Scheindlin Fights Removal, Asks for Hearing to Defend Conduct
"The Motion Panel directed, in the name of judicial efficiency, that the appeal be heard by the same judges who constituted the Motion Panel, rather than by random assignment," he said.
Neuborne said the order was "the functional equivalent of a judicial finding that the District Judge behaved improperly," and Rule 21 of the Federal Rules of Appellate Procedure "assures that where a district judge is charged with conduct amounting to judicial misbehavior, the judge will receive notice of the allegations pending before a Circuit court, and an opportunity to seek leave to be heard."
Neuborne said panel's failure to give Scheindlin notice "and an opportunity to defend herself was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges, it is an affront to the values underlying the Fifth Amendment's guarantee of procedural due process of law."
The circuit order stayed Scheindlin's finding that the police department maintained a top-down policy or practice of making hundreds of thousands of unconstitutional stops without reasonable suspicion and the vast majority of stop encounters were of black and Hispanic men in violation of the Fourth and Fourteenth Amendments.
The circuit also stayed her appointment of a monitor to reform stop-and-frisk practices at the department and led to the reassignment of the case to Judge Analisa Torres.
All of this took place when Bill de Blasio, campaigning to be the next mayor of New York city, criticized stop-and-frisk and vowed to pull the plug on the city's appeal as soon as possible. De Blasio won the election on Tuesday.
Neuborne's papers say the panel's criticism of the application of the related case doctrine was in error. He said Scheindlin's 2007 colloquy with plaintiffs' counsel in the prior stop-and-frisk class action of Daniels v. City of New York was "misreported," and that misreport was relied upon by the panel in criticizing her comments. Neuborne attached a copy of the full 42-page colloquy to his papers.
The colloquy, he said, shows Scheindlin in fact rejected consideration of newly discovered evidence as inappropriate in Daniels, a case that had been settled and had a sunset clause the plaintiffs wanted extended.
The related case rule, he said, is a "judicially efficient means of dealing with newly discovered evidence" and her colloquy was "indistinguishable from suggestions routinely made by district judges."
Neuborne could not be reached for comment.