Cyrus Sanai, who tipped news organizations to controversial files on Judge Alex Kozinski’s “alex.kozinski.com,” has sent me the following statement. He was the subject of charges by Alex Kozinski’s wife, and while it’s clear to me that he is an extremely unpopular figure on the Internet, I think it’s fair that he be given a chance to respond and set out his views. I have some comments and links following the statement, including one that indicates that Sanai’s complaints against Judge Kozinski constitute part of a “litigation strategy” with respect to a Washington divorce case.
Click on “more” to read the statement.
I am the attorney who tipped the Los Angeles Times onto the pornography and mp3 distributing website of the Presiding Judge of the Ninth Circuit Court of Appeals, Alex Kozinski. The news stories have portrayed me as a Beverly Hills attorney with a “grudge”, a “stalker”, and various other names. However, my issue with Kozinski is a small part of a much larger struggle being waged against the federal court’s perpetration and protection of judicial corruption in the state and federal benches sitting in Washington State, Nevada, and Arizona.
The corruption I have personally witnessed occurred in Everett, a suburb of Seattle, Washington. After my mother, myself and my siblings obtained a protective order based on sworn allegations of spousal abuse which kicked my father out of the house, we sided with my mother in the divorce. While my mother employed a gentlemanly lawyer, my father had the smarts to hire a part-time judge (in Washington, unlike every other state, a lawyer can simultaneously be a judge and practice before the same court). After a trial before Washington state judge Joseph Thibodeau, he appointed Philip Maxeiner, who is both my father’s witness and accountant, as a judicial referee with the power to decide multiple key issues and carry out several critical matters that were the province of the state court.
Appointment of a litigant’s employee or servant as a judicial referee is, for due process purposes, no different than allowing that litigant to wield the gavel, a kind of judicial bribery by proxy. Though nominally against state law, the Washington courts refuse to address any due process arguments raised against its corruption. (Washington’s judges grub for campaign contributions in open judicial elections). The Washington courts are also notable for their history of disqualifying and then seeking to silence any Washington state attorney who blows the whistle on judicial corruption.
Judicial bribery is nothing new, and the venerable Civil Rights Act of 1871- the same civil rights statute used to combat unconstitutional state laws, police brutality, and discriminatory state conduct-has long allowed litigants a direct pathway to injunctions against judicial malfeasance. While case law doctrine called Younger abstention restricts federal courts from directly intervening in ongoing state proceedings, this is subject to the extraordinary circumstances exception when the state tribunal lacks or appears to lack impartiality. The Ninth Circuit Court of Appeals has nonetheless ensured that the Civil Rights Act is ineffective against the corrupt appointment of special purpose judicial officers, and similar forms of black-robed malfeasance. The reason? Federal judges have imported these corrupt practices into the federal bench.
Two years ago two reporters from the Los Angeles Times profiled Nevada state and federal judges regularly deciding cases involving friends and business partners. They also exposed judges appointing cronies as special judicial officers such as receivers, who wield much of the powers of a judge and must be compensated by the parties to the litigation.
The disparate responses of the state and federal judiciary to this expose were dramatic. The Nevada Supreme Court instituted several important reforms, and appointed a commission to study its judicial practices. Anyone still holding their breath in expectation of similar action from the Ninth Circuit’s Judicial Council, responsible for judicial ethics and discipline for federal judges in Nevada, California and seven other Western states, should probably think about exhaling. Despite the filing of a judicial discipline complaint against federal judge James Mahan, the Ninth Circuit issued a white-wash exoneration of him. This matches my personal experience: the Ninth Circuit Judicial Council and Court of Appeals have a consistent policy of not only ignoring challenges to the corrupt appointment of receivers and other sorts of special purpose judicial officers, but of directly punishing any private litigant who challenges such corruption in state or federal court.
The Ninth Circuit is not about to condemn state courts for lucrative wrongdoing in which its judges are embroiled; indeed, Judge Kozinski, has repeatedly advocated tossing out current judicial ethics law in favor of just “trust the judges”.
