Judges covering up for Judicial Misconduct, Nationally

Dr. Cordero is a voice of reason to end the madness:


[click here] for Dr. Codero's news release

Dear Dr.Yue,

Further to my reply email of 14 instant, please find
attached hereto the opinion of the Judicial Conference
Committee on Judicial Conduct and Disability on U.S.
Judge Manuel L. Real of the Ninth Circuit. It will
give you an idea of how difficult it is to get a judge
to be disciplined even where the case has received
extensive publicity, let alone one that is dismissed
without anybody knowing about it other than the
complainant.

You indicated that you have had access to the media. I
respectfully encourage you access it with a summary of
your complaint, for people in the media whose
assistants review on their behalf hundreds of letters
claiming their attention are not going to read more
than one page of your case and will be put off by just
the look of a longer letter. If they want more
information, they will ask you for it.

As a precursor of your complaint to the media and in
order to show the depth of the story that you are
bringing to their attention, I submit that you can
approach them with the subject of the Revised Rules
for processing judicial misconduct and disability
complaints that the will allow the judges to continue
their systematic dismissal of such complaints against
their peers and thereby, their self-exemption from any
discipline.

You can indicate to your media contacts that the
Judicial Conference, which is the highest
policy-making body of the Federal Judiciary and
presided over by Chief Justice John G. Roberts, Jr. of
the Supreme Court, will meet in Washington, D.C., on
March 11 to consider those Rules and in all likelihood
to approve them.

To briefly describe to your media contact what is at
stake in those Rules, you may submit to them my one
page newsrelease, which is also attached hereto.

Kindly let me know whether you will be contacting the
media with the subject of the Rules or whether you can
put me in touch with your contacts, such as the people
in ABC 20/20 that you indicated in your email made a
30-minute report on the case that you led and those
that interviewed you in Good Morning America.

Sincerely,

Dr. Richard Cordero, Esq.
************************************


Dear Dr.Yue,

Your strongest point is that there is no
constitutional provision granting immunity either to
the judges or other public servants. On the contrary,
all of them are impeachable under Art. II. See
http://Judicial-Discipline-Reform.org/docs/no_judicial_immunity.pdf

The other point is the nature of the relationship that
develops among life-tenured persons with enormous
power over the property, liberty, and even life of
other people, namely, the dynamics of corruption;
http://Judicial-Discipline-Reform.org/Follow_money/Dynamics_of_corruption.pdf.
Corruption is an impeachable offense. As a matter of
fact, it is one of the categories under which the
judges classify complaints against them when they
publish their statistics.
http://Judicial-Discipline-Reform.org/judicial_complaints/complaint_tables.pdf.


Your case is interesting. If properly briefed and
argued, it can become a test case. Concerned for such
propriety, I made my comments in my reply e-mail of 5
instant to you, with which I intended to highlight the
principle that if you, or for that matter, any of us,
judicial reform advocates, aim to take on the judges,
you and we should think like the lawyers the judges
are so as to anticipate their moves and counteracts;
not to mention protect ourselves from a defamation
suit. The sayings apply here, “Know your enemy better
than he knows himself” and “Beware of going in for
cheese and coming out milked!”

Hence, I am still interested in learning:

1. the facts on the basis of which your group will
oppose that federal judge; you should be keenly aware
of how the 9th Circuit and the Judicial Conference
handled the Judge Real case;

2. whether there is any lawyer in your group and
whether he or she will write the statement of
opposition and/or appear at the confirmation hearing
that you mentioned in your earlier email to me of
February 5;

3. the nature and terms of the participation that you
seek from me;

4. how, when, and to whom your group will propose
changes to the Revised Rules. Those Rules were
recommended for adoption by the Judicial Conference,
which will meet on March 11.

5. whether your group will forward the newsrelease [a]
and the comments [b] to the addressees suggested in
the article [c];

[a]
http://Judicial-Discipline-Reform.org/judicial_complaints/newsrelease_revised_rules.pdf

[b]
http://Judicial-Discipline-Reform.org/judicial_complaints/DrCordero_revised_rules.pdf

[c]
http://Judicial-Discipline-Reform.org/judicial_complaints/how_petition_redress.pdf;

6. how many people there are in your group.

Sincerely,

Dr. Richard Cordero, Esq.
*******************************


--- Dongxiao Yue  wrote:

