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29–969 PDF








H. Res. 916

SEPTEMBER 21, 2006
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Serial No. 109–141

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
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PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Courts, the Internet, and Intellectual Property

LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
DARRELL ISSA, California

HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
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ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

SHANNA WINTERS, Minority Counsel


SEPTEMBER 21, 2006

    The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property

    The Honorable Howard L. Berman, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property


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Panel One:

The Honorable Manuel L. Real, United States District Judge for the Central District of California
Oral Testimony
Prepared Statement

Panel Two:

Mr. Arthur D. Hellman, Professor of Law, Pittsburgh School of Law
Oral Testimony
Prepared Statement

Mr. Andrew E. Smyth, Attorney, Los Angeles, California
Oral Testimony
Prepared Statement

Mr. Charles G. Geyh, Professor of Law, Indiana University School of Law
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Howard L. Berman, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
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    Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Member, Subcommittee on Courts, the Internet, and Intellectual Property

    Letter to the Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property, and the Honorable Howard Berman, a Representative in Congress from the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property, from Gary Canter of Los Angeles, California



House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 9:24 a.m., in Room 2141, Rayburn House Office Building, the Honorable Lamar Smith (Chairman of the Subcommittee) presiding.
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    Mr. SMITH. 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 today.

    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 misdemeanors.

    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.
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    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 judge. 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 1980.

    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.
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    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 proceedings?

    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 Committee.

    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.
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    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 this hearing.

    That concludes my opening statement. And the gentleman from California, Mr. Berman, is recognized for his.

    Mr. BERMAN. 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.
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    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 deems necessary.

    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 committee review.

    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.
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    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 done.''

    Thank you, Mr. Chairman.

    Mr. SMITH. 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.

    [Witness sworn.]

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    Mr. SMITH. 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 California.

    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 Angeles.

    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.


    Judge REAL. Thank you, Mr. Chairman and Members of the Committee.

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    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 case.

    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 investigation.
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    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 time.

    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 complaint.

    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 officer.
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    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 probation officer.

    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 2000.

    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.
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    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.
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    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 action.

    In Judge Kozinski's dissent, he goes into great length to try to prove that I did receive an improper communication from Ms. Canter. 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.

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    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.

    [The prepared statement of Judge Real follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. SMITH. 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?

    Judge REAL. Twice at two 120-day meetings.

    Mr. SMITH. Right. And what about in open court?

    Judge REAL. I had not met her in open court at that time.

    Oh, I am sorry. In her criminal case?
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    Mr. SMITH. Right. I am talking about——

    Judge REAL. At the time of her plea and at the time of her sentence.

    Mr. SMITH. Right. And in the previous charges against her, how many times had she been in your court then?

    Judge REAL. Only for her plea of ''not guilty,'' her plea of ''guilty,'' and the sentence.

    Mr. SMITH. So three times in court and then twice in your chambers during the probationary meetings.

    Judge REAL. With her probation officer.

    Mr. SMITH. That is correct, and I am not implying otherwise.

    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?

    Judge REAL. 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.

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    Mr. SMITH. Right. But during those five meetings where you got to know her, did you feel protective of her in any way?

    Judge REAL. No. No more than any other probation candidate that I have had.

    Mr. SMITH. 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?

    Judge REAL. I did——

    Mr. SMALTZ. I am going to object to your question, Mr. Chairman. 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——

    Mr. SMITH. 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 that description.

    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 her future.

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    Judge REAL. No different than any other probationer that I had.

    Mr. SMITH. 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 well-being?

    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?

    Judge REAL. 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——

    Mr. SMITH. 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.

    Judge REAL. Well, I don't believe so——

    Mr. SMITH. Okay.
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    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.

    Mr. SMITH. Right. And, again, because of those prior contacts, it did not occur to you to possibly consider recusing yourself?

    Judge REAL. Not at that point, no.

    Mr. SMITH. Okay.

    Judge REAL. I did later.

    Mr. SMITH. 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?

    Judge REAL. 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.
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    Mr. SMITH. Okay. And you were not aware that she was occupying the house rent-free?

    Judge REAL. I did not know how she was occupying—I knew she was occupying the house, but not how.

    Mr. SMITH. Okay. And my last question——

    Judge REAL. She claimed some right of possession to the house.

    Mr. SMITH. Right, which was subsequently found not to be substantial, but——

    Judge REAL. Somewhat later. Much later.

    Mr. SMITH. 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 explanation?

    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 explanation?

    Judge REAL. Mr. Smith, I never made a decision to deprive the owner of his property. I never made that decision.
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    Mr. SMITH. Okay. Thank you, Judge Real.

