By Justin Scheck
The Recorder
10-04-2005

Can federal judges be trusted to police themselves? Alex Kozinski isn't so sure.

In a withering 39-page dissent last week, the 9th U.S. Circuit Court of Appeals judge ripped into his colleagues for going soft on a Los Angeles federal judge accused of misconduct. Kozinski said U.S. District Judge Manuel Real abused his judicial office by entering orders so a female defendant -- whose probation he was supervising -- wouldn't be evicted and could remain in a house rent-free.

"Congress has surely not made us the most powerful judges in the world so we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it," Kozinski wrote. He said the 10-member Judicial Council of the 9th Circuit should have imposed a public reprimand and ordered Real to repay the owner of the home.

But the majority took a narrower view of the allegations against Real, and said a statement from his lawyer satisfied their concerns. "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," the majority said in an unsigned opinion.

Real, an abrasive Los Angeles judge with a passion for gardening, has cultivated a diverse crop of critics since taking the bench in 1966. His name doesn't appear in the opinion published late Thursday, but court records show he was the judge in the underlying cases. Calls to his office Friday were referred to L.A. attorney Donald Smaltz, who didn't return calls by press time.

In re Complaint of Judicial Misconduct originated in 2003, when a longtime nemesis -- L.A. civil rights lawyer Stephen Yagman -- filed a complaint accusing Real of misconduct in Deborah Canter's bankruptcy case.

Real had been personally supervising Canter's probation in an unrelated criminal case. Shortly before she was to be evicted from her home through a state court proceeding, Real took over her bankruptcy case and issued a stay of the eviction proceeding, allegedly following ex parte communications with Canter.

When Herbert Katz, a lawyer for the creditors, asked Real to explain the basis for his decision, the judge replied, "Just because I said it."

That decision was reversed by the 9th Circuit in 2002.

9th Circuit Chief Judge Mary Schroeder initially dismissed the subsequent misconduct complaint, but the Judicial Council in 2003 sent the case back to Schroeder for further investigation.

Kozinski's dissent excoriates both Real's behavior and his colleagues' reasoning. The majority, which had demanded that Real acknowledge his misconduct, cited a letter from his lawyer that said his client "has carefully reflected upon the underlying events surrounding this proceeding" and recognized that "articulating his reasons" would have avoided "misunderstandings." The lawyer added that Real "does not believe that any similar situation will occur in the future."

Kozinski called the response "patently absurd."

B. Lynn Winmill, an Idaho district court judge, issued a separate dissent, while David Ezra, a district judge from Hawaii, wrote a concurring and dissenting opinion.

Making up the majority were 9th Circuit Judges Arthur Alarcon, Andrew Kleinfeld, M. Margaret McKeown and William Fletcher and district judges David Levi of California, Stephen McNamee of Arizona and Roger Strand of Arizona.

Questions about whether federal judicial councils are able -- or willing -- to meaningfully discipline jurists with lifetime appointments have persisted since the councils were set up in the late 1970s, said Rory Little, a professor at Hastings College of the Law. He said that there are still questions of whether the system is constitutionally sound, since the U.S. Supreme Court has yet to consider the issue.

Like Kozinski -- who worries in his dissent that judges may be "more concerned with not hurting the feelings of the judge in question" -- Little says that judges often have trouble censuring their colleagues.

Little said he has no opinion on whether Kozinski is right or wrong in the Real case, but praised the judge's willingness to stick his neck out.

"I admire his integrity and work ethic," he said. "Would I have the courage to do what Judge Kozinski did? I don't know."