The Bankruptcy Judges in Chorus

  Here's a curiosity, ripped from an email circulating among members of the Cal State Bar Insolvency Law Committee:

In a decision signed by 20 bankruptcy judges sitting in the Central District of California, the bankruptcy court (J. Donovan) denied the U.S. Trustee's Motion to Dismiss a Chapter 13 BK case.  The U.S. Trustee argued that a same sex couple did not qualify to file a joint bankruptcy case, based on the federal Defense of Marriage Act's (DOMA) definition of "spouse" as a person of the opposite sex who is a husband or wife.  The court ruled that DOMA is unconstitutional.

I'm  not particularly upset by the substance of the decision, although I think it probably does torture the statute.  But statutes get tortured in much worse ways and as a matter of policy, I don't see any reason why Chapter 13 should not be open to partnerships of any sort, domestic or otherwise (same goes for closely held corporations).

What intrigues me is this business of a joint decision--I guess you would call it an en banc--from the twenty judges (is that 100 percent?).  And on a "constitutional issue," at that.

Thing is, the judicial power of the bankruptcy judge in any event is very close to an exercise in smoke and mirrors.  Thing is, the Constitution provides that " The judicial Power of the United States" may be exercised only by one appointed to serve "during good Behaviour."  By almost universal assent, this translates into "lifetime appointee."   The district judge is clearly a lifetime (=220 volt) appointee.  The bankruptcy  judge is appointed for a term of 14 years (= 12 volts).  In order to tease any power out of the bankruptcy judgeship, you have to  persuade yourself that the bankruptcy judge is either (a) not exercising "judicial power;" or (b) not exercising power at all but merely working as some sort of instrument of the district.

That, in crude oversimplification, is the framework established back in 1982 in a Supreme Court decision called Marathon.  Bankruptcy judges today may be best understood as doing a bit of both--a bit of (a), a bit of (b).   Like a lot of ramshackled institutional constructs, it works a lot better in practice than in description, though I suspect there are a fair number of lawyers--the more thoughtful, reflective sort--who remind themselves that the whole thing is a bit of shadow puppetry.

Anyway, the rickety framework may be good enough to get the judge through the daily calendar of dischargeability cases, claims adjudication, that sort of thing,.  "Constitutional" issues might be seen as somewhat above the humble servant's pay grade.  But constitutional issues have an annoying habit of popping up just anywhere (there's a fine old opinion by Justice Douglas that started out as a vagrancy case in Louisville police court--I know, I happened to be there that day).   So maybe the bankruptcy judges has the right/power to open his mouth as the case whizzes by on its way to higher authorities.

But what's this business about an en banc?  Twenty times nothing is still nothing, and if the judge deciding the case has such slender authority, what can it mean for the other 19 to scratch their John Hancocks?     Formally, I can't think of any.  Functionally, it certainly is a way of saying "hey guys, we really mean it.  And it is the way will behave until some real plucks our ears."

The way they will behave: there is perhaps one better argument to be made in favor of the judges than the dismissive travesty I've put together here.   That is: if a judge has jurisdiction over anything it is perhaps the conduct and management of his own court: to set times for hearings, to direct when the clerk's office will open and close, to tell a recalcitrant pro se litigant that he should just shut up.   This case might just be a case about  "what should the clerk do when the joint petitioners present a petition?"  The answer may be, simply as a matter of court management--go ahead put a stamp on it, accept it as filed.  "Accept it as filed" doesn't tell you much but it doesn't tell you nothing, and it tells you something that 20 LA judges are ready to accept these petitions.

Statement of Interest:  Why should I care so much about an arcane sideshow in the bankruptcy court?  Well may you ask.  One reason is that I provided over a similar shadow-play myself when I was a bankruptcy judge in LA.  I had written an opinion on what you might call a vexatious procedural issue.   I rather admired my own handiwork: I invited my colleagues to affix their names to it and some did (in some cases, I suspect, more as a courtesy to me than from any deep conviction).  The opinion went into the reports where I presume it reposes unmolested to this day.  I remember wondering at the time just exactly what in hell it was that I was doing.  FWIW some years later I began to have some second thoughts about the judgment.  But second thoughts are not a permissible luxury in a judge.