    The gentleman from California, Mr. Berman, is recognized for his questions.

    Mr. BERMAN. 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?

    Judge REAL. 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.

    Mr. BERMAN. 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.
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    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?

    Judge REAL. 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.

    Mr. BERMAN. 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?

    Judge REAL. That was my opinion then and my opinion now.

    Mr. BERMAN. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Berman.

    The gentleman from California, Mr. Issa, is recognized for his questions.

    Mr. ISSA. Thank you, Mr. Chairman.
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    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 law?

    Judge REAL. The use of the probation report, which is my function as a United States district judge.

    Mr. ISSA. 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?

    Judge REAL. 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——

    Mr. ISSA. Right, but they are not your magistrates. They have separate authority and routinely conclude the case without the intervention of the district judge.

    Judge REAL. Well, they do because we refer—we refer—those cases to them.
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    Mr. ISSA. Right, but it hadn't been your case. It hadn't started——

    Judge REAL. No, it had not been my case, no.

    Mr. ISSA. 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 otherwise?

    Judge REAL. That was my opinion.

    Mr. ISSA. 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?
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    Judge REAL. 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——

    Mr. ISSA. Well, no, had she been placed there or had she not yet been removed?

    Judge REAL.—and the husband was ordered to pay support for her and her daughter. And——

    Mr. ISSA. 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?

    Judge REAL. 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.
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    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.

    Mr. ISSA. 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 time later.

    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 much?

    Judge REAL. 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 of appeals.

    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-law.
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    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. ISSA. Mr. Chairman, will there be a second round?

    Mr. SMITH. The gentleman's time has expired, and we do not expect a second round.

    Mr. ISSA. Can I just leave with one question?

    Mr. SMITH. The gentleman is recognized for an additional minute.

    Mr. ISSA. 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 today?

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    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 here today?

    Thank you, Mr. Chairman.

    Mr. SMITH. Okay. Thank you, Mr. Issa.

    The gentleman from California, Mr. Schiff, is recognized for questions.

    Mr. SCHIFF. Thanks, Chairman.

    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.
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    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 recommendation.

    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 extraordinary.

    Judge REAL. 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.

    Mr. SCHIFF. But how would he get a copy of the pre-sentence report?

    Judge REAL. We never learned that. We have never learned that.

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    Mr. SCHIFF. Well, and I don't know if you can comment on this——

    Judge REAL. It was not given to him by his wife.

    Mr. SCHIFF. 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?

    Judge REAL. 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.

    Mr. SCHIFF. 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.

    Judge REAL. That was the motion for judicial notice, and that was it, basically. There were some other things but nothing of any substance.

    Mr. SCHIFF. 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?
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    Judge REAL. 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.

    Mr. SCHIFF. 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——

    Judge REAL. 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 report.

    Mr. SMITH. The gentleman's time has expired.

    Mr. SCHIFF. Mr. Chairman, may I have an additional minute, as well?
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    Mr. SMITH. Without objection, the gentleman is recognized for one more minute.

    Mr. SCHIFF. I just wanted to comment on the five appearances that this defendant had in your courtroom. Three were during plea——

    Judge REAL. She is at a lectern, and I am on the bench.

    Mr. SCHIFF. In terms of those three in-the-courtroom proceedings, those are proceedings where she is required to be present and so are you.

    Judge REAL. Yes.

    Mr. SCHIFF. So if you weren't present, that would be a problem.

    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——

    Judge REAL. Thousands of them that I have had over the 35 years that I have been doing that program.
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    Mr. SCHIFF. 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?

    Judge REAL. In the presence of the probation officer, yes.

    Mr. SCHIFF. So you never had any meetings with her outside of the presence of the public in the courtroom or the probation officer?

    Judge REAL. Never.

    Mr. SCHIFF. And no phone conversations with her?

    Judge REAL. 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.

    Mr. SCHIFF. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Schiff.

    The gentleman from Utah, Mr. Cannon, is recognized for his questions.

    Mr. CANNON. Thank you, Mr. Chairman.

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    How many other judges do this kind of 120-day program?

    Judge REAL. On our court, none.

    Mr. CANNON. Do you know of other judges around the country that do that?

    Judge REAL. 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.

    Mr. CANNON. I think that is a remarkably good concept and one that takes an extraordinary amount of your time. And I appreciate that.

    Does it work?

    Judge REAL. 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.

    Mr. CANNON. 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?

    Judge REAL. Thank you.

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    Mr. CANNON. I am not sure that is actually—you know, it is a clear quality, at least from what I understand.

