Court Contracts with Private Individuals and Companies
Courts routinely enter into agreements with private individuals and companies to perform tasks associated with daily court operations. Companies or individuals such as messenger services, process servers, and computer technicians, just to name a few, frequently work with local courts on an as-needed basis. In Swinehart v. McAndrews and Carey, 221 F. Supp. 2d 552 (E.D.Pa. 2002), the question of a court’s ability not to sever such a relationship but to inform the person’s other clients about his improper conduct in performing work for the court was raised in a lawsuit filed under 42 U.S.C. [sec] 1983.
Walter Swinehart was an elected constable in Morrisville, Pennsylvania. The courts within the Seventh Judicial District frequently contracted with Swinehart in his capacity as constable to serve warrants. In fact, Swinehart received approximately 95 percent of his assignments from the courts and agencies of the district. On January 17, 2001, the deputy court administrator of the Court of Common Pleas for Bucks County, Charles Carey, Jr., received a complaint against Swinehart due to his brandishing a gun while serving a warrant for nonpayment of child support, a fact not disputed by Swinehart. Carey advised presiding Judge R. Barry McAndrews of this complaint and began an investigation into its allegations.
During the investigation, statements were obtained from Swinehart, the complainant, another constable, and Philadelphia police officers who were present when the warrant was served. Following the completion of the investigation, Carey submitted a written memorandum and copies of materials germane to the incident to Judge McAndrews.
On January 24, 2001, Judge McAndrews instructed Carey to inform the other judges in the district that “Constable Walter Swinehart is not to be issued any additional work assignments by your District Court effective this date forward. This restriction shall continue in place until further notice and review by President Judge McAndrews.” Additionally, at the direction of Judge McAndrews, Carey forwarded a copy of the original complaint to Bucks County’s director of domestic relations and the chief domestic relations investigative officer and advised them that because Swinehart had been involved in a similar incident in the last two years, he would not be receiving new assignments from the district courts. Following these events, Swinehart retained his position as constable, but received no work from the Bucks County court system.
On May 9, 2001, Swinehart filed suit against Judge McAndrews and Carey in the United States District Court for the Eastern District of Pennsylvania alleging that they violated his constitutional rights under 42 U.S.C. [sec] 1983. Specifically, the complaint alleged that 1) he was denied a liberty right without due process of law in violation of the Fourteenth Amendment of the United States Constitution; 2) defendants caused harm to his reputation in the community and have prevented him from earning a living in the profession in which he is trained; and 3) defendants denied him of his property right in his position as a constable without due process of law. In early February 2002, both parties filed motions for summary judgment.
In a Memorandum and Order, 221 F. Supp. 2d 552 (2002), Judge Anita Brody granted summary judgment in favor of Judge McAndrews and Carey based on the fact that Swinehart had failed to demonstrate 1) that an interest included within the Fourteenth Amendment’s protections for property or liberty had been violated and 2) that the state deprived him of that protected interest without requisite notice or some type of hearing.
The court initially noted that the Fifth and Fourteenth Amendments protect an individual’s right to pursue a calling or occupation. This right, however, does not include the right to possess a specific job. In short “[i]t is the liberty to pursue a particular calling or occupation and not the right to a specific job that is protected.” Id. at 557, quoting Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1262 (3rd Cir. 1994).
The court proceeded to find that Swinehart was not deprived of a liberty interest because he was not dispossessed of his right to pursue a particular calling or occupation. The court noted that Swinehart still worked as a constable and still had the ability to work for other courts or perform other duties carried out by constables in Pennsylvania. While he was not provided assignments from courts in the Seventh Judicial District, he did not have a right to be provided with such assignments. Accordingly, although he was denied the right to work for an individual court, as he was not denied the right to maintain his position as constable, he was not deprived of a liberty interest.
As an additional basis for its ruling, the court noted that constables serve an executive function as peace officers and are therefore not “employees” of the judiciary. In 1991 the Pennsylvania Supreme Court declared a statute that stated that judges were responsible for the supervision and training of constables and had the authority to decertify them to be unconstitutional as a violation of the separation of powers. In re Act 147 of 1990, 528 Pa. 460, 598 A.2d 985 (1991). Accordingly, the court found that the district court did not have the ability to affect Swinehart’s position as a constable.
