United States v. 2009-08-27 | 07-89141 | IN RE COMPLAINT OF JUDICIAL MISCONDUCT | precedential |…

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
 IN RE COMPLAINT No. 07-89141
 OF JUDICIAL MISCONDUCT ORDER

Filed August 27, 2009
ORDER
KOZINSKI, Chief Judge:
Complainant first presented his claims in a criminal pro-
ceeding and two civil cases, wherein the subject district judge
presided. Unhappy with the results, complainant filed a
motion to disqualify. In fact, he filed five motions to disqual-
ify and two motions to reconsider those motions to disqualify.
Complainant was declared a vexatious litigant and made sub-
ject to a pre-filing review order. He now brings a misconduct
complaint and four supplements, all concerning the same
judge.
The judicial misconduct system is emphatically not a forum
for disappointed litigants to continue litigation already
decided on the merits. See In re Charge of Judicial Miscon-
duct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council 1982). Yet
complainant repeatedly attacks the subject judge’s rulings—
just as he did in his previous motions to disqualify. Complain-
ant insists that he refers to the merits only to show the judge’s
persistent bias, but that is just another way of saying the judge
was persistently wrong. These claims must be dismissed.
Likewise, complainant’s transparent attempt to relitigate his
five disqualification motions by challenging the judge’s fail-
ure to recuse is merits-related and must be dismissed. See 28
11928

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U.S.C. § 352(b)(1)(A)(ii); Misconduct Rule 4(c)(1); Imple-
mentation of the Judicial Conduct and Disability Act of 1980:
A Report to the Chief Justice 146 (2006).
Complainant’s non-merits related claims are either frivo-
lous or unsubstantiated. Complainant alleges that the judge
was biased against him and conspired with prosecutors and
government officials. This charge must be dismissed because
complainant has provided no objectively verifiable proof (e.g.
names of witnesses, recorded documents or transcripts) of this
allegation. See 28 U.S.C. § 352(b)(1)(A)(iii); Misconduct
Rule 4(c)(3).
Complainant also alleges that the judge was hostile and
derogatory towards him. Once again, this charge must be dis-
missed because complainant hasn’t produced any objectively
verifiable proof. See 28 U.S.C. § 352(b)(1)(A)(iii); Miscon-
duct Rule 4(c)(3). Complainant did allude to one hearing in
particular, but he does not provide a specific date or point to
particular passages that would support his claim. An exhaus-
tive (and time-consuming) search through the voluminous
record in the underlying case reveals a hearing that is proba-
bly the one complainant is referring to. The transcript there
indicates that the judge, while frustrated by the tactics of both
parties, remained professional and did not exhibit bias. Alleg-
edly improper statements quoted by complainant were, in
context, completely benign.
Complainant’s additional allegations are similarly unavail-
ing. Complainant claims that the judge unduly delayed ruling
on a motion, but delay is only a proper subject for a miscon-
duct complaint in unusual circumstances, such as “where the
delay is habitual, is improperly motivated or is the product of
improper animus or prejudice toward a particular litigant, or,
possibly, where the delay is of such an extraordinary or egre-
gious character as to constitute a clear dereliction of judicial
responsibilities.” See Commentary on Misconduct Rule 1.
This is not such a case.
11929 IN RE COMPLAINT OF JUDICIAL MISCONDUCT

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Complainant also argues the judge should not have con-
ducted a scheduled contempt hearing after complainant filed
a motion to disqualify earlier that day. The judge quite prop-
erly did not issue a contempt order until the motion was
resolved. Holding the hearing was not “prejudicial to the
effective and expeditious administration of the business of the
courts.” 28 U.S.C. § 351(a); Misconduct Rule 4(c)(2)(A).
Finally, complainant makes allegations against federal offi-
cers, prosecutors and court staff. Because this complaint pro-
cedure applies only to federal judges, these charges are
dismissed. See Misconduct Rule 1(d).
Sanctions will seldom be considered after a single miscon-
duct complaint by someone who is not a lawyer, but this is
not an ordinary complaint. Complainant appears to be using
the judicial disqualification and judicial complaint processes
as a means for achieving litigation objectives that he was
unable to achieve on the merits. In light of complainant’s
repeated and vexatious use of judicial procedures to pursue
unsubstantiated, frivolous, and already-litigated claims, and
the fact that complainant has already been declared a vexa-
tious litigant, complainant is ordered to show cause why he
should not be subject to a $1000 fine and an order requiring
him to obtain leave before filing any further misconduct com-
plaints. See In re Complaint of Judicial Misconduct, 552 F.3d
1146, 1148 (9th Cir. Jud. Council 2009). Complainant has
thirty days from the filing of this order to file a response,
which will be transmitted to the Judicial Council for its con-
sideration.
DISMISSED and COMPLAINANT ORDERED TO
SHOW CAUSE.
11930 IN RE COMPLAINT OF JUDICIAL MISCONDUCT

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