The Subcommittee on Courts, the Internet, and
Intellectual Property will come to order.
I am going to recognize myself and the Ranking Member for
opening statements and then proceed to introduce our two panels
Any civil officer, under the Constitution, including
Federal judges, should be removed from office if impeached and
convicted of treason, bribery or other high crimes and
But what conduct subjects a civil officer to impeachment?
Bribery and treason are fairly straightforward concepts.
Scholars have observed that the term ``high crimes and
misdemeanors'' includes not only crimes for which an indictment
may be brought but gray political offenses, corruption,
maladministration or neglect of duty involving moral turpitude,
arbitrary and oppressive conduct and even gross improprieties
by judges and high officers of state.
Against this backdrop, we will review the behavior of U.S.
District Judge Manuel L. Real to determine whether he has
indulged in impeachable conduct. Specifically we will focus on
Judge Real's oversight of a bankruptcy case and related
California unlawful detainer action from 2000 to 2001.
In February of 2000, Judge Real interceded on behalf of a
defendant known to him named Deborah Canter in a joint
bankruptcy and California State unlawful detainer action. The
defendant was going through a divorce and was ordered to vacate
a home that was held in trust by her husband's family.
The defendant filed a bankruptcy petition that
automatically stayed eviction proceedings in October 1999, but
the stay was eventually lifted. The defendant, represented by
counsel, then signed a stipulation that allowed the State court
to issue an eviction notice in February of 2000, approximately
10 days before Judge Real interceded.
According to portions of a 9th Circuit investigation of the
matter, Judge Real received ex parte communications from Ms.
Canter before he took action. He was also supervising the
defendant as part of her probation in a separate criminal case
in which she had pled guilty to perjury and loan fraud.
Judge Real withdrew the complaint from the bankruptcy court
and enjoined the State eviction proceeding. The defendant was
allowed to live rent-free in a home for a period of years.
When the trustee appealed by the mandamus to the 9th
Circuit, Judge Real transferred to case to another district
The trustee eventually reclaimed the property on appeal
but lost at least $35,000 in rent during the proceedings, and
attorneys' fees were substantial.
The 9th Circuit Court of Appeals twice dismissed complaints
against Judge Real that were brought under the Judicial
Councils Reform and Judicial Conduct and Disability Act of
In the wake of negative publicity surrounding the case,
including a dissent from Judge Kozinski, one of the members of
the judicial council investigating Judge Real, Chief Judge
Schroeder of the 9th Circuit ordered a special committee to
conduct a further investigation of Judge Real's conduct.
The special committee held a closed hearing in Pasadena,
California, last August 21st. A second hearing is tentatively
slated for November.
Notwithstanding the willingness of the 9th Circuit to
review the case again, Judiciary Chairman Sensenbrenner
believes that Judge Real's behavior, especially as detailed in
portions of the September 29, 2005, judicial order, may rise to
the constitutional level of impeachable conduct.
This Subcommittee must consider the totality of Judge
Real's behavior. Did his actions in the Canter case, from the
time he learned of the bankruptcy and unlawful detainer actions
until his rulings were reversed by the 9th Circuit, demean him
and the Federal judiciary? Would the public have confidence in
such a judge to act ethically and without favoritism in future
House Resolution 916 allows the House Committee on the
Judiciary, which retains jurisdiction over impeachable issues,
to investigate the matter.
Following our hearing and further review by the
Subcommittee, we will develop a report that includes findings
of fact and recommendations that will be submitted to the full
Our goal today really is two-fold. First, we want to
determine what actually occurred when Judge Real presided over
the Canter case in 2000 and 2001. And second, we need to learn
more about existing impeachment precedents and whether they
have application to Judge Real's alleged behavior.
None of us on the Subcommittee relishes this undertaking.
This is an exercise that we will approach with an open mind
about the facts and the application of existing impeachment
precedents. But this is one of the few ways available to
Congress to ensure that the Federal judiciary retains its
integrity and serves the public's interest.
This point is emphasized by this week's release of the
long-awaited Breyer Commission report on the operations of the
judicial misconduct statutes. Among other revelations, the
report concludes that the 9th Circuit has not handled the
investigation of the case in the proper way, which lends
greater validity to the need for our Subcommittee to conduct
That concludes my opening statement. And the gentleman from
California, Mr. Berman, is recognized for his.
Thanks very much, Mr. Chairman.
One of the primary responsibilities of this Subcommittee is
to work to ensure that our judicial branch maintains its
independence. Therefore, while they may be a question as to
whether certain judicial behavior was or was not appropriate
and what the correct response should be, this congressional
hearing on the impeachment of Judge Manuel Real is premature.
As I understand it, the 9th Circuit, on May 23, 2006,
convened a special committee to investigate the charges against
Judge Real, and that a closed-door hearing on the matter was
held on August 21, 2006. The investigation is ongoing.
The Judicial Councils Reform and Judicial Conduct and
Disability Act of 1980 established our current system of
judicial self-discipline. It authorized the establishment of a
judicial council in each of the 13 Federal circuits that would
be responsible for the review of complaints against Federal
judges, and it empowers the judges to suspend the judge or
publicly or privately reprimand the judge.
When a complaint is received, the chief judge reviews it
and either dismisses the complaint as baseless or, if it has
merit, the chief judge can assemble a special committee to make
factual findings and refer the matter to the entire judicial
council, who may then conduct any additional investigation it
Finally, the complaint may be petitioned to the United
States Judicial Conference for review. And the Judicial
Conference may refer the complaint to the House of
Representatives for consideration of impeachment.
Following hearings in this Subcommittee, this act was
amended with bipartisan support by the Judicial Improvements
Act of 2002. This amendment enables the chief judges to conduct
limited inquiries into the complaints.
On April 29th of this year, the Judicial Conference held
that it had no jurisdiction to review the judicial council's
actions because no special committee had been appointed and
factual disputes exist that could benefit from a special
In May, the 9th Circuit chief judge responded by appointing
a special committee to investigate. This special committee
investigation is in line with the established procedures, and I
contend this is the proper procedure to be followed. So,
therefore, I think we should have held off on this hearing in
order to allow this special committee to perform its job.
If I just may make two comments in reaction to your opening
statements, Mr. Chairman, the first is that I do hope, if the
process is for the Subcommittee to make findings, factual
issues and recommendations to the full Committee, that we not
implement that process, or certainly not prepare that report,
until after we have seen the report of the special committee
that is now ongoing.
And the second comment I wanted to make was simply that I
am aware of the Breyer Commission's discussion of the different
disciplinary cases in the Federal judicial system, and I do
want to note that at the end of the report the commission said
that, ``We believe that appointment of a special committee was
called for in the first instance, and that this has now been
Thank you, Mr. Chairman.
Thank you, Mr. Berman.
Without objection, other Members' opening statements will
be made a part of the record.
And, Judge Real, I would like to invite you to come
forward, if you would. And if you would stay standing, I am
going to swear you in.
Thank you. Please be seated.
Our witness on the first panel is the Honorable Manuel L.
Real, U.S. district judge for the Central District of
Before his appointment to the Federal bench in 1966, Judge
Real served in the Naval Reserve, practiced law, and was both
an assistant Federal prosecutor as well as a U.S. attorney for
the Southern District of California.
He earned his B.S. degree from the University of Southern
California and his law degree from the Loyola Law School in Los
Welcome to you, Judge. We have your written statement,
which, without objection, will be made a part of the record.
Normally, Judge Real, we limit witnesses to 5 minutes, but
today we will be happy to give you 10 minutes and hope that
that will be sufficient. And if you will proceed with your
TESTIMONY OF THE HONORABLE MANUEL L. REAL, UNITED STATES
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
Thank you, Mr. Chairman and Members of the
I am here today because a complaint was made, accusing me
of judicial misconduct in my handling of a bankruptcy case more
than 6 years ago. I am here to tell you that I categorically
deny that I have committed any misconduct in any aspect of that
In my nearly 40 years on the bench, I have presided over
more than 31,000 cases, including thousands of civil and
criminal trials. Like most judges, I have had a few complaints
of misconduct made about me. However, not one of those
complaints was ever found to be true. And I have never been
sanctioned for any type of judicial misconduct.
The complaint that brings me here was an accusation that I
received a secret letter from a criminal defendant that caused
me to decide an issue in her favor in a bankruptcy case. That
accusation is untrue.
The complaint was filed by a lawyer who had no connection,
involvement or personal knowledge of the bankruptcy case. He
has had a personal vendetta against me for over 20 years. In
1984, I sanctioned that lawyer for his misconduct in a trial
that I was handling. Since then, he has made personal attacks
against me and has publicly called me ``crazy.''
He also filed the present complaint against me. His first
accusation was that I made decisions in the bankruptcy case
because I had an improper personal relationship with the
debtor, Deborah Canter. That complaint was investigated by the
chief judge of the 9th Circuit and dismissed.
The lawyer appealed. The 9th Circuit judicial council then
conducted its own investigation, interviewing at least 15
witnesses. One of its investigators interviewed Ms. Canter's
bankruptcy lawyer. He said his wife had told him that she
helped Ms. Canter prepare a secret letter to me asking for my
help in preventing her eviction. Because of this, the judicial
council sent the complaint back to the chief judge for further
The chief judge, as permitted by the rules, conducted her
own investigation. After that investigation, she concluded that
there was no credible evidence of a secret letter from Ms.
