Double standards of Judge Alex Kozinski: federal courts do not have equity jurisdiction - in his own case, not others

Here is the Key Note by Judge Alex Kozinski in his official capacity as the Chief Judge of the U.S. Court of Appeals for the 9th Circuit at a conference "coincidentally" called by NYU and led by NYU Professor Arthur Miller (a self-admitted Kozinski's longtime buddy since before Kozinski became a judge) on the topic of "consumer issues in class actions" at the time when Alex Kozinski's own class action lawsuit was pending in a court subordinate to Alex Kozinski as a federal appellate judge.

In that "Key Note" Alex Kozinski made several statements that makes me wonder how he kept on the bench that far with such knowledge (or rather, lack thereof) of the law - but, of course, there are law clerks who might do some research and writing for Judge Kozinski in between catering at his monthly party nights with booze at the courthouse for legal elite, more about it in a separate blog post.

Here is the portion of the interview that drew my attention the most, it starts at around 29 minutes into the video:

Speaker	Statement
Professor Miller	Another subject – the cy pres notion.
Alex Kozinski	Ah, yes…
Professor Miller	You are one of five or six … colleagues that dissented from an … en banc, if I remember correctly, on a cy pres.  What does that reflect in your thinking about class actions?
Alex Kozinski	Well… Doubt of that particular mechanism.  I am not sure that it's authorized.  I am not sure that that's a good idea.  And it creates a huge moral hazard.   I … you know … All I meant by joining that particular dissental /sic/ dissent is that I thought that that issue should be consider by en banc court.   I often vote for en bancs and sometimes … quite active in joining en bancs … and when I actually hear the case en banc I come out the same way  So… I don't think I have a… But it struck me from what I could tell that this was something that … could really be dangerous.
Professor Miller	Did you think in those terms globally about cy pres or in a contextual situation?
Alex Kozinski	I was only commenting about the class action context, I guess I don't know enough about what the global picture looks like.
Professor Miller	But, even if you think about it in a total class action prospective…
Alex Kozinski	Yeah…
Professor Miller	First, you said, you wondered where the authority to cy pres would come from?
Alex Kozinski	Right.
Professor Miller	Although you said five or ten minutes ago, you like power.  Cy pres is power.
Alex Kozinski	Well… (talking simultaneously with Prof. Miller) It gives power to the plaintiffs' lawyer over this formation.  If they made federal judges the trustees, I might feel in a different way.
Professor Miller	Look, a judge who awards cy pres into the community comes as a … big man in the community.
Alex Kozinski	Yeah, that's what worried me.  That's what worried me, really.  It is easy for using other people's money to … aggrandize yourself.  I don't know, it's not in particularly about the judge, it is about the plaintiffs' lawyers, the whole…. You are using its tempting to use money to… further yourself or advance other causes.
Professor Miller	Well, it's an issue that has become more and more visible in the recent years around the country.  Judges are now shying away from it … in a way they didn't 10 years ago.   They are in a sense using methods that overcompensate class members by taking all of the undistributed funds and pushing it back out to those who put their snouts into the groove the first time.
Alex Kozinski	I feel better by giving it just to the court, to the taxpayers.  I mean, the consumers might not get anything of value, why not take it to the taxpayers?
Professor Miller	You mean, the Treasury?
Alex Kozinski	The Treasury.
Professor Miller	You trust your elected representatives to use the Treasury wisely.
Alex Kozinski	No, but they only use it unwisely regardless.  I am only trying to make up some of the deficit.  But it is these entities you set up with the… cy pres entities that concern me.  And I am not sure.  Are you authorized by the federal rules?
Professor Miller	Not by the federal rules.  No.  You might think of it as an inherent sort of descendant of an equity power, since the class actions are equitable.
Alex Kozinski	… where?  Are they equitable?
Professor Miller	What do you know…  It's the Old Chancellor's foot – "equity should do that which …
Alex Kozinski	A bill of peace? (not sure -TN)
Professor Miller	It's like the oldies and goodies…
Alex Kozinski	Aren't those lawsuits to compensate and to vindicate private rights?  Where do you get authority to create this entity that will do this other stuff?
Professor Miller	Even if hypothetically they will give money to their law schools?  Just to take a neutral case…  Suppose a Cy Pres UCLA, or… Or, now that your son's at Yale, to Yale?
Alex Kozinski	Well, that's a little bit different…  Or NYU?
Professor Miller	Or… well…
