Monday, July 29, 2013

Questions remain surrounding outcome of Judge Cebull misconduct investigation

Nearly 17 months after the  Great Falls Tribune first uncovered the racist email “joke” former chief Montana U.S. District Judge Richard Cebull sent from his courthouse chambers, many questions about Cebull’s conduct remain unanswered.

On Sept. 4, 2013 – after previously declaring the findings of the misconduct investigation and final order “moot” because Cebull retired – the Judicial Council of the 9th Circuit is set to release its July 2 final final order in the matter.

Will this final “final order” cover all of the complaints leveled against Judge Cebull? Will the Judicial Council reveal the findings of its nearly yearlong investigation into Cebull’s conduct? Will we ever find out what evidence the special investigative committee uncovered that was so damaging it forced a sitting Article III federal judge off the bench?

The circumstances surrounding the Judicial Council’s handling of this highly visible and controversial case thus far has left the Tribune, and even some legal scholars, scratching our heads. But one thing seems clear: the misconduct investigation must have turned up something more serious than a single offensive email or the 9th Circuit Judicial Council wouldn’t be going to such great lengths to conceal its findings from the public.

That is why the Tribune has continued to push for sunlight on this important matter. In our view, the public’s trust in the federal judiciary is best served by revealing the findings of the investigation.

Recently, at the Tribune’s request, attorneys from the Tribune’s parent corporation, Gannett, sent a letter to 9th Circuit Chief Judge Kozinski requesting that the March 15 order and memorandum be released to the public.

Barbara Wall, Gannett’s vice president and senior associate general counsel, wrote that the circumstances in this case weigh heavily in favor of public disclosure.

“We believe the circumstances in this case weigh heavily in favor of public disclosure. Judge Cebull waived his confidentiality when he publicly requested that the Judicial Council review his conduct, and public interest is certainly high in this controversial case. We therefore believe the public has a right to know the details and outcome of the investigation into Judge Cebull’s conduct, and I hope you will agree.”

This week the court responded, saying that if no petition for review is filed, then the July 2 order will be made public on Sept. 4.

Herein lies the rub: As far as anyone outside the Judicial Council  knows, the July 2 order covers Cebull’s self-filed complaint and one other complaint filed by as-yet-unknown person or persons. We know of at least two other complaints, one filed by the Montana Human Rights Network and one filed by Common Cause. However, we know that neither of those complaints are covered by the July 2 order.

The reason that is significant is because it appears the Judicial Council has segregated Cebull’s self-filed complaint – which we believe was assigned docket no. 12-90026 – and an unidentified complaint, docket no. 12-90032, from the other known complaints.

The Montana Human Rights Network’s complaint, Docket Nos. 12-90031, and Common Cause’s complaint, 12-90029, have not been resolved, and no order has been posted on the 9th Circuit’s website.

How can the other complainants in this matter have an opportunity to meaningfully participate in the resolution of the misconduct complaint if their complaint is segregated from the Judicial Council’s “final order” on the matter?

If only the complainant and the subject of the complaint have an opportunity to appeal the order – and in this case Cebull is both the complainant and the subject – then who has a right to review the order and possibly appeal other than Cebull himself?

Why has the 9th Circuit removed previous press releases and statements regarding the Cebull matter from its website?

Why did the Judicial Council apparently segregate Cebull’s self-filed complaint and another complaint and not address the complaint filed by others regarding the exact same set of facts?

Without answers to these questions, we’re left to speculate. At this point all signs seem to point to an attempt by the 9th Circuit to withhold the results of its investigation, order and memorandum in an effort to protect Cebull from embarrassment – or worse.

Recently the Montana Human Rights Network wrote to Kozinski requesting that Kozinski provide it with a copy of the special committee report and the orders and memoranda issued thus far.

Wrote MHRN co-director Rachel Carroll Rivas:

“If the decision to exclude us from the present adjudication of the matter was deliberate, we request an explanation as to why our complaint was not consolidated with the other two, and how we can achieve meaningful participation in the outcome.”

