Judicial Conference of the United States Committee on Judicial Conduct and Disability.
PROCEEDING IN REVIEW OF THE ORDER AND MEMORANDUM OF THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT. J.C. Nos. 09-12-90026, 09-12-90032.
Present: Judges Anthony J. Scirica, Chair, Sarah Evans Barker, Edith Brown Clement, David M. Ebel, James E. Gritzner.
MEMORANDUM OF DECISION
This matter is before the Committee on petitions for review filed by complainant Third Circuit Chief Judge Theodore McKee on May 16, 2013 (" first petition" ) and July 23, 2013 (" second petition" ) regarding his March 6, 2012 complaint
against Judge Richard Cebull under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § § 351-364 (" Act" ) and Rules for Judicial-Conduct and Judicial-Disability Proceedings, 248 F.R.D. 674 (U.S. Jud. Conf. 2008) (" JCD Rules" ). The petitions address three unpublished Ninth Circuit Judicial Council orders on both Judge McKee's complaint and another related complaint against Judge Cebull: an order of March 15, 2013; an order of May 13, 2013 purporting to vacate the March 15 order; and an order of July 2, 2013 issued in lieu of the March 15 order. The petitions argue that the March 15 order should be published as the resolution of these complaints. They also argue, in essence, that the subsequent orders are invalid as wrongly relying on a theory that Judge Cebull's retirement mooted the complaints and as inappropriately withholding factual findings that the March 15 order included. The Committee reviews these petitions under 28 U.S.C. § 357(a) and JCD Rules 21(a) and 21(b)(1)(A). For reasons we explain, the petitions are granted.
I. Factual Background
The complaints arose from a February 2012 incident in which Judge Cebull, using his court email account, forwarded to six acquaintances an email message under the subject line, " A MOM'S MEMORY." The message was as follows:
Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. Hope it touches your heart like it did mine. A little boy said to his mother, Mommy, how come I'm black and you're white? His mother replied, " Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!"
Judge Cebull's forwarding of the email in question was widely reported in the local and national press. The ensuing notoriety was extensive, with calls for action--including demands that Judge Cebull resign--from members of Congress, governmental and non-governmental organizations, and members of the public. In particular, the incident received attention from members of the House Judiciary Committee. On March 6, 2012, Representatives John Conyers and Steve Cohen sent a letter to House Judiciary Committee Chair Lamar Smith requesting that the Judiciary Committee " investigate the potential consequences of Judge Cebull's conduct independent of whatever it is that the Ninth Circuit concludes." Another member of the House Judiciary Committee, Representative Hank Johnson, wrote directly to Judge Cebull asking him to resign.
There was also a substantial response from the public, and the story was widely reported in the local and national press. The Montana Human Rights Network collected more than 2,800 signatures on a petition calling for Judge Cebull to resign. The Crow Tribal Legislature passed a resolution asking Montana's federal legislators to take steps to impeach and remove Judge Cebull. Six professors at the University of Montana Law School published an editorial on March 14, 2012, writing that litigants before Judge Cebull " now have clear reason to question his ability to be fair and impartial when they appear in his court."
II. Procedural History
When this incident became public through media reports, Judge Cebull wrote a letter of apology to the President.
He also asked Ninth Circuit Chief Judge Alex Kozinski to initiate a misconduct inquiry into the incident and waived " any confidentiality as to making this request or to the existence of any proceedings that may ensue from it." Judge Cebull's request was docketed as a complaint filed under the Act by Judge Cebull against himself. Chief Judge McKee filed his complaint against Judge Cebull based on the same incident, waiving " any right [of his own] to confidentiality in the proceedings." Ten additional complaints were filed regarding the incident, which the Ninth Circuit Judicial Council held in abeyance pending an investigation into Judge Cebull's and Judge McKee's complaints. In accordance with JCD Rule 11(f), Chief Judge Kozinski referred Judge Cebull's self-initiated complaint and Judge McKee's complaint to a five-judge special investigating committee, which took testimony and reviewed relevant email, documents, and statistics.
On March 15, 2013, the Ninth Circuit Judicial Council disposed of the two complaints in an order detailing the special committee's findings of judicial misconduct and issuing sanctions against Judge Cebull. A copy of this order was sent to Judge Cebull and to Chief Judge McKee under JCD Rule 20(f). The order found that Judge Cebull's conduct was " 'prejudicial to the effective administration of the business of the courts' under 28 U.S.C. § 351." It further found that Judge Cebull had violated Canon 2 of the Code of Conduct, which provides that a " judge should avoid impropriety and the appearance of impropriety," and Canon 5 of the Code of Conduct, which prohibits political activity. The order stated that Judge Cebull's conduct was " contrary to the Code of Conduct for United States Judges." It also noted that " [t]he strength and breadth of the public reaction to the publication of the February 2012 email illustrates the severity of the violation."