Alex Kozinski	That's the problem, you know.  We can all agree on what… I mean… I am sorry… We can all come up with a lot of entities who would be doing a good work.  But what does it have to do with the lawsuit?  What does it have to do with what is essentially … the fact that it's a class action doesn't change the reality that this is still a dispute amongst private individuals over … some wrong that's been committed.   And if the lawsuit does not result in vindicating that wrong, how is it authorized? How is it within the Article III power for courts to … of federal courts?  Well, clearly it is one of those things that you might have a wrong, no remedy, you have to dismiss because we are not authorized to… It's sort of like almost an embodiment of an advisory opinion.
Professor Miller	I don't feel a power grab there.
Alex Kozinski	That's why I say "give it to taxpayers".  That will solve other problems.  But… why don't you hear a power grab?
Professor Miller	About the power?
Alex Kozinski	Yeah
Professor Miller	I think you do.  I think you know… in my personal experience, just in compensation /sic/ with district judges, is a real sense of concern about their authority for cy pres.
Alex Kozinski	Yeah, yeah… No, no, I am not pointing a finger at judges… It's the mechanism… If we say it's authorized, where does the power come from?
Professor Miller	I do not think you can find it in "black letter" (the written law – TN).  Obviously, it's not in the Article III, it's not in any statute I know anything about.  It's not in the Federal Rules of Civil Procedure, nor is there such a rule in the Rules Enabling Act.
Alex Kozinski	That's what I was going to ask.  Do you think if … the laws come up with cy pres …
Professor Miller	You are driving me nuts.  Those are questions I ask my class.  No, I think, I don't know what Lee things about it, but I think there is a real Rules Enabling Act issue with regard to a federal rule that authorizes cy pres.  On the other hand, whether it is an inherent aspect of an equity judge, of a federal equity judge, that's a different question.  I have no answer to the question as to whether equity principles would extend that far.  Certainly, cy pres exists as a trust doctrine, but whether it applies in a context of what a federal judge can do in a
Alex Kozinski	Casts your mind back to the time of Thomas Moore, right? When he was Chancellor…
Professor Miller	I was there  (laugh in the audience).
Alex Kozinski	We all saw that movie.
Professor Miller	(pointing his finger at Alex Kozinski) He is a real movie buff.
Alex Kozinski	Would a Chancellor… I mean, that's … but, would a Chancellor of those days have thought … there's one thing to say, to shape rules, to take hard edges of the common law, that are based on writs and all these forms of action … were very constrictive and… to actually say "I am going to do justice between the parties by having the defendant pay … not defendant, no… but, construct a school, pay the money instead of giving it to the plaintiff, you can build a monastery.  I can't imagine …
Professor Miller	Not in a two-party situation, and not that dramatically.  But a judge sits there and says :"I've got 20 million dollars left over from distribution. They've done the best job in distribution. What are my choices?
Alex Kozinski	Nice dinner … nice dinner ….
Professor Miller	I know one judge who endowed professorships at a medical school and he gets the greatest healthcare in his community imaginable.  I don't… I don't vote for that, but here's the judge – I have 20 million dollars.  I can return it to the government.  I can put it in the Treasury.  I can overcompensate those who already claimed, because we know they are interested in my …  Or, I can tell the 20 million dollars and branch it to pharmaceutical research because it was a drug case.
Alex Kozinski	It gives me the hibigibis.
Professor Miller	Another technical term….  Ok, I think it's one hell of a difficult problem.
Alex Kozinski	I just don't think judges should be…  I mean, the way you phrase it is that you have that case, and that 20 million dollars left on the table and what to do with it … ok… but I don’t want the next time for the judge to get a case and say "well, you know, can I just do these things – I have 20 more million dollars left on the table at that point I'll get not only good healthcare, but also good motor care for my car by making an endowed professorship at a mechanical school.
Professor Miller	That is the moral risk you referred to.  And the answer to that…
Alex Kozinski	Or, … whatever the judge thinks is a good cause, and then the judge thinks well, I can do things, too, to that money on the table.  I just don't think judges should be having that kind of incentive … We all, and I trust judges far more than the rules would permit… You know, this idea that if the judges own like … 10 shares of stock, they must disqualify themselves (taking back his apologies after he was caught presiding over a case where he owned stock in 1999 – TN).  I just think it's stupid.  If we were to make money with good judging, we (a jesture) could do something else…  You know, all of that stuff is… I really trust judges, not just with my car, but I dealt with them… for years… ah… but, it is not good to create incentive that systematically create … distractions … that cloud that the judge is thinking…

