In Re Complaint of Judicial Misconduct , 425 F.3d 1179 ( 2005 )

FOR PUBLICATION
JUDICIAL COUNCIL OF
THE NINTH CIRCUIT


In re: No. 03-89037
COMPLAINT OF JUDICIAL MISCONDUCT
 ORDER
Filed September 29, 2005
Before: Arthur L. Alarcón, Alex Kozinski,
Andrew J. Kleinfeld, M. Margaret McKeown and
William A. Fletcher, Circuit Judges, and EZRA, LEVI,
McNAMEE, STRAND and WINMILL, District Judges.
Order;
Partial Concurrence and Partial Dissent by Judge Ezra;
Dissent by Judge Kozinski;
Dissent by Judge Winmill
ORDER
A misconduct complaint was filed against a district judge
of this circuit pursuant to 28 U.S.C. § 372(c) (now 28 U.S.C.
§ 351(a)) in February 2003. The Chief Judge entered an Order
and Memorandum dismissing the complaint on July 14, 2003.
The Judicial Council entered an Order vacating and remand-
ing to the Chief Judge for further proceedings on December
18, 2003. After further investigation, the Chief Judge entered
a Supplemental Order and Memorandum on November 4,
2004, again dismissing the complaint. Complainant has filed
a petition for review of the Chief Judge’s November 4th
Order.
Complainant alleges that the district judge acted for inap-
propriate personal reasons in placing a “comely” female crim-
13797
13798 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
inal defendant on probation “to himself, personally,” and in
withdrawing the reference in the bankruptcy proceeding of
this probationer in order to “benefit an attractive female.” The
claim asserted in the complaint is that the judge “acted inap-
propriately to benefit an attractive female” and requested that
“this matter be appropriately investigated to determine,
among other things, the actual relationship” between the pro-
bationer and the judge. An investigation was made of the alle-
gation.
Complainant’s suggestion of an inappropriate personal rela-
tionship with the probationer is entirely unfounded. This dis-
trict judge has for many years directed criminal probationers,
both male and female, to appear before him personally during
their probationary period. In all cases, the district judge’s per-
sonal meeting with the probationer is in the company of the
probation officer. The probationer in this case was supervised
in the same manner as other probationers supervised by this
district judge, as described in an affidavit by her probation offi-
cer.1
The withdrawal of the reference by the district judge was
dealt with by the court of appeals in In re Canter, 299 F.3d
1150 (9th Cir. 2002). The court held that the district judge had
abused his discretion in withdrawing the reference and in
staying eviction proceedings against the probationer.
The district judge withdrew the reference on February 17,
2000, and stayed the eviction proceedings on February 29.
While evaluating the misconduct complaint now before us,
the Chief Judge learned that in July 2001 the district judge
1
The court’s supervision of a probationer does not involve additional
parties or require adversary legal proceedings unless the probation officer
asks the court to revoke probation because of an alleged violation of a
condition of probation. The conditions of probation, and, therefore, the
supervision of a probationer, often focus on the probationer’s living
arrangements and economic circumstances. See 18 U.S.C. § 3563(a)(7),
(b)(1), (b)(2), (b)(13), and (b)(19).
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13799
transferred the bankruptcy proceeding to another district
judge to allow the second judge to evaluate the propriety of
the withdrawal of the reference. The second judge re-referred
the proceeding to the bankruptcy court in September 2001.
The bankruptcy court granted the trustee’s motion to abandon
the estate’s interest in the residence in question in January
2002.
The Judicial Council’s remand to the Chief Judge indicated
concern that the district judge may have received an improper
ex parte letter from the probationer, and that the withdrawal
of the reference may have been based on information con-
tained in the alleged letter. After an investigation, the Chief
Judge found that no such letter had been transmitted to, or
received by, the district judge. We will not upset that factual
finding. Further, any other impropriety in the district judge’s
receipt of information from the probationer during his per-
sonal meeting with her, and in the withdrawal of the reference
based on that information, has been the subject of appropriate
corrective action by the court of appeals, which held that there
had been an abuse of discretion, and by the district judge’s
own earlier action in transferring the bankruptcy proceeding
to another district judge.
On May 18, 2005 the Judicial Council communicated with
the district judge setting forth with specificity the nature of
the inappropriate conduct that he had engaged in relating to
the withdrawal of the reference of the Canter bankruptcy and
setting forth the necessity for appropriate and sufficient cor-
rective action including an acknowledgment by the district
judge of his “improper conduct” and a “pledge not to repeat
it.”
In response to the Judicial Council’s communication, the
district judge, in a written response from his lawyers, advised
that, “. . . he has carefully reflected upon the underlying
events surrounding this proceeding. Upon reflection, he rec-
ognizes that if he had articulated his reasons for withdrawing
13800 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
the reference and re-imposing the stay, and his underlying
concerns that led to those actions, misunderstandings by the
parties could have been prevented. As would any dedicated
jurist, he believes those types of misunderstandings should be
avoided wherever possible, and he recognizes that it was
unfortunate they occurred in this situation. He does not
believe that any similar situation will occur in the future.”
We are satisfied that adequate corrective action has been
taken such that there will be no re-occurrence of any conduct
that could be characterized as inappropriate. In response to the
dissents, it is important to note that the overall purpose of the
Judicial Conduct and Disability Act is not to punish but to
protect the judicial system and the public from further acts by
a judicial officer that are detrimental to the fair administration
of justice. See Rule 1 of the Rules of the Judicial Council of
the Ninth Circuit Governing Complaints of Judicial Miscon-
duct or Disability (“The law’s purpose is essentially forward-
looking and not punitive. The emphasis is on correction of
conditions that interfere with the proper administration of jus-
tice in the courts.”). As the procedural history of this com-
plaint amply demonstrates, the Council has given close and
diligent attention to this matter over a period of many months.
Although the specific allegation raised by the complainant of
judicial action in exchange for sexual favors is as straightfor-
ward as it is without merit, the additional issues that have
been raised along the way in the course of the Council’s
inquiry are factually and legally complex. It is not surprising
that all members of the Council do not agree on the correct
resolution of these issues. Indeed, it is even a fair question
whether these additional matters are properly within the scope
of the complaint. Assuming that they are, the Council’s find-
ing of corrective action is a considered judgment, based on
the circumstances of this case, that is specifically authorized
by the rules that govern these proceedings. See Rule 14(d). A
finding of corrective action is not a cover up or a whitewash;
it is a finding that adequate steps have been taken to assure
that the conduct will not be repeated, whether or not the con-
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13801
duct crosses over the line from inappropriate conduct to mis-
conduct.
Judge Kozinski suggests that the Council’s goal is to avoid
“hurting the feelings of the judge” who is the subject of the
complaint. Dissent at 13831. Not so. Our goal in these pro-
ceedings is to maintain the integrity of the judiciary, not to
cater to hurt feelings. Compared to many of the decisions we
are called upon to make, decisions on misconduct complaints
do not make any special claim on a judge’s intellectual integ-
rity or personal courage. Any judge who feels that his or her
impartiality might be affected because of a personal relation-
ship to the judge about whom a complaint is made must
recuse. Otherwise, it is our duty to consider the complaints
objectively, without bias for or against the judge or the com-
plainant. This is not an onerous duty, and we gladly accept it.
The Judicial Council finds that appropriate corrective
action has been taken in this case and we therefore AFFIRM
the November 4, 2004, Order of the Chief Judge dismissing
the complaint.
EZRA, Chief District Judge, partially concurring and partially
dissenting:
This complaint of misconduct is a complex and difficult
one that it is exacerbated by the unproven, and as far as I can
discern from the record unfounded, insinuation of licentious
conduct on the part of the District Judge with respect to his
dealings with Ms. Canter. With respect to those allegations of
personal misconduct I join with both the majority and Judge
Winmill’s dissent and would affirm the Chief Judge’s dis-
missal of that portion of the complaint as well as the allega-
tions surrounding the so called letter.
13802 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
However, in my view the record is insufficient with regard
to the remainder of the complaint and I therefore regretfully
cannot join the majority in affirming the Chief Judge’s dispo-
sition of the remaining allegations. I would remand to the
Chief Judge for further proceedings in order to allow the
record to be more fully developed with respect to the bank-
ruptcy stay ordered by the District Judge and the District
Judge’s motivation behind it.
I wish to make it clear that by this partial dissent I am not
suggesting a finding of misconduct should be made. It is my
view that given the serious nature of the allegations and the
points made by both the majority and the two dissents that
further fact finding with appropriate input from those impli-
cated needs to be undertaken before a conclusion either way
can be reached under our standard of review.
KOZINSKI, Circuit Judge, dissenting:
Passing judgment on our colleagues is a grave responsibil-
ity entrusted to us only recently. In the late 1970s, Congress
became concerned that Article III judges were, effectively,
beyond discipline because the impeachment process is so
cumbersome that it’s seldom used. See 126 Cong. Rec.
S28091 (daily ed. Sept. 30, 1980) (statement of Sen. DeCon-
cini). At the same time, Congress was aware of the adverse
effects on judicial independence if federal judges could be
disciplined by another branch of government using means
short of impeachment. See S. Rep. No. 96-362, at 6 (1979),
reprinted in 1980 U.S.C.C.A.N. 4315, 4320. The compromise
reached was to authorize federal judges to discipline each
other. See 126 Cong. Rec. S28091. We are unique among
American judges in that we have no public members—
lawyers or lay people—on our disciplinary boards. See
American Judicature Society, Appendix C: Commission
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13803
Membership, at http://www.ajs.org/ethics/pdfs/Commission
%20membership.pdf (revised Aug. 2003) (listing disciplinary
procedures for all state judges). Rather, judicial discipline is
the responsibility of the circuit judicial councils—bodies
comprised entirely of Article III judges. See Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980, Pub.
