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Embarrassing:
Decision of the Day discusses the latest reversal of District Judge Manuel Real. The Ninth Circuit's reversing opinion concludes: "Justice suffers when judges act in such an arbitrary fashion. We apologize to the parties and admonish the district judge to exercise more care and patience in the future." For more on the controversial Judge Real, see here.
David M. Nieporent (www):
That's... odd. Ignoring the little diversion about email notice vs. snail mail notice, which is apparently just miscommunication, what on earth got into Real in this case?

Even putting aside Real's ridiculously harsh punishment, since when does a federal judge order a show cause hearing for failure to file proof of service before the 120 day deadline?
11.14.2007 5:06am
Ted F (www):
Given Judge Real's erratic history, what amazes me is that the Ninth Circuit failed to assign this case to another judge. If I'm the appellant, I would be concerned that Real will find another way to rule against me.
11.14.2007 7:49am
Temp Guest (mail):
Given Real's past history, the only possible explanation for his ruling is that the plaintif was a really ugly uncomely female.
11.14.2007 8:44am
Ralph Phelan (mail):
Damn, and I thought tenured professors were immune from consequences....
11.14.2007 9:03am
Prof. S. (mail):
The story noted that


Thirteen federal judges have been impeached over the years, according to the Federal Judicial Center. . . . Most recently, Alcee L. Hastings of the Southern District of Florida was impeached in 1989 on charges of perjury and conspiring to solicit a bribe. The same year, Walter L. Nixon of the Southern District of Mississippi was impeached on perjury charges. Both were convicted by the Senate and removed from office.

I thought purjury wasn't an impeachable offense. At least that's what I remembered from the 90's.

I don't mean to turn the topic, but someone had to say it.
11.14.2007 9:04am
Ralph Phelan (mail):
"I thought purjury wasn't an impeachable offense."

I could make the argument that standards are rightly different for a judge and for a President.

I can't imagine where lying is part of a judges normal and proper duties. But many of the President's duties, such as conducting foreign policy, often require that one lie like a rug (e.g. Eisenhower, U2 inicident).

How this difference in standards applies to personal issues is of course debatable.
11.14.2007 9:11am
alias:
Is the FJC page correct that he hasn't taken senior status? He's 83 and has been a judge for 41 years...
11.14.2007 9:17am
GV_:
For the love of God, Clinton did not commit perjury. He lied. And he lied under oath. But that's not perjury. I didn't really like Clinton when he was president and I hope his wife never becomes president. But when will people stop bringing up Bill when it has nothing to do with the topic at hand? Why are people so obsessed with him?

. . .

As far as Judge Real, is there a worse federal judge anywhere? Practicing in front of him is a nightmare. It's not that he's always pro-defendant (or pro-United States in criminal cases). Lots of judges have biases toward one side or the other. It's that he's so erratic that you never know what he's going to do.
11.14.2007 10:01am
Drake (mail) (www):
"I thought purjury wasn't an impeachable offense. At least that's what I remembered from the 90's. "

I thought Bill Clinton was impeached. At least, that's what I remembered from the 90s.
11.14.2007 10:14am
Sean M:
Even though the opinion is "for the Court," I have this sneaking suspicion that Kozinski was the primary drafter...
11.14.2007 10:25am
Mississippi Lawyer (mail):
Honestly,

No litigator who practices in federal court should be allowed to use the "I don't check my email" excuse. Notice comes by email and only by email the vast majority of the time and it has been that way for years.

I think the judge was correct to dismiss the lawsuit.

p.s. I know nothing about this particular judge and his history.
11.14.2007 11:03am
Thoughtful (mail):
Sounds like someone ought to get Real...
11.14.2007 11:06am
Pluribus (mail):
GV wrote:

For the love of God, Clinton did not commit perjury. He lied. And he lied under oath. But that's not perjury.

I just read 18 U.S.C. Sec. 1621 and confess I don't get your point. Can you elucidate?

