FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT No. 09-90124
OF JUDICIAL MISCONDUCT
ORDER
Filed May 21, 2010
ORDER
KOZINSKI, Chief Judge:
Complainant argues that the subject judge, who was
assigned to his criminal case, was biased against him because
the judge had been the victim of a “crime . . . nearly identical
to those charged in [complainant’s] case.” Complainant filed
a motion for recusal in his criminal case that was referred to
another judge, who found no evidence of prejudice and denied
the motion.
Complainant now files a misconduct complaint against the
subject judge. Complainant alleges that the subject judge
committed misconduct by failing to disqualify himself from
complainant’s case because of the past crime (“recusal
claim”) and was prejudiced against complainant because of
the past crime (“prejudice claim”). Complainant presents no
facts or evidence in support of his misconduct complaint that
he did not present in his recusal motion.
A misconduct complaint is not a proper vehicle for chal-
lenging the merits of a judge’s rulings. See 28 U.S.C.
§ 352(b)(1)(A)(ii); Judicial-Conduct Rule 11(c)(1)(B). Com-
plainant’s recusal claim is easily dismissed as merits related.
See Judicial-Conduct Rule 3(h)(3)(A). “[A]lleg[ations] that
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the judge should have recused himself . . . relate[ ] directly to
the merits of the judge’s rulings and must be dismissed.” In
re Complaint of Judicial Misconduct, 570 F.3d 1144, 1144
(9th Cir. Jud. Council 2009). A failure to recuse may consti-
tute misconduct only if the judge failed to recuse for an
improper purpose. Implementation of the Judicial Conduct
and Disability Act of 1980: A Report to the Chief Justice 146
(2006) (“Judicial Conduct Report”); see also In re Cudahy,
294 F.3d 947, 953 (7th Cir. Jud. Council 2002) (“[A]n errone-
ous failure to recuse oneself from considering a particular
matter is a legal error rather than judicial misconduct.”).
Complainant doesn’t present any evidence that the subject
judge failed to recuse for an illicit reason; he simply disagrees
with it. Such disagreement must be taken up, if at all, by way
of an appeal.
Complainant’s prejudice claim, while obviously related to
the recusal claim, is distinct. Allegations of prejudice are the
bread-and-butter of misconduct complaints and aren’t nor-
mally dismissed as merits related. See Commentary to Judi-
cial Conduct Rule 3 (“An allegation that a judge ruled against
the complainant because the complainant is a member of a
particular racial or ethnic group . . . is also not merits-
related.”) This is true even though the alleged bias could have
justified a motion to recuse. See 28 U.S.C. § 455(b)(1) (judge
is disqualified “[w]here he has a personal bias or prejudice
concerning a party”). For example, a litigant who believes a
judge is racially prejudiced against him could file a motion to
recuse in the underlying case. More often than not, however,
misconduct complainants allege prejudice without having
filed a motion to recuse. In such cases, we address the sub-
stance of complainant’s allegations of prejudice. See, e.g., In
re Complaint of Judicial Misconduct, 583 F.3d 598, 598 (9th
Cir. Jud. Council 2009).
Here, complainant did file a motion to recuse based on the
same facts supporting his prejudice claim, and that motion
was considered and denied by an independent judge who
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7301
found no evidence of prejudice. “[T]he complaint procedure
cannot be a means for collateral attack on the substance of
[this] ruling.” Judicial Conduct Report at 145. “The judicial
misconduct system is emphatically not a forum for disap-
pointed litigants to continue litigation already decided on the
merits.” In re Complaint of Judicial Misconduct, 579 F.3d
1062, 1064 (9th Cir. Jud. Council 2009); cf. In re Complaint
of Judicial Misconduct, 583 F.3d 599, 599 (9th Cir. Jud.
Council 2009) (“The same claim . . . was rejected in an appeal
by one of the parties to the criminal case. . . . The judge’s fail-
ure to recuse himself based on these allegations therefore can-
not constitute past or future misconduct.”). It therefore makes
some sense to apply limited preclusion principles to the mis-
conduct complaint process.
Thus, when a complainant presented his prejudice claim in
a motion to recuse which was dismissed on the merits, we will
defer to the recusal ruling unless complainant presents new
facts or unusual circumstances. See In re Comm. on Jud. Con-
duct, 517 F.3d 563, 568 (U.S. Jud. Conf. 2008) (“A judge
should not be forced to respond repeatedly to the same
charges . . . . Harassment, however, is not implicated where
. . . some new allegations of cognizable misconduct, sup-
ported by new evidence, are presented.”). In this case, com-
plainant has presented no evidence that wasn’t already
considered in the order denying recusal, nor are there any
extraordinary circumstances. We therefore dismiss complain-
ant’s prejudice claim as precluded.
At the same time, an adverse recusal ruling won’t close the
door to the misconduct complaint process altogether. A mis-
conduct claim isn’t the property of any particular complain-
ant. Id. at 567. Thus, even if an individual filing a complaint
may be blocked from pursuing a claim, a concerned party
who couldn’t have joined the recusal motion may press the
matter. Indeed, judges have the duty to report judicial miscon-
duct, and the chief judge may investigate potential miscon-
duct sua sponte. See id. Thus, even if complainant here is
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precluded from bringing the complaint, the chief judge and
the Judicial Council may pursue the matter until they are con-
vinced that there is no credible evidence of misconduct. Hav-
ing reviewed the misconduct complaint and the recusal order
in the underlying case, I see no basis for pursuing the preju-
dice claim here.
Complainant’s remaining allegations are also without
merit. Complainant’s allegations that the judge made various
improper substantive and procedural rulings relate directly to
the merits of those rulings and must be dismissed. See In re
Charge of Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir.
Jud. Council 1982). Complainant’s allegations that the judge
was hostile towards him and his attorneys and intimidated
him into waiving his right to represent himself are dismissed
because complainant hasn’t provided any objectively verifi-
able proof to support these allegations. See 28 U.S.C.
§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D); In re
Complaint of Judicial Misconduct, 569 F.3d 1093, 1093 (9th
Cir. Jud. Council 2009).
DISMISSED.