Canter to me. The chief judge dismissed the matter for a second
The lawyer appealed again. This time, the judicial council
affirmed the dismissal of the chief judge by a 7-3 vote.
One of the dissenting judges, Judge Alex Kozinski, wrote a
39-page opinion in which he concluded that I had received such
a secret letter from Ms. Canter. Judge Kozinski's conclusion
was based both on erroneous facts and his speculation. However,
because of its vitriolic spirit and tone, Judge Kozinski's
opinion received widespread news coverage.
At the time, I refused to comment on the accusations made
against me and have made no public comments until today. I have
submitted my written testimony explaining the background of the
bankruptcy case and the complaint of misconduct. I have also
submitted an appendix of exhibits which is the evidence the
chief judge and the judicial council had when it dismissed the
Today I would like to make a few additional comments.
The original accusation was that Ms. Canter was receiving
special treatment because she reported to me personally, as
part of her probation. That is untrue.
In 1998, Ms. Canter pled guilty to making false statements
and loan fraud. I sentenced her to 5 years of probation and
2,000 hours of community service. As part of her probation, she
was ordered to report to me every 120 days with her probation
That was in no way unusual. Since 1976, I have had a policy
of requiring defendants that I place on probation to report to
me in person every 120 days with their probation officer to
tell me about their continued conduct. The 120-day meetings
last no longer than 15 minutes, and the probationer is always
accompanied by a probation officer.
Ms. Canter was treated just the same as the more than 1,000
defendants who I have placed on the 120-day programs over the
last 35 years. I have not had contact with Ms. Canter other
than in open court and at her 120-day meetings with her
The original accusation that I became involved with Ms.
Canter's bankruptcy because I wanted to benefit her personally,
that is also untrue. I have had 120-day meetings with Ms.
Canter. One was in August 1999, and the other in January of
At the second 120-day meeting, Ms. Canter told me that
lawyers for one of her creditors had filed her confidential
pre-sentence report in her bankruptcy action.
Pre-sentence reports are confidential records of the court,
prepared by the probation department for my use in sentencing
criminal defendants. They contain a lot of private information
about the defendant. The reports are filed under seal and are
not available to the public. As the judge presiding over Ms.
Canter's criminal case, I was the only person who could release
her pre-sentence report.
In my nearly 40 years on the bench, I had never had another
case where someone misused a pre-sentence report.
After this 120-day meeting, I withdrew the reference of Ms.
Canter's bankruptcy. This meant that the bankruptcy case was
transferred to me for future handling. As a district judge, I
am authorized by statute to do this. I took over the bankruptcy
case because I wanted to find out if Ms. Canter's pre-sentence
report had been misused.
When I got the bankruptcy file, I personally reviewed it. I
found out that the pre-sentence report had been filed as part
of a motion to lift the automatic stay in her bankruptcy case.
Under the bankruptcy law, all lawsuits against Ms. Canter
were automatically stayed when she filed her bankruptcy. This
included an unlawful detainer action filed by her father-in-law
to evict her from her home. The motion requested the court to
lift the stay to the eviction action, so the eviction action
could go forward. And the bankruptcy judge, with the probation
report in the file, had done so.
I asked my secretary to find out the status of the unlawful
detainer action. She contacted the State court and learned that
a judgment had been entered. I concluded at that time that the
pre-sentence report had been improperly used to lift the
automatic stay so that the father-in-law could proceed with the
unlawful detainer action.
Therefore, I signed an order in February 2000 staying the
unlawful detainer action to maintain the status quo. My reason
for doing so was my concern over the misuse of the confidential
pre-sentence report. I did not do so to benefit Ms. Canter
because she was one of my probationers or because I had any
sort of a personal relationship with her.
The other accusation made against me was that I made my
rulings in Ms. Canter's bankruptcy because I had received a
secret letter from her asking for my help in preventing her
eviction. This accusation arose because her former bankruptcy
lawyer, Andrew Smyth, told a judicial council investigator that
his wife said she helped prepare such a letter.
As part of the chief judge's investigation, my secretary
submitted a declaration confirming that I had not received any
such letter or any communication from Ms. Canter. Ms. Canter
also signed a declaration saying that she had never written or
delivered such a letter or other document to me.
I do know that I never received such a letter or any other
such document from Ms. Canter. The only document I ever
received from Ms. Canter were pleadings filed in her bankruptcy
In Judge Kozinski's dissent, he goes into great length to
try to prove that I did receive an improper communication from
In my written testimony, I discuss some of the
reasons why he was wrong, and will not repeat that testimony in
this opening statement.
In conclusion, I want to say again that the accusations of
misconduct made against me are untrue. I did not receive any
secret communication from Ms. Canter. I did not make any
rulings in her bankruptcy based upon such a communication or
for the purpose of benefiting her personally.
I want to thank you for your opportunity for me to make
this statement. I would be glad to answer any questions the
Committee might have.
Thank you, Judge Real.
I would like to ask you some questions about this subject
of your dealings with Ms. Canter.
Prior to your withdrawal of the referral, how many times
had you met with her or seen her, both in open court and in
your chambers during the probationary meetings?
Twice at two 120-day meetings.
Right. And what about in open court?
I had not met her in open court at that time.
Oh, I am sorry. In her criminal case?
Right. I am talking about----
At the time of her plea and at the time of her
Right. And in the previous charges against her,
how many times had she been in your court then?
Only for her plea of ``not guilty,'' her plea
of ``guilty,'' and the sentence.
So three times in court and then twice in your
chambers during the probationary meetings.
With her probation officer.
That is correct, and I am not implying
In those five meetings that you had with Ms. Canter, is it
not possible that you might have developed some personal
concern for her well-being?
Well, for her well-being only in terms of how
she was doing on probation during the 120-day meetings, because
that is the purpose of the meeting.
Right. But during those five meetings where you
got to know her, did you feel protective of her in any way?
No. No more than any other probation candidate
that I have had.
Okay. Given the fact that those five meetings
were all a matter of public record, did you consider recusing
yourself in the case simply because of the appearance, at least
to the public, of impropriety or perhaps favoritism?
I am going to object to your question, Mr.
You are talking about five meetings. He didn't have
five meetings. She appeared before him at the time of her
arraignment and her sentence----
No, if you will please sit down, I will clarify
what I asked about. The five meetings that I referred to were
three times in open court and twice in his chambers during the
probationary meetings. Those were five contacts. And if
``contacts'' is a better word, I will be happy to substitute
The point I was making and the judge was just getting ready
to answer was whether or not, during those five meetings or
contacts you had with Ms. Canter, whether you developed any
kind of a sensitivity to her well-being or felt concerned about
No different than any other probationer that I
Okay. And then, as I mentioned, all five of
these contacts were public. Wouldn't that perhaps give rise to
a feeling among those who were observers that perhaps you did
have some type of a personal feeling for her and about her
And, as a result of that, if you weren't going to recuse
yourself--and you said that you decided not to--wouldn't that
give rise, I think, to a justified appearance of impropriety to
those who might be looking at this particular case, given the
actions that you took?
No, because my withdrawal of the bankruptcy
case was for the purpose of finding out about the probation
report, which had been illegally used. And I wanted to find out
about that. And I finally did find out about it, because I
issued an order to show cause against the lawyers in the
bankruptcy, in the unlawful detainer----
Right. That explains why you took the act you
did, but my question was going to the appearance of
impropriety, where you had on public record five contacts with
this individual, and, given the actions that you took, it might
well have resulted in the appearance of impropriety to those
who might be objective observers. That is my point, if you want
to respond to that.
Well, I don't believe so----
REAL--Mr. Chairman, because I had the statutory ability to
do that, and I had a purpose to do that, and it had nothing to
do with her, in terms of her position.
Right. And, again, because of those prior
contacts, it did not occur to you to possibly consider recusing
Not at that point, no.
I did later.
Okay. Judge Real, because of your actions,
arguably the Canter family trust lost tens of thousands of
dollars in lost rent and also in attorneys' fees. Did you feel
any responsibility for the losses that were incurred by the
Canter family trust?
Mr. Smith, I don't know anything about the
loss. I was not present and I was never called to the judicial
council to answer any questions like that.
As a matter of fact, what happened was, we found out later,
that the divorce court had permitted her to be in the house,
because it was the house that she and her by-then-ex-husband
was occupying. So it had nothing to do with my order that she
was occupying that house.
Okay. And you were not aware that she was
occupying the house rent-free?
I did not know how she was occupying--I knew
she was occupying the house, but not how.
Okay. And my last question----
She claimed some right of possession to the
Right, which was subsequently found not to be
Somewhat later. Much later.
Okay. And, Judge Real, one other question, and
that is: If you were ruling on a matter that denies a property
owner his property, isn't that person entitled to some
You are aware of the exchange you had with the individual
involved, but don't you think, under the circumstances, it
would have been proper judicial conduct to offer an
Mr. Smith, I never made a decision to deprive
the owner of his property. I never made that decision.
Okay. Thank you, Judge Real.
The gentleman from California, Mr. Berman, is recognized
for his questions.
Thank you, Judge Real. Good to see you again,
and, I guess, better other places than here.
In this investigative process that is now under way in the
9th Circuit, are you able to speak in front of the
investigative committee, much as you are doing here today, to
give your version of these facts and respond to questions, or
to submit materials in writing if that is the way they do it?
