Journal Staff Writer
9th U.S. Circuit Court of Appeals has dismissed a lengthy misconduct
complaint against Chief Judge Alex Kozinski and numerous other jurists
filed by Cyrus M. Sanai, a Beverly Hills attorney.
circuit last week published an 11-page order rejecting Sanai's claims
and threatening possible sanctions against Sanai for submitting baseless
Re Complaint of Judicial Misconduct, 08-89000.
immediately challenged the 9th Circuit's authority to issue the order,
asserting his claims are under review by a 3rd Circuit panel with sole
jurisdiction in the matter.
and Sanai have a long history of antagonism that began in 2005 when they
penned dueling op-ed columns over appellate procedure.
his column and elsewhere, Sanai has claimed acts of judicial corruption
related to long-simmering litigation over his parents' Washington state
a rebuttal titled "Kozinski Strikes Back," Kozinski questioned
Sanai's use of the appeals courts in that litigation and quoted comments
by other judges who were critical of Sanai.
them, U.S. District Judge Thomas S. Zilly of Seattle wrote in 2005 of
Sanai and other family members engaged in a divorce case:
"Plaintiffs' conduct in this litigation has been an indescribable
abuse of the legal process, unlike anything this judge has experienced
in more than 17 years on the bench and 26 years in private practice:
outrageous, disrespectful, and in bad faith." Sanai
v. Sanai, CO2-2065Z.
Kozinski's opinion piece, Sanai was the first to discover sexually
explicit photos on Kozinski's Web site. Those photos became the focus of
a celebrated investigation ordered by Kozinski into his own conduct. The
3rd Circuit investigation ended in July and "resulted in a finding
of misconduct," according to a later opinion by the U.S. Judicial
Conference's conduct committee. The 3rd Circuit reprimanded Kozinski but
ordered no further punishment.
that investigation was under way, Sanai filed a complaint against
Kozinski and a dozen other circuit judges and six district judges
alleging assorted acts of misconduct related to their handling of
Sanai's own civil cases, appeals and earlier misconduct matters.
complaint was the subject of a Nov. 25 order by Circuit Judge Stephen R.
Reinhardt, in which he found Sanai's claims "frivolous,"
"not supported by any evidence" or properly dismissed by
sum, Reinhardt concluded, Sanai filed baseless allegations "and
appears to have described his conduct as part of a litigation
strategy." Reinhardt cited that phrase in a 2008 posting by Sanai
on a legal affairs blog called Patterico's Pontifications, run by a
deputy district attorney in Long Beach, John Patrick Frey.
also quoted from a Sanai comment to another blog: "Once Kozinski
inserted himself into my litigation inappropriately [by writing the
op-ed column], it's my duty and right to undo the negative consequences
and turn the situation to my litigation advantage."
declined to comment on the matter Monday except to note it is unusual
for his blog to be mentioned in an official circuit order.
through his attorney, declined to comment.
used the "litigation strategy" term in comments to the Daily
Journal in 2008. "People are upset that I'm doing all this to
advance my case," he said, speaking of his misconduct complaints.
"It upsets them that I'm acting like a lawyer."
wrote that Sanai "has a history of using the federal courts and the
state appeals courts to accuse state judges who have made rulings
adverse to him and members of his family of bias and corruption."
declined to impose sanctions himself, writing that Sanai's "conduct
warrants referral to the 9th Circuit Judicial Council for whatever
action in this regard, including referral to the State Bar, it may deem
authority questioned whether sanctions are warranted.
are difficult for the system to deal with," said Arthur D. Hellman,
a professor at the University of Pittsburgh School of Law who follows
9th Circuit affairs and studies judicial discipline matters. "They
see themselves as whistleblowers, while others see them as pests or
worse. Judge Reinhardt appears to say that Mr. Sanai is doing all this
in bad faith to pursue a personal vendetta. But personal vendettas and
meritorious complaints are not necessarily mutually exclusive.
it were not for Mr. Sanai's blog post about 'litigation strategy,' this
suggestion of lawyer discipline would be very troubling. It could easily
have a chilling effect and make lawyers even more reluctant than they
already are to file misconduct complaints. It's not so clear to me that
Mr. Sanai is admitting misuse of the misconduct procedure. A litigation
strategy and a genuine belief that Judge Kozinski engaged in wrongdoing
are not necessarily inconsistent."
took matters into his own hands in 2008 when the 9th Circuit declined
his request to transfer his complaint to the 3rd Circuit and stayed a
decision on the matter pending the 3rd Circuit's resolution of the
a November 2008 letter to the U.S. Supreme Court, Sanai asked for help
getting his complaint heard. High court staff members advised him to
send his misconduct complaint directly to the 3rd Circuit.
did so. Last June 3rd Circuit officials wrote Sanai acknowledging
receipt of his complaint and assigning it 3rd Circuit docket numbers
03-09-90060 through 03-09-90071.
means the 9th Circuit no longer has jurisdiction over my
complaint," Sanai said on Monday. "By publishing the Reinhardt
order, they're trying to derail resolution by the 3rd Circuit. I gave
them tons of evidence of specific acts of misconduct by Judge Kozinski
and others, and the 9th Circuit just cannot deal with that. But it's
shocking that they would try to frustrate the 3rd Circuit's handling of
isn't so sure.
question is what the 9th Circuit knew," he said. "It declined
to transfer Mr. Sanai's complaint, and it may not have known that the
3rd Circuit had accepted the complaint sent to it directly by Mr. Sanai.
If that is what happened, the 9th Circuit would have no reason not to go
ahead and decide the complaint that was before it. Now, the 3rd Circuit
could say the matter is moot."