Wednesday, March 19, 2014
Ind. Decisions - For Illinois opinion, Judge Posner conducts experiment in chambers
Ryans N. Parsons tells a remarkable story in a post today in the Wisconsin Appellate Law blog.(h/t Michelle Olsen @AppellateDaily) Some quotes:
Appellate judges often lament that they are limited by their reliance on a cold record and an inability to develop facts for themselves. Frequently, courts will highlight a perceived missing piece of information and remand a case to the trial court, perhaps with directions to fill in the missing gap. But on the Seventh Circuit, Judge Richard Posner has been a foremost advocate for judges – even appellate judges – filling in those gaps themselves. His use of independent online research is well known, including, for example, his use of Google Maps in a criminal case to research the site of a shooting.The opinion, out of Illinois, is Mitchell v. JCG Industries. Judge Kanne concurs. Chief Judge Wood's dissent begins on p. 19 of 33. At p. 25:
But he may have taken this practice to a new level with his opinion in Mitchell v. JCG Industries. The lawsuit involved a dispute over whether employees were entitled to be paid for certain time spent donning and doffing clothing and protective gear in a poultry-processing plant. Among the disputes in the case was how much time the employees actually spent performing the activities. The plaintiffs claimed they spent 10-15 minutes of every lunch period performing the activities, while the employer said it all took 2-3 minutes. Each side entered affidavits regarding the time spent in the summary judgment record based on their personal knowledge: the employees from actually performing the activities, and the employer from supervising and watching the employees. * * *
One judge on the panel purchased the actual clothing and equipment worn by the employees (we’re told “it is inexpensive”) and had “three members of the court’s staff” don and doff the equipment while being videotaped. The experiment revealed that it took just under two minutes to don and doff the gear.
Judge Posner is quick to reassure the reader that “[t]his was not evidence – the intention was to satisfy curiosity rather than to engage in appellate factfinding,” yet the court appears to rely on the experiment as confirming its “intuition” that the plaintiffs’ time claims were bogus. This intuition or experiment allowed the court to reject the plaintiff’s claims that they spent so much time donning and doffing.
I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have already shown to be inconsistent with government regulations for hygiene within a meat processing plant. Finally, there are two other problems with the majority’s approach: it runs afoul of the statutory definition of a bona fide lunch break, and it fails to give effect to the Supreme Court’s recent rejection of de minimis analysis in the donning and doffing context.
Posted by Marcia Oddi on March 19, 2014 12:52 PM
Posted to Ind. (7th Cir.) Decisions