HELENA (Montana Free Press) – The federal judge who ordered that the results of a lengthy misconduct investigation into a former Montana chief judge be sealed resigned Monday amid allegations of sexual misconduct.
According the Washington Post: “Alex Kozinski, the powerful judge on the U.S. Court of Appeals for the 9th Circuit who was facing a judicial investigation over allegations that he subjected 15 women to inappropriate sexual behavior, announced Monday that he would retire effective immediately.”
Kozinski is the U.S. 9th Circuit chief judge who in 2013 declared that the results of an official investigation into former Montana Chief District Judge Richard Cebull’s racist, homophobic and sexist emails were “moot” because Cebull resigned from the bench.
Kozinki’s decision to abandon the order revealing the findings of the investigation was overruled by the Ninth U.S. Circuit Court Judicial Council. The ethics panel, after nine-month review, revealed that over a four-year period, Cebull sent “hundreds” of emails “related to race, politics, religion, gender, sexual orientation, and politically sensitive issues.” However, the panel determined there was no bias in the Cebull’s judicial conduct.
The panel sealed the investigative file and it has never been made public.
Kozinski first came under fire in 2008 when the Los Angeles Times revealed that he maintained a publicly accessible website featuring sexually explicit photos and videos. After the allegations surfaced, Kozinski called for an investigation into his own conduct.
As the Los Angeles Times reported, Kozinski was presiding over a closely watched obscenity trial when news about the website broke. An investigation found that Kozinski and his son exercised carelessness in allowing the information on their private server to be publicly available, but he was not sanctioned.
The cascade of recent sexual misconduct allegations against Kozinski, which the Washington Post first reported on Dec. 8, involve accusations that Kozinski repeatedly showed pornography to female staffers in his courthouse chambers. An account the Post published Friday involved an unnamed recent University of Montana law student who says Kozinski inappropriately touched her.
From the Post: “One recent law student at the University of Montana said that Kozinski, at a 2016 reception, pressed his finger into the side of her breast, which was covered by her clothes, and moved it with some ‘deliberateness’ to the center, purporting to be pushing aside her lapel to fully see her name tag.”
In 2015 this reporter, along with former Montana journalist Shane Castle, filed a First Amendment lawsuit against the Ninth U.S. Circuit Court of Appeals demanding release of the investigative files so the public could review the emails and determine whether Cebull had demonstrated judicial bias during his time on the federal bench. The complaint argued that federal judges and court officers should not be exempt from federal Freedom of Information Act (FOIA) disclosure requirements.
“Plaintiffs seek disclosure of these discriminatory emails because this is a matter of public concern, and because various parties who appeared before Judge Cebull likely had their due process rights violated by his rulings,” the complaint stated. “Without access to the requested emails, the potential harm to numerous people is incalculable.”
After more than a year of litigation, the plaintiffs dropped the lawsuit in 20016 after it became apparent that suing the federal court in federal court was not the best mechanism for obtaining the records.
In light of the recent allegations surrounding Kozinski, Castle said efforts to bring sunshine to the federal judiciary is more important than ever.
“I always thought a compelling reason for getting the emails was to see who else in the judiciary sent or received the offensive emails, or perhaps responded to them,” Castle said. “This latest news is just further proof we need a FOIA equivalent for the judiciary and legislative branches, so civil servants wielding huge amounts of power over other people’s lives can’t hide in these black boxes.”
The Great Falls Tribune first broke the Cebull scandal in 2012 after Cebull admitted to sending a racially charged email about President Barack Obama from his courthouse chambers.
Cebull, of Billings, was nominated by former President George W. Bush and received his commission in 2001 and he served as chief judge for the District of Montana from 2008 until his retirement in 2013.
This reporter received a copy of the offensive email. The source who sent it said he had received it from a family member, who received it from one of the recipients on the email thread. The subject line of the email, which Cebull sent from his official courthouse email address on Feb. 20 at 3:42 p.m., read: “A MOM’S MEMORY.”
The forwarded text read as follows: “Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.
