Fact-Finding Run Amok: Chabad Petitions To Disqualify Judge Posner

December 31st, 2014

In November, Judge Posner issued a decision involving Northwestern University against the Chabad Lubavitch (a Jewish outreach organization) and Rabbi Dov Klein. The opinion, as par for the course with Posner, was littered with facts gleaned from YouTube and “other online material about him [that] can be obtained by Googling his name.” In an odd concurring opinion, Judge Bauer faults Posner for looking outside the record.

Now, Chabad and Rabbi Klein have filed a petition for rehearing en banc, with Nathan and Alyza Lewin as counsel. This was the father-daughter team that has litigated the Zivotofsky case. Nathan stepped aside to allow Alyza the chance to argue the second go-round.

The petition faults Posner for looking outside the record, but more strikingly asks him to be disqualified. Here is an overview of the argument:

(1) The panel decision invokes and relies on evidence “not taken from the record of the case” (as the concurring Judge acknowledges) and therefore conflicts with the established rule under which “federal appellate courts will not consider . . . evidence . . . not part of the trial record.” IBM Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). …

(3) Judge Posner should have recused himself under 28 U.S.C. § 455(a) because his “impartiality might reasonably be questioned” as a result of his having received an honorary degree from Northwestern University, the principal defendant in this case.

(4) The “tone of derision that pervades” Judge Posner’s opinion and the unilateral reliance on material that “was not part of the record” demonstrates that this appeal should have been heard by “a different . . . judge” than Circuit Judge Posner under the standard subsequently announced by Judge Posner in Stuart v. Local 727, Int’l Bhd. Of Teamsters, 2014 WL 5906562 (7th Cir. Nov. 14, 2014).

The brief focuses on 10 misstatements of fact:

1. The panel opinion misstates facts at least ten times. The opinion erroneously states:

(i) that Rabbi Klein “made no effort to limit consumption of alcohol,” (ii) “that [Rabbi Klein] . . . was himself intoxicated,” (iii) that Rabbi Klein was “plying minors with hard liquor,” (iv) that there was “underage and excessive drinking by the kids who frequent the Chabad house,” (v) that Rabbi Klein’s claim is “that the university should have told him to exercise closer supervision over alcohol consumption at the house,” (vi) that Rabbi Klein “wants a second chance,” (vii) that Rabbi Klein “had gotten away for more than a quarter of a century with an irresponsible attitude toward excessive underage drinking that went on under his nose in the Chabad house,” (viii) that Rabbi Klein “thought that he could continue to do so, with impunity, indefinitely,” (ix) that Rabbi Klein “was given multiple chances,” (x) that Rabbi Klein was “warned repeatedly, but did not react.”

None of these were in the record:

None of these factual assertions in the panel opinion was found by the District Court, none is based on evidence in the record, all are categorically false, and all would have been denied by Rabbi Klein had he been confronted with them. The “findings” stated in the panel’s opinion were baseless assertions by the author of the panel opinion and appear to reflect his preconceived opinion of Chabad- Lubavitch and Rabbi Klein – derived entirely from the author’s own improper extra-record research. …

In his concurrence Judge Bauer noted what is obvious from even a superficial reading of the panel opinion: The decision is not based on the appellate record but on Judge Posner’s personal excursion into “youtube” and other websites. The facts recited in the panel opinion – disparaging to Rabbi Klein personally and to Lubavitch-Chabad generally – are, as Judge Bauer observed, “not taken from the record of the case.”

Posner even merges different plaintiffs, and describes Rabbi Klein in a way to show bias:

2. The panel opinion ignores and eradicates the separate legal interests of the organizational plaintiffs by declaring that “for simplicity we’ll pretend that Rabbi Klein is the only plaintiff.” …

Moreover, Judge Posner’s own investigation of Rabbi Klein’s appearances on “youtube” and his individual appraisal of Rabbi Klein from the “youtube” films as a “colorful figure” who is “lively, engaging, eminently approachable, enthusiastic, and one might even say charismatic” exceeds the permissible bounds of judicial authority assigned to a federal appellate judge. This evaluation of Rabbi Klein appears to have influenced Judge Posner in crafting an opinion that included a wealth of wholly erroneous factual assertions. See pp. 12-13, infra. Indeed, the independent investigation made unilaterally by the judge would warrant disqualifying him from rendering any judgment regarding Rabbi Klein. See Costello v. Flatman, LLC, 558 Fed. Appx. 59 (2d Cir. 2014).

And this reliance on facts is reversible error:

The panel opinion fails to begin with the usual recitation when this Court reviews summary judgments – i.e., that the appellate court (like the trial court) must view all facts “in a light most favorable to the non-moving party” (Burnell v. Gates Rubber Co., 647 F.3d 704, 707-708 (7th Cir. 2011)) and that any doubt regarding a material fact must be resolved in favor of the non-moving party (Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994)). The reason for this omission is obvious. The opinion contains an abundance of factual assertions that are wholly unsupported by any evidence whatever, and many are false. None of them was found by the District Court when it purported to follow the appropriate summary-judgment standards.

