FOR PUBLICATION

JUDICIAL COUNCIL

OF THE NINTH CIRCUIT

IN RE COMPLAINT  No. 09-90124

OF JUDICIAL MISCONDUCT 

ORDER 

Filed May 21, 2010

ORDER

KOZINSKI, Chief Judge:

Complainant argues that the subject judge, who was

assigned to his criminal case, was biased against him because

the judge had been the victim of a “crime . . . nearly identical

to those charged in [complainant’s] case.” Complainant filed

a motion for recusal in his criminal case that was referred to

another judge, who found no evidence of prejudice and denied

the motion.

Complainant now files a misconduct complaint against the

subject judge. Complainant alleges that the subject judge

committed misconduct by failing to disqualify himself from

complainant’s case because of the past crime (“recusal

claim”) and was prejudiced against complainant because of

the past crime (“prejudice claim”). Complainant presents no

facts or evidence in support of his misconduct complaint that

he did not present in his recusal motion.

A misconduct complaint is not a proper vehicle for challenging the merits of a judge’s rulings. See 28 U.S.C.

§ 352(b)(1)(A)(ii); Judicial-Conduct Rule 11(c)(1)(B). Complainant’s recusal claim is easily dismissed as merits related.

See Judicial-Conduct Rule 3(h)(3)(A). “[A]lleg[ations] that

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the judge should have recused himself . . . relate[ ] directly to

the merits of the judge’s rulings and must be dismissed.” In

re Complaint of Judicial Misconduct, 570 F.3d 1144, 1144

(9th Cir. Jud. Council 2009). A failure to recuse may constitute misconduct only if the judge failed to recuse for an

improper purpose. Implementation of the Judicial Conduct

and Disability Act of 1980: A Report to the Chief Justice 146

(2006) (“Judicial Conduct Report”); see also In re Cudahy,

294 F.3d 947, 953 (7th Cir. Jud. Council 2002) (“[A]n erroneous failure to recuse oneself from considering a particular

matter is a legal error rather than judicial misconduct.”).

Complainant doesn’t present any evidence that the subject

judge failed to recuse for an illicit reason; he simply disagrees

with it. Such disagreement must be taken up, if at all, by way

of an appeal.

Complainant’s prejudice claim, while obviously related to

the recusal claim, is distinct. Allegations of prejudice are the

bread-and-butter of misconduct complaints and aren’t normally dismissed as merits related. See Commentary to Judicial Conduct Rule 3 (“An allegation that a judge ruled against

the complainant because the complainant is a member of a

particular racial or ethnic group . . . is also not meritsrelated.”) This is true even though the alleged bias could have

justified a motion to recuse. See 28 U.S.C. § 455(b)(1) (judge

is disqualified “[w]here he has a personal bias or prejudice

concerning a party”). For example, a litigant who believes a

judge is racially prejudiced against him could file a motion to

recuse in the underlying case. More often than not, however,

misconduct complainants allege prejudice without having

filed a motion to recuse. In such cases, we address the substance of complainant’s allegations of prejudice. See, e.g., In

re Complaint of Judicial Misconduct, 583 F.3d 598, 598 (9th

Cir. Jud. Council 2009).

Here, complainant did file a motion to recuse based on the

same facts supporting his prejudice claim, and that motion

was considered and denied by an independent judge who

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found no evidence of prejudice. “[T]he complaint procedure

cannot be a means for collateral attack on the substance of

[this] ruling.” Judicial Conduct Report at 145. “The judicial

misconduct system is emphatically not a forum for disappointed litigants to continue litigation already decided on the

merits.” In re Complaint of Judicial Misconduct, 579 F.3d

1062, 1064 (9th Cir. Jud. Council 2009); cf. In re Complaint

of Judicial Misconduct, 583 F.3d 599, 599 (9th Cir. Jud.

Council 2009) (“The same claim . . . was rejected in an appeal

by one of the parties to the criminal case. . . . The judge’s failure to recuse himself based on these allegations therefore cannot constitute past or future misconduct.”). It therefore makes

some sense to apply limited preclusion principles to the misconduct complaint process.

Thus, when a complainant presented his prejudice claim in

a motion to recuse which was dismissed on the merits, we will

defer to the recusal ruling unless complainant presents new

facts or unusual circumstances. See In re Comm. on Jud. Conduct, 517 F.3d 563, 568 (U.S. Jud. Conf. 2008) (“A judge

should not be forced to respond repeatedly to the same

charges . . . . Harassment, however, is not implicated where

. . . some new allegations of cognizable misconduct, supported by new evidence, are presented.”). In this case, complainant has presented no evidence that wasn’t already

considered in the order denying recusal, nor are there any

extraordinary circumstances. We therefore dismiss complainant’s prejudice claim as precluded.

At the same time, an adverse recusal ruling won’t close the

door to the misconduct complaint process altogether. A misconduct claim isn’t the property of any particular complainant. Id. at 567. Thus, even if an individual filing a complaint

may be blocked from pursuing a claim, a concerned party

who couldn’t have joined the recusal motion may press the

matter. Indeed, judges have the duty to report judicial misconduct, and the chief judge may investigate potential misconduct sua sponte. See id. Thus, even if complainant here is

IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7301
precluded from bringing the complaint, the chief judge and

the Judicial Council may pursue the matter until they are convinced that there is no credible evidence of misconduct. Having reviewed the misconduct complaint and the recusal order

in the underlying case, I see no basis for pursuing the prejudice claim here.

Complainant’s remaining allegations are also without

merit. Complainant’s allegations that the judge made various

improper substantive and procedural rulings relate directly to

the merits of those rulings and must be dismissed. See In re

Charge of Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir.

Jud. Council 1982). Complainant’s allegations that the judge

was hostile towards him and his attorneys and intimidated

him into waiving his right to represent himself are dismissed

because complainant hasn’t provided any objectively verifiable proof to support these allegations. See 28 U.S.C.

§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D); In re

Complaint of Judicial Misconduct, 569 F.3d 1093, 1093 (9th

Cir. Jud. Council 2009).

DISMISSED.

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