Courts

Sure, This Federal Judge Was Supposed To Recuse Herself But 5th Circuit Says Too Bad, So Sad

There's definitely a message here.

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Judge’s gavel and stand with US dollar bills on the wooden table.If a federal judge has a pecuniary interest in a company, such as ownership of stock, and that company has a matter before the court, they’re supposed to recuse themselves. However, as a report by the Wall Street Journal last year revealed, disturbingly, that is not always the case — we’re talking 152 judges in more than 1,100 cases. As a result of the WSJ report, litigants in 800+ cases were notified they may be entitled to have their cases reopened.

Sloane Roberts’s case against Walmart was one of those cases. Now-retired Judge Rebecca Doherty should have recused herself from presiding over the case. The Fifth Circuit calls the decision to stay on the case an “unfortunate mistake.” But that doesn’t mean they’re doing anything about it. As reported by Reuters, the appellate court decided it was best to call out Judge Doherty’s ethics lapse but leave the judgment intact.

Public faith in the system, wrote judges Patrick Higginbotham, Kyle Duncan and Kurt Engelhardt in a per curiam opinion, would be more undermined by reviving the suit — especially because the plaintiff, Sloane Roberts, did not appeal the 2016 judgment for Walmart – than by letting the outcome stand.

Of course, not everyone agrees with the Fifth Circuit’s assessment of what builds — or destroys — faith in the legal system. Michael Frisch of Georgetown University Law Center told Reuters, “The admonition to future judges is cold comfort” to the plaintiff. “Faith in the judicial system weighs in favor of a litigant’s right to a conflicts-free adjudication.”

But it seems clear that the WSJ report plays a part in what’s happening at the Fifth Circuit. As Arthur Hellman of the University of Pittsburgh School of Law and Bruce Green of Fordham University School of Law tell Reuters:

But what is significant, said Hellman and Green, is that the 5th Circuit chose to publish an otherwise humdrum decision. That’s where the context of The Wall Street Journal bombshell becomes important: Green said he believes the appellate court published the opinion to send a message to any other litigant trying to undo years-old rulings against them based on recent disclosures about judges’ stock holdings: Unless you can show that the conflicted judge was biased or issued an unjust ruling, don’t expect your case to be resurrected.

Hellman was less declarative about the 5th Circuit’s motive but said one way to read the court’s decision to publish the opinion would be as a warning against Rule 60 motions based only on a trial judge’s failure to recuse because of stock ownership.

The court is thinking about costs to the system,” Hellman said.

Because everyone knows the best way to assuage fears of corruption after a massive ethics scandal is to worry about how much it will cost.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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