I have already done that, Mr. Berman, and we
filed our brief. As a matter of fact, on September 15th, we
filed the brief in answer to the investigation.
Well, then I am going to stay away from--until
such time as we see what they came up with, I am going to stay
away from fact questions.
But given that you have, sort of, opened up the issue by
coming here and testifying today, there is one thing that I
didn't totally understand in your testimony. And it requires
some speculation on your part, but it is speculation you
obviously made and reached a conclusion about.
The inclusion of the pre-sentence confidential report in
the motion to suspend the stay on the unlawful detainer action
in the bankruptcy proceeding, what--I can speculate too, but
what was your thought process about why that was included in
that? Because it obviously--I guess your concern was that it
shouldn't have been used, whatever its purpose. But what would
have been the motivation for that?
Well, in reviewing the bankruptcy file, the
probation report was there, and it was the only part of the
evidence that was offered to the bankruptcy judge for
withdrawal of the reference.
Well, let me put it in my words to make sure I
understand it. In a sense, are you saying that the only reason
they had to put that in there was to show something about her
that would cause the bankruptcy judge to be more sympathetic to
removing the stay on the unlawful detainer action?
That was my opinion then and my opinion now.
Thank you, Mr. Chairman.
Thank you, Mr. Berman.
The gentleman from California, Mr. Issa, is recognized for
Thank you, Mr. Chairman.
I am trying to understand one part of the whole decision
process. My understanding is that, in order to take something
away from the court of primary jurisdiction, the bankruptcy
court, you had to find cause.
What was your cause for taking away the decision of a
lawfully appointed judge who specializes in that area of the
The use of the probation report, which is my
function as a United States district judge.
No, I appreciate that. What I am trying to
understand, though, is you took it away based on an allegation.
Did you do what most colleagues would do in a collegial
environment and say, ``It has been brought to my attention. Is
this true?'' Did you try to do any discovery separate from
yanking the case and then looking at it?
No, I did not, because the primary jurisdiction
is not in the bankruptcy court. The United States district
judges are the bankruptcy judges.
And the bankruptcy judges, as
such, with that title, are appointed by the----
Right, but they are not your magistrates. They
have separate authority and routinely conclude the case without
the intervention of the district judge.
Well, they do because we refer--we refer--those
cases to them.
Right, but it hadn't been your case. It hadn't
No, it had not been my case, no.
Okay. So you yanked the case based on an
allegation, redecided de novo what a bankruptcy judge had
decided, and did so based on the assumption that, without that
particular proprietary report that you believe, appropriately I
am sure, was for your use only, it could not have been decided
That was my opinion.
Okay. Well, let's go through that, since you are
a bankruptcy judge in addition to a district judge, since you
have asserted that.
Because it does concern me, because, you know, I mean, I
sort of grew up going into Federal court with the understanding
that the difference between God and a Federal district judge is
God doesn't think he is a Federal district judge. And that you
have to assume that there is a great deal of power vested in
you, but there is a limit.
Your decision--how often would you routinely allow somebody
to remain in a home, paying no rent for over a year, based on
what? In other words, in a normal bankruptcy case, the debtor
in possession, so to speak, has to pay rent or vacate. That is
not unusual, is it?
Well, no. And I didn't--I had no concern about
leaving her in the home. She had been placed there by the
divorce court, the State court, the State divorce court. And--
Well, no, had she been placed there or had she
not yet been removed?
--and the husband was ordered to pay support for
her and her daughter. And----
I appreciate that. But we are dealing with a
decision made by a Federal judge pursuant to bankruptcy. And he
had decided that, under the bankruptcy laws, which are Federal
jurisdiction, that she had no right to stay there on a rent-
free basis and that it was appropriate to say that she could
not remain there.
Because the State court had not said, ``Your right to be
there is part of your divorce decree.'' Because if that were
the case, there wouldn't have been the claim to the court,
would there have been?
No, she had a claim to the bankruptcy court.
She had a claim to the bankruptcy court also. And a question of
whether or not, aside from the marital property question, which
the State court had to decide and which I said the State court
should decide--and I denied a motion to stay the marital court,
so that the marital court could decide the marital property.
But she also had a promissory estoppel right in terms of that,
to try that before the bankruptcy court.
That is why I transferred the case to Judge Carter, because
I felt then that it might have the appearance of impropriety if
I tried that case or tried the facts surrounding that case.
Well, I appreciate that, but, you know, I am
still looking at an enrichment that occurred because you took a
case from a court, reversed it by essentially allowing her to
stay for a year, and didn't transfer it until a considerable
Why in the world did you choose to enrich this woman for
$35,000 of value, based on our notes? Why wasn't that something
that couldn't have been left alone as part of the decision? Or
why couldn't you have immediately said, ``I am removing this
document and sending it to a bankruptcy judge for
consideration'' without that document?
What was the reason for the delay that enriched her by so
I don't know of any delay. The delay was, I
think, occasioned by the lawyers, who could have come to me,
and did on two occasions--one occasion. And after the second
occasion, they did what they should have done at the end of the
first occasion. And that is, they should have gone to the court
Because the Canters--this was the husband's father who had
title to the property, but they had possession of the property.
And the State court had allowed her in the property, I take it
in lieu--I don't know that--but in lieu of support for her and
the daughter. And the husband was working for the father-in-
And this is all hindsight now. This was not known to me at
the time that I made that decision. But hindsight, there is
some question as to whether or not the husband should have been
paying the father the rent that supposedly he had promised to
the father, as support for the woman and her daughter.
That was not----
Mr. Chairman, will there be a second round?
The gentleman's time has expired, and we do not
expect a second round.
Can I just leave with one question?
The gentleman is recognized for an additional
Hopefully you can respond in writing; I would
appreciate it. If you would just explain to me why in the world
you would not simply have--once you pulled this from one judge
who had considered a piece of information--inappropriately, in
your opinion, and I am not disputing that--removed that
document, immediately put it back down to the bankruptcy judge.
If you had done that, wouldn't we have no reason to be here
And that is the whole question, is, if you had done simply
curing what you say was wrongfully looked at and putting it
back to a judge immediately, wouldn't we appropriately not be
Thank you, Mr. Chairman.
Okay. Thank you, Mr. Issa.
The gentleman from California, Mr. Schiff, is recognized
I wanted to begin by echoing a couple of the sentiments
expressed by my colleague Mr. Berman from California. I have
appeared in Judge Real's court. I have known at least a couple
of his counsel for many years.
And this is not the circumstances in which I wished to see
you again, Judge Real.
I also want to reiterate what Mr. Berman said, which is
raising an issue about the desirability or propriety of going
forward with this hearing when the 9th Circuit is still in the
midst of its own proceedings, particularly in a case like this
where, even if you accept all the facts that are laid out as
true, there is a substantial question, I believe, about whether
it would rise to an impeachable offense. The Chairman alluded
to this in his opening statement.
But particularly where that is the case, where there is a
substantial question where, even if all the facts were accepted
as true, it would rise to an impeachable offense, I think it
further calls into question why we would take action before the
9th Circuit finishes its own action and makes its own
I have just a couple questions. One is on the misuse of the
pre-sentence report that you alluded to, Judge.
I guess my threshold question is, why was the pre-sentence
report in the bankruptcy proceeding to begin with? How did it
get there? Did you ever ascertain how that report would have
gotten there? Did someone in the bankruptcy proceeding request
it of the probation office? Why did the probation office
provide it in a bankruptcy proceeding? That does seem
The counsel who was representing Mr. Canter,
the senior Canter, who was asking for the lifting of the stay,
filed it with a request for judicial notice, filed it with the
bankruptcy judge specifically for the purpose of the withdrawal
of the stay.
But how would he get a copy of the pre-sentence
We never learned that. We have never learned
Well, and I don't know if you can comment on
It was not given to him by his wife.
Well, was he made a witness in the proceedings
in the 9th Circuit? Was he asked under oath how he got a copy
of the pre-sentence report?
No, he was not. His lawyer apologized profusely
on the order to show cause but never told me how she got the
probation report, which was filed in the divorce case.
And the bankruptcy lawyer on the order to show cause was
represented by a lawyer who I had a lot of trust in and who
told me it would be withdrawn from the bankruptcy and that the
matter would be taken care of.
Now, you mentioned that the pre-sentence report
in the bankruptcy proceeding was the only evidence that they
had, in terms of deciding whether to lift the automatic stay.
That was the motion for judicial notice, and
that was it, basically. There were some other things but
nothing of any substance.
And I don't know whether you can discuss this
either, given that the confidentiality of the pre-sentence
report may not be confidential anymore. Was there something in
the pre-sentence report that was the basis of the argument in
the bankruptcy about why the automatic stay should be lifted?
Well, you know, probation reports, they have an
awful lot of personal information that is given to the judge,
so that the judge can make a determination as to what sentence
to impose, which is not generally available to the public.
You mention in your testimony that the action
that you took did not have the effect of keeping her in the
property and the loss of the $35,000 in revenue to the trust.
Can you explain that? I am not sure I----
Well, that is my opinion.
First of all, she was placed there by the State court, as I
assume--and I don't know that, because I have not looked at the
State file--but I assume that she was placed there as part of
the support that comes from an order to show cause during the
divorce proceedings for she and her daughter to live in the
house during the period of time that the divorce was going on.
