Dropping the K-bomb: a compendium of kangaroo tales from American judicial opinions.

• Author: Potter, Parker B., Jr.

It is well understood that kangaroo courts are to be avoided, if at all possible. What is less well understood is that it is generally a good idea to avoid telling a judge that he or she is presiding over a kangaroo court. Litigants and even attorneys have found any number of creative and colorful ways to announce their displeasure by dropping the K-bomb outside of court, in pleadings, and in open court, directly to the face of an alleged marsupial decision-maker. Rarely has this proven to be a winning litigation strategy.

Table of Contents INTRODUCTION I. MAN BITES DINGO II. DIDGERIDOO-INGS OUTSIDE THE COURTHOUSE III. PAPERING UP THE KANGAROO IV. THE JUDGE STRIKES BACK A. Sanctions for Uncivil Civilians 1. Removal a. By the Court b. Self-Removal 2. Contempt a. Contempt Affirmed b. Contempt Reversed c. Contempt with Another Sanction on the Side 3. Other Unhappy Endings 4. Happily Ever After B. Sanctions for Unconciliatory Counsel 1. Reprimand 2. Time and Money 3. Suspension and Disbarment 4. One That Got Away C. (But One Judge Strikes Out) V. OUT OF THE FRYING PAN AND INTO THE FIRE CONCLUSION INTRODUCTION

In law school, no professor ever told me it was a bad idea to tell a judge that he or she was presiding over a kangaroo court. Writing the preceding sentence makes the proposition seem self-evident. So imagine my surprise when I discovered dozens and dozens of judicial opinions in which unhappy litigants--and even a few lawyers--threw caution to the wind and unleashed an antipodal invective. (2) This article reports some rather colorful lapses in judgment and chronicles the consequences to litigants and lawyers who have dropped a K-bomb on a black-robed target. (3) I begin, however, with a brief review of the essential characteristics of kangaroo courts.

The term "kangaroo court" has two separate but allied meanings. Under the first, and somewhat more literal definition, the term refers to courts "assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to 'punish' teammates who commit fielding errors)." (4) Generally, the people running kangaroo courts of this first type are unlikely to be offended by references to their tribunals as kangaroo courts. In fact, such tribunals often use the term to identify themselves. (5)

Under the second, and somewhat more metaphorical definition, the term refers to a "self-appointed tribunal or mock court in which the principles of law and justice are disregarded, perverted, or parodied ..., [a] court or tribunal characterized by unorthodox or irregular procedures, esp[ecially] so as to render a fair proceeding impossible, [and] sham legal proceeding[s]." (6) This second usage is invariably intended as an insult, (7) and is nearly always perceived as such. (8)

In addition to the foregoing dictionary definitions, there are a variety of judicial definitions of the term "kangaroo court." Among other things, kangaroo-ism occurs when: police officers coerce confessions from criminal suspects, (9) courts operate without jurisdiction, (10) the accused is not given the right to be heard,11 convictions are based upon unreliable evidence or no evidence at all, (12) decision-makers are biased, (13) and hearings are "precipitously or secretly convened." (14) As well, kangaroo-ism arises at: trials that receive excessive publicity, (15) closed hearings, (16) and hearings with predetermined outcomes. (17) Judges have also opined that kangarooism is afoot when a proceeding is "a sham conducted in bad faith ... run with the cynical purpose of harming [its subject] while pretending to be fair" (18) or is "random and unauthorized," (19) when a party's advocate has a serious conflict of interest, (20) or when a mentally incompetent person is put on trial. (21)

In Garland v. State, (22) Justice Marshall of the Georgia Supreme Court provided an excellent thumbnail definition of kangaroo-ism. In that case, the trial court convicted an attorney for criminal contempt based upon statements he had given in an interview with a newspaper reporter. (23) The majority reversed, and Justice Marshall dissented:

I cannot conceive of more contemptuous statements, short of obscenity, than those made by the appellant: "That the trial court had conducted 'a sham proceeding'; that the trial court's 'conducting an inquisition was unlawful and improper'; that '[t]his is a political effort to turn a tragedy into political hay for' the trial judge and that 'it stinks'; ..." Paraphrased, appellant accused the judge of running a "Kangaroo court," acting as an inquisitor, using the court as a political vehicle, and, in sum, conducting an operation that smells to high heaven. Such statements cannot fail to obstruct justice in the South Georgia Circuit and the State of Georgia. (24) Justice Marshall's dissent leaves little doubt regarding his definition of kangaroo-ism. Litigants have also identified several salient characteristics of adjudicatory kangaroo-ism, including denial of the right to be heard, (25) bias, (26) and procedural irregularity. (27) One of the more colorful civilian descriptions of kangaroo-ism comes from State Rubbish Collectors Association v. Siliznoff. (28) John Siliznoff claimed that the actions of the board of directors of the State Rubbish Collectors Association while settling a dispute between him and another rubbish collector caused him emotional distress that manifested itself in physical symptoms. (29) At trial:

