Heytens, ToJ., Stanford Law Review
3. What do the cases in which reassignment is ordered look like?
When reading individual cases, it can start to feel like there is no pattern to when or how the courts of appeals order reassignment. Appellate courts seem to order reassignment in almost every type of case imaginable. Some cases are high profile, politically sensitive, or involve huge sums of money. (115) Others are run-of-the-mill cases unlikely to be of interest beyond the litigants. (116) Sometimes, an order of reassignment is contained in a lengthy opinion that provides a detailed rationale for directing reassignment. (117) Other times, the court of appeals provides no explanation at all. (118)
That said, some definite patterns emerge when one takes a step back. The key is realizing that the Seventh Circuit uses reassignment in a way that is quite different from its sister circuits.
Consider, for example, the ratio of civil to criminal cases. The total dataset contains 53.29% civil cases and 45.21% criminal cases, with the remaining 1.5% of cases classified as "contempt." (119) What those figures obscure, however, is that more than three-quarters of the Seventh Circuit's reassignment orders are in civil cases, whereas in every other circuit with criminal jurisdiction there are at least as many criminal cases as civil.
The Seventh Circuit is different in other ways as well. It is much less likely than other circuits to give reasons for a decision to order reassignment (10.19% in the Seventh Circuit versus 84.01% in the other circuits). On the other hand, a much higher percentage of Seventh Circuit opinions ordering reassignment are signed by one of the panel members than in other circuits (88.27% in the Seventh Circuit versus 56.98% in other circuits).
Because the percentage of Seventh Circuit decisions in the overall dataset is so high (48.50%), any systematic differences between its reassignment practices and those of the other circuits threaten to swamp the ability to spot interesting patterns. (120) Accordingly, the remainder of this Part will discuss the non-Seventh Circuit and Seventh Circuit cases separately.
a. Non-Seventh Circuit cases
My dataset contains 344 cases where a court of appeals other than the Seventh Circuit ordered a case reassigned to a different trial court judge on remand. More than two-thirds are criminal cases (230), with cases involving criminal sentencing errors alone making up 42.15% of the non-Seventh Circuit cases in the dataset (145). The other error stages that generated large numbers of reassignment orders are the guilty plea (25 decisions) and trial (20 decisions) stages in criminal cases and the summary judgment (22 decisions), trial or merits hearing (29 decisions), and final remedies, which includes attorneys' fees, (13 decisions) stages of civil cases.
Courts of appeals outside the Seventh Circuit generally give reasons for ordering reassignment (84.01%), but the reasons they give vary widely. For one thing, there are a fairly large number of cases (72, or slightly less than 25% of cases in which reasons are given) in which the reviewing court suggests that the type of underlying error in question generally mandates reassignment. The largest number of cases in this category (38) involves violations of the rule associated with Santobello v. New York, (121) which states, broadly speaking, that prosecutors must keep their promises to make--or to refrain from making--particular recommendations with respect to criminal sentencing. (122) The other major category (15 cases) involves violations of Federal Rule of Criminal Procedure 11 (c)(1), which bars judicial participation in plea negotiations. (123)
The bulk of decisions, however, provide more case-specific reasons for ordering reassignment. Perhaps unsurprisingly, the three most common reasons simply repeat the three "principal factors" from the most frequently recited test for ordering reassignment. …