American Bar Association By Debra Cassens Weiss Posted May 16, 2018, 7:13 am CDT
Former appeals judge Richard Posner is criticizing a judge who copied and pasted from a government motion in an order that dismissed a pro se litigant’s First Amendment complaint.
Posner presented his argument in a reply brief filed on behalf of his client, William Bond, who was representing himself before Posner entered the case. Posner was formerly a judge on the Chicago-based 7th U.S. Circuit Court of Appeals.
Bond contends three federal judges conspired to throw a federal case and misused federal agents in an attempt to subvert his planned demonstrations in August 2013 at the federal courthouse in Baltimore. The case is before the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals.
Posner says the federal judge exhibited "laziness" by copying and pasting, and then failed to explain why Bond’s amended complaints fell short. Posner illustrated with a side-by-side comparison of the government motion and the judge’s opinion. There were minor differences.
"The district court’s laziness leaves a pro se litigant with the perception that the judge did not independently analyze Bond’s complaint," Posner wrote. "The district court’s actions create the impression of plagiarism and an abdication of its independent judicial duties.
"Article III district courts have the resources to produce more than a copy-and-paste job, followed by two unexplained orders and unsupported accusations of wasting judicial resources. This response to a pro se litigant only feeds into an unhealthy distrust of the judicial system—especially as access to justice becomes more limited, as fewer cases reach a jury, and as more cases are shunted to arbitration.
"Litigants, particularly pro se litigants such as Bond, must not have the courthouse doors closed to them without a reasoned explanation."
Bond is seeking to reopen the case and file a second amended complaint. A statement of the case filed by the government begins with a description of Bond. According to the government, he is "well-known in the Baltimore area for his protests against certain members of the federal judiciary, whom he has dubbed the ‘White Guerilla Family.’ "
According to the government, federal agents had questioned Bond due to concern about the safety of judges and federal officials, leading Bond to file a complaint alleging the questioning was aimed at chilling his First Amendment rights. He protested anyway, leading the court to dismiss the complaint, according to the government.
Posner counters that Bond’s second amended complaint described "extraordinary circumstances" in which federal judges displayed "judicial antagonism" toward Bond in discussions with third parties and Bond himself. The worry and distraction caused by the questioning and learning he was under surveillance caused Bond to curb the robustness of his protests, Bond had asserted.
Among the defendants sued by Bond was then-U.S. Attorney Rod Rosenstein, who is currently the deputy attorney general overseeing the special counsel investigation of Russian influence in the 2016 election. Bond had claimed Rosenstein was told to ignore or cover up the conspiracy against Bond. Read more
American Bar Association By Debra Cassens Weiss Posted March 29, 2018, 2:06 pm CDT
A foreclosure law firm in New York is accused in a federal lawsuit of overbilling Fannie Mae by inflating costs for mortgage-related services offered by its wholly owned affiliates.
The Plainview-based law firm Rosicki, Rosicki & Associates is accused of violating the False Claims Act in a March 27 complaint that seeks triple damages. The federal government filed the complaint as an intervenor in a whistleblower lawsuit, according to a press release by the U.S. Attorney for the Southern District of New York.
The law firm represented mortgage-servicing companies in foreclosures on Fannie Mae-owned loans. The firm’s two founding partners owned a service-of-process company, called Enterprise Process Service Inc., and a title search company, called Paramount Land Inc., that billed for work in the cases.
Rather than perform the services, the two companies hired third-party vendors, the complaint says. Enterprise and Paramount "then applied exponential markups" as high as 750 percent to the vendors’ bills, while adding "little if any value" to the services performed by the vendors, the complaint alleges.
Rosicki then billed the mortgage servicers for the expenses knowing they would be submitted to Fannie Mae for reimbursement, the complaint says.
"For over a quarter-century, Rosicki, Rosicki and Associates has been a highly-respected leader in the housing mortgage industry and widely admired for its dedication towards improving the broader community," the statement said. "The charges leveled against the firm are based on questionable legal theories, have no merit and will be vigorously challenged in court." Read more
It was 1936, and America was suffering through the throes of the Great Depression. President Franklin Delano Roosevelt had just been re-elected in a landslide. The Democrats controlled the Congress with wide majorities in the House and Senate.
