Judge Removal Was Surprise to Attorneys

Ian Weinstein and James Cohen in The Wall Street Journal, November 01, 2013

Media Source

By SEAN GARDINER

A federal appeals court decision Thursday to remove a lower-court judge from a case involving the New York Police Department's stop-and-frisk tactic was unexpected for several reasons, including that the city didn't ask for it.

U.S. District Judge Shira Scheindlin has handled nearly every federal lawsuit questioning the police department's stop-and-frisk policies, which she ultimately found didn't follow the U.S. Constitution. Attorneys were surprised when a panel from U.S. Court of Appeals for the Second Circuit threw her off the case, in addition to stopping her ruling and remedies such as a federal monitor from taking effect.

"Given that the city never raised the issue and that the appeals court never hinted it was considering this action, the removal of the judge was a shock," said Christopher Dunn, associate legal director for the New York Civil Liberties Union, which represented plaintiffs in the case.

Stephen Gillers, a legal ethics professor at New York University Law School, said: "It's quite rare for a circuit court to remove a district judge....And I've never heard it happen where there's no one requesting it."

Catherine O'Hagen Wolfe, clerk of the Second Circuit court, said: "The court speaks through its decisions." City attorneys declined to comment.

The unanimous decision by appellate judges Jose Cabranes, John Walker and Darrington Parker determined Judge Scheindlin ran afoul of the Code of Conduct for federal judges by giving some media interviews and suggesting in 2007 that the plaintiff attorneys submit a new stop-and-frisk lawsuit as a related case, meaning she would hear it.

Ian Weinstein, a professor at Fordham University Law School, said Judge Scheindlin acted improperly when she told attorneys in advance she would accept the cases as related. He said she shouldn't have made "the determination before she actually had the filed case in front of her."

Judge Scheindlin, appointed to Manhattan federal court by former President Bill Clinton, has served since 1994 and earned a reputation as an outspoken jurist who has bumped heads with city mayors. She graduated from Cornell University Law School in 1975 and has worked as a Brooklyn federal prosecutor and then for the city's Department of Investigation. She has said she acted properly in the case.

Legal observers said they saw other signs in the Second Circuit order.

The appellate court didn't rule on whether they agreed with Judge Scheindlin's decision on stop and frisk, saying only that she should be removed and her ruling's effects be delayed until they made their own ruling.

They set a schedule for making a determination on the case that begins next year, meaning that Judge Scheindlin's actual ruling could stand.

New York City Public Advocate Bill de Blasio, who according to polls has a substantial lead heading into Tuesday's mayoral election, has vowed if elected to drop the city's appeal when he takes office Jan. 1 and accept a federal monitor. Stop-and-frisk changes would then simply fall to another judge, Analisa Torres, to enforce.

Given that scenario, said James Cohen, a professor at Fordham Law School, "frankly, it's hard to interpret it [the appellate ruling] as anything other than almost a personal slap at the district court judge."