A federal appeals court judge--part of a panel considering whether to uphold the punishment of an outspoken attorney who lambasted a judge--on Wednesday questioned whether his judicial brethren should enjoy special protection against such criticism.
"Why are judges so special?" asked Judge Alex Kozinski.
"We are just public officials. We get a public paycheck, just like prosecutors. Why does a whole different standard apply to attacks on judges?" the judge said at a packed hearing in the U.S. Court of Appeals in Pasadena.
Kozinski posed the question to Los Angeles attorney Graham E. Berry, who was urging Kozinski and two of his colleagues to uphold a lower court decision suspending Venice civil rights lawyer Stephen Yagman for two years.
The lower court panel ruled that Yagman had "impugned the integrity" of the court by making blistering and unfounded charges about their colleague, U.S. District Judge William D. Keller--including accusing him of being anti-Semitic, "ignorant, dishonest . . . a bully on the bench and one of the worst judges in the United States."
Berry, who is the attorney for a special federal court disciplinary committee that recommended that Yagman be sanctioned, responded:
"The cases . . . have made it clear that judges are integral to the judicial process and that an attack, especially a false, unsubstantiated attack, that has no objective basis, on a sitting judge assails the very foundation of the judicial process and undermines the public confidence in the judicial process which is essential for its proper administration."
But Kozinski expressed skepticism, noting that attacks on a prosecutor, other lawyers or the clerk of the court also could undermine public confidence in the judicial system.
Yagman was suspended in early July by three judges who ruled that he had criticized Keller, a conservative judge, in hopes of forcing Keller to remove himself from Yagman's cases. Yagman has consistently denied this and on Wednesday his attorney, Ramsey Clark, the former U.S. attorney general, said the charge was absurd. Berry retorted that the lower court judges had found this charge credible.
In late July, Yagman's suspension was stayed by the 9th Circuit, pending his appeal. Although there is no firm timetable on when the appeals court will rule, it ordered an expedited hearing. The three-judge panel, which also includes David Thompson and Charles Wiggins, could uphold the lower-court decision, reverse it or send the case back for further proceedings.
The case has drawn considerable interest in legal circles. More than 100 Los Angeles lawyers and law professors signed a friend of the court brief on Yagman's behalf, contending that the decision to suspend him potentially threatens the free speech rights of all attorneys. A number of the supporters helped pack the courtroom Wednesday.
Kozinski, whose questioning dominated the one-hour oral argument, flatly disagreed with Berry's contention that it was Yagman's obligation to prove that the allegations he made were true. The judge seemed to be leaning toward the argument made by Yagman's lawyer, Clark, who said it was Keller's obligation to prove that the charges were false or made in reckless disregard for the truth.