Kozinski Complaint Is Dismissed

By John Roemer

Daily Journal Staff Writer

The 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.

The circuit last week published an 11-page order rejecting Sanai's claims and threatening possible sanctions against Sanai for submitting baseless charges. In Re Complaint of Judicial Misconduct, 08-89000.

Sanai 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.

Kozinski and Sanai have a long history of antagonism that began in 2005 when they penned dueling op-ed columns over appellate procedure.

In his column and elsewhere, Sanai has claimed acts of judicial corruption related to long-simmering litigation over his parents' Washington state divorce.

In 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.

Among 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.

After 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.

While 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.

That 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 earlier orders.

In 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.

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."

Frey declined to comment on the matter Monday except to note it is unusual for his blog to be mentioned in an official circuit order.

Kozinski, through his attorney, declined to comment.

Sanai 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."

Reinhardt 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."

Reinhardt 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 appropriate."

One authority questioned whether sanctions are warranted.

"Gadflies 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.

"If 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."

Sanai 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 Kozinski investigation.

In 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.

He 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.

"That 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 the case."

Hellman isn't so sure.

"One 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."