Also, Non-compensatory Sanctions Over $5,000 Likely Needs Criminal Contempt Protections.
Under Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991), district judges have inherent power to sanction for bad faith violations during proceedings. However, there are limits to how far this can go, especially when a substantial sanction over $5,000 is involved.
Chief Judge Alex Kozinski, in his usual distinctive style, vacated a $63,687.50 sanctions award against the City of Los Angeles for a deputy city attorney’s alleged violation of an in limine order during closing argument in a case eventually resulting in a defense verdict in an excessive force police lawsuit. He did so by authoring a 2-1 opinion in which Circuit Judge Sandra S. Ikuta dissented. That opinion is Miller v. City of Los Angeles, Case No. 10-55235 (9th Cir. Oct. 27, 2011) (for publication).
Basically, two grounds led to the reversal.
First, the majority actually found there was no violation so that it would be illogical to infer bad faith (even though the violation was actually admitted by the city attorney). Judge Kozinski put it this way: “We conclude that Arias couldn’t have acted in bad faith if he did not, in fact, violate the district court’s order. You can’t have chicken parmesan without chicken; you can’t have an amazing technicolor dreamcoat without a coat; you can’t have ham and eggs if you’re short of ham or eggs. And you can’t have a bad faith violation without a violation.”
Second, because the sanctions were non-compensatory and designed to deter future misconduct, they needed to have full criminal contempt protections such as an independent prosecutor, use of the beyond reasonable doubt higher burden of proof, and a jury trial right for sanctions above $5,000 in amount. None of that happened here, which was an independent reason for reversal.
Judge Kozinski also offered these words of advice to attorneys and district judges: “While we’re at it, we offer some advice to lawyers: Don’t apologize unless you’re sure you did something wrong. And there’s also a lesson for district judges: Don’t accept too readily lawyers’ confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That’s why we have transcripts.”
MEMORY
Swiss Cheese. Madison, Wisconsin. Photographer: John Vachon. Library of Congress.