> Dear Dr. Cordero,
>
> I may engage a suit against a federal judge partly
> for
> his actions outside of his jurisdiction. However,
> other parts of the suit will be related to his
> judicial actions which he enjoys immunity.
> Therefore,
> the suit will need to challenge the consitutionality
> of the judicial immunity doctrine.
>
> I am wondering if you can provide some input.
>
> ABC 20/20 made a 30-minute report on the case I led.
> I
> also appeared in Good Morning America. The suit I
> will
> file will create live controversy that may interest
> media.
>
> Sincerely,
>
> Dongxiao Yue, Ph. D.
>
>
> --- Richard Cordero  wrote:
>
> >
> > Dear Dr. Yue,
> >
> > Thank you for your comment.
> >
> > Now what we need to do is to let those
> authorities,
> > both legislative and judicial, know that the
> Revised
> > Rules for processing misconduct and disability
> > complaints are fundamentally flaw, for they will
> > allow
> > judges to continue their systematic dismissal of
> > those
> > complaints in order to self-exempt from any
> > discipline
> > and go on engaging in unethical or even criminal
> > activity with impunity: Out of the 7,462
> complaints
> > filed against federal judges in the 10-year period
> > 1997-2006 covered by the official statistics of
> the
> > Administrative Office of the U.S. Courts, judges
> > disciplined only 9 of their peers! They dismissed
> > 99.88% of all complaints filed against them!
> >
> > Hence, I encourage you and your group to read the
> > text
> > below, which provides concrete steps on how to
> > object
> > to those Revised Rules either by writing your own
> > comment on them or disseminating the newsrelease
> or
> > the comment that I wrote.
> >
> > Swapping e-mails between us is not going to
> prevent
> > the adoption of the Revised Rules by the Judicial
> > Conference of the U.S. next month. But
> disseminating
> > my newsrelease to the media could possibly cause
> > journalists and newscasts to bring this issue to
> the
> > public, those generating pressure on Congress and
> > the
> > top judges of the Judicial Conference to prevent
> the
> > adoption of those Rules.
> >
> > Can you help? I trust you can.
> >
> > Sincerely,
> >
> > Dr. Richard Cordero, Esq.
> >
> >
> > ******************************
> >
> > For the Subject line: How to counter judges’
> Revised
> > Rules allowing systematic dismissal of complaints
> > against them
> >
> >
> > Dear Madam or Sir,
> >
> > Thanks for the surprisingly strong interest
> > expressed
> > in the newsrelease “The Revised Rules Will Not
> Stop
> > Judges From Systematically Dismissing Complaints
> > Against Them”[1]  and the article “Judges Have No
> > Grant of Immunity From The Constitution” .
> >
> > [1]
> >
>
http://Judicial-Discipline-Reform.org/judicial_complaints/newsrelease_revised_rules.pdf
> >
> >
> > [2]
> >
>
http://Judicial-Discipline-Reform.org/docs/no_judicial_immunity.pdf
> >
> >
> >
> > I respectfully submit some suggestions on what you
> > can
> > do to object to those Rules, which will allow
> > federal
> > judges to continue doing what the official
> > statistics
> > show they did in the 10-year period 1997-2006: Out
> > of
> > the 7,462 complaints filed against judges’
> > misconduct,
> > such as abuse of power, bias, conflict of
> interests,
> > prejudice, corruption, etc., the judges
> disciplined
> > only 9 of their peers, thus dismissing 99.88% of
> all
> > complaints!
> >
> > Thereby the judges self-exempted from any
> discipline
> > and enabled themselves to engage in misconduct,
> even
> > criminal activity, with impunity. Links to the
> > Rules,
> > the statistics, and my detailed comments thereon
> are
> > found at
> >
>
http://Judicial-Discipline-Reform.org/judicial_complaints/DrCordero_revised_rules.pdf.
> >
> > To participate in the herein suggested
> collaborative
> > effort to request that the Rules not be adopted
> and
> > that judicial misconduct complaints be taken
> > seriously
> > or even handled by an independent board unrelated
> to
> > the judges, you can forward to your colleagues
> this
> > letter or its link, i.e.,
> >
>
http://Judicial-Discipline-Reform.org/judicial_complaints/how_petition_redress.pdf.
> > (If you download that file, you will read more
> > comfortably the text below in a PDF letter.)
> >
> >
> > A. JUDGES FEAR CONGRESSIONAL SUPERVISION
> >
> > There is no magic wand effective against the
> judges’
> > entrenched power. Nor is there a substitute for
> > perseverance in the effort to dislodge them from
> > that
> > position by building up the cumulative effect of
> > publicly exposing and criticizing their wrongdoing
> > in
> > every venue and by every available means of
> > communication while always proceeding in a
> > professional, responsible, and fair way.
> >
> > The bills to establish the Office of Inspector
> > General
> > of the Judicial Branch, H.R. 5219 and S. 2678,
> > represent an incipient effort in Congress to
> > supervise
> > the federal judiciary. Those bills and
> Congressional
> > statements thereon are found with links to the
> > originals at
> >
>
http://Judicial-Discipline-Reform.org/judicial_complaints/DrCordero_revised_rules.pdf.
> >
> > The reaction of the judges to such bills shows
> that
> > they dread any Congressional effort to supervise
> > them
> > and curb their freedom to do as they please (i.d.,
> > Section I). In turn, pressure on Congress and its
> > individual members can cause them to adopt
> judicial
> > discipline reform legislation.
> >
> >
> > B. THE REVISED RULES & THREE VENUES FOR
> CRITICIZING
> > THEM
> >
> > You can help those people who will not give up
>
=== message truncated ===

