Barnett, In re

• Decision Date: 04 September 1996
• Docket Number: No. 96-2876,96-2876
• Citation: 97 F.3d 181
• Parties: In re Richard BARNETT, Eddie Read, P. Scott Neville, Nathaniel Howse, Jr., and R. Eugene Pincham, Petitioners.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 181

97 F.3d 181

In re Richard BARNETT, Eddie Read, P. Scott Neville Nathaniel Howse, Jr., and R. Eugene Pincham, Petitioners.

No. 96-2876.

United States Court of Appeals Seventh Circuit.

Submitted Aug. 12, 1996.

Decided Sept. 4, 1996.

Judson H. Miner (submitted), Jeffrey I. Cummings, Davis, Miner, Barnhill & Galland, Chicago, IL, R. Eugene Pincham, Chicago, IL, P. Scott Neville, Jr., Nathaniel R. Howse, Howse, Howse, Neville & Gray, Chicago, IL, for Richard Barnett.

R. Eugene Pincham, Chicago, IL, P. Scott Neville, Jr., Nathaniel R. Howse, Howse, Howse, Neville & Gray, Chicago, IL, for Eddie Read.

P. Scott Neville, Chicago, IL, for P. Scott Neville.

Nathaniel Howse, Chicago, IL, for Nathaniel Howse.

R. Eugene Pincham, Chicago, IL, for R. Eugene Pincham.

Lawrence Rosenthal, Jean Dobrer, Benna R. Solomon, Andrew S. Mine, Susan S. Sher, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for City of Chicago.

Jerold S. Solovy, Joel T. Pelz, Thomas C. Buchele, Jenner & Block, Chicago, IL, Donald Hubert, Chicago, IL, David A. Bonoma, Shefsky, Froelich & Devine, Chicago, IL, for Carole Bialczak.

Before POSNER, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

POSNER, Chief Judge.

Two plaintiffs in a suit pending before Judge Duff in the Northern District of Illinois, and their lawyers, have filed a petition for mandamus asking this court to order the judge to reinstate the lawyers, whose appearances as counsel he ordered stricken on the ground that they had abandoned their clients. The suit, filed by these lawyers in 1992, challenges the procedure and results of a redistricting that year of Chicago's wards, on the ground that it improperly dilutes the voting strength of Chicago's black population. See Barnett v. Daley, 32 F.3d 1196 (7th Cir.1994). A similar suit (Smith ), by plaintiffs represented by attorney Judson Miner, was filed shortly afterward and consolidated with Barnett. In August of 1995, Miner was designated as lead counsel for the plaintiffs in both cases. Since then (and indeed since the fall of 1994), the three petitioner lawyers have rarely appeared in the courtroom in the consolidated suit. A bench trial, limited to liability, began at the end of February of 1996 but was interrupted because Miner was seriously injured in an accident. The district judge expressed his displeasure at the fact that none of the plaintiffs' other lawyers were prepared to pick up the reins dropped by Miner. On June 19, shortly before the trial resumed, the judge on his own initiative struck as attorneys of record in the case the lawyers--four in number, of whom the petitioner lawyers are three--who had not appeared in the courtroom for at least a year.

The petitioner lawyers asked the judge to vacate the order. They pointed out (and Miner confirmed) that if the plaintiffs prevailed in the trial on liability (which was drawing to a close--it ended on August 1, and the judge has not yet rendered his decision), and the case then entered the relief stage, the two groups of plaintiffs--one represented by Miner and his associates, the other by the petitioner lawyers--might disagree about the proper remedy.

In a hearing on July 17 to consider the motion to vacate his order, the judge elaborated upon his reasons. They had mainly to do with his belief that the petitioner lawyers had been responsible for postponing the resumption of the trial until Miner recovered from his injury.

We had to disadvantage witnesses. We had to disadvantage all kinds of people. We had to disadvantage other cases. We had to bring cases into the hiatus that weren't scheduled for then. We had to get another judge to take a massive securities case off of our hands so that we could arrange things adequately.... I was sorely disappointed you weren't here, and I felt that you had abandoned your clients.... I decided that the only thing to do to clean up this case, so you yourselves would be protected in fact from any unhappy clients, was to take you off the case. And it was a matter of my sense of responsibility of the management of the case, of the benefit of the class, of the continuation of the case, and of the responsibility to the other plaintiffs and defendants as well.

The judge accused one of the petitioner lawyers, Eugene Pincham, of having "told the world" that Pincham had complained to the judge about holding court on Martin Luther King's birthday, which the judge described as "an unfortunate kind of criticism, especially since it wasn't true." The judge elaborated:

Mr. Pincham told the press that he had been here that day and had told me that and that wasn't true, and everybody who was here knows that wasn't true because I asked where Mr. Pincham was and they all said he was here and left.

Now, that's not really the major thing here, but it's an indication of my feeling that the case was abandoned. And then there has been some major political comments made about the case by many people over those period of months, from the perspective of your colleague [Pincham] primarily, who has great access to the press. He even put me in the category of Judge Baer on one personal column that he wrote for one newspaper, and I never responded, I never objected, I never said anything about that that was in any way punitive or angry or hostile.

But I know proper behavior and I know proper representation, and I know my responsibility to the class and to the people of Chicago in this case, and I have done the right thing [in removing the lawyers] and I'm not going to change it.

When Pincham then asked, "May I be heard, if the Court please?" the judge refused. Pincham complained, "Judge you have made certain remarks about me and you're...