Update: there’s been an en banc petition filed.
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An interesting discussion is going on about so-called “judicial fact finding” in the legal blogs, triggered by the acknowledgement by Seventh Circuit Judge Posner that he did an “experiment with a novel approach” in a recent case:
- Donning And Doffing More Than His Robe, Judge Posner Tries An Experiment In Chambers (Foley blog)
- Judicial Fact Finding Run Amok: Judge Posner’s Judicial Fashion Shows (Josh Blackman’s blog)
- The Limits Of The Record On Appeal (Sixth Circuit Appellate blog)
The issue in the case was whether the time poultry workers spent changing into and out of their sanitary gear for their lunch breaks must be compensated. The old “donning and doffing” issue from labor law. [Takings sidebar: federal judges constantly tell us that they want no part of land use and takings cases — despite their plain textual basis in the Fifth and Fourteenth Amendments — because federal courts don’t want to be “super zoning boards” or second-guess local governments. Yet, they have the time, apparently, to go into great detail about how an employee puts on and takes off his or her clothing, with an entire body of case law developed that second-guesses employers, with nary a question raised about federal jurisdiction, or ripeness, or other things that we takings lawyers are so used to.]
Apparently not content with what was in the record or the decision of the District Court in the case, Judge Posner conducted his own demonstration:
One of us decided to experiment with a novel approach. It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling. The videotape reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore inexperienced donners/doffers of the items in question.
This was not “evidence”—the intention was to satisfy curiosity rather than to engage in appellate factfinding—but it is information that confirms the common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break. (If it did, the lunch break might well not be bona fide; but as we said the plaintiffs do not argue that it is not bona fide.) The intuition is compelling; no reasonable jury could find that workers spend half their lunch break taking off and putting on a lab coat, an apron, a hairnet, plastic sleeves, earplugs, and gloves. What a reasonable jury could not find does not create a triable issue of fact.
Mitchell v. JCG Indus., Inc., No. 13-2115, slip op. at 9-10 (7th Cir. Mar. 18, 2014).
Even ifthe purpose was only to dispel the judge’s biases, it just seems wrong for the tribunal to be doing this sort of thing. Here’s the comment we left on the 6th Circuit Appellate Blog:
We should no more accept experimentation by appellate judges than we would if a member of the jury did it “sua sponte” (so to speak). I don’t think that judges or their clerks — especially at the appellate level — should go anywhere near this, ala Judge Posner. We know they actually do do it sometimes, but for it to be acknowledged in an opinion gives it an air of legitimacy and reflects that it surely must have had *some* impact. Otherwise, why note it? If it really way just for “curiosity’s sake,” then decide the case first, then have your experiment after the results are in. The advocates are the ones who are supposed to do this sort of this, not judges. Sorry, that’s just the way the system works.
Like ex parte contact and evidence, it’s very difficult to rebut, and to get it “reversed” you either have to go en banc, or petition, all while singling out the offending judge, a much different proposition than asserting “the court” erred. As to web cites for incidental facts, no sweat. As to mission-critical facts that you did not introduce evidence of into the record below? No way. How could the fact-finder have made a determination if there was nothing in the record?
Let’s hope this is not a trend.