Scheindlin Fights Removal, Asks for Hearing to Defend Conduct

, New York Law Journal

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Judge Scheindlin
Judge Scheindlin

Southern District Judge Shira Scheindlin is fighting back over her removal from the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit.

Burt Neuborne late Wednesday filed for leave to appear in the circuit on behalf of Scheindlin (See Profile) "to address legal and factual issues" raised by Judges Jose Cabranes (See Profile), Barrington Parker (See Profile) and John Walker (See Profile) in their order of removal Oct. 31.

Neuborne, saying the judge was "blind-sided" by the panel's ruling, defended her conduct as proper in all respects and said he wants reconsideration by the three judges or rehearing en banc.

The three judges, sitting only as a motions panel to hear a Law Department request for a stay pending appeal of Scheindlin's findings against the New York City Police Department in the cases of Floyd v. City of New York and Ligon v. City of New York, took the rare step of ordering Scheindlin off the case.

The judges faulted Scheindlin for the way she received the Floyd case through the related case doctrine and for speaking to the press during the trial in Floyd earlier this year, making comments the circuit said gave the appearance of partiality.

But with her reputation on the line, Scheindlin is not taking the ruling lying down.

On Wednesday, Neuborne said the Law Department never challenged Scheindlin on the related case doctrine nor did it ever seek the judge's disqualification.

On the related case issue, Scheindlin had suggested to plaintiffs' lawyers in a prior class action that they could bring a new lawsuit if they had proof of racial profiling in police in stop-and-frisk practices, and that she would take the case.

Nor did the Law Department raise the issue that Cabranes, Parker and Walker raised sua sponte in their removal order—that Scheindlin had "run afoul" of the Canon of the Code of Conduct for U.S. Judges.

And in a bit of turnabout for the circuit, Neuborne, a professor of civil liberties at New York University School of Law and legal director of the Brennan Center, went after the panel for keeping the case itself for argument on the merits.

"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.

What's being said

  • rnh

    I don't see how there's a due process violation, since the judge is not being formally punished. She's been taken off the case. How is that an affront to the Fifth Amendment? What relief is possible at this point? Does she expect the Circuit to say we were wrong, you handled the case properly (but were still taking the case away from you)? I suppose if the Circuit doesn't give her a hearing she'll gain some points in the court of public opinion.

    The fact that

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