Joel Shapiro faced an uphill battle when he fought the Securities and Exchange Commission in an Atlanta court last year.
The investment-firm chief executive came before an SEC administrative law judge who has never fully cleared a defendant. In August, the judge found Mr Shapiro had violated securities law, showing “reckless disregard” for his duty to investors.
Shapiro’s outcome isn’t unusual. Shockingly, neither is that SEC admin judge’s record. Appeal? Don’t bet against the house [emphasis added].
The odds are once more against Mr Shapiro as he challenges this ruling. His appeal will be decided by the SEC’s five commissioners, the same body that decided the case against him should go forward in the first place.
The SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year, according to the Journal analysis. That was markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.
There’s nothing wrong with using judges specialized in an aspect of the law: we get faster results that more closely align with the law and with justice. That’s what bankruptcy judges do, for instance.
Specialized judges though, regardless of their specialty, need to be Article III judges—judges who are part of that third branch of our Federal government, like bankruptcy judges—not Article II judges. An Article II judge—that SEC judge, for instance—is created by the Executive Branch, and he works for the agency bringing the complaint.
No, the critical item here is the judge’s employer. With the SEC, for instance, it’s an Executive Branch judge, an SEC judge, adjudicating a case brought by a part of the Executive Branch, the SEC. That’s like the cop bringing his own judge to traffic court. Or a Federal prosecutor bringing his own judge to criminal court.
Maybe Shapiro has a case, and maybe he’s guilty as sin. It’s impossible to say in an SEC court. Can you say, “Conflict of interest,” boys and girls?