* * * *
(the below cut and pasted from a pdf)
A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY
JAMES C. DUFF
Director
JILL C. SAYENGA
Deputy Director
ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS
WASHINGTON, D.C. 20544
WILLIAM R. BURCHILL, JR.
Associate Director
and General Counsel
ROBERT K. LOESCHE
Deputy General Counsel
January 14, 2008
N O T I C E
Attached are two opinions of the Judicial Conference Committee on
Judicial Conduct and Disability, issued today, regarding petitions for review
filed in proceedings in the Ninth Circuit under the Judicial Conduct and
Disability Act, 28 U.S.C. §§ 351-364.
COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY
Memorandum of Decision
INTRODUCTION
1 This Memorandum of Decision addresses a petition for review
2 of an order of the Judicial Council of the Ninth Circuit. The
3 Committee’s review is based on the delegation to it by the
4 Judicial Conference of the United States of the responsibility to
5 consider petitions addressed to the Judicial Conference for
6 review of circuit council actions under 28 U.S.C. § 357(a).
7 Jurisdictional Statement of the Committee on Judicial Conduct and
8 Disability (As approved by the Executive Committee, effective
9 March 12, 2007), available at
10 http://www.uscourts.gov/judconf_jurisdictions.htm#Disability.
11 See also 28 U.S.C. §§ 331 (authorizing the Judicial Conference to
12 establish a standing committee to review petitions), 357(b) (“The
13 Judicial Conference, or the standing committee established under
14 section 331, may grant a petition filed by a complainant or judge
15 under subsection (a).”).
16 In the order in question, dated March 21, 2007, the Judicial
17 Council adopted the findings and recommendations of a special
18 committee. Based on its investigation and an acknowledgment of
19 the district judge, the committee found that the judge had
20 engaged in a pattern and practice of not providing reasons for
21 his decisions when required to do so and that this pattern and
22 practice was misconduct. It recommended a private reprimand.
23 In a letter dated March 26, 2007, the original complainant
24 sought review by the Judicial Conference of the Judicial
2
1 Council’s Order, arguing that the sanction of a private reprimand
2 was insufficient. For the reasons stated below, we grant the
3 petition, vacate the Judicial Council’s Order, and remand for
4 further consideration.
5 BACKGROUND
6 On July 18, 2006, the special committee wrote to the
7 district judge complained against and informed him of the scope
8 of the investigations. The committee interpreted the complaint
9 as alleging that the district judge had engaged in a pattern and
10 practice of abusing his judicial power by (i) refusing to follow,
11 or demonstating recalcitrance in following, court of appeals
12 orders; (ii) improperly taking jurisdiction of cases; and (iii)
13 failing to follow the law. In addition to four cases cited in
14 the original 2004 Complaint, the committee identified twenty15
three additional cases -- cases that had been remanded to the
16 district judge multiple times, or reassigned to a different judge
17 on remand -- that it felt might bear on the complaint. On July
18 25, 2006, the committee advised the district judge that it had
19 identified two additional cases for consideration.
20 On September 21, 2006, the committee notified the district
21 judge that it had analyzed the twenty-nine cases more thoroughly
22 and refined the issues, reducing the number of cases to be
23 considered to seventeen. The committee informed the district
24 judge that the cases presented the following issues: (i) refusal
25 to follow, or demonstrating recalcitrance in following, court of
26 appeals orders or directives; (ii) improper taking of
3
1 jurisdiction over cases, or improper treatment of jurisdiction;
2 (iii) failure to provide reasons when required; (iv) improper
3 reliance on ex parte contact; and (v) abuse of authority.
4 The special committee held a hearing on November 8 and 9,
5 2006, at which testimony -- including testimony by the district
6 judge -- was heard, and exhibits were introduced. At the
7 conclusion of the hearing, the committee advised the district
8 judge that it was persuaded that there was no basis for finding
9 judicial misconduct with respect to many aspects of the
10 complaint. The committee, however, also stated that it intended
11 to investigate further whether the district judge had a pattern
12 or practice of “failing to state reasons” when either prevailing
13 law or a direction from the court of appeals in specific cases
14 required him to do so, and whether -- if established -- such a
15 pattern or practice would constitute judicial misconduct. [Tr.
16 11/9/06, pp. 92-93.]
17 Following the hearing, the committee decided to expand the
18 scope of its investigation of the “reasons” issue and identified
19 seventy-two additional cases that appeared to be relevant to the
20 investigations. In a December 18, 2006 letter to the district
21 judge, the committee described the expanded investigation and the
22 additional cases it would be considering.
23 After sending this letter, the committee entered discussions
24 with the district judge’s counsel about “expediting” the
25 investigation. The discussions resulted in the following
26 acknowledgment from the district judge:
1 The judge’s acknowledgment is not a model of clarity. In
particular, it appears to acknowledge only that the special
committee has found his pattern and practice of not giving
reasons to be misconduct.
4
1 I realize that my failure in some cases to adequately
2 state my reasons for my decisions when this is required
3 by either prevailing law or direction from the Court of
4 Appeals causes additional expense and delay to the
5 litigants, and, therefore, is a pattern and practice that
6 the Committee has determined is misconduct because it is
7 prejudicial to the effective and expeditious
8 administration of the business of the courts. I hereby