Swinehart also alleged that his reputation was damaged by the defendants’ actions. In addressing this claim the court noted that if the government has brought false charges against a person that could potentially cause significant damage to his position in the community, particularly where the charges impose a stigma or disability that might impact one’s future employment opportunities, the government may be required to hold a hearing and provide the plaintiff with the opportunity to clear his name. The right to hearing, however, has two limitations. First, the allegations involved must be significantly stigmatizing. Second, there must be a factual dispute regarding the allegations that can be resolved at a hearing.
Judge Brody found both of the items to be lacking. The actions by the defendants did not stigmatize Swinehart outside of the district where he was free to work as a constable. Additionally, no evidence was presented that he was refused work outside the district. The court went on to state even if there had been evidence that Swinehart was significantly stigmatized, he was not entitled to a hearing because there was no dispute involving the facts surrounding incident that gave rise to this action.
The Practice of Law by Part-Time Federal Magistrates Under the Federal Magistrates Act
The orderly operation of the American judicial system requires the actual, and just as importantly the perceived, fairness and impartiality of the system’s judges. Absent an impartial decision maker, the rights guaranteed under the Due Process Clauses of the Fifth and Fourteenth Amendments become meaningless. Nearly as important as the impartiality of the judge is the appearance of the judge’s impartiality to the litigants and to society as a whole. It is for this reason that federal and state statutes require a judge to be disqualified from hearing a case in which his or her partiality may be “reasonably questioned.”
Dembowski v. New Jersey Rail Operation, Inc., 221 F.Supp.2d 504 (D.N.J. 2002), examines the constitutionality of allowing an attorney who serves as a part-time magistrate to appear as counsel in the district court where he periodically sits. As the use of part-time magistrate judges in district courts is a common and indispensable practice, the prohibition of attorneys who practice in the local district court would greatly affect the court’s ability to obtain and retain qualified part-time magistrates.
In 1999 Gerard Dembowski commenced a civil action against New Jersey Transit Rail Operation, Inc. (NJRO) in the United States District Court for the District of New Jersey. Anthony Mautone was at that time, and still is, a part-time United States magistrate judge sitting in the District of New Jersey. On March 18, 2002, Mautone was retained as counsel for NJRO. Shortly thereafter, based on a perceived potential bias by the court in favor of Mautone, Dembowski moved to have Mautone disqualified as counsel, or in the alternative, have the action transferred out of the District of New Jersey. The motion argued that the trial judge who would hear the case is a “colleague” of Mautone and may be “subconsciously” influenced by this “collegiality” to rule in Mautone’s favor. The result of this subconscious influence, it was argued, would be a violation of due process under the Fifth Amendment. In short, Dembowski sought a judicial finding that “the statute permitting a part-time United States judge to represent clients in the same judicial district where he serves a judicial function is unconstitutional.” Dembowski v. New Jersey Rail Operation, Inc., 221 F.Supp.2d 504, 507 (D.N.J. 2002).
In denying the motion, United States Magistrate Judge Ronald Hedges relied extensively on the Federal Magistrate Act, 28 U.S.C. [sec] 631 et seq., as well as the Guide to Judiciary Policies and Procedures. At the outset, Judge Hedges noted that the act authorizes the creation of part-time magistrate positions, 28 U.S.C. [sec] 633(a)(3), and lays out limitations on outside employment held by part-time magistrates, 28 U.S.C. [sec] 632(b). Specifically [sec] 632(b) provides that:
Part-time United States magistrates shall render such service as judicial officers as is required by law. While so serving they may engage in the practice of law, but may not serve as counsel in any criminal action in any court of the United States, nor act in any capacity that is, under such regulations as the conference may establish, inconsistent with the proper discharge of their office. Within such restrictions, they may engage in any other business, occupation, or employment which is not inconsistent with the expeditious, proper, and impartial performance of their duties as judicial officers.