The argument to the jury by counsel for Siliznoff consisted of a bitter denunciation of the methods and motives of the directors of the association. They were accused of holding a "Kangaroo Court" with methods inconsistent with "good, decent, American business;" and with forcing their decision upon innocent people and who needed a "trouncing"; they were compared with people who poison horses, cut tires, smash windows, blackjack their victims and throw acid upon customers' clothes. It was suggested that something evil might happen to the "brave" witnesses who came to testify for Siliznoff. The arbitration procedure of the by-laws was ridiculed as illegal, arbitrary and unauthorized. (30) The jury awarded Siliznoff compensatory and punitive damages for the emotional distress he allegedly suffered from the Association's kangarooism. (31) The District Court of Appeal reversed, (32) but Siliznoff got his award back at the California Supreme Court. (33)

Finally, however, while the case law is replete with examples of adjudicatory behavior that judges, attorneys, and litigants consider to be kangaroolike, not a single one of the more than four hundred kangaroo court opinions I found explains why the kangaroo was selected--rather than, say, the warthog, the crocodile, or the armadillo--to serve as the animal symbol for decision-making malfeasance. The best I can offer is the following observation from Judge Marvin J. Garbis:

The fact is, or seems to be, that the term "kangaroo court" is not disparaging of the Australian judicial process. Rather, it appears that the term arose in the American West in the 1850's to refer to informal tribunals that dispensed instant "justice." The marsupial analogy may have been a sardonic comparison between the hopping gait of a kangaroo and the ad hoc and unpredictable leaps of logic and procedures of the American frontier tribunals. (34) While the foregoing passage comes from an article in The Green Bag rather than a judicial opinion, Judge Garbis is, after all, an Article III judge, which lends a comforting degree of authority to his marsupial musing.

Having established, with some specificity, the nature of the complaints a litigant may be attempting to make by calling a tribunal a kangaroo court, I turn to the heart of this article, which is a compendium of colorful charges of kangaroo-ism. My strategy is to present a collection dramatic incidents that are likely to have been the topic of courthouse conversation for months, if not years, after they occurred. (35) The sections that follow are devoted to out-of-court claims of kangaroo-ism, claims made in pleadings, in-court vituperations that have inspired a presiding judge to discuss or impose sanctions either on a litigant or an attorney, and accusations of kangaroo-ism made by attorneys seeking relief from disciplinary actions. However, I begin with a story that stands out even among the picaresque tales of courtroom mayhem that follow it.

1. MAN BITES DINGO (36)

   Every once in a while, man bites dog--or dingo: on rare occasion, a decision maker will identify his or her own tribunal as a kangaroo court. For example, Hearing Officer West of the Wabash Valley (Indiana) Correctional Institution Conduct Adjustment Board allegedly "referred to his court as a 'kangaroo court' and to himself as 'Captain Kangaroo'" (37) Sadly for inmate James Higgason, the Indiana Court of Appeals affirmed the district court's denial of his habeas corpus petition, ruling that the comments Higgason alleged did not demonstrate bias toward him on the part of Hearing Officer West. (38)

   A substantially more serious instance of self-identified kangarooism occurred in State v. Petterway. (39) In Petterway, a case from Louisiana, a panel composed of "four Supreme Court justices and three Court of Appeal judges sitting as Justices ad hoc" decided a criminal appeal. (40) Such mixed panels routinely heard criminal appeals in Louisiana for approximately two years. (41) The purpose was to familiarize Court of Appeal judges with criminal law and procedure, in anticipation of implementing legislative and constitutional changes which shifted jurisdiction over most criminal appeals from the Supreme Court to the Court of Appeal. (42) Justice Pro Tem Redmann, a judge of the Court of Appeal who had been assigned, under protest, to a mixed panel, questioned the constitutionality of the arrangement:

   "It is the right of the accused to be tried by a legally constituted...