Arthur Miller asks Judge Kozinski about his "en banc" dissent on the cy pres issue pertaining to a class action appeal.

Here is the dissent Arthur Miller was asking about.

It appears from the above dissent and from the fact that Alex Kozinski was even on that appellate panel, that Judge Kozinski was trying to set up mandatory precedent for the lower court in a class action while an action where he was a class member was pending, thus not just influencing, but controlling the court.

Alex Kozinski cannot even pretend to not know that his class action was filed on September 24, 2012, because he socialized with the first presiding judge, the presiding judge's father was a judge on Alex Kozinski's court and Alex Kozinski's colleague of 27 years, and because Alex Kozinski specifically discussed his car (and car defects were subject of litigation) with the presiding judge.

What Arthur Miller did not ask his buddy about was how come that Alex Kozinski participated in an appellate panel on the issue of a class action settlement in a diversity case at the time when  his own class action case in a diversity case was litigated in the court below (action where Kozinski was a class member was filed on September 24, 2012, dissent is dated February 26, 2013), and wasn't it an appearance of impropriety to be part of that panel?

Of course, Judge Kozinski's "interviewer", professor Arthur Miller, was Judge Kozinski's self-admitted buddy since the times before Judge Kozinski first became a judge in the Court of Claims.

Professor Miller is also the leading authority in Civil Procedure in the United States.  

Professor Miller did not contradict his buddy's interesting statement one bit.

Yet, what Kozinski adamantly blurted out in front of a conference-hall-full of legal scholars and law students, was starkly incompetent on many levels:

1) It is for the U.S. Congress to decide, pursuant to Article I of the U.S. Constitution, which jurisdiction to give federal courts, and the U.S. Congress did give equitable (injunctive) jurisdiction to federal courts by clear texts of many statutes; it is scary that a judge of as many years on the bench as Kozinski does not know such elementary things;

2) Judge Kozinski FOR YEAR has been tossing for years appeals of civil rights plaintiffs/appellants based on EQUITABLE doctrines (invented by courts) of 

• deference;
• restraint;
• abstention, see also here;
• comity (see page 2 in the interlinked a Texas state court decision mentioning that comity is an equitable doctrine, see also that federal equitable abstention doctrines are based on equitable comity concerns);
• immunity;
• discretion, see also here;
• tolling;
• estoppel;
• collateral estoppel;
• res judicata, or judicial claim preclusion (among others)

So, Judge Kozinski used equitable jurisdiction and all of the above doctrines extensively in his court to block access to courts of, probably, thousands upon thousands of people, including indigent people who were badly wronged by government officials.

Yet, when it came to his own case, he suddenly remembered that federal court somehow does not have equitable jurisdiction for cy pres in DIVERSITY cases, where, by the doctrine that every law student learns in law school Civil Procedure class, the Erie doctrine, federal courts sitting in diversity apply substantive STATE law.

