The Affirmative Action lawsuits against two University of  Michigan units that are currently proceeding through the federal court system have received quite a bit of attention from the press.  These lawsuits are of national importance and accordingly have been reported on extensively in the press at all levels—from the Michigan Daily all the way up to the New York Times.  Given the attention paid to this issue, it is curious that a highly unusual procedural maneuver by the Chief Judge of the United States District Court for the Eastern District of Michigan, Southern Division, Judge Anna Diggs Taylor, has to this author’s knowledge gone entirely unreported.  This maneuver has been described in an opinion by another judge in the same district and division, District Judge Bernard Friedman, as a “violat(ion) of her legal and ethical duty.”  This is exceptionally sharp language to use about a fellow judge.  Considering the seriousness of Judge Friedman’s allegations, this matter needs a full airing in the press.  Before describing the suspect procedure, it would be appropriate to briefly bring the reader up to date on the current status of the suits.

The two lawsuits contesting admissions preferences for some minority students at the University of Michigan are entering a critical phase of litigation.  In each case the plaintiffs are white applicants to units of the University of Michigan who were allegedly denied admission in part because some places were obtained by minority applicants with lower numerical attributes.

One suit, Gratz and Hamacher v. Bollinger, et al. (hereinafter, the LS&A case), challenges affirmative action admissions policies at the undergraduate college.  Judge Patrick Duggan, who is presiding over this case, has just ruled this past Thursday that the LS&A case will be decided without trial.  This procedure is appropriate in this case because neither side is contesting the relevant facts—i.e., that the school gives preference to some minority applicants in its admission decisions.  Those favored are mostly black, Hispanic, and Native American applicants.  In addition, neither side disagrees to any significant degree over the actual scheme used to favor minority applicants.  Thus, this civil case entirely concerns matters of law.  When a civil case concerns only matters of law, it is decided by a judge, and does not go before a jury.

The second suit, Grutter v. Bollinger, et al. (hereinafter, the Law School case), challenges a comparable system of minority admission preferences at the Law School.  This suit is before Judge Friedman—the same Judge Friedman quoted above.  It remains to be seen whether Judge Friedman will find contested issues of fact that require the Law School case to go to trial.

Now back to the controversy itself.  The controversy started when the University’s lawyers filed a motion to combine the cases under Duggan, the judge in the LS&A case.  This result was desirable from the University’s perspective because Duggan, a Democratic Party appointee, was (and is) considered more likely to uphold the U-M’s Affirmative Action system than Friedman, the judge in the Law School case and a Republican Party appointee.  The relevant opinion of Friedman bears the lengthy title of ‘Opinion and Order Striking August 6, 1998, “Opinion” of Judges Feikens and Cook and Opinion and Order Denying Defendants’ Motion for an Order Designating Actions as Companion Cases’ and was published August 17, 1998.  In it, Judge Friedman reported that the Defendant U-M’s lawyers had filed a motion with Judge Taylor requesting that the LS&A and Law School cases be combined into one case under one of two rubrics: first, that the Chief Judge reassign the Law School case under Local Rule 83.11(b)(2) to Judge Duggan, who presumably would then combine it in one case with the LS&A case.  Second, in the alternative, the U-M asked Judge Friedman to declare the cases “companion cases” under Local Rule 83.11(b)(7)(A).  This also would serve to combine the cases.  It is not clear which judge would then get to hear the case, but clearly the U-M’s lawyers were hoping it would not be Friedman.

Both methods posed problems from the University’s perspective.  The second method, declaring the cases companion cases, was unlikely to be favorable to the U-M, because, under the relevant local rule, LR 83.11(b)(7)(A), the issue will be decided by the trial judge being asked to cede jurisdiction over the case. which would allow Judge Friedman to decide the issue.  Basically, to be companion cases, substantially the same evidence must be offered in both the LS&A and Law School trials and the cases must arise out of the same transaction or occurrence involving the same or related parties.  These cases do not come close to meeting the criteria, according to Friedman’s opinion.  Different evidence is being offered in each trial because LS&A and the Law School are separate units with their own admissions offices and systems.  Furthermore, there is little overlap in parties on either side, other than Lee Bollinger, as law school dean in the law school case, and Bollinger as University President in the LS&A case.  The applicant groups to the Law School and to LS&A do not overlap at all.  Since the application groups are separate, the applications filed and actions taken on them do not qualify as the same action or occurrence.

