632 F.3d 1289
9th Cir.2011Background
- Pro se complainant alleges a judge made public comments after 9/11 that touched on race, religion, and immigration policy.
- Complainant also alleges the judge criticized a senator's campaign-finance investigations involving two individuals who pled guilty.
- The court treated the alleged comments as protected speech under Canon 4 and shielded by the First Amendment.
- The panel held the comments concerned law, the legal system, and public policy, which is encouraged by the Code.
- A separate claim alleged the judge made jokes about a candidate for high office; the court assessed whether it constituted misconduct.
- The court dismissed both substantive misconduct claims for lack of evidence of prejudice or improper conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-9/11 remarks about race and immigration constitute misconduct | Complainant argues remarks violate the Code. | Judge's statements are protected speech and within Canon 4. | Dismissed; remarks protected and not prejudicial. |
| Whether jokes about a candidate constitute misconduct | Jokes show misconduct and harm public trust. | Humor does not automatically amount to misconduct; no harmful impact shown. | Dismissed; jokes not inherently misconduct and no widespread harm shown. |
Key Cases Cited
- Hustler Magazine v. Falwell, 485 U.S. 46 (U.S. 1988) (humor aids political discourse; not automatically misconduct)
- In re Charges of Judicial Misconduct, 404 F.3d 688 (2d Cir. Jud. Council 2005) (ethics expert's view on judge's remark about Reagan cited)