    Is Ms. Canter attractive?

    Judge REAL. You are asking me, and——

    Mr. CANNON. Yes. Do you recall her?

    Judge REAL. I recall her. And if you want just a frank answer, she is not attractive to me.

    Mr. CANNON. 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.

    Judge REAL. Yes.

    Mr. CANNON. And your reaction to that filing was also angry, was it not?

    Judge REAL. Absolutely.

    Mr. CANNON. Well, can you describe that a little bit?
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    Judge REAL. 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 court.

    Mr. CANNON. 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.

    Judge REAL. Well, I think it was. I think a little bit of it was that I did not want to embarrass the bankruptcy judge.

    Mr. CANNON. How could he have been embarrassed? Somebody filed something in his court, why would he be——

    Judge REAL. Well, no, by my going to him and saying, you know, ''You can't do this kind of thing''——

    Mr. CANNON. Well, but he didn't do anything. Somebody filed that in his case.

    Judge REAL. Well, somebody filed it, but he made the order withdrawing the stay based, at least in my view, based upon——

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    Mr. CANNON. And how was your view informed?

    Judge REAL. How was it informed?

    Mr. CANNON. Yes, why did you——

    Judge REAL. I saw the bankruptcy file and saw that the report was part of a motion for judicial notice of this document.

    Mr. CANNON. Right. And the bankruptcy judge then removed the stay.

    Judge REAL. Yes.

    Mr. CANNON. Did he refer to the pre-sentence report?

    Judge REAL. He made no—no, bankruptcy judges don't make any reference to anything——

    Mr. CANNON. Right. They are awfully busy.

    Judge REAL. They are awfully busy, and they just——

    Mr. CANNON. In fact, he may not have even looked at that pre-sentence report.
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    Judge REAL. He may not have. He may not have.

    Mr. CANNON. But it was the violation of what you thought of as protocol, the rules of the court——

    Judge REAL. Yes.

    Mr. CANNON.—that enraged you and caused you to look at the file and then remove the judge from the case and take over the case yourself.

    Judge REAL. Well, I didn't remove him from the case. I withdrew the case to my court.

    Mr. CANNON. Your court. And that led to some nasty allegations. There are a lot of people that dislike you, I take it.

    Judge REAL. No, I don't think there are a lot of people that dislike me. There are a few.

    Mr. CANNON. 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?

    Judge REAL. Yes. I do remember——
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    Mr. CANNON. Do you recall what your response to him was?

    Judge REAL.—that, very well.

    Mr. CANNON. What was your response to him?

    Judge REAL. My response to him was that he was wrong. And I thought he was wrong at the time——

    Mr. CANNON. Did you give him a rationale for why he was wrong, or did you just——

    Judge REAL. I believe I——

    Mr. CANNON.—order him to do something?

    Judge REAL. 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——

    Mr. CANNON. Would you characterize that conversation as relatively arbitrary, on your part, or as friendly and rational?

    Judge REAL. 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.
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    Mr. CANNON. Thank you, Mr. Chairman. I see my time has expired.

    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?

    Mr. SMITH. The gentleman's time has expired, but he is recognized, without objection, for an additional minute.

    Mr. CANNON. 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.

    Mr. SMITH. Thank you, Mr. Cannon.

    The gentlewoman from California, Ms. Waters, is recognized for her questions.

    Ms. WATERS. Thank you very much, Mr. Chairman.
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    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 pending.

    There was one closed hearing, I am told. Is that correct? In Pasadena?

    Judge REAL. There was one, yes.

    Ms. WATERS. And there will be another one. Is that right?

    Judge REAL. I believe so.

    Ms. WATERS. Do you disadvantage yourself at all by being here today?

    Judge REAL. I beg your pardon?

    Ms. WATERS. 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?
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    Judge REAL. I came by invitation, Ms. Waters. And I felt that it was more than just an invitation.

    Ms. WATERS. 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?

    Judge REAL. I would rather not answer that question, Ms. Waters.

    Ms. WATERS. All right. Thank you. I have no further questions.

    Mr. SMITH. Okay. Thank you, Ms. Waters.

    The gentlewoman from California, Ms. Lofgren, is recognized for her questions.

    Ms. LOFGREN. 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.
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    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 to you.

    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.
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    So, with that, I would yield back the balance of my time.

    Mr. SMITH. Does the gentlewoman yield back?

    Ms. LOFGREN. I do.

    Mr. SMITH. Thank you, Ms. Lofgren, for your questions.

    That concludes the questions by the Members of this panel, Judge Real. And we thank you for appearing, and we thank you for your responses today.