L. No. 96-458, 94 Stat. 2035 (1980).
Disciplining our colleagues is a delicate and uncomfortable
task, not merely because those accused of misconduct are
often men and women we know and admire. It is also uncom-
fortable because we tend to empathize with the accused,
whose conduct might not be all that different from what we
have done—or been tempted to do—in a moment of weakness
or thoughtlessness. And, of course, there is the nettlesome
prospect of having to confront judges we’ve condemned when
we see them at a judicial conference, committee meeting,
judicial education program or some such event.
Pleasant or not, it’s a responsibility we accept when we
become members of the Judicial Council, and we must dis-
charge it fully and fairly, without favor or rancor. If we don’t
live up to this responsibility, we may find that Congress—
which does keep an eye on these matters, see, e.g., Operations
of Fed. Judicial Misconduct Statutes: Hearing Before the
Subcomm. on Courts, the Internet, and Intellectual Prop. of
the House Comm. on the Judiciary, 107th Cong. (2001);
Report of the Nat’l Comm’n on Judicial Discipline and
Removal (1993)—will have given the job to somebody else,
materially weakening the independence of the federal judi-
ciary.
For the reasons I explain below, I believe the judge who is
the subject of the complaint in this case has committed serious
misconduct by abusing his judicial power. See Jeffrey M.
Shaman, Steven Lubet & James J. Alfini, Judicial Conduct
and Ethics, § 2.07, at 50 (3d ed. 2000) [hereinafter Shaman,
Lubet & Alfini] (“Judges abuse the power of the judicial
13804 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
office when they abbreviate or change critical aspects of the
adversary process in ways that run counter to the scheme
established by relevant constitutional and statutory law.”).
Some may disagree, as a majority of the judicial council
apparently does. But I hope that, by the time I’ve finished
writing, my reasons will be clear. To that end, I must do what
the majority eschews—discuss the unusual and uncomfortable
facts presented by the record before us.
Many of the facts are already public, having been discussed
by the court of appeals in In re Canter, 299 F.3d 1150 (9th
Cir. 2002). Canter grew out of a bankruptcy case involving
Deborah Canter who, at the time, was undergoing a messy
divorce from her husband Gary. During their married life, the
couple had lived in a house on Highland Avenue in Los
Angeles; the house was owned by Gary’s parents, who trans-
ferred title to the Canter Family Trust in 1997. Gary paid rent
while he and Deborah were living there. When the couple
separated in 1999, Gary moved out, leaving Deborah in pos-
session; the rent payments stopped.
The Trust brought an unlawful-detainer action against Deb-
orah seeking eviction and back rent, and the case was set for
trial on October 26, 1999. Twenty-four minutes before trial
was to start, Deborah filed a bankruptcy petition, which auto-
matically stayed the unlawful-detainer case. See 11 U.S.C.
§ 362. Three months later, on January 26, 2000, the bank-
ruptcy court lifted the automatic stay on a motion filed by the
Trust. Deborah, represented by attorney Andrew Smyth, did
not file an opposition. Thereafter, the Trust and Deborah—
again represented by counsel—signed a stipulation. Based on
that stipulation, the state unlawful-detainer court on February
7, 2000, ordered Deborah to vacate the Highland Avenue
premises.
At that point, lightning struck. Without notice, without
warning, without giving the Trust an opportunity to oppose,
without so much as a motion, the district judge who is now
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13805
the subject of this disciplinary complaint withdrew the case
from the bankruptcy court. Twelve days later, the same judge
entered a second order, enjoining the state-court judgment
evicting Deborah. Like the withdrawal order, the injunction
was not preceded by the usual processes to which we are
accustomed in American courts, such as a petition from the
party seeking the relief or a response from the opposing side.
In fact, no one knew why the district judge had done what he
did—the order gave no reasons, cited no authority, made no
reference to a motion or other petition, imposed no bond, bal-
anced no equities. The two orders were a raw exercise of judi-
cial power, the net effect of which was to let Deborah Canter
live in the Highland Avenue property rent-free. Just how raw
this exercise of power was became clear—if it was not
already—when the Trust twice asked the judge to lift the stay,
and was twice met by summary denials.
The so-called hearing on the second of these motions gives
a pretty good flavor of the judge’s attitude in this matter. The
motion (and an unrelated motion) were argued together on
June 18, 2001—after Deborah Canter had occupied the prop-
erty for some 15 months past the eviction judgment. Deborah
was present (apparently pro se), but said nothing of substance.
After counsel for the Trust soliloquized for about a page of
transcript, we find the following unilluminating exchange:
THE COURT: Defendants’ motion to dismiss is
denied, and the motion for lifting
of the stay is denied—I’m sorry.
The motion to dismiss is granted
with ten days to amend.
MR. KATZ: And the motion to lift the stay is
denied?
THE COURT: Denied; that’s right.
MR. KATZ: May I ask the reasons, your Honor?
13806 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
THE COURT: Just because I said it, Counsel.
I could stop right here and have no trouble concluding that
the judge committed misconduct. It is wrong and highly abu-
sive for a judge to exercise his power without the normal pro-
cedures and trappings of the adversary system—a motion, an
opportunity for the other side to respond, a statement of rea-
sons for the decision, reliance on legal authority. These nice-
ties of orderly procedure are not designed merely to ensure
fairness to the litigants and a correct application of the law,
though they surely serve those purposes as well. More funda-
mentally, they lend legitimacy to the judicial process by
ensuring that judicial action is—and is seen to be—based on
law, not the judge’s caprice. The district judge surely had the
power to enjoin enforcement of the state-court eviction judg-
ment once he assumed jurisdiction over the bankruptcy case,
but he could legitimately exercise that power only if he had
sufficient legal cause to do so. Here, the judge gave no indica-
tion of why he did what he did, and stonewalled all the
Trust’s efforts to find out.
Nor is there anything in the record that would suggest a
legal basis for the judge’s action. Canter might have appealed
the bankruptcy court’s order lifting the stay, but she didn’t.
She might also have filed a motion asking the district court to
withdraw the reference and enjoin the state-court judgment.
Had she done so, we could have gleaned from her motion
some legal theory supporting the injunction. But Canter didn’t
do that either, so we’re left in the dark as to what legal basis
the judge might have had for enjoining the state’s lawful pro-
cesses. Judicial action taken without any arguable legal basis
—and without giving notice and an opportunity to be heard to
the party adversely affected—is far worse than simple error or
abuse of discretion; it’s an abuse of judicial power that is
“prejudicial to the effective and expeditious administration of
the business of the courts.” See 28 U.S.C. § 351(a); Shaman,
Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is
more likely to amount to misconduct than a minor mistake.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13807
The sort of evaluation that measures the seriousness of legal
error is admittedly somewhat subjective, but the courts seem
to agree that legal error is egregious when judges deny indi-
viduals their basic or fundamental procedural rights.”); In re
Quirk, 705 So. 2d 172, 178 (La. 1997) (“A single instance of
serious, egregious legal error, particularly one involving the
denial to individuals of their basic or fundamental rights, may
amount to judicial misconduct.” (citing Jeffrey M. Shaman,
Judicial Ethics, 2 Geo. J. Legal Ethics 1, 9 (1988))).
But, of course, there’s more. Federal district judges don’t
withdraw the reference in bankruptcy cases for no reason, and
they don’t enjoin state-court judgments sua sponte unless they
have some information about the case that persuades them to
do so. Because the district judge had no prior involvement in
the bankruptcy case, and no motion was filed challenging the
propriety of the bankruptcy court’s order lifting the automatic
stay, we can infer that the judge learned about the case some
other way. And, sure enough, Deborah Canter was no stranger
to the district judge. At about the time she was involved in her
divorce proceedings with Gary, Deborah was also the defen-
dant in a criminal case where she was charged with false
statements in violation of 18 U.S.C. § 1001, and loan fraud in
violation of 18 U.S.C. § 1014. That case was pending before
this district judge and he had placed Deborah on probation
after she pled guilty to four counts.
When this complaint was before the Judicial Council on a
prior occasion, we wrote the district judge and asked him
whether the bankruptcy case was assigned to him by random
assignment (a process known as the “wheel”) or in some other
fashion. We also inquired as to his reasons for staying the
state-court proceedings. This is what he said:
There is no wheel for the purpose of withdrawing
the reference in a bankruptcy matter.[1 ] I felt it was
1
The district judge is correct, strictly speaking, in saying that “[t]here
is no wheel for the purpose of withdrawing the reference in a bankruptcy
13808 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
related to my program of working with probationers
to help their rehabilitation. I have been doing this for
more than 25 years and have been told by the Proba-
tion Officer that it is a successful program. In this
case a person who was a probationer in a criminal
case informed me that the home in which she and her
husband were living at the time of their divorce had
been given to them by her husband’s parents. She
was still living in the house with her 8 year old
daughter and was in divorce proceedings. She was
contesting her right to occupancy in the divorce
court and I felt it should be finalized there so I re-
imposed the stay to allow the state matrimonial
court to deal with her claim. From her explanation
of the proceedings in the state court it appeared to
me that her counsel had abandoned her interest so
it could not be adequately presented to the state
court. Counsel for her husband had asked the Proba-
tion Officer to release Mrs. Cantor’s [sic] probation
report so it would be used in the divorce proceed-
ings. I denied that request upon the recommendation
of the Probation Officer.