Here is the top of multipage docket sheet of the class lawsuit where Alex Kozinski is a party-objector, along with his wife Marcy Tiffany.  On the right it clearly says "Jurisdiction: Diversity".  

Alex Kozinski was not "careful" again to know that? Same as in 1999 he was "not careful enough" not to commit judicial misconduct (by the way, Alex Kozinski took  his apology of 1999 back by stating to Professor Miller in 2014, see the partial transcript of the interview, that the rules that he violated were "stupid")?  Same as in 2008 he was not careful enough by presiding over a case where he had a conflict of interest and a problem with impartiality until he was caught and outed (when he gained lenient treatment of the disciplinary authorities by an apology, but then lashed back at the attorney who outed him and had him sanctioned)?

And in November of 2014 Judge Kozinski was not careful enough to have the good judgment NOT to come to and not to speak at a conference which had all appearances of having been arranged specifically for him by his longtime influential buddy Professor Miller, to give Kozinski the floor to air his criticism of what is going on in his own court case, under the guise of making legitimate criticism of the system as a respectable Chief Judge of a federal appellate court?

In 2005, Alex Kozinski publicly blasted an attorney who in 2008 outed man-donkey and women-demeaning porn images on Alex Kozinski's computer, 3 years before the sex image scandal occurred (and who was sanctioned in 2010 by Kozinski's court), specifically because that attorney published criticism of Alex Kozinski's court's failure to adhere to precedent and inconsistent rulings in unpublished opinions - while not being fully impartial because of a pending litigation in that court.

Yet, apparently, Alex Kozinski does not apply such restrictions to himself.

In the same 2005, Alex Kozinski authored a whole article on appearances of judicial impropriety.  That did not prevent Alex Kozinski to litigate a case in courts and in front of four judges, see my blogs about recusals of judges # 1, # 2 and # 3 and circumstances of the recusals, who were subordinate to his appellate and disciplinary authority, and continue to do that despite recommendations of the Committees on Codes of Conduct.  Now Alex Kozinski's court is reviewing an appeal from a case where Kozinski is a party.  No appearance of impropriety there.

Nor did it prevent Alex Kozinski to use court personnel to prepare and host private parties for legal elite of 200 people with food and alcohol in the secure federal courthouse, on a monthly basis, for years.  I will have to run a separate blog to cover implications of those Kozinski Favorite Flicks that are accepted by the legal community and authorities as appropriate because of Judge Kozinski's high status that seems to insulate him of any discipline or accountability.

As to Kozinski's answers to the screen-played questions tossed at him by his buddy Arthur Miller in order to elicit responses of a disgruntled litigant portrayed as reputable legal criticism from a reputable high-ranking judge, Judge Kozinski seemed to have completely forgotten that Judge Kozinski's class lawsuit was litigated in a federal court on the territory of the state of California, so California substantive law applied under the Erie doctrine, and the State of California expressly applied the equitable doctrine of cy pres to class actions in its state courts.  

Not to mention that Judge Kozinski mentioned that, when he decided to file pleadings as a party objector in the court whose decisions were appealable to Kozinski's court, Kozinski meant to control the litigation as the appellate judge - "not in the 9th Circuit" he said in the video "Key Note".  

I have never heard such a blatant admission of abuse of power by a judge.

The much criticized attorney Cyrus Sanai's criticism of how the 9th Circuit decides cases (and a legitimate and legally correct criticism at that) was not proper because it was not impartial.  And that was just an article published in a newspaper in 2005.

What about a 50-minute speech in front of a conference of lawyers, law students and law professors video-recorded professionally (I am sure, not at Kozinski's own expense) and published on YouTube during the pendency of the judge's own court case on the same issue as the conference?  No impropriety and no impartiality there?

So, by making his statement about cy pres, Judge Kozinski indicated that:

1) he does not know - or does not care - that his case is a diversity, not a federal question case;
2) that Erie doctrine applies to his case;
3) that cy pres applies to his case;
4) that equitable jurisdiction is routinely used by his court and himself to toss cases of other people.

