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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. |
