Reassignment.

• Author: Heytens, Toby J.
• Position: Reviewing courts' returning of case to lower courts to proceed under different trial court judge - II. When Does Reassignment Happen? B. Results 3. What Do the Cases in Which Reassignment Is Ordered Look Like? through Conclusion, with footnotes, p. 27-55

3. What do the cases in which reassignment is ordered look like?

   When reading individual cases, it can start to feel like there is no pattern to when or how the courts of appeals order reassignment. Appellate courts seem to order reassignment in almost every type of case imaginable. Some cases are high profile, politically sensitive, or involve huge sums of money. (115) Others are run-of-the-mill cases unlikely to be of interest beyond the litigants. (116) Sometimes, an order of reassignment is contained in a lengthy opinion that provides a detailed rationale for directing reassignment. (117) Other times, the court of appeals provides no explanation at all. (118)

   That said, some definite patterns emerge when one takes a step back. The key is realizing that the Seventh Circuit uses reassignment in a way that is quite different from its sister circuits.

   Consider, for example, the ratio of civil to criminal cases. The total dataset contains 53.29% civil cases and 45.21% criminal cases, with the remaining 1.5% of cases classified as "contempt." (119) What those figures obscure, however, is that more than three-quarters of the Seventh Circuit's reassignment orders are in civil cases, whereas in every other circuit with criminal jurisdiction there are at least as many criminal cases as civil.

   The Seventh Circuit is different in other ways as well. It is much less likely than other circuits to give reasons for a decision to order reassignment (10.19% in the Seventh Circuit versus 84.01% in the other circuits). On the other hand, a much higher percentage of Seventh Circuit opinions ordering reassignment are signed by one of the panel members than in other circuits (88.27% in the Seventh Circuit versus 56.98% in other circuits).

   Because the percentage of Seventh Circuit decisions in the overall dataset is so high (48.50%), any systematic differences between its reassignment practices and those of the other circuits threaten to swamp the ability to spot interesting patterns. (120) Accordingly, the remainder of this Part will discuss the non-Seventh Circuit and Seventh Circuit cases separately.

   1. Non-Seventh Circuit cases

      My dataset contains 344 cases where a court of appeals other than the Seventh Circuit ordered a case reassigned to a different trial court judge on remand. More than two-thirds are criminal cases (230), with cases involving criminal sentencing errors alone making up 42.15% of the non-Seventh Circuit cases in the dataset (145). The other error stages that generated large numbers of reassignment orders are the guilty plea (25 decisions) and trial (20 decisions) stages in criminal cases and the summary judgment (22 decisions), trial or merits hearing (29 decisions), and final remedies, which includes attorneys' fees, (13 decisions) stages of civil cases.

      Courts of appeals outside the Seventh Circuit generally give reasons for ordering reassignment (84.01%), but the reasons they give vary widely. For one thing, there are a fairly large number of cases (72, or slightly less than 25% of cases in which reasons are given) in which the reviewing court suggests that the type of underlying error in question generally mandates reassignment. The largest number of cases in this category (38) involves violations of the rule associated with Santobello v. New York, (121) which states, broadly speaking, that prosecutors must keep their promises to make--or to refrain from making--particular recommendations with respect to criminal sentencing. (122) The other major category (15 cases) involves violations of Federal Rule of Criminal Procedure 11 (c)(1), which bars judicial participation in plea negotiations. (123)

      The bulk of decisions, however, provide more case-specific reasons for ordering reassignment. Perhaps unsurprisingly, the three most common reasons simply repeat the three "principal factors" from the most frequently recited test for ordering reassignment. That test is drawn from the Second Circuit's decision in United States v. Robin. (124) The first factor asks "whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected" (53 references). (125) The second, and most often cited, factor asks "whether reassignment is advisable to preserve the appearance of justice" (88 references). (126) The third factor asks whether reassignment would consume limited judicial resources "out of proportion to any gain in preserving the appearance of fairness" (39 references). (127)

      Perhaps the most striking recurring variation among the reasons for reassignment offered by different appellate panels involves how they treat the trial court judge. On one hand, a fairly large number of decisions go out of their way to express confidence in the about-to-be-reassigned trial court judge's actual impartiality (31 decisions) or willingness to faithfully follow any instructions on remand (7 decisions). (128)

