On the eve of a long-awaited congressional hearing into the possible impeachment of a Los Angeles judge, a commission headed by U.S. Supreme Court Justice Stephen Breyer said Tuesday that the federal appeals court in San Francisco had bungled an investigation of 82-year-old jurist Manuel L. Real.
As part of a 180-page report examining several aspects of the federal judicial discipline system, the commission said that the U.S. 9th Circuit's decision to dismiss a complaint filed over Real's intervention in a bankruptcy case and to declare that corrective action had been taken "appear[s] inconsistent" with the law on disciplining federal judges.
"The chief judge and judicial council actions are inconsistent with our standards in respect to the chief judge's fact finding and the council's finding of corrective action," the commission found.
In mid-July, Rep. F. James Sensenbrenner Jr. (R-Wis.), chairman of the House Judiciary Committee, said he was considering impeachment proceedings against Real because of "a breakdown in the judicial branch's enforcement of the judicial discipline statute Congress enacted in 1980."
Real, a U.S. district judge, is scheduled to testify Thursday before a judiciary subcommittee that, at Sensenbrenner's request, is exploring the impeachment question.
The Breyer Commission was created after then-Chief Justice William H. Rehnquist said in 2004 that there "has been some recent criticism from Congress about the way" that law was being implemented. Its critique comes against a groundswell of voices calling for the U.S. 9th Circuit Court of Appeals, a frequent target of conservatives, to be split into two judicial districts, thus diluting its considerable influence and power.
New York University law professor Stephen Gillers, an ethics specialist who has been following the Real case closely, said the commission gave 9th Circuit Chief Judge Mary M. Schroeder, who conducted the Real investigation, and the circuit's judicial council "an F."
"It was pretty clear to an outsider ... that the letter and the spirit of the judicial discipline machinery were violated. Justice Breyer's committee has now confirmed that," he said.
On the other hand, Gillers said he does not believe Real's conduct warrants impeachment. Nor, he said, does it bear any relationship to the issue of whether the 9th Circuit should be split. "They are apples and oranges. The only thing the issues have in common is" they are coming at the same time, he said.
The Breyer Commission's criticism of the 9th Circuit is the latest, and perhaps the most significant, in the long-running controversy involving a misconduct claim against Real, who has been a federal judge in Los Angeles for nearly 40 years.
Real seized control from another judge of a bankruptcy involving Deborah M. Canter, whose criminal probation he was overseeing. He then permitted Canter to live rent-free for three years in a Highland Avenue house, costing its owners $35,000 in rent and thousands more in legal costs, according to court documents.
Schroeder initially rejected a complaint about Real filed by Venice civil rights lawyer Stephen Yagman, who was not involved in the case but is the judge's longtime adversary. The 9th Circuit Judicial Council urged Schroeder to reexamine the matter and she again dismissed the case.
In October, the judicial council said it was satisfied with the "corrective action" against Real, which included a statement from his lawyer that the judge "does not believe that a similar situation will occur in the future."
Two of the 10 judges on the council issued strong dissents. Real "offered nothing at all to justify his actions -- not a case, not a statute, not a bankruptcy treatise, not a law review ... not even a [blog]," 9th Circuit Judge Alex Kozinski wrote.
The aggrieved creditors were "entitled to an apology from the judges of our circuit for the cost, grief and inconvenience they suffered in one of our courts because of [Real's] unprofessional behavior," Kozinski said. "I sincerely doubt that many of my colleagues would be persuaded that a criminal defendant has accepted responsibility for his misconduct based on a statement from his lawyer that the defendant does not believe such a situation will arise again in the future."
In April, a sharply divided national federal judicial discipline committee ruled 3 to 2 that it had no power to sanction Real because Schroeder, the 9th Circuit's chief judge, had failed to properly investigate the complaint. Ralph K. Winter, a federal appeals court judge from Connecticut, issued a blistering dissent, saying the panel's failure to act would tend to erode public confidence in the federal judiciary's ability to police itself.
Subsequently, Schroeder, in response to a renewed complaint from Yagman, launched an investigation and appointed a San Francisco attorney to lead it. The attorney held private hearings in the summer and more are scheduled in November.
In a related development, the Judicial Conference of the United States on Tuesday issued new ethics rules for federal judges. The group voted to require federal courts to use computer software to identify cases in which judges may have a financial conflict of interest that disqualifies them from hearing a court case. It also approved a policy requiring greater disclosure from providers of privately funded educational programs for judges and from the judges who attend the programs.