Alex Kozinski, formerly of the United States Court of Appeals for the Ninth Circuit. Credit: Jason Doiy/ ALM

The Second Circuit Judicial Council on Monday said it will take no action on a sexual misconduct complaint against former federal appellate judge Alex Kozinski because his retirement deprived the panel of any authority to “do anything more.”

“Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the [Judicial Conduct and Disability] Act,” the council stated in an order published Monday.

Kozinski, a former chief judge of the U.S. Court of Appeals for the Ninth Circuit, was accused of sexual misconduct in December by six former clerks or staffers, including former clerk Heidi Bond. The Washington Post, which first revealed the misconduct allegations, reported that Kozinski showed them pornographic images multiple times in his court chambers.

The complaint filed against Kozinski and subsequently referred to the Second Judicial Council by Chief Justice John Roberts Jr. was based on The Washington Post allegations.

Kozinski announced his retirement, effective immediately on Dec. 18.

“We recognize that the complaint references grave allegations of inappropriate misconduct, which the federal judiciary cannot tolerate,” the Second Circuit council stated in its order Monday. “Indeed, the federal judiciary has taken steps to ensure that the workplace is free of misconduct.”

Those steps included the chief justice’s direction that a working group within the judiciary review safeguards in place to protect employees from inappropriate conduct in their workplaces. The Administrative Office of the U.S. Courts has formed that working group and its report is expected in May.

In explaining its closing of the complaint against Kozinski, the Second Circuit council stated that the judicial conduct act “is concerned with individuals who currently exercise the powers of the office of federal judge. Its emphasis is on correction of conditions that interfere with the effective and expeditious administration of the business of the courts.”

But given the seriousness of the conduct alleged, the council added, it was asking the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States to forward a copy of its order to “any relevant Congressional committees for their information, and that the Secretary of the Judicial Council forward a copy of this order to all other judicial councils.”

A lawyer for Kozinski, Susan Estrich of Quinn Emanuel Urquhart & Sullivan, was not immediately reached for comment Monday afternoon.

 

The Second Circuit judicial council order is posted in full below:

 

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