Friday, August 2, 2013

Tribune editorial: Judiciary should release Cebull report

Republished editorial from the Aug. 1, 2013 Great Falls Tribune.

Richard Cebull of Billings has retired as a federal judge, not taking senior status as some judges do, but retiring outright.

So a 17-month-old flap over Cebull forwarding a crude email to acquaintances about President Barack Obama’s mother is all over with, right?

Not exactly.

Before Cebull hung up his judicial robe, the 9th Judicial District Court of Appeals, which oversees federal judges in the West, including Montana, launched a misconduct investigation into activities of the Montana judge through its arm called the Judicial Council.

What the investigation found is not clear because the 9th Circuit so far has declined to release the report or a summary of it.

At one point, the Judicial Council of the 9th Circuit declared the issue moot because Cebull retired, an approach that would have simply swept the matter under the proverbial rug.

Then the council composed a final order in the matter July 2, explaining the order would be released to the public and the media Sept. 4, if no petition for review is filed. If a petition for review is filed, the release could be delayed or not happen at all.

The Tribune, which is owned by the Gannett Co., sought release of more information about the Cebull probe.

“We believe the circumstances in this case weigh heavily in favor of public disclosure,” wrote Barbara Wall, Gannett’s vice president and senior associate general counsel, to Judge Alex Kozinski, chief judge of the 9th Circuit. “Judge Cebull waived his confidentiality when he publicly requested that the Judicial Council review his conduct, and public interest certainly is 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.”

The court’s response was the news that, barring a petition for review, the July 2 final order would be released Sept. 4.

Cebull’s original joke email he forwarded drew widespread condemnation and worldwide attention. Delays and confusion involving the council’s investigation indicate there may have been more to the flap than simply one email Cebull forwarded.

Initially, the judge told the Tribune he did not like Obama but conceded the email was offensive. He quickly sent a letter of apology to the president, and in May, he retired from the bench.

This country has an elaborate system of checks and balances involving the three main branches of government — Congress serves as the legislative branch, the president runs the executive branch and the third is the judicial branch.

Voters can cast votes against the president or members of Congress if they are unhappy with their performance while in office. Federal judges are appointed for life, so they are not required to face periodic votes to stay in office.

While we have no problem with insulating federal judges from periodic public approval, we do think there is a special obligation on the part of the judiciary both to act in an ethical manner and to police the judicial branch, making sure that misconduct is not tolerated.

We believe releasing the report on Cebull would provide a reassurance in the public mind that the federal judiciary is acting appropriately and providing some transparency in the self-policing of colleagues.

We encourage the 9th Circuit to release its report to the public as a matter of reassurance and transparency.

Judges do not have a easy job to perform, of course, but it’s important that the judiciary demonstrate some openness in such matters.

This is also a useful time to repeat advice we have given in the past and will continue to offer — don’t put anything in an email that you would not want to be splashed across the front page of a newspaper. Don’t expect an email to be secret and confidential.

Plenty of people would benefit by heeding this advice.

In the meantime, we believe the 9th Circuit can mend this bit of embarrassment in its ranks by showing openness about its investigation before finally putting this matter to rest.

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