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".

Alex Kozinski litigation saga: the history of recusals. Recusal # 3, Judge Robert H. Whaley

Judge # 2 in Alex Kozinski's litigation saga, Beverly Reid O'Connell, recused on December 19, 2013 after serving just 45 days on the case.

That was right before the Christmas season.

For 20 days the case remained without a judge.

On January 8, 2014, an Order was filed designating Judge # 3, Judge Robert H. Whaley to the case, Docket No. 103.

Assignment of another judge in the same court, within disciplinary and appellate authority of one of the parties to litigation, did not remove disqualification of the court as a whole - or of the newly assigned judge.

Moreover, the way the assignment was done raised further questions about appearance of impropriety - or, let's say it out in the open, blatant self-serving behavior and misconduct of the then Chief Judge of the 9th Circuit Alex Kozinski, and the judge to whom he delegated his assignment authority, Sidney Thomas, who has become  "coincidentally", Alex Kozinski's successor as of December 1, 2014 as the Chief Judge of the U.S. Court of Appeals for the 9th Circuit.

Here is the order of "reassignment".

Robert H. Whaley, by the time of his assignment to the case, was a senior-status judge from the U.S. District Court for the Eastern District of Washington, and the former Chief Judge of that court, a court WITHIN THE SAME 9TH CIRCUIT!!!

Obviously, Alex Kozinski had the case in his death grip and would not let it leave the Circuit where he was the Chief Judge, and his subordinate, judge Sidney Thomas, kept the case in the 9th Circuit - and "earned" the seat of Alex Kozinski's successor by December 1, 2014, less than a year later.

Appointment of a judge from outside of the 9th Circuit did not remove disqualification from the court, because it remained the same court, subject to appellate jurisdiction of one of the parties.

Moreover, any judge assigned to the case within the 2nd Circuit was subject to disciplinary jurisdiction of the 2nd Circuit, and that was giving disciplinary authority to a party, Objector Kozinski, over Judge Whaley, another point of disqualification.

Moreover, the assignment was signed by a "Circuit Judge Sidney Thomas".

Such appointments were within the authority only and exclusively of - guess - Alex Kozinski.

Since Alex Kozinski was disqualified to assign judges to his own case, he was also disqualified from delegating his authority to assign judge to his own case.

Thus, Judge Sidney Thomas had no authority to assign Judge Whaley to the case, and Judge Whaley's assignment was legally void.

Judge Whaley showed the most integrity of all judges in Alex Kozinski's litigation.

He was appointed on January 8, 2014 (Docket # 103).



On January 15, 2014, within 7 days of the order of appointment,  he issued an order that he is conducting an additional inquiry if he can allow himself to serve (Docket # 104).

Judge Whaley, the only judge on Alex Kozinski's case so far who can be called Honorable, honorably recused within one more week, on January 24, 2014, without making any decisions relevant to the case, other than his own order of self-inquiry and recusal.

Moreover, The Honorable Robert H. Whaley went further in fulfilling his ethical obligations than any other judge on this case, before him, or after him, on the district court or appellate level (yes, there was and still is pending an appeal in 2015 - by an objector other than Objector Kozinski, to Objector Kozinski's court, and even then the 9th Circuit court did not recuse).

Judge Whaley 

1) made an order of self-inquiry;
2) sent a letter to the Committee on Code of Judicial Conduct;
3) received the Committee's answer;
4) recused based on the recommendation of the Committee, and
5) published the Committee's letter recommending recusal in an open-court filing, in open access to the public - while such recommendations usually remain confidential and hidden from the public.

Here is Judge Whaley's "Order of Self-Inquiry".

Here is Judge Whaley's Order of Recusal.

And here is the letter from the Committee on the Judicial Code of Conduct recommending the recusal which Judge Whaley attached as his reasons for recusal to the Order of Recusal.

That was SOME public service on behalf of Judge Whaley - and a real act of integrity.

After recusal of Judge # 3, the fourth - and last so far, judge was assigned to Alex Kozinski's case.

As you may read in the Committee's letter, the Committee advises the judge to:

(1) recuse;
(2) recommend designation in his place of a judge from another circuit.

