Sixth Circuit Affirms Denial of Recusal Motion, But “With Some Concerns” About Judge’s Ex Parte Letter to Attorney

In Alemarah v. General Motors, LLC, No. 20-1346 (6th Cir. Nov. 18, 2020) (per curiam), the panel affirms summary judgment in an employment discrimination case, but pauses over the district court judge’s “out of the ordinary” ex parte letter to one of the lawyers.

The judge’s letter was prompted by the lawyer’s reticence about staging oral argument on summary judgment at Wayne State University School, before a classroom of law students. “[Plaintiff]’s counsel sent the case manager an email in which he asserted at some length that the law-school environment would be difficult for his client emotionally.” The lawyer worried about “the theater atmosphere” of a classroom, participants “play[ing] to the crowd,” and arguments being “overly drawn out and skewed for the purposes of educating and playing to the students.” Counsel requested that “if oral argument is needed by the court in this case that oral argument be held in a court room.”

The judge wrote the lawyer back, three days later, expressing exasperation with the lawyer’s objections:

“Your additional comments I found to be highly offensive and entirely uncalled for. They reveal your lack of understanding of the purpose of hearing motions at a law school and your unfamiliarity with how the Court conducts these proceedings. Contrary to your uninformed assumptions, there is no ‘theater atmosphere,’ no one ‘play[s] to the crowd,’ the oral arguments are not ‘overly drawn out and skewed for the purpose of educating and playing to the students,’ and the attorneys are not called upon to ‘perform.’ Motion hearings held at a law school are official court proceedings, and the same procedures and rules, including those concerning decorum, apply there just as they do in the courtroom.

*  *  *  *

“Your objection to holding motion hearings at Wayne makes clear to me that you do not appreciate your professional obligation to participate in activities that are beneficial to the public. I therefore intend to ask Chief Judge Denise Page Hood, who is also the chair of this Court’s pro bono program, to place your name on the list of attorneys who are to be assigned cases through this program.”

Counsel moved to recuse the judge after this rhetorical cascade. The court denied the motion, asserting that “plaintiff’s imagination has gotten the better of her” as to whether the court’s letter had been “angry”; and that, “[a]gain, plaintiff is hallucinating” about any retaliatory motive by the judge.

Although the Sixth Circuit affirms summary judgment and denial of the motion to recuse, the panel expresses strong reservations about the district court judge’s behavior. “We disagree with the court’s assertion that its comments as described above— particularly the ‘hallucination’ one—were merely ‘ordinary admonishments’ … And a reasonable observer could conclude that the court’s statement in its letter to [plaintiff]’s counsel (which was itself out of the ordinary)—that ‘[y]our additional comments I found to be highly offensive and entirely uncalled for’—was an expression of anger on the court’s part …. [Even] [c]loser to the line was [the] Judge[‘s] … statement, in the same letter, that he intended to ask the court’s chief judge ‘to place your name on the list of attorneys who are to be assigned cases through’ the court’s pro bono program. That action could easily be seen as punitive, notwithstanding [the judge’s] assertion that its purpose was to educate counsel about his ‘professional obligation[s].’”

Concurring, Judge Kethledge offers his own professional experience in solidarity with plaintiff’s counsel. “As a practitioner, I participated in oral arguments held at law schools; and in one of them, I distinctly recall, the proceedings indeed focused more on playing to the gallery than they did on finding the right answer to the question at hand. (Of course no one complained to the court afterward.) That does not mean courts should never hold arguments outside a courtroom. But a court must remember that our cases are vastly more important to the parties than they are to any observer.”

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