FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT No. 10-90096
OF JUDICIAL MISCONDUCT
ORDER
Filed May 10, 2011
ORDER
KOZINSKI, Chief Judge:
Complainant makes various allegations against a bank-
ruptcy judge, but failed to certify that her statement of facts
was made under penalty of perjury as required by Judicial-
Conduct Rule 6(d).
When a complainant fails to make the required certifica-
tion, “the complaint will be accepted for filing, but it will be
reviewed under only Rule 5(b).” Judicial-Conduct Rule 6(d).
Rule 5 authorizes the chief judge to identify a complaint when
he becomes aware of possible misconduct outside of the for-
mal complaint process. Most often this occurs when the judge
learns about possible misconduct through news outlets or
other informal sources, but it also authorizes the chief judge
to identify a complaint despite noncompliance with Rule 6.
There are important differences between a complaint that is
given full review under Rule 11 and one that is reviewed only
under Rule 5. When a complaint is dismissed under Rule 11,
a complainant has the right to petition the judicial council for
review of the disposition. See Judicial-Conduct Rule 11(g)(3).
A chief judge’s decision not to identify a complaint under
Rule 5 is unappealable. See Commentary on Rule 5. Addition-
6197
6198 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
ally, whereas Rule 11 requires judges to “prepare a supporting
memorandum that sets forth the reasons for the disposition”
before dismissing a complaint, no such statement of reasons
is required in declining to identify a complaint under Rule 5.
An unverified complaint will routinely be dismissed in a one-
line order.
Most importantly, while Rule 11 articulates only a limited
number of “allowable grounds” for dismissal, Rule 5 leaves
the decision to identify a complaint almost entirely to the
chief judge’s discretion. Under Rule 5, a chief judge is
required to identify a complaint only “[i]f the evidence of
misconduct is clear and convincing.” Judicial-Conduct Rule
5(a). The chief judge has “uncabined discretion” whether to
identify a complaint under this rule. Implementation of the
Judicial Conduct and Disability Act of 1980, 239 F.R.D. 116,
191 (2006) (“Breyer Committee Report”).
The commentary on Rule 5 advises against identifying a
complaint where “[t]he matter [is] trivial and isolated, based
on marginal evidence, or otherwise highly unlikely to lead to
a misconduct or disability finding.” Commentary on Rule 5.
Here, it’s clear from the face of the complaint that all of com-
plainant’s allegations are merits-related and unsupported. See
Breyer Committee Report, 239 F.R.D. at 246. Because com-
plainant has provided nothing suggesting that further inquiry
is needed, I decline to identify a complaint pursuant to Rule
5.
This order is being published to give notice to other com-
plainants as to the consequences of failing to provide a certifi-
cation, as required by our misconduct rules.
DISMISSED.