2013 WL 8149446
United States Judicial Confere...2014Background
- Petitions for review filed by Third Circuit Chief Judge Theodore McKee (May 16, 2013) and (July 23, 2013) concerning Ninth Circuit orders on Judge Cebull misconduct complaints under the Judicial Conduct and Disability Act and JCD Rules.
- February 2012 email from Judge Cebull to six people, sent from his court email, which drew widespread publicity and calls for action.
- March 15, 2013 Ninth Circuit Judicial Council order finding misconduct, issuing a public reprimand, 180-day no-new-cases period, and required ethics/racial bias training.
- Judge Cebull’s retirement announced in May 2013, effective May 3/May 8, 2013, which the Council later treated as an intervening event.
- May 13, 2013 vacatur of the March 15 order as moot due to retirement; July 2, 2013 order further reducing the matter to moot status and omitting many specifics of the March 15 findings.
- Court holds publication requirements under 28 U.S.C. § 360(b) and JCD Rule 24(a) compel publication of the March 15 order despite the later vacatur, and concludes retirement did not render the merits adjudication moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Publication of the March 15 order after vacatur | McKee argued March 15 should be published | Council asserted the order was vacated and not final for publication | March 15 order must be published under §360(b) and Rule 24(a) |
| Intervening event to moot proceedings | Retirement should moot the proceedings | Intervening event considered but only before merits; not to moot adjudicated merits | Retirement is not a proper intervening event to moot the merits; findings still must be published |
| Validity of vacatur (May 13) and mootness (July 2) | Vacatur and mootness are improper given the merits findings | Changed circumstances justify vacatur and mootness | Vacatur and mootness were improper as to the merits; March 15 findings should be published |
| Scope of conclusions after retirement | Remedies post-retirement should reflect full findings | Remedial actions no longer enforceable but findings remain | Final publication should include misconduct findings; remedial actions deemed inoperative |
Key Cases Cited
- In re Charge of Judicial Misconduct, 782 F.2d 181 (9th Cir. Jud. Council 1986) (controls termination when subject retires before actions conclude)