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THE WORST LITIGATION RISK OF ALL: UNFAIR JUDGES
The actual case itself is a mere tangent to the questionable decision making process that took place. But for the sake of background, in 1992, the University of Michigan Law School adopted an affirmative action program for law school admissions, allowing the admissions committee to consider race and ethnicity in its admissions decisions. Barbara Grutter believed that the policy operated to deny her admission to the law school, and filed suit to challenge the admissions policy under the Equal Protections clause of the U. S. Constitution, and the Civil Rights Act of 1964. The federal district court ruled in her favor, finding the policy unconstitutional. By the time the case reached the 6th Circuit Court of Appeals, 41 individuals, three student groups, United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary (interesting title, don't you think?), and Law Students for Affirmative Action, all intervened in support of the policy. The whole affirmative action topic is a political hot potato, and seems to arouse extreme emotions in people affected by it. In this particular case, the 6th Circuit federal Court of Appeals concluded that Michigan's affirmative action admissions policy was constitutional. Irrespective of what you may think about affirmative action, though, it is the process of this case that stinks, and clearly demonstrates the biggest risk of litigation for business owners: the unfair judge. Judge Boggs wrote a dissenting opinion which criticized the reasoning of the majority opinion on the merits of the law, and then went further to describe the procedure by which he believed the Chief Judge intentionally manipulated the procedures of the court. The process effectively removed two justices from the panel that could have changed the entire outcome of the case. Here's how it happened. Most often, federal cases on appeal are heard first by a panel of 3 judges chosen at random, and only after the decision of the 3 judges is a case heard by the entire court. This case was initially appealed in 1999, and assigned to a 3 judge panel. One of the judges needed to be replaced, and instead of picking one at random, the Chief Judge assigned himself. The deck was only beginning to be stacked. On appeal for the second time, the lawyers asked the entire Sixth Circuit bench to hear the case, instead of the panel of 3 judges. That motion was filed on May 14, 2001. At that point, there were 11 active judges on the Sixth Circuit, so the case would have been heard by all 11 judges. But the Chief Judge held the request "in abeyance" until after all parties filed all their briefs. Better yet, that order was not circulated to all the Sixth Circuit judges, so few even knew the request had been made. On July 1, 2001, one of the judges took senior status (he basically retired). On August 15, 2001, another judge took senior status. On August 27, the three judge panel then set the case for hearing only before itself on October 23, still without circulating the request for hearing by all judges, and without deciding it. Remember, this 3 judge panel has already been at least partially stacked. Well, after 49 more days passed, a mere 8 days before October 23, the request for a hearing before the full panel was finally circulated to all judges. Along with that request was a statement that the full court was being advised because a question had been raised "regarding the composition of the panel." In other words, a lawyer for one of the parties was hip to what was going on and had asked for a new deck of cards. Once the request for a hearing by all judges had been circulated, a sufficient number of judges voted to hear it that the 3 panel hearing was canceled, and hearing was scheduled before the full panel of judges on December 6. In front of the now-reduced-to-9-judges-panel (it would have been 11 but for the 2 recent retirements), the vote was 5-4. In other words, those retired 2 judges could have changed the whole result. And to drive home the point, Justice Boggs suggested that these 2 judges would not have retired knowing they would hear this case in the near future, and that if they had been on the court that heard this case, the result may have been different. He also suggested that the Chief Judge of the Sixth Circuit knew these judges were going to retire, and intentionally concealed the case to effectively remove them from deciding this case. Also consider that the 9th Circuit and the 5th Circuit had already decided such admissions policies were unconstitutional, in three separate cases, and the U.S. Super Supremes had already refused to hear the 5th Circuit cases, evidencing that the Super Supremes did not disagree with the 5th Circuit. Justice Boggs may be right or wrong (at least 2 other dissents attempt to discredit Justice Boggs' beliefs, both of which Justice Boggs answers), but the mere fact that a sitting, active federal court of appeals justice would even broach a subject this sensitive in as much detail as Justice Boggs, to me, indicates that where there's smoke, there's fire. To add even more fuel to this fire, consider that the facts that the Sixth Circuit is operating with only half of the active-judges positions filled, with over 4,000 cases reaching the court each year. Why? Because the politicians in Washington will not allow candidates for these positions to have a hearing in the Senate, and be either confirmed or denied. I am not pointing fingers at any particular person or party, because I think that is irrelevant. Whomever is in a position of leadership causing this problem at any given point in time should be removed. Our system of justice requires that judges have sufficient time to consider and reflect on a case. This in turn takes a sufficient number of active judges. Congress seems to want to play politics with the judicial branch. We as citizens cannot afford for this to continue. Having a full judiciary is as important as having each elected office in Congress filled, as well as always having someone functioning in the position of President. And so in the end it comes down to the morals of this story, and they are:
Are you operating your business absent-mindedly, or are you vigilantly guarding the value your hard work is creating? Your lawyer (and often your CPA, too) can review your business operations and provide advice and counsel as to how to make your business life more certain.
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