...
I have no exact memory of any specific conversa-
tion with Mrs. Canter concerning the withdrawal of
the reference in the bankruptcy matter. But what I
can re-construct from the records I have in the crimi-
matter,” but only insofar as it applies to sua sponte withdrawals—
withdrawals by the district court without a motion. According to the clerk
of the district court, if a party files a motion seeking withdrawal of the ref-
erence, the case is assigned randomly according to the “wheel.” Sua
sponte withdrawals are very rare, so rare in fact that the district court clerk
only “recalled one other instance of such withdrawal, so long ago that she
could not remember the name of the judge, but she believed it was a judge
who has long since retired.”
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13809
nal case is that at a 120 day meeting with Mrs. Can-
ter in connection with her performance of
community service advised me that there was an
unlawful detainer action pending in the Municipal
Court to evict her from the property in which she
and her minor daughter were living that was nomi-
nally owned by the senior Canters but was given to
them when she married her then estranged husband.
I have that recollection because shortly after that
meeting and my withdrawal of the reference in the
bankruptcy case Mrs. Canter’s lawyer in the criminal
matter filed an application for an order to show
cause to find counsel for Gary Canter in the matri-
monial matter and counsel for Alan Canter (Gary’s
father) in the bankruptcy matter in contempt for fil-
ing a copy of Mrs. Canter’s confidential probation
report against her privacy interest in both courts,
matrimonial and bankruptcy. After a hearing on the
order to show cause it was discharged by stipulation
of counsel to withdraw the probation reports
although I never learned how the probation report
got into the hands of counsel in the matrimonial or
bankruptcy matter in the first instance. (Emphasis
added.)
The district judge’s response confirms what common sense
suggests: His actions in sua sponte seizing control of the
bankruptcy case and enjoining the state-court judgment were
not random events; they were taken in direct response to com-
munications he had with Deborah Canter—the bankruptcy
debtor—during the course of supervising her criminal proba-
tion. As the judge admits, he formed certain impressions
about the state-court proceedings based on Canter’s represen-
tations to him, and concluded that possession of the Highland
Avenue property should be “finalized” during the course of
the matrimonial proceedings, so he enjoined the unlawful-
13810 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
detainer judgment.2 In addition, he believed—again based
entirely on what Canter told him—that “her counsel had aban-
doned her interest so it could not be adequately presented to
the state court.” The judge also suggested that maintaining her
in possession of the Highland Avenue property would “help
[her] rehabilitation.”
The judge’s explanation does not provide a lawful basis for
his actions. He cites no statute, regulation or caselaw that
authorized him, even arguably, to enjoin the state-court judg-
ment. His belief that the debtor was badly served by her law-
yer in the state-court proceedings, even if it were based on
anything more than the debtor’s unilateral complaint, provides
no authority for exercising federal power under the Bank-
ruptcy Act to interfere with the state-court judgment.3 Nor
does the judge’s belief that the debtor’s rehabilitation would
2
There is cause to doubt the district judge’s explanation. See p. 13827
infra. For present purposes, however, I accept it at face value.
3
As noted by the court of appeals in In re Canter, injunctions under the
bankruptcy power may only be issued to protect the integrity of the bank-
ruptcy estate:
In staying enforcement of the municipal court judgment, the dis-
trict court was acting pursuant to its powers under 11 U.S.C.
§ 105(a). Section 105(a) authorizes the district court to “issue any
order, process, or judgment that is necessary or appropriate to
carry out the provisions of [Title 11].” Walls v. Wells Fargo
Bank, N.A., 276 F.3d 502, 506 (9th Cir. 2002). Section 105(a)
“contemplates injunctive relief in precisely those instances where
parties are pursuing actions pending in other courts that threaten
the integrity of a bankrupt’s estate.” In re Baptist Med. Ctr. of
N.Y., 80 B.R. 637, 641 (Bankr. E.D.N.Y. 1987) (citations and
internal quotation marks omitted).
In re Canter, 299 F.3d at 1155 (footnote omitted). There is plainly no
authority to issue an injunction pursuant to section 105(a) for the purpose
of providing the debtor a warm place to live at the expense of the credi-
tors. Indeed, Congress has provided that a federal court may not enjoin a
state-court judgment, unless specifically authorized by Congress or in aid
of its jurisdiction. See 28 U.S.C. § 2283. The district judge’s injunction
was, thus, not merely unauthorized, it was unlawful.”
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13811
be helped if she remained in the Highland Avenue property
provide a lawful basis for the injunction. We so ruled in our
previous order:
The debtor, represented by her counsel, had stipu-
lated to a judgment requiring her to vacate the prem-
ises, and the unlawful detainer court had entered the
judgment. The district judge acted based on his
belief that the dispute over possession of the prop-
erty should be “finalized” in the divorce proceeding
rather than the unlawful detainer proceeding,
because “it appeared to . . . [him] that her counsel
had abandoned her interest so it could not be ade-
quately presented to the state court.” However, we
are not aware of any authority for a bankruptcy court
to determine whether parties in state court proceed-
ings were adequately represented by their counsel.
Nor are we aware of any authority allowing the dis-
trict court to allocate jurisdiction between two state
courts dealing with related subject matter.
That the district judge believed his actions would
help his probationer’s rehabilitation is of no conse-
quence. A judge may not use his authority in one
case to help a party in an unrelated case. Exercise of
judicial power in the absence of any arguably legiti-
mate basis can amount to misconduct.
Judicial Council Order (Dec. 18, 2003) at 5-6 (alterations in
original). (For ease of reference, I attach a copy of our earlier
order as an Appendix.)
The judge’s response, moreover, adds a further dimension
to his misconduct: His orders were not merely lacking in law-
ful authority, they were based on ex parte communications
from the debtor for whose benefit those orders were entered.
See Shaman, Lubet & Alfini, supra, § 5.01, at 160 (“At the
very least, participation in ex parte communications will
13812 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
expose the judge to one-sided argumentation . . . . At worst,
[it] is an invitation to improper influence if not outright corrup-
tion.”).4 By his own admission, the judge seized the case from
the bankruptcy court so he could enter an injunction that
would allow the debtor to remain in the Highland Avenue
property. He did so based on information given to him by the
debtor during the course of the criminal proceedings when the
trustees and their lawyers were absent. In our earlier order we
also ruled that this conduct was improper:
The district judge’s explanation confirms what
complainant alleges and the evidence suggests: The
district judge withdrew the reference in a bankruptcy
case that was not previously assigned to him, and
entered an order in that case based upon information
he obtained ex parte from an individual who benefit-
ted directly from that order.
It is well established that a judge may not exercise
judicial power based on secret communications from
one of the parties to the dispute. United States v.
Thompson, 827 F.2d 1254, 1258-59 (9th Cir. 1987).
The district judge did not, either before or after his
ruling, disclose to the parties that this ex parte com-
munication had taken place, its substance or the fact
that it formed the basis of his ruling.
While parties do not have a due process right to
the random assignment of cases, a judge may not
assign a case in order to affect its outcome. See Cruz
v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987). The
judge here withdrew the reference and assigned the
case to himself for the very purpose of granting the
debtor relief from her imminent eviction.
4
“Ex parte communications are those that involve fewer than all of the
parties who are legally entitled to be present during the discussion of any
matter.” Id. § 5.01, at 159.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13813
Judicial Council Order (Dec. 18, 2003) at 4-5.5
Before remanding the case to the Chief Judge, we ordered
a limited investigation into the allegations of the complaint.
This investigation was conducted, at the direction of the Judi-
cial Council, by a staff person who called various individuals
by telephone. This investigation uncovered evidence that
there may have been further communications between the
debtor and the district judge concerning her eviction. Among
the individuals called by our staff was attorney Andrew
5
The majority claims that “it is . . . a fair question whether these addi-
tional matters [other than the allegation of sexual impropriety] are prop-
erly within the scope of the complaint.” Maj. at 13800. Fairness, like
beauty, must be in the eye of the beholder. Our earlier order, remanding
the case to the Chief Judge, dealt exclusively with these “additional mat-
ters.” Were we just whistling in the wind? The Judicial Council has
already construed the complaint as encompassing claims beyond sexual
impropriety. It is unseemly for my colleagues to now call that considered
judgment into question, and do so in a throw-away line with no explana-
tion whatsoever.
In any event, the suggestion that the complaint in this case was limited
to “judicial action in exchange for sexual favors,” id., is preposterous.
While the complaint makes reference to Canter as “an attractive female,”
there is no reference to sexual favors, nor to any quid pro quo. See n.14
infra. Complainant clearly suggests that the judge may have been influ-
enced by the debtor’s appearance, but he expressly leaves open the nature
of their relationship—a matter he suggests be investigated. The gravamen
of the complaint is that the judge acted “inappropriately,” a term that
includes judicial acts based on ex parte communications and the related
misconduct that is amply demonstrated by this record. Our duty is to read
the complaint fully and fairly, construing the words the complainant actu-
ally uses rather than rewriting the complaint so it reads more narrowly
than actually written. The standard the majority uses to construe the com-
plaint here is very different from the standard we apply in normal civil liti-
gation. See, e.g., United States v. LSL Biotechnologies, 379 F.3d 672, 683
(9th Cir. 2004) (“[F]ederal complaints are generally construed liberally
. . . .”); Miranda v. Clark County, 319 F.3d 465, 471 (9th Cir. 2003) (en
banc); Harmon v. Billings Bench Water Users Ass’n, 765 F.2d 1464, 1467
(9th Cir. 1985). I see no justification for applying a different standard here
just because the respondent is a federal judge, and the majority offers
none.
