Mark Chenoweth and John Vecchione welcome NCLA Senior Litigation Counsel Russ Ryan for a jaw-dropping judicial-ethics cases.

A Texas judge—currently presiding over a live case—has written three novels featuring characters bearing striking resemblance of herself and on one of the actual litigants before her. The fictional version of the real-life businessman is cast as a villain.

The case is Dondero v. Jernigan, raising fundamental questions about impartiality.

Russ walks through the surreal facts and NCLA’s concise but impactful amicus brief urging the Court to fix the problem.

This is an episode you do not want to miss.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, or just the average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the government.

John Vecchione: Welcome to Unwritten Law with Mark Chenoweth and John Vecchione, and we’re joined by our colleague, Russ Ryan, to discuss what I think you’ll all agree is a very fun case.

Mark Chenoweth: You don’t wanna miss this one.

John Vecchione: They don’t wanna miss this one. This is Dondero v. Jernigan. Welcome to the program, Russ.

Russ Ryan: Thanks. Thanks for having me back.

John Vecchione: All right. Now, I’ve said this is fun, and I want you to describe for the audience what is happening in this case.

Russ Ryan: Okay. So, this is a bankruptcy case in Texas.

Mark Chenoweth: Okay, that was not the most exciting start.

Russ Ryan: Yeah, I know, we gotta get to it. We gotta get there. It was actually transferred to this bankruptcy judge because she was already familiar with the parties, and that’s going to take on some significance as I explain what’s going on. So, to just cut to the chase, the bankruptcy judge is also, moonlights as an author, and she writes novels.

And as it happens, the characters in the novel bear striking resemblance to herself and to this poor Mr. Dondero, whose company is the bankrupt debtor. So, she’s written – she’s just about published her third novel, and the heroine is a bankruptcy judge in Texas who went to the same school she did, is married to a similar person, and has two dogs that are identical to her own. So, you can see how there’s some resemblance.

John Vecchione: Are these self-published?

Russ Ryan: Yeah, I think they are.

John Vecchione: This is like fan fiction.

Russ Ryan: I took a quick look and I – it didn’t look like they were a major publishing house.

John Vecchione: Right. And so, who is the villain of these novels?

Russ Ryan: Well, one of the villains in the novel is a hedge fund guy who bears striking resemblance to Mr. Dondero. He invests in the same types of things; his fund is in Texas. It goes by the fictional name, Ranger, which is a predecessor name of Mr. Dondero’s fund. So, just the basic picture is, the judge has written three books now, where she paints this fictional version of Mr. Dondero in a very negative light, and herself in the light of an avenger, essentially.

Mark Chenoweth: Yeah, I would be concerned, given this factual scenario, I would be concerned if the case was all over and these pieces were written, and I would say, “Oh gosh. Was this judge really giving this person a fair shake during the trial, given these novels that have been written after the fact?” But, Russ, this proceeding is still ongoing.

Russ Ryan: Yes, yes. It’s kinda crazy in that regard. But, to get to the legal part of this, Mr. Dondero, unsurprisingly, has sought, on several occasions, to have the judge recuse herself. And in fact, the first few motions which were denied came before, I think, before he realized that there were these novels out there. There were other reasons why he thought she should recuse, including the impressions she had obtained in prior proceedings that some of his companies were involved in. But when they learned that there were these novels, and they were dumbstruck that it looked like it was her against me.

John Vecchione: Gob smacked, maybe.

Russ Ryan: Gob smacked, that was the word, yeah. One of these fact patterns that still used these words.

John Vecchione: It would be good if the cover said, “Ripped from the headlines!” Right? It would be even better. But, go ahead.

Russ Ryan: I think the publisher’s promos for the book do feature --

John Vecchione: I did. I read that, they said, “Based on real life,” or something like that. It was not too covered up.

Mark Chenoweth: It wasn’t “Any resemblance to characters in real life is purely coincidental.”

John Vecchione: That was on the back of the book. But the marketing is like, yeah.

Mark Chenoweth: It’s always the marketing guys you gotta worry about.

John Vecchione: That is true.

Russ Ryan: Okay. So, as you might expect, he then moves to recuse again, and the judge again denies it. So, he takes it up to the Fifth Circuit.

John Vecchione: Well, sure. He’s a bad guy. You don’t want to grant his motions.

Russ Ryan: Takes it up to the Fifth Circuit on interlocutory appeal as the proceeding goes forward and in front of the bankruptcy judge. Fifth Circuit – well, no, he first has to go to the district court, ‘cause it’s a bankruptcy proceeding. So, it goes to the district court, the district judge applies an abuse of discretion standard, and says, “You know, maybe it’s a close call, but I can’t say she abused her discretion.” So, Dondero then takes it further to the Fifth Circuit.

