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The Judicial Council of the 9th U.S. Circuit Court of Appeals ruled this week that judges cannot commit judicial misconduct when dealing with routine personnel matters. Wednesday’s unusual opinion — the last time the council published something was 1996 — helps define the line between district court judges’ administrative and adjudicative duties. In re: Complaint of Judicial Misconduct, 04 C.D.O.S. 3831, involves a provisional employee of the U.S. Probation Department who was fired from her job. She appealed to the chief district judge — the opinion doesn’t say which district — who upheld the termination. Then the worker appealed to a review committee, which also upheld her firing. The worker responded by accusing the chief judge and the chair of the review committee of judicial misconduct, alleging abuse of authority, denial of due process and conflict of interest. That complaint went to 9th Circuit Chief Judge Mary Schroeder, who dismissed the judicial misconduct allegation. The Judicial Council then reviewed Schroeder’s decision and issued the opinion. “Similar to the judicial immunity context, we conclude that complainant cannot pursue her personnel matter through the judicial misconduct procedure because routine personnel decisions involving court employees are the kind of administrative function that does not directly implicate the ‘effective and expeditious administration of the business of the courts.’ As such, the conduct complained of was ‘not connected with the judicial office,’” wrote Senior Judge A. Wallace Tashima. University of Pittsburgh School of Law professor Arthur Hellman, who closely follows judicial misconduct and the Ninth Circuit, said he was surprised to see in the opinion that courts hadn’t dealt with the issue previously. “This was a question of first impression,” Hellman said. “You would have thought there would have been cases where employees of judges or of courts would have tried to use judicial misconduct.” Hellman said the council properly made a narrow reading of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, which describes how complaints are made against judges. Had the 9th Circuit Judicial Council gone the other way — “interpreting a statute that clearly was not written for this kind of situation” — it would have provided another level of review for court employee personnel conflicts, Hellman said. The Northern District U.S. Probation Office declined to comment. Representatives of the Federal Probation & Pretrial Officers Association — the employees’ union — could not be reached for comment. The Judicial Council consists of circuit judges Arthur Alarcon, Alex Kozinski, Andrew Kleinfeld, A. Wallace Tashima and William Fletcher and district judges Marilyn Hall Patel, John Coughenour, David Ezra, Jack Shanstrom and David Levi. Alarcon and Levi did not participate in the matter; Patel was recused and also didn’t participate.

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