In the March 15 order, the Judicial Council issued a public reprimand, ordered that no new cases be assigned to Judge Cebull for 180 days, and ordered Judge Cebull to complete training on judicial ethics, racial awareness and elimination of bias " [t]o restore the public's confidence that any possible conscious or unconscious prejudice will not affect future decisions." The order described Judge Cebull's past email practices as discovered by the special committee, and " strongly condemn[ed]" them. It also condemned Judge Cebull's initial public apology as " insufficient to acknowledge fully or redress his past actions and the totality of his discriminatory emails" and required that he " issue a second public apology, approved by the Judicial Council," that would " acknowledge the breadth of his behavior and his inattention to ethical and practical concerns surrounding personal email." Two members of the Judicial Council, Chief District Judge Wilken and District Judge Ishii, wrote a concurring statement that " the Judicial Council should request that Judge Cebull voluntarily retire from the judiciary under 28 U.S.C. § 371(a) in recognition of the severity of
his violation and the breadth of the public reaction."
The March 15 order noted that the special committee investigated Judge Cebull's cases--in particular, his dispositions of labor, employment, civil rights and prisoner rights matters--and his criminal sentencing, as well as his cases that were appealed. The investigation found no evidence of bias in his rulings or in his sentencing practices, and no cases that were " troubling." The order noted the special committee interviewed " key individuals in Montana's legal community, court staff and Judge Cebull's professional and social contacts," and found that " [w]itnesses generally regarded Judge Cebull as a good and honest trial lawyer, and an esteemed trial judge."
Under JCD Rule 20(f), the March 15 order was set to be published on May 17, absent any petition for review. But there were further developments in the interim. On April 2, the Ninth Circuit Judicial Council announced through its public website that Judge Cebull had decided to retire effective May 3. On April 23, Chief Judge McKee wrote to the Judicial Conduct and Disability Committee, asking (1) whether the March 15 order must be published as it then stood, and (2) whether any modification of the order would begin a new appeal period. The Committee responded to Judge McKee, with a copy to the Ninth Circuit Judicial Council, that the March 15 order must, under JCD Rule 24(a), be published, and that any modification of the order would begin a new appeal period. Then, on May 3, the Ninth Circuit Chief Judge posted on the court's public website the following announcement: " The Judicial Council now finds it necessary to review the procedural status and will consider the matter at its next regular meeting, scheduled for June 28, 2013." Ten days later, on May 13, the Ninth Circuit Judicial Council issued an order vacating its March 15 order as moot in light of Judge Cebull's retirement and stating that the Judicial Council would " consider appropriate revisions" at a forthcoming meeting, scheduled for June 28.
On May 16, Chief Judge McKee filed a petition for review (" first petition" ) asking the Judicial Conduct and Disability Committee to review the May 13 vacatur. The Ninth Circuit Judicial Council responded that the Committee had no jurisdiction to conduct review at that time because (1) the Judicial Council's vacatur order " is not a final order," and (2) the March 15 order " is not reviewable because it was vacated."  It characterized the " case" as " still pending before our Judicial Council." These arguments notwithstanding, the petition's pendency with this Committee required that both the March 15 order and the May 13 vacatur remain, at least for the time being, unpublished.
Against this backdrop, the Ninth Circuit Judicial Council took further action. On July 2, it issued an order that " dismissed the complaints as moot," declaring that the " intervening event" of Judge Cebull's retirement " concludes these proceedings," and that the vacatur of the March 15
order had been predicated on " changed circumstances" resulting from Judge Cebull's retirement. While still describing Judge Cebull's actions in this matter as " misconduct," the July 2 order presented a truncated version of the March 15 order's findings.
The March 15 Judicial Council order had described hundreds of inappropriate email messages that were received and forwarded from Judge Cebull's court email account. The emails were identified by category, noting emails that were " political in nature" and emails that " showed disdain and disrespect for liberal political leaders" ; race-related emails that " showed disdain and disrespect for African Americans and Hispanics, especially those who are not in the United States legally" ; " emails related to religion [that] showed disdain for certain faiths" ; " emails concern[ing] women and/or sexual topics and were disparaging of women" ; " emails contain[ing] inappropriate jokes relating to sexual orientation" ; and " emails related to pending legislation or an issue that could come before the court, such as immigration, gun control, civil rights, health care or environmental matters."
None of the foregoing descriptions appears in the order of July 2, 2013. That order recharacterized its predecessor's findings and omitted many salient details. For example, in lieu of the March 15 order's nearly two-page description of the number and nature of inappropriate emails, the order of July 2 noted only that " Judge Cebull sent a substantial number of similarly inappropriate emails from his court email account." The July 2 order included only a truncated version of the March 15 order's discussion of witness interviews and the public response to the February 2012 email. And it omitted the March 15 order's discussion of the specific conduct violations and the particularities of the public reprimand and the sanctions ordered, replacing it with the remark that " [t]he Judicial Council found misconduct with regard to the emails Judge Cebull sent from his court account, and issued an Order and Memorandum ... imposing a number of remedial and disciplinary measures."
