High Court Stands Aside; Judicial Showdown Likely

Increasing the chances of a judicial showdown, the U.S. Supreme Court declined Monday to intervene in a dispute between the chief federal judge in Los Angeles and the U.S. 9th Circuit Court of Appeals over whether an appellate court can order a judge off a criminal case.

The Supreme Court rejected a request by Chief U.S. District Judge Manuel L. Real to vacate a 9th Circuit order removing him from a criminal fraud case against Sears, Roebuck & Co. after the 9th Circuit had reversed him for the third time in six years on whether the case should be dismissed.

By staying out of the squabble, the Supreme Court effectively left it up to Real and the 9th Circuit to consider what moves to take next in their growing jurisdictional fight. If Real does not obey the 9th Circuit order and turn the Sears case over to another judge, he faces possible contempt charges.

Real declined to comment Monday when asked what he will do, but he has insisted in the past that he does not intend to abide by the 9th Circuit ruling on grounds that “it interferes with the independence of the judiciary.” Sources close to Real said he has not changed his basic position and may be willing to face contempt charges to settle the legal issues in the case.

Los Angeles attorney Donald C. Smaltz, one of several legal advisers who had urged Real to submit the issue to the Supreme Court to avoid a direct clash with the 9th Circuit, called Monday’s Supreme Court decision a disappointment.

“I am very disappointed that the court has not seen fit to review the circuit’s decision because it was the one avenue available that would avoid a confrontation testing the power of the appellate court to make an order like this,” Smaltz said.

The Sears case began in 1980, when the U.S. Justice Department filed fraud charges against the giant retail firm and accused it of overstating prices paid for Japanese-built television sets. Real dismissed the case for the first time in 1981 because of misconduct by Justice Department lawyer Paul Gorman, who had bullied witnesses during grand jury proceedings. (Gorman was later imprisoned for misconduct in an unrelated case in Ohio.)

Ordered to Give Up Case

After the first dismissal of the Sears case by Real, the 9th Circuit ruled that the prosecution misconduct was not serious enough to warrant dismissal. Real twice found other legal reasons to toss the case out, but was overruled both times and finally ordered to give up the case to preserve “the appearance of justice.”

The Sears case is one of two in which panels of the 9th Circuit have ordered Real off the job. In August, the 9th Circuit also rebuked Real for imposing a $250,000 sanction on Los Angeles attorney Stephen Yagman for courtroom misconduct and ordered Real to let another judge decide a lesser penalty.

While neither side in the Sears case has moved to have the 9th Circuit enforce its order removing Real as the judge in that case, Yagman said Monday that he will actively seek contempt charges against Real if the judge does not remove himself from his case.

Last month Real delayed a decision on whether to remove himself from the Yagman case pending the outcome of his petition to the Supreme Court in the Sears case.

“Now he’s got the Supreme Court precedent he was waiting for,” Yagman said. “I think it would be reasonable for him to have a week to do something about finding another judge. If he doesn’t act by then, I will file an action with the 9th Circuit asking that he be found in contempt of court for failing to follow the law.”