13814 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
Smyth, who represented Deborah Canter in the bankruptcy
proceedings and also, apparently, in the state-court unlawful-
detainer action. This is a summary of that conversation:
Mr. Smyth said that when Deborah Canter filed in
bankruptcy, she was being threatened with eviction
by her in-laws and going through a nasty divorce. He
was also aware that she was on probation and had
regular appearances before [the district judge]. The
Canter Family Trust moved for relief from the auto-
matic stay in order to pursue its unlawful detainer
action in state court, and Mr. Smyth stipulated to an
order. He speculated that Ms. Canter may have lost
some trust in him after that, but said that he believed
that all of her defenses could best be raised in the
state court action. He said he was surprised when
[the district judge] withdrew the bankruptcy refer-
ence and reimposed the stay. At the time he had no
idea why [the judge] had done so. He recalls that
when the parties questioned [the judge] in court, [the
judge] said “Because I said so.” Mr. Smyth said that
even at the time of the Court of Appeals argument,
he and Mr. Katz were still speculating on the reason
for [the judge’s] action. Mr. Smyth said that he had
“absolutely zero evidence” of any improper relation-
ship between [the judge] and Ms. Canter, but was
“suspicious” because Ms. Canter was a “cute girl”
who projected a “waif” persona that was appealing.
At the time he thought that perhaps [the judge] had
become aware of her divorce and imminent eviction
in the course of one of her probation visits.
Mr. Smyth then said that he had only become
aware of the “real” reason for the withdrawal some-
time after the Court of Appeals opinion. He
explained that his wife and legal secretary Michelle,
whom he described as a Korean emigre unfamiliar
with the habits of American judges, told him that one
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13815
day Ms. Canter had come into the office crying
about her circumstances, and that Michelle had
offered to help her to compose a letter to [the judge]
and told her to go see him. Michelle did “ghostwrite”
a letter for Ms. Canter explaining how her husband’s
family was picking on her and how she was being
victimized in the divorce. I asked Mr. Smyth
whether he knew if Ms. Canter actually delivered
such a letter to [the judge], so he put his wife on the
phone. She said that Ms. Canter told her that she had
taken the letter in to [the judge]. It was Michelle’s
understanding that Ms. Canter delivered the letter to
[the judge] personally and had some brief discussion
with him. Ms. Canter told Michelle that the letter
had “worked.” I asked Michelle when this delivery
took place, and she said she believed it was a day or
two before [the judge] withdrew the reference.
In our order remanding the case to the Chief Judge, we
noted proof that the judge had withdrawn the reference and
stayed the eviction “in response to a direct plea for help from
the debtor,” Judicial Council Order (Dec. 18, 2003) at 4, and
suggested that the matter “be investigated further,” id.
The Chief Judge, on remand, obtained denials of any such
communication from the judge and from Deborah Canter.
Based on these denials, the Chief Judge concluded that “there
is no basis for a finding that credible evidence exists of a let-
ter or other ‘secret communication’ having passed between
the defendant/debtor and the district judge. There is similarly
no basis for finding that there was any private meeting or dis-
cussion between them at any time.” Chief Judge Order (Nov.
4, 2004) at 5.
The majority declines to “upset that factual finding,” maj.
at 13799, but the Chief Judge is not a trier of fact, and she did
not conduct an evidentiary hearing. Her authority is limited to
determining whether there is credible evidence of misconduct,
13816 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
and she may dismiss the complaint only if credible evidence
is entirely lacking. See 9th Cir. Misconduct R. 4. That the
judge accused of receiving a secret communication and the
party who allegedly made the communication both deny it
does not negate the fact that we have contrary evidence—the
statement of the secretary who claims to have ghostwritten the
letter for Deborah Canter and also claims that Canter told her
she had delivered the letter and that “[it] had ‘worked.’ ”6
The Chief Judge did not contact the lawyer or his secretary
and they did not retract the statements they had made to our
investigator. Nor can I imagine why they would have lied
about this in the first place, as it hardly reflects creditably on
their own conduct. At the very least, then, we have a conflict
in the evidence that only an adversary hearing can resolve.
And an adversary hearing can only be held if the Chief Judge
convenes an investigative committee pursuant to Ninth Cir-
cuit Misconduct Rule 4(e), which she declined to do.
But there is more here than merely the conflicting state-
6
The two denials are hardly as conclusive as the Chief Judge and the
majority want to believe. The district judge made no statements to us at
all. Rather, he answered some questions in a letter directed to his own law-
yer and the lawyer then passed that information on to the Chief Judge.
Neither the judge’s statement nor, of course, that of his lawyer is under
oath. See also p. 13827 infra (questioning the veracity of other unsworn
statements made to us by the district judge). As for Canter’s statement, it
is made under penalty of perjury but (as I note on p. 13818 below) says
suspiciously more than it needs to. Moreover, the declarant had recently
been convicted of felonies of deception. See Fed. R. Evid. 609(a)(2). She
had also filed five bankruptcy petitions in just over seven years, three of
which were dismissed within two months of filing. This is considered evi-
dence of bad faith use of the automatic stay to stall legal proceedings
against her. See In re Knight Jewelry, 168 B.R. 199, 202-03 (Bankr. W.D.
Mo. 1994). When she filed the last of these petitions—the one that is at
the heart of our complaint—she signed, also under penalty of perjury, a
form required by Local Rule 1015-2, which purported to list all her past
bankruptcy petitions, yet she neglected to list any of the four prior peti-
tions on that form. See Bankr. C.D. Cal. R. 1015-2.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13817
ments; there is the matter of timing: According to probation
office records and the judge’s own statement, Canter and the
district judge had a probation review meeting in his chambers
on January 24, 2000. That was the last such meeting before
the district judge withdrew the reference on February 17 and
entered his order enjoining the unlawful-detainer judgment on
February 29.7 But, at the time of the January 24 meeting, the
bankruptcy court had not yet lifted the automatic stay—that
didn’t happen until two days later, on January 26. Nor did the
state court enter its order of eviction—the one the district
judge eventually enjoined—until two weeks later, on Febru-
ary 7.
How then did the district judge know about the state-court
eviction order that he eventually enjoined? Once the bank-
ruptcy court lifted its stay, it was no longer concerned with
the unlawful-detainer action and there is nothing in the bank-
ruptcy court file reflecting the subsequent eviction judgment.
Yet, the district judge was familiar enough with Deborah Can-
ter’s situation—including the specific judgment entered in
state court two weeks after her probation meeting—that he
was able to quash it with cruise-missile accuracy: “Pending
further proceedings in this Court the judgment of February 7,
2000, in the matter of ALAN S. CANTER v. DEBORAH
MARISTINA ROMANO in Municipal Court No. 99U18116
is stayed.” Dist. Ct. Order (Feb. 29, 2000).
Normally, of course, there would be a motion, with declara-
tions and exhibits attached, that would leave no doubt about
how the judge learned the information on which he based his
decision. But the record here is entirely silent. One plausible
inference—perhaps the most likely inference—is that some
time after the January 24 probation meeting, Deborah Canter
communicated with the judge privately—by letter, by tele-
phone or in person—and advised him that an eviction order
had been entered against her, and that she would have to
7
The next such meeting was on April 7, 2000.
13818 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
move out unless he did something about it lickety-split. The
letter, allegedly ghostwritten by Smyth’s secretary and deliv-
ered by Canter to the district judge, would seem to fit the bill.
But there is still a bit more to this story. Deborah Canter’s
declaration, in which she denies having written or delivered
a letter to the judge, actually contains information not men-
tioned in the Chief Judge’s order:
2. I was formerly represented by Andrew Smyth,
Esq., in connection with bankruptcy proceedings. At
one point in the proceedings I received a call at
home from Mr. Smyth’s wife and legal secretary,
Michelle. She asked me to come in to the office to
sign a declaration about an eviction action pending
against me. I did so, and at Michelle’s request I gave
her $50 for an attorney’s messenger service to
deliver the declaration to the court. Michelle did not
specify the addressee, and I do not have a copy of
the declaration.
3. Approximately one week later, while I was at
home, my mother told me that Mr. Smyth’s office
was on the phone. Mr. Smyth said that an eviction
stay order had been issued.
The district judge enjoined enforcement of the state-court
judgment on February 29. Approximately a week earlier
would have been February 22. What then was this “declara-
tion about an eviction action pending against me” that Canter
says Smyth’s secretary had her sign and sent off “to the court”
by messenger? It’s hard to imagine it had anything to do with
the unlawful-detainer proceedings, because those were con-
cluded on February 7 with the entry of the eviction judgment.
The only case Canter had pending at that time that in any way
pertained to her eviction was the bankruptcy, and the only
document filed around that time was a motion dated February
25, seeking conversion from Chapter 13 to Chapter 7. Neither
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13819
that motion nor Canter’s attached declaration makes any ref-
erence to the eviction.
