U.S. COURT OF APPEALS FOR THE 9TH CIRCUIT
Jun. 09, 2008
Kozinski Gives New Life to Role of Chief Judge
Among Changes in His Nascent Term: 9th Circuit's Misconduct Orders Are Online for All to See
By John Roemer**********
Daily Journal Staff Writer
This article appears on Page 1
SAN FRANCISCO - Six months in, Alex Kozinski has started strong as chief judge of the nation's biggest federal appellate court.
Kozinski, who turns 58 next month, took the gavel from the former chief judge, Mary M. Schroeder, on Nov. 30, for a seven-year term.
Since then he has put lawyers and his own judges on notice within the 9th U.S. Circuit Court of Appeals that their shortcomings will be publicly posted for all to see.
He has successfully fought off en banc challenges to his own panel opinions by liberal circuit judges.
And he is obviously enjoying himself, as he showed at a March bar banquet in San Francisco where he offered a trivia contest instead of a speech.
Thanks to Kozinski, lawyers at the Northern California Federal Bar Association luncheon now know that Johnnie B. Rawlinson's dog flunked obedience school, that Sandra Segal Ikuta once edited a martial arts magazine and that Michael Daly Hawkins wrote a master's thesis on the politics of slavery.
Kozinski even gets credit for stemming the flow of crackpot opinions the circuit produces, according to one scholar.
"I've noticed a marginal improvement in a reduced number of crazy cases coming out of the 9th Circuit since Judge Kozinski took over," said John C. Eastman, dean of Chapman University School of Law in Orange. "I mean the cases that are so clearly contrary to precedent that the Supreme Court summarily overturns them 9-0."
Eastman, who formerly clerked for Supreme Court Justice Clarence Thomas, said the trend appears to be a result of the more conservative judges appointed to the circuit during the Bush administration.
"Judge Kozinski is presiding over a court that is moving closer to the center," he said.
Stephen Barnett, an emeritus professor of constitutional law at the University of California, Berkeley, School of Law, described himself as a veteran "Kozinskiologist."
He said Kozinski's influence on his colleagues stems chiefly from leading by example.
"He's carefully respected the interests of the other judges," Barnett said. "He hasn't reined in his sometimes-fiery opinions, but neither has he pushed them; he doesn't appear to have exploited whatever power he has. If Judge Kozinski continues to attract publicity like flies to fly-paper, that's not entirely his doing."
Kozinski shook up the circuit's administration, promoting longtime clerk of court Cathy Catterson to the post of circuit and court of appeals executive and elevating her former deputy, Molly Dwyer, to the chief clerk job.
"I don't think I could [be chief judge] without Cathy Catterson and Judge [Sidney R.] Thomas," said Kozinski, whom President Reagan placed on the circuit in 1985. Thomas, of Billings, Mont., is a President Clinton appointee who holds a key position as the circuit's en banc coordinator and is in line to succeed Kozinski in 2014. Chief judgeships are assigned in order of seniority to active judges under 65.
"He's the Prince of Wales," Kozinski joked of Thomas' role as chief-judge-in-waiting.
"Judge Kozinski has given new life to the role of chief judge, as he did in the Federal Claims Court at the start of his judicial career," Barnett said this week. "He's taken his administrative role seriously and made important changes, notably in the area of judicial discipline."
For his own part, Kozinski responded to a reporter's e-mail with an assessment:
"I've pretty much decided it's hopeless to try to lead a bunch of judges," he wrote. "The most you can hope to do in this job is to serve - to try to make life a little easier or less complicated for your colleagues and for the parties who appear before us. I have a very good team in place so I'm hoping I can make a difference that way."
The energetic Kozinski has visited nine of the circuit's districts so far, with Alaska, Idaho, Montana, eastern Washington, Guam and Saipan on his schedule before the end of 2008. Even as he attends to the administrative details, he still finds time to sit on the Central District of California bench as a trial judge.
He concluded a civil case a month ago and launches a criminal trial today.
On the judicial discipline front, Kozinski moved quickly at the start of 2008 to begin posting final misconduct orders and memoranda online for the public to see. That move emulated a practice begun by Chief Judge Frank Easterbrook in 2006 at the 7th Circuit centered in Chicago.
The postings resulted in the naming of U.S. District Judge Manuel L. Real of Los Angeles in a Jan. 17 letter of reprimand signed by Kozinski, and in the posting of a lengthy report on Real's misconduct in showing favoritism in a bankruptcy case and in making inaccurate and misleading statements to investigators from the circuit's Judicial Council probing his role in the case.
Numerous other misconduct orders - more than three dozen since January - have also been placed on the circuit's Web site. Most do not name the accused judges, and most find no wrongdoing.
In one case, Kozinski slapped down an unnamed lawyer who raised unsubstantiated claims against an unnamed district judge.
Despite the anonymity, it was evident that a message was intended.
"Complainant is an attorney, so he should know better than to file such an obviously frivolous and abusive complaint," Kozinski wrote in ordering the man to show cause why he should not be sanctioned $1,000, reprimanded publicly and required to obtain the court's permission to file any further complaints. In re Complaint of Judicial Misconduct, 07-89012 (May 14, 2008).
Arthur Hellman, a scholar at the University of Pittsburgh School of Law who closely follows 9th Circuit affairs, welcomed Kozinski's new openness in judicial discipline matters, even though accused judges go unnamed unless they are publicly disciplined.
"The most noteworthy change under Chief Judge Kozinski is the decision to post misconduct orders online," Hellman said last week. "Now people can see for themselves why the vast majority of complaints are dismissed at the first stage, and why those dismissals are affirmed if the complainant appeals.
"I suspect that some people - particularly lawyers - might actually think that many complaints get more attention and judicial time than they deserve. But it's important for the courts to show that they take these complaints seriously, and the posted orders show that at least in the 9th Circuit they do."
Kozinski said that his duties as chief judge significantly reduce the time he has to write opinions.
"There's a lot of detail to attend to, and that eats up huge chunks of time I'd rather be writing opinions," he e-mailed. "But somebody's got to do it, and so it's now my turn. I'm not complaining."
Even so, he found time to deal with two en banc threats to opinions he had originally authored on three-judge panels.
In both cases, circuit liberals mustered enough votes to force the court to review Kozinski's opinions, but not enough to reverse them.
One case involved tightening the statute of limitations for filing claims on the lack of disability accommodation under the Federal Housing Act, making it harder for plaintiffs to sue. Garcia v. Brockway, 2008 U.S. App.Lexis 10258. (May 13, 2008). The en banc court voted 8-3 not only to affirm Kozinski's panel opinion, but also to adopt it as the en banc decision.
The other case was the high-profile Roommates.com matter, in which Kozinski held that the online roommate matching Web site can be liable for housing discrimination. The en banc panel, again voting 8-3, affirmed his panel opinion. Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (April 3, 2008).
Those outcomes are unusual, Hellman said, both because of the results and because it was Kozinski's original decisions that were challenged.
"My research shows that most of the time the en banc court overturns the panel result," Hellman said. "What makes this particularly intriguing is that both panel decisions were written by Judge Kozinski, who then authored the en banc opinions. In fact, in one of the cases, the en banc court simply adopted the panel opinion. That's extremely rare."
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