“A little boy said to his mother; ‘Mommy, how come I’m black and you’re white? His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!’”
On March 1, 2012, a day after the story broke, Cebull wrote a letter to Kozinski requesting an inquiry into his actions to determine whether sending the email constituted “misconduct.” Cebull waived his confidentiality as to making the request and the existence of any proceedings. The Montana Human Rights Network was among an unknown number of groups and individuals who filed official judicial misconduct complaints with the 9th Circuit Court of Appeals.
The scandal touched off a national firestorm and calls for Cebull’s immediate resignation, including from within the halls of Congress, rained down.
Timeline of the Cebull investigation:
♦ Feb. 10, 2012: Judge Richard F. Cebull receives an email titled “A Mom’s Memory” on his courthouse email account.
♦ Feb. 20, 2012: Judge Cebull forwards that email to six friends and his personal email address.
♦ Feb. 29, 2012: As a reporter for the Great Falls Tribune, I receive a copy of the email sent from Cebull’s email account and call him to ask him about it. He admits to sending the email and says he did so because he does not like President Obama.
♦ March 1, 2012: Judge Cebull writes an apology to President Barack Obama.
♦ March 1, 2012: Judge Cebull writes to 9th Circuit Chief Judge Alex Kozinski requesting an inquiry into his actions to determine whether his actions constitute “misconduct.” Cebull waives his confidentiality as to making the request and the existence of any proceedings that ensue.
♦ March 1, 2012: Cathy A. Catterson, executive of the 9th Circuit U.S. Court of Appeals, issues a statement in which she proclaims the Judicial Council of the 9th Circuit “is expected to act expeditiously in investigating and resolving this matter.”
♦ March 1, 2012: Groups begin circulating petitions calling for Cebull’s resignation.
♦ March 5, 2012: The Montana Human Rights Network files an official judicial misconduct complaint with the 9th Circuit Court of Appeals and calls on Cebull to resign.
♦ March 6, 2012: The ranking Democrat on the House judiciary, Rep. John Conyers, D-Mich., calls for the House Judiciary Committee to hold hearings on Cebull’s conduct.
♦ March 12, 2012: The Montana Human Rights Network sends a letter to Cebull along with a petition signed by more than 2,800 people calling on Cebull to resign.
♦ March 23, 2012: 9th Circuit Court of Appeals Chief Judge Alex Kozinski appoints a five-judge judicial committee to investigate Cebull’s actions. Judge M. Margaret McKeown is assigned to preside over the case.
♦ October, 2012: Cebull announces he’ll take senior status effective March, 15, 2013.
♦ December, 2012: The Special Committee submits its report to the Judicial Council in December 2012.
♦ March 15, 2013: The Judicial Council issues an order and memorandum, though the order is not to be released until after the 63-day appeal period.
♦ April 2, 2013: The 9th U.S. Circuit Court of appeals in a statement on its website makes the preceding two facts known to the public and announces Cebull submitted a retirement letter stating his last day would be May 3, 2013. The council states it will have no further comment until the conclusion of the appeal period.
♦ May 3, 2013: Cebull retires. According to federal law, as an Article III federal district judge he is entitled to continue to collect his $174,000 annual salary until his death.
♦ May 13, 2013: Four days before the order and memorandum are to become public, Kozinksi issues a statement saying the order stemming from the investigation is “moot” because Cebull retired from active duty. Kozinski says the Judicial Council “now finds it necessary to review the procedural status and will consider the matter” at its June 28 meeting.
♦ June 28, 2013: The Judicial Council meets to consider the Cebull misconduct complaint.
♦ July 2, 2013: Kozinski releases another statement indicating that the Judicial Council reviewed misconduct complaints 12-90026 and 12-90032 against Cebull. Judicial Council issues a “final order,” which is to be made public on Sept. 4 “if no petition for review is filed before that date.” Only Cebull and the complainant associated with docket No. 12-90032 have the right to view the final order and consider it for appeal.
John Adams is the founding editor of The Montana Free Press, where this story was first published.