Could the “declaration” to which Canter refers in her sworn
statement to us actually be the letter that the lawyer’s secre-
tary described in her conversation with our investigator? To
be sure, the two accounts differ in material respects, but they
also have much in common: a conversation between the sec-
retary and Canter, a missive signed by Canter concerning the
eviction that was then sent off to the court, an eventual happy
result. Could it be that Deborah Canter did sign a letter as
described by the secretary? Could Canter be worried that such
a letter might turn up, and is she providing herself an out by
volunteering information about a declaration so she might
later claim she didn’t know what she was signing? This could
explain why Canter included otherwise extraneous informa-
tion in a declaration whose only purpose was to deny that she
had any private communications with the district judge.
There might well be an innocent explanation for all this,
but these are not the kind of details that a careful review of
the record should overlook. In light of the other evidence we
have as to a secret communication between the debtor and the
district judge, leading up to his otherwise inexplicable order
enjoining the state-court judgment, I cannot agree that the
absence of such a communication has been conclusively
established.
The majority, as did the Chief Judge before it, ignores these
troubling issues and focuses instead on matters that are
wholly irrelevant, such as the fact that the judge eventually
transferred the case to another district judge, after suddenly
developing doubts as to whether he had acted properly in seiz-
ing the case from the bankruptcy court. What the majority and
the Chief Judge overlook is that the judge transferred the case
seventeen months after he had removed it from the bankruptcy
court, and just two days after the creditors had filed their man-
damus petition with the court of appeals. Given that the dis-
13820 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
trict judge had developed no doubts whatsoever while
maintaining the debtor in the Highland Avenue property for
a year and a half, despite two motions by the Trust, this
strikes me as a clumsy effort to avoid the inevitable dropping
of the hammer by the court of appeals—an implicit acknowl-
edgment of wrongdoing.8
8
Worse, the Chief Judge suggests the fault really lies with the debtor’s
lawyers who hoodwinked the court of appeals by pressing on with the
mandamus petition even though the district judge had corrected his own
mistake: “For reasons that are not clear, the appellate panel apparently was
unaware that at the time of oral argument on the propriety of withdrawal
of the bankruptcy reference, the case had long since been returned to
Bankruptcy Court and closed by the assigned bankruptcy judge.” Chief
Judge Order (Nov. 4, 2004) at 6.
This is untrue, unfair and beside the point. One need only listen to the
tape of oral argument before the court of appeals—freely available from
the clerk of that court—to learn that the court of appeals panel was fully
apprised of these events. But this made no difference to the relief
requested by the mandamus petitioners because neither this district judge,
nor the second district judge (who did, indeed, determine—as has every-
one else—that the first judge had no basis for withdrawing the case from
the bankruptcy court), bothered to vacate the order enjoining the state-
court judgment. The case was thus returned to the bankruptcy court with
the injunction intact, and the bankruptcy judge—being lower on the food
chain than the district judge—reasonably felt he had no authority to vacate
that order. At the time of oral argument in the court of appeals, in March
2002, counsel for the creditors represented that his clients continued to
feel bound by the injunction, and reminded the court that “Ms. Canter has
now lived in my client’s house for three years, rent free.” The debtor’s
counsel agreed that the district judge’s order continued to “prevent any
action against the debtor.” Deborah Canter could not be dislodged from
the Highland property until the court of appeals vacated the district court’s
order impeding the state-court eviction judgment.
The majority seems to be under the impression that the district judge’s
injunction was terminated in January 2002, when the bankruptcy court
“granted the trustee’s motion to abandon the estate’s interest in the resi-
dence in question.” Maj. at 13799. If that is what my colleagues are saying
—and I can see no other point in mentioning that event—they are simply
mistaken. Termination of the bankruptcy proceedings had no effect on the
district court’s injunction and the creditors were still precluded from
enforcing the state-court judgment, even though the debtor had abandoned
any interest in the property, until the court of appeals vacated the injunc-
tion seven months later.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13821
Why does this matter, anyway? The district judge’s mis-
conduct occurred in February 2000, when he seized the case
from the bankruptcy court based on information whispered to
him by the debtor ex parte, and then stayed her eviction with-
out a stated reason and without first giving the parties
aggrieved by the order a chance to argue against it. It occurred
again when he denied their two motions for reconsideration
with the imperious “Just because I said it, Counsel” as the
only reason. See p. 13806 supra. Had he vacated his order at
a later date, this might have mitigated the harm caused by his
misconduct, though it could not have undone the misconduct
itself. But he didn’t even do that much. With the help of
another district judge hand-picked by him, the case was trun-
dled back to the bankruptcy court with the order enjoining the
state-court judgment intact, and so it remained until the court
of appeals issued its mandamus. How or why this series of
events serves as “corrective action” for the district judge’s
misconduct, see maj. at 13800-01, is a mystery to me.9
Nor, of course, does the mandamus order of the court of
appeals, which did find that the district judge had abused his
discretion, count as corrective action. See maj. at 13800-01.
The majority’s contrary suggestion does an injustice to the
many other district judges who have been reversed for abuse
of discretion. When a court of appeals says that a district
9
The Chief Judge also seems to say in her order that the judge’s actions
were justified by the fact that a copy of the debtor’s presentence report had
been improperly released and relied upon in the bankruptcy proceedings.
Chief Judge Order (Nov. 4, 2004) at 5. The majority doesn’t adopt this
rationale and for good reason: It is manifestly untrue. The district-court
docket in the bankruptcy case reflects no proceedings whatsoever related
to the presentence report. In his written statement to us, the district judge
admitted that a show-cause order was issued to deal with this issue, but
in the criminal case. See p. 13809 supra. The docket in the criminal case
confirms this. There was absolutely nothing about the improper release of
the presentence report that justified withdrawing the reference in the bank-
ruptcy case, much less the entry of an order enjoining the state-court
unlawful-detainer judgment.
13822 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
judge abused his discretion, this is a legal conclusion that con-
notes mere error—not wrongdoing. The court of appeals here
carefully refrained from saying whether the district judge
committed misconduct, mindful no doubt that such determina-
tions are the province of this body. Merely reversing an erro-
neous judgment that is the product of misconduct does not
undo the misconduct. If my colleagues need a clear-cut hypo-
thetical to demonstrate this self-evident proposition, consider
a judgment procured by a bribe. That the court of appeals
reverses the judgment—which it would do in every instance
where the bribe was brought to its attention—does not and
cannot insulate the district judge from the consequences of his
misconduct on the theory that the misconduct has somehow
been cured. See Shaman, Lubet & Alfini, supra, § 2.02, at 36
(“In some instances . . . legal error may amount to judicial
misconduct calling for sanctions ranging from admonishment
to removal from office.”); accord Oberholzer v. Comm’n on
Judicial Performance, 975 P.2d 663, 679 (Cal. 1999) (legal
error “can constitute misconduct if it involves ‘bad faith, bias,
abuse of authority, disregard for fundamental rights, inten-
tional disregard of the law or any purpose other than the faith-
ful discharge of judicial duty’ ” (citing cases)); In re Quirk,
705 So. 2d at 178 (“egregious legal error, legal error moti-
vated by bad faith, and a continuing pattern of legal error” can
also constitute misconduct).
Finally, I find the district judge’s slippery statement of con-
trition risible. As the majority notes, we wrote the district
judge and offered to close the matter without further action,
provided he acknowledge his “improper conduct” and “pledge
not to repeat it.” See maj. at 13799.10 This is consistent with
the accepted practice of giving judges subject to a valid disci-
10
We also asked that the district judge tender an apology for his actions,
a requirement the majority seems to have forgotten. Our letter said: “We
believe that, in this case, the most appropriate corrective action would be
for you to acknowledge your improper conduct, apologize for it and
pledge not to repeat it.”
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13823
plinary complaint a chance to mitigate or correct their mis-
conduct by an open acknowledgment of wrongdoing, an
apology and a pledge to mend their ways. See, e.g., In re
Charges of Judicial Misconduct, 404 F.3d 688, 700 (Judicial
Council of the 2d Cir. 2005).
The district judge’s response here falls far short of what I
would consider corrective action. First of all, he fails to even
acknowledge that he acted based on information he obtained
from the party benefitted by his orders, without disclosing this
to the opposing parties or giving them an opportunity to cor-
rect any misstatements or exaggerations that may have been
made to him in private. Our rules governing judicial miscon-
duct proceedings use this precise example of conduct that is
sanctionable: “ ‘Conduct prejudicial to the effective and
expeditious administration of the business of the courts’ . . .
includes such things as . . . improperly engaging in discus-
sions with lawyers or parties to cases in the absence of repre-
sentatives of opposing parties, and other abuses of judicial
office.” 9th Cir. Misconduct R. 1(c); see also 28 U.S.C.
§ 351(a); Code of Conduct for United States Judges, Canon
3(A)(4).
Second, the judge withdrew the bankruptcy reference with-
out any legal justification, for no reason other than to benefit
the debtor by blocking her eviction. See id., Canon 3(C)(1)(a)
(judges should not participate in cases “in which the judge’s
impartiality might reasonably be questioned, including but not
limited to instances in which . . . the judge has a personal bias
or prejudice concerning a party”); see also Cruz v. Abbate,
812 F.2d 571, 574 (9th Cir. 1987) (“While a defendant has no
right to any particular procedure for the selection of the judge
. . . he is entitled to have that decision made in a manner free
from bias or the desire to influence the outcome of the pro-
ceedings.”).
