Friday, May 16, 2008

In Re Judicial Misconduct (9th Cir. - May 14, 2008)

I agree with virtually every word you say, Alex. Virtually.

Chief Judge Kozinski publishes his disposition of an unnamed attorney's disciplinary charges against an unnamed district court judge. Good to publish it. Especially here. So I agree with that. I also am in full accord with the sytle in which Chief Judge Kozinski elects to treat the numerous allegations raised by this unnamed attorney nutjob. Short and dismissive. That's all this loon deserves. It's clear that we're dealing here with an attorney driven insane by the "conspiracy" of everyone in the world against him, including but not limited to the particular judge who was forced to deal with this guy. And in the face of such insanity, and absurd allegations, Chief Judge Kozinski is right not to spend lots of time on this guy's charges. They're crap. They deserve no better. So I'm totally on board for all of that. I'm also completely in favor of doing what Chief Judge Kozinski does at the end of the opinion, which is to order the guy to show cause why s/he shouldn't be sanctioned for making such absurd and frivolous allegations. Right on. Loved to read it. So I think this is exactly the right disposition.

Except for one thing. Chief Judge Kozinski is correct that almost every one of the nutjob's allegations are utterly frivolous. Almost. But on page 5, Chief Judge Kozinski recounts one of loonie's allegations: that the district judge tore up and mailed back a copy of various state court documents that Mr. Crazy had sent to various judges (including the judge here). With respect to that allegation, Chief Judge Kozinski says a couple of things that are correct: that, even if true, this doesn't really count as "intimidation" as alleged by the complainant, and that there's no proof that the district judge stopped these documents from reaching the other judges. That's right.

But Chief Judge Kozinski also concludes (on page 6) that "there is nothing to indicate that the judge himself ordered the document returned or had anything to do with tearing it." On that point I have to completely disagree. As Chief Judge Kozinski notes, Mr. Should-Be-Committed "include[d] a picture of the torn document and an envelope addressed to him from the district court" alongside the petition. Now, these documents may be total fabrications, but I doubt it. Nor do I read Chief Judge Kozinski to so conclude. Rather, I hear him saying that merely because someone from the district court tore up the document and mailed it back to Mr. Loon, that doesn't prove that the it was the particular district judge here.

But come on. Who else is likely to have done it? Some random judge ain't going to go through all of the trouble of ripping it up and mailing it back. Nor will a clerk. All of those people are much, much more likely to just pitch it into the circular file. Who's the most likely person to actually go through the trouble to rip it up and send it back? A frustrated judge who (rightly) is frustrated at an insane litigant and who wants to send a message.

We know that someone at the district court did this. And, truthfully, my money's totally on the judge. Imagine, for example, that we knew for a fact that someone on the district court had gone out and killed the petitioner. It could have been anyone; a law clerk, a bailiff, a clerk, etc. But would we really say that there was no reason whatsoever to believe that it was the judge? Such no evidence that we wouldn't even ask the judge (as we don't here) whether he did it? Come on.

So I think that this part is wrong. Not only do I think there's enough evidence here, but I even think it's more likely than not that the judge did it. Which is far in excess of what you need in order to support a claim.

I'm not saying that tearing up a document and mailing it back is misconduct. I do think that it's not a very good practice, mind you. And I'd definitely tell judges not to do that. It does reek of frustration, and even though we know that likely exists, I don't think it's a good practice at all to manifest that feeling. Either on the bench or -- perhaps even worse -- through an anonymous act designed clearly to reflect that a judicial officer isn't even reading your stuff. That's not what I'd call good judging.

So I'd be fine with Chief Judge Kozinski saying essentially what I've said above: that there's no conclusive proof that the district judge did it, but even if it transpired, and even though that is a bad thing, under the circumstances here, we're not going to do anything more about it other than what we've done. That'd be fine with me. But I don't think that we should get rid of this claim by pretending that there's no evidence that the judge did something that we all know s/he may well have done. That sits far less right with me. And only, ironically, plays into the "conspiracy" theories that nutjobs like this have about the judiciary.

So I'd reach the same result, but edit that part out. Let's be honest and forthright with what we do. Always a good policy. Even with whackos.