Kate Marquess

excerpted Wrom: CAXZOWCONEUQZAAFXISHJEXXIMQZUIVOT Blasts 8th Circuit's 'Disrespect' Opinion Reversed Black Jurist in Racially Charged Case , 1 ABA Journal E-Report 6 (August 16, 2002)

U.S. District Judge Charles A. Shaw has issued a scathing criticism of the St. Louis-based 8th U.S. Circuit Court of Appeals, charging disrespect and race-based decision-making in an opinion reversing one of his rulings.

The case involves a white police officer who sued the St. Louis Board of Police Commissioners for violation of substantive due process and malicious prosecution. Former police Sgt. Thomas Moran was demoted after his acquittal in the beating of a mentally impaired black teenager, and he claimed the black police chief manufactured evidence to "get the white sergeant."

Judge Shaw, who is also black, dismissed the case. Moran v. Clarke, No. 4:98- CV-556 CAS (Aug. 2).

The 8th Circuit found in a 6-4 decision that Moran had a valid substantive due process claim against the police board. The court also said Shaw's relationship with Police Commissioner Anne-Marie Clarke, another prominent African-American attorney in St. Louis, "troubled" the judges. The appellate court asked Shaw to reconsider recusing himself from the case.

Shaw said the relationship, one of professionals who socialize at bar activities, did not merit recusal, but he recused himself anyway because of the court's disrespect, he wrote.

"[A]t present, this court remains offended, insulted, troubled and confused not only by the attack on its impartiality, but also by the disparaging tone of the majority opinion, its conflict-supportive word selection, and its blatant refusal to acknowledge the race of the participants, much less the underlying racial issues so clearly present in this case," Shaw wrote in his order.

"While the majority claims to have the 'utmost faith' in this court's impartiality, it strongly suggests a lack of faith," Shaw wrote. He then quoted a definition of faith from the Bible and William Shakespeare's Othello on the damage done to a man by impugning his good name.

The 8th Circuit's majority of six white men concluded that Moran established the "improper consideration of his race" by the police department. The minority, including a black man, two white men and a white woman, found no racial motivation.

"The undersigned is left with the deeply troubling impression that had I been white, or had plaintiff Moran been African-American, and all the other facts of this 'hard case' remained the same, the majority's opinion on the recusal issue would have been significantly different," Shaw wrote.

Judge Clarence Arlen Beam, who wrote the 8th Circuit opinion, could not be reached for comment.

Priscilla F. Gunn, an attorney for the defense, says Shaw's order was very unusual, but she wasn't surprised by it. "I knew that Judge Shaw was upset by the opinion, and I also felt the 8th Circuit language was really strong and didn't need to be that strong."

Others found Shaw's response appalling. "That's not acting like a judge," says Jules Gerard, a constitutional law professor at Washington University School of Law in St. Louis. "He's acting like a petty politician."

Legal experts also were surprised by the 8th Circuit's findings on substantive due process, a rare claim under the 14th Amendment's due process clause that provides a constitutional guarantee against arbitrary and unreasonable action.

"Unfortunately, it's becoming more common," Gerard says. "It's an open-ended grant of power for judges to do whatever they want to." Substantive due process leaves out the due process part of the clause, Gerard says. "When judges say, ' This is unconstitutional because of substantive due process,' they're saying, ' You cannot deprive them of this liberty, period.' ... The due process part drops out."

"It's an out-of-whack decision. But that doesn't mean it's wrong," says D. Bruce La Pierre, also a law professor at Washington University. He says the opinion confuses substantive due process with procedural due process.

"When you've got a 14th Amendment claim, it doesn't attach unless you've got a liberty or a property interest. Here, that interest is the right to be free from manufactured evidence," La Pierre says. "It is a denial of procedural due process to manufacture evidence. The correct remedy is a new proceeding without that evidence."

Stanley Goldstein, an attorney for Moran, says the decision isn't so surprising.

"It doesn't break new ground, but it certainly fleshes out what the (U.S.) Supreme Court has been telling us in the area of substantive due process."

The case was reassigned to Judge Catherine Perry, who recused herself because of relationships with parties to the case, including Ronald Henderson, who was the chief of police but is now the U.S. marshal for the eastern district of Missouri.

"We really feel like none of the judges are going to take the case, " Goldstein says. "We're suspicious that the judges are quite in a quandary as to whether they should handle the case of a U.S. marshal."

Should all the district's judges recuse themselves, the chief judge of the district must request the case be reassigned to a judge outside the district.