9 commit to use my best efforts to adequately state reasons
10 when required in the future.1
11
12 Following this acknowledgment, the committee determined that
13 it was appropriate to treat the expanded investigation as a
14 separate complaint and to address it in a separate report. In
15 that February 14, 2007 report, the committee “decided to accept
16 the district judge’s acknowledgment [of misconduct]. Based on
17 that acknowledgment and on its own investigation, the Committee
18 unanimously [found] that the district judge had a pattern and
19 practice of not providing reasons when he was required to do so
20 and that this pattern and practice constitutes misconduct.”
21 [Special Committee Report at 7.] The committee unanimously
22 recommended a private reprimand as an appropriate sanction. [Id.
23 at 9.] The committee found that a sanction short of a private
24 reprimand was “not sufficient,” because the conduct of the
25 district judge was “manifestly prejudicial to the effective and
26 expeditious administration of the business of the courts, was
27 repeated and continued over a substantial period of time, caused
28 significant harm to litigants, and wasted judicial resources.”
5
1 [Id. at 9-10.] The committee found that a more severe sanction
2 was not warranted “based on the [Judicial Conduct and Disability
3 Act’s] non-punitive, corrective purpose, on the Committee’s
4 determination that most of the allegations of the 2004 Complaint
5 did not have merit, and on the district judge’s acknowledgment of
6 his misconduct . . . and his commitment to correcting that
7 behavior in the future.” [Id. at 10.] The Judicial Council’s
8 Order adopted the findings and recommendations of the special
9 committee in toto.
10 DISCUSSION
11 In a March 26, 2007 letter, the original complainant sought
12 review of the Judicial Council’s Order, arguing that the sanction
13 of a private reprimand was insufficient. Because we find that
14 two issues raised by the complaint -- explained more fully below
15 -- require the Judicial Council’s Order to be vacated, and the
16 case remanded for further consideration, we grant the petition.
17 First, we believe that the type of misconduct alleged in the
18 complaint may not be cognizable under the Act and, therefore,
19 requires further examination by the Judicial Council. A
20 complaint alleging only conduct "directly related to the merits
21 of a decision or procedural ruling" does not allege misconduct
22 within the meaning of the Act. 28 U.S.C. § 352(b)(1)(A)(ii).
23 The misconduct procedure is not designed as a substitute for, or
24 supplement to, appeals or motions for reconsideration. Nor is it
25 designed to provide an avenue for collateral attacks or other
26 challenges to judges’ rulings. Id.; Implementation of the
2 This district judge has not petitioned for review and thus
has not argued to the Committee the issues discussed. However,
given that the misconduct procedure is largely administrative and
inquisitorial, the Committee has discretion to follow the
mandates of the Act rather than apply ordinary waiver principles.
6
1 Judicial Conduct & Disability Act of 1980, A Report to the Chief
2 Justice, 239 F.R.D. 116, 239-40 (Sept. 2006) (“Breyer Committee
3 Report”).
4 This principle is of critical importance.2 The Act is
5 intended to further "the effective and expeditious administration
6 of the business of the courts." It would be entirely contrary to
7 that purpose to use a misconduct proceeding to obtain redress for
8 -- or even criticism of -- the merits of a decision with which a
9 litigant or misconduct complainant disagrees. Adjudication is a
10 self-contained process governed by extensive statutory provisions
11 and rules of procedure. Inserting misconduct proceedings into
12 this process would cause these provisions and rules to be far
13 less “effective” and “expeditious.” Moreover, allowing judicial
14 decisions to be questioned in misconduct proceedings would
15 inevitably begin to affect the nature of those decisions and
16 would raise serious constitutional issues regarding judicial
17 independence under Article III of the Constitution. Judges
18 should render decisions according to their conscientiously held
19 views of prevailing law without fear of provoking a misconduct
20 investigation. Indeed, for these very reasons, judges have
21 absolute immunity from civil liability for their decisions,
22 Pierson v. Ray, 386 U.S. 547, 553-54 (1967), a principle fully
23 applicable to misconduct proceedings.
7
1 The present matter involves a reprimand for decisions
2 rendered without giving a statement of reasons. The failure of a
3 judge to give reasons for a decision is, in our view, a merits
4 issue regarding that decision. The merits of a decision and the
5 reasons given or not given for it are often inseparable. For
6 example, litigants seeking to overturn a decision often argue
7 that the decision violates existing law because inadequate
8 reasons have been given. United States v. Hirliman, 503 F.3d
9 212, 213 (2d Cir. 2007). If an appellate court finds that claim
10 to be correct, the decision will generally be vacated and the
11 case remanded for further proceedings that may result in a
12 different outcome. Id. at 215. However, it is often the case
13 that even when a statement of reasons is generally required, the
14 reasons for a particular decision are entirely obvious on the
15 record and would not benefit from an explicit recitation by the
16 judge. United States v. Travis, 294 F.3d 837, 841 (7th Cir.
17 2002) (“[W]e shall uphold a sentence imposed with an incomplete
18 statement, provided that a more than adequate foundation in the
19 record supports the district court’s findings.”) (internal
20 citation and quotation marks omitted). Given this context, the
21 giving or not giving of reasons for a particular decision, like
22 the reasons themselves, should not be the subject of a misconduct
23 proceeding. We have concluded that misconduct complaints