Of course, that was a half-measure, because an out-of-circuit judge assigned to within-the-circuit case will be as disqualified as all other judges, because the judge, under such circumstances, becomes subject to disciplinary and appellate authority of Objector Kozinski.

Yet, in the letter there was a hint as thick as a log that the case should be, in fact, reviewed outside of the 9th Circuit because any district judge within the circuit (and any judge assigned even from outside of the circuit to a case within the circuit becomes an acting district judge within that circuit, which is the same) will be in the same position as Judge Whaley.

Judge Whaley did recuse.

He did not make any recommendations as to his successor, because, as a recusing judge, he could not ethically do that.

Yet, he did what he could ethically do - and which was a great act of public service.

He published the Committee's recommendations for recusal and reassignment of the case in open access to the public.

What Judge Whaley did is what I was taught in law school a judge with average integrity should do - recuse himself if there is even an APPEARANCE of impropriety.

All judges whom I asked to recuse (and I asked to recuse a lot of judges, each time where circumstances warranted and, in fact, mandated recusal).

In all cases, judges responded that they "searched their conscience" and "determined" that they can be impartial on the case.

Judge Whaley determined the same.

Yet, he went further and tried to put himself in the position of an objective reasonable observer and to ask himself - even if he finds he can be impartial, will an objective reasonable observer find an APPEARANCE of impropriety if he continues to preside?

In my legal career of 10 years as a legal assistant and 6.5 years as an attorney, and, upon inquiry with my husband who practiced law for 37 years, this is the FIRST and ONLY inquiry as to APPEARANCE OF IMPROPRIETY as to whether an admittedly impartial judge should recuse from the case.

I can only say "thank you" to Judge Whaley for this gift.  Not all is lost for the American judiciary if judges like Judge Whaley are or even have been on the bench.

As to the details of the assignment and actions of the judge once assigned - in the next blog post.

Stay tuned.

Alex Kozinski litigation saga: the history of recusals. Recusal # 2, Judge Beverly Reid O'Connell.

In the previous blog post, I described the commencement of a case in the U.S. District Court for the Central District of California, a court within the mandatory appellate jurisdiction of the the U.S. Court of Appeals for the 9th Circuit, where Judge Alex Kozinski, then Chief Judge of the U.S. Court of Appeals for the 9th Circuit, appeared as a party-objector, along with his wife, attorney Marcy J. Tiffany.

I also described the non-disclosure by Alex Kozinski of the "social relationship" and the ex parte communications with the first presiding judge Dean D. Pregerson at the time he filed his and his wife's objections in a case where Judge Dean D. Pregerson was presiding.

Now did Alex Kozinski - or his attorney wife Marcy Tiffany, for that matter - disclosed the fact and contents of the ex parte communications with Judge Dean D. Pregerson on the issue material to litigation.

Nor did Alex Kozinski - or his attorney wife Marcy Tiffany - or Judge Dean D. Pregerson - disclose at any time during litigation that Judge Dean D. Pregerson's father Harry Pregerson is Alex Kozinski's colleague on the 9th Circuit court for 27 years, and a subordinate for 5 years.  

So much for these ethical "forgetfulness" of the three attorneys, two of them federal judges who serve only "during good behavior".

Once again, at no time did Alex Kozinski make a motion to change venue and transfer litigation from the district court that was subordinate to Alex Kozinski's appellate court - and, apparently, nobody else did, most likely because attorneys and judges, being subject to disciplinary authority of Alex Kozinski in his official capacity, were afraid to upset him.

Which tells us a lot about attorneys' and judges' belief in the integrity of their colleagues.

Judge # 2, Beverly Reid O'Connell, was assigned to the case on November 5, 2013, 7 months after being appointed to that court. Apparently, the case was assigned from a social contact and son of a long-time colleague to a novice on the federal bench who was supposed to take the blame for any possible errors in litigation.

At the time of assignment, her court was hopelessly disqualified from presiding over the case, and picking any "replacement" judge from that same court and with appellate jurisdiction remaining in party objector Kozinski's court was putting a torn band-aid upon a whole in a sinking ship.

