Cebull set to retire May 3 as misconduct investigation concludes

2013-04-03T08:45:00Z 2013-05-13T14:21:04Z Cebull set to retire May 3 as misconduct investigation concludesBy CLAIR JOHNSON cjohnson@billingsgazette.com The Billings Gazette

Senior U.S. District Judge Richard Cebull, who has been under a misconduct investigation for forwarding a racist joke email last year and who went on senior status last month, will leave the federal bench on May 3, said Ninth Circuit Chief Judge Alex Kozinski on Tuesday.

The investigation has been completed and an order and memorandum on the matter will remain confidential during an appeal period, Kozinski said in a prepared statement.

Kozinski’s statement comes more than a year after an investigation began into Cebull’s actions.

Tyler Gilman, Montana’s clerk of District Court, said Wednesday that Cebull and Chief U.S. District Judge Dana Christensen of Missoula had no comment and referred to Kozinksi’s statement.

Cebull’s full retirement will leave the Montana district, which has only one full-time judge, Christensen, even more short-handed as the state awaits the nomination and confirmation of candidates to replace Cebull and Senior U.S. District Judge Sam Haddon in Great Falls, who went on senior status at the end of last year.

Last month, Montana’s senior U.S. senator, Democrat Max Baucus, announced that he would recommend state District Judge Susan Watters of Billings for Cebull’s job and Montana Supreme Court Justice Brian Morris to replace Haddon.

Cebull, 69, who has been in the federal judiciary for 15 years, admitted to forwarding by email a racist joke about President Barack Obama from his work computer to friends in February 2012. He publicly apologized and asked the appellate court to review whether his actions constituted misconduct under the Judicial Conduct and Disability Act.

In addition, the Helena-based Montana Human Rights Network filed a formal complaint against Cebull and called for his resignation. The incident drew national attention and calls by other groups, elected officials and the media for Cebull to step down.

A special committee of the 9th U.S. Circuit Court of Appeals, Kozinski said, conducted “a thorough and extensive investigation, interviewed numerous witnesses, considered voluminous documentation, including emails, and conducted an interview with Judge Cebull.”

The special committee’s report was submitted to the Judicial Council in December. On March 15, the council issued an order and memorandum, which remains confidential during the appeal period, Kozinski said.

The council “will have no further statement on this matter until Judge Cebull’s retirement is effective,” Kozinski said.

The Judicial Council is a committee whose mission is to protect fairness in the circuit’s courts and to resolve disputes, prevent discrimination and enhance public understanding and confidence in the judiciary. The 11-member panel is composed of Kozinski, as chair, along with circuit, district and senior district judges, including Circuit Judge Sidney R. Thomas of Billings.

David Madden, assistant circuit executive for the Ninth Circuit, said Wednesday that Cebull’s retirement letter is dated March 29. Cebull went to senior status on March 18.

The Judicial Council, Madden said, intends to make an announcement when Cebull’s retirement becomes effective. He said couldn’t answer whether the council’s order would be released to the public or whether documents in the case were distributed to complainants other than Cebull.

Cebull’s case is following the standard process for reviewing judicial misconduct complaints, which includes a 63-day appeal period that will end on May 17, Madden said. Any party in a case can appeal a decision, he said.

Kim Abbott, co-director of the Montana Human Rights Network, said her organization has not seen the results of the investigation but that a committee member had interviewed the network’s former executive director.

“We’re happy for the justice system in Montana and that Montana will have a new judge to appear before. We thought the action by Cebull sending that email called into question his ability to do his job impersonally,” Abbott said.

The rights organization filed a complaint because it believed Cebull’s actions “called into serious question whether or not people of color and women who appear before him would be treated fairly,” Abbott said.

Cebull’s retirement puts more urgency on quickly confirming new judges for Montana, which has three district judgeships, said Carl Tobias, a former University of Montana law professor now teaching at the University of Richmond’s School of Law in Virginia.

“The bigger point for the district is the loss of a hardworking judge,” Tobias said. As a senior judge, Cebull would have been handling “a pretty big case load,” he said. Montana has four senior judges, not including Cebull, who work a reduced case load.

“I’m just saying time really is of the essence now. Any fool can see this is critical,” he said.

There is a backlog of Senate confirmations for federal judiciary positions, with confirmations taking an average of seven months from nomination, Tobias said.

Some candidates have been waiting more than a year. The district judge position is a lifetime appointment and pays $174,000 a year.

Tobias suggested that the process could move quickly if Baucus prevails on Republican U.S. Sen. Chuck Grassley, a member of the Senate Judiciary Committee, to move Montana’s expected nominations through the committee and to the floor.

The sticking point, Tobias said, could be Kentucky U.S. Sen. Mitch McConnell, the Republican minority leader.

“I don’t know if McConnell is going to listen to Max. That’s just the way it is,” he said.

Montana also could bring in senior judges from other states to help in the short term, Tobias said. “That’s easily done, and it happens all the time,” he said.

Clerk of Court Gilman said Christensen’s plan at this point is to rely on the district’s judges.

“They will step up and they will get the work done,” he said.

While district judges usually remain on senior status until they die, full retirement of district judges is unusual but happens, Tobias said.

Senior judges receive full pay and benefits and are eligible for salary increases if authorized by Congress. Senior judges who retire from the bench receive full salary and benefits but are not eligible for a salary increase, Madden said.

Cebull began his judicial career first as a magistrate judge in Great Falls from 1998 to 2001, then as a district judge beginning in July 2001. He was nominated for the district judgeship in the Billings division by President George W. Bush. Cebull served as chief judge from 2008 until March, when he went on senior status.

Before becoming a judge, Cebull worked in private practice with a Billings firm, Brown, Gerbase, Fulton, Harman & Ross, from 1972 to 1997.

Born in Billings and raised in Roundup, Cebull received a bachelor’s degree from Montana State University in 1966 and a law degree from the University of Montana in 1969.

 

 

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