    Judge REAL. Thank you, Mr. Chairman.

    Mr. SMITH. Would our next witnesses please come forward and remain standing? And I will swear you all in.

    [Witnesses sworn.]

    Thank you, and please be seated.

    Mr. SMITH. 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.
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    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 Wisconsin.

    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.


    Mr. HELLMAN. Thank you, Mr. Chairman.
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    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 judges.

    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 two questions.

    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?

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    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 full Committee?

    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.
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    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 attention.

    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.
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    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 Judge Real.

    Thank you, Mr. Chairman.

    [The prepared statement of Mr. Hellman follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. SMITH. Okay, thank you, Professor Hellman.

    Mr. Smyth.


    Mr. SMYTH. 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.
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    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.
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    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 wanted.

    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 possession.

    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 back in.

    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 time.''

    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.
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    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 judge. I said, ''I don't have any idea. I am as mystified as you.''

    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.
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    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:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. SMITH. Okay. Thank you, Mr. Smyth.

    Professor Geyh.


    Mr. GEYH. 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.
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    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.

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    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 process.

    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 idiosyncratically.

    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.

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    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 to do.

    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 regular basis.

    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.
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    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.

    [The prepared statement of Mr. Geyh follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. SMITH. 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.''
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    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 of it?

    Mr. HELLMAN. 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 statement.

    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.

    Mr. SMITH. 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?
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    Mr. HELLMAN. 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.

    Mr. SMITH. Okay. And, Mr. Smyth?

    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.

    Mr. SMITH. 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?

    Mr. HELLMAN. 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 interest here.

    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.

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    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 Court.

    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 anyway.

    Mr. SMITH. 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.

    Mr. SMYTH. 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.
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    But it is hard to say——

    Mr. SMITH. How did the judge indicate to the jury what side he was on?

    Mr. SMYTH. 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 appearing there.

    Mr. SMITH. Okay. Thank you, Mr. Smyth.

    The gentleman from California, Mr. Berman, is recognized for his questions.

    Mr. BERMAN. 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.
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    But, first, I just want to—Mr. Smyth, you stated as a, sort of, a factual certainty the receipt of a letter.

    Mr. SMYTH. 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——

    Mr. BERMAN. No, no. I heard you. You——

    Mr. SMYTH. Oh, no.

    Mr. BERMAN. 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.

    Mr. SMYTH. No, no.

    Mr. BERMAN. 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?

    Mr. SMYTH. 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——

    Mr. BERMAN. Okay. All right. Then you are saying I misunderstood your references to——
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    Mr. SMYTH. 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.

    Mr. BERMAN. 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?

    Mr. HELLMAN. 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.

    Mr. BERMAN. 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.
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    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.

    Mr. HELLMAN. 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——

    Mr. BERMAN. 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.
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    Mr. HELLMAN. 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 special committee.

    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 committee. But——

    Mr. BERMAN. Mr. Chairman, may I have one additional minute?

    Mr. SMITH. The gentleman's time has expired. Without objection, he is recognized for an additional minute.

    Mr. BERMAN. 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?

    Mr. GEYH. 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 Committee.
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    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 business.

    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.

    Mr. SMITH. Okay. Thank you, Mr. Berman.

    The gentleman from California, Mr. Gallegly, is recognized for questions.

    Mr. GALLEGLY. 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.
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    I did find it very interesting—is it ''Smith'' or ''Smythe''?

    Mr. SMYTH. ''Smith'' with a ''Y,'' your honor—pardon me, Mr. Gallegly.

    Mr. GALLEGLY. 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.

    Mr. SMYTH. 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.

    Mr. GALLEGLY. Well, let me ask you this. Have you had any experience or any opinion of Stephen Yagman?

    Mr. SMYTH. 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.

    Mr. GALLEGLY. And what would those opinions be?
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    Mr. SMYTH. 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 self-promoter.

    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.

    Mr. GALLEGLY. Does he have a reputation of bringing lawsuits against cities and counties for the conduct of their police officers?

    Mr. SMYTH. Yes.

    Mr. GALLEGLY. Thank you very much, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Gallegly.

    The gentlewoman from California, Ms. Waters, is recognized for questions.

    Ms. WATERS. 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.
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    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 not credible.

    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 justice. 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.

    Mr. GEYH. It is possible for the chief judge to dismiss complaints as frivolous, and a significant percentage of them are.

    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.

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    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.

    Ms. WATERS. 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 United States.

    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.

    Mr. GEYH. 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 made.
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    Mr. HELLMAN. 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 other direction.

    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 maliciousness.