Judge O'Connell herself was within the disciplinary authority of Alex Kozinski, a completely disqualifying conflict of interest.

Yet, the novice Judge Beverly Reid O'Connell remained on the case from November 5, 2013 (docket of assignment order # 69) to December 19, 2013 (docket of assignment order # 102).

During her 1 1/2 month's assignment to the case 33 filings were made on the docket - that's a record in a civil case.

Alex Kozinski actively made new filings in the case during Judge O'Connell's assignment and argued his opposition to a motion in front of her.

On December 19, 2013 Judge O'Connell filed an "Order of Recusal".  Here it is.

Irreverent teenagers usually have one word adequately describing a reasonable person's reaction after reading this order.

Duh?

All of that is correct, Judge O'Connell, but didn't you know that BEFORE you were assigned to the case and AT THE TIME of your assignment?  What made it so long for you to step down?

That was not the last recusal in the case.  

Who was assigned next, how inappropriate was the process of assignment, how long the newly assigned Judge # 3 served and how he recused, read on in my next blog post.

Stay tuned.

Alex Kozinski litigation saga: the history of recusals. Recusal # 1, Judge Dean D. Pregerson

On 9/24/2012 a group of lawyers filed a class action on behalf of several named plaintiffs as class representatives in the U.S. District Court in the Central District of California.

The case was about defects of a all-electrical vehicle, NISSAN LEAF.

The case was assigned Case No. 2:12-cv-08238 and two judges (as is the rule in federal cases):

1. Judge Dean D. Pregerson, and
2. Magistrate Judge Patrick J. Walsh, who is the author of this wonderful document - an article asserting that the "reality" of civil federal litigation is not trials any more, but settlements and motion practice, and that lawyers had better learn that and conform with that "reality".  A scary assertion by a judge who is sworn to abide by the U.S. Constitution which, in its 7th Amendment, clearly provides for a right to a jury trial in federal breach of contract cases, same as many federal statute provide by their clear texts.

Let's note for now that Judge Dean D. Pregerson was appointed to the seat vacated by judge A. Wallace Tashima who was appointed to the U.S. Court of Appeals for the 9th Circuit.

Let's also note that Judge Dean D. Pregerson, of the U.S. District Court for the Central District of California, is the son of judge Harry Pregerson, a 92-year-old judge who still works as part of the U.S. Court of Appeals for the 9th Circuit.  Judge Harry Pregerson is the longest serving judge in the history of the 9th Circuit, having served on the bench of the 9th Circuit since November 2, 1979 (for 36 years this year).

Appointment of a son to a court from which appeals go to the father was completely inappropriate, even though the father was by that time relegated to the "Senior" status.  He still was a judge deciding appellate cases from his son's court, which created a huge appearance of imporpriety.

Yet, at the point of assignment Judge Dean D. Pregerson did not recuse himself, nor did he make any disclosures about his father as the judge of the court to which possible appeals will go.

Yet, on 10/15/2013 things became even more complicated when an objector "appeared" in the action, together with his wife.  I will explain in a separate blog why I put "appeared" in quotation marks and what was inappropriate in the way the objector "appeared" in the action.

The name of the objector was Alex Kozinski, the then Chief Judge of the U.S. Court of Appeals for the 9th Circuit, a judge who was working with Judge Pregerson's father as his colleague, by the filing time of the lawsuit, for 27 years, and as his superior - for 5 years.

As to Judge Dean D. Pregerson who presided over the case of Alex Kozinski as a party, Alex Kozinski as a Chief Judge of the U.S. Court of Appeals for the 9th Circuit had the following authority:

(1) appellate authority to reverse Judge Dean D. Pregerson's cases (not necessarily his own) and thus create a bad record of reversals for the judge;

(2) disciplinary authority.

Judge Kozinski, as the Chief Judge of the 9th Circuit and Judge Dean D. Pregerson's employer, could also create difficulties for further employment of Judge Dean D. Pregerson's super-elderly father, should Judge Dean D. Pregerson "err" against Judge Kozinski as a party objector.

