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Judicial 'inappropriate conduct' is broader than isolated incidences, panel finds

A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual...

Posted: Jun 5, 2018 10:10 AM
Updated: Jun 5, 2018 10:10 AM

A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual harassment reported on Monday that "inappropriate conduct" in the nation's courthouses is "not limited to a few isolated instances."

Yet the eight-member group -- which met with scores of former and current employees of the judiciary and invited comment nationwide -- did not detail the magnitude of employee abuse in the US judiciary beyond saying it was "not pervasive." The group also did not note whether, during its five months of study, any action was taken against individual judges or other court employees.

The working group, which was established by Chief Justice John Roberts, made several recommendations in its report, including that:

  • judges should put a greater priority on improving workplace culture
  • the code of conduct should be revised to make clear what behavior is prohibited
  • the complaint system should be made more transparent and accessible.

RELATED: CNN Investigation: Sexual misconduct by judges kept under wraps

"The Code of Conduct should make clearer that judges cannot turn a blind eye to a colleague's mistreatment of employees," said the report filed to the Judicial Conference, which sets policy for the nation's federal courts.

The federal judiciary's #MeToo movement began after former law clerks and other staffers went public with sexual harassment claims against US Appeals Court Judge Alex Kozinski, who had served for more than 30 years in California.

Kozinski, who had been subject to misconduct allegations in 2009, retired in December after the new claims were made, beginning with a Washington Post story. A formal misconduct complaint was filed, but judicial officials declined to investigate because Kozinski retired.

A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that rarely do the judges overseeing the complaint system find that a claim -- by a lawyer, litigant or employee -- warrants an investigation. Even rarer is for any judge to be disciplined. In most cases when a judge faced serious scrutiny, the CNN report found, the judge retired and ended all disciplinary proceedings.

Some lawyers and law professors who have spoken out about flaws in the judiciary's misconduct-complaint system and tracked the working group's progress praised its initial recommendations Monday yet noted the lack of findings about the scope of the problem.

"We really don't know anything more about the nature and extent of the problem," said University of Pittsburgh law professor Arthur Hellman, who has long studied federal courts and misconduct issues. Hellman wondered whether other reports of egregious behavior by a judge had emerged. "It's very troubling that we don't have an answer to that question," he said.

But Hellman lauded the group for recommending that avenues for filing complaints be clarified.

Washington lawyer Jaime Santos, a former law clerk on the 9th US Circuit Court of Appeals, where Kozinski was based, said she was pleased that more training was recommended, as well as greater transparency, so that the system encourages victims to come forward.

The CNN review found that while 1,000 orders related to misconduct are posted annually on federal court websites, they contain scant details and are not categorized in a way that would separate frivolous cases from those with merit. Simply filing a legitimate grievance can be difficult, as forms and instructions are not easily retrieved and explained throughout the 13 regional circuits.

The report released Monday acknowledged that people with valid complaints sometimes hit roadblocks in the judicial bureaucracy.

"The Working Group received anonymous anecdotal reports about harassment or other inappropriate behavior that were not properly addressed," the report said. "It is therefore vital that judges and court executives ensure, through educational programs, performance reviews, and other mechanisms ... that judges, executives, supervisors, and managers at every level throughout the judiciary demonstrate the same strong commitment to workplace civility."

The report also noted that, as in the Kozinski situation, any investigation or discipline for a judge is generally halted if the judge retires. The report noted that law clerks "expressed concern about the seeming lack of punishment for a judge who, under allegations of serious misconduct, retires or resigns and thereby terminates the disciplinary proceeding."

The Washington Post story that first brought attention to Kozinski highlighted an account from a woman who said that the judge, based in Pasadena, California, had asked her to look at pornographic images on his office computer. Several other women subsequently came forward with allegations about misconduct.

Kozinski resigned shortly thereafter, saying he "may not have been mindful enough of the special challenges and pressures that women face in the workplace."

When reached for comment on Monday, Kozinski's lawyer, Susan Estrich, responded in an email that Kozinski had no further comment. She added that "he denied the substance of the charges" and had resigned because "he did not wish to burden the judiciary or his former clerks with [an] investigation."

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