L.A. Judge Avoids Sanctions by Panel
Over stinging dissents, a judicial disciplinary council has declined to impose sanctions on a veteran Los Angeles federal jurist who improperly seized control of a bankruptcy case to protect a female probationer he was supervising.
U.S. District Judge Manuel L. Real’s intervention permitted Deborah M. Canter to live rent free for three years in a Highland Avenue house, costing her creditors $35,000 in rent and thousands more in legal costs, according to court documents.
The judicial council of the U.S. 9th Circuit Court of Appeals, however, said Thursday that it was satisfied with the “corrective action” against Real, including a statement from his lawyer, in response to a request for an apology, that the judge “does not believe that any similar situation will occur in the future.”
Two of the judges on the 10-member council filed strong dissents. B. Linn Winmill, a U.S. district judge based in Boise, Idaho, said that the evidence against Real was “powerful and persuasive” and that the panel’s corrective action did not address “in any way the misconduct issue before us.”
Real “offered nothing at all to justify his actions -- not a case, not a statute, not a bankruptcy treatise, not a law review article
“I also believe that the aggrieved creditors are entitled to an apology from the judges of our circuit for the cost, grief and inconvenience they suffered in one of our courts because of [Real’s] unprofessional behavior,” Kozinski wrote.
“The judge who committed the misconduct refuses to offer such an apology, and it is therefore up to us. Because I cannot speak for the Judicial Council, a majority of whose members see far too little wrong with what [Real] here did, I offer mine.”
The Kozinski dissent lifted a veil from the normally cloistered world of judicial discipline, and was sufficiently critical of the bulk of his colleagues that the majority felt compelled to respond that its decision was “not a cover-up or a whitewash.”
Federal judges have lifetime appointments, subject to good behavior. They can be impeached, but the process is cumbersome and rarely used. The circuit judicial councils were created in 1980 as an alternative.
But those councils have hardly been aggressive. More than 99% of the complaints filed against federal judges across the country are routinely dismissed.
The 9th Circuit council, which supervises the conduct of federal jurists in California and eight other Western states, has reprimanded only two judges in the last dozen years while rejecting hundreds of complaints, according to court records.
New York University law professor Stephen Gillers, an expert on legal ethics, said he found the majority’s decision “completely unpersuasive” and contrasted it with Kozinski’s opinion, which he called “a model of how disciplinary rules for federal judges should work but too often don’t.”
Now 81, Real has been a federal judge since 1966. He has long had a reputation for being charming outside court but peremptory on the bench, possibly best known for telling lawyers who appear before him: “This isn’t Burger King. We don’t do it your way here.”
For the last quarter-century, Real has himself supervised numerous probationers, including Canter, who pleaded guilty in April 1999 to one count of loan fraud and three counts of making false statements. She was 42 at the time.
Two months before her plea, Canter had separated from her husband, Gary -- a member of the family that owned Canter’s Deli on Fairfax Avenue. He moved out of the house on Highland, which was owned by a trust established by his parents.
Deborah Canter and her daughter stayed in the house but fell behind on the rent. In October 1999 Alan Canter, the property’s trustee, filed suit, seeking to evict her and to collect $5,000 in back rent.
Twenty-four minutes before a trial was to begin on the eviction, Deborah Canter filed for bankruptcy, stopping the eviction proceedings. In February 2000, she signed an agreement to move out. But just days before she was scheduled to leave, a secretary for her lawyer drafted a letter asking Real “for his help in preventing her eviction,” according to judicial council records.
A day or two later, Real used his power as a federal judge to take control of the bankruptcy case away from a Bankruptcy Court judge, according to court records.
“The next time they saw each other,” Canter told the secretary the letter had “worked,” according to court documents. Canter’s own lawyer, Andrew Smyth, said he was “shocked” by the development, because it was a “complete no-no going to a judge secretly without talking to the other side.”
Real twice denied motions that would have permitted the trust to evict Canter. When asked for an explanation, he responded: “Because I said it,” according to court records.
Both Canter and Real denied any secret communication when Mary Schroeder, the 9th Circuit’s chief judge, asked them about it. The disciplinary council majority -- made up of four federal appeals court judges and three federal trial judges -- accepted their version.
Kozinski said he could not “imagine why” both Canter’s lawyer and his secretary would have lied about the letter’s existence, “as it hardly reflects creditably on their own conduct.” In any event, Real’s “explanation does not provide a lawful basis for his actions,” he said.
“A federal courtroom is not Sherwood Forest,” Kozinski wrote. “A judge may not take property from one party and give it to another, except by following established rules of procedure.”
The protracted disciplinary battle, first described in a Times article in January 2004, has been conducted largely out of the public eye. Real’s name was not on the decision issued Thursday, cryptically titled “In Re Complaint of Judicial Misconduct.”
The original complaint was filed by Venice attorney Stephen Yagman, Real’s longtime nemesis. Yagman originally suggested that the judge acted because he was having an “inappropriate” relationship with a “comely” younger woman, a contention dismissed by the judicial council’s majority and some of the dissenters as “preposterous” and “scurrilous.”
In 2003, Judge Schroeder summarily rejected the complaint but was directed by the council to reopen it.
Last November, in an unpublished order, Schroeder again dismissed the complaint. Yagman appealed. In May, the 10-member council sent Real a letter asking him to “acknowledge your improper conduct, apologize for it and pledge not to repeat it.”
Real’s lawyer responded, saying the judge thought he had failed to adequately explain his actions, creating unfortunate “misunderstandings.” The attorney said Real “does not believe that any similar situation will occur in the future,” according to the order.
The council majority pronounced itself “satisfied that adequate corrective action has been taken,” including a 9th Circuit ruling in 2002 that Real had abused his discretion when he took over the bankruptcy case.
“It is important to note that the overall purpose of the Judicial Conduct and Disability Act is not to punish but to protect the judicial system and the public from further acts by a judicial officer that are detrimental to the fair administration of justice,” the council majority wrote.
Kozinski countered by saying he was particularly troubled that Real issued his explanation through a lawyer.
“I sincerely doubt,” Kozinski wrote, “that many of my colleagues would be persuaded that a criminal defendant has accepted responsibility for his misconduct based on a statement from his lawyer that the defendant does not believe such a situation will arise again in the future.
“It does not inspire confidence in the federal judiciary when we treat our own so much better than we treat everyone else.”