24 regarding the failure to give adequate reasons for a particular
25 decision are, absent more, not cognizable under the Act.
26 The Judicial Council appears to have recognized this issue
8
1 by restricting its consideration to whether the district judge
2 had engaged in, and had acknowledged, a "pattern and practice" of
3 not giving reasons for his decisions when required to do so by
4 prevailing law or by the direction of the court of appeals in
5 particular cases.
6 We agree that a judge’s pattern and practice of arbitrarily
7 and deliberately disregarding prevailing legal standards and
8 thereby causing expense and delay to litigants may be misconduct.
9 However, the characterization of such behavior as misconduct is
10 fraught with dangers to judicial independence. Therefore, a
11 cognizable misconduct complaint based on allegations of a judge
12 not following prevailing law or the directions of a court of
13 appeals in particular cases must identify clear and convincing
14 evidence of willfulness, that is, clear and convincing evidence
15 of a judge's arbitrary and intentional departure from prevailing
16 law based on his or her disagreement with, or willful
17 indifference to, that law.
18 We have concluded that this standard is necessary to ensure
19 that misconduct proceedings do not intrude upon judicial
20 independence by becoming a method of second-guessing judicial
21 decisions. For example, every experienced judge knows of cases
22 where the circumstances justifiably called for a decision that
23 was superficially at odds with precedent. This is because
24 although prevailing legal standards have large areas of clarity,
25 litigation often involves the borders of those areas. Breathing
26 room -- something more than a comparison of a judge’s ruling with
9
1 a special committee’s or judicial council’s view of prevailing
2 legal standards -- must therefore be afforded. This standard,
3 requiring clear and convincing evidence of an arbitrary and
4 intentional departure from, or willful indifference to prevailing
5 law, provides that breathing room.
6 In the present case, the Judicial Council made no express
7 finding of willfulness, and the district judge's letter also
8 fails to admit willfulness expressly. Therefore, we conclude
9 that we must return this matter to the Judicial Council of the
10 Ninth Circuit for further consideration of the facts of this case
11 under the above-articulated standard. Great care must be taken
12 in finding clear and convincing evidence of willfulness. To the
13 extent that such a finding is based simply on a large number of
14 cases in which reasons were not given when seemingly required by
15 prevailing law, the conduct must be virtually habitual to support
16 the required finding. However, if the judge has failed to give
17 reasons in particular cases after an appellate remand directing
18 that such reasons be given, a substantial number of such cases
19 may well be sufficient to support such a finding. Hirliman, 503
20 F.3d at 216-17.
21 The second issue with which we are concerned is the sanction
22 imposed in this matter. The judge in question has very recently
23 been publicly sanctioned by the same Judicial Council in a
24 decision affirmed by this Committee. In affirming that decision,
25 we noted that the judge had persistently denied an impropriety in
26 the face of overwhelming evidence of an ex parte contact. We
10
1 find that history to be relevant to the determination of an
2 appropriate sanction. Morever, the conduct alleged here, if
3 found willful, is very serious indeed. A private reprimand for
4 such conduct in the wake of a previous public remand for other
5 misconduct is not a sanction commensurate with the totality of
6 recent misconduct by this judge. Therefore, if the Council finds
7 willfulness, it should consider a more severe sanction, such as a
8 public censure or reprimand and an order that no further cases be
9 assigned to the judge for a particular period of time.
10 CONCLUSION
11 For the reasons discussed above, we grant the petition for
12 review.
13 Respectfully Submitted,
14 Hon. Ralph K. Winter, Chair
15 Hon. Pasco M. Bowman II
16 Hon. Carolyn R. Dimmick*
17 Hon. Dolores K. Sloviter
18 Hon. Joseph A. DiClerico, Jr.
19
20
21
22
23
24
25 * Judge Dimmick has not participated in this proceeding, having
26 concluded, in her discretion, that the circumstances warranted
27 her disqualification. See Rule 25(a) of the Draft Rules
28 Governing Judicial Conduct and Disability Proceedings Undertaken
29 Pursuant to 28 U.S.C. §§ 351-364, current working draft available
30 at
31 http://www.uscourts.gov/library/judicialmisconduct/commentonrules
32 .html.
33
1
COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY
Memorandum of Decision
1 This Memorandum of Decision addresses two petitions for
2 review of an order of the Judicial Council of the Ninth Circuit.
3 The Committee’s review is based on the delegation to it by the
4 Judicial Conference of the United States of the responsibility to
5 consider petitions addressed to the Judicial Conference for
6 review of circuit council actions under 28 U.S.C. § 357(a).
7 Jurisdictional Statement of the Committee on Judicial Conduct and
8 Disability (As approved by the Executive Committee, effective
9 March 12, 2007), available at
10 http://www.uscourts.gov/judconf_jurisdictions.htm#Disability.
11 See also 28 U.S.C. §§ 331 (authorizing the Judicial Conference to
12 establish a standing committee to review petitions), 357(b) (“The
13 Judicial Conference, or the standing committee established under
14 section 331, may grant a petition filed by a complainant or judge
15 under subsection (a).”).
16 In the order in question, dated November 16, 2006, the
17 Judicial Council of the Ninth Circuit adopted -- with minor
18 revisions -- the findings of a special investigatory committee
19 and ordered that District Judge Manuel L. Real be publicly
20 reprimanded for his misconduct. The district judge filed a
