3rd Circuit Sees Through 'Ghostwritten' Opinion

Shannon P. Duffy
The Legal Intelligencer
08-27-2004


Federal judges must write their own opinions and cannot simply sign an opinion that was "ghostwritten" by lawyers, the 3rd U.S. Circuit Court of Appeals has ruled.

In Bright v. Westmoreland County, a unanimous three-judge panel issued a stiff rebuke to U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania after concluding that defense lawyers had submitted a "proposed opinion" and that Schwab adopted it "nearly verbatim" as his own.

"When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the district court in this case," U.S. Circuit Judge Richard L. Nygaard wrote in an opinion joined by 3rd Circuit Judges Theodore A. McKee and Michael Chertoff.

Nygaard found there was "no record evidence which would allow us to conclude that the district court conducted its own independent review, or that the opinion is the product of its own judgment. In fact, the procedure used by the district court casts doubt on the possibility of such a conclusion."

As a result, Nygaard concluded that the 3rd Circuit was forced to remand the case to Schwab with an order requiring that he "engage in an independent judicial review."

If Schwab decides again to dismiss the case, Nygaard said, he must "prepare an opinion explaining the reasons for [his] order."

Schwab, in response to a call from The Legal Intelligencer, issued a statement that said: "I have carefully reviewed the clear and thoughtful opinion of the Court of Appeals in the Bright case. I appreciate its candor, and will of course make every effort to follow its advice, counsel and directions, in this and all cases."

The 3rd Circuit's ruling revives a civil rights lawsuit brought by a man who claims that the murder of his 8-year-old daughter could have been prevented if police and law enforcement officials had promptly jailed the murderer for violating his probation.

Attorney Peter M. Suwak of Washington, Pa., filed the suit on behalf of John Bright, whose daughter, Annette, was shot to death in July 2001 by Charles Koschalk.

Koschalk, who pleaded guilty to the murder and is currently serving a life sentence, had previously been convicted of corrupting the morals of a minor -- Annette Bright's older sister, Marcia Bright, who was 12 years old at the time.

In May 2001, more than two months before Annette was murdered, the suit alleges that Koschalk was seen with Marcia Bright at a department store and was confronted by a county probation officer about the incident.

The incident was a clear violation of the terms of Koschalk's probation, the suit alleges, but officials delayed filing papers to revoke Koschalk's probation until late in June. A hearing for Koschalk wasn't scheduled until the first week of August -- three weeks after Annette Bright was murdered.

Named as defendants in the civil rights claims are Westmoreland County; county probation officers Tami Whalen and Richard Yesko; their supervisor, Anthony C. Guinta; the City of Monessen; city police officer Carl Franzaglio; Westmoreland County DA John Peck; and Westmoreland County Court of Common Pleas Administrator Paul S. Kuntz.

Koschalk was also named as a defendant in claims for wrongful death, survivorship, and assault and battery.

After Schwab dismissed all of the federal claims in the case, Suwak filed an appeal that complained about the judge's procedure.

In his brief, Suwak said Schwab held a conference in chambers in which he told the lawyers that he intended to grant a defense motion to dismiss the case even though Suwak had not yet filed his response to the defense motion.

In that conference, Suwak said in his brief, Schwab told the defense lawyers that in lieu of a reply brief, they should file a "consolidated statement of position."

But Nygaard found that the defense lawyers instead opted to supply Schwab with a 40-page "Proposed Memorandum Opinion and Order of Court."

In a footnote, Nygaard noted that the proposed opinion was never docketed in the lower court.

"Because this document does not appear in any other public filing and it is of central importance to this appeal, we have included a copy of it along with a copy of the district court's opinion as an appendix to the opinion we have filed," Nygaard wrote.

At oral argument before the 3rd Circuit, Nygaard said, the defense lawyers -- Thomas P. Pellis of Meyer Darragh Buckler Bebenek & Eck in Greensburg, Penn.; Thomas P. McGinnis of Thomas Thomas & Hafer in Pittsburgh; and Mary E. Butler of the Administrative Office of the Pennsylvania Courts -- confirmed that they had drafted the proposed opinion.

Nygaard found that the proposed opinion was "nearly identical" to the opinion later filed by Schwab.

"Other than minor grammatical and stylistic edits, the district court made only two substantive changes," Nygaard wrote.

"First, in the analysis section of the opinion, the district court struck a single sentence from the appellees' proposed opinion. Second, the district court added a section that dismissed the [state law] claims against Koschalk for lack of jurisdiction."

Nygaard also focused on the fact that Schwab did not alter a section in the proposed opinion that dismissed Bright's claims based on the Pennsylvania Political Subdivisions Tort Claims Act.

"This is significant because nowhere in [the defendants'] motions to dismiss do they argue that Bright's state law claims are barred under the PSTCA. The district court, however, adopted this section of the [the] proposed opinion without any real modification or explanation, again excepting minor stylistic changes," Nygaard wrote.

Suwak complained in his brief that Schwab's procedures were improper.
"It is hard to reconcile this evident overreaching with plaintiff's reasonable expectations as a litigant for a fair and independent judicial review of his claim," Suwak wrote.

Nygaard agreed, saying the lower court record showed that Schwab had announced that he intended to grant the defense motion to dismiss before he had received Suwak's response.

The record also showed that Suwak never had an opportunity to respond to the proposed opinion before Schwab adopted it as his own.

Nygaard said the 3rd Circuit has previously frowned on the practice of some lower court judges to adopt verbatim proposed findings of fact or conclusions of law submitted after a bench trial.

But that procedure, Nygaard said, "although disapproved of, is not in and of itself reason for reversal."

Nonetheless, Nygaard said, the 3rd Circuit also "made clear that the findings of fact adopted by the court must be the result of the trial judge's independent judgment."

But Nygaard said the appellate court could never condone a trial judge's adopting an entire opinion submitted by lawyers.

"Judicial opinions are the core work product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision," Nygaard wrote.

"They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic."

In his closing paragraph, Nygaard stressed the importance of the court's image in the minds of the public.

"Courts and judges exist to provide neutral fora in which persons and entities can have their professional disputes and personal crises resolved. Any degree of impropriety, or even the appearance thereof, undermines our legitimacy and effectiveness," Nygaard wrote.

"We therefore hold that the district court's adoption of the [defendants'] proposed opinion and order, coupled with the procedure it used to solicit them, was improper and requires reversal."