The Ninth Circuit has fended off challenges due process challenges to these practices in three ways. The first is allowing federal judges to bar litigants from employing state or federal actions to challenge judicial corruption, and making such orders non-appealable and unchallengeable. In my case, my mother, myself and my siblings were directly barred from “interfering” with Maxeiner by a federal Judge, Thomas Zilly, and the Ninth Circuit refused to allow any direct or indirect appeal from his ruling or subsequent imposition of hundreds of thousand of dollars of sanctions for challenging Maxeiner’s appointment. This policy of barring appeals from such rulings is illegal under Supreme Court precedent, but because the Ninth Circuit makes these ruling[s] through cryptic unpublished decisions and one-sentence dismissal orders, a clear challenge can never be framed for consideration by the United States Supreme Court.
The second means, closely related to the first, is the Ninth Circuit’s policy of making most of its rulings unpublished. Any invocation of the Civil Rights Act and exceptional circumstances is simply ignored by trial court judges and the Court of Appeal in postcard sized rulings. Again, this is what happened to me; the special circumstances exception was ignored in the first set of appeals I filed, and have likewise been ignored in ongoing appeals of a dismissed collateral attack on the efforts of the Washington State Supreme Court to disbar my brother, a full-time prosecutor in Oregon, due to his efforts to challenge the corrupt appointment of Maxeiner in various courts.
For those litigants and lawyers who do not quietly accept the secret ash-canning of their challenges to corrupt appointments for judicial receivers and referees, the Ninth Circuit reserves its special punishment: intimidation. In my case, this was carried out by Judge Kozinski. He published an article directly attacking me and discussing the merits of my case in the San Francisco Recorder in 2005, while the appeals where ongoing. He also put case-related materials on a web page devoted to my case within the domain “alex.kozinski.com,” and linked the page to the on-line version of the article. That a sitting federal appellate court judge would publicly violate the federal canons of judicial ethics demonstrates how fiercely the Ninth Circuit ensures that constitutionally indefensible corruption remains practically invulnerable. See Canon 3(A)(6) of the Code of Conduct for United States Judges (“a judge should avoid public comment on the merits of a pending or impending action.”) His wife is now carrying on this campaign; she not only talks about the case at issue, but dredges up unrelated litigation where a ju[dge] who criticized me was reversed and booted from the case by the California Court of Appeal’s Second District.
Fourteen months after I filed a judicial misconduct complaint against Kozinski—both public commentary on a pending case and inclusion of being directly against the judicial ethics rules—he supposedly issued a grudging apology to forestall an investigation (I’ve never received it). The December 2006 order resolving my complaint also found “no posting of complainant’s case-related information on any website maintained by the judge.”
When I received that decision, I was dumbstruck, as thirteen months previously I had walked a Ninth Circuit staff member investigating my complaint to finding the link. However, Judge Kozinski had temporarily taken down alex.kozinski.com, and Google and other search engines had purged most signs of its existence.
Three months or so after my complaint was terminated, the alex.kozinski.com site went up. Kozinski put the same article on the /articles/ directory, links to which could be found in, among other places, his Wikipedia entry. I filed a second complaint in November of last year, which states, inter alia, (a) here is the site that supposedly could not be found, and (b) if Judge Kozinski admits he should not have written the article, it is misconduct to further distribute it. It’s still pending before Judge Schroeder.
A month later, I enter[e]d alex.kozinski.com into Google to see what else he might be doing with the site, and found links on Russian free mp3 sites to illegal mp3 files of copyrighted songs. I also found the collection of juvenile humor, ribald jokes, bizarre pictures and rated X porn that got Kozinski into hot water.
The mp3 files that Kozinski put on his website for sharing were obvious judicial misconduct; the porn, somewhat debatable. But it is not my real issue with him. My problem him and his colleagues is that they not only ignore judicial misconduct and corruption within the federal courts, but they foster and protect its existence in the courts of Washington State and certain other states.
There are three institutions that could put a halt to this. One might think the US Supreme Court would be the obvious place to turn, but its policy is only to accept cases to state what the law is, and not address misapplications of the law by the Courts of Appeals, even where such misapplications are repeated over and over. Due, ironically enough, to criticism by Judge Kozinski of the Ninth Circuit’s mishandling of the investigation of the Ninth Circuit’s most notorious judge, Manuel Real, the Judicial Conference pushed through rules that give it the final review of all judicial misconduct decisions. However, the Conference has been highly deferential to the Ninth Circuit to date.
