The fat was really thrown into the fire in the Seventh Circuit yesterday on the long-mooted subject of the propriety of internet factual research by appellate courts.
Judge Richard Posner, who often chafes (both in opinions and extra-judicially) at what he sees as the “inadequacy” of the facts presented to the court by counsel and the propriety of appellate courts’ “supplementing” those facts with internet research, wrote the court’s opinion in Rowe v. Gibson, No. 14-3316 (7th Cir. Aug. 19, 2015).
Somewhat ironically, in light of the usual focus of Judge Posner’s complaints on the work of appellate counsel, he used the occasion of a pro se appeal by a prisoner from dismissal of his Eighth Amendment claim for a prison doctor’s alleged deliberate indifference to his esophagitis condition, as reflected in what the prisoner asserted were improper limitations on the timing and availability of a Zantac prescription, to research the medical subjects on the web and conclude that summary judgment should not have been granted. Of course, the “facts” that Judge Posner found on various websites were not in the record—though that hasn’t stopped him before (see our earlier post regarding a donning-and-doffing experiment that Judge Posner conducted in his chambers).
Judge Posner rationalized his Internet research as not unlike what judges and their law clerks do when researching case law.
We are not like the English judges of yore, who under the rules of “orality” were not permitted to have law clerks or other staff, or libraries, or even to deliberate—at the end of oral argument in an appeal the judges would state their views seriatim as to the proper outcome of the appeal.
We don’t insulate judges like that.
Slip op. 13. Judge Posner distinguished between judicial web searches “for mere background information,” for facts susceptible to judicial notice, and for facts traditionally determined by the adversary process. This case concerned mostly the second, in his opinion—facts that he might take judicial notice of, aided by the fact that he had “gleaned” the information “from the websites of highly reputable medical centers.” Judge Ilana Rovner concurred in the outcome of Judge Posner’s opinion, though she did not endorse his methods.
Judge David Hamilton (perhaps, not surprisingly, a long-time district judge before his appointment to the Seventh Circuit) dissented strongly, describing Judge Posner’s decision as “an unprecedented departure from the proper role of an appellate court.” Slip op. 29. Judge Hamilton took issue not only with what he sees as Judge Posner’s disregard of the rules of evidence (to which Judge Posner responded by accusing Judge Hamilton of “fetishizing” adversariness), but even with the correctness of the medical conclusions that Judge Posner reached.
In a sign of the sting that he obviously felt from the dissent, Judge Posner attached an appendix to his majority opinion responding point-by-point to the dissent. Here is but one example (from p. 25 of Judge Posner’s appendix, with a reference to the page of Judge Hamilton’s dissent):
Page 43: The dissent again states that we are requiring judges to conduct their own factual research. No. We are even accused by the dissent of trying to turn judges into substitutes for physicians. Again no.
This set of opinions is bound to draw wide attention in the profession. Whether it leads to en banc consideration by the Seventh Circuit is hard to tell, but the case may prove tempting to the Supreme Court.