Cheating in SF?

October 13, 2014

I ran across Ninth Circuit’s Neutrality Questioned on Gay Rights, by Lyle Denniston for SCOTUSblog, late Monday afternoon. It’s an interesting, well-written piece that offers a jumping off point for discussing how cases get assigned.

A group which opposes same sex marriage has asked the Ninth Circuit for en banc review after a three-judge panel allowed same sex marriages in Nevada. Now, I touched on en banc review in Snoozer! back in March. In simple terms, in federal appellate courts three judges hear a case, and the entire complement of active judges can reconsider a decision by granting en banc review. (Read the earlier post for special rules associated with the Ninth Circuit, because of its size.)

And the basis for en banc request? In part, the Coalition for Protection of Marriage raises the substantive issues associated with same sex marriage, which have been rejected by almost every court which has considered them. The other part involves a statistical study which shows, purportedly, that Judge Marsha Berzon and Judge Stephen Reinhardt—judges receptive to pro-same sex marriage arguments—have been on same sex marriage cases together often enough that the odds against that happening are 441-1. It’s the claim about funny business in the assignment process that caught my attention.

To the best of my knowledge, every court system assigns cases randomly. In the Arizona state court system each side also gets one opportunity to strike the assigned judge, for any reason, so long as the strike gets exercised before the judge rules on any issue. Strikes get used sparingly, however, as:  (a) there may be a judge you want less than the one you have, and there are attorneys who believe, at least in the past, that Judge A might be your punishment for striking a judge; and (b) attorneys believe, notwithstanding judicial claims to the contrary, that judges keep a list of attorneys who have struck them.

Federal courts do not have a “strike” rule. All state and federal systems do, however, provide for seeking the removal of a judge on account of bias. (Only the U.S. Supreme Court allows a justice with an interest in the outcome of a case to help decide the case, and it’s only the potential for impeachment—and ethics, at least on the part of some justices—that limits situations involving clear bias.)

So what do we make of the claim by the Nevada group? I’m no math wiz, for sure, but if the math is right, it might be true that “there’s something rotten in Denmark San Francisco.” And if someone has been gaming the system, it matters not at all to me that the cause may be just. There is no justice if I can choose the judge who decides my case. True it is that people make contracts in which they agree to have Attorney X arbitrate disputes, but in those cases they have made agreements in advance, under transparent circumstances. The notion that someone might be gaming the system by selecting the decider offends me, and it should offend anyone who cares about fair play and substantial justice, even when the alleged cheating helps a favored cause.

Stay tuned for more, as this situation develops.

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