The Ninth Circuit has issued an opinion, titled In re Complaint of Judicial Misconduct, addressing a judicial misconduct complaint filed against a district judge, Manuel Real, in February 2003. The case, covered extensively by the L.A. Times , was initiated by a complaint alleging that Judge Real acted for inappropriate personal reasons in placing a “comely” female criminal 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 was that the judge “acted inappropriately to benefit an attractive female” and requested that “this matter be appropriately investigated to determine, among other things, the actual relationship” between the probationer and the judge.
In dismissing the complaint as “entirely unfounded,” the Ninth Circuit opined:
Complainant’s suggestion of an inappropriate personal relationship with the probationer is entirely unfounded. This district 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 personal 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 officer….
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 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 contained 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 personal 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 corrective 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 [stated] that if he had articulated his reasons for withdrawing 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.
This opinion is followed by two dissents, including a 39 page dissent by Circuit Judge Kozinski, who wrote:
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 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 transferred 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 possession; the rent payments stopped.
The Trust brought an unlawful-detainer action against Deborah 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 automatically stayed the unlawful-detainer case. See 11 U.S.C. § 362. Three months later, on January 26, 2000, the bankruptcy 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 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, balanced no equities. The two orders were a raw exercise of judicial 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 property 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?
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 abusive for a judge to exercise his power without the normal procedures and trappings of the adversary system — a motion, an opportunity for the other side to respond, a statement of reasons for the decision, reliance on legal authority. These niceties 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 fundamentally, 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 judgment 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 indication 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 processes. 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. 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 individuals 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 defendant 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. [FN 1] I felt it 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. Counsel for her husband had asked the Probation Officer to release Mrs. Cantor’s [sic] probation report so it would be used in the divorce proceedings. I denied that request upon the recommendation of the Probation Officer….
[FN1: 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 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 reference, 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.”]
…. I have no exact memory of any specific conversation 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 criminal case is that at a 120 day meeting with Mrs. Canter 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 nominally owned by the senior Canters but was given tothem 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 matrimonial matter and counsel for Alan Canter (Gary’s father) in the bankruptcy matter in contempt for filing 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 communications he had with Deborah Canter–the bankruptcy debtor–during the course of supervising her criminal probation. As the judge admits, he formed certain impressions about the state-court proceedings based on Canter’s represen 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-detainer judgment. In addition, he believed–again based entirely on what Canter told him–that “her counsel had abandoned 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 judgment. His belief that the debtor was badly served by her lawyer 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 Bankruptcy Act to interfere with the state-court judgment. [FN3] Nor does the judge’s belief that the debtor’s rehabilitation would be helped if she remained in the Highland Avenue property provide a lawful basis for the injunction. We so ruled in our previous order:
[FN3: 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 bankruptcy estate…. 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 creditors. 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.”]
The debtor, represented by her counsel, had stipulated to a judgment requiring 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 not be adequately presented to the state court.” However, we are not aware of any authority for a bankruptcy court to determine whether parties in state court proceedings were adequately 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 judge’s response, moreover, adds a further dimension to his misconduct: His orders were not merely lacking in lawful 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 expose the judge to one-sided argumentation…. At worst, [it] is an invitation to improper influence if not outright corruption.”). 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 benefitted directly from that order.
© Steve Jakubowski 2005