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.

Judge who sent racist email about the president to fully retire May 3

Former Montana Chief U.S. District Judge Richard Cebull will fully retire on May 3, according to a statement published on the 9th U.S. Circuit Court of Appeals’ website on Tuesday.

Cebull, who stepped down from full active service on March 18 to take senior status, was under investigation by a special committee of the 9th Circuit after he sent a racist email from his court chambers about President Barack Obama. The email contained a “joke” that implied that Obama’s mother had sex with a dog.

After the Great Falls Tribune uncovered the email Cebull admitted to sending it and later publicly apologized. Cebull subsequently asked 9th Circuit Chief Judge Alex Kozinski to initiate an investigation into whether his transmittal of the email constituted misconduct under the Judicial Conduct and Disability Act.

Kim Abbott, of the Montana Human Rights Network, welcomed the news that Cebull would be fully stepping down next month. The network last year filed an official judicial misconduct complaint against Cebull and circulated a petition calling on the judge to resign.

“We filed the complaint because we believed the email Cebull sent called into question his ability to perform his duties impartially and he did violate judicial conduct rules,” Abbott said Wednesday. “We're happy that Montanans will be able to appear before a different judge, because Montanans deserve fairness. Women and people of color would have valid concerns  appearing before judge Cebull.”

According to the statement published on the 9th Circuit’s website, the special committee conducted “a thorough and extensive investigation, interviewed numerous witnesses, considered voluminous documentation, including emails, and conducted an interview with Judge Cebull.”

The special committee submitted its report to the 9th Circuit Judicial Council in December 2012 and on March 15, 2013 the council issued an order and memorandum. According to the 9th Circuit the findings of the investigation and the court’s order reamin confidential during the appeal period, and the council will have no further statement until Cebull's retirement is effective.

Cebull’s retirement comes as the U.S. Senate is considering nominations to fill the Montana federal bench seats vacated by Cebull and District Judge Sam Haddon,  of Great Falls, who went on senior status on Dec. 31, 2012. Chief District Judge Dana Christensen, of Missoula, is the only active federal judge in Montana.

Last month Montana Sen. Max Baucus sent a letter to President Barack Obama nominating state Supreme Court Justice Brian Morris and Yellowstone County District Court Judge Susan Watters to fill the two vacancies.

University of Richmond Law Professor Carl Tobias, a former University of Montana Law Professor and an expert on the federal courts, said the Senate needs to move quickly on to avoid a federal caseload bottleneck in Montana.

“This just steps up the urgency of moving the candidates forward and having them nominated and seating them on the bench,” Tobias said. “You're now nailed down to one active judge, who's also a chief judge, and he's in Missoula trying to run the court as well as his own caseload.”

Tobias called the situation in Montana urgent and said its critical that Baucus push for a speedy confirmation process in the U.S. Senate. Tobias said Obama’s federal judicial nominations are taking an average of seven months to be confirmed. Tobais said Baucus should approach ranking Senate judiciary committee Republican Sen. Chuck Grassley, of Iowa, and push for an expedited confirmation process.

“I can't see them getting confirmed before the summer, and that's optimistic,” Tobias said.

Judicial panel appointed to investigate Judge Cebull

U.S. 9th Circuit Court of Appeals chief judge Alex Kozinski has appointed a special judicial committee to investigate misconduct allegations against Montana chief U.S. District Judge Richard Cebull.

Cebull in February sent an email from his federal courthouse chambers that contained a racist and misogynistic joke about President Barack Obama's mother.

The subject line of the email, which Cebull sent from his official courthouse email account on Feb. 20 at 3:42 p.m., reads: "A MOM'S MEMORY."

The forwarded text of the joke contained in the email read:

"A little boy said to his mother; 'Mommy, how come I'm black and you're white?' His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!'"

News of the email set of a national firestorm and calls by human rights groups, civil rights leaders and government watchdog groups for Cebull to resign. It also lead to at least three judicial misconduct complaints filed against the judge.

Travis McAdam is director of the Montana Human Rights Network, a Helena-based nonprofit organization that filed an official judicial misconduct complaint against Cebull and circulated a petition calling on Cebull to resign.

McAdam said he was pleased that Kozinski took the step of appointing an investigative committee.

"We're glad to see that the 9th Circuit is taking up this issue, and taking it up in a pretty timely fashion," McAdam said. "We're very glad to see that movement is happening and that the complaint is going to be considered."

In an interview with the Tribune Cebull denied being racist and said he only sent the joke to his friends because he is "not a fan" of the president. The next day he wrote a letter to Obama apologizing to him and his family for the email.

Cebull initiated the judicial complaint process against himself in a in a March1 letter to Kozinski, the day after the news of the email broke.

On March 23 Kozinski appointed a five-judge panel to investigate the complaint.

Judicial misconduct complaints are usually confidential and thus Kozinski's order does not name Cebull. However, Cebull waived his right to privacy when he initiated the complaint and 9th Circuit assistant circuit executive David Madden on Thursday confirmed that Kozinski's order dealt with the Cebull case.

By rule, Kozinski appointed himself, two circuit court judges and two district court judges to the panel. Judge M. Margaret McKeown will the preside over the case.

According to circuit court rules, the judicial committee has the power to subpoena information and it may hold hearings to take testimony and receive other evidence, to hear argument, or both.

Under the rules Cebull has the right to obtain legal counsel for the proceedings. Cebull also has the right to present evidence, call witnesses, and to compel the production of documents.

When the committee completes its investigation it will file a report, including findings and recommendations for council action, with the judicial council.

The president of a Washington, D.C. civil rights and liberties group People For the American Way said he was encouraged that Kozinski formed a panel to investigate the complaints.

“Judge Cebull has shown through his actions that he does not have the necessary temperament to fulfill his duties as a judge," said Michael Keegan, president of People For the American Way.