Retired Judges Seek En Banc Over Scheindlin's Removal

, New York Law Journal

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A group of retired judges has joined with legal ethics professors in calling for the U.S. Court of Appeals for the Second Circuit to rehear en banc a panel's decision removing Southern District Judge Shira Scheindlin (See Profile) from the stop-and-frisk cases (See Brief).

Arguing that a three-judge panel ran afoul of normal procedures for disqualification and reassignment when it stripped Scheindlin of the cases on Oct. 31, the judges and law professors said the panel dealt "a body blow" to an independent judiciary.

Seeking to join the chorus of people weighing in on the issue, the group asks to appear as amici and argues that the decision "undermines public confidence in the federal courts" and "chills the judicial independence on which our judicial system relies."

The filing was made Monday as briefs continue to flow into the Second Circuit on both sides of the controversial removal.

The retired judges are Robert Cindrich of the Western District of Pennsylvania, David Coar of the Northern District of Illinois, William Furgeson of the Western and Northern District of Texas, Nancy Gertner of the District of Massachusetts, Richard Holwell of the Southern District of New York and Stanley Sporkin of the District of Columbia.

The ethics professors include Anita Bernstein of Brooklyn Law School; Carol Buckler and Rebecca Roiphe of New York Law School; Monroe Freedman of Hofstra Law School; Bennett Gershman of Pace Law School; Bruce Green of Fordham University Law School; Richard Klein and Lawrence Raful of Touro Law Center and W. Bradley Wendel of Cornell Law School.

They are represented by Brian Whitely of Hiscock & Barclay.

On Oct. 31, two days after oral argument, Judges Jose Cabranes (See Profile), Barrington Parker (See Profile) and John Walker (See Profile) issued a stay of Scheindlin's August rulings in Floyd v. City of New York, 13-3088, where she found the New York City Police Department liable for widespread violations of the Fourth and Fourteenth Amendments, a stay of her ruling in the related case of Ligon v. City of New York, 13-3132, and a stay of her remedial order for both cases appointing a monitor for the police department.

The three judges also removed Scheindlin from the cases, saying it appeared she might have "run afoul" of the Code of Conduct for U.S. judges by giving the appearance of partiality in comments she made in separate interviews with three reporters during trial in Floyd and her suggestion to plaintiffs' counsel in a prior stop-and-frisk case that she would accept a new filing under the related case rule—a case that turned out to be Floyd.

The panel, which heard the city's request for a stay as a motions panel, also said it would retain the case and hear arguments on the merits.

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