Benchslaps, Federal Judges

Federal Judge Benchslaps Attorney General For 'Superficial Posturing'

You don't need to be an expert in legal ethics to see why this filing might be a problem.

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smack slap benchslap benchslapsThe Flint water crisis is a national disgrace. So it shouldn’t be surprising for the federal judge handling litigation over the water crisis to react poorly to a perceived attempt to score political points off the situation.

Earlier this week, this happened:

[Judge David Lawson (E.D. Mich.) denied Michigan Attorney General Bill Schuette’s request to file an amicus brief in a case involving the Flint drinking water crisis, suggesting “superficial posturing” by Schuette may have irreversibly complicated important issues.

Attorneys from Schuette’s office are representing state defendants in the case and arguing against an order… requiring the state to start making regular bottled-water deliveries to all Flint residents who can’t be shown to have a properly installed and working water filter on their taps.

But on Jan. 17, Schuette asked Lawson for permission to file an amicus brief “on behalf of the people of the State of Michigan,” that would take the opposite position — arguing the state should make the bottled-water deliveries to Flint homes.

You don’t need to be an expert in legal ethics to see how this might be a problem.

But wait, that’s not Judge Lawson’s only problem with the attorney general’s request. His Honor believes the AG’s proposed brief is useless as a substantive matter:

The proposed amicus brief has not introduced any new arguments or offered a perspective that has not been presented by the parties already. Instead, the attorney general has taken a position aligned with the plaintiffs and at odds with other attorneys in his own office. In doing so, he has managed to inject a troubling ethical issue into this lawsuit, potentially complicating adjudication of the serious legal questions before the Court, without adding anything of substance.

And problematic as a procedural one (internal citation omitted):

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There also is a technical problem with General Schuette’s motion. He originally docketed his motion as an “amicus brief,” although no leave has been granted to allow that filing as such. And he appended a proposed order to the filing. Counsel is obliged to be aware of and follow the CM/ECF procedures. “Proposed orders must be submitted to the judge to whom the case is assigned . . . via the link located under the Utilities section of CM/ECF.” If a proposed order is accepted, the Court will then docket it with the judge’s electronic signature. “Proposed” orders should never be e-filed and docketed by a party.

Unless the party is hoping to score some public-relations points from the filing?

But let’s look on the bright side. It’s nice to see Bill Schuette taking the Flint water crisis so seriously — even if his likely gubernatorial bid next year might be behind his change of heart.

(Flip to the next page to read the order in all of its glory.)

Judge: Schuette ‘superficial posturing’ in Flint case [Detroit News]
Judge to Schuette: No ‘superficial posturing’ on Flint [Detroit Free Press]

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DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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