And the Fifth Circuit essentially says the same thing, but layered on top of the abusive discretion standard, he had to do it by mandamus to the Fifth Circuit, ‘cause you can’t just appeal it. And I don’t even think it’s – yeah, it’s definitely not an appeal by right. But for whatever reason, he either needed to or chose to do it through mandamus. And the usual standard on mandamus is that you – it’s a very tough standard, I can’t remember the exact words, but it’s clear and –

Mark Chenoweth: I think it’s “You’re not gonna win,” is the standard for mandamus, but it’s very difficult.

John Vecchione: Or it has to be a ministerial duty that you failed in that they can just read the words and it says, “You must do this and you haven’t done that.” That’s kind of it.

Russ Ryan: So, in any event, he’s got now two layers, he’s got the abusive discretion standard he’s gotta meet, but then he’s gotta get the super abuse in order to get mandamus based on the abuse of discretion. So, believe it or not, there’s kinda like a – there is splitting the courts, but most courts rule the same way the Fifth Circuit did, other than the Seventh Circuit, which views these de novo –

Mark Chenoweth: And, accurately, I think. I think the Seventh Circuit has the better argument here, don’t you?

Russ Ryan: Yeah, I do. And that’s what the petition says, too. So, the petition does a good job in saying why it’s pretty problematic to allow a judge, a single judge, to have a deferential standard of review when the issue involved is a legal question as to whether that judge’s impartiality could reasonably be questioned. You’re just deciding an issue that involves yourself, it’s hard to be objective.

Mark Chenoweth: Well, not just that, but if the standard for recusal is whether it could reasonably be questioned, why should there be a deference standard to that? The question is whether or not a reasonable person would think that. It’s not whether the judge would; it’s supposed to be an objective standard, and you can’t really have an abuse of discretion around an objective standard. Either a reasonable person would think that this set of circumstances, which this one to me, any reasonable person would look at and say, “This isn’t gonna fly.”

John Vecchione: And, in this case, one reason we’re in it, bankruptcy judges are on Article III.

Russ Ryan: That’s exactly right. Yeah. I think if this were a district judge, yeah, we’d be bothered by it, but I don’t think we’d have a whole lot to say about it. But I was a little –

Mark Chenoweth: Maybe on this program, we would. But we might not be filing a brief.

John Vecchione: I was a bit surprised that neither the parties nor the courts below had focused on the fact that this was not an Article III judge, it was an Article I judge of the bankruptcy court. And so, we decided we had a role to play here. We could put in a what turned out to be a pretty short brief. But it’s brief and to the point. It just says, this would be bad enough if it were a district judge where you’ve got one Article III Court reviewing another Article III Court’s decision on a question of law. It’s actually a mixed question of fact and law. But the fact’s not really disputed here. So, it effectively was a question of pure law.

Mark Chenoweth: Let me just, in defense of Russ here, this brief is seven pages long, maybe it goes onto the eighth page a little bit, but you’re making a contribution that no one else made. And I think we should do that more often in our amicus briefs, and we do try to. I’m not suggesting that it’s unique in that regard. But, we shouldn’t be abashed about putting in a short amicus brief when what we have to say is short and to the point, and different. And I think it definitely will add value to how the Supreme Court looks at this case.

Russ Ryan: Yeah, this is one of the amicus briefs I’ve liked the most. Just because it’s something, it doesn’t look like other people have thought about, but it’s a huge threshold question that the courts should be focused on and saying – and it gives the court too, an option to issue a narrower ruling that doesn’t sweep too broadly that could say, we don’t need to deal with whether a district judge needs to abuse their discretion.

All we’re saying here is if it’s a non-Article III adjudicator, and part of the reason we’re – if it’s a non-Article III adjudicator, it needs to be de novo by some Article III court. But, the other reason I think we’re interested in this is I’m hoping that if they rule that way, the ruling will make clear that it would apply equally to a similar decision made by an agency adjudicator who’s also –

John Vechhione: Not an Article III.

Russ Ryan: But, I don’t think, are they Article I? I’ve never really understood that.

Mark Chenoweth: They are.

John Vecchione: They’re – in the constitution it says they can do bankruptcy, and they did bankruptcy through Article I for reasons I don’t know.

Mark Chenoweth: But, he’s talking about other ALJs.

Russ Ryan: They’re talking about like, SEC –

Mark Chenoweth: They’re not judges, they’re hearing officers, so in that sense, I would say they’re not –

Russ Ryan: I think the basic point of the brief is, look, if you’re being a – if you’re adjudicator is adjudicating against you on a question of law or a mixed question of law and fact, you need to have the right to have some Article III judge look at it anew, de novo, and not give deference or some very light standard where you can almost never prevail.