21 petition for review of the Judicial Council’s Order. The
22 complainant also filed a petition for review, arguing that the
23 sanction of a public reprimand was insufficient. For the reasons
24 given below, we approve the Judicial Council’s Order, and deny
2
1 both petitions.
2
3 BACKGROUND
4 We briefly summarize the history of this matter. In
5 February 2003, a misconduct complaint was filed against a United
6 States district judge, alleging, inter alia, that the judge had,
7 based on an ex parte contact, withdrawn the reference of a
8 bankruptcy matter from the bankruptcy court and stayed
9 enforcement of a state unlawful detainer judgment. [Complaint No.
10 03-89037] The Chief Judge of the Ninth Circuit dismissed the
11 complaint without convening a special committee under Section 353
12 of the Judicial Conduct and Disability Act to investigate the
13 allegations. The complainant petitioned the Judicial Council for
14 review of this order. On September 10, 2003, the Judicial
15 Council asked the district judge to provide a further explanation
16 of his actions in the matter. The judge responded by letter
17 dated October 9, 2003. Following a limited investigation, a
18 divided Judicial Council vacated the Chief Judge’s dismissal and
19 remanded for further specified proceedings.
20 Upon remand, the district judge filed a lengthy response to
21 the allegations of the complaint and to the order of the Judicial
22 Council. On November 4, 2004, the Chief Judge once again
23 dismissed the misconduct complaint without appointing a special
24 committee. The complainant petitioned the Judicial Council for
25 review, and again the Judicial Council requested additional
26 information from the district judge. The judge responded in a
3
1 letter dated June 17, 2005. Thereafter, on September 29, 2005, a
2 divided Judicial Council affirmed the Chief Judge’s dismissal of
3 the misconduct complaint, holding that a subsequent appellate
4 court ruling -- which held that the judge had abused his
5 discretion by withdrawing the reference in the bankruptcy case --
6 coupled with the judge's prediction that such conduct would not
7 recur constituted “appropriate corrective action” in the matter.
8 The complainant petitioned the Judicial Conference for review of
9 this matter, which was referred to this Committee under the
10 delegation described above. A majority of this Committee found
11 that we had no jurisdiction to consider a petition for review of
12 a Chief Judge’s dismissal of a complaint when no special
13 investigatory committee had been appointed under Section 353. In
14 re Opinion of Judicial Conference Comm. to Review Circuit Council
15 Conduct & Disability Orders, 449 F.3d 106, 109 (U.S. Jud. Conf.
16 2006). A minority of this committee believed that we had
17 jurisdiction to review whether a special committee should have
18 been appointed and that a committee was required under the
19 circumstances. Id. at 109-17.
20 In 2005, the complainant filed a new complaint. He alleged
21 that the district judge had committed misconduct by being
22 disingenuous and misleading in his responses regarding the 2003
23 Complaint. This time, the Chief Judge of the Ninth Circuit
24 appointed a special committee to investigate the allegations.
25 The special committee subsequently conducted a four-month
26 investigation that necessarily covered much of the alleged
4
1 misconduct that led to the initial 2003 Complaint. The special
2 committee reported its findings and recommendations to the
3 Judicial Council, which accepted them with minor revisions.
4 The Judicial Council’s Order found that the district judge
5 had committed misconduct by making misleading statements to the
6 Judicial Council itself in his 2003 letter, and by making further
7 misleading statements to the special committee during its
8 investigation. The Judicial Council further found that the judge
9 had committed misconduct by withdrawing the bankruptcy reference
10 and ordering a stay of judgment based on an ex parte contact.
11 The Judicial Council ordered that the judge be publicly
12 reprimanded for this misconduct.
13 As noted, both the district judge and the complainant have
14 petitioned for review of the Judicial Council’s Order. The
15 judge's petition advances the following four arguments: (i) that
16 the 2005 Complaint was effectively an “appeal” of an earlier
17 complaint and was thus barred by 28 U.S.C. § 352(c); (ii) that
18 Judge Kozinski should have been recused by the Judicial Council
19 because of his bias against the subject judge; (iii) that the
20 findings of the special committee, as adopted in the Judicial
21 Council’s Order, are overstated and unsupported by the evidence;
22 and (iv) that a public reprimand is too harsh a punishment in
23 light of the humiliation the judge already suffered as a result
24 of the investigation. The complainant's petition argues that a
25 public reprimand is an inadequate sanction.
26 For reasons discussed below, we find none of these arguments
5
1 convincing.
2
3 DISCUSSION
4 We assume familiarity with the following orders and reports
5 in this matter: Order and Memorandum of the Judicial Council of
6 the Ninth Circuit, No. 05-89097 (Nov. 16, 2006); and Report to
7 the Judicial Council of the Ninth Circuit from the Committee
8 Convened Pursuant to 28 U.S.C. § 353(a) to Investigate the
9 Allegations of Judicial Misconduct in the Complaints Docketed
10 Under 05-89097 and 04-89039, Pertaining to Complaint 05-89097
11 (Oct. 10, 2006) (As modified by order of the Judicial Council of
12 the Ninth Circuit for adoption by the Judicial Council).
13 a) Finality
14 In his petition, the district judge argues that the 2005
15 Complaint “encompasses the identical factual allegations that
16 were raised in the [2003 Complaint].” [Real Petition at 6
17 (emphasis in original).] He therefore suggests that the 2005
18 Complaint constitutes an “appeal” for “review” of the dismissal
