In Re Judicial Misconduct ( 2008 )

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT OF JUDICIAL  No. 07-89012
MISCONDUCT

 ORDER
Filed May 14, 2008
ORDER
KOZINSKI, Chief Judge:
A complaint of misconduct has been filed against a district
judge and a magistrate judge of this circuit. Complainant, an
attorney, makes allegations related to two proceedings: a civil
case and an order suspending him from practicing law before
the district court.
1. The civil case
Complainant was the plaintiff in a civil case assigned to the
subject district judge and referred to the subject magistrate
judge. He alleges numerous instances of misconduct: both
judges’ discovery rulings, both judges’ decisions to continue
with the case after complainant filed a notice of appeal, and
the district judge’s decision to sanction complainant’s failure
to appear at a scheduled pre-trial conference. These charges
are directly related to the merits of the judges’ rulings in the
underlying case, so they are dismissed. 28 U.S.C.
§ 352(b)(1)(A)(ii); Rule 4(c)(1) of the Rules of the Judicial
Council of the Ninth Circuit Governing Complaints of Judi-
cial Misconduct or Disability (Misconduct Rules). A com-
plaint of judicial misconduct is not the proper vehicle for
5761
5762 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
challenging a judge’s rulings. See In re Charge of Judicial
Misconduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council
1982). Complainant appealed and lost.
Complainant also alleges that the judges “fixed” the case to
cover up corruption in the state judicial system. But complain-
ant hasn’t included any objectively verifiable proof (for exam-
ple, names of witnesses, recorded documents or transcripts)
supporting this allegation, so there isn’t sufficient evidence to
raise an inference that misconduct occurred. The charge is
therefore dismissed. 28 U.S.C. § 352(b)(1)(A)(iii); Miscon-
duct Rule 4(c)(3).
2. The order suspending complainant’s admission to
practice before the district court
The supreme court of the state in which the district is
located suspended complainant’s license to practice law for
two years. In response to the state suspension, the subject dis-
trict judge ordered complainant to show cause why the district
court should not also suspend complainant from practicing
before it for the identical period. Complainant filed a
response, but the district judge suspended complainant from
practice in the district court on the ground that complainant
hadn’t responded to the show-cause order. Complainant
informed the court that he had indeed filed a timely response,
and moved to rescind the order suspending his admission to
practice. The district judge granted that motion in a written
order, explaining that complainant’s response had been “inad-
vertently filed in [the pending civil] case in which he is a
plaintiff.” The district judge then considered the merits of
complainant’s response to the show-cause order, rejected
complainant’s arguments and again suspended him. Com-
plainant appealed that order and lost again.
Complainant alleges that the district judge was “lying” in
his first order when he stated that complainant had not filed
a response to the show-cause order. A limited inquiry was
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 5763
conducted into this charge. A note in the district court’s case
file confirms what the district judge reported in his order
granting the motion to rescind: Complainant’s response to the
show-cause order was initially misfiled in the civil case dis-
cussed above, which was then pending before the district
judge. The docket in the civil case also shows that the
response was misfiled there. There is no reason to think that
what happened here was anything other than an unintended
filing mistake—the kind of error that will inevitably happen
from time to time, and that can easily be corrected. Complain-
ant hasn’t included any objectively verifiable proof that the
district judge had anything to do with the filing mistake, nor
that he knew about the mistake and was “lying” when he
ruled that complainant hadn’t responded to the show-cause
order. There isn’t sufficient evidence to raise an inference that
misconduct occurred, so this charge is dismissed. 28 U.S.C.
§ 352(b)(1)(A)(iii); Misconduct Rule 4(c)(3).
Complainant also alleges that the district judge refused to
assign a docket number to the disciplinary matter. Here again,
a limited inquiry was conducted into the charge; that inquiry
revealed that it is the district court’s normal practice not to
assign docket numbers to disciplinary matters. The records of
these matters are instead kept in the clerk’s office, where they
are filed under the attorney’s name. This practice isn’t
remotely “prejudicial to the effective and expeditious admin-
istration of the business of the courts,” so this charge is dis-
missed. Misconduct Rule 4(c)(2)(A); see 28 U.S.C. § 351(a).
Once complainant filed an appeal of the district judge’s
order suspending him, the district court did open a docket in
order to facilitate the appeal process. Complainant alleges that
this newly opened docket was “[f]alsified.” A limited inquiry
was conducted into this charge as well, and revealed that all
the orders and motions described above were filed on the
same date. However, the documents in the case file are date-
stamped with the dates on which they were actually filed, and
the identically dated entries on the docket reflect the fact that
5764 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
the docket was opened after the documents had all been filed.
