Every decade there's a particular district judge in the Ninth Circuit who's a problem. At least in the opinion of the Ninth Circuit.
In the 2010s, it appears to be Judge Robert Clive Jones.
You wouldn't have necessarily thought initially that it would be Judge Jones to be the one to go off the rails. He's a former Cliff Wallace clerk. He was a bankruptcy judge for fifteen years. He was unanimously confirmed by the Senate to the district court in Nevada when he was appointed by Bush in 2003.
Yet here we are.
Those readers in Nevada may well be familiar with Judge Jones already. Others may know a bit less about his peculiarities.
And I'm not talking about his strong conservative streak. One that's gotten him reversed numerous times by the Ninth Circuit. Or his relatively "out there" beliefs about various matters; for example, his written opinion that it's conceivable that a "meaningful percentage of heterosexual persons" would refrain from getting married were gay marriage recognized.
No, I'm talking instead about something different. A pattern that puts him up there with some other notorious district court judges in the Ninth Circuit. Something that I can explain fairly well just by reference to the words used by Judge Graber, joined by Judges Wardlaw and Murguia, in this Ninth Circuit opinion:
"The United States brought this action for damages and injunctive relief
against E. Wayne Hage (now deceased) and his son, Wayne N. Hage, alleging that
they grazed cattle on federal lands without a permit or other authorization. The
district court found that, in fact, the Hages had grazed cattle on federal lands
without a permit or other authorization. The court nevertheless ruled almost
entirely against the government by holding—contrary to longstanding binding
precedent—that the Hages’ water rights provided a defense to the government’s
claims of trespass. The district court also ruled against the government on a
counterclaim—filed at the district court’s invitation—even though the
counterclaim plainly was barred by the statute of limitations. Finally, the district
court held two federal agency officials in contempt of court for their ordinary
actions, lawfully carried out within the scope of their regulatory and statutory
duties, despite the fact that the actions had no effect whatsoever on this case. In
this opinion, we vacate in part and reverse in part the judgment on the merits, and
we remand for further proceedings before a different district judge. . . .
Defendants openly trespassed on federal lands. Rather than simply resolving
the fact-specific inquiries as to when and where the cattle grazed illegally, the
district court applied an "easement by necessity" theory that plainly contravenes
the law. The district court also encouraged Defendants to file a counterclaim that
was clearly time barred. The only support that the court cited to overcome the
obvious jurisdictional problem was a decision that stands for the opposite conclusion. Moreover, as discussed more fully in a separate disposition filed
today, the court grossly abused the power of contempt by holding two federal
agency officials in contempt of court for taking ordinary, lawful actions that had no
effect whatsoever on this case. [Citation]
A dispassionate observer would conclude that the district judge harbored
animus toward the federal agencies. Unfortunately, the judge’s bias and
prejudgment are a matter of public record. On the first day of the 21-day trial, the
judge stated: "the Bureau of Land Management, you come in with the standard
arrogant, arbitrary, capricious attitude that I recognize in many of these cases."
"[I]t’s my experience that the Forest Service and the BLM is very arbitrary and
capricious." "Your insistence upon a trespass violation, unwillful —your arbitrary
determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this
court."
During the contempt hearings, the judge stated: "I don’t like and never have
liked the BLM’s or Forest Service’s arrogant presumption that they could assess to
people for [animal unit months], for trespass, their own travel costs, office costs,
sitting in their big chair already paid for by the American taxpayer." Compare 43
C.F.R. § 4150.3 (providing that the amount due for willful unauthorized grazing includes "all reasonable expenses incurred by the United States in detecting,
investigating, [and] resolving violations"). The judge’s statements in this case
reflect both pre-judgment of the merits and bias against the federal agencies.
Judge Jones’ improper treatment of government officials and his improper
statements about federal agencies were the subject of United States v. United States
District Court (In re United States), 791 F.3d 945 (9th Cir. 2015). [Which Judge Graber then discusses at length.] We also have expressed concern about Judge Jones’ conduct in several other
recent cases. See La Raza, 800 F.3d at 1046 (remanding to a different district
judge because a reasonable observer could conclude that his "feelings against out-of-state attorneys are both well-established and inappropriately strong" and noting
that this court had earlier found his comments "troubling" in Henry A. v. Willden,
678 F.3d 991, 1012 (9th Cir. 2012)); Benvin v. U.S. Dist. Court (In re Benvin), 791
F.3d 1096, 1104 (9th Cir. 2015) (per curiam) ("Here, the appearance of justice will
best be served by reassignment to a different judge. The current district judge
[Judge Jones] has already expressed explicit views on the appropriate terms of the
parties’ plea agreement, suggested the terms he would and would not accept, and
explained that he would not grant any motion dismissing forty-nine counts of the
indictment unless the government complies with such terms."); Townley v. Miller,
693 F.3d 1041, 1043–45 (9th Cir. 2012) (order) (Reinhardt, J., concurring) (stating
that Judge Jones’ actions "can only be explained as a deliberate attempt to evade
review by higher courts" and that "[s]uch arrogance and assumption of power by
one individual is not acceptable in our judicial system"). On remand, we instruct
the Chief Judge of the District of Nevada to assign the case to a different district
judge."
A federal judge repeatedly rebuked in this manner by the Court of Appeals might well reflect upon his conduct and decide to modify it.
But my bet is that that's not what we're going to see from Judge Jones, and that what we've started to see about him in the Ninth Circuit is only the beginning, not the end.