19 of the 2003 Complaint, which is barred by 28 U.S.C. § 352(c)
20 (“The denial of a petition for review of the chief judge’s order
21 shall be final and conclusive and shall not be judicially
22 reviewable on appeal or otherwise.”). The judge argues that
23 Section 352(c) provides “finality” for the proceedings and bars
24 any “court or reviewing body” from further considering the
25 matters involved in the 2003 Complaint. [Real Petition at 12.]
26 The 2005 Complaint, however, was not an appeal of the
6
1 earlier dismissal. Rather, the 2005 Complaint was a new
2 proceeding with new factual allegations, and was thus not barred
3 by Section 352(c).
4 However, the Judicial Council’s Order concluded that the
5 judge had engaged in some of the misconduct alleged in the
6 original 2003 Complaint. The Order did, therefore, involve a re7
examination of some factual issues involved in the earlier
8 proceedings. This overlap raises the question of whether
9 reconsideration of these issues triggers a claim preclusion
10 principle analogous to res judicata requiring dismissal of the
11 present proceeding.
12 If this proceeding was litigation in an adversarial setting
13 in which the need for finality was of great importance, further
14 consideration of the matter might be barred. We cannot, however,
15 ignore the profound differences between this type of proceeding
16 and litigation. This Committee has recognized that, although
17 misconduct proceedings “have an adjudicatory aspect, they also
18 have an administrative and managerial character not present in
19 traditional adjudication by courts.” In re Complaints of
20 Judicial Misconduct, 9 F.3d 1562, 1566 (U.S. Jud. Conf. 1993).
21 Consequently, before applying the legal doctrine of claim
22 preclusion, we must examine the reasons underlying that doctrine
23 and consider their applicability and relevance to misconduct
24 proceedings.
25 The doctrine of claim preclusion serves three basic
26 purposes: (i) the need for finality in the settlement of
7
1 disputes; (ii) the need to conserve judicial resources by
2 avoiding duplicative proceedings; and (iii) the prevention of
3 harassment. See Allan D. Vestal, Res Judicata/Preclusion V-8 to
4 V-12 (1969). These purposes are not served by an application of
5 the doctrine in the present matter.
6 First, the need for finality has less relevance to the
7 present circumstances than it does to litigation generally. In
8 ordinary litigation, there is not only a strong interest in
9 reaching a correct conclusion, but also an interest in achieving
10 finality so that the parties may obtain repose and their dispute
11 be finally settled. The need for finality arises both from the
12 nature of an adversary system, which requires parties to pursue
13 their own claims as they see fit, and from the negative
14 consequences of allowing a dispute to continue after a decision
15 has been rendered in an initial, full adjudication. Parties to
16 litigation are thus generally not allowed to revive fully
17 adjudicated claims by serially advancing new legal theories not
18 raised in earlier proceedings but involving the same underlying
19 transactions.
20 By contrast, misconduct proceedings under the Judicial
21 Conduct and Disability Act are adversarial only to the extent
22 that they may be initiated by complaint and usually allow
23 interested parties some opportunity to present their respective
24 view of the events in question. Fundamentally, however,
25 misconduct proceedings are inquisitorial and administrative.
26 Chief circuit judges need not passively await the filing of
8
1 complaints and then referee a contest between a complainant and a
2 judge, bounded by the four corners of the complaint. Instead,
3 chief circuit judges may “identify” and review complaints
4 themselves. See 28 U.S.C. §§ 351(a)-(b), 352(a). In addition, a
5 complainant who has initiated a complaint does not have the full
6 rights accorded a party to litigation. See 28 U.S.C. § 358(b).
7 Indeed, the Act provides no mechanism for a complainant to
8 withdraw a complaint. Thus, the Illustrative Rules “treat[] the
9 complaint proceeding, once begun, as a matter of public business
10 rather than as the property of the complainant. The complainant
11 is denied the unrestricted power to terminate the proceeding by
12 withdrawing the complaint.” Commentary to Illustrative Rule 19.
13 Furthermore, Illustrative Rule 10(a) allows special committees,
14 on which chief judges sit ex officio, the right to “expand the
15 scope of the investigation to encompass” misconduct that is
16 “beyond the scope of the complaint.”
17 The inquisitorial nature of a misconduct proceeding is the
18 direct result of the Act's adoption of a self-regulatory system
19 in recognition of the need to maintain judicial independence, as
20 opposed to a system in which misconduct complaints are
21 adjudicated by an external tribunal. Under this self-regulatory
22 regime, the responsibility of chief judges, special committees,
23 judicial councils, and the Judicial Conference, must be to
24 vindicate the process rather than adjudicate the rights of
25 parties. Moreover, there cannot be public confidence in a
26 self-regulatory misconduct procedure that, after the discovery of
9
1 new evidence or a failure to investigate properly or completely
2 serious allegations of misconduct, allows misconduct to go
3 unremedied in the name of preserving the “finality” of an
4 earlier, perhaps misfired, proceeding.
5 Therefore, any argument that the instant proceeding is
6 barred because it is duplicative of the prior one is
7 unpersuasive, particularly because no special committee
8 investigation was undertaken in the earlier proceedings. We now
9 have what the previous proceeding lacked -- a defined record and
10 factual findings based on that record. We thus conclude that
11 neither the letter nor the intent of the Judicial Conduct and
12 Disability Act prevents us from rendering a decision on the
13 merits based upon that record and those findings because of
