Judge's threat to add lawyer to pro bono list could be seen as punitive, 6th Circuit says

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A federal appeals court has concluded that a federal judge’s comments about a lawyer for a bias plaintiff were "within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display."

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled that U.S. District Judge Bernard Friedman of the Eastern District of Michigan was not required to recuse himself before tossing the discrimination case against General Motors. But his threat to place the lawyer on a pro bono list “could easily be seen as punitive,” the court said.

Law360 and Bloomberg Law have coverage of the 6th Circuit’s per curiam opinion, issued Nov. 18.

Friedman had dismissed the federal case because a nearly identical suit filed in state court had settled. The 6th Circuit affirmed that decision, along with a decision requiring the plaintiff to pay costs.

The plaintiff, Nosoud Alemarah, had alleged that she was harassed and fired because she was a Muslim woman. In January 2020, Friedman scheduled a hearing on a motion for summary judgment at the Wayne State University Law School.

Alemarah’s lawyer, Raymond Guzall III, objected. Neither the parties’ lawyers nor the judge “would be able to completely set aside the theater atmosphere of attempting to educate students and play to the crowd,” Guzall had asserted. His objection said law school arguments “will be overly drawn out and skewed for the purposes of educating and playing to the students, as will the commentaries of the court.”

Guzall also said his client feels extremely uncomfortable appearing before a large crowd of students.

In a letter to Alemarah’s lawyer, Friedman agreed to remove the case from the law school docket but objected to the lawyer’s characterization of how the hearings would play out.

“Your additional comments I found to be highly offensive and entirely uncalled for,” Friedman wrote. “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. … 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.”

Friedman then canceled the motion hearing and ruled in General Motors’ favor based on the briefs.

In his order denying the motion to recuse, Friedman said the “plaintiff’s imagination has gotten the better of her” as to whether the court’s letter had been “angry,” and that “plaintiff is hallucinating” as to her argument that he had retaliated against her and her counsel.

The appeals court said it disagrees that Friedman’s comments, particularly the “hallucination” one, were ordinary admonishments. And a reasonable observer could conclude that Friedman’s statements in the letter about the lawyer’s comments being “highly offensive” are an expression of anger.

Friedman’s bid to place the lawyer on the pro bono list was “closer to the line,” the appeals court said. “That action could easily be seen as punitive, notwithstanding Judge Friedman’s assertion that its purpose was to educate counsel about his ‘professional obligation[s].’ Viewed in the context of the frivolousness of several of Alemarah’s motions, however, we conclude that the cited comments were the sort of ‘expressions of impatience, dissatisfaction, annoyance and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display,’ ” the appeals court said, using a quotation from a prior decision.

“Thus, though we by no means condone the court’s actions, we hold that the court did not abuse its discretion in denying the motion to recuse.”

Circuit Judge Raymond Kethledge wrote a concurrence that called Friedman’s letter to the lawyer “at best an overreaction.” Kethledge was previously on President Donald Trump’s short list for the U.S. Supreme Court.

Kethledge said the judge’s desire to provide law students with a chance to observe oral arguments was commendable, as properly conducted oral arguments at a law school can benefit everyone concerned.

But Kethledge said he had some sympathy with the lawyer’s reservations.

He wrote: “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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