Led by the Roosevelt administration, the Congress had enacted an array of legislation to restore the economy, establishing the National Recovery Administration, the Agricultural Adjustment Act, the Securities and Exchange Commission, the Rural Electrification Act, the National Youth Administration and the Works Progress Administration.
In 1935, however, the U.S. Supreme Court had declared the National Recovery Administration and the Agricultural Adjustment Act unconstitutional. And in June 1936, the court struck down a New York state minimum wage law covering women and child workers. The administration was concerned that two other legislative landmarks, the Social Security Act and the National Labor Relations Act, would also be invalidated by a conservative majority of justices on the court. In response, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the court over the age of 70 who did not retire. Roosevelt sought to appoint up to six additional justices as well as up to 44 additional judges in the lower federal courts.
Roosevelt contended that his proposal was not politically motivated, but rather was intended to address an alleged shortage in judges that had purportedly resulted in delays in the processing of litigation in the federal courts. (This explanation is now echoed by legislators who claim that they seek to split the San Francisco-based 9th U.S. Circuit Court of Appeals because of the court’s alleged dysfunction rather than for political reasons, a proposal that is opposed by the American Bar Association.)
Roosevelt’s infamous attempt to "pack the court" ultimately failed. Justice Owen Roberts (this seems to imply he was appointed by Roosevelt), who previously had voted with the conservative majority, switched sides, voting with the more liberal justices to uphold the Social Security Act, the National Labor Relations Act and other New Deal legislation opposed by conservatives.
In 2016, in response to decisions perceived by some to be too liberal, legislators mounted a campaign to oppose the retention of the justices of the Kansas Supreme Court who had joined in those rulings and proposed to curtail the powers and authority of the court as a whole. Efforts were also made to expand the grounds for impeachment of Kansas justices from the more traditional reasons of "treason, bribery, or other high crimes and misdemeanors" to include such things as "failure to perform adequately the duties of office," "attempting to subvert fundamental laws and introduce arbitrary power", "attempting to usurp the power of the legislative or executive branch," "exhibiting discourteous conduct in their official capacity" or "exhibiting wanton or reckless judicial conduct."
Fortunately, Kansas voters rejected the effort to unseat four justices who had been targeted for nonretention.
Earlier this year, the Pennsylvania Supreme Court, which includes five Democrats and two Republicans, held that federal congressional voting districts that had been gerrymandered to favor Republican candidates were unconstitutional under the Pennsylvania Constitution. The court also found that the revised voting map submitted by the Republican-controlled legislature had failed to cure the constitutional infirmity and imposed its own revisions. After challenges to the state supreme court’s rulings brought in the federal courts failed, several Republican legislators sponsored a bill in the Pennsylvania House of Representatives calling for the impeachment of the four justices (all Democrats) who had voted in favor of issuing the court’s own voting map, accusing them of "misbehavior in office." Happily, Pennsylvania Chief Justice Thomas G. Saylor, a Republican who dissented in each of the court’s rulings, issued a statement strongly opposing the impeachment bill "as an attack upon an independent judiciary, which is an essential component of our constitutional plan of government."
Judicial independence—the ability to decide court cases fairly and impartially without fear of punishment and without control or influence by the executive or legislative branches, is not a Democrat versus Republican issue. Nor is it a liberal versus conservative issue. Threats to judicial independence have arisen from the right and the left, and judicial independence has been defended by those on the right and the left. Judicial independence is part of the DNA of American judicial systems—state and federal. It is one of the features that make our courts models for other democracies. In our federal system, judicial independence is grounded in the structure of the national government established under the U.S. Constitution that provides for the separation of powers and allocates the "judicial power of the United States" to the judicial branch. It is also rooted in the principles of due process of law preserved in the Bill of Rights and in the Supreme Court’s power of judicial review recognized by Chief Justice John Marshall in Marbury v. Madison.
Scholars, for instance, those at the National Conference of State Legislatures have observed that "separation of powers is key to the workings of American government."
