Federal Judge Appeals His Removal From Case

In a major challenge to the power of the nation’s appellate courts, the chief federal judge of Los Angeles has asked the U.S. Supreme Court to overturn a decision that ordered him off a criminal case to preserve “the appearance of justice.”

Chief U.S. District Judge Manuel L. Real, ordered off a criminal fraud case against Sears, Roebuck & Co. by a three-judge panel of the U.S. 9th Circuit Court of Appeals, called his removal “a threat to the independence of federal trial judges.”

Real was ordered off the Sears case March 25 after the 9th Circuit reversed him for the third time on the issue of whether the fraud prosecution could properly be dismissed on grounds of prosecution misconduct and other error.

Openly defying the court order when it was first announced, Real initially took the position that there was no legal basis for a district judge to abide by such a ruling and said he would not give up the case.

“I don’t believe I will let go of the case,” he declared. “It interferes with the independence of the judiciary.”

To Avoid Direct Clash

Real decided to submit the issue to the Supreme Court last week, however, after months of consultations with advisers who urged him to avoid a direct clash with the 9th Circuit on the ground that open defiance would damage the image of the courts.

Los Angeles attorney Donald E. Smaltz, representing Real along with Long Beach attorney Joseph A. Ball, said Monday that the case should clarify the question of whether an appellate court can order a federal judge off a case merely because of disagreement with his views.

“I think this approach is consistent with the rule of law,” Smaltz said. “The only tribunal available to us is the Supreme Court. If the court takes the case, I think we will have a decision that should be dispositive on the subject.”

Real’s options to petitioning for an order keeping him as the judge in the case included literally doing nothing--remaining as the judge in the case until the 9th Circuit took possible punitive actions against him.

He indicated, however, that he had been persuaded that it was best to try to resolve the impasse with the 9th Circuit as diplomatically as possible under the law.

“I believe it’s an important issue and a fundamental issue,” Real said in an interview. “There is no law on the subject at the moment. If they take the case, there will be. It’s a question that needs to be resolved. It really impacts on the independence of all trial judges.”

Real’s decision to appeal his removal to the Supreme Court rather than to openly defy it was praised by Chief 9th Circuit Judge James R. Browning, one of many appellate judges who had hoped that a direct confrontation with Real could be avoided.

‘Substantial Legal Issue’

“I would think there is a substantial legal issue here,” Browning said. “It’s important that it be decided, and this would be an appropriate way of doing it.”

The Sears case began in 1980 when the U.S. Justice Department filed fraud charges against the Chicago-based retail firm and accused it of overstating on customs documents the prices paid for Japanese-built television sets over a period of several years.

Real dismissed the charges against Sears for the first time in 1981, denouncing the conduct of Justice Department prosecutor Paul Gorman, who badgered witnesses during the grand jury proceedings that led to the original indictment.

While a 9th Circuit panel agreed with Real that the prosecution was guilty of misconduct, it reversed his dismissal of the case originally on grounds that the prosecution misconduct was not serious enough to have clearly tainted the grand jury’s decision to indict.

Real continued to denounce Gorman’s handling of the case in 1983 when he reversed the case again.

“I think this is one of the most egregious cases I have ever, ever known about in my career as a lawyer,” said Real, a former U.S. attorney in Los Angeles. “I think if I had been the U.S. attorney at that time I would have fired him on the spot.” After Real was reversed a second time, he dismissed the case a third time on grounds that a second indictment in the case was barred by a five-year statute of limitations. He was reversed for the third time by a group of 9th Circuit judges who noted his continuing opposition to the government’s handling of the case.

The panel that ordered Real off the case was composed of 9th Circuit Judges Otto R. Skopil of Portland, William Canby of Phoenix and U.S. Senior District Judge Gus J. Solomon of Portland.

In their opinion, they said the 9th Circuit has the right to remove judges in the interests of “the appearance of justice and the orderly administration of this court’s appellate docket.”

Challenging that view, Real’s lawyers argued in their Supreme Court petition for a writ of mandamus banning Real’s removal that a 9th Circuit panel has no power to remove a sitting federal judge from a case.

“Not only does such an action constitute an unjustified public rebuke, but it amounts to an unprecedented appellate interference with the proper functioning of the district court,” Smaltz wrote.

Real’s petition to the Supreme Court noted that Gorman, the prosecutor in the Sears case, was subsequently transferred to Ohio, where he was found guilty of criminal misconduct in another case and sentenced to a year in prison.