In Re Complaint of Judicial Misconduct ( 2008 )

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT OF JUDICIAL  No. 07-89012
MISCONDUCT

 ORDER
Filed December 10, 2008
Before: THOMPSON, THOMAS, GRABER,
McKEOWN, and RAWLINSON, Circuit Judges,
GONZALEZ, LASNIK, STOTLER and WHALEY,
Chief District Judges, and HATTER, District Judge.
Order
Pursuant to Chapter III of the Rules of the Judicial Council
Governing Complaints of Judicial Misconduct or Disability
under 28 U.S.C. § 352(c), complainant has filed a petition for
review of the order of the Chief Judge entered on May 14,
2008, dismissing the complaint against a district judge and a
magistrate judge of this circuit. Complainant supplemented
the petition with a motion to disqualify Judge Sidney R.
Thomas.
We have carefully reviewed the record and the authorities
cited by the Chief Judge in his order of dismissal. We con-
clude there is no basis for overturning the order of dismissal,
and affirm the order. The motion to disqualify Judge Thomas
is denied.1
1
Judge Thomas did not participate in the disqualification vote.
16435
16436 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
The Chief Judge additionally issued an Order to Show
Cause requiring complainant, an attorney, to explain why
sanctions were not warranted for filing an obviously frivolous
and abusive complaint. As stated in the Order, complainant,
as an attorney, knew or should have known of the standards
for stating a viable claim of judicial misconduct, and was also
well aware that any court filing must be based on good faith
and a proper factual foundation. See Judicial Misconduct
Order No. 07-89012, pp. 7-8. The Order further provided that:
“[F]ailure to observe these basic requirements of
proper pleading may subject a complainant to sanc-
tions. In re Doe, 70 F.3d 56, 60 (8th Cir. 1995); In
re Sassower, 20 F.3d 42, 44 (2d Cir. Jud. Council
1994); In re Complaint of Judicial Misconduct, 2 Cl.
Ct. 255, 258-62 (1983).”
Id. at p. 8.
Instead, complainant filed this petition for review restating
his original allegations and inadequately responded to the
show cause order. An attorney filing such a frivolous miscon-
duct complaint diminishes the effectiveness of our system of
justice, and also may have an adverse effect on the random
assignment of judges who may feel compelled to recuse even
in light of unfounded allegations. Under the facts and circum-
stances of this proceeding, we conclude that both a public rep-
rimand and a pre-filing order are appropriate sanctions. As a
consequence, this published order will constitute a public rep-
rimand of Joseph Nascimento in the form of a published opin-
ion in West’s Federal Reporter. The Clerk shall also serve this
order on the State Bar of Montana, 7 West 6th Avenue, Suite
2B, P.O. Box 577, Helena, MT 59624.
Further, we hereby direct the Clerk to enter the following
pre-filing review order:
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 16437
Pre-Filing Review Order
(1) This pre-filing review order shall apply to all miscon-
duct complaints or petitions for review filed by complainant
that relate to this matter. This order shall not apply to appeals
or petitions in which complainant has counsel or where the
district court has expressly certified in its order that the appeal
or petition is not frivolous.
(2) Any future misconduct complaint filed by complain-
ant shall comply with the requirements of the Rules for
Judicial-Conduct and Judicial-Disability Proceedings, and
shall contain the following sentence in capital letters “THIS
COMPLAINT/PETITION IS FILED SUBJECT TO PRE-
FILING REVIEW ORDER No. 07-89012” in the caption of
the complaint or petition.
(3) If complainant’s future misconduct complaints are
submitted in compliance with this order, the Clerk shall lodge
the complaint or petition and accompanying documents. The
Clerk shall not file the complaint or petition until the com-
plainant’s submission is reviewed and a determination is
made as to whether it merits further review and should be
filed.
(4) This pre-filing review order shall remain in effect
until further order of the Judicial Council. Complainant may,
no earlier than November 1, 2010, petition the court to lift this
pre-filing review order, setting forth the reasons why the order
should be lifted.
Complainant’s failure to comply with the order shall result
in any new complaints that he seeks to file being dismissed
or not being filed and other sanctions being levied, as the
Council may deem appropriate.
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