The Buckeye Institute Files Amicus Brief in Newman v. Moore et al.
By Kevin E. Noonan --
It has been a remarkable feature of the Federal Circuit's suspension of the Honorable Judge Pauline Newman that few have taken a stand publicly on the propriety of the suspension (something the Judge herself recently mentioned; see "An American (and Entirely Unnecessary) Tragedy"). That has now changed, with the D.C. Circuit Court of Appeals receiving amicus briefs from four separate groups submitted in support of Judge Newman's challenge and asking the Court to reverse the District Court's dismissal of her lawsuit challenging the Judicial Council's actions on, inter alia, Article III and due process grounds, one of which is discussed herein.
The Buckeye Institute is a self-described non-partisan "think tank" dedicated to "formula[ing] and promot[ing] free-market policies" in Ohio and elsewhere. Their amicus brief is based on the importance of public confidence in the judiciary, which the brief argues has been harmed by the manner in which the Judicial Conduct and Disability Act has been employed in this case. The importance of the judiciary is one reason why the Founders "insulated" judges with impeachment as the "sole means" for removing them, the brief asserts. The public nature of impeachment is the antithesis of proceedings which, as here, are conducted "behind closed doors," ascribing the need and right to such open proceedings as being protected under common law and the First Amendment.
The brief asserts that "conducting judicial disciplinary proceedings in the dark undermines public confidence in our judiciary." The standard for judicial proceedings has been their "openness," with "contemporaneous review in the forum of public opinion [being] an effective restraint on possible abuse of judicial power," amici citing Justice Brennan's concurring opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980), and quoting in re Oliver, 333 U.S. 257,279 (1948). This case, amici argue, "illustrates the improper secrecy used throughout judicial disciplinary proceedings." Amici's apprehension of the lack of public confidence finds support in commentators including former Chief Judge Michel, quoted in IP Watchdog. As a consequence, the brief asserts that unless there are such open proceedings "the appearance of bias cannot be refuted." The brief notes that Judge Newman has asked that the proceedings and materials involved be disclosed to the public and that her request has been denied (despite seemingly contrary understanding in the Commentary of Rule 23 of the Rules for Judicial-Conduct and Judicial Disability Proceedings) (while at the same time imposing a "gag order" on Judge Newman and her counsel precluding their release of the materials). The brief further sets forth a history of preventing Judge Newman from disclosing the purported evidence against her (Defendants-Appellees have "threatened [Judge Newman] and her attorneys with unspecified sanctions if any portion of the documents contained in that volume were made publicly available") and a certain amount of reneging on representations that some of these materials would be permitted to be disclosed, for example after Judge Newman dropped Court IV of her complaint regarding her First Amendment claim.
The brief goes on to assert that such actions are contrary to the intent of the Judicial Conduct and Disability Act of 1980, which amici assert "was intended to boost public confidence in the judicial complaint process" (based on the circumstances prior to its enactment, where "informal internal discussions were the only means of enforcing judicial misconduct short of impeachment"), saying that in this case that intention "falls short of that goal." The Federal Circuit Judicial Council's actions in this case to suppress disclosure, which contrary to the need for openness is not in fact against the law, and which is ratified under 28 U.S.C. § 360(a) (granting the Council's discretion in this regard but amounting to "near total ban on disclosure" according to amici), as well as prohibiting any person from intervening or appearing as amicus in the proceedings.
The situation is contrary to amici's assertions that free and open public access to inherently adjudicatory procedure is key to public confidence in the judiciary, where free and open access is "not unlike the right of an accused defendant to a public trial," citing a dissent in United Press Associations v. Valente, 123 N.E.2d 777, 786 (N.Y. Ct. App. 1954), based on English Common Law tenets going back to the years immediately after Magna Carta and prevailing in this country's colonies prior to the nation's founding. Accordingly, the brief asserts that "the common law and the First Amendment guarantee the right to open access to judicial proceedings," citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978), relying on Ex parte Drawbaugh, 2 App.D.C. 404 (1894). In addition to the common law right to an open trial, amici find support in the First Amendment right of freedom of the press as well as the public "to attend and observe criminal proceedings," citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 9 (1986), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982). Indeed, "every circuit to consider the issue" has found these rights extend to civil proceedings, exemplified in Dhiab v. Trump, 852 F.3d 1087, 1099 (D.C. Cir. 2017), the brief providing an extensive history of the importance of open access to judicial proceedings in civil matters.
These considerations should apply to administrative proceedings like this one, the brief argues, based on the same common law and First Amendment principles. Consistent with this contention is their application to the Executive Branch "in a variety of [administrative agency] contexts." Due to the "quasi-judicial" character of the proceedings against Judge Newman, the brief argues that similar due process considerations apply to her (in addition to the public's right to access: "the public has an interest in open access to adjudicatory decision-making" as being "key to public confidence in the judiciary").
The practices and applications of the administrative procedures provided by the Judicial Conduct and Disability Act here, that have permitted "the adjudicator to determine what documents can and cannot be accessed, despite the accused judge's consent, is inconsistent with the idea of open access" according to amici. The brief terms judicial protection of privacy rights (in context, that of the Judicial Council and the witnesses asserted in support of Judge Newman's suspension) to be "the exception, not the rule," citing In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019), and Washington Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 899 (D.C. Cir. 1996). The appropriate test has been a balancing test, amici contend, between "the litigant's legitimate interest in anonymity against countervailing interests in full disclosure" under Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008). But here, amici assert that the Act "begins with the notion that all documents, except for some final opinions, should not be publicly available" with a few narrow exceptions. While permitting accused judges to request that documents related to an investigation be released that request can (as here) be denied by the court's chief judge at her discretion. This is improper, the brief contends, because the correct presumption (consistent with the law) should be one of openness. The brief sets forth five factors to be applied for determining whether cases within the purview of the Act should proceed anonymously, and six factors relating to release of documents. In this case,the brief contends that "[t]he judge adjudicating this matter, who was also the complainant, has not attempted to satisfy any of the above[-cited] elements for keeping the proceedings or other information secret" (emphasis added). Even though Judge Newman's request for the documents to be released significantly reduced the judiciary's claim of a privacy interest, the brief accuses the Act and how it has been implemented by this Judicial Council of "put[ting] secrecy over the public's right to access," which is "not only inconsistent with the JCDA's purpose of formalizing the complaint process to provide some—but very limited—public access, but it is inconsistent with hundreds of years of open access to the judiciary so that the public can be confident that its inner workings are fair, and how the judiciary handles other privacy concerns." In making these arguments, amici take away issues of personal animus towards or injury to Judge Newman and ground their argument in the injury to the public in keeping these proceedings secret.
I'll go on record as saying that the situation has greatly diminished MY confidence in the judicial complaint process.
Posted by: James Demers | December 24, 2024 at 10:49 AM
As I've commented previously, why are the organizations to which Judge Newman contributed significantly over earlier years not speaking up? More specifically, the AIPLA, the ABA IPL, and IPO. They all espouse leadership but none has demonstrated it by speaking out. shame on them! I, for one, am embarrassed to admit I'm a member of each.
Posted by: Nancy J Linck | December 24, 2024 at 04:19 PM