Third, he acted without notice, in direct contravention of
Fed. R. Civ. P. 65(a)(1) which states in categorical terms, “No
13824 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
preliminary injunction shall be issued without notice to the
adverse party.”11 Notice is also one of the bedrock principles
of due process and would be required even without the direct
command of Rule 65(a). See Joint Anti-Fascist Refugee
Comm. v. McGrath, 341 U.S. 123, 170-72 (1951) (Frank-
furter, J., concurring); Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950).
Fourth, the district judge failed to heed the other explicit
procedures applicable to the issuance of an injunction, such as
the requirements of a bond and a clear statement of reasons,
see Fed. R. Civ. P. 65(c), (d), all of which are designed to pro-
vide transparency for purposes of appellate review and other-
wise protect the interests of the party against which an
injunction is entered. This was twice pointed out to the judge
by the creditors in their motions for reconsideration, with no
effect whatsoever. A federal courtroom is not Sherwood For-
est; a judge may not take property from one party and give it
to another, except by following established rules of procedure.
See Shaman, Lubet & Alfini, supra, § 2.07, at 50 (“Judges
abuse the power of the judicial office when they abbreviate or
change critical aspects of the adversary process . . . [and] have
been disciplined for . . . issuing dispositive orders without
making findings of fact or setting forth reasons as required by
law . . . .”).
Fifth, the district judge acted without even colorable legal
authority. To this day, I am unaware of any conceivable legal
basis the district judge might have had for enjoining the state-
court judgment and keeping the debtor in the Highland Ave-
nue property at the expense of the Trust. See p. 13810 n.3
11
It is clear that once an automatic bankruptcy stay is lifted, as happened
in this case, it may not be re-imposed. Rather, the judge may act—if at all
—only by issuing an injunction pursuant to section 105(a) of the Bank-
ruptcy Code, in which case he must follow the procedures applicable to
preliminary injunctions under Fed. R. Civ. P. 65. See In re Canter, 299
F.3d at 1155 & n.1.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13825
supra. Throughout these lengthy proceedings, the judge has
offered nothing at all to justify his actions—not a case, not a
statute, not a bankruptcy treatise, not a law review article, not
a student note, not even a blawg. He’s said nothing that would
suggest he was mistaken—perhaps badly mistaken—but nev-
ertheless acting in good faith. By his silence, the district judge
has implicitly acknowledged that his orders were a raw exer-
cise of power, unsupported by any authority other than that of
his commission. See Shaman, Lubet & Alfini, supra, § 2.02,
at 38 (“Intentional refusals to follow the law are another man-
ifestation of unfitness for judicial office.”). Congress has
surely not made us the most powerful judges in the world so
we can bestow thousands of dollars of bounties on our per-
sonal favorites whenever we feel like it.
Sixth, the district judge has failed to acknowledge the seri-
ous harm he caused the Trust through his improvident actions.
Not only was it forced to host the debtor on its property rent-
free for years—at a cost estimated by the court of appeals at
$35,000—but it also had to spend money on lawyers to bring
two motions for reconsideration and a mandamus petition in
the court of appeals. Bankruptcy lawyers don’t come cheap,
and I’d be surprised if the legal costs associated with undoing
the harm inflicted by the district judge didn’t run into the tens
of thousands of dollars. See Miss. Comm’n on Judicial Per-
formance v. Perdue, 853 So. 2d 85, 91 (Miss. 2003) (party
aggrieved by judge’s ex parte order incurred “attorneys fees
in excess of $13,000.00”).12
12
Perdue is a case remarkably like our own. The judge there granted a
custody decree based on information provided to her ex parte. Id. at 92.
Her order “stated no basis for jurisdiction,” id., was entered “without a
petition being filed,” id. at 91, and “there was no indication of any appear-
ances, testimony, or evidence taken in the matter,” id. at 92. Later, “when
presented with a golden opportunity to right the wrong, Judge Perdue
refused to even discuss the [matter],” id., referred the case to another
court, “thereby keeping in effect” her ex parte order, id. at 93, and “attem-
pt[ed] to divert . . . attention from her actions” by placing the blame on
the aggrieved party, id. at 96. The Mississippi Supreme Court found it “es-
13826 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
Of all these things, the judge says nothing at all; he stead-
fastly refuses to admit any wrongdoing. What he seems to
acknowledge—though it’s hard to tell from his lawyer’s
guarded language—is that he should have communicated the
reasons for his actions better, pretending that, had he done so,
“misunderstandings by the parties could have been prevent-
ed.” This is patently absurd. The problem at the root of the
district court’s actions lay in the fact that he had no reasons—
at least no legitimate reasons—for doing what he did. What
could he possibly have said that might have avoided “misun-
derstandings” by the Trust? Would the trustees have been pla-
cated had the judge told them that he had chatted with
Deborah Canter in their absence and that, based on that con-
versation, he was convinced they had given her a raw deal?
Any attempt on the judge’s part to explain would only have
made it clear that his orders lacked legal authority and were
based on ex parte communications. The judge’s failure to
explain was not a foible; it was part and parcel of a calculated
effort to maintain the debtor in the Highland Avenue property
rent-free for as long as possible, and elude what he doubtless
feared would be the adverse personal consequences of such an
admission.
Nor does the judge’s statement contain a pledge not to
repeat his wrongful conduct. What he says, with uncharacter-
istic coyness, is that “[h]e does not believe that any similar
situation will occur in the future.” Perhaps he does not believe
that any similar situation will occur because he doesn’t expect
to encounter a similar set of facts; it is hardly a commitment
to act differently in similar circumstances. It reflects poorly
on this body that, after asking the district judge for a pledge,
pecially troublesome” that the judge “fail[ed] to acknowledge her wrong-
doing, or even that she may have made a mistake.” Id. Based on these
considerations, the court suspended the judge without pay for 30 days and
assessed her the cost of the disciplinary proceedings. Id. at 98. The Missis-
sippi Supreme Court’s thorough and thoughtful opinion in Perdue con-
trasts favorably with the Judicial Council’s summary order in our case.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13827
my colleagues settle for something as binding and precise as
a weather forecast.13
Worse still, my colleagues turn a blind eye to evidence that
the accused judge may have been less than forthright in his
communications with the Judicial Council. Recall that his
explanation for issuing the injunction was that he thought
Canter was “contesting her right to occupancy [of the High-
land property] in the divorce court,” and he “re-imposed the
stay to allow the state matrimonial court to deal with her
claim.” See p. 13808 supra. In its second motion to have the
injunction lifted, the Trust informed the district judge that the
matrimonial court had by then adjudicated the issue, and had
concluded that Canter had no rights in the property. Attached
to the motion was the order of the state divorce court, entered
after a five-day trial, which included the following finding:
“The court finds that neither Petitioner [n]or Respondent have
any ownership interest in the residence located at . . . High-
land Avenue, Los Angeles, California 90036, so therefore,
there is no community property interest in said property under
any theory of community property law.”
Had the judge been motivated, as he now claims, by the
desire to maintain the status quo until ownership of the prop-
erty was resolved by the matrimonial court, one would think
he would have rescinded his order once he learned that the
matrimonial court had resolved the issue against the debtor.
But no—nothing of the sort. What he did do was to summa-
rily deny the motion and refuse to give reasons. See pp.
13
The fact that the judge does not speak to us directly, but in the third
person through his lawyer, sheds further doubt on his sincerity. Cf. In re
Charges of Judicial Misconduct, 404 F.3d at 691-92, 700 (complaints dis-
missed after judge writes his own letter of apology). I seriously doubt that
many of my colleagues would be persuaded that a criminal defendant has
accepted responsibility for his misconduct based on a statement from his
lawyer that the defendant does not believe such a situation will arise again
in the future. It does not inspire confidence in the federal judiciary when
we treat our own so much better than we treat everyone else.
13828 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
13805-06 supra. By leaving the injunction in place after the
debtor had been found to have no rights in the property, the
judge enabled her to live there rent-free for another two years
—until the court of appeals finally vacated the order by writ
of mandamus. This sequence of events makes it perfectly
clear that the judge was far more concerned with giving Deb-
orah Canter a free place to live than with preserving any
rights she may have had under state law.
The fact of the matter is that the judge’s conduct here
caused real harm. It certainly harmed innocent creditors to the
tune of $50,000 or more. Worse, it harmed public confidence
in the fair administration of justice in the courts of this circuit.
The prohibition against ex parte communications, rules of
procedure, principles of law—all of these are not trinkets that
judges may discard whenever they become a nuisance.
Rather, they are the mainstays of our judicial system, our
guarantee to every litigant that we will administer justice, as
our oath requires, “without respect to persons.” 28 U.S.C.
§ 453.
“All of the foundations of judging—such as respect for the
text of the law and precedent—reinforce the message of
impartiality.” M. Margaret McKeown, Don’t Shoot the Can-
ons: Maintaining the Appearance of Propriety Standard, 7 J.
App. Prac. & Process 45, 53 (2005). When a judge acts in
accordance with the rules of procedure, when he gives reasons
for his orders, when he allows both sides equal and open
access to him, when he follows the law, he ensures not merely
that justice is done, but that it appears to have been done.