    Ms. WATERS. Well——

    Mr. SMITH. Thank you, Ms. Waters. Your time has expired.

    Ms. WATERS. Thank you.

    Mr. SMITH. Thank you.

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    The gentleman from California, Mr. Issa, is recognized for his questions.

    Mr. ISSA. 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 screwed.

    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 it.

    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 information.

    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.
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    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 impeachable?

    Mr. HELLMAN. 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.

    Mr. ISSA. Apparently that is because you are not just any district judge, who, by definition, is a bankruptcy judge and has primary authority.

    Mr. HELLMAN. 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.
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    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——

    Mr. ISSA. 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.

    Mr. HELLMAN. Well, but——

    Mr. BERMAN. Will the gentleman yield?

    Mr. ISSA. Of course.

    Mr. BERMAN. 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 judges.

    Mr. ISSA. 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.
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    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''?

    Mr. HELLMAN. 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?

    Mr. ISSA. Anyone else, quickly, since we are blinking?

    Mr. GEYH. 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 cases.

    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.

    Mr. SMYTH. 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.

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    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.

    Mr. SMITH. Thank you, Mr. Issa.

    Mr. ISSA. Thank you.

    Mr. SMITH. The gentleman from California, Mr. Schiff, is recognized for his questions.

    Mr. SCHIFF. 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?

    Mr. HELLMAN. 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.''

    Mr. SCHIFF. So if the standard was—whether you are autocratic or not, we could impeach a lot of our Committee Chairmen. [Laughter.]

    Present company excluded, of course. He would only be censured. [Laughter.]
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    But others——

    Mr. HELLMAN. 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 ordinary sense.

    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. SCHIFF. Mr. Hellman, I only have 5 minutes. I am sorry.

    Mr. HELLMAN. Sure.

    Mr. SCHIFF. 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 corruption.

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    Mr. HELLMAN. Correct.

    Mr. SCHIFF. 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 contact?

    Mr. HELLMAN. I agree with you, without the allegation of ex parte contact, I think you are clearly below the standard, yes.

    Mr. SCHIFF. 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 formed.
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    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 initiate this.

    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?

    Mr. HELLMAN. Yes.

    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.
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    Mr. SCHIFF. This goes to the issue——

    Mr. SMITH. The gentleman's time has expired, but, without objection, he is recognized for an additional minute.

    Mr. SCHIFF. 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.

    Mr. SMITH. Thank you, Mr. Schiff.

    I would like to thank all Members for their interest and for their attendance, and also our witnesses for their testimony today.

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    This has all been very, very helpful. Thank you, again.

    We stand adjourned.

    [Whereupon, at 11:15 p.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record


    Mr. Chairman,

    One of the primary responsibilities of the Subcommittee is to work to insure that our judicial branch maintains its independence. Therefore, while there 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 Ninth 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, and 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 thirteen federal circuits that would be responsible for the review of complaints against federal judges and it empowers the Councils 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 deems necessary. 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.
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    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 committee review. In May, the Ninth 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.

    I think we should have held off on this hearing in order to allow the special committee to perform its job.



    The abuse of judicial authority is troublesome and dangerous not only to the parties it affects, but to the very stature of the judiciary.

    However, impeachment of a federal judge for noncriminal activity deserves the closest of scrutiny and a fair process. I don't believe this resolution meets either of those demands.
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    First, this resolution is premature. A Special Committee of the Ninth Circuit is currently investigating the charges against Judge Real. That committee was lawfully appointed pursuant to statute, has subpoena authority, and will issue a full report with recommendations. The Committee most recently conducted closed-door hearings in August.

    There is no reason to intervene in the current process. This committee passed the Judicial Improvement Act of 2002—affirming this process—on a voice vote, with vocal support from both sides of the aisle. It is completely improper for the committee to now intervene because it simply does not like the results of that process or because it thinks it is moving too slowly.

    Second, the Resolution rushes to judgment on the factual issues when the Chief Judge of the Ninth Circuit has twice dismissed the complaint against Judge Real. Truly, a matter of such import should not be conducted in an ad hoc and rushed fashion. Impeachment of a federal judge for noncriminal activity is exceedingly rare, as it should be, and must be afforded all the protections and procedures of regular order.

    I respect the Chairman's concerns with enforcing judicial discipline, but we actually discourage the Judiciary from policing itself when we intervene to mandate Congressionally preferred results. Truly, what will be the incentive to pass judgment on one another when Congress will substitute its own judgment at will?

    That being said, I look forward to hearing the various factual accounts from our witnesses today and discussing the rigid standards of impeachment that exist in this arena.
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