The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Three years ago, I blogged about a Nevada federal district judge named Robert Jones who delayed issuing a ruling until immediately before Nevada would have to issue ballots, in what looked like an attempt to prevent Nevada from having time to appeal his decision. (Immediately before the ballots were to be printed, he orally ruled that Nevada's decades-old statute requiring a "None of These Candidates" option on the ballot for statewide elections was likely unconstitutional and should be enjoined.) The 9th Circuit granted a stay, and Judge Stephen Reinhardt issued a concurrence laying out the timeline and stating that Judge Jones's "dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots." Jones responded by accusing Reinhardt of breaking the rules, and each of them accused the other of "assumption of power by one individual which is not acceptable in our judicial system."
We reluctantly conclude that we must reassign this case. The errors made by the district judge may suggest to a reasonable outside observer that reassignment "to maintain the appearance of justice" is necessary. The reasons for our conclusion are apparent from what we have written above, and we review them only briefly here. The judge sua sponte sought to limit the effectiveness of representation by insisting unreasonably that only two of Plaintiffs' chosen out-of-state attorneys be given pro hac vice status. See In re United States, No. 14-70486, 2015 WL 3938190, at *8 (9th Cir. June 29, 2015) ("At minimum, a court's decision to deny pro hac vice admission must be based on criteria reasonably related to promoting the orderly administration of justice, or some other legitimate policy of the courts." (citations omitted)). The judge did this despite the plea of Plaintiffs' Nevada lawyer that he needed the expert assistance of out-of-state counsel who specialize in NVRA litigation, and over the objection of one of the would-be out-of-state counsel that the judge's ruling would prevent depositions from being taken in Nevada by associates in his firm. The judge's actions came very shortly after the Ninth Circuit had deemed "troubling" his comments regarding out-of-state counsel in another case involving a different Nevada agency. Henry A. v. Wilden, 678 F.3d 991, 1012 (9th Cir.2012). Based on this and other cases, a reasonable observer could conclude that the judge's feelings against out-of-state attorneys are both well-established and inappropriately strong. See Great Basin Res. Watch v. United States Dep't of the Interior, No. 3:13-CV-00078-RCJ, 2014 WL 3697107, at *3 (D.Nev. July 23, 2014) (this same judge expressly stated he would "presume[ ] that the out-of-state lawyers are unwilling to obey the ethical strictures that govern all other attorneys"). Further, the judge sua sponte and without notice dismissed Plaintiffs' case based on a motion the State had previously withdrawn, pursuant to a joint stipulation by the parties. Still further, the judge misread the complaint when he concluded that Plaintiffs had failed to allege that they had changed their behavior and had thus suffered no injury, when Plaintiffs had alleged that they had expended additional resources on voter registration as a result of the State's violation of Section 7. Finally, the judge dismissed the complaint without leave to amend despite Plaintiffs' explicit request that they be allowed to amend their complaint if the judge found its allegations insufficient.
In the 2012 case involving the "None of These Candidates" option, Jones's behavior at least made strategic sense: If he could run out the clock, then the appeals court might not be able to reverse him. But Jones's behavior as recounted in the paragraph is not strategic. It's bizarre. This is the sort of behavior that sets up a judge for removal from a case on account of bias. Limiting out-of-state attorneys sua sponte looks ridiculous and petty. Assuming he wanted to rule against the plaintiffs, he could allow the plaintiffs all their attorneys and still rule against them. Same with misreading their complaint. I'm sure he could have correctly read their complaint and still come up with some basis for rejecting their claims. That is, a wily judge who wanted to rule against the plaintiffs could have done so without raising all these red flags and held onto this case for years.
There are other situations in which judges show their biases even though that might increase the chance of reversal or removal. Notoriously, in the days of segregation some district judges in the 5th Circuit acted in biased ways against civil rights plaintiffs even though they knew it would make reversing them all the easier. But they were staunch segregrationists. I certainly hope that Jones is not as committed to his views on voting as they were (note I am not, of course, saying that his views are the same as theirs—merely comparing the strength of their convictions, whatever those convictions may be).
There is an argument that as citizens we should prefer biased judges who make their biases obvious to those who reach the same result without making their biases obvious. (Of course, we should want to avoid biased judges in the first place. But if some judges are biased, we might prefer that we know about it.) So maybe, under the circumstances, we should be happy with Judge Jones's unvarnished behavior.
But what is fascinating is that Jones is willing to do all this in the first place. Why? Can he just not control himself? Subtlety seems not to be his strong suit.