With regard to a part-time magistrate judge appearing as counsel in a case in the district where he or she sits, the Guide to Judiciary Policies and Procedures, which codifies the regulations promulgated by the Judicial Conference, explicitly states, “A parttime magistrate judge . . . may appear as counsel in any civil action in any court or governmental agency, including matters in which the United States is a party or has a direct and substantial interest.” Id. at vol. II, ch. III(A), quoted in Dembowski at 508. Based on the above statute and regulation, the court concluded that Judge Mautone’s appearance as counsel was well within the limits set forth by the act.
The court then addressed Dembowski’s constitutionality argument. Without addressing the constitutionality of the statute, Judge Hedges concluded that the hypothetical and speculative nature of Dembowski’s argument fails to state sufficient grounds to consider the matter substantively, let alone at the constitutional level. If one presumes that judges operate within the standards set forth in the Code of Judicial Conduct, one must also presume that if an actual, factually based conflict were to exist in Judge Mautone appearing in a case in the District of New Jersey, the court would consider the issue fairly under the appropriate statutes, rules, and judicial canons.
After noting that the Code of Judicial Conduct requires that a “judge shall disqualify himself or herself in a proceeding in which the judges’ impartiality might reasonably be questioned,” Code of Judicial Conduct, Canon 3C(1), the court went on to discuss two statutes, 28 U.S.C. [sec] 455 (b)(1) and U.S.C. [sec] 144, that set forth the standards for judicial disqualification in federal matters.
As stated by Judge Hedges:
28 U.S.C. [sec] 455 (b)(l) requires a judge to disqualify himself only when “he has a personal bias or prejudice concerning a party.” Thus, “a judge’s acquaintance with a party, an attorney, or a witness, without some factual allegation of bias or prejudice, is not sufficient to warrant recusal.” Bailey v. Broder, 1997 U.S. Dist. LEXIS 1751, 9, (S.D.N.Y. Feb. 20, 1997). Moreover, potential “bias for or against an attorney, who is not a party, is not enough to require disqualification unless it can also be shown that such a controversy would demonstrate bias for or against the party itself.” United States v. Edwards, 39 F. Supp. 2d 692, 699 (M.D.La. 1999).
In a similar manner, upon the application of any party by a sufficient affidavit, 28 U.S.C. [sec] 144 requires a judge to be disqualified when that judge “has a personal bias or prejudice” concerning the filing party. “The facts [set forth in the affidavit] must be sufficiently definite and particular to convince a reasonable person that bias exists; simple conclusions, opinions or rumors are insufficient.” United States v. Sykes, 1 F.3d 1331, 1339 (7th Cir. 1993). Even in the face of an otherwise valid affidavit, as one court noted, “[A judge] must have neighbors, friends and acquaintances, business and social relations . . . [and] the ordinary results of such associations and the impressions they create in the mind of the judge are not the ‘personal bias or prejudice’ to which the statute refers.” Comm. of Pa. v. Int’l Union of Operating Engineers, 388 F. Supp. 155, 159 (E.D.Pa. 1974), quoting United States v. Gilboy, 162 F. Supp. 384, 400 (M.D.Pa. 1958). Dembowski at 511.
In the matter facing the court, no specific, factually based allegations of bias were presented. While the Supreme Court has held that judicial disqualification based on an allegation of generalized bias may be required in the “most extreme of cases,” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-21, 89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986), the court found that Mautone’s general relationship with the court as a part-time magistrate judge does not create an extreme case of personalized bias. Based on the clarity of existing statutes and regulations, Dembowski’s motion was easily dealt with by the court. In fact, it can be argued that the filing of the motion was worthy of sanctions.
The impartiality of judges is paramount to the American legal system. In making unfounded, speculatory, conclusory accusations about an entire district court, the motion in Dembowski attacks the very heart of the American judicial system. One must remember that judges do not live in vacuums. They will always have acquaintances, friends, past business associates, and other relationships with litigants and attorneys who appear before them. Society must be able to trust in the integrity of the bench to make appropriate recusai determinations without the painstaking ordeal of litigating matters similar to the motion brought forth by Dembowski.
Copyright National Center for State Courts 2003
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