Circuit Court Misconduct

Although the following procedural matters do not directly affect the legal principles discussed in this case, it is important that they be placed in the record as an explanation of the manner in which this case came before the particular decision-making body that has now decided it. Since a person reading these opinions in sequential order will have read a variety of complicated responses attempting to defend what happened procedurally in this case, it may be well to begin with the plainest possible statement of undisputed primary facts. The panel that considered this case prior to, and certainly following, the filing of the present appeals was not constituted in conformity with 6th Cir. I.O.P. 34(b)(2) of this court's rules, or any other rule. A motion that counsel made on May 14, 2001, for initial hearing en banc was not transmitted to most members of the court for five months, and was not treated as stated in the court's order of June 4, 2001. These facts speak for themselves, however each of us may choose to characterize them.

One of the alleged results of this was that two judges (generally considered more conservative) had taken senior status (disqualifying them from sitting en banc) before they could take seats in the en banc panel, which Boggs believed would not have happened if the Chief Justice has not purposefully delayed notification of the request for an initial hearing en banc:

[U]nder these circumstances, it is impossible to say what the result would have been had this case been handled in accordance with our long-established rules. The case might have been heard before a different panel, or before a different en banc court.

One other dissenting judge wrote separately to support Judge Boggs' appendix, saying that "Unless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate."

Another dissenting justice wrote separately to say the opposite, that "I do not concur in the addition of the procedural appendix, not because I question its accuracy, but because I feel that it is unnecessary for the resolution of this case. If the procedural appendix were not filed, then the responses filed in the concurrences by Judges Moore and Clay would also have been unnecessary."

And those concurrences are astonishing as well.

Judge Clay wastes no time letting his position be known:

Although the dissent's substantive attack, which is grounded in neither fact nor law, is disturbing, the dissent's procedural attack, as set forth in its "Procedural Appendix," constitutes an embarrassing and incomprehensible attack on the integrity of the Chief Judge and this Court as a whole. Apparently, the dissent's strategy in this regard is that if its substantive basis for disagreement with the majority opinion is not convincing, then questioning the procedural posture of this case will be enough to forever cast doubt upon the outcome reached here today. This unfortunate tactic has no place in scholarly jurisprudence and certainly does not deserve to be dignified with a response.

And Justice Moore only purpose in writing a concurrence is to counter Boggs' claims! He first discusses the damage done to the court's reputation by the public airing of these complaints:

In publishing their "Procedural Appendix," I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole. A court's opinions state the reasons for its holdings and provide the public with the principled justifications for them. Dissenting opinions typically present principled disagreements with the majority's holding. Such disagreements over principle are perfectly legitimate and do not undermine public confidence in our ability as judges to do what we have sworn to do because, as a culture, we have long recognized that disagreements over principle are unavoidable. Given this cultural backdrop, disagreements over principle can be phrased in strong terms without damaging the court's ability to function as a decision-making institution in a democratic society. Judges criticize their colleagues' reasoning all the time, and, if they are to carry out their oaths of office, they must do so. This robust exchange of ideas sharpens the focus and improves our analysis of the legal issues.

...[W]e have all sworn to uphold the Constitution, and the Nation needs a strong judiciary to check the occasional excesses of the other branches and, more importantly, to preserve the rule of law.

Our ability to perform these crucial tasks is imperiled when members of this court take it upon themselves to "expose to public view" disagreements over procedure. The damage done by such exposés is, at least in part, the responsibility of those who report them, despite the efforts of Judge Boggs and those joining his opinion to disclaim responsibility for their own conduct. It is understandable, however, that they do so, as their conduct in the present case is nothing short of shameful.

He then moves on to the substance of the complaints:

With great reluctance, I find myself forced to respond to Judge Boggs's inaccurate and misleading account of the procedural facts underlying the present case. As discussed in Part I of this opinion, I firmly believe that matters of internal court procedure should not be exposed to public view. But when one is attacked in the way that the members of the majority have been attacked, it is necessary to present an accurate account of the events in question; to fail to do so would create the impression that Judge Boggs's assertions are, in fact, correct.

Moore also notes with suspicion the timing of the dissenters' complaints:

Judge Boggs and those joining his dissent did not raise these concerns in this manner, however. In fact, the dissenters themselves did not raise any complaints with the composition of the en banc court when the en banc petition was circulated, when the case was argued before the en banc court, or even in the first circulated draft of Judge Boggs's dissent. The lateness of their complaints suggests that their primary complaint is with the outcome of the present case rather than with the procedures that were followed in arriving at that outcome. But unhappiness over the outcome of the case cannot justify the dissenters' "Procedural Appendix." Judge Boggs's opinion marks a new low point in the history of the Sixth Circuit. It will irreparably damage the already strained working relationships among the judges of this court, and, as discussed in Part I supra, serve to undermine public confidence in our ability to perform our important role in American democracy. And for what reason? What purpose does the "Procedural Appendix" serve? Its author does not defend its inclusion, except to suggest that by placing his version of events in the record, some "remediation" may be "possible." Whatever "remediation" Judge Boggs may envision is properly the subject of a court meeting, but not the basis for an unprecedented "Procedural Appendix."

And they say being a judge is boring!