Metropolitan News-Enterprise


Thursday, April 10, 2008


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Circuit Replaces Judicial Discipline Rules With National Standards




The Ninth Circuit Judicial Council has repealed its rules governing judicial misconduct and disability proceedings in light of the adoption of new, nationwide rules by the Judicial Conference of the United States.

Effective today, allegations of misconduct by federal judges in the circuit—including appellate, district, magistrate, and bankruptcy judges—are to be received, investigated, and dealt with according to the new nationwide rules, which took effect March 31. Any pending proceedings—unconcluded proceedings are confidential under both the old and new rules—will be dealt with under the old circuit rules, the council said Tuesday in an order.

Prior to the adoption of the new Rules for Judicial-Conduct and Judicial-Disability Proceedings, there were no binding national rules for such actions, although the Judicial Conference had adopted Illustrative Rules for the guidance of the circuit judicial councils.

The Ninth Circuit Judicial Council is made up of Chief Judge Alex Kozinski; Circuit Judges Sidney Thomas, Susan Graber, M. Margaret McKeown, and Marsha Berzon; Senior Circuit Judge David Thompson; Chief U.S. District Judges Donald Molloy of the District of Montana, Alicemarie Stottler of the Central District of California; Irma Gonzalez of the Southern District of California, and Robert Lasnick of the Western District of Washington; and Senior U.S. District Judge Terry Hatter, a former chief judge of the Central District of California.

Judicial Conference

The Judicial Conference—which is made up of Chief Justice John Roberts, the chief judges of the 13 appellate courts, the chief judge of the Court of International Trade, and one district judge from each of the 12 circuits defined by geography—adopted the rules to implement the Judicial Conduct and Disability Act of 1980, which establishes specific responsibilities for chief circuit judges and judicial councils with respect to allegations that judges have acted unethically or are unable to perform their duties.

The new rules were adopted by the conference in response to a September 2006 report by a committee chaired by U.S. Supreme Court Justice Stephen J. Breyer. The committee found that while there was “no serious problem with the judiciary’s handling of the vast bulk of complaints under the Act,” five “high-profile” cases, out of 17 that were studied, were handled in a “problematic” manner.

An error rate of that size, the committee said, is unacceptable.

“Because the matters at issue have received publicity, the public is particularly likely to form a view of the judiciary’s handling of all cases upon the basis of these few,” the committee wrote. “And the mishandling of these cases may discourage those with legitimate complaints from using the Act.”

The act provides for an initial review of complaints by the chief judge of the circuit in which the matter arises.

‘Corrective Action’

Where there is no basis for further action, such as where the complaint concerns the merits of a lawsuit, the chief judge may dismiss the complaint outright. Otherwise the chief judge must either take informal “corrective action” that is agreed to by the judge or appoint a “special committee” of judges to investigate and make recommendations, which are ultimately reviewed by the judicial council.

The council may impose private or public censure or reprimand, order that no new cases be assigned to the judge for a limited period of time, request that the judge retire, and/or refer the matter to the Judicial Conference, which can recommend that the judge be impeached. In some circumstances, a complainant or an accused judge may appeal the council’s decision to the Judicial Conference.

The Breyer Committee found that in a relatively small number of cases—fewer than four percent of those studied—chief judges dismissed complaints when they should have referred them to a special committee or at least made a more searching inquiry into the facts before deciding that the complaint lacked possible merit.

In the high-profile cases, however, “[f]our of the five problematic terminations resulted from the inadequacy of the chief judge’s limited inquiry or the failure to appoint a special committee,” the Breyer panel found.

The panel also cited several cases in which the adequacy of proceedings by the judicial council was called into question. None of the judges involved were named, but one of the cases was unmistakably that of U.S. District Judge Manuel Real of the Central District of California.

Real was accused of having taken control of a bankruptcy case because of his personal interest in the plight of the debtor, whom he had placed on probation in an earlier criminal case, and who was the estranged wife of an owner of Canter’s Delicatessen.

The Ninth Circuit Judicial Council terminated misconduct proceedings with a finding that the judge’s expression of regret for “misunderstandings” concerning his actions in the case constituted “adequate corrective action” under the judicial discipline statute.

The decision drew a sharp dissent from Kozinski, who said Real had “committed serious misconduct by abusing his judicial power.” He called for a public reprimand, for ordering Real to compensate the bankruptcy creditors income lost as a result of his intervention in the case, and for the judge to apologize to the creditors.

The Breyer committee said it was “problematic” for then-Chief Judge Mary Schroeder not to appoint a special committee to investigate, and that the finding of corrective action should not have been made because Real “offered no meaningful apology, provided no redress in the form of words or otherwise to the creditor for its losses, and did not promise not to repeat such conduct but simply predicted it wouldn’t recur.”

Among other things, the new rules:

•Clarify the scope of the chief judge’s initial inquiry into a misconduct complaint, specifying that the chief judge is not to dismiss a complaint based on his or her personal determination of an issue that is “reasonably disputed”;

•Permit, and in some instances require, the chief judge to “identify a complaint,” meaning that allegations of misconduct would be subject to investigation and could result in discipline even if no formal complaint is filed;

•Permit the chief judge to conclude a proceeding by “voluntary corrective action” only if that action “acknowledges and remedies the problems raised by the complaint”; and

•Require that all orders by the chief judge and judicial council be made public, with any supporting memoranda and dissenting opinions or statements of individual members, upon the conclusion of the proceedings, except that the judge’s name may not be disclosed without his or her consent if the case is dismissed by the chief judge or concluded with voluntary corrective action or by private censure or reprimand, and the council has discretion as to whether to make the judge’s name public if the case is dismissed after a special committee is appointed.

Kozinski had previously announced that any disciplinary actions against judges in the circuit would be posted on the Ninth Circuit Web site.


Copyright 2008, Metropolitan News Company