In Re Judicial Misconduct

ORDER

A misconduct complaint was filed against a district judge of this circuit pursuant to 28 U.S.C. § 372 (c) (now 28 U.S.C. § 351 (a)) in February 2003. The Chief Judge entered an Order and Memorandum dismissing the complaint on July 14, 2003. The Judicial Council entered an Order vacating and remanding to the Chief Judge for further proceedings on December 18, 2003. After further investigation, the Chief Judge entered a Supplemental Order and Memorandum on November 4, 2004, again dismissing the complaint. Complainant has filed a petition for review of the Chief Judge’s November 4th Order.

Complainant alleges that the district judge acted for inappropriate personal reasons in placing a “comely” female criminal defendant on probation “to himself, personally,” and in withdrawing the reference in the bankruptcy proceeding of this probationer in order to “benefit an attractive female.” The claim asserted in the complaint is that the judge “acted inappropriately to benefit an attractive female” and requested that “this matter be appropriately investigated to determine, among other things, the actual relationship” between the probationer and the judge. An investigation was made of…

partially concurring and partially dissenting:

This complaint of misconduct is a complex and difficult one that it is exacerbated by the unproven, and as far as I can discern from the record unfounded, insinuation of licentious conduct on the part of the District Judge with respect to his dealings with Ms. Canter. With respect to those allegations of personal misconduct I join with both the majority and Judge Winmill’s dissent and would affirm the Chief Judge’s dismissal of that portion of the complaint as well as the allegations surrounding the so called letter.

However, in my view the record is insufficient with regard to the remainder of the complaint and I therefore regretfully cannot join the majority in affirming the Chief Judge’s disposition of the remaining allegations. I would remand to the Chief Judge for further proceedings in order to allow the record to be more fully devel *1183 oped with respect to the bankruptcy stay ordered by the District Judge and the District Judge’s motivation behind it.

I wish to make it clear that by this partial dissent I am not suggesting a finding of misconduct should be made. It is my view that given the serious nature of the…

dissenting:

Passing judgment on our colleagues is a grave responsibility entrusted to us only recently. In the late 1970s, Congress became concerned that Article III judges were, effectively, beyond discipline because the impeachment process is so cumbersome that it’s seldom used. See 126 Cong. Rec. S28091 (daily ed. Sept. 30, 1980) (statement of Sen. DeConcini). At the same time, Congress was aware of the adverse effects on judicial independence if federal judges could be disciplined by another branch of government using means short of impeachment. See S.Rep. No. 96-362, at 6 (1979), reprinted in 1980 U.S.C.C.A.N. 4315, 4320. The compromise reached was to authorize federal judges to discipline each other. See 126 Cong. Rec. S28091. We are unique among American judges in that we have no public members — lawyers or lay people — on our disciplinary boards. See American Judicature Society, Appendix C: Commission 13802 Membership, at http://ww w.ajs.org/ethies/pdfs/Commissionmembership.pdf (revised Aug. 2003) (listing disciplinary procedures for all state judges). Rather, judicial discipline is the responsibility of the circuit judicial councils — bodies comprised entirely of Article…

dissenting:

I agree with the majority opinion that we should affirm the Chief Judge’s finding that the allegations of an inappropriate personal relationship are baseless. Indeed, the charges are not only baseless, but scurrilous and contemptible.

There remains, however, persuasive evidence of misconduct that has not been addressed by either the Chief Judge or the majority. The majority approaches this issue by finding that if any misconduct has been committed, it was corrected by (1) the finding in Canter that the district judge committed an abuse of discretion, In re Canter, 299 F.3d 1150 , 1152 (9th Cir. 2002); (2) the district judge’s referral of the case to another judge who ultimately sent the case back to the bankruptcy court, and (3) the district judge’s apology.

I disagree with both the methodology of this approach and its conclusions. It is impossible to determine if misconduct has been corrected until the misconduct is precisely identified. Once the misconduct is identified in this case, it becomes clear that it has never been corrected.

The analysis must begin by asking whether there is misconduct. The complaint alleges that the district judge committed misconduct…

FOR PUBLICATION

JUDICIAL COUNCIL OF

THE NINTH CIRCUIT

  In re: No. 03-89037

COMPLAINT OF JUDICIAL MISCONDUCT

 ORDER

Filed September 29, 2005

Before: Arthur L. Alarcón, Alex Kozinski, Andrew J. Kleinfeld, M. Margaret McKeown and William A. Fletcher, Circuit Judges, and EZRA, LEVI, McNAMEE, STRAND and WINMILL, District Judges.

Order; Partial Concurrence and Partial Dissent by Judge Ezra; Dissent by Judge Kozinski; Dissent by Judge Winmill

ORDER

A misconduct complaint was filed against a district judge of this circuit pursuant to 28 U.S.C. § 372(c) (now 28 U.S.C. § 351(a)) in February 2003. The Chief Judge entered an Order and Memorandum dismissing the complaint on July 14, 2003. The Judicial Council entered an Order vacating and remand- ing to the Chief Judge for further proceedings on December 18, 2003. After further investigation, the Chief Judge entered a Supplemental Order and Memorandum on November 4, 2004, again dismissing the complaint. Complainant has filed a petition for review of the Chief Judge’s November 4th Order.

Complainant alleges that the district judge acted for inap- propriate personal reasons in placing a…