United States v. 2013-07-12 | 11-90135 | IN RE COMPLAINT OF JUDICIAL MISCONDUCT | precedential |…

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT OF
JUDICIAL MISCONDUCT
No. 11-90135
ORDER AND
AMENDED ORDER
Filed July 12, 2013
ORDER
The Order filed on August 24, 2012, and reported at
690 F.3d 1137, is amended. The amended order filed
concurrently with this order is substituted in its place.
AMENDED ORDER
KOZINSKI, Chief Judge:
Complainant alleges that a district judge mishandled the
termination of two former employees and interfered with one
of the employee’s efforts to get a new job. Complainant is
not one of the employees and claims no direct knowledge of
these allegations.
“Personnel decisions are administrative functions, not
judicial functions.” In re Complaint of Judicial Misconduct,

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IN RE COMPLAINT OF JUDICIAL MISCONDUCT 2
366 F.3d 963, 965 (9th Cir. 2004). Though such decisions
“may be essential to the very functioning of the courts, [they]
have not . . . been regarded as judicial acts.” Forrester v.
White, 484 U.S. 219, 228 (1988). It is possible, nonetheless,
for a judge to commit judicial misconduct when performing
administrative functions, such as by engaging in
embezzlement or sexual harassment. But any such charges of
misconduct must allege more than disagreement with the
judge’s administrative decision. The complaint must
document conduct by the judge that is wrongful, independent
of whether the judge’s decision is correct. The misconduct
process cannot be used to second-guess the judge’s
administrative decision; nor can it result in a reversal of that
decision.
Even if complainant’s allegations were true, they don’t
amount to misconduct. Complainant alleges that the judge
fired the employees, but then “claim[ed] untruthfully that
each had ‘voluntarily’ terminated their employment.” Giving
employees the option of voluntary separation in lieu of
termination isn’t uncommon or improper. It is often
beneficial to the employee who can avoid the taint of an
involuntary separation, and saves the employer the time,
trouble and delay of a grievance. This is a useful
management tool, not misconduct.
Complainant also alleges that the judge ordered other
employees not to talk to the terminated employees on pain of
being fired. But complainant here has alleged no improper
motive or other wrongful objective on the judge’s part, so
even if the alleged prohibition is too broad, it is, at most, an
error and not misconduct.

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IN RE COMPLAINT OF JUDICIAL MISCONDUCT 3
Complainant alleges other irregularities in the termination
process, but, even if true, they would amount to no more than
errors of the type that must be corrected, if at all, through the
grievance process.
Finally, complainant alleges that the judge told one of the
employees that he would disclose the employee’s
performance issues to prospective employers. Telling
potential employers about past performance issues isn’t
improper. Indeed, employers often serve as references for
former employees by writing recommendations or responding
to queries from potential employers. It is not misconduct to
let employees know that their performance will be reported
to prospective employers.
Because complainant’s charges wouldn’t constitute
misconduct even if true, the complaint is dismissed as
groundless. See In re Complaint of Judicial Misconduct,
569 F.3d 1093, 1093 (9th Cir. 2009); Judicial-Conduct Rule
11(c)(1)(A).
DISMISSED.

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