Joel Jacobsen

Easter and Passover provide us with an opportunity to pause in our busy lives and reflect that federal judges are gods.  Lawyers who regularly appear in federal court don't dispute that fundamental theological point.   True, federal judges aren't the gods most of us would choose - they're not all-wise, for example.  And forgiveness generally isn't a strength.  But then, if you were able to choose them, they wouldn't be gods, would they?  Within the confines of each of the nation's federal courthouse,  each federal judge is all-powerful.

Take Detroit's Chief Judge Bernard A. Friedman.  He was irritated by a letter he received from a self-employed person named William Schramm, who was trying to get out of serving on a grand jury.  The judge summoned Mr. Schramm to his chambers and told him "your letter is all BS - I don't believe it," according to what Mr. Schramm told the Detroit News.

Then, without holding Mr. Schramm in contempt of court (there were no grounds for that), and without even going through the motions of a trial, Friedman ordered him to be incarcerated.  Specifically, he ordered Mr. Schramm to come to the federal courthouse every day the grand jury was in session and sit on a bench in the hallway.  In a particularly sadistic touch, Friedman prohibited Mr. Schramm from reading anything.  He also decreed that he wouldn't receive the $40 per diem ordinarily paid to grand jurors.

So Mr. Schramm has been sitting in the hallway, staring at the opposite wall, for seven hours a day, three days a week, since the end of January.

One of the truly bizarre things is that Judge Friedman talked to a reporter about it.  He lacked the insight necessary to understand that he was shaming himself.  

The other bizarre thing is that Fox News describes the episode as "Like Grown-Up Time Out, but Funnier".  Funny?  There are at least three ways to look at Judge Friedman's behavior, but Fox - possibly misled by an institutional worship of power - missed them all. 

One: it's the tort of false imprisonment.  If Judge Friedman took a look at an opinion that issued from the chambers down the hall a couple of months ago, he'd learn that he's covered his bingo card: he satisfied all the elements of false imprisonment under Michigan law.  (Sterling-Ward ex rel. Sterling v. Tujaka, 414 F.Supp.2d 727, 742  (E.D.Mich.,2006).)  

Two: it's a constitutional deprivation.  In a just world, Mr. Schramm would be able to collect in a federal civil rights lawsuit against Judge Friedman.  Certainly it's easy to imagine the self-righteous rhetoric that would accompany any federal judge's decision awarding damages against an FBI agent who detained Mr. Schramm for an hour - let alone for 21 hours a week, for weeks on end - with a similar lack of legal justification.  "An agent acting - albeit unconstitutionally - in the name of the United States possesses a far greater capacity for harm than an individual [tortfeasor] exercising no authority other than his own."

Third: it's a sign of a serious personality disorder. 

No, I take it back, there's a fourth way of looking at it: All of the above. 

Incidentally, Judge Friedman claimed he possesses "inherent authority" to order arbitrary imprisonment.  "Inherent authority" is a code phrase for the exercise of extra-constitutional power.  (See post 32.)  So his defense of his action is that, because he's a federal judge, he's exempt from the 5th amendment guarantee that no person shall be deprived of liberty without due process of law.  

In fairness, the judge does have a historical precedent to rely on.  "Inherent power" was also King Charles I's justification for imprisoning without trial those who declined to pay the forced loan.  The legal argument against Judge Friedman's position is set out here.

Meanwhile, out in Utah, a magistrate judge got into the habit of summarily holding in criminal contempt of court any lawyer who was even a minute late to a hearing.   The penalty was an automatic $50 fine, to be paid directly to the court.  There was no advance notice, no subsequent opportunity to be heard.   A Special Assistant United States Attorney (i.e., an attorney for some federal agency other than the sclerotically bureaucratic Justice Department) got the green light to appeal.

The Tenth Circuit's opinion on appeal was crushing:

While we are aware of the magistrate judge's "standing policy," the summary contempt order in this case is a paradigmatic instance of an abuse of discretion. First, by no stretch did the contempt occur within the presence of the court. Mr. Petersen simply was absent for five minutes. Just as the record contains not a scintilla of evidence suggesting that the United States Attorney's office (let alone Mr. Petersen, a special assistant) was aware of the magistrate judge's "standing policy," the facts in the record do not suggest that his mere absence was part of a series of larger events suggesting a conscious disregard of the court's procedures.

(For those spared the experience of law school, "paradigmatic instance of an abuse of discretion" and "not a scintilla of evidence" is pretty rough stuff when used by one judge to describe another.)

After listing a couple more legal deficiencies in the magistrate's order, the Tenth Circuit drove a stake through its malignant little heart (unfortunately, the pounding jarred loose its syntax):

Furthermore, as a matter of common sense, let alone the professional implications, we find it more than a little peculiar to punish without the faintest idea of what the precipitating cause of the action may be ­ frivolous or quite serious indeed.

The Utah magistrate's fatal flaw was to think himself a god when he wasn't even an Article III judge.  It was all too reminiscent of Ibrahim signing his letters "Sultan."  Just as Suleiman the Magnificent did over 450 years ago, the Tenth felt obliged to take the pretender down a peg.