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2nd Cir. Powerless to Pursue Former Judge Kozinski

By George Khoury, Esq. on February 07, 2018 | Last updated on March 21, 2019

The news about former Ninth Circuit Judge Kozinski's resignation amid allegations of misconduct came as a shock to the public. And now, the Second Circuit's opinion that the judiciary is powerless to pursue the complaint against him is definitely leading to some unpleasant reactions.

In case you've had your head buried in Second Circuit caselaw, or some sandy beach, since before Christmas, then you've heard about Kozinski's misconduct towards staff and abrupt his retirement. In response to the complaint initiated by the Ninth Circuit, Chief Justice John Roberts referred the matter to the Second Circuit to handle to avoid the obvious impropriety of allowing the Ninth to handle the matter. Unfortunately for the public, which, as of recently, finally seems to be placing a high value on prosecuting sexual misconduct and gender discrimination claims, the news out of the Second Circuit isn't promising.

No Jurisdiction for Judge's Injustice

According to the Second Circuit's opinion, the Judicial Councils for the federal circuit courts cannot exercise jurisdiction over a judge that has fully resigned and retired and is no longer sitting on the bench. The complaint against Kozinski sought to hold him liable for violating the Judicial Conduct and Disability Act, but as the Second Circuit Council noted, the Act cannot be applied to a non-active, non-sitting judge.

While many judges go into "semi-retirement" by going onto senior status, Kozinski simply resigned, accepting his more than fully vested $217,000 per year retirement. Had he gone onto senior status, rather than resigning, the Act would still have applied.

No Justice for Judge's Victims

For the employee victims of a judge's misconduct, justice can be rather elusive. The level of secrecy among courts and their staff is legendary. And while a judge can simply resign to avoid facing real consequences from the judicial council, after that a victim will often be left with little to no recourse. Victims that do pursue justice will often face an uphill battle against a judiciary which isn't likely to set aside their sense of judicial camaraderie when hearing a case against a former peer pressured into resigning. The only other justice can be obtained from the legislature, which just isn't likely to act.

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