DEFAMATORY (Part III)
II.Under Controlling Law of this Circuit, the "Extraordinary"
Reference in This Case Was Beyond the Court's Authority to Order.
Based squarely on the Court of Appeals' decision in Bituminous Coal, Microsoft
explained in its motion that the blanket reference of this case to a special master is
improper under Article III because it delegates judicial functions to a private citizen.
(See Microsoft Mot. at 4-6.) In its opposition memorandum, the DOJ contends that the
reference is "wholly in accordance with Bituminous Coal" because the Court
instructed the special master to provide "proposed findings of fact and conclusions of
law." (DOJ Opp'n Mem. at 7 (emphasis in original).) The DOJ stated:
The Court's instruction that the special master "propose findings of fact and
conclusions of law" surely reflects the ordinary legal and common sense that
"proposals" may be accepted or rejected by the Court . . . . The Court
specifically did not direct the special master to actually make findings of fact that
would be governed under the clearly erroneous standard of Rule 53(e)(2).
(Id. (emphasis in original).)
The order of reference in Bituminous Coal was effectively indistinguishable from the
one in this case: It directed the special master to provide "recommended findings of
fact and conclusions of law." 949 F.2d at 1166 (emphasis added). There is no principled
distinction between "proposed" and "recommended" findings of fact and conclusions of
law. "Recommendations," like "proposals," may be "accepted or rejected by the Court."
(DOJ Opp'n Mem. at 7.) Notwithstanding that the order of reference provided only for
"recommended" findings of fact and conclusions of law-which obviously could be
accepted or rejected by the district court-the Court of Appeals held that the reference
in Bituminous Coal "was beyond the district court's authority to order." 949 F.2d at
1166. The Court of Appeals stated:
[I]t is the function of the district judge, in a non-jury civil case, to decide
dispositive issues of fact and law genuinely disputed by the parties. The judge
may not impose on the parties, over the objection of at least one of them, a
magistrate or master as "a surrogate judge" to try the controversy and determine
liability.
Id. at 1169.
In yet another effort to salvage the Order of Reference, the DOJ attempts to
characterize it as "limited" (DOJ Opp'n Mem. at 1), even though it requires the special
master to (1) "receive evidence and legal authority," (2) "supervise discovery" and "rule
on all contested matters arising in connection therewith," and (3) make "proposed
findings of fact and conclusions of law" (Order of Reference to Special Master at 1-2).
In contrast to the DOJ, Professor Lessig, the special master charged with the
responsibility of discharging the sweeping obligations imposed on him by the Order of
Reference, has described the "scope of [the] reference" as "extraordinary." (12/30/97
Tr. at 20.)
In addition, Professor Lessig has stated that contrary to the DOJ's reading of the Order
of Reference (DOJ Opp'n Mem. at 7), he assumes that his findings of fact will be
subject to review under the "clearly erroneous" standard (12/30/97 Tr. at 21). Professor
Lessig has assumed as much presumably because Rule 53(e)(2) provides that "n an
action to be tried without a jury the court shall accept the master's findings of fact
unless clearly erroneous." Subjecting the special master's findings of fact to clearly
erroneous review, however, creates serious problems under Article III. As the Sixth
Circuit stated, "[a]n overriding concern in this area is that 'since the master's findings
must be accepted unless they are clearly erroneous, [the reference of a nonjury case]
involves the danger that the master, not the court, will in fact decide the case.'" In
re United States, 816 F.2d at 1091 (quoting 9C Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure 2605, at 791 (1971)) (emphasis added) (alteration in
original).
In short, the "extraordinary" scope of the Order of Reference is "beyond the district
court's authority to order." Bituminous Coal, 949 F.2d at 1166. As the First Circuit
explained,
Article III requires that the judicial power of the United States be exercised by
federal judges appointed for life tenure and protected from diminished
compensation. Although parties to litigation may agree, at the behest of a judge
or at their own contrivance, to make alternative arrangements for dispute
resolution at the hands of judicial assistants or even private citizens, parties who
object to such a departure may not be forced to have the fundamental issues of
their disagreement, which would otherwise come within the jurisdiction of an
Article III court, decided by non-Article III surrogates.