Absent judicial misconduct falling within the traditional grounds for impeachment such as treason, bribery or other high crimes or misdemeanors, the appropriate remedies to address judicial decisions that are disfavored are: (1) replacement of the judges through the electoral process in those systems where judges are elected; (2) enactment of legislation through the legislative process to overturn the court decision where it is not based on the constitution; and (3) constitutional amendment. Read more
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Michael H. Reed is the Pennsylvania State Delegate in the American Bar Association, having previously served on the Association’s Board of Governors and chaired the Standing Committee on Federal Judicial Improvements and the Subcommittee on Federal Courts of the Standing Committee on the American Judicial System. He is former President of the Pennsylvania Bar Association and special counsel with the firm of Pepper Hamilton, having joined the firm in 1972 and been a partner from 1980 to 2013. He received a B.A. in political science from Temple University in 1969 and a J.D. from Yale Law School in 1972.
Judicial independence is a bedrock principle of the rule of law.
For America, that principle is grounded in Article III of the Constitution, which provides for an independent judiciary, and in Marbury v. Madison (1803), which established that the judiciary has the "province and duty … to say what the law is."
Article III does not explicitly provide that these powers are separate from the other branches of government. Rather, the Constitution implicitly recognizes the separation of powers through its enumeration of the powers of the three co-equal branches, in which "the judicial power can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or Congress share with the Judiciary the power to override a Presidential veto." (Stern v. Marshall, 2011).
What is clear is that judicial power is vested in the judiciary alone.
PRESENTING THE CHECKS
Aristotle’s Politics (350 B.C.) identified the three functions of government to be the deliberative (legislative), magisterial (executive) and judicative (courts). He did not suggest that these functions should be exercised separately. In 1748, Charles de Secondat, Baron de Montesquieu, provided the framework for separation: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…" (The Spirit of the Laws, 1748).
The framers of the Constitution did not adopt a pure form of Montesquieu’s model. Instead, they paired separate powers with a system of checks and balances. (Madison, Federalists Papers Nos. 47 & 51). This structure formed a decisive feature of the Constitution.
The design was in stark contrast to colonial systems in which single legislative bodies subsumed judicial functions. Thomas Jefferson’s Notes on Virginia (1785) described a General Assembly that "in many instances decided rights which should have been left to judiciary controversy."
The separation of powers has played a significant role in the political struggle between Congress, the president and the courts. Beginning in Marbury v. Madison, the Court established its power of judicial review, making the judiciary the final arbiter of a law’s constitutionality.
Later, in United States v. Klein (1872), the court upheld Presidents Abraham Lincoln and Andrew Johnson’s grant of pardons as proof of loyalty to the Union. Congress passed a law preventing their recognition. The Supreme Court found Congress’ attempt to be an exercise of power outside that assigned to Congress.
More recently, the court in upholding limitations on campaign contributions (and striking expenditure limitations) also struck the method of appointing members of the Federal Election Commission because its members were appointed by Congress. As officers of the United States, however, these members must be appointed under Article II by the president (Buckley v. Valeo, 1976).
In another example, INS v. Chadha (1983), Congress’s creation of the legislative veto to override agency rules was declared unconstitutional—a violation of the executive’s role and thus of the separation of powers.
The Supreme Court’s declaration of acts violative of the separation of powers is not limited to acts of Congress. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the court held unconstitutional President Harry Truman’s seizure of the steel mills during the Korean conflict.
During the Watergate era, the court directed President Richard Nixon to turn over Oval Office tapes to the special prosecutor in the face of his claim of executive privilege (United States v. Nixon, 1974). This resolved an issue of privilege that first arose during the Jefferson administration.
The separation of powers is not limited to high-profile political conflicts. As early as 1856, the court in Murray’s Lessee v. Hoboken Land & Improvement Co. held that a legislative court may not decide "a suit at the common law or in equity, or admiralty" because each involves a judicial function. The court ruled that legislative courts are limited to issues of "public rights involving cases between a citizen and the government."