And so, she was there by that order. She was not placed there
by my order in any event--in any event.
And certainly, the withdrawal of the stay was done with an
illegal purpose, at least in my view at the time, with an
illegal purpose, and that is the illegal use of the probation
The gentleman's time has expired.
Mr. Chairman, may I have an additional minute,
Without objection, the gentleman is recognized
for one more minute.
I just wanted to comment on the five
appearances that this defendant had in your courtroom. Three
were during plea----
She is at a lectern, and I am on the bench.
In terms of those three in-the-courtroom
proceedings, those are proceedings where she is required to be
present and so are you.
So if you weren't present, that would be a
In terms of the two meetings with the probation officer,
what you do is probably extraordinary, in the sense that I
don't know of many judges that meet with all the probation
officers every 120 days. I am not sure I know of any of them
that does that.
Is it correct that your meeting with this probationer is a
practice that you followed with--how many other of the
probationers in your----
Thousands of them that I have had over the 35
years that I have been doing that program.
And the extent of your interaction with her is
confined to those five meetings: the three you are required to
have and the two that you have with all of your probationers?
In the presence of the probation officer, yes.
So you never had any meetings with her outside
of the presence of the public in the courtroom or the probation
And no phone conversations with her?
No phone conversations, no letters, no nothing.
I have never met her other than those three times in the
courtroom and twice in the 120-day program.
Thank you, Mr. Chairman.
Thank you, Mr. Schiff.
The gentleman from Utah, Mr. Cannon, is recognized for his
Thank you, Mr. Chairman.
How many other judges do this kind of 120-day program?
On our court, none.
Do you know of other judges around the country
that do that?
I do, but I can't remember now, because I have
sent some probation officers to other parts of the country and
had the probationer report to that judge with the probation
officer in that area.
I think that is a remarkably good concept and
one that takes an extraordinary amount of your time. And I
Does it work?
They say it works. I have--at least the
probation office tells me that I have a lot less violations of
probation than the other judges.
Well, it is obvious that you invest a lot in
your job and your office and that you are quite a determined
person. Is that a fair thing to say, do you think?
I am not sure that is actually--you know, it is
a clear quality, at least from what I understand.
Is Ms. Canter attractive?
You are asking me, and----
Yes. Do you recall her?
I recall her. And if you want just a frank
answer, she is not attractive to me.
What I am really--where I am--do you remember
her? Did she make an impact on you? And there is some real
anger over what happened, anger by the family, perhaps not at
you, but at her, which led to someone getting a copy of her
pre-sentence report and filing it.
And your reaction to that filing was also
angry, was it not?
Well, can you describe that a little bit?
Well, I think--that is a confidential report.
That is something that we can't allow, because, if we allow it
here, it then becomes a practice in every case in which we have
a probation report, that it becomes part of what people try to
get to help them with whatever they are doing outside of the
And that anger that you felt, that righteous
indignation, however you would characterize it, resulted in
your taking an aggressive approach to that case and getting it
transferred to yourself.
Well, I think it was. I think a little bit of
it was that I did not want to embarrass the bankruptcy judge.
How could he have been embarrassed? Somebody
filed something in his court, why would he be----
Well, no, by my going to him and saying, you
know, ``You can't do this kind of thing''----
Well, but he didn't do anything. Somebody filed
that in his case.
Well, somebody filed it, but he made the order
withdrawing the stay based, at least in my view, based upon----
And how was your view informed?
How was it informed?
Yes, why did you----
I saw the bankruptcy file and saw that the
report was part of a motion for judicial notice of this
Right. And the bankruptcy judge then removed
Did he refer to the pre-sentence report?
He made no--no, bankruptcy judges don't make
any reference to anything----
Right. They are awfully busy.
They are awfully busy, and they just----
In fact, he may not have even looked at that
He may not have. He may not have.
But it was the violation of what you thought of
as protocol, the rules of the court----
--that enraged you and caused you to look at the
file and then remove the judge from the case and take over the
Well, I didn't remove him from the case. I
withdrew the case to my court.
Your court. And that led to some nasty
allegations. There are a lot of people that dislike you, I take
No, I don't think there are a lot of people
that dislike me. There are a few.
Do you recall having a call from the attorney
general, General Dan Lungren at the time, about an order you
made during which he explained to you that California law
prohibited him from doing what you asked?
Yes. I do remember----
Do you recall what your response to him was?
--that, very well.
What was your response to him?
My response to him was that he was wrong. And I
thought he was wrong at the time----
Did you give him a rationale for why he was
wrong, or did you just----
I believe I----
--order him to do something?
I believe I did. But I don't remember. I don't
remember all of the detail of that. But I knew Dan Lungren, and
I thought we were friendly. And that was a situation----
Would you characterize that conversation as
relatively arbitrary, on your part, or as friendly and
I thought, from my standpoint, it was friendly
and rational, because he was telling me about a statute that I
read differently than he did.
Thank you, Mr. Chairman. I see my time has
I hope that we can wait for the judicial report that we are
expecting on this matter and come back. The problem here is
complex. And on the one hand, we want tough judges--judges who
are going to do things that make sense.
And may I ask for 1 minute, by unanimous consent?
The gentleman's time has expired, but he is
recognized, without objection, for an additional minute.
We want tough judges. What we don't want are
autocratic judges--judges that abuse their position. And a
Federal judge has massive authority. And so, I hope that this
case is one that we will revisit after we have a little more
information from the judicial council.
Thank you, and I yield back.
Thank you, Mr. Cannon.
The gentlewoman from California, Ms. Waters, is recognized
for her questions.
Thank you very much, Mr. Chairman.
I would like to place on the record that I do not know
Judge Real, I have never met him, I have never called him, I
have never talked with him, and I am not a lawyer.
So, having said all of that, my only question is, why are
we holding this hearing, when I understand that there is still
pending a hearing on this matter?
I guess I could ask you, Judge Real, if anyone disclosed to
you why you would be here today, knowing that a hearing is
There was one closed hearing, I am told. Is that correct?
There was one, yes.
And there will be another one. Is that right?
I believe so.
Do you disadvantage yourself at all by being
I beg your pardon?
Are you placing yourself at a disadvantage by
being here today, trying to answer all of the questions of the
Members of this Committee, when there is another hearing by
your peers that is going to be held?
I came by invitation, Ms. Waters. And I felt
that it was more than just an invitation.
Well, I think that Mr. Berman is absolutely
correct in deciding that we should not try and delve into the
facts of this matter here, that this should be left to the
hearing that is pending, and that we should not proceed with
this hearing in this fashion today.
I commend you for being here. I don't know what your
lawyer's advice to you was about coming here today. You are not
under subpoena, is that right?
I would rather not answer that question, Ms.
All right. Thank you. I have no further
Okay. Thank you, Ms. Waters.
The gentlewoman from California, Ms. Lofgren, is recognized
for her questions.
Mr. Chairman, I will be brief.
I have also never met the judge before. I am a lawyer and
have plenty of friends who have, in fact, appeared before the
judge over the years.
I think it is important that we put this meeting here today
in a context of what we are doing here in the Congress.
I am also not going to ask particular questions, because
the Judicial Conference is reviewing this matter pursuant to
the statute that we all participated in passing, the Judicial
Improvements Act of 2002. And it seems to me that if we
believed in the statute that we adopted, we would let that
process move forward instead of engaging in this process.
Obviously the Congress has the responsibility to impeach in
cases of high crimes and misdemeanors, and obviously judges
under the Constitution, article 3, section 1, serve only during
times of good behavior.
But I believe that we are here today because of the
animosity felt by the majority toward the 9th Circuit, and that
you are a victim of that animosity. And for that, I apologize
Now, looking at the record, I have private opinions about
some of your decision, honestly. And certainly you are not
always a popular judge among the people I know who have
appeared before you. But that is not a reason to shortcircuit
the proceedings that have begun.
And I, again, would urge that, not only the Congress follow
the process that we have established, but I think also the 9th
Circuit should be a bit more prompt in utilizing these
structures that we have provided for them. If they had been
more prompt, we certainly wouldn't be here today either.
So, with that, I would yield back the balance of my time.
Does the gentlewoman yield back?
Thank you, Ms. Lofgren, for your questions.
That concludes the questions by the Members of this panel,
And we thank you for appearing, and we thank you
for your responses today.
Thank you, Mr. Chairman.
Would our next witnesses please come forward and
remain standing? And I will swear you all in.
Thank you, and please be seated.
Our first witness is Arthur Hellman, professor
at the University of Pittsburgh School of Law. Professor
Hellman has testified a number of times before our Subcommittee
on Courts and constitutional issues. We received his B.A. magna
cum laude from Harvard College in 1963 and his J.D. in 1966
from the Yale Law School.
Our next witness is Andrew E. Smyth, a private attorney
from Los Angeles, California. Mr. Smyth represented Deborah
Canter in the bankruptcy action that gave rise to these
proceedings. He has served as a deputy public defender for
Riverside County, California, and for the past 29 years has
practiced law in the Los Angeles area, specializing in
bankruptcy law. Mr. Smyth is a graduate of the University of
California-Los Angeles and the University of Southern
California's School of Law.
