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The so-called secret rules that federal judges in the Southern District of Florida have been operating by for more than a decade are no longer secret. Under pressure from defense attorneys and the Federal Public Defender Office after an article about the rules was published in the Daily Business Review, the district court in Miami has for the first time made public its internal operating procedures manual. The manual, signed by Chief Judge William J. Zloch Nov. 14, is available for viewing on the court’s Web site. The 20-page manual lays out procedures for how the federal judges assign and reassign cases, how new judges receive cases, jury instructions and magistrate assignments. It also details special powers of the chief judge, which include appointing the chief bankruptcy judge and chief magistrate judge, approving all requests for annual and sick leaves, approving all new courthouse construction projects and architectural plans and reviewing all complaints of judicial misconduct. The document also reveals that a controversial procedure in which judges can transfer cases to any other judge, rather than transferring them back to a blind wheel, is still in effect. The internal operating procedures will be formally adopted by the judges following a public hearing Jan. 4. The fact that the federal court was operating under secret rules of operation was first disclosed by the Daily Business Review in June. The issue came to light when Senior U.S. District Judge James Lawrence King suddenly transferred his entire criminal docket to U.S. District Judge K. Michael Moore in May, citing a conflict over an employee. At the time, Zloch and Moore both said the transfer was allowed under their internal operating procedures. No one besides the judges seemed to know such a manual existed. But the document says it had been adopted in July 1991 and used by the judges ever since. Defense lawyers and First Amendment lawyers sharply criticized the fact that the judges were operating under “secret rules,” saying the existence of confidential rules could lead to the perception that the court is unaccountable and operates capriciously. “The reason you have rules is to have parties believe that they are being treated fairly and that the judges are not acting according to their own whims,” Thomas R. Julin, a partner at Hunton & Williams in Miami, told The Review. “If you have secret rules, you undermine the perceived impartiality of the court. It’s just like having no rules at all, as far as the litigants are concerned.” But some, including Federal Public Defender Kathleen Williams, were even more concerned about the wholesale transfer of an entire docket from one judge to another, outside the random assignment wheel. Miami defense attorneys Howard and Scott Srebnick, citing local rules for attorneys that called for random reassignment of cases, filed motions challenging the transfer of one of their cases. They asked that their case be reassigned randomly. Moore referred the motion to Zloch, who denied the motion. The Srebnicks appealed to the 11th U.S. Circuit Court of Appeals. That court, while not weighing in on the larger issue of how the court transfers cases, denied their motion. The Srebnicks’ case, in which former Hamilton Bank chief executive Eduardo Masferrer is facing fraud and conspiracy charges, started trial last Monday before Moore. Like most courts in the federal system, new cases in the Southern District of Florida are assigned to judges on a random “wheel” system. The exception is Fort Pierce and Key West cases, which are assigned to judges who have volunteered to preside in those cities. Legal experts say allowing judges to directly transfer cases to each other undercuts the purpose of the random assignment system, which is to boost public confidence in the integrity and impartiality of the system and help ensure that judges are disinterested parties. Lawyers complained to the judges after the Daily Business Review article detailed the secret rules. In a matter of weeks, the judges decided to make the manual public and gave it to the court’s Ad Hoc Committee on Rules & Procedures to ensure it conformed with local attorney rules. No substantive changes were made by the committee, said committee chair Tom Meeks, a partner with Zuckerman Spaeder in Miami. “The intent was to defuse any concern these procedures were secret by making them public,” Meeks said. While First Amendment and defense attorneys lauded the court for disclosing the rules in the nonpublic manual, several were dismayed that the section allowing for direct transfer of cases remains unchanged. “The posting of the internal operating rules is laudable because it advances the public interest in open access to the federal judiciary and increased accountability regarding the internal governance of district courts,” said Anthony Alfieri, director of the Center for Ethics and Public Service at the University of Miami School of Law. But he said he was concerned about the case transfer issue. “The norms of judicial integrity and impartiality and the importance of public perception in the even-handed administration of justice dictates a random reassignment process,” Alfieri said. “That minimizes the risk of perceived or actual conflicts in the performance of judicial duties.” After studying the rules, Julin said: “I don’t see much that’s remarkable; they look to be very neutral rules. I think it’s a very good thing that they have disclosed the rules because it helps everyone to understand how the court is operating and should enhance the credibility of the court that they have disclosed them.” But Williams, the federal public defender, complained about the section allowing for direct transfers of cases, entitled “miscellaneous transfers and reassignments.” The section states: “Judges may confer and directly transfer all or any part of a case on the judge’s docket to any consenting judge. Notice shall be provided to all parties.” Williams says she reads the provision to allow for the direct transfer of one case — “a case” — and does not feel it allowed for the transfer of Judge King’s entire docket. “I see nothing that allows for the wholesale transfer of an entire docket,” she said. “I can see why a judge may go to the judge next door and say, ‘I need help this afternoon, I’m swamped, can you take this case?’” Williams added. “But the preferred method for transferring cases is a blind random reassignment.” Zloch did not return calls for comment. Meeks declined to comment on the case transfer issue. The manual also bars the reassignment of habeas corpus death cases, consolidated cases including multidistrict litigation, sealed cases, cases ripe for disposition or civil cases pending 18 months or longer. The reason for this, according to Michael Pasano, a partner with Zuckerman Spaeder and chair of the criminal law committee of the American Bar Association: These are undesirable cases that one judge may want to pass on to another. Additionally, the manual stipulates that every judge should have one death penalty/habeas corpus case at a time. Portions of the manual dealing with internal employee matters were not made public, according to one judge.

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