This leaves Congress to set the Ninth Circuit straight. The Ninth Circuit’s refusal to deal with corruption as practiced by federal judges like Mahan, its intimidation and punishment of litigants and lawyers who challenge such misconduct of state or federal judges, and its refusal to apply civil rights law or its own judicial conduct rules to corrupt appointments of judicial referees, receivers and the like, easily merit Congressional investigation and intervention. Representative Sensenbrenner has proposed creating an inspector general for the federal judiciary; transferring the Ninth Circuit judicial misconduct investigation power to an inspector general for a few years would give this idea a deserved trial run. Congress should clarify civil rights law to allow separate review of all judicial decisions where a judge or an appointee has a financial interest in a case. Congress should also require a federal court to vacate state court rulings and impose damages and attorneys fees on state court judges and their appointees who have a business, employment, or financial relationship with a litigant in a case before the judge or appointed judicial officer. More cries of “trust the judges” will rise from the judicial branch, but it is no less prone to corruption and misconduct than the other two branches, and deserves no immunity from the constitutional system of checks and balances that guard against misconduct and corruption.
A few notes.
I don’t believe that Judge Kozinski or his wife wish to comment on this matter further, but I have sent them the link to this post and asked them for comment, out of fairness.
I’ll note this: Sanai speaks of “[t]he mp3 files that Kozinski put on his website for sharing,” but I don’t believe that he has proven that Judge Kozinski put them on the server for that purpose.
I understand why Mr. Sanai says that “Judge Kozinski, has repeatedly advocated tossing out current judicial ethics law in favor of just ‘trust the judges’” — but I think that’s a rather uncharitable characterization of a more subtle and effective argument by Judge Kozinski, which you can read here. In that article, Judge Kozinski argues that the real test of judicial ethics lies not in the canons, but in what goes on in chambers when nobody is looking. It’s a well-argued piece and I commend it to you.
As to the “unrelated litigation where a ju[dge] who criticized me was reversed and booted from the case by the California Court of Appeal’s Second District” — here are two appellate decisions that Sanai sent me from that case: here and here.
Sanai says that Kozinski “supposedly issued a grudging apology to forestall an investigation.” You can read the order for yourself here, and see what it says about the nature of Judge Kozinski’s apology. I read the order as suggesting that there may have been an improper comment on a pending case, but it didn’t affect the case and therefore did not rise to the level of misconduct. Nevertheless, Kozinski perceived a possible appearance of impropriety and accordingly apologized. But read it yourself and make your own call.
Plaintiffs’ conduct in this litigation has been an indescribable abuse of the legal process, unlike anything this Judge has experienced in more than 17 years on the bench and 26 years in private practice: outrageous, disrespectful, and in bad faith.
And it goes on like that.
Mr. Sanai sent me the draft of a combined brief which he said responds to Zilly’s order. If you’re interested, you can read it here.
Finally, one of the more interesting links I have run across is a comment that Sanai left at Lawrence Lessig’s blog. You can read the entire comment here, but here is the passage I found interesting:
As for attorney ethics (very different from judicial ethics or normal human ethics), once Kozinski inserted himself into my litigation inappropriately, it’s my duty and right to undo the negative consequences and turn the situation to my litigation advantage. That’s what good lawyers do: take lemons handed out by judges and turn them into sweet lemonade.
I’ve achieved my first litigation objective, as Chief Justice of the United States Roberts has appointed an investigative committtee from the Third Circuit. I have two more to accomplish from this, though I’ll them under my hat for now. However, I will see that seeing Judge Kozinski humiliated, as he has been, was never my goal. I was a big fan of his before he decided to use me as a pinata.
I asked Mr. Sanai to elaborate on why he sees an investigation of Judge Kozinski as the first part of a series of litigation objectives. He told me this:
It is part of a litigation strategy. Revenge don’t pay the bills. I will say that the first element was accomplished by the appointment of an investigative committee from outside the Ninth Circuit. I don’t want to say any more than that as I might wa[i]ve work-product privilege.
In a subsequent e-mail he added:
There is no upside to attacking a judge through misconduct proceedings. You get nothing but vilification and efforts by the judge’s friends and relatives for payback. However, in my case I’m not doing it for upside, but to rectify the litigation disaster that occurred in Seattle. Since it was caused by efforts to protect lucrative judicial misconduct, I have to take that bull by the horns.
I thank Mr. Sanai for his responses.