In summary, the July 2 order diverges from its predecessor in its (1) lack of specificity as to the number, nature, and targets of inappropriate emails found to have been sent by Judge Cebull; (2) recharacterization of the misconduct in a way that eliminates all references to " disdain and disrespect" for various groups; (3) lack of specificity as to why the emails constituted misconduct; (4) de-emphasis of derogatory findings by reduction of their extent and prominence relative to extenuating material; and (5) omission of any reference to the concurrence in which two Council members indicated that they would have sought Judge Cebull's resignation.
Chief Judge McKee filed a new petition for review (" second petition" ) on July 23, incorporating the first petition by reference and requesting review of the July 2 order. (Under JCD Rule 20(f), Chief Judge McKee was entitled to receive and did receive the July 2 order.) This petition expressed " concern about the propriety of a Judicial Council issuing a final order making detailed findings of extensive judicial misconduct and then, after the subject judge retires, sua sponte vacating its own final order and issuing a new order that effectively conceals the judicial misconduct that previously had been identified and detailed." The Ninth Circuit Judicial Council, in an August 9, 2013 letter of response to the Committee, explained that the July 2 order sought only to " disclose enough about the investigation to ensure the public knows that the matter was taken seriously. . ." because, in the Council's
view, " [saying anything further would be punitive, which is no longer appropriate. . . ." Thus, the Judicial Council did not intend to publish its March 15 order, which it declared " vacated."
A. Publication of the March 15 Order
The Judicial Conduct and Disability Act of 1980 mandates that " [e]ach written order to implement any action under section 354(a)(1)(C) . . . shall be made available to the public through the appropriate clerk's office of the court of appeals for the circuit." 28 U.S.C. § 360(b) (emphasis added). (Section 354(a)(1)(C) governs action taken " if the complaint is not dismissed." ) JCD Rule 24(a) requires that " all orders entered by the chief judge and judicial council" be made public " [w]hen final action has been taken on a complaint and it is no longer subject to review" of right. An order by a Judicial Council is no longer subject to review of right after " 63 days of the date of the order" or, if a timely petition for review is filed, after the Committee adjudicates the petition. Neither 28 U.S.C. § 360(b) nor JCD Rule 24(a), by its terms, limits this publication requirement to " final" orders. The JCD Rules provide no exception to the requirement other than granting the Judicial Council discretion, in specified circumstances, to decide whether to identify the subject judge. JCD Rule 24 (a)(2). As noted, the Act refers to publication of orders implementing any action under Section 354 (a)(1)(C). In addition, this Committee may make available " other orders related to the complaint proceedings" by posting them on www.uscourts.gov, the website on which we must post our own orders " constituting final action on a complaint proceeding." JCD Rule 24(c).
The publication requirement in the Act and in the JCD Rules balances the need to preserve the confidentiality of the identity of a judge who is subject to a complaint of misconduct or disability to which no merit has yet been ascribed, with the need for transparency and public confidence once the Circuit Judicial Council has adjudicated the matter on the merits. The statutory provision requiring public disclosure of orders was one of several that were added to an earlier draft of the Act, to " requir[e] the procedures and institutions involved [in the process] to be more open to public scrutiny" and to serve the " goal of insuring public access to the [complaint] process." 126 Cong. Rec. S. 13854, 3860-13861 (daily ed. Sep. 30, 1980); 126 Cong. Rec. H. 10188, 10190-10191 (daily ed. Oct. 1, 1980).
In this matter, the proceedings concluded when the Ninth Circuit Judicial Council issued its March 15 order, which rendered a final decision on the merits. Even though the period for review had not yet elapsed, the order was a final decision because the Council had adjudicated the matter on the merits after having received a report from a special investigating committee. Moreover, the March 15 order was subject to the § 360(b) publication requirement, because it ordered action " to assure the effective and expeditious administration of the business of the courts" within the meaning of 28 U.S.C. § 354(a)(1)(C). Accordingly, and irrespective of the vacatur, the March 15 order must be published, under both the Act and the JCD Rules. 28 U.S.C. § 360(b); JCD Rule 24(a).
B. The " Intervening Event"
The Ninth Circuit Judicial Council in this instance misapplied the Act and the JCD Rules by invoking Judge Cebull's retirement as an " intervening event" warranting vacatur of the March 15 order and
dismissal of the complaints as " moot." Although a Circuit Judicial Council may conclude a proceeding " because . . . intervening events have made the proceeding unnecessary," JCD Rule 20(b)(1)(B), such a disposition " after appointment of a special committee" is available only if " no final decision has been rendered on the merits." JCD Rule 24(a) cmt. In other words, the JCD Rules contemplate that an " intervening event" is one that occurs before the Circuit Judicial Council has rendered factual and legal findings.
The Ninth Circuit Judicial Council adjudicated the complaints on March 15, 2013. For purposes of JCD Rule 20(b)(1)(B), the complaint proceeding concluded when the Council issued its March 15 order, a decision on the merits. At that time, there was no intervening event to moot the Circuit Judicial Council's disposition. Because Judge Cebull's retirement came after the adjudication of the merits, it was not ...