Experts: Pulling judge from case is rare; impeachment even rarer
It's rare for a federal judge to get yanked from a case, and twice in four years gets everyone's attention.
The 3rd U.S. Circuit Court of Appeals was sending a message in its decision this week to remove U.S. District Judge Arthur J. Schwab from the high-profile West Penn Allegheny Health System--UPMC case. The court didn't spell it out, however, issuing the order with no explanation. And though it constitutes a rebuke to the judge, coming after he was removed from the case of Cyril H. Wecht in 2008, it has limited impact in that federal judges are almost never removed from the bench.
Appellate courts have said that only under "rare and extraordinary circumstances" should a judge be removed from a case, said Charles Geyh, a professor of law at Indiana University's Maurer School of Law.
The case between local health care giants UPMC and West Penn Allegheny started in 2009, when West Penn accused UPMC and Highmark of working together to thwart competition. Last year, Highmark invested in West Penn Allegheny, which has since dropped its new partner from the lawsuit.
Last month, West Penn lawyers sought reconsideration on a part of the case, saying that West Penn "respectfully urges the court to correct its misstatements to avoid any possible appearance of bias."
Judge Schwab responded that any judgment in favor of UPMC would be perceived as bias, placed the case on hold and gave West Penn Allegheny the opportunity to appeal to the 3rd Circuit Court.
West Penn lawyers said in the petition to the appeals court that the court repeatedly accused West Penn of asserting its claims against UPMC in bad faith; repeatedly suggested to UPMC that it should assert counterclaims against West Penn or add parties; and repeatedly mischaracterized West Penn's pleadings and legal positions.
They concluded that the court's actions "more closely resemble that of an invested party litigant than of an impartial judiciary."
UPMC supported the judge in its filings.
The 3rd Circuit ordered that Judge Schwab be removed from the case, and Thursday U.S. District Judge Joy Flowers Conti was assigned to replace him.
When a new judge comes into a case midstream, it's typical for that judge to schedule a conference with attorneys to discuss the status of the case, according to the federal court clerk's office. The transfer of the case to a new judge will mean delays in the proceedings.
Judge Schwab declined a request for comment Thursday. West Penn said it would have no comment, and UPMC did not return a message seeking comment.
Judge Schwab has been criticized previously for the way he runs his courtroom. Widely acknowledged as intelligent and hardworking, it is his style that has drawn fire. The 3rd Circuit judges referred to the rancorous tone of the courtroom when it removed him from the Wecht case (in which the former Allegheny County coroner was accused of using office resources for personal gain) after the first trial ended in a hung jury. They described some of his decisions in the Wecht case as "inappropriate," "troublesome" and "strange and unsettling." After a new judge tossed out search warrants, prosecutors decided not to go forward with the case.
In the 2008 Almanac of the Federal Judiciary, in which lawyers can comment anonymously about judges, he was termed "volatile," "egotistical" and "imperious."
The 3rd Circuit Court also criticized him in 2004, when its judges threw out a Schwab ruling, saying he copied his opinion "nearly verbatim" from a proposed opinion written by lawyers for the defendants.
The repeated skirmishes with attorneys can make the judge seem to be defensive, said Arthur D. Hellman, a Pitt law professor and expert in judicial ethics. "It's now starting to look personal, and that disserves the appearance of justice to have a judge fighting in this way with one of the litigants."
But as this is one of many cases the judge has handled, "I don't know that I would draw a conclusion," he said, though "it's two, which is more than most judges get in a career. If you were to get a third, I would say it's a pattern. It raises suspicions about his temperament."
Mr. Geyh said that when an appellate court transfers a case to another judge instead of sending it back to the same judge, it indicates a serious problem, although he stressed, as did all the law experts, that the court is not necessarily saying it sees bias, only that the appearance of bias is present.
"The norm is you send it back to same court. What is abnormal is that you ship it to different judge."
A reason for doing so, he said, is that "you think you just can't get a fair shake. Since crawling inside the head of a judge is impossible and a little icky, all you can do is look at outside manifestation of their conduct and say would a reasonable person, looking at this behavior, think the judge can't be fair?"
Pitt law professor John M. Burkoff said that the fact that the appellate court didn't explain its decision is also unusual.
"It was enough of a slap in the face for the 3rd Circuit to do this -- it would have been worse and harsher if they had said why."
Judicial experts all agreed that this was far from grounds for more drastic action.
"This is not the stuff of impeachment," Mr. Hellman said, pointing out that there are federal judges who have been removed from cases multiple times.
Federal judges can only be permanently removed through impeachment in the U.S. House of Representatives for "high crimes and misdemeanors" and a U.S. Senate vote to remove them from office. The Senate has done that only 19 times, resulting in seven acquittals, eight convictions, three dismissals and one resignation with no further action. The first federal judge to be removed was in 1804, the most recent in 2010.
Kate Scott, an assistant historian in the Senate Historical Office, said that the definition of high crimes and misdemeanors has been the crux of debate over what constitute grounds for removal. Some constitutional scholars believe that only crimes, or actions that can bring indictment, should qualify. But historically it's often depended on other factors.
"It is a political trial," she said. "They are not determining whether these are actual criminal charges. ... The first judge to be found guilty and removed, John Pickering, back in 1804, was known to be an alcoholic, and was charged with being senile. Those are not criminal offenses, but those who managed the trial said he was violating the public's trust."
Federal judges can also be disciplined by a Circuit Judicial Council, which can be convened if allegations of misconduct are made.
"If for example, a judge is being abusive, discourteous or singling out a party in a way that suggests partiality, you can file a complaint against the judge," said Mr. Geyh.
No one has raised a conflict of interest question in the Schwab case, and West Penn did not posit any reason that the judge would favor UPMC in its filings.
Allegheny County Common Pleas Court records show that Judge Schwab, while in private practice at law firm Buchanan Ingersoll, represented Braddock Medical Center in a tax assessment case in 1997.
Braddock Medical Center became part of UPMC in 1996, according to hospital system spokeswoman Gloria Kreps.
Judge Schwab and other lawyers were listed as the attorneys of record for the hospital as it fought an assessment challenge brought by Braddock Borough.
The docket shows that Judge Schwab entered his appearance on behalf of the medical center on Jan. 16, 1997. The case was concluded that August when Braddock withdrew its appeal.
First Published March 30, 2012 12:00 am