Hanging on the walls of the judges' private conference room on the top floor of the D.C. Court of Appeals are the distinguished portraits of the court's early chief judges. In this chamber, the city's highest judicial institution conducts its most important business, led by present Chief Judge Theodore R. Newman Jr.
Peering over Newman is the painting of his predecessor, Gerard D. Reilly. Ironically, Reilly's image also hangs over Newman's head in his fight to be reappointed chief judge of the city's highest court when his term expires this week.
For it was Newman's efforts to exclude Reilly from participating in the court's work that is one example of the way he wields power and has bitterly divided the ordinarily stately group of judges. Four of his eight colleagues -- Frank Q. Nebeker, Stanley S. Harris, George R. Gallagher and John W. Kern III -- are opposing his reappointment in a behind-the-scenes clash that is unprecedented in D.C legal annals.
When he retired in 1976, the 70-year-old, silver-haired Reilly informed Newman that he still wanted to participate, as permitted by law, in a case that he had worked on when he had been an active judge.
Newman was determined not to let his conservative predecessor participate in the case, which dealt with the expunction from police records of persons found not guilty in criminal cases. Over Newman's objections, however, the other judges on the city's highest court voted at their private conference to let their former chief sit.
"Very well," Newman declared after the vote, "I will have to reevaluate the use we make of retired judges on this court."
Since then, Newman has not appointed a single retired judge to hear the court's regular cases and assigned Reilly to help negotiate settlement of cases before they are heard by the court. Although some court officials say Newman's plan is more efficient, Reilly recently expressed frustration over his new status: "I must say," Reilly told a reporter, "I don't enjoy the situation."
The Reilly episode is one example of how Newman, the only black judge in the United States to head a state-level court system, has tried to shape the court, and in the process generated internal turmoil in the court's chambers.
The controversy over Newman's reappointment is a complex one that has totally consumed the city's most important tribunal. It is a political power struggle that is played out most pointedly behind the courthouse doors, in the judges' secret conferences and in the carefully-worded memos that flow back and forth between the judges, who only occasionally hint in stilted judicial prose at the strong emotion behind their words.
Some say the battle between the explosive Newman and colleagues who resist him is a fight over old and new, between liberal and conservative, between those who believe the court should encourage the legislative and mayoral actions of the young city government under home rule and those who want to restrain them.
In several instances, Newman's actions have brought him into conflict with some of his colleagues:
Two of the most significant criminal cases currently under consideration by the court involve the controversial preventive detention law that allows D.C. Superior Court judges to lock up criminal suspects pending trial and the issue of whether a judge can close a pretrial hearing to the public. Newman was serving his rotating term on a three-judge panel that customarily hears such appeals, when the cases (Edwards v. U.S., U.S. v. Edwards ) came to the court's attention.
To some of his colleagues, Newman seemed in a great hurry to make sure the possibly landmark decisions were heard quickly while he was on the panel, which included another liberal judge and seemed likely to rule the way Newman wanted. However, Gallagher didn't like that, and he called for an immediate conference of the judges the morning Newman had scheduled oral arguments in the case.
"I first learned on a Monday afternoon," Gallagher later wrote in a two-page memo dated May 29, 1980, to his colleagues, "that I was to sit on a case scheduled for the next day involving a) the constitutionality of the Preventive Detention Act and b) closing of courtroom doors to the public by order of a trial judge, raising constitutional questions currently regarded as of national importance.
"After trying without success to have a meaningful discussion with the chief judge to determine a) how this occurred and b) whether there should . . . be more of a time gap prior to argument so I could acquaint myself with these major issues . . . I was told the cases were scheduled for the next day, 'and that is it.'
"I then felt compelled to take my problem to the full court . . . If there should in the future be a repetition of this sort of disregard when I am on a hearing division, I will not countenance it."
The conference voted to seize the cases from Newman's three-judge panel and instead let the full nine-judge court hear them. The emotions involved in the conference's decision were later characterized in a sharp exhange of memos between Newman and Gallagher.
"I will not answer your memo in specific," Newman wrote Gallagher in a blistering memo dated last May 29, "for it is so full of factual misrepresentations as to indicate that you may have an ulterior motive in writing it. Although I know not what that motive may be, rest assured that I will be prepared at an appropriate time and in an appropriate fashion to deal with any issue which may arise."
Later, in a memo dated June 27, 1979, Gallagher curtly referred to Newman's "incontinent memo which I preferred to remain above and did not answer."
Newman got the last laugh. After both cases were heard by the full court, Newman voted at conference with the majority and assigned himself both opinions. They are pending. Home Rule: The Condominium Conversion Case
Appeals Court Judge Catherine B. Kelly's Northwest Washington apartment was not only the subject of a case of major significance before the court this year, but was the catalyst for a showdown over the court's role in deciding D.C. home-rule issues.
