Ninth Circuit Judge Alex Kozinski
The Ninth Circuit has initiated a formal inquiry into allegations that former Chief Judge Alex Kozinski sexually harassed former law clerks and externs.
“In the past, when incidents of alleged misconduct have been reported in an accredited media publication, we have identified a complaint and initiated an inquiry,” wrote Chief Judge Sidney Thomas in an order issued Thursday afternoon.
The order indicated that Thomas was initiating a complaint himself based on a Dec. 8 report from The Washington Post that reported that six former clerks or externs at the court accused Kozinski of asking them to view pornography or subjected them to inappropriate comments. More women have since come forward with similar allegations.
Thomas wrote that to “ensure confidence in the impartiality of any proceedings” he has asked for Chief Justice John Roberts to transfer the complaint to another circuit, which could appoint a special committee investigate the complaint and make recommendations for potential discipline.
Additionally, a clerk spokesman confirmed that “one or more” of Kozinski’s current clerks had resigned. Above the Law reported earlier Thursday that three Kozinski clerks had decided to leave in the wake of the scandal.
Kozinski could not immediately be reached for comment Thursday but after the clerks’ allegations become public last week he issued a statement saying in his 35 years as a judge he has treated all his employees “like family.”
“I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done,” he said.
Among the women named in the Post report was Heidi Bond, who clerked for Kozinski from 2006-2007 and went on the next year to clerk for Justices Sandra Day O’Connor and Anthony Kennedy at the U.S. Supreme Court.
Bond was one of two former clerks who said Kozinski called them into his chambers and asked them to view pornography on his computer. The second former clerk spoke on condition that her identity not be disclosed, according to the newspaper’s report. The other women described inappropriate comments by the judge both before and after Bond’s clerkship, up until 2012.
Under 2008 rules adopted by the Judicial Conference of the United States for investigating judicial misconduct and disability complaints, “When a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related complaint has been filed.”
The rules give the chief judge discretion, if he or she finds probable cause to believe misconduct has occurred, to seek an informal resolution. If that’s not feasible or fails, a special committee may be formed to investigate.
When final action has been taken on a complaint and it is no longer subject to review, all orders entered by the chief judge and judicial council, including any supporting memoranda and any dissenting opinions or separate statements by members of the judicial council, must be made public—with certain exceptions, according to the rules.
The sexual misconduct allegations are not the first time that Kozinski has been at the center of controversy involving his computer use and pornography. In 2000, the judge and his colleagues on the Ninth Circuit rebelled after discovering that the Judicial Conference of the United States was monitoring the computer use of its then 30,000 federal court employees. The monitoring revealed that a number of employees were using the computers to download pornography.
Kozinski and other judges wrote letters to the head of the Administrative Office of the U.S. Courts objecting to the monitoring. Kozinski wrote a legal memorandum suggesting that the practice violated privacy laws. He disabled the software. A complaint against him for disabling the system was later filed by the head of the administrative office and was dismissed.
In 2008, the Los Angeles Times reported that Kozinski was maintaining a publicly accessible website showing sexually explicit photos and videos. The judge told the newspaper that he did not realize the site was available to the public and he kept it as his private storage. While some of the material was inappropriate, he said, he thought other content was “funny.”
At Kozinski’s request, the Ninth Circuit began an inquiry into possible misconduct for maintenance of the public website. The formal investigation was referred to the Third Circuit’s judicial council, which ultimately “admonished” him for “conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.”
Cheryl Miller in Sacramento contributed to this report.
Read Chief Judge Thomas’s order on the Kozinski judicial misconduct complaint:
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