“Who’s on First? What’s on Second?”
It’s a feature of DC Superior Court, and perhaps with other jurisdictions for all we know, that judicial calendars rotate annually. Stick around these parts long enough and you get to see this play out more than once.
A year ago at this time, defense counsel and the government were filing motions and responses over whether to keep Judge Frederick Weisberg attached to the criminal case, ahead of that impending flip.
In November 2009, defense filed a Joint Motion for Special Assignment to keep Carter appointee, Weisberg on the case. A few weeks later, AUSA Glenn Kirschner responded and opposed, basically telling Weisberg, “We’re just not that into you.”
The decision rested with Chief Judge Lee Satterfield and on December 15, 2009, he denied the defense motion, clearing the way for Judge Lynn Leibovitz to take the spotlight and center stage. Wasting no time, she presided over her first status hearing a month later.
Yesterday it became official. DC Superior Court published the new list of 2011 assignments and taking over Judge Brook Hedge’s Civil 2, Calendar 7, upon her (semi?) retirement is one her colleagues But it’s not as simple as it looks.
Hedge has had the reins on this case from the earliest days. On the same day the complaint was filed, November 25, 2008, the case was assigned to her. For the most part, the Wone wrongful death case has been an easy lift for her. The first scheduling status hearing set for February 2009 was vacated in conjunction with the stay she granted the defense.
Nothing transpired until September 2009, when at another status she set a loose schedule going forward – discovery and deposition deadlines upon the criminal verdict. It wasn’t until a year later that she again turned her attention to the case, lifting the stay just days after the verdict and presiding over the September 16, 2010 status. She managed another procedural hearing last week, and while making no mention of her possible departure, it appears she will transition to senior status on the Moultrie bench, a ‘backup’ judge in the Civil Division.
Now the portfolio of her cases on the 2010 Civil 2 calendar goes to Associate Judge Michael L. Rankin. After graduating Howard Law in 1970, Rankin served in Vietnam with the Amry’s 101st Airborne JAG.
He was an AUSA for DC and was Deputy Chief of the Felony Trial Division before being appointed to Superior Court by Reagan in 1986.
Rankin looks likely, but not so fast. There remains a slim chance that the complex Wone case may end up in the lap of another set of robes.
Superior Court’s civil cases are divvied up as follows:
Civil 1 cases are asbestos cases, toxic mass torts and other more complex civil cases (added to the civil 1 calendar by motion). [Emphasis ours].
Civil 2 cases are all other civil cases, except for those under $5000 which go to the small claims court.
The Hedge – Rankin swap is for a Civil 2 calendar and while the Wone case hasn’t up until now been exceedingly complicated, it’s possible that due to the expected number of motions, extensive discovery and 4-6 week trial length, it could be considered ‘complex’ as it moves forward, and given to a Civil 1 judge. Let’s go to the rulebook, the Superior Court Rules of Civil Procedure:
Rule 40-II. Certification and assignment of cases to Civil I Calendars.
(a) Designation of Civil I cases. — All cases involving claims for relief based upon exposure to asbestos or asbestos products shall be designated to a Civil I calendar. All other cases, if assigned to a specific calendar or a single judge pursuant to Rule 40-I(a), may be designated to a Civil I calendar upon motion by any party or joint motion of the parties, subject to approval by the judge assigned to the case and by the Presiding Judge of the Civil Division, or cases may be so designated upon recommendation of the assigned judge sua sponte if the designation is approved by the Presiding Judge.
(b) Factors considered. — In certifying a case to a Civil I calendar, the Presiding Judge may consider the estimated length of trial, the number of witnesses that may appear, the number of exhibits that may be introduced, the nature of the factual and legal issues involved, the extent to which discovery may require supervision by the Court, the number of motions that may be filed in the case, or any other relevant factors.
(c) Distribution of Civil I cases. — The Presiding Judge shall assign cases designated to a Civil I calendar on a rotational basis.
(d) Assignment to judge. — All proceedings in a case after its assignment to a Civil I calendar shall be scheduled and conducted by the judge to whom the case is assigned, except as otherwise provided in these Rules. Upon the termination of an assignment of a judge to a Civil I calendar, the Chief Judge or the Presiding Judge shall designate the judge or judges to whom the cases on the calendar of the former Civil I judge shall be reassigned.
It’s possible that attorneys could file a motion to have the case transferred to one of the two Civil 1 calendars, but that requires Rankin to sign off, granting that motion. Rankin too, has the option to suggest the Wone case gets kicked up to Civil 1.
That could once again require Satterfield to step up and give it the thumbs up or down. It’s unclear that if Rankin requests the case transfer to Civil 1, what say either the plaintiff or defense counsel have in the matter.
If the case moves to Civil 1, two Superior Court Associate Judges could inherit it: the veteran A. Franklin Burgess (Exeter, Princeton, Harvard Law – A 1983 Reagan appointee) or the younger Natalia Combs Greene (Los Angeles High School, UC Santa Cruz, Howard Law – a 1998 Clinton appointee).
There’s time to work this all out, but not that much time. Voir Dire starts exactly ten month from this morning,