14 considerations of finality.
15 As to the second purpose served by the doctrine of claim
16 preclusion, concerns about wasting judicial resources on
17 duplicative proceedings are not weighty in these circumstances.
18 Misuse of the misconduct procedure can be easily prevented. See
19 Illustrative Rule 1(f) (“A complainant who has filed vexatious,
20 repetitive, harassing, or frivolous complaints, or has otherwise
21 abused the complaint procedure, may be restricted from filing
22 further complaints.”). There is, therefore, no danger of opening
23 the floodgates to duplicative misconduct proceedings by allowing
24 the present proceeding to continue.
25 Finally, the risk of harassment is a serious concern in the
26 context of judicial misconduct complaints, but it is not an issue
10
1 in this case. A judge should not be forced to respond repeatedly
2 to the same charges, with a new special committee appointed each
3 time to review the same evidence. Harassment, however, is not
4 implicated where, as here, no full proceeding by a special
5 committee occurred in the first instance, and some new
6 allegations of cognizable misconduct, supported by new evidence,
7 are presented. When there is a reason for continuing or
8 reinstating a proceeding that is legitimate and not intended to
9 harass or punish, the nature of the administrative,
10 self-regulatory process requires that the new proceeding be
11 completed. This is particularly important where, as here,
12 credible evidence is presented that the subject judge hindered
13 the original proceeding.
14 We thus proceed to the district judge's substantive
15 arguments.
16 b) Recusal of Judge Kozinski
17 There is no merit in the district judge’s argument that
18 Judge Kozinski should have been recused. The district judge has
19 presented no evidence whatsoever of an actual bias or the
20 appearance of bias on Judge Kozinski’s part. The fact that Judge
21 Kozinski, as a member of the Judicial Council, took actions in
22 the earlier proceeding with which the district judge disagrees,
23 particularly in concluding in the earlier proceeding that the
24 district judge had entered orders in the bankruptcy case based on
25 ex parte contacts with the debtor, in no way constitutes
26 recusable bias.
11
1 c) The Judicial Council’s Findings
2 The Judicial Council, acting on the report of the special
3 committee, made two principal findings: First, that the district
4 judge committed misconduct by making inaccurate and misleading
5 responses to the Judicial Council and special committee; and
6 second, that the judge committed misconduct by withdrawing the
7 bankruptcy reference and staying a judgment in that matter based
8 on personal knowledge and information received ex parte. The
9 district judge challenges both findings as well as the
10 alterations the Judicial Council made to the special committee’s
11 report.
12 Ordinarily, we will defer to the findings of the Judicial
13 Council and the special committee, and will overturn those
14 findings only if, upon examination of the record, they are
15 clearly erroneous. Based on the record before us, we cannot
16 conclude that the factual findings of the special committee as
17 adopted by the Judicial Council, or the committee’s
18 interpretation of the evidence before it as adopted by the
19 Council, were clearly erroneous. First, the district judge's
20 versions of relevant events have been incomplete and involved
21 serious, material variations. Second, there is overwhelming
22 evidence that the judge's withdrawal of the reference of the
23 bankruptcy proceeding and stay of a state court proceeding was
24 based on a contact with the debtor, who was a probationer in a
25 separate criminal matter before the judge, and occurred without
26 any notice to other parties to the bankruptcy proceeding. This
12
1 was judicial action based on an improper ex parte contact,
2 whether or not a probation officer witnessed the contact.
3 Nor are the minor alterations to the committee report made
4 by the Judicial Council problematic. The alterations are largely
5 semantic, leaving the substantive conclusions of the special
6 committee undisturbed and the recommended sanction unchanged.
7 d) Public Reprimand
8 While the Judicial Conference has an obvious interest in
9 avoiding major disparities in sanctions among the various
10 circuits, we will generally defer to a judicial council’s
11 judgment with respect to an appropriate sanction so long as the
12 council has fully considered all the relevant options. In this
13 case, the district judge’s misconduct was arbitrary and caused
14 significant harm to the bankruptcy litigants. His response to
15 well-founded concerns over judicial actions based on improper ex
16 parte contact has been a persistent denial of any impropriety.
17 The judge’s claim that he has been punished enough is not
18 compelling because the lack of any sanction would appear to
19 ratify the judge’s view that no serious misconduct occurred. Nor
20 do we agree with the complainant that the gravity of the
21 misconduct requires a harsher sanction. A public reprimand is
22 within the discretion of the Council, was arrived at through a
23 full consideration of the available alternatives, and should not
24 be overturned.
25
26 CONCLUSION
13
1 For the above reasons, we deny both petitions for review.
2
3 Respectfully Submitted,
4
5 Hon. Ralph K. Winter, Chair
6 Hon. Pasco M. Bowman II
7 Hon. Carolyn R. Dimmick*
8 Hon. Dolores K. Sloviter
9 Hon. Joseph A. DiClerico, Jr.
10
11
12
13
14
15
16
17 * Judge Dimmick has not participated in this proceeding, having
18 concluded, in her discretion, that the circumstances warranted
19 her disqualification. See Rule 25(a) of the Draft Rules
20 Governing Judicial Conduct and Disability Proceedings Undertaken
21 Pursuant to 28 U.S.C. §§ 351-364, current working draft available
22 at
23 http://www.uscourts.gov/library/judicialmisconduct/commentonrules
24 .html.