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9th Circuit's Kozinski Faces New Misconduct Complaint From Familiar Foe
Attorney who filed complaint was the one who exposed Kozinski for having sexually explicit images on his personal Web site
The National Law Journal
October 10, 2008
Chief Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals, faces a new misconduct complaint that accuses him of illegally disabling court software in 2001 that was intended to detect improper staff Internet downloads of movies and music.
The 80-page complaint, filed Sept. 27 by Beverly Hills, Calif., attorney Cyrus Sanai, who has filed complaints against Kozinski in the past, also names 10 other federal judges Sanai has had run-ins with in the past.
His complaint includes the first formal complaint against Kozinski for making sexually explicit images available on a public Web site, alex.kozinski.com (site now defunct).
At the time the Web site material was disclosed earlier this year Kozinski was in the midst of presiding over an obscenity trial in Los Angeles and had to declare a mistrial and step off the case as a result.
The 3rd Circuit was assigned later to independently investigate whether the personal Web site constituted judicial misconduct, but Sanai's complaint is the first formal misconduct claim brought in connection with Kozinski's Web site.
Kozinski's attorney Mark C. Holscher, of Kirkland & Ellis in Los Angeles said, "Sanai has falsely accused 11 esteemed federal judges of misconduct. His false rehash of what occurred in 2001 is directly refuted by the 9th Circuit approval of disabling [the monitoring software] and finding that no further review was needed."
Holscher pointed to a February 2008 letter from Judge Thomas F. Hogan, chair of the executive committee of the Judicial Conference of the U.S. regarding an issue seven years ago of detection of increased bandwidth use on judiciary computers and monitoring of that use.
"The matter was thoroughly reviewed and resolved completely at that time by the Executive Committee of the Judicial Conference of the U.S.," he wrote.
The open letter by Hogan, concludes, "The matter was properly concluded seven years ago, there was no finding of judicial misconduct, and the Executive Committee finds no reason to revisit those decisions today," it states. Hogan has been chair of the committee since 2005.
Holscher scoffed at Sanai's allegations against Kozinski and pointed to a July 2005 order by U.S. District Judge Thomas Zilly that sanctioned Sanai for what the order called "an indescribable abuse of the legal process" that the judge called "outrageous, disrespectful and in bad faith." Sanai v. Sanai, C02-2165Z.
It was Sanai who first discovered and exposed the sexually explicit images Kozinski maintained on his personal Web site, leading U.S. Supreme Court Chief Justice John Roberts to assign the 3rd Circuit to oversee an inquiry.
A potentially more serious problem for Kozinski is Sanai's resurrection of the 2001 internal bureaucratic fight over court monitoring of use of government computers to download movies and music.
Sanai's complaint includes among the 80 pages of documents, a scathing October 2007 letter from retired court administrator L. Ralph Mecham, who wrote to the head of the Judicial Conduct Committee for the Judicial Conference of the U.S., which sets policies for the federal judiciary.
Mecham, who managed the federal courts for 21 years, recounted the 2001 episode of Kozinski and former Circuit Executive Greg Walters disabling the monitoring software used for three circuits. His 16-page letter to committee chairman, Judge Ralph K. Winter, says Kozinski's action was considered by government lawyers "not only 'illegal' but constituted at least one felony" citing 18 U.S.C. 1361, destruction of government property.
Mecham wrote that although the 9th Circuit's then-Chief Judge Mary Schroeder knew of the issue, as did the circuit judicial council, no misconduct complaint was brought against Kozinski at the time.
"It is my strongly held view that this total absence of action is the worst example of failure by those responssible for disciplining judges that I have witnessed during my 21 years as AO director," Mecham's letter states.
Hogan's February 2008 open letter stating the matter had been reviewed and resolved in 2001 appears to be a response to Mecham's criticism.
Sanai also named Schroeder in his complaint. Schroeder was traveling and unavailable to comment, according to her staff.
In 2001, Kozinski complained publicly in an open letter to all federal judges, carried by the Wall Street Journal, that the policy of monitoring Internet traffic in the federal courts meant judges and staff had to waive "all privacy in communications" and called the policy "draconian" and without evidence of downloading abuse.
But Sanai also included a May 2002 letter from Judge Edwin L. Nelson, former chair of the national committee on information technology for the courts, on potentially improper downloading. Nelson reported to a House subcommittee that a one-month review of downloads in February 2001 from the 9th, 8th and 10th Circuits showed staff accessed 1,100 adult sites with 90,000 clicks to links.
Nelson said a list of some sites suggested staff may have been viewing files from child pornography sites, naming hotteensex.com, hotteen.com and hollywoodteens.com.
Nelson insisted his committee did not know the names of individuals involved and contrary to Kozinski's claim in the Journal, Nelson said, "There is not now; there has never been; and there are no plans ever to 'monitor' judiciary e-mail."
After the disabling incident, the 9th Circuit's control of the data gateway for three circuits was removed and transferred to Kansas City, Mo.
Arthur Hellman, law professor at the University of Pittsburgh who has studied judicial discipline, called the Mecham allegations "extremely serious."
"The most significant thing about [Sanai's complaint] is this is the first time a formal complaint has called attention to the 2001 episode, which got a lot of publicity at the time," Hellman said.
Sanai's clashes with Kozinski stem from his own legal dispute that began in Washington state court in his parent's divorce case. Sanai accused a state judge of improperly appointing his father's accountant as a judicial referee in the case. Sanai argues those sorts of cozy appointments are rife in the judiciary.