Stauble, 977 F.2d at 698.
III. Professor Lessig Should Be Disqualified from
Further Participation in This Case.
In its motion, Microsoft noted its concern that "Professor Lessig may have already
formed views about Microsoft and the issues in this case based on extra-judicial
sources." (Microsoft Mot. at 7.) Subsequent events have shown that Microsoft's
concerns were well-founded.
On December 31, 1997, the DOJ disclosed to Microsoft a collection of three
electronic-mail messages exchanged between Professor Lessig and employees of
Netscape, a fierce rival of Microsoft in developing and marketing Internet-related
software. (See DOJ Opp'n Mem. Attach A.) Although the DOJ attempts to downplay
the significance of the electronic-mail exchange (DOJ Opp'n Mem. at 10 n.3), the
messages exhibit clear bias against Microsoft on the part of Professor Lessig. Perhaps
most egregiously, Professor Lessig compares installing a Microsoft product, the
Macintosh version of Microsoft Internet Explorer 3.0, on his computer to selling his
soul, presumably equating Microsoft with the devil. Professor Lessig also refers to a
discussion with a Harvard Law School colleague about the possibility of filing a lawsuit
against Microsoft.
In addition, Microsoft has learned that Professor Lessig was a participant in a public
forum at Harvard University entitled "Business and the Internet: Strategy, Law and
Policy." The title of the seventh session of that forum was "Should Microsoft Be
Allowed to Swallow the Net?" A principal topic of discussion at that session-which
featured as a speaker Gary Reback of Wilson, Sonsini, Goodrich & Rosati, Netscape's
outside antitrust counsel-was whether Microsoft had engaged in anticompetitive
behavior by including the Internet-related technologies referred to as Internet Explorer
as part of Windows 95, the precise issue in this case. Professor Lessig reportedly asked
Mr. Reback questions about "what sort of a solution he would like to see embodied in a
decree against Microsoft." (See roscoe.law.harvard.edu
get/www/courses/techseminar97/calendar/discussions/session7_discussion.html/7.html.)
Although summaries of views expressed by participants at the other sessions of the
forum are archived on the Harvard Law School's site on the World Wide Web (see
law.harvard.edu
courses/tech97/calendar/sessions), the summary relating to this seventh session has
been removed inexplicably.
Upon receiving a copy of the electronic-mail messages from the DOJ, Microsoft's
counsel promptly sent Professor Lessig a letter requesting that he disqualify himself
from this case. (See Letter from Richard J. Urowsky, Esq. to Prof. Lawrence Lessig
of 1/5/98 (annexed hereto as Exhibit A).) Microsoft also requested that Professor
Lessig supply the parties with, among other documents, a copy of the summary of the
seventh session of the Harvard University public forum. Although Professor Lessig had
told the parties during a conference on December 30, 1997 (see 12/30/97 Tr. at 128)
that he would "discuss any issues the parties wish to raise concerning [the] e-mail
during a conference call on January 6, 1998" (DOJ Opp'n Mem. at 10 n.3), Professor
Lessig subsequently declined, apparently at the request of the Court, to discuss the
electronic-mail messages, except to say that he did not believe that his communications
with Netscape would be an impediment to his "judging the present case impartially":
I would like to address the e-mail first. I need to report that I have been requested by
Judge Jackson to say nothing more than this: I've considered the matter, the request
from Microsoft under Section 455 to disqualify myself. And understanding that test to
be the test whether one who equips himself with all of the facts, whether that person
would conclude that this is an impediment to my judging the present case impartially. I
have concluded that I do not believe that it would be an impediment to judging
impartially and I therefore will not recuse myself.