Does Judge Kozinski, by stating that federal courts do not have equity jurisdiction, want to toss all this comity-deference-abstention-discretion-estoppel doctrines applied in FEDERAL QUESTION cases where it REALLY is applied without authority and as uncosntitutional legislating from the bench, usurpation of exclusive Congressional power to legislate and enact or amend the Civil Rights Act?

I highly doubt that.

I think, that blurp just left Judge Kozinski's lips as a point of frustration because he did not want the particular equitable doctrine of cy pres be applicable to his own case and did not give a rat's behind as to what will happen to civil rights cases that he, I am sure, continued to toss after that statement invoking non-existing equitable jurisdiction in FEDERAL QUESTION cases where such doctrines are not part of the jurisdictional statute.

There are people in the United States of America who are equal a little bit more than others.  Even though the titles of nobility are prohibited by the U.S. Constitution.

I am not surprised that judiciary invents double-standards for itself as opposed to other people.

The sad part is how blatant Judge Kozinski is about wanting to establish those double standards for himself, and how accepting the legal community at large, including the so-called "legal ethicist" are of his shenanigans.

To think about it:  Professor Miller claimed, to back up his buddy Judge Kozinski's "concern" (obviously, pertaining to Judge Kozinski's own lawsuit, after Judge Kozinski did not have his way in a case where he filed dissent - while he wanted to set the mandatory law governing the district court in his own case while the case was pending) that district judges do not have authority over "leftover" money in "black letter", or the written law.

In fact, the "black letter" there would be the Erie doctrine that Professor Miller did not mention, but which is a precedent of the U.S. Supreme Court, Erie Railroad Co. v. Tompkins (1938) applied by courts throughout the country for 90 years now, and which was meant to discourage "forum-shopping" in various courts.

Under the Erie doctrine a federal court sitting in diversity is BOUND to use substantive law of the state it is sitting in.

Cy pres is the substantive law for class actions in the case where Alex Kozinski is a party objector is sitting.  The judge in that case is BOUND to use cy pres if there are leftover funds after distribution to claimants (and at the time of the interview settlement in Alex Kozinski's case was not complete yet, and the case was stayed for mediation).

So, the whole conversation between Alex Kozinski, a federal appellate judge, and Professor Miller, Alex Kozinski's buddy and a law professor was how to change STATE law of the State of California?

And that would be Judge Kozinski's next endeavor, to invite state judges to his movie nights and brainwash them there?

Kozinski's public chat at the conference with Arthur Miller, in my opinion, is as clear a case of judicial misconduct, as it can be.

Moreover, I would point out to the disciplinary authorities that Judge Kozinski first gives an apology after being caught in misconduct - to avoid discipline - and then, years down the road, takes it back and calls the rule that he was caught violating "stupid".  That does not inspire much confidence in the judge's integrity at all.  And does not inspire much trust in any of his apologies since that time.  

In fact, the taking back of the apology for violating a rule of disqualification 15 years after the apology was made and calling the rule the judge violated "stupid" shows that Judge Kozinski is not only lacking integrity and is ill-tempered, but also has a very long memory to remember his personal grudges.  Not good qualities for a judge at all.

Yet, the legal community, including the so-called "legal ethicists", appear to be swallowing any garbage that comes out of Judge Kozinski's mouth as celestial manna.

Yet, the public does not have to be that accepting.

And the public may require authorities to conduct now a REAL disciplinary investigation into 

• Judge Kozinski's attempts to influence the court in his own class action case,
• Judge Kozinski's non-disclosure of his social relationship and ex parte communications with the first judge on his case;
• Judge Kozinski's attempt to set the law in his own case by presiding in a similar appellate case at the time his own case was pending in the court below, 
• Judge Kozinski's insincere apologies for violating rules of disqualification while thinking that the rules are stupid, as well as 
• into propriety of Judge Kozinski's monthly "Favorite Flickers" for legal elite at the federal court house after hours, with food and booze, and with slave labor by court employees who, for the sake of job security, cannot say "no".