Have you ever sent an email to the wrong person? I remember sending co-defendant’s counsel a random musing about my office because Microsoft Exchange autocompleted the address to the name partner I was working with rather than the associate sitting down the hall with the same first name. Thankfully, my musing was not damaging or uniquely embarrassing.
The same cannot be said of this lawyer. After a state supreme court heard oral argument on his case, he wrote the lawyers who argued the case and questioned the wisdom of the jurists.
But, of course, he also sent it to the court’s chief justice….
Warren Whitted Jr. is the immediate past president of the Nebraska State Bar Association (“NSBA”). Membership in the NSBA is mandatory in Nebraska and some people just don’t like that because their dues often go to support liberal causes, and one aggrieved legislator petitioned the court to remove the mandatory requirement.
After the oral argument, Whitted wrote the lawyers for the NSBA and congratulated them:
I wanted to congratulate you on your arguments this morning. You did a great job and dealt with some ill conceived and uninformed questions very well. I know you both (and Amy Locher) did a great deal of work and agonized over this for weeks. It’s now in the hands of the Court and we have done all we can.
He decided to cc: the entire Executive Council, which makes a good deal of sense. Except the Executive Council distribution list includes Chief Justice Michael Heavican, who serves as the NSBA’s Supreme Court Liaison. Oops.
A few hours later, Whitted sent the Chief Justice another email explaining that the comments were not directed at him — basically the, “well, you were the good one” defense, which doesn’t sound like desperate backtracking at all.
But this goes beyond a simple screw-up, because Chief Justice Heavican determined that he was obliged to disclose the email as an ex-parte communication about the subject matter of a case pending before him.
So two things seem wrong with this whole affair. First, while the Chief raises the possibility of recusal over this email, it seems as though he should never have been on the case in the first place. If you’re on an email distribution list as a member of the Executive Council of an organization, you’re too tied to the group to hear that petition.
Second, disclosing the email actually taints the rest of the panel so much worse. The disclosure effectively spread the ex-parte communication to everyone else, and importantly, this disclosure includes Whitted’s backtracking email. This means the rest of the panel is also treated to the knowledge that Whitted stands by his comments and thinks someone other than the Chief is dumb as dirt.
Now, judges should be able to overlook insults and come to the right decision, especially when the swipes are coming from someone who is not directly involved in the case. But it really seems like this got much worse than it had to be; if only Chief Justice Heavican had just recused himself in the first place.
Check out Chief Justice Heavican’s full disclosure on the next page….