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A federal judicial discipline body has ruled in a misconduct case against a Los Angeles judge that a pattern of “arbitrarily and deliberately” disregarding legal standards may be misconduct – but only if it is clearly shown to be willful. In a significant pronouncement by the federal Committee on Judicial Conduct in Washington, D.C., the panel cracked open the door to misconduct complaints related to judicial rulings in limited cases when there is “clear and convincing evidence” a judge has show “disagreement with, or willful indifference to the law.” The decision, posted by the Administrative Office of the Courts Jan. 18, comes in the long-running discipline disputes involving U.S. District Judge Manuel Real of Los Angeles. It sends a 9th Circuit order of private reprimand back to the circuit to reconsider based on the new standard. Real declined to comment on the decision. But the opinion quotes Real’s statement to the 9th Circuit Judicial Council acknowledging his failure to state reasons for decisions was a pattern of misconduct. “I hereby commit to use my best efforts to adequately state reasons when required in the future,” he said. It is no coincidence that the ruling comes just as the Committee is about to submit 29 amended judicial misconduct rules for to the Judicial Conference of the U.S., the policymaking body of the federal courts, according to Arthur Hellman, professor at the University of Pittsburgh School of Law, who has written extensively about misconduct issues. The Conduct Committee disclosed that the 9th Circuit Judicial Council had ordered a private reprimand of Real back in March based on a complaint that Real had a pattern of failure to explain reasons for rulings and “demonstrating recalcitrance” in following court of appeal orders. The circuit told Real by November it found 72 cases, in addition to the four originally identified in the complaint, that showed he failed to state reasons for decisions. The national Committee, chaired by Judge Ralph K. Winter of the 2nd Circuit, found that failure to state reasons for a ruling, without more, is not legitimate grounds for misconduct claims. However, it noted that the characterization of a judge “disregarding prevailing legal standards” is “fraught with dangers to judicial independence.” To survive, a misconduct claim must “identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, the law.” The Committee also said judges that justifiably issue decisions that seem at odds with precedent at the borders of the law need “breathing room” and should not be subject to discipline. The new standard will give them that room, the panel said. “They are walking a very fine line,” said Hellman. “They are extremely leery of any attempt to use the judicial process to threaten the ability of judges to decide cases, even unpopular cases,” he said. “One thing they may be trying to convey is that occasional insubordination is not misconduct,” he said. In addition to the current complaint, Real defended himself in an April 2006 impeachment hearing over allegations he interfered in a bankruptcy case to help a woman whose parole he supervised. The complaint against him was twice tossed out by the former 9th Circuit chief judge, and ultimately the national Conduct Committee said it lacked authority to override the circuit’s decision. That case should now be completed with the current action of the Conduct Committee, according to Hellman. The original bankruptcy complaint was brought by Los Angeles lawyer Stephen Yagman, who has complained about Real in the past. Yagman was subsequently convicted of tax evasion and sent to prison. It is not known who filed the current complaint.

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