In his "objections" filed on 10/15/2013 Alex Kozinski and his wife, attorney Marcy Tiffany, made the following frivolous and sanctionable statements:

Any other lawyer would have been sanctioned for such "arguments" because they were:

(1) uncivilized;

(2) contained accusations of bad faith without grounds for it against an attorney;

(3) were frivolous because they claimed the plaintiffs' counsel had to conduct discovery before considering a settlement, which is not the law.

Neither Alex Kozinski nor his wife Marcy Tiffany were sanctioned for the contents of their frivolous objections by Judge Dean D. Pregerson, son of Alex Kozinski's long time colleague (and subordinate at that time) Judge Harry Pregerson.

On 11/05/2013 Alex Kozinski and his wife Marcy Tiffany filed "Amendment to Objections".

That same day, Judge Dean D. Pregerson recused from the case, starting a long string of recusals in that case.

I must note that Alex Kozinski not only knew that he is proceeding as a party in the court that is subordinate to his court and to him personally as the Chief Judge of the federal appellate court in that jurisdiction, but meant to use his influence as the chief appellate judge for that court from the very beginning.

Even though Alex Kozinski did not put that into his "objections", later on, in a video interview published on YouTube on November 14, 2014, after three judges recused and the action was stayed for mediation, Alex Kozinski then admitted that even before he filed his objections, he wanted to file them because he did not want to allow certain issues to be handled in a certain way in his Circuit. 

Alex Kozinski specifically said in the video interview pertaining to his decision to file an objection - "Not in the 9th Circuit" (watch the video at the bottom of the article; if the video interview is promptly removed because of criticism in this blog, I have a copy).

Knowing his power, knowing that he has disciplinary authority over presiding judges - and attorneys - in a case where he appeared as a party, knowing that both judges and attorneys would be afraid to make a motion to transfer venue, it was the obligation of Alex Kozinski, ethically, to make such a motion for transfer because of appearance of impropriety.

Alex Kozinski did not make such a motion and the case proceeded in the Central California District Court.

What floored me were the actual reasons for Judge Dean D. Pregerson's recusal.

Here is the order of Judge Dean D. Pregerson's self-recusal dated November 5, 2013, more than a year after September 24, 2012 when Judge Pregerson was assigned to the case.

As reasons for his self-recusal, Judge Dean D. Pregerson wrote:

       "I have a social relationship with the Objectors. 

        Additionally, I have leased an electric vehicle from

        a different manufacturer and I have discussed

        with Objector Kozinski the attributes of objector's

        vehicle."

So, IN ADDITION to disqualifications because 

(1) Judge Dean D. Pregerson's father Judge Harry Pergerson is a judge on the appellate court where potential appeals from Judge Pergerson's decisions will go; and

(2) that "Objector Kozinski" is his father's administrative superior; and

(3) that "Objector Kozinski" is Judge Dean D. Pregerson's disciplinary authority;

Judge Dean D. Pregerson also:

(4) had a social relationship with both Alex Kozinski and his wife;

(5) leased a vehicle similar to the one that was subject of litigation, albeit from another manufacturer; and

(6) Judge Pregerson discussed with Alex Kozinski the "attributes of his vehicle" - the very vehicle defects of which are the subject of litigation.

Wow.

If a judge had a "social relationship" with the Chief Judge of the appellate court to which appeals from the judge's decisions routinely go, WTF (excuse my French) the judge is even DOING in that court, on any cases?

And, Judge Dean D. Pregerson only thought to disclose this "social relationship" with the Chief Judge of the appellate court only over a year into the litigation?

And the same about discussing with a potential class member attributes of a vehicle, thus obtaining extrajudicial knowledge that a judge may not obtain for any litigation?

And - the most interesting thing is that, when filing his and his wife's Objections (they were filed Pro Se, but in the same docket, Docket 50), Alex Kozinski KNEW that he was in a "social relationship" with the presiding judge, and KNEW that he "discussed the attributes" of his vehicle which is subject of litigation, with that presiding judge.

And said nothing - no disclosure to the opposing counsel at all.

Wow.  Wow.  Wow.  The arrogance of the judicial brethren surpasses any imagination.

Yet, there is more to come in the recusal saga within Alex Kozinski litigation saga.

Stay tuned.