Our final witness is Charles Geyh, professor of law at the
Indiana University School of Law. Before teaching, Professor
Geyh clerked for the 11th Circuit, practiced law in Washington,
and served as a counsel for the House Judiciary Committee. He
earned his undergraduate and law degrees from the University of
Welcome to you all.
We have written statements from all the witnesses. And,
without objection, the complete opening statements will be made
a part of the record. However, would you please limit your oral
testimony to 5 minutes?
And, Professor Hellman, we will begin with you.
TESTIMONY OF ARTHUR HELLMAN, PROFESSOR OF LAW, PITTSBURGH
SCHOOL OF LAW
Thank you, Mr. Chairman.
Nobody can take any pleasure in the circumstances that
bring us to this hearing room today. But there are, I think,
some good reasons why we are here. Allegations of serious
misconduct have been lodged against a Federal judge, and those
allegations come not simply from a citizen complainant but also
from respected members of the Federal judiciary.
Under the Constitution, when a Federal judge is accused of
serious misconduct, the power of impeachment is vested solely
in the House of Representatives. But impeachment is a
cumbersome process, and more than 25 years ago, Congress
established an alternate set of procedures--procedures that
Congress hoped would enable the Judiciary itself to deal with
all but the most serious instances of misbehavior by Federal
In this particular matter, though, the procedures did not
operate as they should have done, as the Breyer Committee
concluded so very, very forcefully in the report it issued
Tuesday. And so, we find ourselves here.
The resolution that is the subject of this hearing raises
First, do the accusations against Judge Real fall within
the category of very serious abuses that, under the
Constitution, may be the subject of impeachment proceedings?
Second, if there is a possibility that Judge Real has
committed an impeachable offense, what recommendation should
this Subcommittee make to the full House Judiciary Committee in
response to the charge from the Chairman?
On the first question, my view is that, based on the public
record, the allegations against Judge Real could provide an
adequate basis for impeachment, but only marginally so. There
are no allegations of criminality, and based on the available
record there is no evidence of corruption. In modern times, no
Federal judge has been convicted and removed from office
without a showing of criminality or corruption or both.
On the other hand, the allegations may fit within the broad
concepts of malconduct and abuse of power that the framers had
in mind when they drafted the impeachment provisions. In
addition, in 1913, the Senate voted to convict Judge Robert
Archbald on an article of impeachment that did not, within its
four corners, allege either criminality or corruption.
Putting all that together, I concluded in my statement that
it is at least possible that impeachment is warranted.
Now, obviously I had not heard Judge Real's testimony when
I wrote my statement, and you may conclude, based on that
testimony, that no further action by the House is necessary.
But I will assume for the moment that you have not ruled out
the possibility that impeachment proceedings are justified.
That brings me to the second question. On that assumption,
what course of action should the Subcommittee recommend to the
And here it seems to me that the key fact is that, at long
last, a special committee has been appointed under chapter 16
of the Judicial Code to investigate the alleged misconduct. And
in my view, the preferable course of action is to suspend
proceedings on H. Res. 916 until the special committee has
completed its work and the judicial council and/or the Judicial
Conference have acted upon its report.
Now, I understand and share the frustrations at the failure
of the 9th Circuit to appoint a special committee until more
than 3 years after the filing of the complaint, two separate
rulings by the judicial council, and a ruling by a committee of
the Judicial Conference of the United States.
But that history cannot be undone. And from a forward-
looking perspective, the House can only benefit from waiting
for the processes within the Judiciary to run their course. At
best, the council and the conference will deal with the matter
in a way that satisfies all of you that justice has been done.
At worst, you will be able to proceed with impeachment on a
much stronger footing than you can do today.
You will have a full record, compiled through the process
that Congress itself has ordained. And whatever you do will
have the enhanced credibility that comes from having given the
judicial branch the opportunity to deal appropriately with a
transgressor in its ranks.
I would like to conclude by looking beyond this particular
controversy. Although I think that the Subcommittee should wait
before acting on H. Res. 916, that doesn't necessarily mean
that there is no work for the Subcommittee to do.
In particular, the Subcommittee may want to consider
whether the very troubling history of the accusations against
Judge Real and their treatment by the 9th Circuit, whether that
has revealed gaps in chapter 16 that warrant legislative
I mention some of those in my statement, and I will add one
more: Maybe the statute should be amended to provide for some
greater transparency. And I hope we have a chance to talk about
these and other suggestions.
If the Judiciary Committee uses this unfortunate episode to
strengthen the ability of the judicial branch itself to deal
with judicial misconduct, that will provide something of a
silver lining, whatever the outcome of the proceedings against
Thank you, Mr. Chairman.
Okay, thank you, Professor Hellman.
TESTIMONY OF ANDREW SMYTH, ATTORNEY,
LOS ANGELES, CALIFORNIA
Yes, good morning, Mr. Smith.
I was hired in December 1999 by Ms. Canter to represent her
in a chapter 13 bankruptcy. She had filed herself right before
the unlawful detainer trial to stop the trial.
I recognize this as what would be called a bad-faith
bankruptcy, and that the judges do not like you filing simply
to delay your eviction from a house you don't own. I
substituted in, nevertheless, because I thought I could help
her talk to the Canter family and get more time.
This was--the Canter husband Alan's lawyers asked me would
I agree to modify the stay so a divorce matter could continue,
which had to do with property rights. My view is that is one of
the places the automatic stay does not apply; the divorce
matter may go ahead. So I so stipulated.
Then I got the relief from stay petition. And I disagree
with Judge Real; it would be granted no matter what was
attached. All it needed to say was it was not her property,
which it wasn't, and they were trying to evict her. A relief
from stay is not a ruling that she loses or she leaves. It just
removes a barrier that lets the State court matter go ahead.
I told her, ``Let's not even defend it,'' because I don't
like going in to see a bankruptcy judge defending such a case.
We filed a plan to pay a minimal amount of $100, so we weren't
really dealing with her creditors; we were using the bankruptcy
just to keep her there.
I told her even if we had shown up in court, 90 percent of
the time the judge will simply lift the stay. All the creditor
has to say is, ``This is an unlawful detainer matter. The
property doesn't belong to the debtor.'' The judge, Zurzolo,
wrote an opinion that the stay shouldn't apply because it is
not property of the State and nobody is seeking money. I think
the Los Angeles sheriff follows that.
Another misconception about the proceedings below that I
think might be got from Judge Real's testimony is that there
was no--the divorce matter did not keep her there. The house
belonged to Alan Canter and the trust. They were not parties to
the divorce court proceedings, so no order could have been
issued against them. Clearly the divorce didn't keep her there
because there was a U.D.--unlawful detainer--matter going on.
She hired another lawyer who stipulated to a judgment--it
wasn't because of the probation report. She had a full day in
court on her unlawful detainer, and she stipulated--she got
herself an extra month. She got rid of tens of thousands of
back rent as part of a deal. And in return, the Canter trust
got an order of writ of possession. Everyone got what they
When Judge Real withdrew the reference and took over the
case, there was no case or controversy in front of them. Nobody
was asking for that. The matter had been resolved, as to
I certainly didn't ask--I didn't make any motion that it be
withdrawn. It was withdrawn, and then later he put the stay
At that time, I substituted out of Ms. Canter's case,
because I couldn't--I was doing things for her for either
nothing or very low fees. And I said, ``Well, I will keep
writing things, but I don't want to go to court and use the
She came and asked me to write an adversary proceeding for
her, which I was surprised she knew the term. She insisted we
file a complaint asking for title to the house and part title
to Canters. She had not claimed these as assets in her 13. I
told her the proper place was Judge Denner's court.
No matter how much I insisted--Judge Denner was the divorce
court judge--she insisted it be done in the bankruptcy court.
So I ghost-wrote it for her, and it was filed.
I did write a pleading saying that when the Canters came in
to dissolve Judge Real's injunction, I said there was
irreparable harm. But in fact, the main prerequisite is a
chance you are going to win, probably that you will prevail on
the merits. Well, there was nothing in front of Judge Real the
first time to prevail on the merits on. There was no case. It
was unlikely we would prevail on the merits, because Ms. Canter
never had an interest in the property.
Later we went to the 9th Circuit. I was mystified, had no
reason to know why the judge did it. Mr. Katz, who was
previously a bankruptcy judge, kind of kept asking me. I
thought he might be accusing me of, you know, back-dooring a
I said, ``I don't have any idea. I am as mystified as
Later I asked my wife, and she said she had written a
letter, which turns out to be a declaration on Ms. Canter's
behalf, and sent it to Judge Real.
I don't know if Judge Real ever got it. I know that he has
admitted ex parte communication right in the probation matter.
So I feel he withdrew it. I think he helped her quite a
bit. The rental value of the property--I live one block away--
is not $1,000 a month, because that is Hancock Park. $1,000 a
month was the dad giving the son a good deal. The rental value
at that time was $3,500 a month.
I suppose I was happy my client got all of this time, but I
just don't think there was any legal arguable basis for Judge
Real to do what he----
[The prepared statement of Mr. Smyth follows:]
Prepared Statement of Andrew E. Smyth
Okay. Thank you, Mr. Smyth.
TESTIMONY OF CHARLES GEYH, PROFESSOR OF LAW, INDIANA UNIVERSITY
SCHOOL OF LAW
Thank you, Mr. Chairman.
I could point to Professor Hellman and say, ``I will say
what he said,'' except law professors are incapable of such
brevity. And so, I will take a couple of additional minutes.
