Judges can be litigants, too, things happen.
And when judges are litigants, they are at least supposed to have same rules apply to them that they invented for others.
And to follow laws, including case law, that they invented for others.
Not so for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.
In 2013 Judge Kozinski was a class member of a class lawsuits pertaining to a technical problem with his car.
Judge Kozinski, as a federal judge, regularly affirms dismissals of federal civil rights lawsuits dismissed before any discovery, on insufficiency of pleadings.
The claimed "insufficiency of pleadings" as to certain issues (such as state of mind of civil rights/governmental defendants regarding conspiracy to violate people's constitutional rights) often results from lack of discovery. The discovery that federal district courts block.
And federal appellate courts, such as the 9th Circuit over which Judge Kozinski was the Chief Judge at the time of filing his brief, affirm those dismissals, clearly leaving people who were often victims of egregious constitutional violations, without any remedy, moreover, sanctioned and ordered to pay fines and exorbitant legal fees of governmental offenders.
Discovery does play an important role in litigation.
Yet, discovery, especially non-paper discovery, depositions, is also expensive.
And, there is a rule and policy in both state and federal courts, including courts where Judge Kozinski was a part of for decades, favoring settlements - at any stage of litigation, with or without discovery.
Judge Kozinski did know that when he filed with the U.S. District Court for the Central District of California - Western Division (Case No. 2:12-cv-8238-BRO-PJW), a frivolous brief (posted here) accusing the lawyers for the class action where he was a class member and had a vested financial interest in its outcome - of not conducting enough discovery before reaching a settlement.
Somehow, only a foreign news agency dared to describe Judge Kozinski's misconduct, which tells a lot about freedom of press and integrity of mainstream journalism in the U.S. in covering issues of public concern.
Judge Kozinski's arguments, or rather, personal escapades against the lawyers for the class lawsuits, in that brief are, on top of being frivolous, extremely uncivilized and would have garnered any other party sua sponte (on the court's own motion) sanctions under the "inherent power of the court" and under 28 U.S.C. 1927.
But that would be from an independent court.
The court where the case was heard, where Alex Kozinski was a litigant, was the court directly subordinate to the court where Alex Kozinski was a Chief Judge, including on issues of judicial discipline.
For that reason apparently, Alex Kozinski was never sanctioned.
Alex Kozinski stepped down as Chief Judge of the Ninth Circuit on December 5, 2014, well into his litigation in the U.S. District Court for the Central District of California - Western Region (litigation where Alex Kozinski was a party started in 2012).
Alex Kozinski stepped down as Chief Judge not because of appearance of impropriety due to his official duties as the Chief Judge of the 9th Circuit, and not because, due to his official duties, he had to delegate his authority as the Chief Judge to Circuit Judge Sidney Thomas to appoint a judge in Alex Kozinski's own case, but because his 7-year "Chief Judgeship" term ran out.
Judge Kozinski's replacement as new Chief Judge of the 9th Circuit, Judge Sidney Thomas, was "coincidentally" the very same judge to whom Alex Kozinski delegated the authority to assign a judge to his own case after several district judges recused and refused assignments to that case because of an obvious and glaring appearance of impropriety.
"Coincidentally", Judge Thomas's wife is, like Judge Kozinski's, an attorney, Martha Sheehy.
Same as Judge Kozinski's wife, Judge Thomas's wife has a different last name from her husband's, obscuring the connection to her judge-husband. I was unable as yet to verify through available public sources whether she is or has been practicing in her husband's courts.
After review of documents from the Alex Kozinski class litigation (to be published in separate blogs, stay tuned), the following sad rules appear - if a litigant is a judge in charge of the court where he is litigating as a party, the following new rules apply:
1/ the case remains in that subordinate court;
2/ the judge-party controls assignment of judges and, through his power to discipline those judges, controls the outcome of his case;
3/ normal rules of court as to e-filing, representation, service, motion practice, settlements and sanctions for misconduct against the judge-party do not apply.
I will provide documentary illustrations of the above mentioned new rules created just for Alex Kozinski and his wife in the blogs to follow.
I have just downloaded materials from Alex Kozinski's litigation and am preparing them for presentation in the next blogs.
Stay tuned.
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