Monday, July 14, 2014

In Re Misconduct Complaint (9th Cir. - July 14, 2014)

During his tenure, Chief Judge Kozinski decided to publish all of his misconduct decisions.  Transparency, openness, and similar good stuff.  As a result, once every couple of months or so, you'll see yet another "In Re Complaint of Judicial Misconduct" caption.

They all get resolved the same way.  Short.  Two or three pages.  Brief recitations of the facts and then a conclusion that the allegations aren't even sufficient to investigate.  Dismissed.

Which, to be honest, is exactly right.  I imagine that most of these things are filed by frustrated litigants or lawyers.  Many of whom need to take a chill pill.  So it's become a routine:  get the complaint, prepare a cursory decision explaining why X, Y and Z isn't really "misconduct" under the statute (or why there's no evidence submitted to support the allegation), and then publish the thing.

So when I saw this decision earlier today, I said out loud:  "I wonder when one of these things will actually say something."

Today's the day.

Don't get me wrong.  Chief Judge Kozinski still dismisses the complaint.  But, for pretty much the first time ever, the opinion takes the allegations seriously.

That's in part because this one's slightly different.  You can complain about a judge under Section 351 on the ground that the judge "engaged in conduct prejudicial to the effective and expeditious administration of justice," and that's precisely the basis for the overwhelming majority of complaints.  But you're also allowed to complain that a judge "is unable to discharge all the duties of office by reason of mental or physical disability."

The complainant here does the latter.  He knows a bankruptcy judge in the Ninth Circuit that he thinks is showing signs of dementia.  Something that he's familiar with because he's taken care of a family member with similar issues.  So he tells the Chief Judge.

I like that.  With life tenure, it's a serious issue.  It should be taken seriously.

And Chief Judge Kozinski does.  Expressly noting that -- presumably in contrast to the usually frivolous "misconduct" complaints -- such complaints "are welcome and encouraged."  Moreover, unlike the quick, dismissive way in which the usual misconduct complaint is dismissed, Judge Kozinski (1) actually makes a (limited) investigation of the facts here, and (2) writes an opinion that clearly reflects that he truly cares about this stuff.

In the end, after talking with some other judges, Judge Kozinski dismisses the complaint.  He says that none of his colleagues has identified a similar problem with this judge.  So, for now, see ya.  Complaint dismissed.

Although I very might like the serious way Judge Kozinski treats this issue, there's one part of the opinion that rang hollow for me.  Judge Kozinski's opinion somewhat critiques the complainant because he didn't "provide any transcripts or audio in support of his allegations."  Like that's routinely available.  Or, even if it was, like a transcript will show painfully slow reaction times and the like.  Similarly, not providing "dates" of particular events seems eminently understandable to me.  You diagnose dementia not from a snippet of facts on particular dates, but from a lengthy pattern of conduct.  So, yes, it'd perhaps be wonderful to have written transcripts of conduct on particular dates.  Would also be wonderful to have the judge confess in writing that s/he's senile.  But the absence of these things hardly a strong basis for concluding, as Judge Kozinski does, that "[w]ithout more specific facts, complainant's allegations are insufficient to raise [even] an inference that a disability exists."

Moreover, requiring more detail also seems a bit inconsistent with the text of the statute itself -- something that Judge Kozinski typically cares about, and yet that's not even mentioned in the opinion -- which expressly requires only a "brief statement of the facts constituting such conduct."  Would the lack of a transcript and dates fail to satisfy FRCP 8, which requires a similar "brief statement of the facts"?  No way.  We'd inquire further.  We'd conduct an "actual" investigation.  Seems to me that the burden that Chief Judge Kozinski is imposing may be a bit high.  Notwithstanding what I agree are slight difficulties in investigating because the complaint doesn't include a transcript or dates.  At a minimum, were it me, I'd at least pick up the phone and try to call the complainant to find out additional details.  Dates and the like.  Stuff like that.

Nonetheless, in the end, I get it.  You do what you can.  You talk to your friends.  Things seem reasonably fine.  So you dismiss the complaint.  While nonetheless telling everyone -- truthfully -- that you really do take these things seriously.

I'll bet you dollars to doughnuts that, as a direct result of this opinion, you see a tenfold rise in the number of disability complaints under Section 351 in the next several years.  Few lawyers know about this provision.  It reflects a serious problem that actually exists.  One that's not just in the minds of losing lawyers and litigants.

So, as they say in the subways, "If you see something, say something."

And, after today, I bet people will.