Metropolitan News-Enterprise


Monday, October 3, 2005


Page 1


Ninth Circuit Panel Tosses Misconduct Case Against Manuel Real

Council Accepts Jurist’s Statement of Regret for ‘Misunderstandings,’ Dissenting Kozinski Says Judge Abused Power




The Ninth Circuit Judicial Council has ended misconduct proceedings against U.S. District Judge Manuel Real of the Central District of California, saying the judge’s expression of regret for “misunderstandings” concerning his actions in a bankruptcy case constituted “adequate corrective action” under the judicial discipline statute.

The decision, released late Thursday, drew a sharp dissent from Judge Alex Kozinski, who said Real had “committed serious misconduct by abusing his judicial power.”

The council’s action, taken by a vote of 7-3, puts to an end the largely secret process put into motion after attorney Stephen Yagman filed a complaint against the 80-year-old jurist in February 2003.

Yagman was not, and did not represent, a party to the bankruptcy case. The statute, however, allows anyone who believes a judge has acted unethically to file a complaint.

Real did not return a MetNews phone call seeking comment Friday.

The case arose from the bankruptcy of Deborah M. Canter, the estranged wife of an owner of Canter’s Deli. Deborah Canter pled guilty in 1999 to loan fraud and making false statements under oath, and was placed on probation by Real.

Probation Conditions

One of the conditions of probation was that Canter and her probation officer meet personally with the judge every 120 days. Real explained to the Judicial Council that he has imposed similar conditions on many probationers, believing that it promotes rehabilitation.

Canter and her husband Gary had separated two months before the plea, and Gary Canter had moved out of the family’s Los Angeles home, which was owned by a trust established by his parents. Gary Canter stopped paying rent when he moved out, and the trust sued to evict Deborah Canter from the premises.

Deborah Canter temporarily stopped the eviction by filing for bankruptcy the day the eviction was to go to trial She later agreed to move out, but just days before her scheduled departure, she sent a letter to Real asking for his assistance in keeping her in the house.

The Judicial Council was told that the letter—which Real denied ever receiving—was drafted with the assistance of the wife of Canter’s attorney, Andrew Smyth. Smyth told the council that his wife, who was working as his secretary, is an immigrant and was, according to a Judicial Council staff report, “unfamiliar with the habits of American judges.”

Real subsequently exercised his statutory authority to assume jurisdiction over Canter’s bankruptcy case, which had been assigned to Bankruptcy Judge Alan Ahart and reinstated the previous order staying the eviction.

The Canter Family Trust appealed. The Ninth Circuit—whose opinion, unlike the two Judicial Council decisions in the case, identified Real by name—reversed, holding that Real lacked good cause for taking control of the case and re-imposing the stay.

Soon after the ruling, Deborah Canter and the Canter Family Trust settled, and she moved out of the house.

The appellate reversal did not satisfy Yagman, who has been feuding with Real for years, once accusing the judge of suffering from “mental disorders.” He filed a complaint under the Judicial Council Reform and Judicial Conduct and Disability Act of 1980.

The act provides that misconduct complaints are reviewed by the chief judge of the circuit. If the chief judge finds that the complaint is baseless, that it intrudes upon the province of the Court of Appeals by seeking to hold the judge accountable for mere legal error, or that the matter can adequately be handled informally, the complaint is dismissed.

Otherwise, a special panel of judges is appointed to conduct a formal inquiry. The panel then reports to the Judicial Council, which is authorized to impose a public or private censure or reprimand, or to bar the judge from hearing cases for a time, or to recommend that the Judicial Conference of the United States seek the judge’s impeachment.

A dismissal or informal resolution by the chief judge is reviewable by the Judicial Council on petition of the judge or the complainant.

Yagman Accuses

Yagman accused Real of having placed a “comely” defendant on probation “to himself, personally” and of having taken over her bankruptcy case because he wanted to “benefit an attractive female.” He suggested that an investigation be launched in order to “determine, among other things, the actual relationship” between Real and Deborah Canter.

The complaint was initially dismissed by Chief Judge Mary M. Schroeder, who noted that Real had, in fact, transferred the bankruptcy proceeding to another judge after re-imposing the stay, and that the second judge had sent the case back to the Bankruptcy Court.

Schroeder ruled that Yagman did not provide “any objectively verifiable proof” of the charge that Real acted for personal reasons, and that the Ninth Circuit ruling on the trust’s appeal fully resolved the matter.

But in its first decision in the matter, the council took the rare step of overruling the chief judge, remanding in a 6-4 decision with directions that the chief judge determine whether there was an improper ex parte communication between Canter and Real.

Schroeder concluded that Real was telling the truth when he said he never got Canter’s letter, and dismissed the case again.

That ruling was upheld Thursday in a 7-3 decision of the council, with Ninth Circuit Senior Judge Arthur Alarcon, Ninth Circuit Judges Andrew Kleinfeld, M. Margaret McKeown, and William Fletcher, and District Judges David Levi of the Eastern District of California, and Stephen McNamee and Roger Strand of the District of Arizona, in the majority.

The majority accepted Real’s acknowledgment that he should have explained his reasons for taking jurisdiction over the bankruptcy and staying the eviction, and his assurance that “[h]e does not believe that any similar situation will occur in the future.” It explained that the purpose of the statute is not to punish judges, but to assure the fair administration of the laws.

Kozinski and District Judges B. Lynn Winmill of Idaho and David A. Ezra of Hawaii authored separate dissents, Kozinski’s being by far the strongest of the three.

Kozinski argued that “the unusual and uncomfortable facts presented by the record before us” required formal proceedings. Real, he said, engaged in “a raw exercise of judicial power, the net effect of which was to let Deborah Canter live in the [residence] rent-free” for three years after Real twice summarily denied the trust’s motions to life the stay.

He cited an exchange in which the trust’s attorney asked Real why the motion was denied and the judge “Just because I said it, Counsel.”


Copyright 2005, Metropolitan News Company