(1/6/98 Tr. at 6-7.) Professor Lessig further stated that he would not provide the parties
with the documents Microsoft requested unless ordered to do so by the Court. (Id. at
8-9.)(see footnote #6)
As Microsoft noted in its motion (Microsoft Mot. at 8-9), special masters are subject to
all of the provisions of the Code of Judicial Conduct. See Jenkins v. Sterlacci, 849
F.2d 627, 632 (D.C. Cir. 1988) ("special master must hold himself to the same high
standards applicable to the conduct of judges"). Under 28 U.S.C. 455(b)(1), a judicial
officer is required to disqualify himself "[w]here he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding." In addition, a judicial officer is required, under 28 U.S.C. 455(a), to
disqualify himself when, as an objective matter, his "impartiality might reasonably be
questioned." See generally Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 858-60, 865 (1988); In re Barry, 946 F.2d 913, 916 (D.C. Cir. 1991) (Edwards, J.,
dissenting). Under both of these provisions, it is clearly improper for a judicial officer to
proceed with a case if he or she has formed an adverse opinion about a litigant based
on information obtained from an extrajudicial source-such as Professor Lessig's
discussions with another Harvard Law School faculty member and his communi-
cations with employees of Netscape. See Liteky v. United States, 510 U.S. 540,
552-55 (1994).
In its opposition memorandum, the DOJ suggests that Microsoft cannot object to
Professor Lessig on the basis of bias unless Microsoft brings a separate disqualification
motion. (See DOJ Opp'n Mem. at 8.) Microsoft raised the issue of bias in its motion to
revoke the reference (see Microsoft Mot. at 6-9) and now formally requests that
Professor Lessig be disqualified from further participation in this case. Requiring
Microsoft to file a separate disqualification motion will only result in duplicative briefing
and needless delay. Professor Lessig's electronic-mail exchanges with employees of
Netscape demonstrate, at the very least, that his "impartiality might reasonably be
questioned." 28 U.S.C. 455(a). As such, the messages are a separate and
independent ground for revoking the reference to him.
IV.The Court of Appeals Has Stated That Certification of Orders
of Reference for Immediate Appeal Under 28 U.S.C. 1292(b)
Is the "Preferable Course."
Microsoft argued in its motion (see Microsoft Mot. at 9) that in the event the Court
declines to revoke the reference, the Court should immediately certify the Order of
Reference for interlocutory appeal pursuant to 28 U.S.C. 1292(b). Although
"mandamus has become 'an accepted means to challenge a district court's order
referring matters to a special master under Rule 53,'" Prudential Ins., 991 F.2d at 1083
(quoting In re United States, 816 F.2d at 1086), the Court of Appeals expressly stated
in Bituminous Coal that "certification [is] the preferable course." 949 F.2d at 1168 n.4.
Microsoft's request for certification was expressly based on this statement by the Court
of Appeals in Bituminous Coal. (Microsoft Mot. at 9.)
In its opposition memorandum, the DOJ asserts that the Court should not certify the
Order for interlocutory appeal, claiming that "an interlocutory appeal will delay the
proceeding." (See DOJ Opp'n at 11-12.) In so arguing, the DOJ simply ignores the
Court of Appeals' statement in Bituminous Coal. It is difficult to see how Microsoft
can be faulted for following the course charted by the Court of Appeals, a course that
makes eminent good sense.
V.Courts Regularly Stay Proceedings Before the Special Master
While the Order of Reference Is Under Review.
Microsoft has also requested a "stay of further proceedings before the special master
until the propriety of the reference is resolved." (Microsoft Mot. at 9.) The DOJ asserts
that this request is a "disingenuous" attempt by Microsoft "to delay the ultimate
resolution of important issues facing the Court." (DOJ Opp'n Mem. at 12.) To the
contrary, courts regularly stay proceedings before a special master while the propriety
of the order of reference is under review. See, e.g., Prudential Ins., 991 F.2d at 1082
n.3 ("An order staying all proceedings before the special master was subsequently
entered by this court pending the outcome of Prudential's petition."). Indeed, the DOJ
itself sought such a stay (which was granted) before petitioning for mandamus in In re
United States. See 816 F.2d at 1086 ("The district court subsequently granted the
government's motion to delay the initial meeting with the special master.").
Moreover, Microsoft's goal in this proceeding is not to cause delay. Microsoft instead
seeks expedited resolution of this motion and prompt dismissal of the DOJ's petition.
The reason why Microsoft requested, and courts in other cases have granted, a stay of
proceedings before the special master while the propriety of the reference is under
review is obvious: If the reference is ultimately revoked, all proceedings before the
special master will have been futile. |