It seems to me that we are in a matter that is under
investigation in the Ninth Circuit, and there are, as far as I
am concerned, four possibilities that could be out there.
One is, as Judge Real testified, that there was no
misconduct, he did nothing wrong.
A second--and this is far-fetched, but, you know,
additional investigation could conceivably reveal an illicit
quid pro quo in which Judge Real made decisions in exchange for
favors of some kind, sexual or otherwise, in which case I think
there would be the kind of corruption that would clearly give
rise to a crime or misdemeanor worthy of impeachable conduct.
The third possibility is that Judge Real simply engaged in
an ill-advised ex parte communication.
And the fourth is that there was a certain form of, what I
would characterize as, simple favoritism: not motivated by a
quid pro quo, but simply by a desire to help out a litigant
under circumstances in which the judge's impartiality was set
to one side and the judge made certain decisions for the
benefit of Ms. Canter, motivated largely by bias in her favor.
Which of these is, you know, remains up for grabs. I would
argue, however, that, as to the last two, the possibility of an
ex parte communication or simple favoritism, if you look at the
impeachment precedents, there really isn't much out there in
the way of support for the proposition that an isolated act of
simple favoritism, absent a pattern of misconduct, would give
rise to an impeachable offense.
Professor Hellman does refer to the Archbald case, although
that really does involve a case involving an implicit quid pro
quo there. We had multiple episodes in which Judge Archbald was
out there engaging in business transactions with prospective
litigants, benefiting himself at the expense of the adversary
And so, for that reason, I am a little bit leery of saying
that stands as a proposition for something exactly like this,
which is an isolated case.
That said, it is precisely because these cases are complex
and it is precisely because oftentimes they give rise to a
conclusion that an impeachable offense isn't there that, as of
1939, the Congress decided, ``Enough of this. We are going to
start turning over investigation of criminal matters to the
Department of Justice. And we are going to start looking to the
circuit judicial councils to investigate matters of judicial
misconduct. And only after they have concluded are we going to
be weighing in.''
In 1980, you added an explicitly disciplinary mechanism
which was a terrific idea, and it is an even better idea now,
because Congress is busier now than it ever was before. There
are more judges now than there ever were before. And I worry
that, if Congress gets back into the business of investigating
judges on a regular basis, it is inevitably going to do it
The best solution is to turn to the judicial council first,
wait for them to be finished, and if, on the basis of their
conclusions, you say there is more evidence of an impeachable
offense there, that is the time to go after it, not before.
Now, in this case, I think this Subcommittee is rightly
frustrated, because you expect the circuit judicial council to
do its job, and it hasn't. It hasn't done its job. And so you
are understandably frustrated.
But it seems to me that the Breyer Commission report, which
was issued yesterday, should give you a lot more confidence to
go forward with what I think is the best way to proceed, as
Professor Hellman suggests.
They went forward, and on page 80
of their report they say that the Ninth Circuit bungled the
process. And they tell the Ninth Circuit, here is what you need
Under circumstances in which the Ninth Circuit is now
continuing with the process--and I have confidence, frankly,
that the Ninth Circuit will, now that it has the opportunity to
listen to the Breyer Commission and see what it has to say, do
the right thing.
In my prepared testimony, I suggest that, really, the best
thing to do, if you are concerned, is to look at ways to
improve the disciplinary process, rather than to re-open, sort
of, the 19th-century practice of investigating judges on a
And in my testimony, I suggest that one problem with the
disciplinary process is that it is subject to such a vague
standard; that, if you look at it, judges are subject to
discipline if they engage in conduct ``prejudicial to the
expeditious business of the courts.'' What does that mean? It
is a very vague standard.
My suggestion is, why not link it more directly to
misconduct in the code of conduct for United States judges,
which gives you specific dos and don'ts. If you look at that
code, it says, ``Don't engage in ex parte contacts. Don't
exhibit favoritism.'' It provides a measure of clarity that
would be very helpful. And I think it has been a mistake for
the Judiciary not to follow it.
The Breyer Committee thinks so too. And yesterday they
issued, among their recommendations, that, from this point
forward, the Judiciary ought to be using the Code of Judicial
Conduct to discipline judges. And I think that is wise.
Bottom line for me is, impeachment at the end of the road
still might be something this Committee ought to explore. But
the first recourse is to wait for the Ninth Circuit to finish
its business, and then, once you have a full record, to go
forward or not. Because I think it is unlikely that you are
going to find an impeachable offense, but you could, for the
reasons that Professor Hellman indicates.
Thank you, Professor Geyh.
Professor Hellman, let me direct my first question to you.
You have just heard Professor Geyh say that the judicial
council ``didn't do its job'' and ``bungled the process.''
How would you describe the investigation to date by the
Ninth Circuit? Do you think they have done a good job of
investigating this matter, or do you have another description
Well, I have another description. The Breyer
Committee, in fact, concluded that both of the two chief judge
dismissals and the second order of the judicial council were
inconsistent with the statute.
Oddly enough, though, in my view, the clearest departure
from the statutory procedures came in the circuit council's
review of the first order dismissing the complaint. Because it
is evident that the council thought that there were unresolved
factual issues in the record before it. And that, strikingly,
is why Judge Kozinski wrote the letter to Judge Real that led
to the inaccurate response that Judge Real discusses in his
But if the council thought there were unresolved factual
issues, it should not have undertaken that investigation on its
own at that point in the proceedings. It should have directed
the chief judge to appoint the special committee, which it had
the power to do.
Now, I think there were flaws elsewhere, but that, to mind,
was the more egregious and most obvious.
Okay. Thank you, Professor Hellman.
And, Professor Hellman and Mr. Smyth, my next question is
this: Is there any doubt in your mind, either based on the
record, Professor Hellman, or on your personal experience, Mr.
Smyth, that Judge Real wanted the Canter litigation to be
resolved in her favor?
I don't think I can speculate about that.
That, to my mind, is one of the issues that I would like to see
the special committee address.
Okay. And, Mr. Smyth?
Well, I think he simply--I think he wanted to do
what she either asked for in the letter or she asked for--and
that is give her more time. Ultimately I think he saw she
couldn't get the house. But I think he wanted to give her--she
wanted time for retraining. She asked for it, and he wanted to
give it to her.
Okay. Thank you, Mr. Smyth.
And, Professor Hellman, last question for you, and that is:
What precedence are you aware of, historical precedence, that
might apply to this case at hand?
Well, I would like to say a little bit more
about the Archbald case that both Professor Geyh and I have
mentioned, because it is the strongest; it is the one of most
There were actually 13 articles of impeachment that were
voted by the House against Judge Archbald. Now, six of those
were based on conduct, or alleged conduct, that took place when
Judge Archbald was a district judge, before he was appointed to
the Commerce Court, and the Senate acquitted on all of those.
So we can put those aside.
But the Senate also acquitted on one article, it happened
to be article 2, that did allege specific quid pro quo
corruption while Judge Archbald was a judge of the Commerce
And, to my mind, it is very striking, the contrast between
the Senate's acquittal on article 2 and its conviction on
article 4. Because article 4, as I have said, within its four
corners, didn't allege corruption, didn't allege criminality.
So this suggests two things to me: One, that the senators
studied those articles rather closely; they didn't just vote en
bloc for or against. And second, that the conviction on article
4, yes, it was part of a--the articles themselves alleged a
pattern of corruption, but the senators didn't vote on a
pattern. They voted on the individual articles. And article 4
didn't say criminality, didn't say corruption. They convicted
Okay. Thank you, Professor Hellman.
And, Mr. Smyth, just want to get your opinion as to how you
feel Judge Real treats litigants and attorneys in his court.
Well, I mainly appear in bankruptcy court, but
after 30 years I have appeared in front of him 10 times. I have
had one jury trial, a summary judgment proceeding.
I think the word is autocratic. He is pro-police. In the
trial I had, I felt he didn't mind indicating to the jury what
side he was on. I know judges in England can sum up, but here
it is not forbidden but they never do.
But it is hard to say----
How did the judge indicate to the jury what side
he was on?
Well, there might be--this was a police case,
and, you know, it could be imagination, but simply taking a
request to--let's say, crossly-examining your witnesses, facial
expressions. Of course everyone knows how he treats Mr. Yagman,
who is--for police cases and, I suppose, talking rudely. And
sometimes he is very arrogant and rude in the way he talks. We
have an example in this case.
So I don't appear there very often, but I don't like
Okay. Thank you, Mr. Smyth.
The gentleman from California, Mr. Berman, is recognized
for his questions.
Thank you, Mr. Chairman.
I really would like to use most of my time to ask our
professors more on this issue of changing the process that we
have legislated and amended in a way that you think would make
it better. You start speaking to that in your testimony, but I
haven't fully absorbed all that written testimony.
But, first, I just want to--Mr. Smyth, you stated as a,
sort of, a factual certainty the receipt of a letter.
No. No, I did not. In fact, I said I didn't know
if he got it. I know--I believe my wife that she----
No, no. I heard you. You----
You said, ``I don't know if he made his
decision based on the letter'' or--it came across to me as
assuming he received a letter, which he has denied receiving.
And I guess the only question I have for you
is, do you have first-hand knowledge of whether or not such a
letter was sent?
