Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 4

H. Lee Sarokin

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.

Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2014—Graham Henry’s saga of proceedings challenging his conviction for a murder in 1986 had finally seemed to come to an end when the Supreme Court denied his certiorari petition in June 2014. But in an extraordinary procedural contortion, the en banc Ninth Circuit instead votes to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

In dissent, Judge Richard Tallman, joined by four other judges, issues an opinion with this memorable opening:

“If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.”

In December, the Supreme Court will take the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in the case. In a transparent effort to avoid having to explain its misconduct, the Ninth Circuit, on December 30, will terminate its proceedings.

2015—By a vote of 6 to 3, the Washington supreme court rules in League of Women Voters v. Washington that the state law authorizing charter schools violates the state constitution. The ruling came just as nine charter schools, serving some 1,200 students, had started the school year, thus (as one article reports) “creating chaos for hundreds of families.”  

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