      Other appellate panels, however, are less charitable. Numerous decisions expressly justify the decision to order reassignment based at least in part on the removed judge's prior conduct. These include references to the fact or number of previous reversals in this particular case (25 decisions), (129) the number (10 decisions) or flagrancy (13 decisions) of the trial court's errors, (130) the trial court's failure to explain or justify its decisions (11 decisions),TM or the reversal (8 decisions) or even reassignment (2 decisions) of this same trial court judge in other cases. (132) Other decisions note that the trial court judge reached the same result following an earlier appellate reversal (14 decisions) or go further to accuse the trial court judge of failing to address the reasons for the prior reversal (11 decisions) or even of violating the previous appellate mandate (15 decisions). (133) Other decisions fault the trial court judge for failing to act in an appropriate judicial manner toward the parties, citing abusive or critical comments (22 decisions), excessive interventions (10 decisions), or the general tenor of the litigation (7 decisions). (134)

      Appellate judges also make predictions about the future when ordering reassignment. Some panels supplement the general factor asking whether the trial court judge might have difficulty putting previous conclusions out of her mind by noting that the trial court judge has already expressed strong views about the facts (14 decisions), law (11 decision), or proper outcome (17 decisions) of a particular case. (135) Others express concerns about putting the trial court judge in a sort of damned-if-you-do, damned-if-you-don't situation (6 decisions), where reaching the same conclusion on remand would invite accusations that the trial court judge was stubbornly adhering to her original position but reaching a different conclusion would invite counteraccusations that she simply caved to appellate pressure. (136) Still other panels openly express doubts about whether the original trial court judge would actually follow any directions given on remand (9 decisions). (137)

   2. Seventh Circuit cases

      The dataset also includes 324 cases from the Seventh Circuit. More than 75% of them are civil cases (248), (138) with the greatest number of errors triggering reversal coming at the trial or merits hearing (69 cases), summary judgment (65), or motion to dismiss (50) stages. In civil cases, the errors triggering reversal favor the defendant just over 80% of the time.

      Because there are so many of them, I also grouped the Seventh Circuit's civil cases into categories by type of case. Some cases involve more than one type of claim, which means that there are more entries than cases. The single largest category involves civil rights cases, by which I mean any constitutional claim as well as statutory discrimination claims that arose outside the employment environment. Just under one-third of the Seventh Circuit civil cases fit that description (82). Another 16% (40) are employment discrimination cases, with the remainder involving a wide variety of federal-and state-law claims.

      The Seventh Circuit's criminal cases also seem to vary in interesting ways from those of the other circuits. As with the other circuits, sentencing errors make up the biggest category of Seventh Circuit criminal cases (26 cases or 36.11% of all criminal cases). Unlike the other circuits, however, the Seventh Circuit ordered reassignment on very few guilty-plea-related claims (2.78% of Seventh Circuit criminal cases), while a much higher percentage of the circuit's criminal reassignments involve erroneous pretrial rulings (20.83% of Seventh Circuit criminal cases versus 2.61% of non-Seventh Circuit criminal cases) or habeas litigation (19.44% of Seventh Circuit criminal cases versus 3.91% of non-Seventh Circuit criminal cases).

      The Seventh Circuit rarely gives reasons for its decisions to order reassignment, and, when it does so, those reasons tend to be highly case-specific and minimal. The vast majority of the Seventh Circuit decisions in my dataset (89.81%) provide no explanation for the decision to order reassignment; rather, the panel simply announces that "Circuit Rule 36 shall apply on remand" (139) or something to that effect. And on those rare occasions when a Seventh Circuit panel provides reasons, the explanation is rarely more than a sentence (or even a clause) long. There are cases that note that the Seventh Circuit has already reversed the same judge in the same case at least once before. (140) Other Seventh Circuit panels have stated that a trial court judge already "has made up his mind on" a particular subject, (141) that reassignment was desirable to help bring the case to a speedy close, (142) or that everyone involved would benefit from a fresh start. (143) Still other times, Seventh Circuit panels have spoken vaguely of...