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
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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7 based on an ex parte contact, withdrawn the reference of a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
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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
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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
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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
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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
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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
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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
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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
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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. 
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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
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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
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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

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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.