The Third Circuit Court of Appeals has issued its decision (.pdf) in the ethics complaint against Ninth Circuit Chief Judge Alex Kozinski.
The good news for Judge Kozinski is that the panel does not find any ethical violation in his handling of the Isaacs case. Nor does the panel specifically find any ethical violation in his handling of sexually explicit material on his server — although the judge does come in for some criticism for carelessness and embarrassing the judiciary.
The panel “admonishes” Kozinski for failing to take safeguards to prevent the sexually explicit material from being distributed publicly:
We join with the Special Committee in admonishing the Judge that his 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.
Don’t be misled: this “admonishment” is not a finding of judicial misconduct. If the panel had made a specific finding of judicial misconduct, you would have seen language like “reprimand” or “censure” in the opinion — options available under 28 U.S.C. §§ 354(a)–(b). That is not what the panel does. Rather, the panel has chosen to conclude the proceeding without a finding of misconduct:
We determine that the Judge’s acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding.
Somehow I don’t think Cyrus Sanai will be pleased. I’m sure we’ll hear from him in short order.
The panel says that “the Judge’s possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent.” This seems fair. Nobody ever said it was prudent. As the judges note: “Some of the content of the stuff subdirectory — the sexually explicit material — is undoubtedly offensive to many.” This is true, as the judge himself has acknowledged. However, the material was kept for its humor or novelty value — something media reports from the L.A. Times failed to make clear at the time. See my posts for some examples.
The panel also makes it clear that the media did not take care to portray the matter accurately:
Some media reports in June 2008 suggested that the Judge maintained, and intended to maintain, a public website, as that term is commonly understood — a presentation of offensive sexually explicit material open for public browsing. This investigation has established, however, that such a characterization is incorrect. As explained in further detail, the computer files described in media reports in June 2008 constituted a small fraction of a vast aggregation of various items that the Judge had received by e-mail over many years and had retained in a folder, or “subdirectory,” on a personal computer in his home, which had been connected to the Internet using web server software.
Through a combination of improper security configuration and carelessness on the part of the Judge, the aggregation of retained files became accessible to the public.
It has always been quite clear to anyone following this controversy that Chief Judge Kozinski never intended that the general public be able to rummage through the contents of his server. This was not clear in the headline to the original L.A. Times article, which was titled 9th Circuit’s chief judge posted sexually explicit matter on his website.
This seems an appropriate resolution to the matter.