Federal judge files complaint over his own e-mail message

[Silent_Bob]

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202544149076

Amanda Bronstad
March 01, 2012

Richard Cebull, chief judge of the U.S. District Court in Montana, has initiated a disciplinary investigation into his own behavior after acknowledging he sent a racist e-mail to friends and family about President Obama.

"Chief District Judge Cebull has publicly acknowledged that he has acted inappropriately," said Cathy Catterson, circuit executive for the U.S. Court of Appeals for the 9th Circuit, in a prepared statement.

"By letter to Chief Judge Alex Kozinski of the Ninth Circuit, Judge Cebull has initiated the process by which a complaint of judicial misconduct will be brought against him," she wrote. "Chief Judge Kozinski has informed the Judicial Council of the Ninth Circuit of the complaint. The Judicial Council is expected to act expeditiously in investigating and resolving this matter."

In filing a complaint himself on March 1, Cebull beat at least one organization to the punch. Earlier in the day, Common Cause spokeswoman Mary Boyle said that her organization planned to file a complaint with the 9th Circuit.

"We're calling on him to resign," she said, adding that Common Cause sent copies of its statement to every member of Congress. "We think that Congress has a role here to say something, and if Congress is silent on this, they send a message that this kind of language or behavior will be tolerated by the federal judiciary."

The watchdog group joined a growing chorus calling for Cebull's resignation. Cebull was nominated by President Bush in 2001 and has been chief judge of the District of Montana since 2008.

Cebull sent the e-mail from his courthouse address on Feb. 20 to family members and friends. The subject line was: "A Mom's Memory." The text said: "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!"

The e-mail was first reported on Feb. 29 by the Great Falls Tribune. Cebull apologized via the Tribune and The Billings Gazette, acknowledging that the e-mail was racist but insisting that he personally he is not. He said he passed along the joke because it was "anti-Obama."

"There's no doubt it's racist," he told the Billings Gazette. "It wasn't forwarded for that purpose. If anything, it was political."

Cebull did not return a call for comment.

His apology did little to placate critics.

"If he has any respect for his office and for ideals of equality and human dignity on which our country was founded, Judge Cebull will step down today," said Bob Edgar, president and chief executive officer of Common Cause, in a prepared statement. "The message he has acknowledged circulating demonstrates a lack of judicial temperament that ought to disqualify him from further service."

U.S. Rep. Emanuel Cleaver, D-Mo., chairman of the Congressional Black Caucus, said in a written statement that an apology alone was unacceptable. Cleaver joined the heads of the Congressional Hispanic Caucus and the Congressional Asian Pacific American Caucus in condemning Cebull's behavior.

Calling the e-mail "overt racism," U.S. Rep. Charles Gonzalez, D-Texas, chairman of the Hispanic caucus, said, "It would be appropriate for Chief Judge Cebull to ponder whether his continued service as a federal judge has been irreparably compromised and that another career may be more appropriate for someone with his views and temperament."

People for the American Way President Michael Keegan also weighed in: "Judge Cebull, by using his official e-mail account to promote racism, misogyny and disrespect for the office of President of the United States, has shown that he does not have the temperament necessary to fulfill his duties as judge. He should resign immediately."

In petitioning for Cebull's resignation, the Montana Human Rights Network said on its Web site: "People of color and women appearing before Judge Cebull will have valid concerns about his ability to treat them fairly."

Cebull faces potential disciplinary action ranging from a public reprimand to impeachment.

"Once it gets to the judicial council, it has authority that really runs the gamut," said Dick Carelli, spokesman for the Administrative Office of the U.S. Courts. The council also could dismiss the complaint or decline to recommend disciplinary action, opting instead for admonishment or a public apology.

In 2009, Kozinski himself was admonished, but not disciplined, in a similar proceeding by the 3d Circuit's judicial council, for having "sexually explicit photos" on his personal Web site. Kozinski had recommended his own investigation following public outrage, and apologized.

A key issue for Cebull is whether, in sending the e-mail, he violated the federal codes of conduct. In calling for Cebull's resignation, Common Cause identified potential violations of Canon No. 2 and Canon No. 5. The first holds that a judge should avoid the appearance of impropriety, such as holding membership in an organization that "practices invidious discrimination on the basis of race, sex, religion, or national origin." Furthermore, "public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety."

"This is not the Supreme Court, but there's no place for political activity or political expressions by a federal judge," Boyle said.

Canon No. 5 says that a judge should "refrain from political activity," defined as leading, making speeches to, or soliciting funds for a political organization or candidate. The canon also holds that "a judge should not engage in any other political activity."

"This is a judge. Any judge should not be making political statements," Boyle said. "You shouldn't know what a judge thinks of Obama or what he doesn't think. A judge's role is to be impartial."

The e-mail itself might not have violated Canon No. 5. "It's not political activity," said Steven Lubet, a legal ethics professor at Northwestern University School of Law. "Even if it were, there's no rule of private expression of political preference. The political activity means public political activity. We don't prohibit judges from having opinions and from time to time expressing them with his friends. The problem with this wasn't that it's political. It's vulgar and racially offensive."

But Cebull may have dug himself deeper in a hole by characterizing the email as "anti-Obama," said Keith Swisher, a professor at Phoenix School of Law and author of the Judicial Ethics Forum blog. "Now he's publicly opposing a sitting president running for office, and that's problematic and rare that would happen," he said.

Legal experts also noted that Cebull might have violated Canon No. 4. That rule states that a judge is limited to engaging in certain "extrajudicial activities."

"Personal conduct, charity fundraising, business activities — that's considered extrajudicial conduct," said Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society, but are permitted. However, activities that "detract from the dignity of the judge's office" or "reflect adversely on the judge's impartiality" are prohibited.

Cebull might also run afoul of Canon No. 3, legal experts said; it holds that that a judge should "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."

"This will cause a problem for him and his court routinely," Swisher said. "He's jeopardized his ability to preside over a significant amount of cases."

In a disciplinary investigation, Swisher said, the judicial council won't just look for violations of the federal code of conduct. "That matters, obviously, but they're also going to look at prejudice to other parties and the system of justice, whether it was repeated, what the judge's intent was behind the act, and how serious of a violation it was," he said. "The context is important here, too. He's not just the judge, but the chief judge. As the chief judge, he's also the administrative head in a sense, so you would want him to be a good example in that sense, as well."