By Stephen Brittle, President, Don’t Waste Arizona
June 26, 2012
The message from the Ninth Circuit Court of Appeals was clear: if you are concerned about the environment; if you want to protect Native American sacred areas; or even if you simply want to make sure that the federal government complies with its own environmental obligations, go home. You are not welcome in the Ninth Circuit. Recently a three judge panel of the Ninth Circuit imposed sanctions on a pro bono attorney for the Save the Peaks Coalition. In an opinion issued on June 21, 2012, Ninth Circuit Judges, J. Clifford Wallace, John T. Noonan, and Milan D. Smith, Jr., held that environmental and Indian rights attorney Howard Shanker acted in “bad faith,” that he “grossly abused the judicial process,” and that he “misled his clients.” As a result, according to the Ninth Circuit, Shanker has to personally pay all the costs of the intervenor-defendant Snowbowl Resorts Limited Partnership. Here, however, is the rub. The only thing Shanker is guilty of is providing competent representation to his clients for free (pro bono) on a politically charged matter of public importance.
Nothing in the entire record of this case provides any basis for a finding of bad faith, or an abuse of process, nor does it provide any other indication of unethical or unprofessional behavior on the part of Shanker. Indeed, even the court’s opinion is void of any reference to any specific behavior in the context of the case that could warrant a sanction. Further, Shanker’s clients are adamant that he never misled them about anything—an allegation that appeared for the very first time in the Ninth Circuit’s opinion. As Gary Marchant, the Lincoln Professor of Emerging Technologies, Law & Ethics at Arizona State University’s Sandra Day O’Connor College of Law explains, “there is no question that [the San Francisco Peaks case involved] a valid set of claims that could have been decided either way [and] therefore is clearly not a case where sanctions would be appropriate or warranted.” Professor Marchant adds that “applying sanctions in a case such as this would have a chilling effect on the willingness of qualified counsel to take on controversial and important public interest matters of any type.”
Judges are supposed to be neutral arbiters of the law. Here, however, Judges Wallace, Noonan, and Smith are attacking Shanker’s credibility and reputation, and imposing sanctions on him for bringing a case simply because it appears to be at odds with their ideological and political bent. More recently, Judge Smith, the judge who wrote the Save the Peaks opinion, launched a political tirade in a dissenting opinion in Karuk Tribe of California v. U.S. Forest Service, where he rails against the enforcement of environmental laws as bad for business. But that was just a dissenting opinion. Smith didn’t have the political majority in the Karuk case, like he did in Save the Peaks. The chilling effect that the Save the Peaks Coalition case could have on any attorney who
might have otherwise been willing to help a community group, an environmental organization, or even a Native American tribe cannot be overstated. The message is clear, bring a case we disagree with and we will rule against you, attack your credibility, and impose sanctions on you—regardless of the facts or law of the case. Apparently the federal courts no longer have to even try to keep up the facade of impartiality.
Shanker has indicated that he intends to file a petition for a rehearing en banc with the Ninth Circuit. Such petitions are, however, discretionary and only rarely granted. The one thing we can truly learn from this process, is that no good deed goes unpunished. Let this be a warning to attorneys, if there are any left, that want to protect the environment, ensure the integrity of Native American rights and sacred areas, and who feel compelled to champion the public interest over the short term economic gain of a few, especially if the attorney is willing to work for free. According to the Ninth Circuit, such misguided practitioners will from now on be punished for their willingness to stand up to the machine and to challenge the status quo—the law or facts be damned.