What does the love of God have to do with it? I seem to recall it was Monica Lewsinky, Paula Jones, Juanita Brodderick, Kathleen Willey, et al.
11.14.2007 11:12am
Just a thought:
Interesting. I practice in a federal district court where all court proceedings for attorneys are required to occur electronically, and a notice over email is sufficient for service... so initially, it didn't strike me as if Judge Real was out of line. I guess he overstepped the bounds a little bit, if email is still not sufficient for service in California. But I'm not sure that the Judge deserved the stern rebuke from the Circuit Court.
11.14.2007 11:14am
Pluribus (mail):
"I thought purjury wasn't an impeachable offense."

Ralph Phelan replied:

I could make the argument that standards are rightly different for a judge and for a President.

I would be interested in that argument, since Art. II, Sec. 4, seems to lay down the same grounds for impeachment of the president, vice president, and all civil officers of the United States.
11.14.2007 11:19am
Krause (mail):
"For the love of God, Clinton did not commit perjury. He lied. And he lied under oath. But that's not perjury."

Did he even lie? He said something misleading. He didn't give the whole picture. But according to the operational definitions, did he really lie?
11.14.2007 11:41am
Ralph Phelan (mail):
Pluribus
"argument that standards are rightly different for a judge and for a President."

I would be interested in that argument...


Whoops, didn't think that through. "are rightly different" should have been "should, for policy reasons be different, and therefore due to political reality are in practice different"

I can imagine things that my common sense says should be firing offenses for a judge but not an executive, and vice versa.
11.14.2007 11:49am
Bob from Ohio (mail):

No litigator who practices in federal court should be allowed to use the "I don't check my email" excuse. Notice comes by email and only by email the vast majority of the time and it has been that way for years.

I think the judge was correct to dismiss the lawsuit.


According to the opinion, e-mail is not the rule in that particular California district.
11.14.2007 11:53am
alias:
Sean M writes: Even though the opinion is "for the Court," I have this sneaking suspicion that Kozinski was the primary drafter...

The writing style looks like his. As many may remember, AK was the one who dissented from the CA9 council's decision not to do much of anything about Real's last gaffe.
11.14.2007 11:56am
Henri Le Compte (mail):
Judge Real is 82 years old. Anyone think it is time to reconsider the "lifetime appointment" idea? Especially given the fact that the majority of people over 85 have significant symptoms of dementia (which includes poor judgment)? Also, a very healthy minority of people show similiar signs after age 75.

I add as a corollary that anyone who wants to continue working as a District Judge after, oh, say 80, has a serious workaholism problem, or an unhealthy addiction to power.
11.14.2007 12:14pm
Ralph Phelan (mail):
Anyone think it is time to reconsider the "lifetime appointment" idea?

At the very least removal for doing a crappy job should be a bit easier than it currently is.
11.14.2007 12:23pm
Dick King:
Eisenhower was not under oath when he lied about the U2 incident.

-dk
11.14.2007 12:42pm
PLR:
Did he even lie? He said something misleading. He didn't give the whole picture. But according to the operational definitions, did he really lie?

Nope, not in that deposition.

By the way, Hastings was acquitted of the bribery solicitation charge, and I'm not aware that he was ever charged with the crime of perjury.
11.14.2007 1:14pm
Pluribus (mail):
GV wrote:

For the love of God, Clinton did not commit perjury. He lied. And he lied under oath. But that's not perjury.

Krause added:

Did he even lie? He said something misleading. He didn't give the whole picture. But according to the operational definitions, did he really lie?

This subject has been done to death, and I don't intend to do it to death again, but the comments above are at least provocative and deserve a reply. Here's what District Judge Susan Webber Wright said in her order holding Clinton in contempt of court:

"The record demonstrates by clear and convincing evidence that the President responded to plaintiff's questions by giving false, misleading and evasive answers that were designed to obstruct the judicial process."

NYT, April 13, 1999

Lying? Perjury? Operational definitions and the love of God notwithstanding, it comes pretty damn close.
11.14.2007 1:18pm
TSW:

I just read 18 U.S.C. Sec. 1621 and confess I don't get your point. Can you elucidate?