Reassignment is also unlikely to work for the Defendants because, even if the Chief Judge were to rule in the U-M’s favor, the reassignment must still be approved by both the ceding judge (Friedman) and the receiving judge (Duggan).  Again, all roads go through Friedman.

The U-M’s lawyers faced a further problem.  Chief Judge Taylor is married to University of Michigan Regent S. Martin Taylor.  Thus there is a potential conflict of interest, since, as regent, Mr. Taylor is a Defendant in both suits.  Judge Taylor recognized this and recused herself, pursuant to 28 U.S.C. Sec. 455.  According to Judge Friedman’s opinion, Judge Taylor had two lawful procedures she could then follow to select a judge to rule on the assignment question.  She could follow a federal statute (28 U.S.C. Sec. 136(e)) and select the “district judge (in the district) … who is next in precedence,” that is, she could designate the next most senior judge serving in the U.S. District Court for the Eastern District of Michigan, Southern Division.  Alternately according to Friedman’s opinion, if she determined that the federal statute did not apply she could follow Local Rules 83.11(a)(1) and 83.11(d)(1) and use a “random method” to select a judge from the district to decide the matter.  Neither procedure allows a recused Chief District Judge to influence a matter by personally selecting the judges who decide the question.  Why not?  According to a legal treatise concerning 28 U.S.C. Sec. 455 which is quoted by Judge Friedman “this would violate the statutory command that the disqualified judge be removed from all participation in the case … and might create suspicion that the disqualified judge will select a successor whose views are consonant with his own.”

Yet, this is precisely what Judge Taylor did.  Having disqualified herself, Judge Taylor then named a two-judge panel of Judges John Feikens and Julian Abele Cook, Jr. to decide the issues in the U-M’s motion.  According to Judge Friedman, it was in this action that Judge Taylor “violated her legal and ethical duty by selecting the legal officers who were to act in her stead.”

The two judge panel went on to declare the cases “companion cases” within the meaning of local rule Local Rule 83.11(b)(7)(A).  This is curious since the two-judge panel was acting in the Chief Judge’s stead, and Judge Friedman, not Chief Judge Taylor, is empowered to determine whether the two lawsuits really are companion cases.  Accordingly, Judge Friedman’s opinion voided the decision of the two-judge panel and denied the U-M’s motion to declare the two lawsuits companion cases.
This whole incident raises a number of questions.  Not the least of those questions is whether any of the actors in this drama—the Chief Judge, the two-judge panel, or the University’s lawyers—should be sanctioned or reprimanded in any way for their participation in a procedure that a respected District Judge has termed “unlawful.”

Just how embarrassing this matter is to the Defendant U-M can be gauged by one simple fact.  If one connects to the University of Michigan website (www.umich.edu/~urel/admissions/legal) which makes available the filings and opinions in these two cases—collectively known as the docket for the case—one will find an almost complete record of the various cases.  One item missing from the Law School case docket (Grutter v. Bollinger, et al.) is the very opinion in which Judge Friedman criticizes the conduct of Chief Judge Taylor.  If you would like to read this opinion for yourself, you can escape the U-M’s self-serving censorship by connecting to the Center for Individual Right’s website (www.cir-usa.org/recent_cases/grutter_v_bollinger.html).  There you will find the full text of Judge Friedman’s opinion of August 17, 1998.

As the two lawsuits play out over the next several months, it’s worth reflecting that a bit of the proceduarl chicannery nearly decided the case at the trial court level. Had Judge Taylor’s maneuver succeeded, the case would’ve been consolidated in the hands of a Democratically appointed judge considered more favorable to the Defendants, UM. As it now stands, the Plaintiffs position is now much better than it would have been. THe Plaintiffs will very likely have a forcefully phrased favorable position by Judge Friedman to defend an appeal. After an appeal to the liberal 6th Circuit Appeals Court, where Plaintiffs will very likely lose, the case will probably proceed to the Supreme Court. Once there, some of Judge Friedman’s reasoning may very well appear in a Supreme Court opinion or dissent. Had Chief Judge Taylor and her two judge panel gotten their way, Judge Friedman’s opinion would not have been written at all.

Michael Veeser is a second-year law student.