Petition for a Writ of Mandamus to the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 5722 -- Brian Barnett Duff, Judge.
Before CUMMINGS, BAUER, and EASTERBROOK, Circuit Judges.
Plaintiffs in this class action contend that the mental health care system of Illinois violates the Constitution of the United States. With the consent of the parties, the district judge appointed a panel of three experts to investigate the state's institutions and programs. The panel's charge permits its members and aides to meet with patients and state employees outside the presence of counsel, for otherwise they could not collect reliable data. Later the panel began to meet in private with the judge, without such a compelling reason. When defendants learned that one of these meetings, which lasted 3 1/2 hours on September 7, 1994, was dedicated to giving the judge a preview of the panel's conclusions, and to persuading the judge that the panel's methodology was sound, defendants asked the judge to disqualify himself under 28 U.S.C. sec. 455. The judge declined, and this petition for a writ of mandamus followed.
Plaintiffs believe that the defendants waited too long (trial is set for next month) to seek disqualification. Delay can be fatal, although after Liljeberg v. Health Service Acquisition Corp., 486 U.S. 847 (1988), passage of time is not conclusive if the justification for disqualification is compelling. Compare United States v. Murphy, 768 F.2d 1518, 1539 (7th Cir. 1985), with SCA Services, Inc. v. Morgan, 557 F.2d 110, 117-18 (7th Cir. 1977). Although the defendants have known for at least a year that the experts met from time to time with the judge, the judge described these occasions as administrative and "social". Not until two weeks before seeking disqualification did the defendants learn -- by acquiring a detailed agenda prepared by one of the panel members -- that at least one meeting had covered the merits of the case, rather than casual chitchat and details such as reimbursement of expenses. Defendants sought to learn more about what had happened at the September 7 meeting, but the judge forbade inquiry. He quashed subpoenas issued to the participants, and he invoked what he called a "judicial privilege" to shield what had been said. Thus all we have are possibilities. But these possibilities justify a request for emergency relief. See United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985); Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985). Indeed, we have held, parties who know of a problem under sec. 455 but permit the trial to occur may not seek relief later. Murphy, 768 F.2d at 1539-41. Defendants' request is timely.
Whether the meeting was a disqualifying event depends on what transpired. Canon 3A(4) of the Code of Conduct for United States Judges provides: "A judge should . . . except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." Did any meeting between judge and experts touch the merits, or procedures affecting the merits? We cannot know, because the district judge has blocked discovery from other participants and has declined to state on the record his own memories of what happened. The judge did not elaborate on the nature, extent, or legal support for his claim of "judicial privilege," but a phrase of that kind usually refers to the deliberative process. No privilege covers arrangement of administrative details, such as where an expert witness will stay while doing research or who will provide computer time to analyze the data. To invoke a privilege is therefore to confess that the discussions covered the substance of potential testimony and the conduct of the litigation --and if this is not so in fact, it is nonetheless what we must assume, because no evidence in the record undermines the inferences naturally to be drawn from the outline for the September 7 meeting. The outline enumerates "three irreducible obligations of the modern state hospital" and ticks off (in a section captioned "General Findings") numerous ways in which the panel believes Illinois falls short. This outline covers subjects at the core of the litigation; indeed, it served the panel as the draft outline for its final report.
Defendants believe that a private briefing on the merits leads to disqualification under 28 U.S.C. sec. 455(b), which provides that a judge must "disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding". Defendants contend that the experts imparted to the judge "personal knowledge of disputed evidentiary facts". Plaintiffs have two replies: first, that the private meetings were authorized by the parties' consent reflected in the agreed order appointing the panel; second, that disclosures in chambers are not "personal" knowledge. Neither of these is sound.
Let us suppose that the parties consented to private investigation by the judge. That consent would be ineffectual under 28 U.S.C. sec. 455(e): "No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b)." What is more, there was no such consent. Early drafts of the order appointing the experts and a professor of law who was called "the Manager" provided that "[t]he Panel and Manager may communicate with the Court at any time without the inclusion of counsel." This language was deleted before the order was entered. According to plaintiffs, it was deleted as redundant in light of para. 3 of the order, which reads:
(a) The Manager and the [Manager's] Assistant shall coordinate and facilitate the investigation and reports of the Panel. In addition to the other duties specifically stated in this Order, the Manager and the Assistant will obtain and coordinate access for the Panel to DMHDD [Department of Mental Health and Developmental Disabilities] mental health centers and other facilities, programs and agencies, facilitate the Panel's collection of other information, facilitate communication between Panel members, as requested, make travel and lodging arrangements for the Panel, and report to the Court and the parties as to the progress and status of the Panel's investigation.
(b) By appointing the Manager, the Court is not relinquishing its exclusive prerogative to instruct the Panel regarding the applicable law or the appropriate focus of or limits to either the Panel's investigation or the opinions to be expressed in its report.
Paragraph 3(a) permits the Manager to "report to the Court and the parties", not to report to the judge in secret, and it does not even hint that the experts (who were likely to become witnesses) may meet privately with the judge. Paragraph 3(b), on which plaintiffs lay principal stress, states that the judge may direct the experts, but again it does not say or imply that the judge may receive information and deliver instructions in secret. Rule 706(a) of the Federal Rules of Evidence specifies the right way: "A witness so appointed [by the court] shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate." This places the substance of the instructions on the record and ensures that the parties know what is happening and can make appropriate suggestions, motions, and objections. The judge has not attempted to reconcile with Canon 3A(4) or Rule 706(a) the procedure he used in this case.
As for the question whether information secured in chambers can be "personal" knowledge: although sec. 455 is principally concerned with knowledge that is "extrajudicial" in the sense that the judge acquires it outside a courthouse, see Liteky v. United States, 114 S. Ct. 1147 (1994), the Court rejected the argument that only such information can lead to disqualification. Id. at 1157. The point of distinguishing between "personal knowledge" and knowledge gained in a judicial capacity is that information from the latter source enters the record and may be controverted or tested by the tools of the adversary process. Knowledge received in other ways, which can be neither accurately stated nor fully tested, is "extrajudicial." Thus information a judge learns at a workshop devoted to a subject is extrajudicial, In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992); Hathcock v. Navistar International Transportation Corp., 53 F.3d 36, 41 & n.4 (4th Cir. 1995), even though the workshop is open to other persons, and evidence could be taken about the proceedings. Off-the-record briefings in chambers, by contrast, leave no trace in the record -- and in this case the judge has forbidden any attempt at reconstruction. What information passed to the judge, and how reliable it may have been, are now unknowable. This is "personal" knowledge no less than if the judge had decided to take an undercover tour of a mental institution to see how the patients were treated. Instead of going himself, this judge appointed agents, who made a private report of how they investigated and what they had learned. Mandatory disqualification under sec. 455(b)(1) follows.
Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir. 1980), on which plaintiffs rely, is not to the contrary. That case did not deal with sec. 455(b)(1) and did not approve ex parte meetings with expert witnesses scheduled to testify at trial; instead the court addressed a post-trial meeting between the judge and a political body that would be charged with implementing the relief. Even so the court denied a motion for disqualification under 28 U.S.C. sec. 455(a) only because ...