I was perusing recent First Circuit decisions and noticed one that ordered a remand to a different district court judge. U.S. v. Figueroa-Ocasio (Oct. 16, 2016). This is unusual, and got me wondering whether there is any pattern that can be found in these determinations, either in that court or the Maine SJC.
I come from Chicago, and the Seventh Circuit has dealt with this at times touchy subject with Circuit Rule 36. As that rule recites, if a new trial is ordered, it’s ordinarily, but not always, sent to a new judge, and other matters can also be sent to others. So back when I was clerking, if the Court of Appeals wanted to send it to someone else, all they had to say was “Cir. Rule 36 applies” – the diplomatic way of saying this was such a mess send it to someone else. The rule has been applied in various situations, including when reversing summary judgment rulings. E.g., AHP Subsidiary Holding Co. v. Stuart Hale, 1 F.3d 611 (7th Cir. 1993); Holmes v. Vill. Of Hoffman Estate, 511 F.3d 673 (7th Cir. 2007).
In my few minutes of foray into the First Circuit precedent, it seems like the only area where it tends to do this is in re-sentencing. There may or may not be a policy that sends a matter to a different judge on remand in that context. The individual judges seem to differ on whether this policy exists. See, e.g, U.S. v. Alvira-Sanchez; U.S. v. Marchena-Silvestre and U.S. v. Sevilla-Oyola. See also Hull v. Municipality of San Juan, 356 F.3d 98 (1st Cir. 2004). In Hull, the First Circuit cited Liteky v U.S., 510 U.S. 540 (1994), in which the Supreme Court points to 28 U.S.C. 2106, which provides that the appellate court can remand to “require such further proceedings to be had as may be just under the circumstances.” So the test is whether it’s “just.”
In the SJC, it seems to happen less in re-sentencing than in family law situations, like custody and termination of parental rights. See State v. Stanislau, 2013 ME 43, 65 A.2d 3d 1242; Simoneau v. Simoneau, 1997 ME 108, 693 A.2d 1135; Weeks v. Weeks, 650 A.2d 945 (Me. 1994); Snyder v. Tallot, 589 A.2d 443 (Me. 1991); In re Howard P., 562 A.2d. 1223 (Me. 1989); State v. Houston, 534 A.2d 1293 (1987).
The most the Law Court has said on this point may be in Weeks, where it stated that the trial court’s findings “were not the product of careful deliberation. We conclude, therefore, that it is appropriate in this instance to remand for a new trial before a different judge. See Andre v. Bendix Corp., 774 F.2d at 801.” In that situation, however, and the Andre case cited, the specific issue was a judge adopting one side’s proposed findings verbatim, a limited context.
More broadly, perhaps the Ninth Circuit came up with the best test in a 1987 decision:
whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected;
whether reassignment is advisable to preserve the appearance of justice; and
whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness
Smith v. Mulvaney, 827 F.2d 558, 562 (9th Cir. 1987).
In any event, either the First Circuit or Maine SJC, except perhaps in the First Circuit with re-sentencing, I wouldn’t seek this from the appellate court absent truly exceptional circumstances.