. "Extrajudicial", and therefore the other justices are disqualified from hearing a discipline case? Or would that be "judicial"? (It wouldn't be part of the judicial discipline proceeding per se, it would be part of a different judicial proceeding.) Per your view, would due process preclude the justices from doing anything about that? If not, how, in any real sense, does it make one whit's worth of difference that the events here occurred some few feet away in the chambers of one of the justices? It would be a due process violation for the justices to preside over a discipline case where some of them had witnessed the events in question in a judge's court chambers. Seriously? And the reason for this, per you, is that the justices' knowledge on this score comes from an extrajudicial source.

There is a difference between what a code of conduct may require, as a prophylactic rule, and what due process requires.

Tom said...

Setting aside questions of whether these justices, as witnesses and direct participants, can sit in judgment, what about due process concerns about a lack of a neutral arbiter? The justices have pretty much all stated publicly what they think occurred and whether or not they believe Prosser was in the wrong.

Due process protects people from being punished by individuals who have pre-judged their case.

Anonymous said...

Anony 4:36, that is an interesting scenario with the Prosser lunge. However, barring any material evidence or non judiciary witnesses of the Prosser behavior, it is exactly correct that due process would preclude the justices from doing anything about it.

Going back to the real case, in what way could any judge be expected to weigh another person's perceptions over their own? Barring any other evidence except their perceptions, every judge has only one piece of evidence to weigh. If they really respected each other's opinions enough to accept/consider them(outside party lines), this would never have happened in the first place.
Tuerqas

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