When, on the other hand, a federal judge exercises the vast
powers entrusted to him by Congress based on secret commu-
nications with one party, when he fails to give the opposing
side an opportunity to speak, when he refuses to give reasons
for his actions, when he does not cite legal authority, when he
stubbornly and laconically sticks to his guns despite repeated
requests for reconsideration or an explanation, he inevitably
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13829
gives rise to the suspicion that he acted for personal and
improper reasons rather than according to the rule of law.
The complaint here brought this matter to our attention and
plausibly suggested an inappropriate motive for the judge’s
actions. Complainant is surely not alone in his suspicions, as
evidenced by this exchange in the argument before the court
of appeals on the mandamus petition:
JUDGE THOMAS: But you didn’t ask for a reim-
position of the stay or the
injunction, right?
MR. SMYTH: No. That is correct. I did not.
It was a surprise he suddenly
did.
JUDGE THOMAS: Surprised you. And you have
no explanation as you stand
here today of why he did it.
MR. SMYTH: No. Just a guess.
JUDGE THOMAS: And what’s your guess?
MR. SMYTH: That he, one, he possibly felt
my client was being ill served
and that I so readily stipulated
to lift the stay. He had had her
as a client, not a client, a . . .
JUDGE THOMAS: Defendant.
MR. SMYTH: And she gives the kind of little
girl lost, doesn’t know what
she’s doing, she needs protec-
tion, everyone’s picking on
her, and I think he probably
13830 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
stepped in because his thought
was that her lawyer wasn’t
doing a good [job], so I’ll just
preserve the status quo, let her
have her stay. But again, I’m
just trying to guess, you know
counsel asked [the judge]
why, and . . .
When opposing counsel was asked a similar question, his
silence spoke more eloquently than any statement might have:
JUDGE RAWLINSON: Counsel what is your spec-
ulation as to why the
Judge sua sponte lifted,
reimposed the stay?
MR. KATZ: Judge Rawlinson, I would
prefer not to answer that
question.
A judge must not put himself in a position where the parties
to the dispute suspect him of acting out of personal motives
rather than according to law. By his unorthodox behavior in
this case, the district judge did precisely that and I, for one,
cannot say that these suspicions are unfounded.14
14
My colleagues are too quick to dismiss complainant’s suggestion of
an improper relationship between the district judge and the debtor as “en-
tirely unfounded,” maj. at 13798, or even “scurrilous,” Winmill dissent at
13837. Here is what complainant says, after pointing out that he had con-
ducted “a little district court docket research” and discovered that Deborah
Canter had been placed on probation by the district judge:
It would appear to a reasonable observer who knew all these
facts that something inappropriate happened here, beyond what
the court [of appeals] discussed. What I mean to say is that it
appears that [the district judge] acted inappropriately to benefit
an attractive female whom he oddly had placed on probation to
himself, and, if this occurred, then it would constitute extreme
judicial misconduct.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13831
The majority claims that the issues raised by the dissenters
“are factually and legally complex” and that it is therefore
“not surprising that all members of the Council do not agree
on the correct resolution of these issues.” Maj. at 13800. Per-
haps it’s not surprising that we disagree, but I do find it sur-
prising that I still don’t know why we disagree, because the
majority refuses to engage the issues. Complexity of the
issues does not excuse a tribunal from confronting them. I
also find it surprising that, despite what the majority claims
is its “close and diligent attention to this matter over a period
of many months,” id., my colleagues can’t even figure out
whether the judge’s conduct “crosses over the line from inap-
propriate conduct to misconduct,” id. at 13801. A Judicial
Council order in a misconduct case is not a jury verdict; the
accused judge and the public are entitled to a decision that
resolves the issues presented, no matter how difficult or com-
plex they may be. Unfortunately, the majority’s exiguous
order seems far more concerned with not hurting the feelings
It is requested that this matter be appropriately investigated to
determine, among other things, the actual relationship between
Deborah Canter and [the judge].
This is no different from what her own lawyer told the court of appeals,
see pp. 13829-30 supra, or our investigator, see pp. 13814-15 supra.
Unfortunately, the judge’s otherwise inexplicable actions invite such spec-
ulation. Whether the judge acted out of a misplaced sense of chivalry
toward what he saw as a damsel in distress or for some other reason, I
don’t know. What I do know is that he did not act for judicially appropri-
ate reasons and this alone justifies complainant’s suggestion that the judge
may have “acted inappropriately.”
I am well aware of the numerous misconduct complaints by disgruntled
litigants who claim that they lost because the judge had some secret rela-
tionship with the prevailing party. Such complaints are routinely—and
properly—dismissed by the Chief Judge because the accused judges fol-
lowed normal procedures and there is no evidence whatsoever to support
the allegations. This case is quite different because the district judge did
not follow normal procedures and thus forfeited the presumption of regu-
larity that normally attaches to judicial actions.
13832 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
of the judge in question. But our first duty as members of the
Judicial Council is not to spare the feelings of judges accused
of misconduct. It is to maintain public confidence in the judi-
ciary by ensuring that substantial allegations of misconduct
are dealt with forthrightly and appropriately. This the majority
has failed to do.
We are all human and do things we have reason to regret
later. The transgression here, however, was particularly egre-
gious and protracted, and despite numerous opportunities to
do so, the district judge has steadfastly refused to own up to
it. I therefore cannot agree either with the Chief Judge’s con-
clusion that no misconduct occurred or the majority’s conclu-
sion that there has been sufficient corrective action to justify
dismissal of the complaint. Rather, I believe that serious mis-
conduct has been clearly established15 and discipline must be
imposed consisting of nothing less than a public reprimand
and an order that the district judge compensate the Trust for
the damage it suffered as a result of the judge’s unlawful
injunction.
I also believe that the aggrieved creditors are entitled to an
apology from the judges of our circuit for the cost, grief and
inconvenience they suffered in one of our courts because of
the district judge’s unprofessional behavior. The judge who
committed the misconduct refuses to offer such an apology
and it is therefore up to us. Because I cannot speak for the
Judicial Council, a majority of whose members see far too lit-
tle wrong with what the district judge here did, I offer mine.
15
I reach this conclusion without taking into account the unresolved
issue as to whether the debtor communicated with the judge via a secret
letter after her January 24, 2000, probation review meeting. While I
believe that issue deserves further investigation for the reasons I explain
above, I agree with Judge Winmill that misconduct has been established
based on the public record and the judge’s own admissions.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13833
Appendix: Judicial Council Order (Dec. 18, 2003)
JUDICIAL COUNCIL OF
THE NINTH CIRCUIT


In re: No. 03-89037
COMPLAINT OF JUDICIAL MISCONDUCT
 ORDER
Before: Arthur L. Alarcón, Alex Kozinski,
Sidney R. Thomas, M. Margaret McKeown and
William A. Fletcher, Circuit Judges, and PATEL, HUFF,
COUGHENOUR, HATTER and SHANSTROM,
District Judges.
A complaint of judicial misconduct was filed against a dis-
trict judge of this circuit pursuant to 28 U.S.C. § 351-64.
Complainant, an attorney who was not involved in the matters
alleged in the complaint, claims that the district judge com-
mitted misconduct in the handling of a bankruptcy matter,
which has been the subject of an adverse ruling by the Court
of Appeals. See In re Canter, 299 F.3d 1150 (9th Cir. 2002).
Specifically, complainant alleges that the district judge acted
improperly in withdrawing the reference from the bankruptcy
court and then re-imposing the automatic stay that the bank-
ruptcy court had vacated on the motion of certain creditors.
Re-imposition of the stay precluded the creditors from enforc-
ing an unlawful-detainer judgment that would have entitled
them to immediate possession of premises occupied by the
debtor. The Chief Judge dismissed the complaint, noting that
“[a] complaint will be dismissed if it is directly related to the
merits of a judge’s ruling or decision in the underlying case.”
Chief Judge Order at 2 (citing 28 U.S.C. § 352(b)(1)(a)(ii);
9th Cir. Misconduct R. 4(c)(1)).
While legal error alone will not amount to misconduct, the
converse is not necessarily true: Misconduct can cause error.
13834 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
That a judge’s ruling can be, or has been, subject to appellate
review does not automatically insulate the judge’s conduct
from disciplinary proceedings. Jeffrey M. Shaman, Steven
Lubet & James J. Alfini, Judicial Conduct and Ethics § 2.02,
at 36 (3d ed. 2000) (“In some instances . . . legal error may
amount to judicial misconduct calling for sanctions . . . .”). If
the misconduct claimed consists of nothing more than the
judge’s erroneous ruling, the complaint will be deemed to be
“directly” related to the subject of the underlying proceeding,
and must be dismissed summarily by the Chief Judge. How-
ever, where the complainant presents solid evidence that the
judge’s ruling was the result of “conduct prejudicial to the
effective and expeditious administration of the business of the
courts,” 28 U.S.C. § 351(a), then such underlying conduct
will not be deemed “directly” related to the merits of the rul-
ing and the Chief Judge must make an initial determination
whether it amounts to misconduct. In so doing, she must bear
in mind that “[t]he purpose of the complaint procedure is to
improve the administration of justice in the federal courts by
taking action when judges engage in conduct that does not
meet the standards expected of federal judicial officers.” 9th
Cir. Misconduct R. 1(a).
