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Tuesday, September 29, 2015

Ind. Decisions - Judge Posner and the use of information gathered from the Internet

On August 20, 2015 the ILB had a post headed "Ind. Decisions - 7th Circuit decided one Indiana case yesterday, a must read on independent research by judges." At the time, Debra Cassens Weiss of the ABJ had a good post headed "Dissenter blasts Posner’s Internet research in inmate’s suit over acid reflux treatment." The dissenter was Judge Hamilton.

Now Aaron S. Bayer has a Sept. 14th article in The National Law Journal (h/t How Appealing) titled "When Judges Rely on Their Own Online Research: A recent Seventh Circuit ruling tests the use of information gathered from the Internet." Some quotes:

But Posner also cited his own extensive research on medical and pharmaceutical websites about reflux and the dosing and effectiveness of Zantac. And it’s clear from his opinion that his independent research influenced his evaluation of the State’s claims.

It’s also clear that Posner seeks to expand the envelope of permissible fact-finding by appellate judges. He devoted much of his decision (and a detailed appendix) to defending his use of “highly reputable medical websites” that were outside of the record. As Posner recognized, under current law the court could not take judicial notice of the research he cited. That research did not involve judicially noticeable “legislative” facts—because it directly related to core factual issues in the suit. * * * Judge David Hamilton’s dissent took Posner to task on every point, calling his opinion an “unprecedented departure from the proper role of an appellate court.” The factual conclusions in the majority opinion about the timing and effectiveness of a patient’s doses of Zantac were neither determined through the adversarial process, nor were they properly subject to judicial notice.

Hamilton rejected the notion that there is some kind of in-between category in which an appellate court can make its own factual findings. He noted that the Seventh Circuit would reverse a district court for basing a decision on its own research, would order a new trial if jurors conducted their own research and would criticize a party for trying to supplement the factual record on appeal. He urged the court to adhere to the same standards.

Hamilton also recited a host of practical problems with allowing independent judicial fact-finding.

In an opinion yesterday, Sept. 28, 2015 written by Judge Posner, Discount Inn v. City of Chicago, the plainitff sought to invalid the City's weed ordinance, which provided that “any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches," as unconstitutional, claiming the fines were excessive under the 8th amendment, and that
...the weed ordinance is vague and forbids expressive activity protected by the First Amendment. The concern is that native plants, while sharing with weeds the property of not having to be planted, are, unlike weeds, beautiful and nondestructive when properly managed.
Posner's opinion includes color photos of several plants, it is unclear whether they are taken from the record. Additional, Judge Posner writes, beginning on p. 3:
An oddity of this case is that nowhere in the briefs, or in the district court’s opinion, or elsewhere in the record is there any information about Discount Inn except that it is incorporated in Illinois and its address is in Skokie—a city separate from Chicago. Virtually all that we’ve been able to learn about the company is that it owns real estate in Chicago. Discount Inn does not have a website, or a Dun & Bradstreet report, or more than a tiny handful of Internet references, none of which describes its business. The address in Skokie is a private home in a suburban subdivision. The home is owned by a person named Baba Abdul Jubbar, who also has no website, and the property apparently is the headquarters not only of Discount Inn but also of the Solo Land Corp. and SNS General Corp., which also do not have websites. And it seems that a “Suzie Baba” is president of at least four other corporations at that address. See Entity Source, “Sns General Corp.,” www.entitysource.com/details/ entity/il_56915826/sns‐general‐corp. (visited September 28, 2015, as were the other websites cited in this opinion). An article in the East St. Louis Monitor of September 20, 2012, “Nightclubs and Convenience Marts Charged,” www. estlmonitor.com, reports that Discount Inn owned “derelict properties” in that city. We can discover nothing about Discount Inn’s properties in Chicago or the specifics of its violations of the weed and fence ordinances.

Although the factual vacuum does not prevent our deciding the case, we take this opportunity to advise counsel for future litigants to provide judges with some minimal background information about their clients—some sense of context— to help the judges make sense of their case.

Posted by Marcia Oddi on September 29, 2015 08:46 AM
Posted to Ind. (7th Cir.) Decisions