The true state of affairs is clearly reflected in the record.
There’s no factual foundation for the charge that the district
judge “[f]alsified” the record, so this charge is dismissed. 28
U.S.C. § 352(b)(1)(B).
Complainant alleges that the district judge hid evidence and
refused to consider it. But the evidence that complainant
refers to are documents concerning his state disciplinary pro-
ceedings, which bear the state court caption. There is no rea-
son these documents would appear in the district court’s case
file. Complainant doesn’t say when he mailed these docu-
ments, but they are dated long after the district judge filed his
order. There was no way they could have arrived at the dis-
trict court in time for the district judge to consider them.
There isn’t sufficient evidence to raise an inference that mis-
conduct occurred as to these documents, so this charge is dis-
missed. 28 U.S.C. § 352(b)(1)(A)(iii); Misconduct Rule
4(c)(3).
Complainant also alleges that the district judge prevented
other copies of these state-court documents, which complain-
ant mailed to other federal judges in the district, from reach-
ing their intended recipients. He alleges that the subject judge
tore one of the documents and mailed it back to him, intend-
ing thereby to “intimidate” him. However, complainant pro-
vides no objectively verifiable proof that his mailings didn’t
reach the other judges, nor that the district judge interfered in
any way with their delivery. Although petitioner includes a
picture of the torn document and an envelope addressed to
him from the district court, there is nothing to indicate that the
judge himself ordered the document returned or had anything
to do with tearing it. Nor is there any support for complain-
ant’s odd notion that a torn document connotes an attempt to
“intimidate” him. These charges are dismissed because there
isn’t sufficient evidence to raise an inference that misconduct
occurred. 28 U.S.C. § 352(b)(1)(A)(iii); Misconduct Rule
4(c)(3).
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 5765
Complainant alleges that the district judge took bribes,
“framed” him and “fixed” the suspension of his admission to
practice before the district court—all in retaliation for com-
plainant’s blowing the whistle on judicial corruption in the
state judiciary. But complainant offers no objectively verifi-
able proof, so there isn’t sufficient evidence to raise an infer-
ence that misconduct occurred. These charges are therefore
dismissed. 28 U.S.C. § 352(b)(1)(A)(iii); Misconduct Rule
4(c)(3).
Complainant alleges that the magistrate judge committed
misconduct by not reporting the district judge’s misconduct.
But, as explained above, complainant hasn’t made a case that
the district judge committed misconduct in the first place, so
the magistrate judge had nothing to report. There isn’t suffi-
cient evidence to raise an inference that the magistrate judge
committed misconduct, so this charge is dismissed. 28 U.S.C.
§ 352(b)(1)(A)(iii); Misconduct Rule 4(c)(3).
The heart of complainant’s charge is that the state judiciary
acted improperly by suspending his license to practice. But
this complaint procedure applies only to federal judges, so his
charges against the state judges are dismissed. Misconduct
Rule 1(d).
3. Sanctions
Complainant is an attorney, so he should know better than
to file such an obviously frivolous and abusive complaint. He
has wasted considerable judicial resources for no purpose
whatsoever. The standards for filing a complaint of judicial
misconduct have been established for decades, see, e.g., In re
Charge of Judicial Misconduct, 685 F.2d at 1227, and com-
plainant most likely knew, and certainly should have known,
that the complaint he filed comes nowhere near stating a via-
ble claim of judicial misconduct. See id. (“[A]ppellate review,
not the procedures for judicial misconduct, [is] the proper
remedy [for contesting judges’ rulings.]”). A complaint of
5766 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
judicial misconduct is not a vehicle for a disappointed litigant
to vent his anger by accusing judges of lying, taking bribes,
fixing cases, falsifying records and committing other mis-
deeds for which complainant has not the least bit of evidence.
A complaint of judicial misconduct is a court filing and is
therefore subject to normal constraints on such filings, includ-
ing the requirement of good faith and a proper factual founda-
tion. Failure to observe these basic requirements of proper
pleading may subject a complainant to sanctions. 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).
Complainant is therefore ordered to show cause why he
should not be sanctioned by an order requiring him to obtain
leave before filing any further misconduct complaints, see
Sassower, 20 F.3d at 44, by the issuance of a public repri-
mand and/or by the imposition of a $1000 fine. Complainant
has thirty days from the filing of this order to file a response,
which shall comply with Fed. R. App. P. 32, except that it
shall not exceed 4,000 words in length. Failure to file a timely
response to this order will be construed as consent to the
imposition of immediate sanctions.
COMPLAINT DISMISSED. COMPLAINANT
ORDERED TO SHOW CAUSE.
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