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RECUSALS KEEP SAME JUDGES ON MOST MINE CASES

RICHMOND, Va. - Early last Monday morning, a clerk at the 4th U.S. Circuit Court of Appeals posted the list of the day's cases and the judges who would hear them.

For the argument in "Ohio Valley Environmental Coalition v. Bulen," the list included two familiar names: Judges Paul V. Niemeyer and J. Michael Luttig.

Over the past four years, Niemeyer and Luttig have twice been part of three-judge panels that overturned federal court rulings to limit mountaintop removal. Now, they also would help decide the fate of a third mountaintop removal case.

Niemeyer and Luttig are among the most conservative judges on a federal appeals court that is considered the most conservative in the country.

Privately, environmentalists have grumbled before about their bad luck in drawing Niemeyer and Luttig in the previous mountaintop removal cases.

How could they possibly have such luck a third time in a row? Appeals court panels are supposed to be drawn randomly. The chances are about 1 in 10,000 that the same two judges would end up on the same panel three cases in a row.

Last week, the 4th Circuit for the first time offered what might be an explanation: A "significant number" of judges recused themselves from the case before the three-judge panel was chosen.

Mark Zanchelli, chief deputy court clerk, said the judges cited "financial interests" that could be affected by the outcome of the appeal.

Later, Zanchelli confirmed that a "significant number of judges" recused themselves from the first mountaintop removal appeal, decided in 2001.

A second case, decided in 2003, also involved some disqualifications, but "not as many" as the other two cases, Zanchelli said.

Court officials would not identify the judges who recused themselves, or say how many of the circuit's 13 active judges did so.

In a Friday letter to the Sunday Gazette-Mail, court clerk Patricia Connor wrote that "unnecessary dissemination of recusal information could increase the likelihood that litigants would add parties ... in an effort to prompt recusal of particular judges."

Under federal court rules, judges are required to disqualify themselves in cases where their "impartiality might reasonably be questioned."

Among other things, the rule says this could occur if the judge or the judge's spouse or minor children have "a financial interest in the subject matter in controversy or in a party to the proceeding."

In the latest mountaintop removal case, one of the parties is the National Mining Association.

When they filed their appeal brief, association lawyers also provided the court with a 12-page list that identified about 300 association members that range from Alliance Coal to Zurich Financial Services.

In her letter, Connor said that "cases involving a large number of disclosed corporate entities" reduce the number of judges available for random assignment to argument panels.

"When another case involving the same disclosed corporate entities comes before the court, the odds are therefore rather high that some of the same, non-disqualified judges will be assigned to sit on that case," Connor wrote.

Federal appeals courts hear appeals of cases decided by federal district judges, and are one step below the U.S. Supreme Court. Because the Supreme Court hears very few cases each year, the appeals courts are the final arbiters of many legal disputes.

Currently, the 13 active judges on the 4th Circuit include nine who were appointed to the court by Republican presidents and four who were appointed by Democrats.

Typically, appeals courts first hear cases through three-judge panels. Parties can try to appeal those decisions to the entire circuit, a process known as "en banc," a French term that means "on the bench."

So far, the two mountaintop removal cases resolved by the 4th Circuit were heard only by three-judge panels.

In both cases, the circuit overturned rulings by the now-deceased U.S. District Judge Charles H. Haden II.

Now, the 4th Circuit is considering an appeal by the Bush administration and the coal industry of a July 2002 decision by U.S. District Judge Joseph R. Goodwin. Goodwin blocked the U.S. Army Corps of Engineers from using a streamlined permit review process to approve new mountaintop removal valley fills.

A ruling is not expected for several months.

Under its rules, the 4th Circuit's panel selection process does not take into account the political party of the president who appointed a judge.

Instead, the computer system used by the court is programmed to "assure the opportunity for each judge to sit with all other judges an equal number of times."

Many legal experts say that this makes sense. Judges - especially federal ones with lifetime appointments - are not supposed to be political. Others say that judges are human, too, and cannot divorce their own political leanings from their judicial philosophy.

Frank Cross, a University of Texas law professor, says that panel selection should take this into account.

In January 1999, Cross wrote a Columbia Law Review article that proposed that all three-judge panels contain at least one judge who was appointed by each of the two major political parties.

"Every panel would have one judge whose partisanship differs from the other two, thereby offering a political check on partisan decision-making by the majority," the article said.

At the 4th Circuit, the panel selection process has been scrutinized before.

Law professors J. Robert Brown and Allison Herren Lee examined it as part of an April 2000 Texas Law Review article.

Brown and Lee noted that the process isn't really completely random. For example, the clerk's office puts judges' names into the computer system based on who is available for a particular court session.

More importantly, at the time, judges and litigants could influence panel composition based on the handling of requests for emergency stays and other actions decided before a panel was actually chosen for the case.

In 1998, after the Virginia Legislature passed a law to prohibit late-term abortions, a district court issued an injunction to block the law. The state appealed, and sought an emergency stay. State lawyers filed that motion directly with Luttig.

Luttig heard the motion, and granted the stay, allowing the law to take effect. Under the court's rules at the time, Luttig was then automatically on the panel for the full appeal because of his "previous involvement" in the case.

The 4th Circuit's rules were changed in February 2001 to prohibit such occurrences in the future.


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