I don't think his affair with Lewinsky was "material" to the Paula Jones deposition, which I believe involved matters that occurred well before Clinton ever met Lewinsky. But who cares? Give it up. Note to Republicans who are sick of Democrats hyperbolic demonization of G.W. Bush, you sound just as stupid when you go off on Clinton.
11.14.2007 1:25pm
alias:
This subject has been done to death, and I don't intend to do it to death again, but the comments above are at least provocative and deserve a reply.

I disagree. The subject has been beaten to death, run through a wood chipper, cremated, buried, exhumed and beaten to death again. Please let the matter rest at least until something happens to make it relevant again.
11.14.2007 1:27pm
Justin (mail):
As one of the members of the 9th Circuit once told me, "That's just Judge Real. We always reverse him."

I'm also pretty sure I know who wrote the per curiam here.
11.14.2007 1:51pm
Cornellian (mail):
Anyone think it is time to reconsider the "lifetime appointment" idea? Especially given the fact that the majority of people over 85 have significant symptoms of dementia (which includes poor judgment)? Also, a very healthy minority of people show similiar signs after age 75.

I think mandatory retirement at 75 is worth considering. Sure you lose some judges who would still be going strong at 80. The tradeoff is you get rid of some judges who really should have retired at 75 but aren't willing to do so. Hard to say which is the larger group though.
11.14.2007 1:52pm
Thomas_Holsinger:
Judge Real is definitely an argument for terms limits for federal judges. 18 years on the bench sounds about right.
11.14.2007 1:52pm
Justin (mail):
alias, senior judges may only take cases with the permission of the circuit and/or the Chief Judge of the Supreme Court, depending on the situation. If Real went senior, he wouldn't be assigned any cases - and he knows that.
11.14.2007 1:52pm
Prof. S. (mail):
I officially apologize for bringing up the Clinton mention. It was meant to be a half-hearted joke, but started a whole debate that has no business in this thread.

It was just a cheap shot at all those who said that lying under oath or perjury was not a "high crime and misdemeanor."

Let's let it all go and focus on the thread.
11.14.2007 2:03pm
David M. Nieporent (www):
I agree with those above who suggested that it was a Kozinski opinion; it reads like him.

No litigator who practices in federal court should be allowed to use the "I don't check my email" excuse. Notice comes by email and only by email the vast majority of the time and it has been that way for years.

I think the judge was correct to dismiss the lawsuit.

p.s. I know nothing about this particular judge and his history.
Or the case, obviously. If you had read the opinion, you'd have seen that electronic notice was not authorized in this lawsuit. Moreover, since when is dismissing a lawsuit the sanction on a first offense for missing a routine, non-substantive court conference? Let alone one which didn't have any legal basis, as this one didn't?


Judge Real is 82 years old. Anyone think it is time to reconsider the "lifetime appointment" idea? Especially given the fact that the majority of people over 85 have significant symptoms of dementia (which includes poor judgment)?
While Real's recent behavior would provide compelling evidence for that argument, the fact is that he's been this way for a very long time.
11.14.2007 2:04pm
Pluribus (mail):
So Clinton supporters now want to "let the matter rest"--only after, of course, they have made their points, but before their points have been rebutted. Right. That seems fair. Since I'm not a Republican, I will assume that the charge of being "stupid" (thanks TSW) was aimed at somebody else. Still seems kind of a low blow. I would say don't argue the law of perjury or the legality of intentionally lying in a judicial proceeding unless you are prepared to hear other arguments. And, as for relevance, until Hillary Clinton drops out of the race for president, the record she and her husband made while in the White House is going to be relevant, no matter how hard her folks are going to try to rule it irrelevant. And, finally, let's not descend to arguing about "what the meaning of 'is' is." Now that would be as stupid now as it was eight years ago.
11.14.2007 2:07pm
alkali (mail):
Ralph Phelan writes:

I could make the argument that standards are rightly different for a judge and for a President.

Pluribus writes:

I would be interested in that argument, since Art. II, Sec. 4, seems to lay down the same grounds for impeachment of the president, vice president, and all civil officers of the United States.