I am sure if you play the tape, I specifically
said I don't know if he got the letter. It turns out it was a
declaration. I don't know--the only knowledge I have is----
Okay. All right. Then you are saying I
misunderstood your references to----
I do have knowledge of things that make it
likely he did. But I specifically said here I don't know that
he did or not.
I am sorry. Okay.
I, of course, Professor Hellman, was most intrigued by your
inclusion of a footnote which indicates that Judge Kozinski's,
I guess it was a dissent, which I haven't read yet. My theory
is we shouldn't be doing this until after the special committee
concludes its work and issues a report. And the corollary of
that is, why read something until I have to?
But your footnote talks--``Judge Kozinski suggested that
Judge Real be required to compensate the trust for the damage
it suffered as a result of the judge's unlawful injunction.''
Meaning the injunction was reversed on appeal on the grounds
there was no basis in law for the injunction?
I am not sure whether he was referring solely
to that or to the additional assumption that there was
misconduct as well. It is hard for me to imagine he would be
saying a judge should be required to compensate simply because
his decision is reversed on appeal. It is hard enough to get
people to become Federal judges today. I mean, nobody would
take the position under that rule.
Yes. My fear was you would start extending it
to Members of Congress for bad votes taken. I mean, there are
consequences to this kind of suggestion that should make some
of us have concerns.
But develop a little more, if you can, just synthesize in
the remaining time, you and Professor Geyh, if you could, what
kinds of changes should we be making in the law.
Thank you. First, on that one, I think it is
reasonably clear that a compensatory remedy would not be
permitted under the current statute. It would be a very tough
argument, and for the reasons you have indicated, I think that
is a very doubtful line.
To my mind, the more promising line--and I have to say the
Breyer Committee report reinforces this--would be to clarify
even more--I think it is clear in the statute--but to clarify
even more when the special committee has to be appointed.
Because in the high-profile cases that the Breyer Committee
investigated, that was one of the repeated failings, that the
chief judge did not appoint a special committee when he or she
should have done so.
And so, maybe the statute could make absolutely clear that,
in all but the most obvious cases, the chief judge does appoint
a special committee.
The other aspect----
And by that, you mean create a legal situation
where, essentially, the chief judge feels, if there are factual
allegations which one assumes are true, would there be some
basis for thinking there was wrongdoing, create the committee,
rather than--in order almost to--it isn't the chief judge
concluding that the judge did something wrong, but that, by
operation of law in this situation, they really had no choice
but to create the committee. Get the personal consequences--
reduce the personal consequences of the decision about the
difficult job of policing your own.
Yes, and to make very clear that a formal
investigation is a--anything like getting sworn declarations--
this case presents, actually, a very good example of that. The
statute draws a line between the limited inquiry--that is the
word in the statute--the limited inquiry that the chief judge
can conduct and a formal investigation, which implicitly is the
Well, the chief judge got sworn declarations. And it seems
to me that, when you are getting sworn declarations, that is a
formal investigation. And that tells you, appoint a special
Mr. Chairman, may I have one additional minute?
The gentleman's time has expired. Without
objection, he is recognized for an additional minute.
In my unfortunate concurring capacity as the
Ranking Democrat on the Ethics Committee, the similarities of
problems and difficulties between the concept of self-
discipline in the judicial branch and the difficulties we face
in the legislative branch, the parallels are very interesting.
Professor Geyh, what do you think of this notion of tilting
more toward the more formal investigative committee?
Well, I think it is a good idea for the reasons
the Breyer Committee gives. And it seems to me that one
desirable outcome of this would be for the Subcommittee to take
a look at the Breyer Committee report, in its oversight
capacity, to work with the Judicial Conference to make sure
that they promptly adopt the recommendations of the Breyer
I think that it is true that if district judges are out on
their own, engaging in fact-finding that is less than complete,
it does this process a disservice. That the norm, when there
are factual issues to be found, ought to be to create an
investigative committee. And what the Breyer Committee says is,
that ought to be our new norm; that ought to be the way we do
I don't think--whether we need legislation that makes it
unalterable worries me a little, because in some situations it
may not be necessary. But that ought to be the norm.
And that is really where I think this Committee could do
the most good, is in ensuring that this Breyer Committee report
isn't just deepsixed.
Okay. Thank you, Mr. Berman.
The gentleman from California, Mr. Gallegly, is recognized
Thank you very much, Mr. Chairman.
And I apologize for coming in a few minutes late. I would
like to have asked Judge Real a couple questions, but that
didn't take place because of my absence.
I was the first non-lawyer on this board, and, as a result
of that, I am always a little more careful when you are dealing
with some very technical issues. And I do more listening than
talking, normally. When you start talking, you stop learning,
around this place.
I did find it very interesting--is it ``Smith'' or
``Smith'' with a ``Y,'' your honor--pardon me,
Okay. Mr. Smyth, your assessment of Judge
Real's, for lack of a better word, demeanor on the bench seemed
to be--you had some fairly strong opinions of that, which I
assume has been a result of several years of experience.
Well, I am not really the person to ask, because
I probably had 10 appearances. And he is not real exceptional.
There are two other Federal judges in Los Angeles I would--you
know, it is not quite like bankruptcy court or municipal court.
It is not as relaxed. If you are not careful, you will be
knocked down a bit.
So I would say this: He is not, let's say, unfair. But he
is an autocratic-type judge.
Well, let me ask you this. Have you had any
experience or any opinion of Stephen Yagman?
Only what I have read. I have done some similar
police-type cases, and I have read a lot about him, so I do
have some opinions.
And what would those opinions be?
Well, he is almost sort of reckless in the way--
he is for suing the police, but the way, for instance, he
accused Judge Keller of being a drunk simply so he could have
Judge Keller recuse himself.
That sort of typifies--and, of
course, I know his problems now with the taxes. And he is a
But, I mean, he does a good job in suing police officers
who have misconduct. And I understand he has had a running
battle for years with Judge Real.
Does he have a reputation of bringing
lawsuits against cities and counties for the conduct of their
Thank you very much, Mr. Chairman.
Thank you, Mr. Gallegly.
The gentlewoman from California, Ms. Waters, is recognized
Thank you very much, Mr. Chairman and Members.
I would like to ask the witnesses a little bit about this
process. I have spent some time here reading Mr. Yagman's
background and his actions. And it seems that there is an
element of revenge here, based on a decision by Judge Real that
sanctioned him and caused him to have to pay $250,000. It was
reversed. However, Mr. Yagman appears to have put a lot of time
in going after Judge Real. And it appears to be consistent with
his behavior, some of which has been alluded to here earlier.
Now, I am wondering this. If, in fact, this case had gone
to the special committee, is there anything that would have
allowed them to make a special finding about who Mr. Yagman
was, whether or not this was a credible complaint, whether or
not it was a revenge complaint, whether or not his actions in
this case and other cases would deem him to be someone who was
What I am wondering is, you mentioned that there are some
things that maybe need to be looked at for the future, that
perhaps there are some areas to be improved.
I have heard a lot about areas that could be improved, as
it has to do with the judicial council or with the chief
But I want to know if there has been any discussion
about those who bring complaints and whether or not there can
be a finding and, following the first hearing of the special
committee, there will be no more actions taken, because the
finding that was made by that special committee was such that
this was not a legitimate complaint.
It is possible for the chief judge to dismiss
complaints as frivolous, and a significant percentage of them
I am a little bit leery about creating, sort of,
presumptions based upon who the complainant is, in part because
a significant measure of these complaints are filed by
prisoners and others who it might be very easy and quick to say
are inherently unbelievable and we will disregard what they
have to say.
In some ways, I am comfortable with the notion that the
chief and the committee, if warranted, will take a look to see
beyond who is making the complaint, to see if there is any
``there'' there. And if there is, conducting an investigation,
even if the source of the complaint is suspect.
I understand your point, and there is--I mean, the vast
majority of complaints are dismissed before any investigation
is undertaken, for all the right reasons.
Well, if I may interrupt you, I certainly don't
mean that there could be a finding that this person's past
actions alone should create a situation where they could go no
further in investigating or coming here to the Congress of the
But I do think that there should be something that would
take into consideration the relationship between the one making
the complaint and the judge. Whether or not there has been a
case where the complainant has been disadvantaged, had been
sanctioned, in some way that would cause them to want to get
back. And whether or not they took extraordinary actions to get
back at the judge, who, you know, ruled against them.
I mean, I do think that is in addition to, not simply
looking at the background of a person and the fact that they
may have been involved in other actions or complaints, but as
it relates to this particular judge.
No, point taken. In the current framework--and,
Professor Hellman, help me out here if I am wrong--I think that
the nature of the witness is going to be germane only insofar
as it bears on the truth or falsehood of the accusations being
Yes, I agree with just about everything
Professor Geyh has said.
And I would add this one point: Congress made a very
considered and conscious decision in 1980 to let anybody file a
complaint. And I think one of the reasons they had for that--in
this case, you had somebody who has absolutely no connection to
the case who just comes in out of nowhere.
But I think Congress thought, and I think it was a very
good decision, to simply let insiders or people who were
involved, that would not necessarily reveal misconduct. But the
consequence is that, sometimes, it sort of goes too far in the
But I think the judges can deal with this under the current
system, and they will, as Professor Geyh says, simply dismiss
the complaints that are filed out of vindictiveness or
Thank you, Ms. Waters. Your time has expired.