The separation of powers is a distinctive feature of American democracy. It ensures judicial independence by vesting judicial power exclusively in the courts. The separation of powers (with its related system of constitutional checks and balances) is an essential part of American democracy and American exceptionalism. Central to defining judicial independence is Article III establishment of "judicial Power vested in one Supreme Court" and in other inferior courts. Read more
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John Hardin (Jack) Young is the current chair of the Senior Lawyers Division and a former member of the ABA Board of Governors, chair of the Section of Administrative Law and Regulatory Practice and chair of the Standing Committee on Election Law.
The administrative law judiciary, both state and federal, has a greater need to demonstrate its judicial independence than the judicial branch because there have been long-held perceptions by segments of the public, that administrative law adjudicators—who are designated as "ALJs," "hearing officers," or "hearing examiners"—are too cozy with the agencies whose cases they hear.
Consequently, to establish appropriate perceptions of fairness and impartiality, the administrative law judiciary must satisfy the public that it is independent of the agencies. This added necessity is not readily appreciated by some members of the judicial branch because it is unthinkable for them to be perceived as too cozy with executive branch agencies, including prosecutors, when they hear cases involving the agencies.
The concept of judicial independence is not supportable without concurrent accountability. A U.S. district judge, who is a friend, once told me: "You ALJs are always touting ‘judicial independence’ so you can do whatever you want."
My reply was: "You’re a federal judge with lifetime tenure telling me, an executive branch creature, that I tout ‘judicial independence’ so that I can do what I want."
This was probably not the best rejoinder. With the benefit of hindsight, I should have argued that administrative law adjudicators are far more accountable, in more ways than one, than federal judges.
Indeed, the ABA Model Code of Judicial Conduct, in the "application" section, provides that the code applies to all full-time judges, and goes on to define "judges" as "anyone who is authorized to perform judicial functions, including … a member of the administrative law judiciary." (Emphasis added.)
Rule 1.2 of the code, among other things, provides that "a judge shall act at all times in a manner that promotes public confidence in the independence [emphasis added], integrity, and impartiality of the judiciary." Decisional independence is the cornerstone of a properly functioning judicial and quasi-judicial system. To quote the late former Chief Justice William Rehnquist, an independent judiciary is "the crown jewel of our system of government."
In the author’s opinion, there are right kinds of accountability and wrong kinds of accountability (e.g., political accountability). The best form of accountability is adherence to the Code of Judicial Conduct (an all-encompassing performance code for judges). All codes of judicial conduct espouse the values of judicial independence, impartiality, integrity, diligence and competence, as evidenced by The Bangalore Principles of Judicial Conduct (2002), which was signed by the chief justices of 29 countries.
An important form of accountability (always for appellate judges and ALJs) is the requirement of "reasoned elaboration" (explaining legal reasons concerning how and why the outcome is what it is). The second form is "appeal." An appellate tribunal is able to correct legal errors, "arbitrary and capricious" decisions, clear violations of statutory law, violations of due process, and erroneous findings of ultimate fact. An ALJ is under a compelling obligation to explain the reasoning underlying a decision because of the need to demonstrate decisional independence to the litigants, the public and reviewing tribunals.
For federal ALJs under the federal Administrative Procedure Act, there are no judgmental performance evaluations. Judgmental evaluations can affect pay, status, demotions and terminations. There is a rigorous selection process, so the trick is in hiring competent, ethical ALJs in the first place. At the state level, especially where ALJs are civil servants, there are mandatory judgmental performance evaluations under a state personnel system. In the author’s opinion, these performance evaluations should be synchronized with the code of judicial conduct. It is critically important to have true objective criteria, e.g., timeliness of decisions. There should be safeguards against activation of the "halo effect," which is when bosses tend to reward those most like themselves.
Developmental evaluations are appropriate if not used in judgmental evaluations. These can take the form of nonmandatory peer review of decisions, anonymous surveys of practitioners and litigants, again if they are used for professional development and not in judgmental evaluations.