U.S. Const. art. 2, sec. 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

U.S. Const. art. 3, sec. 1: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior ..."

I should note that in point of fact, no federal judge has ever been removed except under art. 2, sec. 4, and I think it is the majority view among legal scholars at this point that art. 3, sec. 1 does not create an alternative basis for the removal of federal judges.
11.14.2007 2:10pm
OrinKerr:
henri LeCompte writes:
I add as a corollary that anyone who wants to continue working as a District Judge after, oh, say 80, has a serious workaholism problem. . .
Don't we want judges who are workaholics? Sounds like a feature not a bug to me.
11.14.2007 2:46pm
GV_:
Pluribus, if you'll re-read that definition, you'll notice that there's a materiality requirement. If every time a witness lied in a deposition, it was perjury, I think we'd have triple the jail population. People lie in depositions all the time, especially about embarrassing (irrelevant) details about their sex life. But as others have said, this has been pointed out so many times that I have a hard time believing anyone who brings this up is being intellectually honest.

. . .

I agree with others who said that counsel should have been checking his e-mail. But who knows how long Judge Real gave him. He might have issued his show cause order on a Monday afternoon for a hearing on Wednesday morning. He has done worse. It wouldn't surprise me if a lot of non-big firm lawyers don't check their work e-mail every day, but only check it a few times a week. The lawyer here might have been on vacation. He might have been away at a deposition. Who knows. He's under no legal obligation to check his e-mail, so I don't see how you can't fault him (or justify having a lawsuit dismissed) because he didn't check his e-mail.
11.14.2007 3:17pm
Dave D. (mail):
....I went before Judge Real's court ( as a witness ) 32 years ago and sat for an hour before my case came up. Afterwards I questioned the Asst U.S. Atty about the Judges actions and he regailed me with stories of the Judges even more bizarre behaviour than that which I had seen. Maybe term limits are reasonable, but I think this is yet another case of Manuel being Manuel.
11.14.2007 3:20pm
Mark Field (mail):

I went before Judge Real's court ( as a witness ) 32 years ago and sat for an hour before my case came up. Afterwards I questioned the Asst U.S. Atty about the Judges actions and he regailed me with stories of the Judges even more bizarre behaviour than that which I had seen. Maybe term limits are reasonable, but I think this is yet another case of Manuel being Manuel.


Ah, the good old days in the CA CD. Believe it or not, there were in those days several judges who made me long for an assignment to Judge Real.
11.14.2007 3:47pm
John (mail):
GV--

Actually, the sex-with-others was highly relevant. For a long time, judges had excluded evidence of this sort at trial, on the ground that the prejudicial force of the evidence outweighed its relevance. Then, in response to criticism from women's groups who wanted secretaries and other subordinates to be able to get the goods on their bosses in harassment suits, Congress passed a law that allowed in such evidence. The law was actually signed by president Clinton. Anyway, the result is that evidence of a defendant's other philandering or sexual predation was not only relevant, but would have been admissible in Paula Jones' sexual harassment suit.
11.14.2007 3:48pm
David M. Nieporent (www):
Pluribus, if you'll re-read that definition, you'll notice that there's a materiality requirement. If every time a witness lied in a deposition, it was perjury, I think we'd have triple the jail population. People lie in depositions all the time, especially about embarrassing (irrelevant) details about their sex life.
Yes, but in a sexual harassment case, one's sexual behavior with subordinates in the workplace is absolutely material.

I agree with others who said that counsel should have been checking his e-mail. But who knows how long Judge Real gave him. He might have issued his show cause order on a Monday afternoon for a hearing on Wednesday morning. He has done worse.
Not that bad. He issued the OTSC on November 3 for a hearing on November 11.
11.14.2007 3:50pm
Pluribus (mail):
Prof. S.:

Let's let it all go and focus on the thread.

