The Assignment of Visiting Federal Judges, and a Little Wisconsin Judicial History

28 December 2015 Wisconsin Appellate Law Blog

A decision from the U.S. Court of Appeals for the D.C. Circuit earlier this month, Wrenn v. District of Columbia, D.C. Cir. No. 15-7057, is a reminder of the crucial importance of crossing t’s and dotting i’s when it comes to the temporary assignment of federal judges to hold court outside their own districts. This situation has presented itself occasionally in Wisconsin and arises in two different ways.

Rarely, but occasionally, all the judges on the court or in the circuit will be unable to sit in a case. That happened in a bizarre case filed in 1983 by a Milwaukee lawyer, Roland J. Steinle, Jr. He sued U.S. District Judge Robert W. Warren, claiming that Judge Warren, in 1969, while Attorney General of Wisconsin, had known of and consented to a break-in of Steinle’s law office by one John Forbes, whom the Seventh Circuit described as “a professional burglar and a close friend of Steinle.”  Steinle v. Warren, 765 F.2d 95, 99 (7th Cir. 1985). Steinle said that Forbes told him (in 1971) that the purpose of the break-in was to remove Steinle’s file on his long-time client Frank Balistrieri, the reputed head of the Mafia in Milwaukee. Steinle didn’t act on the story for twelve years, until five days before Balistrieri was scheduled to go to trial before Judge Warren on gambling and tax evasion charges. Steinle admitted during oral argument in the Seventh Circuit that he sued Judge Warren for the express purpose of compelling his recusal. Id. The effort succeeded, though it did Mr. Balistrieri no good. District Judge Terence T. Evans took over the case and began the trial on the scheduled date. The jury convicted Balistrieri, Judge Evans sentenced him to four years, and the Seventh Circuit affirmed, U.S. v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). All the judges in the Seventh Circuit declined to hear the civil case against Judge Warren, so an out-of-circuit judge had to come in. This required a certificate of necessity from the Chief Judge of the Seventh Circuit and a designation and assignment by the Chief Justice of the United States of a senior judge, under 28 U.S.C. § 294(d). Chief Justice Burger assigned Senior District Judge Edward J. Devitt, from the District of Minnesota, to the case. (Judge Devitt granted summary judgment to Judge Warren and awarded him attorney’s fees for having to defend against a frivolous lawsuit; the Seventh Circuit affirmed and added an award of attorney’s fees and double costs on appeal.)

More frequently, an out-of-district or out-of-circuit assignment becomes necessary when a court finds itself short of judges. That occurred in Wisconsin most recently during the extended illness of Judge John C. Shabaz and the continued vacancy in his seat after his death, until Judges William E. Conley and James D. Peterson were eventually appointed to succeed Judge Barbara B. Crabb (who continued to sit) and Judge Shabaz. During the gap years, using authority under 28 U.S.C. § 292(b), the Chief Judge of the Seventh Circuit frequently assigned district judges from the Eastern District of Wisconsin and the Northern District of Illinois to hear cases in the Western District. An important case interpreting the Indian Gaming Regulation Act, Wells Fargo Bank, N.A. v. Lake of the Torches Econ. Dev. Corp., 677 F. Supp. 2d 1056 (W.D. Wis. 2010), aff’d, 658 F.3d 684 (7th Cir. 2011), for example, ended up on the plate of Judge Rudolph T. Randa of the Eastern District in this way.

And that is how Senior District Judge Frederick J. Scullin, Jr. of the Northern District of New York found himself assigned to decide a challenge to the constitutionality under the Second Amendment of a District of Columbia gun law. The Chief Judge of the D.C. Circuit certified the necessity for an out-of-circuit assignment, and Chief Justice Roberts designated and assigned Judge Scullin to handle specific and enumerated cases. One of these was Palmer v. District of Columbia, D.D.C. No. 09CV1482, a challenge to the constitutionality of a D.C. law that prohibited carrying handguns in public, after the Supreme Court had struck down a prior law in District of Columbia v. Heller, 554 U.S. 570 (2008). On July 26, 2014, Judge Scullin enjoined enforcement of the new law. Subsequently, the D.C. legislature revised the law that Judge Scullin had invalidated, and that law was promptly challenged in Wrenn v. District of Columbia, D.D.C. No. 15CV162. The district court’s case assignment committee sent the new case to Judge Scullin as a case related to Palmer, and he granted the plaintiff’s motion for preliminary injunction on July 28, 2015. D.C. appealed from the preliminary injunction, and a few weeks ago the D.C. Circuit vacated the injunction on the ground that Judge Scullin had no jurisdiction to hear the case.

The problem, the court said, was that, though there was an assignment order from the Chief Justice for Judge Scullin to handle Palmer, there was no new assignment order for him to handle Wrenn.  While the assignment of the case to him by the assignment committee would ordinarily have made perfect sense, Judge Scullin is not a judge of the D.C. district court and has no power to do anything in that court except when assigned to sit there, and his assignment had been limited to specific cases. The D.C. Circuit held that the case is ruled by Frad v. Kelly, 302 U.S. 312 (1937), in which the Supreme Court held that a visiting judge whose date-specific assignment had expired could no longer exercise jurisdiction even in a case that he had previously heard.

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