Rivas then posits five reasonable questions to the chief judge:

  • When will our complaint be investigated?
  • Why have docket numbers 12-90026 and 12-90032 been given priority over our complaint?
  • What purpose is served by allowing these complaints to be resolved before our complaint?
  • Will the present adjudication render our complaint moot, because Judge Cebull cannot be disciplined twice for the same conduct?
  • If so, how can we achieve any meaningful participation in this process?

We understand that certain special privacy considerations are appropriate when dealing with sensitive misconduct complaints that arise in the federal courts. But we believe this matter supersedes those considerations.

Judge Cebull’s actions and the subsequent fallout were of national interest. Individuals and organizations from across the country called for Cebull’s resignation, and the judge himself sent a personal letter of apology to the President of the United States. Cebull waived his right to privacy when he publicly disclosed his self-filed complaint. It’s time for the 9th Circuit to disclose its findings to the public so the public’s trust in the federal judiciary can be restored.

Below is a timeline of events in the Cebull case up to now:

· Feb. 10, 2012: Judge Richard F. Cebull receives an email titled "A Mom's Memory" on his courthouse email account.

· Feb. 20, 2012: Judge Cebull forwards that email  to six friends and his personal email address.

· Feb. 29, 2012: As a reporter for the Great Falls Tribune, I receive a copy of the email sent from Cebull's email account and call him to ask him about it. He admits to sending the email and says he did so because he does not like President Obama.

· March 1, 2012: Judge Cebull writes an apology to President Barack Obama.

· March 1, 2012: Judge Cebull writes to 9th Circuit Chief Judge Alex Kozinski requesting an inquiry into his actions to determine whether his actions constitute "misconduct." Cebull waives his confidentiality as to making the request and the existence of any proceedings that ensue.

· March 1, 2012: Cathy A. Catterson, executive of the 9th Circuit U.S. Court of Appeals issues a statement in which she proclaims the Judicial Council of the 9th Circuit  "is expected to act expeditiously in investigating and resolving this matter."

· March 1, 2012: Groups begin circulating petitions calling for Cebull's resignation.

· March 5, 2012: The Montana Human Rights Network files an official judicial misconduct complaint with the 9th Circuit Court of Appeals and calls on Cebull to resign.

· March 6, 2012: The ranking Democrat on the House judiciary, Rep. John Conyers, D-Mich. calls for the House Judiciary Committee to hold hearings on Cebull's conduct.

· March 12, 2012: The Montana Human Rights Network sends a letter to Cebull along with a petition signed by more than 2,800 people calling on Cebull to Resign.

· March 23, 2012:  9th Circuit Court of Appeals Chief Judge Alex Kozinski appoints a five-judge judicial committee to investigate Cebull's actions. Judge M. Margaret McKeown assigned to preside over the case.

· October, 2012: Cebull announces he'll take senior status effective March, 15, 2013

· December, 2012: The Special Committee submits its report to the Judicial Council in December 2012.

· March 15, 2013: The Judicial Council issues an order and memorandum. Order not to be released until after the 63-day appeal period

· April 2, 2013: The 9th U.S. Circuit Court of appeals in a statement on its website makes the preceding two facts known to the public and announces Cebull submitted a retirement letter stating his last day would be May 3, 2013. The council states it will have no further comment until the conclusion of the appeal period.

· May 3, 2013: Cebull retires. According to federal law, as an Article III federal district judge he is entitled to continue to collect his $174,000 annual salary until his death.

· May 13, 2013: Four days before the order and memorandum are to become public, Kozinksi issues a statement saying the order stemming from the investigation is "moot" because Cebull retired from active duty. Kozinski says the Judicial Council “now finds it necessary to review the procedural status and will consider the matter” at its June 28 meeting.

· June 28, 2013: The Judicial Council meets to consider the Cebull misconduct complaint.

· July 2, 2013: Kozinski releases another statement indicating that the Judicial Council reviewed misconduct complaints 12-90026 and 12-90032 against Cebull. Judicial Council issues a  “final order,” which is to be made public on Sept. 4 “if no petition for review is filed before that date.” Only Cebull and the complainant associated with docket No. 12-90032 have the right to view the final order and consider it for appeal.

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