I'm more than willing, Prof. S. Now if we can just get a few of the others here to sign on. . . .
11.14.2007 3:51pm
BruceM (mail) (www):
What if (which very well might be the case) the lawyer was signed up for the ECF electronic case filing system, like nearly all lawyers who practice in federal court (myself included). Thus he did agree to accept notices by email, thus had a duty to check his email. However, the court of appeals only notes that there's nothing in the record that indicates this. The lawyer probably wouldnt say anything about it in his "motion to un-dismiss" or whatever he filed in that regard, and so it was up to the court to write SOMETHING to be put in the record indicating that the lawyer is, in fact, signed up on ECF and thus did have a duty to check his email for court notices, filings, etc. The court, in its haste, probably just said "dismissed!" (and stay out!), without elaborating or putting the one piece of evidence in the record that would back up (though not necessarily justify) its actions.

I seriously bet that's what happened. Most courts that have electronic filing REQUIRE lawyers to use it. In fact, most big district courts (all courts in california are 'big courts') require filings to be done electronically and no longer accept paper filings.

So, judge real was probably just dumb for not interjecting this important fact in the record so the Court of appeals could say "there is nothing in the record that indicates the lawyer agreed to accept filings via email."
11.14.2007 4:06pm
thegreatsatan (mail) (www):
Wow, It's a rare day that I could agree with criminal scum like Yagman.
11.14.2007 4:35pm
thegreatsatan (mail) (www):
Even a casual reading HRES 611 RH shows Clinton being Impeached for perjury.
11.14.2007 4:50pm
hattio1:
Let's assume the lawyer was signed up for ECF, and did have a duty to check. Isn't anybody bothered by the fact that he had 120 days to serve the Deft and DID serve the deft within 120 days?
11.14.2007 5:07pm
DCP:
Thank you hattio1.

I was wondering when somebody would finally bring this up. The email issue is moot. This senile judge had called the hearing and dismissed the case BEFORE the 120 day service window had closed, which was the basis for the hearing in the first place.

That's why there was such a harsh rebuke from the 9th. How do you mess up such a simple and common FRCP that bad? Yikes.
11.14.2007 7:07pm
Ex-Fed (mail) (www):
As the Ninth Circuit clerks used to say in the 90s, "You don;t want Judge Real. You want a real judge."

I had a trial in front of Judge Real in the mid-90s. The defendant was fairly sympathetic. This was compounded by the fact that Judge Real kept yelling at and generally acting nasty to the public defender. I could see the jurors casting sympathetic glances at the defendant and public defender.

This was of high concern to me, because a friend had just suffered a mistrial in front of Judge Real, with the jurors telling her they thought the defendant wasn't getting a fair trial because of his behavior.

It struck me that there was only one thing to do: turn the tide by getting Judge Real to yell at me more than he yelled at the public defender.

This proved to be even easier than I anticipated.

By walking in the well, blundering unimportant questions, and otherwise pushing his buttons, I got the Judge yelling at me at least as much as at the defense lawyer. Then the public defender came over to me at a break. "I KNOW what you are DOING" she hissed, and stepped up HER efforts. Which required ME to step up.

It was about then that things got somewhat out of hand.

End result: hung jury.
11.14.2007 7:21pm
MarkField (mail):
Ex-Fed, that story is both hilarious and sad in its all-too-realistic portrayal. Pun intended.
11.14.2007 7:45pm
NickM (mail) (www):
Charlie Carr and Andy Hauk were as bad or worse. No one else comes to mind (although there are some who were considered biased to one side or another, especially in criminal cases).

Nick
11.14.2007 9:02pm
Chico's Bail Bonds (mail):
Let's get this straight people. The Central District does not have electronic filing, except for criminal cases and, as of this month, IP cases. This case was neither.
11.14.2007 10:37pm
Evelyn M. Blaine (mail):
Henri Le Compte wrote:
Also, a very healthy minority of people show similiar signs after age 75.
Maybe not the best word choice.
11.15.2007 12:54am
CDU (mail):

It was about then that things got somewhat out of hand.

Come on now, you know we want details.
11.15.2007 1:35am
Mary Katherine Day-Petrano (mail):
"Judge Real is definitely an argument for terms limits for federal judges. 18 years on the bench sounds about right."