Improper forms of accountability are usually political in one form or another. Sometimes the foes of judicial independence argue that the voters should determine who their judges should be with the rationale that the judges should reflect the community where they serve. A recent television series comes to mind: Wisdom of the Crowd. The "crowd" envisioned by the author may be one of two crowds: (1) the lynch mob running after a suspect, chanting "let’s string him up;" or (2) the 19th-century villagers, with torches in hand, running after Dr. Frankenstein and his creation. An independent judiciary, including an administrative law judiciary, exists to replace these scenarios with fair, impartial and orderly due process. Read more
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Edwin L. Felter, Jr. is Senior Administrative Law Judge, Colorado Office of Administrative Courts (OAC) and he is an Adjunct Professor of Law at the University of Denver, Sturm College of Law, 2006–. He was director and chief judge of the OAC from 1983 – 1998. He was Chair of the National Conference of the Administrative Law Judiciary (NCALJ), American Bar Association (ABA), 2000/2001, and he was Chair of the Council of the Government and Public Sector Lawyers’ Division of the AB, 2012/2013. He was on the Standing Committee on Ethics and Professional Responsibility, 2006/2009.
The term "administrative state," or the more pejorative term "deep state" are trending concepts that conjure up images of conspiracies and government bureaucrats run amok.
The reality of course is that the vast majority of career government professionals are committed to putting the interests of the American public first in the performance of their duties. Toward this end, the government employs administrative law judges to administer due process and to provide additional oversight within the agencies themselves.
There are many judges and types of judges in the administrative state. Most of us have an idea what an administrative law judge is and what she does. But do you know how that position differs from the position of administrative judge, immigration judge, or hearing officer? If one of your answers is that their jurisdictions tend to be limited to specialized fields of law within their agencies, that would be only partly true. While it is certainly true with respect to immigration judges, many administrative law judges handle cases from agencies other than the agency that employs them. This is accomplished by memorandum of understanding, or by "borrowing" from a list of ALJs maintained by the U.S. Office of Personnel Management, which assists agencies that experience case backlogs or that do not maintain ALJs on their staff.
Another major characteristic of the federal administrative judiciary is that their positions are created pursuant to Article I of the U.S. Constitution. This delineates them from their Article III brethren who are more familiar to lawyers and the general public at both the federal and state levels. But the Article I distinction is a critical one. Under Article I, Congress has created the U.S. territorial courts, the U.S. Tax Court, the U.S. Court of Federal Claims, the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Appeals for Veterans Claims, the Patent Trial and Appeal Board and other administrative courts and tribunals. The U.S. Bankruptcy Court was created pursuant to Article I in 1978, but operates under the auspices of the U.S. District Courts under Article III.
As cases involving technical and specialized areas of law have grown, Congress has recognized the public’s need to reshape our court system, and even to create entirely new court systems.
The federal administrative judiciary was created out of public necessity. Article III judges will acknowledge that it is simply not possible for their courts to handle the plethora of litigation and appeals generated by administrative agencies. Of the hundreds of federal subagencies today, just three of those subagencies—the Social Security Administration, Office of Medicare Hearings and Appeals, and the U.S. Immigration Court—are reported to maintain a backlog of approximately 3 million cases. There are also thousands of other pending cases. Not only would these numbers overwhelm the Article III courts, they pose extraordinary challenges for administrative tribunals as well.
Apart from the issue of garnering sufficient resources, administrative courts face a more compelling hurdle—fighting the battle for judicial independence. Many Article I judges are not afforded judicial tenure and feel pressured to decide cases in favor of their agencies. Article III judges render their decisions freely and fairly, without regard to whether they will lose their jobs or be denied a personnel benefit because they decided a case for or against a particular party. This is the hallmark of due process as envisioned under the Constitution, and this is what the American public has come to expect when they appear before a judge. In the absence of fidelity to due process, there can be no legitimacy to the proceeding, in the eyes of the public. See this report from the Administrative Conference of the United States.
In large measure, this is what motivated the Congress to pass the Administrative Procedure Act in 1946. Recognizing the critical importance of judicial tenure, both in substance and appearance, Congress provided special protections for administrative law judges, even as it afforded due deference to the constitutional powers of executive agencies to render final agency decisions. In other words, although ALJs must remain ultimately accountable to the president (as all agency officers are) in the APA, Congress recognized the importance of creating a legitimate forum for conducting fair and impartial hearings in administrative proceedings.