The case (D.C. v. The Washington Home Ownership Council, Inc.) concerned a challenge by a group of condominium developers to the City Council's emergency power to enact successive moratoriums on conversions of apartments to condominiums, in the face of a severe residential displacement problem in the city.
The judges voted 7 to 2, after oral arguments last Nov. 26, against the city council's action. Newman, ordinarily the court's staunchest supporter of home-rule government, surprised some of the judges by siding with the majority.
As the most senior judge on the court, Newman has the power if he is in the majority, to decide which judge will write the final opinion of the court. In the condo conversion case, his opponents felt he had tactically joined the majority so he could assign the case to a liberal member of the majority and keep it away from a more conservative judge who might be inclined to oppose his pro-home-rule stance.
The fears of Newman's opponents proved true. Newman first gave the case to Kelly, one of the most liberal members of the court. However, after Kelly wrote Newman a brief memo dated Nov. 29, 1979, saying she had to withdraw from the case because her "apartment building had been featured in the television news as being one that would be affected by the outcome," Newcome gave the majority opinion to another liberal member of the majority, John Ferren.
There was lettle the judges opposing Newman could do. Fully expecting Newman to leave the majority and join the dissent, Harris sent him a somewhat sarcastically worded "welcome aboard" memo dated Dec. 6, 1979.
After Judge Julia Cooper Mack circulated a strongly worded pro-home-rule dissent saying that "we should carefully exercise our authority to encourage the development of the responsible and independent government envisioned by the [home rule] charter," Newman switched sides. The chief judge said he had changed his mind.
Meanwhile, the four judges in the majority with Ferren trooped one by one into his chambers, suggesting changes in his proposed opinion to make it more consistent with their views.
When it became clear the four would not be able to get everything they wanted into Ferren's opinion, they issued a separate opinion explicitly defining their opposition to Newman's home-rule position. "If we were to derogate the traditional role of the court in the early stages of this new government," they wrote, "it would bode ill for the expectation of a confident, able, independent judiciary in this jurisdiction."
In another case concerning the home-rule power of the local government, (Convention Center Refendum Committee v. D.C. Board of Elections) the four judges opposing Newman, along with Ferren, successfully got a 2-to-1 Appeals Court decision favoring the mayor's authority under home rule vacated and sent to the full court for consideration. It is now pending. The Political Chief Judge
When Newman appeared before a House District subcommittee last Sept. 23 flanked by Mayor Marion Barry and Council Chairman Arrington Dixon, testifying in favor of legislation that would transfer the appointment power of judges from the president to the mayor, it might have seemed routine to most observers.
But in reality, Newman's appearance was cause for great consternation among some of his judicial colleagues, who bemoaned Newman's public statement of a position which they had never discussed internally.
Nebeker asked the chief judge in a memo to disassociate Newman's views from the rest of the court's. Although Newman responded with a copy of some of his congressional testimony where he said, "I speak as Theodore Newman . . . individually," one skeptical judge is said to have commented, "If FDR went on television for a 'Fireside Chat' and said, 'I'm not speaking to you as your president?', how would that go over?"
In another instance, Newman's critics are expected to tell the D.c. Judicial Nominations Commission that he intervened in August 1978, on behalf of then-Rep. Daniel Flood (D-Pa.), who had asked Newman to expedite the D.C. bar's admission of one of his constituents, an attorney from Scranton. The request came at a time when thousands of applicants were trying to beat a deadline after which stricter admission rules were to be imposed. The attorney's application had been deemed in need of further review by an official of the Commission on Admissions, which is run by the court. Newman ordered that the application be sent to him and he approved it.
Although Newman's opponents say he did nothing illegal, they objected to what they believe was his bypassing of the court's normal procedures. Newman said recently that in order to cut red tape he personally has approved many such applications after determining that the prospective lawyers were qualified.
Because of the growing animosity among the judges on the appellate bench, other ideas Newman has advanced to improve court efficiency have been resisted simply because they came from him. When he suggested a while back that the judges hold special meetings before oral legal arguments to familiarize themselves with issues in a case [a judicial innovation used in other appellate courts] some of the judges saw it merely as a Newman effort to influence the outcome of the cases.
"I went to a few of them," one judge said privately. "I decided p --- on that."
Soon most judges stopped attending the meetings. Newman finally circulated a memo on which he had drawn a tombstone. He had scribbled in an epitaph: "Pre-Oral argument conferences, R.I.P., I surrender, the Chief Judge."