"Yes, but in a sexual harassment case, one's sexual behavior with subordinates in the workplace is absolutely material."

"It was about then that things got somewhat out of hand."

"As far as Judge Real, is there a worse federal judge anywhere?"

Consider THIS: The recently discovered ex parte extra-judicial gathering of information, plans to cross state lines stalking, blog-hopping bashing, involving an 11th Circuit Court of appeal clerk and her co-horts to obstruct Title II ADA cases, irreparably prejudice Federal Courts, and predispose appeal decisions against a person with autism:

"AnnTM
Member
Posts: 119
(5/18/04 9:15 am)
Hmm...

BITING MY TONGUE (because I work for the appellate court that could hear her case, and I have access to her pleadings below).

Spot
Posts: 71
(5/18/04 9:24 am)
OH dear Ann ...

You must have some WICKED bite marks in your tongue right now!
I dont know how you can STAND it!

Towanda
Member
Posts: 1101
(5/18/04 11:09 am)
Re: DK's link

Good catch, Kahuna.

We have PACER for free.
I wonder if I can get access even though we are 6th Circuit? Ann, don't you work for the 11th Circuit Ct of Appeals??

I have a crazy day, but hopefully will have some time to do some CP legal research.

AnnTM
Member
Posts: 126
(5/18/04 11:13 am)
Re: DK's link

I think PACER is universal. The individual courts have CHASER websites (and here at the court of appeals, we can look at the dockets of all the courts below us using CHASER), but I think PACER lets you look anywhere.
Edited by: AnnTM at: 5/31/04 10:34 pm

galloper
Posts: 199
(5/18/04 11:28 am)
Re: DK's link

Doo-be-doo-be-doo....

I have Paaacer....


(I gotta say, that is an impressive list of defendants!)

Diamond Knight
Posts: 1664
(5/18/04 11:39 am)
...

I want to see the pacer thing! I'd be willing to pay but you gotta get the login by mail! I just checked

AnnTM
Member
Posts: 128
(5/18/04 11:39 am)
Re: DK's link

GAAAHHH! Galloper, email me! I want to talk about this stuff with somebody and not feel guilty.
Edited by: AnnTM at: 5/18/04 12:12 pm

Towanda
Member
Posts: 1104
(5/18/04 1:12 pm)
Re: CP

I have this insane obsession with meeting her in person. Like, anyone up for a trip to FL??

galloper
Posts: 201
(5/18/04 1:19 pm)
Trip to FL

I yahoo mapped her address off of the pleadings (I know, I'm an evil child). It really does appear to be a boat slip!

Draw Rein
Member
Posts: 30
(5/18/04 1:42 pm)
AnnTM and Galloper

Couldn't you guys let your fingers do a little oops 'slipping'??"
Source

"AnnTM
Member
Posts: 131
(5/18/04 2:14 pm)
Re: File Access

Galloper, I certainly wouldn't feel as weird about it if I didn't work for the court. They put the fear of God in us about being impartial, always being impartial, avoiding every possiblity of even a slightest iota of appearance of impropriety.
Edited by: AnnTM at: 5/31/04 10:35 pm

Source

"Barry
Member
Posts: 37
(5/19/04 10:40 pm)
Re: No, Mini

+ FUCKING TOOLS
+ THERE US A WAY WE CAN MAKE YOU THINK YES
+ IN THE MIDDLE THERE ARE NO POTHOLES
= WAY DOWN THERE I AM IN THE SOUR"

Source of what appears to be Middle District of Florida reference

At least Judge Real is out in the open about his prejudices. Apparently not so in the Middle district of Florida/11th Circuit U.S. Court of Appeals where it now appears improper ex parte extra-judicial communications to influence the outcome of Title II ADA cases are occurring via subscription-only blogs, discussion groups, and e-mails.

The question is, WHO are the Federal Judges who are allowing this? Because whomever THAT is beats out Maunal Real by more than a mile.
11.17.2007 11:59am
Mary Katherine Day-Petrano (mail):
corr: "Maunal Real"=Manual Real
11.17.2007 2:48pm