I am happy to pass along this guest post from Professor Arthur Hellman about Judge Nelson's case:
On Tuesday, the New York Times and NPR published reports on what the Times called the "parking lot confrontation" involving Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals. Bloomberg Law has published a more in-depth account. These stories followed in the wake of the initial report the preceding Friday in the Idaho State Journal. In a guest post on Sunday evening, I explained how Judge Nelson's actions might lead to an investigation of possible judicial misconduct under the Judicial Conduct and Disability Act of 1980 (JCDA or Act). The Act defines misconduct as "conduct prejudicial to the effective and expeditious administration of the business of the courts." I won't repeat that discussion here, but some of it has been overtaken by later developments, and it will be useful to report on those.
The basic facts can be quickly stated. The "confrontation" took place in a parking lot in Idaho Falls, Idaho, on April 2. It appears to have begun when another man (who has not thus far been publicly identified) said (twice) to Judge Nelson: "Learn how to park." A video published by the Idaho State Journal shows Judge Nelson apparently knocking off the man's glasses, running after him, and then stomping on the glasses. Judge Nelson has now been charged with misdemeanor battery and malicious injury to property, also a misdemeanor.
In the Sunday evening post, I said that "the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint" against Judge Nelson and thereby initiate the investigatory process under the Act. That has now happened. On Monday, Judge Murguia issued an order identifying a complaint based on media reports about Judge Nelson's conduct and her own "limited inquiry of currently available information."
Ordinarily, judicial misconduct proceedings are confidential until the proceedings have concluded. That is what happened in the proceeding involving Atlanta District Judge Eleanor Ross; the public knew nothing about the investigation until the reviewing committee of the Judicial Conference of the United States issued its final order affirming the private reprimand issued by the Eleventh Circuit Judicial Council. But a provision in the Rules for Judicial-Conduct and Disability Proceedings (JC&D Rules), initially adopted in 2008, allows the chief judge to "disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary's ability to redress misconduct or disability."
Judge Murguia relied on this provision as authorizing immediate disclosure of her Monday order. But she made clear that there will be no further interim disclosures: "All subsequent misconduct proceedings will be confidential pursuant to [the statute and the Rules]." Unless something unexpected happens, we will have to wait until final disposition to know what steps she and the Judicial Council of the Circuit have taken to resolve the complaint.
I have suggested elsewhere (pp. 371-74) that this disclosure provision appears to conflict with the confidentiality requirement of the statute. But as long as the Judiciary is willing to make some interim orders public, there is no reason why it should not disclose certain others. Here, for example, Judge Murguia may request that the Chief Justice transfer the proceeding to another circuit. If that request is granted, it would be appropriate, in my view, to make public the order of transfer.
Judge Murguia took pains to note that all of the information that prompted her order "was only very recently received." Given that the criminal charges were filed on April 22 (according to the Idaho State Journal), it is fair to conclude that Judge Nelson did not convey the information to the Chief Judge before she learned of it from the media reports.
It would have been prudent as well as courteous for Judge Nelson to have "self-reported" the episode early on. That would have enabled Chief Judge Murguia to carry out an informal inquiry, without necessarily identifying a complaint, before public scrutiny began.
Late Sunday evening, David Lat discussed the episode on his "Original Jurisdiction" Substack blog. He reported that he had reached out to Judge Nelson for comment and had received a statement from Judge Nelson's counsel. That statement read: "Mr. Nelson is embarrassed by this incident. It is out of character and does not represent how he behaves. Immediately afterwards, Mr. Nelson reached out and offered an apology and full compensation for the sunglasses. He intends to work through the proper process."
So Judge Nelson has not only offered an apology; he has also offered full compensation. Judge Murguia could well find that these actions constituted "voluntary corrective action." If so, the Act and the Rules permit her to "conclude the proceeding" without the need to determine whether Judge Nelson engaged in misconduct. That is an established practice, and I believe it is fully consistent with the forward-looking perspective of the Act.
One caveat: Judge Murguia would probably not take that course unless she had some confidence that the parking lot altercation was an isolated episode and did not reflect a pattern of behavior that might constitute misconduct. In that regard, David Lat reported that two former clerks had contacted him to say that the conduct seen in the video does not reflect the person they had come to know.
To be sure, that is not conclusive. Former Second Circuit Chief Judge Dennis Jacobs, whose analysis of a similar episode I quoted in my prior post, also said that the ultimate question is whether the judge's extrajudicial behavior "create[s] in reasonable minds a perception that the Judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (Emphasis added.) That is the question that Chief Judge Murguia will have to address in the first instance, taking into account the apology that Judge Nelson has already offered.
