Kozinski Investigation Ends, Further Repercussions Unlikely

By Melissa Heelan Stanzione

The investigation into Ninth Circuit Judge Alex Kozinski’s alleged misconduct was officially terminated by the Judicial Council of the Second Circuit Feb. 5.

The council’s action will most likely be the last action taken in the case—either by an individual or by public officials—according to judicial ethics professor Charles Gardner Geyh.

Because Kozinski resigned, the Judicial Conduct and Disability Act of 1980, which authorized the investigation, no longer applies to him, the council said.

At least 15 women, including some former law clerks, accused him of groping them, showing them pornography, or making off-color comments.

Kozinski is still entitled to his full retirement pay, Geyh told Bloomberg Law in a Feb. 6 email.

Nevertheless, just because Kozinski might avoid any further disciplinary action, it doesn’t mean that he’s “effectively unaccountable for his misconduct,” Geyh said.

“He quit to avoid being fired. He lost his job and his legacy. His career is over. He will be remembered as a judge who resigned in disgrace,” he said.

Whether or not this is enough is up for debate but “but for someone of Kozinski’s stature, it is something,” Geyh said.

Tort Remedies Unlikely

Tort remedies are “presumably” available to any law clerk wishing to sue Kozinski but it’s not clear which ones apply to the situation, Geyh said.

Geyh teaches and writes in the areas of judicial conduct, ethics, and procedure at Indiana University Bloomington’s Maurer School of Law.

Battery is a possibility but only if there was non-consensual touching, Geyh said.

And it could be that the statute of limitations has run on many of the claims, he said.

The allegations go as far back as the 1980s.

Kozinski announced his immediate retirement Dec. 18. Kozinski said in a statement that it was never his intent to make his clerks feel uncomfortable, and apologized for doing so.

“I’ve always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike. In doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace,” the statement said.

Kozinski said he’s retiring because he can’t be an effective judge and simultaneously “fight this battle,” according to the statement.

No Impeachment Expected

Congress exercises oversight over the judiciary and disciplinary process, but the chances that Congress would pursue impeachment are “essentially nil,” Geyh said.

Congress has impeached only eight judges since 1804.

Ninth Circuit Chief Judge Sidney Thomas filed a complaint Dec. 14 against Kozinski in light of allegations of sexual misconduct.

U.S. Supreme Court Chief Justice John G. Roberts Jr. transferred the complaint to the Second Circuit Judicial Council Dec. 15.

Roberts also ordered the formation of a workplace conduct working group in his 2017 end-of-year report.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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