How Should the Judiciary Respond?

Over the weekend, Bloomberg Law reported that Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals has been charged with misdemeanor battery for his actions in an April 2 altercation with a man in a parking lot in Idaho Falls, Idaho. Judge Nelson has also been charged with malicious injury to property – the “property” being the glasses of the other man, which Judge Nelson allegedly knocked off and stomped on. The altercation apparently began when the other man said (twice) to Judge Nelson: “Learn how to park.”

The Idaho State Journal published video of the incident and also a more detailed account of the episode. A pretrial conference is scheduled for June 18.

In the Judicial Conduct and Disability Act of 1980 (JCDA), Congress established a process for dealing with complaints that a federal judge “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability.” Judge Nelson’s alleged conduct would arguably support a finding of misconduct under the JCDA; it may also implicate the provision dealing with disability. How should the judiciary respond to this report?

Under the Act, complaints against judges may be filed by “any person” and thereafter reviewed by the Chief Judge of the Circuit. But the Chief Judge need not wait for the filing of a complaint before initiating the process. She may “identify” a complaint with the same effect. I have argued that “when reports of possible misconduct have become public, the chief judge should be required to identify a complaint.” This will reassure the public that the judiciary is truly committed to policing misconduct within its ranks. And if the judge is exonerated, the process will help to remove the cloud that would otherwise hang over the judge’s reputation.

So the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint. What next? The law allows Judge Murguia to conduct a “limited inquiry,” but not to “make findings of fact about any matter that is reasonably in dispute.” If there are disputed facts relevant to the complaint, she must appoint a Special Committee similar to the one that recently investigated the allegations against Judge Eleanor Ross of Atlanta.

I’ll skip now to the question: does Judge Nelson’s conduct fall within the statutory definition of misconduct quoted above? After all, in contrast to Judge Ross, all of Judge Nelson’s conduct took place outside the court and was unrelated to his judicial role.

The most extensive discussion of that question in the decisions under the Act is found in a misconduct order issued by Chief Judge Dennis Jacobs of the Second Circuit almost 20 years ago. The proceeding involved an altercation at a campfire on a beach. The principal allegation of the complaint was that the subject judge engaged in misconduct by intentionally striking the complainant without justification and, as a result, was charged with a criminal offense. The similarity to the allegations against Judge Nelson is striking.

Chief Judge Jacobs assumed that extrajudicial conduct could fall within the Act, but after careful analysis (which should be read in full), he concluded that the alleged assault at the beach did not. He summed up by saying that “this was a one-time private dispute between private citizens, one of whom happens to be a judge. At worst, the Judge used physical force to terminate a private confrontation in which the Complainant was using obscenities in the presence of the Judge’s small children.”

As the second quoted sentence indicates, there were mitigating circumstances in the case before Judge Jacobs that appear to have no close counterpart in the episode involving Judge Nelson. But there may be other mitigating circumstances here. Josh Blackman has ascertained that the parking lot adjoins a hospice center; it is possible that something was going on in Judge Nelson’s life that caused him to “snap.”

If this was an isolated episode related to a serious medical concern, that might be reason to conclude that the conduct was not misconduct under the Act. Indeed, if Judge Nelson apologizes to the individual involved (which I hope he will do in any event), the Chief Judge or the Judicial Council might “conclude the proceeding” (as the Act authorizes) upon finding that “appropriate corrective action has been taken.” That would avoid the need to determine whether Judge Nelson’s actions constituted misconduct.

The hospice center setting also raises the possibility that Judge Nelson’s conduct reflects a disability or the effect of medications. That too is something that the Chief Judge and the Judicial Council should investigate and take into account.

On the other side of the ledger, shortly after Judge Nelson’s confirmation in 2018, the Wall Street Journal reported that in the two decades before his appointment, he had compiled an extensive record of traffic citations. “He’s gotten tickets for speeding, disobeying traffic lights and signs, illegal turns, seat-belt violations, not carrying proof of insurance, skipping an auto inspection and not registering his vehicle. He’s been cited on his boat as well.”

If that behavior stopped after his appointment as a judge, it should not preclude a finding that the parking lot altercation was an isolated event in his life. But if it has continued, that would raise questions about whether the altercation reflects a temperament inconsistent with the judicial temperament. And that might even raise questions about his fitness for judicial office, parallel to those that have been raised with respect to Judge Ross. (My own view is that the most serious finding of misconduct by Judge Ross is the one that involves false statements to the judges who were investigating her misconduct. That finding corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. No such conduct has been alleged here.)

But it is far too early to condemn Judge Nelson. The criminal proceeding should take its course; so should the processes under the Judicial Conduct and Disability Act and the rules that the judiciary has promulgated to implement it. When all of those investigations have concluded, there will be time enough to make judgments about Judge Nelson’s future as a federal judge.