Complaints about the conduct of federal judges are not uncommon, but few lead to disciplinary action and public reprimand is rare, legal experts say.

Even rarer are cases in which federal judges are removed from office by Congress through impeachment.

Montana's Chief U.S. District Judge Richard Cebull is facing possible disciplinary action by the 9th U.S. Circuit Court of Appeals for a racist and sexist email about President Obama that he admitted forwarding from his office computer to several friends last month.

Cebull has publicly apologized and has asked 9th Circuit Chief Judge Alex Kozinski for a review of his actions.

At least two organizations, the Montana Human Rights Network and Common Cause, a nonpartisan government watchdog group, have filed formal complaints against Cebull, saying his conduct has violated codes of conduct. They called for Cebull to resign.

Stephen Gillers, a professor of legal ethics at the New York University School of Law, said this week that Cebull's conduct appears to violate Canon 2 of the Code of Conduct, which says a judge should respect and comply with the law at all times "in a manner that promotes confidence in the integrity and impartiality of the judiciary."

Gillers said Cebull is subject to discipline by the 9th Circuit's judicial council, which is a group of appellate and trial judges with the authority to discipline judges.

Sanctions available include private or public censure or reprimand, Gillers said.

"Public discipline of federal judges is exceedingly rare," Gillers said. "This case deserves it." 

The council also could instruct Cebull not to hear new cases for a while, Gillers said, though he thought that option unlikely.

"It is not so much that he told friends a racist joke. It is also that he did it using a government computer and his judicial email," Gillers said. "Unlike a racist joke at a small dinner party, which would be troubling enough, that email is now a permanent record that can be copied and distributed indefinitely -- with the judge's name on it," he said.

Cebull's defense that he did not mean the joke as racist but sent it because he dislikes the president politically raised further questions about his judgment and impartiality, Gillers said.

Steven Lubet, a legal ethics professor at Northwestern University School of Law in Chicago, said most complainants are unhappy litigants who have had cases before a judge.

A 2006 report by Supreme Court Justice Stephen Breyer on the Judicial Conduct and Disability Act found that the majority of complaints are dismissed on first reading by the chief judge in the circuit in which a complaint is filed, Lubet said.

"I don't think things have changed," Lubet said. There probably wouldn't be more than two or three cases a year in which a judge faced remedial action, he said.

A recent high-profile case involved Kozinski, the 9th Circuit's chief judge, who was admonished in 2009 by a judicial council for actions they deemed as poor judgment for having sexually explicit material on a personal website.

Judges are disciplined and sometimes it's severe, Lubet said, "but it happens very seldom."

"It was a certainty that somebody was going to make a complaint about Judge Cebull. I think making it himself was intended as a demonstration of contrition. It will probably help him," Lubet said.

Lubet predicted that Cebull will be reprimanded at some level but would not resign.

"I don't think a federal judge would resign over this," he said.

According to the 2010 Annual Report by the Administrative Office of the United States Courts, a total of 1,448 complaints were filed that year against judges, which was a decrease of 7 percent from the previous year. Of the total, 812 complaints were against district judges.

Almost all of the complaints were terminated by either the chief judge or the judicial council. Chief judges dismissed 1,277 complaints, mostly because the complaint was related to the merits of the decision in a case or to a procedural ruling, the report said.

The report also showed no remedial action was taken against any judge during the 12-month period ending Sept. 30, 2010, for complaints filed after May 2008. Remedial action could have included censure or reprimand, suspension of assignments or other discipline.

The complaints covered a range of issues from misconduct, personal bias against the party or attorney, racial, religious or ethnic bias to wrong decisions and conflict of interest.

Only Congress, through impeachment by the House and a trial in the Senate, can remove a judge.

"That won't happen," Gillers said of Cebull. "In the rare cases where judges have been removed in the last century, it is because of criminal conduct," he said.

Congress has impeached and removed only seven judges in the history of the federal judiciary.

The first was in 1804 when John Pickering, a district judge for New Hampshire, was convicted and removed on charges of mental instability and being drunk on the bench, according to information from the Federal Judicial Center.

The most recent case was the 2010 impeachment of G. Thomas Porteous Jr., who was the federal judge for the Eastern District of Louisiana. The House impeached him on charges of accepting bribes and making false statements under penalty of perjury, and the Senate convicted and removed him from office.

In another recent case, the House in 2009 impeached Samuel B. Kent, who was federal judge in the Southern District of Texas, on sexual assault charges, obstruction and making false statements. Kent resigned from office, pleaded guilty in federal court to obstructing justice and was sentenced to 33 months in prison.

 

 

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