The U.S. Supreme Court will soon decide Lucia, et al., v. SEC, which was recently argued before the court. In Lucia, the very nature of the ALJ position is in dispute. Under Article II, all inferior officers of administrative agencies must be held accountable to the executive or the president. Unlike most "inferior officers" of federal agencies, ALJs cannot be removed from their positions without a showing of "good cause" in a proceeding before an ALJ with the U.S. Merit Systems Protection Board. On rare occasions, ALJs have been removed through this process, but it is a difficult standard to meet, as it should be. Is it possible to administer due process without a decision-maker who enjoys adequate judicial tenure? As the Supreme Court and the Congress contemplate the tangle of issues embedded in that question, we may do well to look back at history and the examples provided by our state administrative tribunals.
Most states employ a "state central panel" system of administrative adjudication where the judges are not embedded in individual agencies but are instead housed in a central panel of judges who hear the cases from all or most of the various state agencies. Some argue that these administrative judges lack the expertise to hear cases ranging from medical licensing, to special education, to environmental protection, etc. But this argument loses its steam when you consider that Article III judges hear the same range of cases, and more, every day. In fact, the experience of the state central panel system is that it is highly cost-effective, and better serves the public interest, according to recent studies.
This model could be just as beneficial at the federal level, as attorneys, dating back to at least 1941, haveobserved. A centralized panel of federal administrative judges with adequate judicial tenure could generate substantial cost savings compared to the cost of operating separate judicial offices in the various federal agencies and subagencies. It would also allow judges to develop and cross-train judges in various legal specialties housed under one roof. This would lead to better decision-making, and career options for judges. Most importantly, it would enhance judicial and decisional independence in a way that would strengthen the public’s perception of having been afforded a fair and impartial hearing in administrative proceedings. Read more
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H. Alexander Manuel currently serves as an officer with the National Conference of the Administrative Law Judiciary, Judicial Division, American Bar Association. He has served for 16 years at both the federal and state levels, as an administrative judge with the U.S. Department of Housing and Urban Development and the Commonwealth of Virginia, respectively. He is a former partner with Pillsbury, Madison & Sutro of Washington, D.C., and Meserve, Mumper & Hughes of Los Angeles, specializing in bank regulatory matters, and representation of the Federal Deposit Insurance Corp. He is also a veteran of the U.S. Army and U.S. Air Force.
Anyone who has spent time on Capitol Hill will occasionally get the feeling when watching debates in the House or Senate chambers that he or she is seeing a kind of marionette theater, with members of Congress reading carefully vetted talking points about prefabricated issues. This impression was particularly strong both in the run-up to the Iraq war and later, during the mock deliberations over funding that ongoing debacle. While the public is now aware of the disproportionate influence of powerful corporations over Washington, best exemplified by the judicial travesty known as the Citizens United decision, few fully appreciate that the United States has in the last several decades gradually undergone a process first identified by Aristotle and later championed by Machiavelli that the journalist Lawrence Peter Garrett described in the 1930s as a "revolution within the form." Our venerable institutions of government have outwardly remained the same, but they have grown more and more resistant to the popular will as they have become hardwired into a corporate and private influence network with almost unlimited cash to enforce its will. Read more
The Deep State by Mike Lofgren Penguin Random House, publisher The Fall of the Constitution and the Rise of a Shadow Government
Mike Lofgren was the first to use the term Deep State, in an essay and exclusive interview on Moyers and Company, to refer to a web of entrenched interests in the US government and beyond (most notably Wall Street and Silicon Valley, which controls access to our every click and swipe) that dictate America’s defense decisions, trade policies and priorities with little regard for the actual interests or desires of the American people. In this essential and eye-opening book Lofgren takes his argument one step further. Drawing on insights gleaned over three decades on Capitol Hill, much of it on the Budget Committee, he paints a gripping portrait of the dismal swamp on the Potomac and the revolution it will take to reclaim our government and set us back on course. Read more
