Real Loses Bid for Hearing on Order That He Transfer Case

A federal appeals court on Friday denied Chief U.S. District Judge Manuel L. Real’s request for a full-scale hearing and again ordered Real to remove himself from a case in which he imposed $250,000 in sanctions against a Los Angeles attorney.

In a brief order, the appeals court revealed that there had not been a single judge among the 9th Circuit’s active jurists who moved to grant Real’s request for a full, en banc hearing of the court on the removal issue.

But the court also declined to hold the powerful Los Angeles judge in contempt for failing to transfer the sanctions case sooner, ruling that Real still has time to either carry out the order or appeal it.

The case, which Real regards as a test of the trial judiciary’s independence, has been batted back and forth between the district court and the appellate court for nearly three years.

Imposed Sanction

It began in 1984, when Real dismissed a $20-million defamation suit brought by civil rights attorney Stephen Yagman in a case stemming from the death of former California State University, Long Beach, football star Ron Settles and slapped a $250,000 sanction against the outspoken lawyer for alleged courtroom misconduct.

Yagman was outraged, publicly calling Real “a tyrant” who “suffers from mental disorders.

A three-member appeals panel last August upheld the dismissal of the suit but overturned the sanction, ruling that such sanctions are not meant to be used “to chill an attorney’s enthusiasm or creativity pursuing factual or legal theories.”

The appeals panel concluded that Real had demonstrated no bias or prejudice during the trial but concluded that to preserve “the fragile appearance of justice,” a different judge should hear the issue of sanctions when it returned to the trial court level for a rehearing.

Then the game of jurisprudential Ping-Pong began.

Real declined to reassign the case and instead ordered briefs from the lawyers on the issue of his authority to hear the case. Yagman moved to have him held in contempt.

Sidestepped Issue

The 9th Circuit panel, consisting of two of the appellate court’s most conservative jurists, J. Blaine Anderson and Charles Wiggins, and Harry Pregerson, a liberal, sidestepped the issue of contempt and instead simply ordered U.S. District Court Clerk Leonard Brosnan to reassign the case.

Real ordered the clerk to leave the case where it was. Yagman again filed for contempt.

Real petitioned to have a full, 11-member panel of the circuit’s judges hear the issue en banc, a procedure that may take place only if an active judge moves the full court to vote on the issue and a majority of the judges then vote to assign the case to an en banc panel.

In his petition for a rehearing, Real said he “regrets” that the appeals court apparently viewed his actions “as a challenge to its authority or an invitation to judicial anarchy.”

“To hold that Judge Real’s only option was slavish obedience disregards any right of the District Court as an institution to defend its jurisdictional rights and prerogatives,” he said in a petition filed by his attorney, Donald C. Smaltz.

“Here, Yagman has been able to achieve his desired result--a new judge--through a series of scurrilous attacks on Judge Real in the general news media after the trial, despite the absence of any unfairness or impropriety,” the petition argues. “This case presents a classic example of tactics employed by a lawyer in a blatant attempt at judge shopping.”

In their order Friday, the appellate judges revealed that no judge had requested a vote on Real’s request.

The court did, however, withdraw its order requiring the court clerk to reassign the case, ruling that “that obligation shall remain with Chief Judge Real as previously ordered by this court.”

Because Real now has the option of either reassigning the case or seeking a stay of the order on appeal to the U.S. Supreme Court, the appeals court ruled that the contempt application was “premature.”

‘Prior Order’

“My opinion is that the 9th Circuit in its prior order gave it (the reassignment order) to Brosnan in an attempt to facilitate a reassignment of the case without Judge Real losing face,” Yagman said. “People’s egos were at stake, and I think they viewed it as a pragmatic manner of accomplishing what they wanted.

“But Judge Real didn’t afford himself of the opportunity which they, I think, graciously provided him, and they decided to withdraw the opportunity. In their minds, they’ve given him every possible way in which to deal with what for him must be a very difficult situation” he said.

Yagman said he will again move to have Real held in contempt if he does not either reassign the case or obtain a stay of the order from the Supreme Court within seven days.

Real has said it would not be appropriate for him to comment publicly on the case. But he has argued in court papers and through his attorney that the appellate courts should not have the authority to remove a judge from a case, when there has been no finding of bias or prejudice, simply because they disagree with a judge’s decision.