John Vecchione: And particularly, this is a good fact case for that because just as I started out, who could look at this – I can’t even believe that the district court judge said, “Ah, this is a closed question.” It’s the sort of thing where as soon as you look at it, you go – of course it’s bringing the judiciary into ridicule because we’re ridiculing them right here.

Mark Chenoweth: John, I think that a district judge looks at a bankruptcy judge like a husband looks at his wife when she asks, “How does this dress look on me?” And, if it doesn’t look good, you don’t say, “Eh, it doesn’t look good.” You say, “You know, it’s a close call.” But I think that might be what’s going on here. It’s just a little too much deference, dare I say, to the bankruptcy judge here, out of some sort of misplaced sense of not wanting to offend someone.

Russ Ryan: One other good fact here, I think –

Mark Chenoweth: It’s not misplaced when it’s your wife. But it is misplaced in this context.

Russ Ryan: I think one other good fact here is, this was not a question of bankruptcy law, where I think even as a matter of law, but certainly as a matter of practical reality, most judges who do not have bankruptcy expertise, are not inclined to question the bankruptcy judge’s decision where it goes to the core of the bankruptcy proceeding. Here, it was completely divorced from the bankruptcy case. It was the type of decision that judges make all the time in all manner of cases.

John Veccchione: Any layman could have told you.

Russ Ryan: Another good fact for the petitioner is the Fifth Circuit expressly said a strong argument could be made that she should have recused herself. But, we need to – we can’t say it was an abuse of discretion ‘cause we need to defer and all that.

Mark Chenoweth: So, the standard drove the decision.

Russ Ryan: Yeah. Exactly, yeah, there’s no question.

Mark Chenoweth: Yeah. So, let me ask you this. Do you think that the courts gonna grant cert here? And why?

Russ Ryan: I think there’s a good chance. There is a circuit split, although it’s pretty lopsided. I think it’s 12 to 1 on the main issue.

Mark Chenoweth: You know, this reminds me of a case –

John Vecchione: If they’re gonna take it, they’re gonna overrule it.

Mark Chenoweth: For sure, right? For sure.

John Vecchione: Yes.

Mark Chenoweth: It’s funny you say that, ‘cause I wrote that down, right here on my sheet, ‘cause it reminds me of a case from when I was at Washington Legal Foundation. I think Dark Cherokee was the name of the case. And there were 11 circuits that had already weighed in on the question, and I can’t remember exactly what the question was now, but we thought they were all wrong. And so, I think, it was either the Eleventh or the Twelfth Circuit had weighed in the exact same way, and we said, “Look, Court, you have to grant cert because they’re all getting it wrong.” And sure enough, the court granted cert, and it reversed all ten or eleven circuits that had decided the question. And I think that’s sort of what needs to happen here. The Seventh Circuit is the only one getting it right.

Russ Ryan: I think it also helps that the facts are just fascinating. I have to believe that way, at least at some self-conscious level.

John Vecchione: They take ERISA cases, right? They definitely take this one to clear the palate.

Mark Chenoweth: Well, I was gonna say the court likes to write books, too. So, what better case to write a book about than this one?

Russ Ryan: The one thing I think may be going against them is, it’s been a controversial topic, Supreme Court Justice refusals. And that could – it might be a third rail they don’t wanna go near in the current climate.

John Vecchione: But, as Mark says, they’re almost all authors as far as I can tell, so maybe.

Russ Ryan: Mostly non-fiction.

John Vecchione: We hope.

Russ Ryan: It’s on pure legal issues, although Justice Gorsuch’s book was, I think, based on real-life cases that involved the human element.

John Vecchione: Some of ours.

Mark Chenoweth: All right. Well, I hope this gets taken. Where does it stand now?

Russ Ryan: Well, the respondent’s brief is due; it would have been due around the time we filed, but of course, once they knew there were gonna be amici, they got their 30-day extension. So, I guess –

Mark Chenoweth: Plus, the government shut down.

Russ Ryan: Probably a month from now, they’ll file, and it’ll go to conference probably early next year.

John Vecchione: Got it. All right. Well, this is gonna be one to watch.

Mark Chenoweth: Yeah. And the case is Dondaro v. Jernigan, number 25-355 at the Supreme Court. And, we’ll see you next time on Unwritten Law.

Russ Ryan: Thanks for having me.

Mark Chenoweth: Thanks, Russ.

Russ Ryan: Lot of fun.

Mark Chenoweth: As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

[End of Audio]

Duration: 17 minutes