Complainant alleges, and the public record supports these
allegations, that the district judge withdrew the reference from
the bankruptcy court and re-imposed the stay without a
motion from any party. The district judge gave no explanation
for his actions, despite repeated inquiries from the aggrieved
creditors. At the time of the bankruptcy proceeding, the
debtor was on probation in a criminal case presided over by
the district judge. The district judge had placed the debtor-
defendant under his personal supervision, which means that
he met with her and the probation officer personally at 120-
day intervals. Probation office records indicate that there had
been a meeting between the debtor, the probation officer and
the district judge less than a month before the judge withdrew
the case from the bankruptcy court. In response to an inquiry
from our council, the debtor’s bankruptcy attorney claimed
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13835
that, unbeknownst to him, his secretary had drafted a letter
from the debtor to the district judge, asking for his help in
preventing her eviction. According to the secretary, the letter
was delivered by the debtor “a day or two before . . . [the dis-
trict judge] withdrew the reference,” and the next time they
saw each other, the debtor told her “the letter had ‘worked.’ ”
Though this information is based on hearsay and should be
investigated further, it suggests the district judge may have
withdrawn the reference in response to a direct plea for help
from the debtor.
In response to our inquiry, the district judge gives the fol-
lowing explanation:
I felt . . . [the bankruptcy case] was related to my
program of working with probationers to help their
rehabilitation. I have been doing this for more than
25 years and have been told by the Probation Officer
that it is a successful program. In this case a person
who was a probationer in a criminal case informed
me that the home in which she and her husband were
living at the time of their divorce had been given to
them by her husband’s parents. She was still living
in the house with her 8 year old daughter and was in
divorce proceedings. She was contesting her right to
occupancy in the divorce court and I felt it should be
finalized there so I re-imposed the stay to allow the
state matrimonial court to deal with her claim. From
her explanation of the proceedings in the state court
it appeared to me that her counsel had abandoned her
interest so it could not be adequately presented to the
state court. . . .
....
I have no exact memory of any specific conversa-
tion with . . . [the debtor] concerning the withdrawal
of the reference in the bankruptcy matter. But what
13836 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
I can re-construct from the records I have in the
criminal case is that at a 120 day meeting with . . .
[the debtor] in connection with her performance of
community service[, she] advised me that there was
an unlawful detainer action pending in the Municipal
Court to evict her from the property in which she and
her minor daughter were living that was nominally
owned by . . . [the creditors] but was given to them
when she married her then estranged husband.
The district judge’s explanation confirms what complainant
alleges and the evidence suggests: The district judge withdrew
the reference in a bankruptcy case that was not previously
assigned to him, and entered an order in that case based upon
information he obtained ex parte from an individual who ben-
efitted directly from that order.
It is well established that a judge may not exercise judicial
power based on secret communications from one of the par-
ties to the dispute. United States v. Thompson, 827 F.2d 1254,
1258-59 (9th Cir. 1987). The district judge did not, either
before or after his ruling, disclose to the parties that this ex
parte communication had taken place, its substance or the fact
that it formed the basis of his ruling.
While parties do not have a due process right to the random
assignment of cases, a judge may not assign a case in order
to affect its outcome. See Cruz v. Abbate, 812 F.2d 571, 574
(9th Cir. 1987). The judge here withdrew the reference and
assigned the case to himself for the very purpose of granting
the debtor relief from her imminent eviction. The debtor, rep-
resented by her counsel, had stipulated to a judgment requir-
ing her to vacate the premises, and the unlawful-detainer court
had entered the judgment. The district judge acted based on
his belief that the dispute over possession of the property
should be “finalized” in the divorce proceeding rather than the
unlawful-detainer proceeding, because “it appeared to . . .
[him] that her counsel had abandoned her interest so it could
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13837
not be adequately presented to the state court.” However, we
are not aware of any authority for a bankruptcy court to deter-
mine whether parties in state court proceedings were ade-
quately represented by their counsel. Nor are we aware of any
authority allowing the district court to allocate jurisdiction
between two state courts dealing with related subject matter.
That the district judge believed his actions would help his
probationer’s rehabilitation is of no consequence. A judge
may not use his authority in one case to help a party in an
unrelated case. Exercise of judicial power in the absence of
any arguably legitimate basis can amount to misconduct.
The line between abuse of discretion and misconduct is not
always clear. It depends, rather, on the balancing of a variety
of factors. See Shaman, supra, § 2.02. We need not decide
whether that line was crossed in this case. We hold only that
the Chief Judge erred in dismissing the complaint as frivolous
or unsubstantiated; it is plainly neither. We therefore vacate
the Chief Judge’s dismissal order and remand to the Chief
Judge for further proceedings consistent with our order.
Judges Huff, Coughenour, Hatter and Shanstrom would
affirm the order of dismissal.
WINMILL, District Judge, dissenting:
I agree with the majority opinion that we should affirm the
Chief Judge’s finding that the allegations of an inappropriate
personal relationship are baseless. Indeed, the charges are not
only baseless, but scurrilous and contemptible.
There remains, however, persuasive evidence of miscon-
duct that has not been addressed by either the Chief Judge or
the majority. The majority approaches this issue by finding
that if any misconduct has been committed, it was corrected
13838 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
by (1) the finding in Canter that the district judge committed
an abuse of discretion, In re Canter, 299 F.3d 1150, 1152 (9th
Cir. 2002); (2) the district judge’s referral of the case to
another judge who ultimately sent the case back to the bank-
ruptcy court, and (3) the district judge’s apology.
I disagree with both the methodology of this approach and
its conclusions. It is impossible to determine if misconduct
has been corrected until the misconduct is precisely identified.
Once the misconduct is identified in this case, it becomes
clear that it has never been corrected.
The analysis must begin by asking whether there is miscon-
duct. The complaint alleges that the district judge committed
misconduct by enjoining the eviction of Ms. Canter on the
basis of ex parte information without giving anyone notice or
a chance to respond. The record supports this charge. In let-
ters to the Council, the district judge himself explains that on
the basis of ex parte information he received from Ms. Canter,
he decided to benefit her by enjoining a state court judgment
evicting her from the home in which she was residing. Ms.
Canter did not own that residence, and the district judge gave
the owners no notice and no opportunity to be heard. By stay-
ing the eviction, the district judge allowed Ms. Canter to
occupy “the property rent-free for almost three years, result-
ing in a $35,000 loss of rental income.” Canter, 299 F.3d at
1154.
Dispensing an ex parte favor without notice or an opportu-
nity to be heard is “conduct prejudicial to the effective . . .
administration of the business of the courts.” See 28 U.S.C.
§ 351(a); see also Rule 14(f) of the Rules of the Judicial
Council of the Ninth Circuit Governing Complaints of Judi-
cial Misconduct or Disability. This phrase includes “improp-
erly engaging in discussions with . . . parties to cases in the
absence of representatives of opposing parties, and other
abuses of judicial office.” Id. at Rule 1(c). The district judge’s
conduct appears to fall precisely within this definition. His
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT 13839
conduct also appears to violate Canon 3(a)(4) of the Code of
Conduct for United States Judges, which directs judges to
accord to the parties a “full right to be heard according to the
law.”
Of course, the Canons are only guidelines, and so not all
violations of the Canons amount to misconduct. In re Charge
of Judicial Misconduct, 62 F.3d 320 (9th Cir. 1995). How-
ever, dispensing an ex parte favor, without giving anyone
notice or an opportunity to be heard, goes beyond a disregard
for guidelines, and strikes at the very heart of due process. It
is not merely “prejudicial” but is outright destructive “to the
effective administration of the business of the courts.”
Once the misconduct is identified in this way, the three cor-
rective actions identified by the majority can be seen in a dif-
ferent light. First, the finding in Canter that the district judge
abused his discretion is a resolution of an appellant’s legal
claim, not an admonishment of a judge’s conduct. Indeed,
Canter never addressed in any way the misconduct issue
before us.
Second, the district judge’s referral to another judge for
review did not occur until seventeen months had passed from
the date the stay of eviction was entered. This action did noth-
ing to correct the original misconduct of staying the eviction
based upon an ex parte communication and without notice or
an opportunity to be heard.
Finally, while it is commendable that the district judge
apologized for failing to explain his actions, that apology
misses the mark. The misconduct is not the failure to explain,
but the granting of an ex parte favor without giving anyone
notice or a chance to respond. The district judge has never
apologized for that. Because the district judge’s apology fails
to address the misconduct, it cannot be deemed corrective
action.
13840 IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
Judge Kozinski’s dissent reveals in much more detail the
powerful and persuasive evidence of misconduct in this case.
Ultimately, however, I cannot join his dissent because the dis-
trict judge has had no opportunity to provide a defense. While
the district judge submitted letters in response to questions, he
has never been given a full opportunity to present his defense.
Given that, we should invoke our authority under Rule 5 to
“return the matter to the Chief Judge for further action,” and
direct the Chief Judge to use her authority under Rule 4(e) to
appoint a Special Committee, constituted as provided in Rule
9, to resolve the issues raised here. Under Rule 11, the Special
Committee has the authority to hold hearings where the dis-
trict judge may put on a full defense, including witnesses if
necessary.
The record in this case creates a stark appearance of mis-
conduct. A further investigation is absolutely necessary, and
therefore I cannot join in the majority opinion. At the same
time, I cannot join in Judge Kozinski’s dissent: If we rush to
judgment, we deny to the district judge the very due process
that he is accused of denying to others. By allowing the dis-
trict judge a formal opportunity to respond to these very seri-
ous charges, we preserve his rights and confront the
misconduct issue directly. For these reasons, I have filed this
separate dissent.
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