The gentleman from California, Mr. Issa, is recognized for
Thank you, Mr. Chairman.
And I, too, like Mr. Gallegly, am not an attorney. So a lot
of time, trying to understand the complexity of what is right
or wrong for a judge requires that I draw on 20 years of
business and anecdotal examples.
But, Professor Hellman, perhaps you could help me with
this. Almost 30 years ago, I had an artisan's lien against
goods that I had manufactured in house, physically in my plant.
Classic example: Company filed for bankruptcy. Their bank, who
had a lien but an inferior lien to the mechanic's lien, tried
to get the assets out; went to Federal court. The bankruptcy
judge said, ``I will give you the''--and I can never pronounce
this properly--``the indubitable equivalent.'' And he took my
goods. I never got a penny. Had first and best lien; I was
I understood the power, from that day forward, that a
bankruptcy judge had, or any Federal judge, to ignore with
impunity what is in fact clear, established law and predictable
outcome in most cases. And there is nothing you can do about
In this case, it appears as though the Federal judge, who
was a bankruptcy judge, specifically an appointed judge for
that, made an appropriate ruling, sans this other piece of
That, if you did not have--and there has been no evidence
placed here today, including by the judge himself, that he had
any knowledge of some specific court ruling that said, ``You
are getting this house as part of a settlement. Your ex-husband
is supposed to pay his father''--any of these other things that
have been talked about or surmised. Based on bankruptcy law,
that house should have been vacated or paid for.
This judge made a decision to take that decision away from
the bankruptcy judge without showing cause and without
specifically showing his cause for the cause here today.
In your experience, is that out of the ordinary? And does
that imply some level of hubris, whether or not it is
Well, from what we have heard, it seems as if
there were aspects of this case that were out of the ordinary.
There is one other point, though, that your questions raise
and which I think has not adequately been dealt with up to this
point today, which is that there is something of a tension
between the misconduct process and the appeal process.
I mean, I think the ordinary assumption is that errors,
even gross errors, awful errors, that judges make will be
corrected in the appeal process.
And my understanding--I have to say, by the way, bankruptcy
is one of those areas of law that I just shrink from. I have no
background in it, and the technicalities I find just beyond me.
Apparently that is because you are not just any
district judge, who, by definition, is a bankruptcy judge and
has primary authority.
But one of the things I understand that
Congress did do was to make, at least in the more recent
statutes, perhaps not at the time that you were involved in
that matter--one of the things that Congress has done is to
make appeals easier, as a general rule, in bankruptcy. So that,
in bankruptcy--if there are bankruptcy people around, they will
probably correct me, but my understanding is that it is much
easier to take an appeal in the middle of a case in a
bankruptcy proceeding than it is in district cases.
So that is one of the things that Congress can do--I guess
bankruptcy isn't this Subcommittee either, so we are all lucky
in that respect, but one of the things----
It took us three Congresses to get a new
bankruptcy law passed. I am sure it will be three more before
we start talking about a new one.
Will the gentleman yield?
I think we can say, based on your comments
earlier and now, that, had you been here in the late 1970's and
1980's, you would have been on the Kastenmeier side of the
Rodino-Kastenmeier fight about Federal judges and bankruptcy
Reclaiming my time, I have no doubt I would have
been on one side. [Laughter.]
So, with the intricacy of this, do you think that it is
appropriate for a district judge to take something and, without
the facts--as the judge stated here today, he didn't have them.
He is only surmising today that these things existed in a case
that he never saw. He never saw the State case. He simply said,
I have got a bankruptcy judge who made this decision. The case
record included something which, although I understand is not
illegal by any means, as the judge said, but in fact he thought
inappropriate to be considered, reversed a case in bankruptcy.
I go back to the same question for any of the three
panelists, since the red light is blinking: Doesn't this reek
of hubris of a judge who has simply said, ``I have all the
power, I will do what I want to do and let the appellate court
decide if they don't like it later''?
Just a very, very quick response. My initial
reaction, reading that passage in Judge Real's statement, was
to ask, wouldn't it have been easier just to ask the bankruptcy
judge first and wait to get an answer before taking action?
Anyone else, quickly, since we are blinking?
My reaction is to say that what you are
describing might well constitute reversible error. And does it
require an element of hubris? The answer is perhaps. I think it
is important to understand that the Code of Judicial Conduct
talks in terms of judicial demeanor as well. This might,
likewise, be the subject for judicial discipline in appropriate
I get very nervous, however, when we start talking about
impeaching judges because their decisions are inappropriate,
even outrageously inappropriate. That is where I start drawing
the line, for myself.
I have a comment. I disagree--you made a comment
that seemed to say bankruptcy judges aren't constrained by the
rules as much as others. They are.
I think you were the victim of what they call a preference
action, where your own property, undoubtedly belongs to you,
still give it to a trustee; it seems unfair. Yes, it does seem
to be, but this is not the only Federal judge who says, ``I am
the judge, and I will do it, and see if you can reverse me.''
That is what it seemed like.
Thank you, Mr. Issa.
The gentleman from California, Mr. Schiff, is
recognized for his questions.
Professor Hellman, the standard for
impeachment, the power that we have to impeach, is that the
same standard that is applied whether we are impeaching a
Federal judge or impeaching a Member of Congress or impeaching
a president of the United States? Is it the same standard?
The constitutional standard is the same one.
There is only one standard in the Constitution. It says,
``treason, bribery and other high crimes and misdemeanors.''
So if the standard was--whether you are
autocratic or not, we could impeach a lot of our Committee
Present company excluded, of course. He would only be
Might I add just one thing to that, though?
Because I think the term ``high crimes and misdemeanors'' is
misleading if it is read as focusing on criminality in the
There is some useful material on that in Professor Geyh's
statement, because what he points out there is that the framers
distinguished between ordinary crimes, which would be
prosecuted through the courts, and what they called political
offenses--I think that was Hamilton's word--that would be
punished by the legislature through the impeachment process.
And what that looks----
Mr. Hellman, I only have 5 minutes. I am sorry.
But you may be able to get some of that
material in, in the form of my questions.
But what I was interested in was, you made a statement
during your original testimony that there were no allegations
here of criminality or corruption, and that it would be
extraordinary, if not unprecedented, to impeach a judge on the
basis of allegations that did not approach criminality or
It seems to me that, you know, there have been
statements about the judge's judicial temperament. There have
been questions raised about whether the case should have been
withdrawn from bankruptcy.
But the gravamen of the complaint is the ex parte contact.
Without the allegation of an ex parte contact, it may be
reversible error, as Mr. Geyh points out, but it would be even
more extraordinary, in terms of an impeachable case, because
you wouldn't have criminality, you wouldn't have corruption,
which we don't have even if you accept all the allegations as
true. But then you would have nothing, really, more than
judicial temperament and a reversible error.
Isn't the gravamen of the complaint here the ex parte
I agree with you, without the allegation of ex
parte contact, I think you are clearly below the standard, yes.
We don't have the opportunity, I think, here to
really delve into whether the ex parte contact took place or
not. The judge has said it didn't. There are a lot of
questions, Mr. Smyth, I could ask you about that, because part
of the allegations involve your wife, as I understand them. But
in my 2 minutes remaining, we don't have time to do that.
But I did want to ask, and I guess, Professor, you might be
the right--and Mr. Geyh, as well--you have proposed that when
there are substantial allegations, that a special committee--
that the presumption should be a special committee should be
And I guess the one question I would have on that is, here
we have a case where somebody completely removed from the
complaining conduct, Mr. Yagman, is the complainant. So, not a
party to the proceedings, no percipient knowledge, someone who
arguably read about this in the paper and decided this is a way
to file a complaint against this judge, someone who is now, as
I understand, under indictment himself, has the ability to
And I don't know that we want, in circumstances like that,
everyone to be able to initiate a special committee. Would it
be a better remedy, in part, to provide--and I actually had a
statutory fix for this. The Judicial Conference said they
couldn't intervene because no committee had been formed.
Couldn't either the Judicial Conference on its own or the
Congress legislatively change the law, such that, whether a
special committee is created or not, the conference would have
the ability to intervene? Is that a potential remedy?
And first, just to clarify, I am not saying that a special
committee should be formed in the ordinary case, because the
vast majority of cases--of complaints--are plainly without
merit, and I wouldn't want a special committee in those.
But I think what you suggest is a very promising route. For
example, one simple fix that would have taken care of this case
would be to say that any one member of the judicial council can
authorize an appeal to the Judicial Conference. So that would
get it even if there was no special committee. And that would
broaden the availability of a Judicial Conference review.
This goes to the issue----
The gentleman's time has expired, but, without
objection, he is recognized for an additional minute.
Thank you. And I will be briefer than that.
This goes to the point that Mr. Berman was making, which we
are wrestling with in the Congress too, about whether to allow
outside complaints against Members of Congress, as opposed to
only internal complaints.
And, of course, the risk is you get political opponents
making complaints. The risk for a judge is that you get
aggrieved litigants making complaints. And that affects their
independence on the bench in future cases.
Anyway, I appreciate your testimony.
I yield back my time, Mr. Chairman.
Thank you, Mr. Schiff.
I would like to thank all Members for their interest and
for their attendance, and also our witnesses for their
This has all been very, very helpful. Thank you, again.
We stand adjourned.