FILED
FOR PUBLICATION MAY 27 2014
MOLLY C. DWYER, CLERK
JUDICIAL COUNCIL U.S. COURT OF APPEALS
OF THE NINTH CIRCUIT
IN RE COMPLAINT OF No. 12-90155
JUDICIAL MISCONDUCT ORDER
KOZINSKI, Chief Judge:
Complainant alleges that a district judge improperly delegated the judicial
power to a deputy clerk in his civil case. Complainant points to an order to show
cause, which lists a variety of jurisdictional defects, some of which are marked
with a check mark, and others which are not. The form also contains a narrative
explanation of the defect and has “Deputy Clerk” typed in the signature line.
Complainant infers that the order must have been issued by the deputy clerk
without specific directions from the judge.
“[J]udges can have assistants who are not themselves judges” and those
assistants may “advise and assist the real judge.” Geras v. Lafayette Display
Fixtures, Inc., 742 F.2d 1037, 1046–47 (7th Cir. 1984) (Posner, J., dissenting).
Judges are free to give such assistants specific or general instructions and trust the
assistants to perform the functions they’ve been assigned. For example, it is not an
impermissible delegation of judicial authority for the judge not to draft every word
of an order or not to cite-check his own opinions. The key is that the subordinate
is acting pursuant to instructions from, and under the supervision of, the judge, and
that the judge exercises authority over the substantive disposition of the matters
presented to him.
The order that the district court employed to help screen out jurisdictional
defects early is not objectionable, even if the deputy clerk exercises some
independent discretion in determining whether there is a likely deficiency. So long
as the form is approved and adopted by the judge, and the deputy clerk is trained
and supervised, the function of detecting possible defects in pleadings is
sufficiently ministerial that it does not implicate the judicial function.
The clerk here did little more than point out possible problems to the parties,
and give the party who may have committed the transgression an opportunity to
explain why the perceived problem didn’t exist, or correct the problem. The
ultimate decision as to whether the pleading is defective, and what action to take if
the defect is not corrected, was retained by the judge. Even assuming, then, that
the deputy clerk acted on his own in filling out and filing the order to show
cause—and there is no evidence that he did—this does not amount to misconduct.
See 28 U.S.C. § 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(A), (D).
DISMISSED.