Federal courtrooms as Sherwood Forest

Imagine that you're a trustee. (You've never heard a fairy tale start with that line, I'll bet. But this isn't a fairy tale, so bear with me.) The trust to which you owe fiduciary duties owns, and has rented out, a house, so you're effectively acting as that property's landlord on behalf of the trust. You must act prudently, lest you become personally liable yourself to the trust for mismanagement. You can't just make decisions based on a lark.

Imagine further that the house was rented to a husband and wife (and indeed, the trust is connected to the husband's family). But they're getting a divorce. The wife has kept possession of the property, but neither she nor her husband nor anyone else have paid you (as trustee) any rent for months. On behalf of the trust, you reluctantly start the mechanisms for evicting the wife. But at the last possible moment, the eviction is blocked when the wife files for personal bankruptcy.

So now you've got to get the approval of the bankruptcy court to regain possession of the property. You ask the bankruptcy court to lift the "automatic stay" that blocked the eviction proceedings. That kind of request is one of the absolutely routine (if sad) proceedings that bankruptcy courts handle in large volume, day in and day out, and you're going strictly by the book. And as per that routine, the federal bankruptcy judge agrees with you, rules for the trust, and orders the wife to leave the property.

But bankruptcy judges are subject to supervision from federal district judges. And suddenly, to your complete surprise, one of those federal district judges yanks your case out of bankruptcy court, and pulls it instead into his federal district court. He hasn't been randomly picked out of all the federal district judges in that district (which is one way the federal courts prevent corruption and misconduct); instead, he's picked himself. And for reasons he won't explain, he orders that the wife can stay in the house. Indefinitely. Rent-free.

Imagine further that every other lawyer and judge who looks at this situation agrees that what this particular federal district judge has done is simply incomprehensible. And it looks really fishy, because there's a connection between him and the wife: She'd been prosecuted in his court for fraud, but she'd pleaded guilty and the federal district judge had put her on probation. And he'd been meeting personally with her, supervising her probation. That by itself is pretty rare, but it's something this judge has done before with other probationers. And this wife, well, she's cute — "waif-like," everyone says. (I'm thinking Kate Mossish, without the cocaine and the heroin, one hopes; or maybe Nicole Kidmanesque; or Keira Knightlyescent, if she's really young.) Now don't jump to conclusions — nobody can prove, and nobody even claims to have a solid basis to claim, that there's an additional personal, much less sexual, relationship between them beyond "judge/probationer." But the federal district judge admits that it was through his supervision of her probation that her circumstances with the house and the eviction proceedings somehow came to his attention. Exactly how is disputed, but it's also clear that it wasn't through any normal means. The lawyer you've hired to represent you and the trust was kept entirely in the dark about it, for example. The proper motions weren't filed, bonds weren't posted, certified letters weren't sent, notices weren't given, magic words and incantations weren't uttered, and rules weren't followed. They just weren't, not even sorta-kinda. None of them.

Yet this federal district judge continues to block your every effort to regain possession of the house for the trust. He won't give a reason why other than "Because I said so." And the wife just keeps living in the house — absolutely rent-free! — for seventeen more months. Eventually, some judges from the court of appeals — the next level up from the district courts — start looking at this pretty hard and asking some embarrassing questions. So the federal district judge finally punts the case over to another federal district judge (but it's one he's hand-picked). And finally, finally, the court of appeals issues an extraordinary order to make the wife leave the house.

But on behalf of the trust, by now you've run up tens of thousands of dollars in legal fees and expenses that the wife will never pay. The trust has lost about $35,000 more in rental income that will never be recovered. That is, the wife's gotten that much value from the trust — absolutely for free. But her bizarre protector, the federal district judge, refuses to admit any wrongdoing, except maybe (he says through his own lawyer!) that he ought to have done a better job of preventing "miscommunications." He can't offer any legal justification for what he's done — "not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg."

Now imagine further that when you've used the legal and appropriate mechanisms for pointing out and challenging judicial misconduct, the chief judge of that court of appeals dismisses your complaint — twice. She won't even dig into the other fishy facts to sort out the ones that are in dispute. She doesn't bring all this to the attention of the House of Representatives, so they can consider whether to begin impeachment proceedings against this federal district judge. She won't make the federal district judge reimburse the trust. She doesn't suspend him or dock his pay. She doesn't even make him apologize. The chief judge and her fellow federal judges have the legal power to do those things, to police their own ranks; indeed, they have the responsibility and the duty to do them when appropriate. But when you try to appeal her ruling, the majority of a Judicial Council comprising five other circuit judges and five other district judges votes — over one and a half dissents — to uphold what the chief judge has done. And now you're done; you have no further appeal, you can't go to the Supreme Court. You're at the absolute end of the line.

Now imagine that you've just told this outrageous tale of woe to me, and that you ask me: "Beldar, what do you think?"

I'd say to you: "Friend, I think you must live within the jurisdiction of the United States Court of Appeals for the Ninth Circuit."

I'd say: "I'm glad there's at least one judge who was on that Judicial Council who's brave enough to publish his blistering thirty-nine page dissent, just to tell your sad tale to the public." Indeed, that judge  is absolutely correct when he writes:

Congress has surely not made us the most powerful judges in the world so that we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it.

And likewise when he writes:

A federal courtroom is not Sherwood Forest; a judge may not take property from one party and give it to another, except by following the established rules of civil procedure.

And then I'd say: "But I think there are quite a few other judges out there who must not understand the incredible damage that this sort of mess does to our judicial system. And that makes me really sad, and really worried too."

Nobody in this tale lives happily ever after.

(Hat-tip to Patterico, who in turn credits Jonathan S. Haas.) UPDATE (Sun Oct 2 @ 11:30am): A reader emailed me to point out that Denise Howell (who also blogs at Bag and Baggage and originated the term "blawg") waxes poetic over one aspect of this dissent over at Corante. (I didn't follow all the links, but did the one about the thong.) And Howard Bashman (who is many things but not likely waif-like) also has the story (plus a link to a 2004 LAT writeup at an earlier stage of the case, if you want to know the federal district judge's name); Howard confirms that this dissent appears to be the first judicial use of "blawg." We have nowhere to go but up, it seems — oh, how I aspire to someday approach the credibility, or even the popularlity, of a bankruptcy treatise! — but from tiny acorns do mighty oaks grow in Sherwood Forest and legal precedent.