Opinion
Nos. 04-3044, 04-3066.
Filed: January 30, 2004. Pursuant to Sixth Circuit Rule 206.
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, and COOK, Circuit Judges.
ORDER
A majority of the non-recused judges in active service having voted sua sponte to reconsider and rescind the order of January 13, 2004, granting hearing en banc in Case No. 04-3044, all pending motions and filings are referred in the first instance to the assigned panel, for such action as it finds appropriate.
IT IS SO ORDERED.
There could be some controversy over the extent to which the appeal initially filed "jointly" by Mr. Williams and Mr. Roe on January 13 should have been treated as a single matter, even though it clearly dealt with matters considerably, if not totally, identical to those that had been dealt with by separate death-penalty panels on January 12. However, this court chose, without ultimate objection, to treat Roe's status as being an appellant within the "initial hearing en banc" granted by the non-recused active members of the court. Thus, at a minimum, the appeal lay within the competence of the en banc court, and the en banc court was free, on motion by a judge of that court, to reconsider and rescind its previous action.
To the extent that Judge Clay challenges the decision of a judge to vote rather than to recuse on a specific matter, that is a matter within the discretion of the individual judge. The court has no power to make a "decision to permit Judge Cook to participate in the instant vote," nor to prevent her from participating. To the extent that I understand the matter, Judge Cook never had any connection whatsoever with any matters concerning John Glenn Roe in her previous service on the Ohio Supreme Court. Lewis Williams is no longer alive, and thus no matter concerning him can impact the consideration of Roe's case. There is thus no reasonable ground to question her decision to vote on the matter that was properly before the judges of the en banc court.
Let us be clear on what has just transpired. This Court extricated the appeal relating to Petitioner John Roe's claim under 42 U.S.C. § 1983 from Case No. 04-3044 in which en banc review had already been granted on January 13, 2004; assigned it a new case number; and conducted a vote on whether to rescind the January 13 decision to hear the appeal en banc. The adoption of this procedure, and the ensuing vote to grant the rescission by a six to five vote, has nullified the votes of the non-recused active judges cast on January 13 and has created the appearance of manipulation and impropriety. Accordingly, I dissent.
In Williams v. Taft, Case No. 04-3044 (6th Cir. Jan. 13, 2004), Lewis Williams and John Roe filed a complaint under 42 U.S.C. § 1983 challenging execution procedures. The district court refused to entertain the lawsuit, construing it as second or successive habeas corpus petitions that could not be heard in the district court without the prior approval of this Court. After the district court transferred the matter to this Court, and Williams' and Roe's purported habeas claims were assigned to separate three-judge panels, Williams and Roe petitioned for initial en banc adjudication of the district court's decision that effectively dismissed their § 1983 claims. At that point, this Court arguably had the option of deeming Roe's en banc petition as duplicative of, or superseded by, the three-judge panels' review, but did not do so. This Court also arguably had the option of uncoupling Williams' and Roe's respective § 1983 claims for purposes of appellate review, but it chose not to. Instead, this Court established that appellate review of Williams' and Roe's respective § 1983 claims would be considered jointly under a unitary case number, separate and apart from the appeal considered by the three-judge panels. A poll of the non-recused, active judges was then conducted on whether to hear this case en banc. By a six to four vote on January 13, the Court granted the petition for initial hearing en banc. Judge Cook did not participate in that vote, having recused herself on her own initiative.
Prior to this Court's vote to rescind the vote of January 13, the only issue left open was Roe's motion to stay the execution, which had been a joint motion with Williams. For the reasons stated in my dissent in Case No. 04-3044, the vote on the motion to stay was improper under 28 U.S.C. § 46(c) due to the participation of Senior Judges Kennedy and Suhrheinrich. But even assuming, arguendo, that their participation had been proper with respect to Williams, it is clear that that vote did not, and could not have impacted, Roe. Judge Kennedy was not a member of the three-judge panel that had adjudicated the successive petition issue with respect to Roe. Accordingly, to the extent the Court's judgment of January 13 denied Roe's motion to stay the execution, that judgment should have vacated, and the non-recused, active judges should have been polled on whether to grant Roe's motion to stay the execution. This was not done.
Even assuming it was technically proper for this Court to have voted on whether to rescind its action of January 13, I have grave concerns about this Court's decision to permit Judge Cook to participate in the instant vote. As noted, on her own initiative, Judge Cook recused herself from the January 13 vote concerning Williams' and Roe's joint request for en banc review. After Williams was executed, however, Judge Cook indicated that she should participate in an en banc Court concerning Roe's appeal because she had not previously considered any matters concerning Roe. I beg to differ. Judge Cook's basis for recusal survived Williams' execution because Williams' and Roe's appeals were intertwined. Most of the pleadings and briefs pertaining to Roe were joint efforts with Williams. Judge Cook necessarily read and considered these papers in considering her vote on the rescission. In addition, Judge Cook was privy to the intra-Court communications and deliberations concerning Williams' appeal. Had this Court been aware that Judge Cook was going to "un-recuse" herself after Williams' death, precautions would have been (or should have been) taken to preclude her receipt of any pleadings or communications concerning Williams. This was not done either. Needless to say, Judge Cook's consideration of how she should vote in Roe was necessarily influenced and impacted by the Court's deliberations in Williams from which Judge Cook recused herself. The entire situation suggests impropriety.
Without Judge Cook's vote, the vote to rescind would have failed on a tie vote and the en banc Court would have considered Roe's appeal. Thus, the decision of this Court to conduct another vote on whether to hear Roe's appeal en banc, combined with Judge Cook's participation in that vote, has created the perception that certain members of this Court have manipulated the process to avoid, what was in their view, the unfavorable result of the January 13th poll. This outcome unfortunately conveys the impression of a result-oriented process rather than an orderly process which seeks to preserve the appearance and reality of due process.