|Hunting-club land in|
Lowndes County, Alabama
The legal profession reeks of dirty secrets, and one of my favorites is this: Many federal judges do not write the opinions they issue. Attorney William Domnarski shined light on the subject in a recent op-ed piece for The New York Times, noting that ghost-written judicial opinions raise serious questions about the integrity of federal courts--as if federal courts had any integrity to begin with.
Law clerks write the opinions for almost all federal appellate judges, Domnarski writes, and it stands to reason that the practice also is common in federal trial courts. Domnarski says members of the legal tribe rarely discuss the issue because it "raises too many embarrassing questions." Domnarski goes on to write: "We have become too comfortable with the troubling idea that judging does not require that judges do their own work."
So what is the public to make of instances where federal appellate judges do no work at all on a case before them? That apparently is what happened on a pair of lawsuits that originated in Birmingham, alleging that corrupt lawyers and judges used a hunting club as a place to fix Jefferson County divorce cases.
Joseph W. Blackburn, a professor of taxation at Samford University's Cumberland School of Law, was involved in both cases, first as a plaintiff and then as an attorney representing other alleged victims of hunting-club fraud. Both cases were unlawfully dismissed by federal judges in the Northern District of Alabama, with the plaintiffs denied an opportunity to conduct discovery that might have proven their cases.
That is suspicious in itself. But a foul odor really becomes noticeable when you realize the cases went before the U.S. Eleventh Circuit Court of Appeals in Atlanta--and both were dismissed without an opinion, with no explanation whatsoever.
These were companion lawsuits, both alleging gross corruption in Alabama domestic-relations courts. They level charges of serious misconduct against some of the best-known divorce lawyers in Alabama, essentially stating that their successful practices are built largely on cases that are fixed.
Hunting Club Case No. 1 was dismissed on a variety of technical grounds, and District Judge B. Avant Edenfield took 30 pages to describe the complex set of circumstances involved in the case. Hunting Club Case No. 2 was dismissed on pretty much identical grounds, with U.S. Magistrate Judge Robert Armstrong mostly parroting Edenfield's ruling.
Are we to believe that a 30-page trial-court finding can be adequately handled on appeal when the Eleventh Circuit issues no opinion? Are we to believe it's a mere coincidence that the appellate court does the same thing on the second hunting-club case?
You can check out the two appellate "opinions" at the links below. Don't worry, they won't take long to read:
Opinion in Blackburn v. Calhoun, et al (Hunting Club Case No. 1)
Opinion in Powell, et al v. Gorham, et al (Hunting Club Case No. 2)
First, we should note that both three-judge panels were chaired by Gerald Bard Tjoflat. If that name sounds familiar, it might be because he was on the three-judge panel that unlawfully upheld some of the convictions in the prosecution of former Alabama Governor Don Siegelman. If Gerald Tjoflat's name is on an appellate panel, should we assume the outcome will be tainted and corrupt? I'm starting to think the answer to that question is yes. In fact, I'm starting to think Gerald Tjoflat is simply a criminal who happens to wear a robe.
Are appellate courts required to issue opinions on all cases before them? Not necessarily. Most circuits have provisions that allow appellate judges, under certain circumstances, to affirm a lower-court ruling without an opinion. They also have provisions that allow appellate courts to issue unpublished opinions, which have no precedential value.
Unpublished opinions are becoming increasingly common and chip away at what might be left of judicial integrity, according to Citizens for Judicial Accountability (CJA). An article at the CJA Web site says about 80 percent of federal appellate opinions are stamped "Not to be Published," "Not Precedential," or words to that effect. Should the public be concerned about that? Yes, it should. From CJA:
Even if these unpublished non-precedential "per curiam affirmed" decisions contain some form of explanation, generally they are not carefully analyzed as are the published opinions. In many cases the decision is based on facts inaccurately stated, sometimes fabricated and do not follow the controlling precedent. It is not unusual for a judge's law clerk to write these opinions.
That brings us back to ghost-written opinions, and rulings that have no opinions at all. The Eleventh Circuit used to have Rule 36-1, which allowed for affirmances without opinions. The rule read as follows:
When the court determines that any of the following circumstances exist:
(a) the judgment of the district court is based on findings of fact that are not clearly erroneous;
(b) the evidence in support of a jury verdict is sufficient;
(c) the order of an administrative agency is supported by substantial evidence on the record as a whole;
(d) a summary judgment, directed verdict, or judgment on the pleadings is supported by the record;
(e) the judgment has been entered without a reversible error of law; and an opinion would have no precedential value, the judgment or order may be affirmed or enforced without opinion.
That rule, however, was rescinded in 2006. According to a memorandum from Clerk Thomas K. Kahn, the change was made on the grounds that “only a min[u]scule portion of appeals are currently terminated in this manner.”
Since 2006, the Eleventh Circuit has had no provision allowing an appeal to be disposed of without an opinion. And yet, two cases were handled in exactly that fashion--one in 2008, the other in 2010--and they just happened to be cases that alleged serious misconduct among Alabama lawyers and judges.
Even when Rule 36-1 was in effect, if we are to believe Clerk Thomas K. Kahn, only a "minuscule portion" of appeals were terminated without an opinion. So how could the two hunting-club cases be terminated in that manner, even after Rule 36-1 had been rescinded? And how could there be no opinion when summary judgment was not supported by the record, and the judgment clearly was entered based on reversible error?
I can think of only one answer: The Eleventh Circuit knew it could not issue an opinion under the law that could justify the corrupt trial-court dismissals--so it chose to issue no opinion at all.
That brings us back to William Domnarski's op-ed piece in The New York Times. Ghostwritten judicial opinions, he writes, cut at the heart of a court's integrity:
There is also the matter of intellectual integrity. Put simply, it cannot be accepted as legitimate that judges can put their names on opinions that they did not write. It’s not quite plagiarism, but it puts me in mind of the product known in the academic world as “managed books”: a professor will use research assistants to not only research a project but also write a first draft — but nonetheless the professor claims the work as his own. The managed books approach has been condemned as an affront to intellectual integrity. There is no principled reason the judicial counterpart should not be similarly condemned. I am reminded of Henry J. Friendly, the great judge of the Second Circuit, who explained that he wrote his own opinions because “they pay me to do that.”
For Americans who live in Alabama, Georgia, and Florida--the states covered by the Eleventh Circuit--it's not just a matter of judges failing to write their own opinions; in some cases, judges aren't issuing opinions.
If it's illegitimate for judges to issue ghostwritten opinions, what term applies when they issue no opinion at all