In Re: Judicial Misconduct ( 2010 )

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT


IN RE COMPLAINT No. 09-90100
OF JUDICIAL MISCONDUCT
 ORDER
Filed March 30, 2010
ORDER
KOZINSKI, Chief Judge:
Complainant, a pro se litigant, alleges that a district judge
made various improper substantive and procedural rulings in
his cases. These charges relate directly to the merits of the
judge’s rulings and must be dismissed. 28 U.S.C.
§ 352(b)(1)(A)(ii); Judicial-Conduct Rule 11(c)(1)(B). A mis-
conduct complaint is not a proper vehicle to challenge a
judge’s rulings on the merits. See In re Charge of Judicial
Misconduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council
1982).
Complainant claims the judge went off the record during a
hearing in one of his cases and, while off the record, sug-
gested that the government file a motion for summary judg-
ment based on sovereign immunity. Going off the record is
not itself misconduct, although it is not advisable and could
be misconduct if the judge does so in order to insulate an
action from appellate review or for some other improper
motive. In this case, the judge subsequently filed an order
directing the government to move for summary judgment.
The judge’s instruction to the government is thus preserved in
the record, and complainant may raise the issue on appeal if
he believes that the judge erred by so instructing the govern-
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ment. Nor does complainant suggest any other improper
motive for allegedly going off the record. This charge is
therefore dismissed for failure to allege conduct prejudicial to
the effective and expeditious administration of the business of
the courts. 28 U.S.C. § 351(a); Judicial-Conduct Rule
11(c)(1)(A). To the extent complainant challenges the sub-
stance of the judge’s instruction, this charge is dismissed as
merits-related. 28 U.S.C. § 352(b)(1)(A)(ii); Judicial-Conduct
Rule 11(c)(1)(B).
Complainant also alleges that the judge was biased against
him on account of his pro se status and favored government
attorneys. Directing a party to move for summary judgment
is not proof of bias; it may be intended to preserve scarce
judicial resources and avoid unnecessary trials. Complainant’s
allegation that the judge said he “could grant” such a motion
does not mean that the judge promised to grant it; in fact, the
judge ultimately did not grant the motion. The judge’s other
rulings adverse to complainant also aren’t proof of bias. See
In re Complaint of Judicial Misconduct, 583 F.3d 598, 598
(9th Cir. Jud. Council 2009). Because complainant hasn’t pro-
vided any other objectively verifiable proof to support this
allegation, it must be dismissed. 28 U.S.C.
§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D); see
also In re Complaint of Judicial Misconduct, 569 F.3d 1093,
1093 (9th Cir. Jud. Council 2009).
Complainant’s allegations against government attorneys are
dismissed because this misconduct complaint procedure
applies only to federal judges. See Judicial-Conduct Rule 4.
DISMISSED.