We have enumerated at pages 3-4, supra, ten (10) such factual assertions that Rabbi Klein and the other appellants deny. None of these assertions has any probative evidentiary support in the record, and none was relied on by the District Court. All are stated in the panel opinion as established facts.

This Court should, in the interest of fairness and consistent application of its standards of review of summary judgments, vacate the panel opinion that violates these standards and rehear the case on its proper appellate record.

In addition to challenging Judge Posner’s fact-finding, the petition also raises several grounds for which Judge Posner should have disqualified himself.

First, the brief cites the fact that Posner received a degree from Northwestern.

An extrajudicial “factor” that also requires recusal of Judge Posner from this appeal is his receipt of an honorary degree of Doctor of Laws from Northwestern University in 2001. Because this Court’s standard practice is not to disclose the names of the judges who would be hearing this appeal until the morning of the oral argument, counsel for the appellant did not know before the morning of the oral argument that Judge Posner was on the panel that would be hearing the appeal. Nor did counsel learn, until after the decision was rendered (just 10 calendar days after the oral argument), that Northwestern University – the principal appellee in this case whose counsel presented oral argument – had conferred an honorary degree on Judge Posner. … Conferral of an honorary degree is a favor that naturally inclines the recipient to prefer the institution that gives him or her that honor

This strikes me as really, really weak. There are a lot of reasons Judge Posner should recuse in cases he has opined on before. But receiving a degree from the University? I know judges who teach as adjuncts, and draw a salary, will recuse if that university is a party. But the receipt of an honorary degree 13 years ago seems really, really attenuated.

Though, more interestingly, the brief argues that Posner should recuse for citing evidence outside the record, citing an opinion by Posner.

In Stuart v. Local 727, Int’l Bhd. of Teamsters, 2014 WL 5906562 (7th Cir. Nov. 14, 2014), this Court, in an opinion by Judge Posner, disqualified District Judge Shadur on remand of a case because the District Judge had “instruct[ed] his law clerk to request the plaintiff’s EEOC charge from the plaintiff’s lawyer, without telling the defendant, even though the charge was not part of the record” and because the Court found “unmistakable (and to us incomprehensible) tone of derision that pervades his opinion.” Similar conduct and attitude appear in this case.

Without telling the appellant, Judge Posner has relied on material that is “not part of the record” in this case. And the panel opinion that he has authored is at least as singular in its “tone of derision that pervades his opinion” as was the District Court’s opinion in Stuart v. Local 727, Int’l Bhd. of Teamsters, 2014 WL

Finally, the petition makes a vague reference that perhaps the panel was not randomly assigned.

(5) The scheduling of the oral argument in this case – in which the date for oral argument was fixed six days before the Appellants’ Reply Brief was filed – suggests that the argument date was deliberately scheduled so that a particular panel of Circuit Judges would hear the appeal. Such deliberate scheduling violates this Court’s procedures regarding random assignment of appellate panels.


Under the briefing schedule set by the Clerk of the Court in this case the appellant’s Reply Brief was due to be filed on October 8, 2014. While appellant’s counsel was busy drafting the Reply Brief, he was notified on October 2, 2014, that oral argument would be held on October 28, 2014.

There was, to be sure, no urgency to this appeal. It was an appeal from dismissal of a complaint in a civil case. Appellant’s counsel expected that, pursuant to Circuit Rule 34 and this Court’s standard procedures, a panel would be randomly selected by the Clerk after the Reply Brief was filed. Indeed, appellant’s counsel had not been asked to submit any written indication of dates when he would be unavailable. (In fact, appellant’s counsel returned from overseas travel on the evening of October 27 and, if he had been given an opportunity, would have requested that oral argument not be held, for this reason, on October 28, 2014.)

Appellant’s counsel has appeared and argued orally in every Circuit of the United States Court of Appeals. Ordinarily, in counsel’s experience, oral argument is held not less than one month after the Appellant’s Reply Brief is filed. In this case, it was held 20 days after the filing of Appellant’s Reply Brief. This extraordinary scheduling gives rise to reasonable doubt regarding the process by which a panel was to be randomly selected.

Any 7th Circuit litigators wish to opine? Judge Easterbrook has weighed in on this topic before.

Will Judge Posner write a statement concurring in the denial of rehearing en banc explaining himself? Will any polled judges vote to rehear it? This is not the first time that a petition for rehearing en banc has been filed against Judge Posner for his fact-finding run amok.

Remember the judicial fashion show? En banc was petitioned for, a response was requested, but it was denied, with concurrals and dissentals flying around Chicago. Stay tuned.

Update: I heard from a few lawyers who practice before the 7th Circuit. They told me this scheduling practice is common, and is in their handbook. In light of this practice, Lewin’s argument seems really off-base.