In 2005, Kozinski criticized the case publicly, claiming Sanai "hounded" the judge and linked to a document on alex.kozinski.com.
Sanai included the names of 10 other district court and 9th Circuit judges who have been assigned to his family's case at one time or another.
The 80-page complaint, filed Sept. 27 by Beverly Hills, Calif., attorney Cyrus Sanai, who has filed complaints against Kozinski in the past, also names 10 other federal judges Sanai has had run-ins with in the past.
His complaint includes the first formal complaint against Kozinski for making sexually explicit images available on a public Web site, alex.kozinski.com (site now defunct).
At the time the Web site material was disclosed earlier this year Kozinski was in the midst of presiding over an obscenity trial in Los Angeles and had to declare a mistrial and step off the case as a result.
The 3rd Circuit was assigned later to independently investigate whether the personal Web site constituted judicial misconduct, but Sanai's complaint is the first formal misconduct claim brought in connection with Kozinski's Web site.
Kozinski's attorney Mark C. Holscher, of Kirkland & Ellis in Los Angeles said, "Sanai has falsely accused 11 esteemed federal judges of misconduct. His false rehash of what occurred in 2001 is directly refuted by the 9th Circuit approval of disabling [the monitoring software] and finding that no further review was needed."
Holscher pointed to a February 2008 letter from Judge Thomas F. Hogan, chair of the executive committee of the Judicial Conference of the U.S. regarding an issue seven years ago of detection of increased bandwidth use on judiciary computers and monitoring of that use.
"The matter was thoroughly reviewed and resolved completely at that time by the Executive Committee of the Judicial Conference of the U.S.," he wrote.
The open letter by Hogan, concludes, "The matter was properly concluded seven years ago, there was no finding of judicial misconduct, and the Executive Committee finds no reason to revisit those decisions today," it states. Hogan has been chair of the committee since 2005.
Holscher scoffed at Sanai's allegations against Kozinski and pointed to a July 2005 order by U.S. District Judge Thomas Zilly that sanctioned Sanai for what the order called "an indescribable abuse of the legal process" that the judge called "outrageous, disrespectful and in bad faith." Sanai v. Sanai, C02-2165Z.
It was Sanai who first discovered and exposed the sexually explicit images Kozinski maintained on his personal Web site, leading U.S. Supreme Court Chief Justice John Roberts to assign the 3rd Circuit to oversee an inquiry.
A potentially more serious problem for Kozinski is Sanai's resurrection of the 2001 internal bureaucratic fight over court monitoring of use of government computers to download movies and music.
Sanai's complaint includes among the 80 pages of documents, a scathing October 2007 letter from retired court administrator L. Ralph Mecham, who wrote to the head of the Judicial Conduct Committee for the Judicial Conference of the U.S., which sets policies for the federal judiciary.
Mecham, who managed the federal courts for 21 years, recounted the 2001 episode of Kozinski and former Circuit Executive Greg Walters disabling the monitoring software used for three circuits. His 16-page letter to committee chairman, Judge Ralph K. Winter, says Kozinski's action was considered by government lawyers "not only 'illegal' but constituted at least one felony" citing 18 U.S.C. 1361, destruction of government property.
Mecham wrote that although the 9th Circuit's then-Chief Judge Mary Schroeder knew of the issue, as did the circuit judicial council, no misconduct complaint was brought against Kozinski at the time.
"It is my strongly held view that this total absence of action is the worst example of failure by those responssible for disciplining judges that I have witnessed during my 21 years as AO director," Mecham's letter states.
Hogan's February 2008 open letter stating the matter had been reviewed and resolved in 2001 appears to be a response to Mecham's criticism.
Sanai also named Schroeder in his complaint. Schroeder was traveling and unavailable to comment, according to her staff.
In 2001, Kozinski complained publicly in an open letter to all federal judges, carried by the Wall Street Journal, that the policy of monitoring Internet traffic in the federal courts meant judges and staff had to waive "all privacy in communications" and called the policy "draconian" and without evidence of downloading abuse.
But Sanai also included a May 2002 letter from Judge Edwin L. Nelson, former chair of the national committee on information technology for the courts, on potentially improper downloading. Nelson reported to a House subcommittee that a one-month review of downloads in February 2001 from the 9th, 8th and 10th Circuits showed staff accessed 1,100 adult sites with 90,000 clicks to links.
Nelson said a list of some sites suggested staff may have been viewing files from child pornography sites, naming hotteensex.com, hotteen.com and hollywoodteens.com.
Nelson insisted his committee did not know the names of individuals involved and contrary to Kozinski's claim in the Journal, Nelson said, "There is not now; there has never been; and there are no plans ever to 'monitor' judiciary e-mail."
After the disabling incident, the 9th Circuit's control of the data gateway for three circuits was removed and transferred to Kansas City, Mo.
Arthur Hellman, law professor at the University of Pittsburgh who has studied judicial discipline, called the Mecham allegations "extremely serious."
"The most significant thing about [Sanai's complaint] is this is the first time a formal complaint has called attention to the 2001 episode, which got a lot of publicity at the time," Hellman said.
Sanai's clashes with Kozinski stem from his own legal dispute that began in Washington state court in his parent's divorce case. Sanai accused a state judge of improperly appointing his father's accountant as a judicial referee in the case. Sanai argues those sorts of cozy appointments are rife in the judiciary.
In 2005, Kozinski criticized the case publicly, claiming Sanai "hounded" the judge and linked to a document on alex.kozinski.com.
Sanai included the names of 10 other district court and 9th Circuit judges who have been assigned to his family's case at one time or another.
