                    FOR PUBLICATION

               JUDICIAL COUNCIL
              OF THE NINTH CIRCUIT


 IN RE COMPLAINT OF                         No. 18-90084
 JUDICIAL MISCONDUCT
                                               ORDER

                    Filed October 18, 2018


                            ORDER

THOMAS, Chief Judge:

    Complainant, a paralegal assisting an attorney in a
prisoner civil rights action, has filed a complaint of judicial
misconduct against a district judge. Review of this complaint
is governed by the Rules for Judicial Conduct and Judicial-
Disability Proceedings (“Judicial-Conduct Rules”), the
federal statutes addressing judicial conduct and disability,
28 U.S.C. § 351 et seq., and relevant prior decisions of the
Ninth Circuit Judicial Council. In accordance with these
authorities, the names of complainant and the subject judge
shall not be disclosed in this order. See Judicial-Conduct
Rule 11(g)(2).

     The Judicial Conduct and Disability Act provides a
remedy if a federal judge “has engaged in conduct prejudicial
to the effective and expeditious administration of the business
of the courts.” 28 U.S.C. § 351(a). A chief judge may
dismiss a complaint if, following review, he or she finds that
it is not cognizable under the statute, is directly related to the
2       IN RE COMPLAINT OF JUDICIAL MISCONDUCT

merits of a decision or procedural ruling, or is frivolous or
lacks sufficient evidence to raise an inference of misconduct.
See 28 U.S.C. § 352(b)(1)(A)(i)–(iii). Judicial misconduct
proceedings are not a substitute for the normal appellate
review process, and may not be used to seek reversal of a
judge’s decision, to obtain a new trial, or to request
reassignment to a different judge.

     Complainant states that he is a former prisoner whose
parole conditions prohibit him from having contact with other
felons, but that there is an exception for contact that is
directly related to his employment. Complainant further
alleges that he gained approval from his parole officer to
participate as a legal assistant in the underlying civil rights
trial. According to complainant, during a jury recess on the
second day of trial, a U.S. Marshal informed the judge that
complainant is an ex-felon on parole, and that complainant
may have violated his parole terms by having contact with the
plaintiff in the underlying case. Complainant alleges that the
judge “went on a tirade” about complainant’s ex-felon status,
refused to acknowledge complainant or counsel’s explanation
that contact with other felons was permitted for employment
purposes, and that the judge ordered complainant to exit the
courthouse.

    Pursuant to a limited inquiry under Judicial-Conduct Rule
11(b), the subject judge was asked to respond to
complainant’s allegations. According to the judge, during a
lunch break, the Marshal informed him that a correctional
officer escorting the plaintiff recognized complainant as a
convicted felon on parole who was prohibited from having
contact with other felons. The Marshal also advised the judge
that he telephoned a sergeant at the parole office, who told the
Marshal that associating with a known felon would violate
        IN RE COMPLAINT OF JUDICIAL MISCONDUCT                3

complainant’s parole conditions, and that complainant needed
to report to his parole officer immediately. The judge asked
the Marshal to repeat this information in open court, outside
the presence of the jury, and allowed counsel an opportunity
to respond. Ultimately, the judge ordered complainant to
vacate the courtroom and building, noting that the judge had
not been informed previously of complainant’s parole status,
that complainant had been sitting immediately next to the
plaintiff (who was in leg restraints due to security concerns),
and that it was a violation of the judge’s courtroom standards
to allow a convicted felon to confer confidentially with an in-
custody plaintiff during trial.

     The relevant hearing transcript has also been reviewed as
part of a limited inquiry. The transcript shows the following:
the subject judge was not advised of complainant’s felony
conviction or parole status until after trial had commenced;
complainant had been seated immediately next to the in-
custody plaintiff and conferring with him confidentially
during the proceedings; there were security concerns at the
trial, requiring the plaintiff to be restrained; the judge was
informed—accurately or not—that complainant may have
violated his parole conditions by associating with a felon; and
according to the judge’s on-record statements, it violated his
courtroom standards to have a convicted felon conferring
directly with an incarcerated and restrained plaintiff.

    A restriction on persons attending a public criminal trial
can present serious issues. The “right to attend criminal trials
is implicit in the guarantees of the First Amendment.”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580
(1980). Further, removal of anyone during a criminal trial
without just cause, particularly an individual purportedly
assisting a defendant, can also be problematic and pose due
4       IN RE COMPLAINT OF JUDICIAL MISCONDUCT

process concerns. See, e.g., United States v. Elder, 309 F.3d
519, 520 (9th Cir. 2002). However, “judges are allowed great
latitude in decisions about courtroom security,” In re
Complaint of Judicial Misconduct, No. 16-90139 (9th Cir.
Jud. Council May 9, 2017). See also Chambers v. NASCO,
Inc., 501 U.S. 32, 43 (1991) (“Courts of justice are
universally acknowledged to be vested, by their very creation,
with power to impose silence, respect, and decorum, in their
presence, and submission to their lawful mandates . . . . These
powers are governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as
to achieve the orderly and expeditious disposition of cases”)
(internal quotations omitted); U.S. v. W.R. Grace, 526 F.3d
499, 509 (9th Cir. 2008) (“judges exercise substantial
discretion over what happens inside the courtroom . . . . We
have accepted that all federal courts are vested with inherent
powers enabling them to manage their cases and courtrooms
effectively”) (internal quotations omitted).

    As always, in assessing these matters, context is
important. Here, the judge had to make a quick security
decision about a matter that was brought to the judge’s
attention by the U.S. Marshal Service during a jury recess. If
the judge had been fully informed before trial of
complainant’s circumstances, his decision may well have
been different, and the judge acknowledges that other judges
may have come to a different conclusion. It also appears that
a mis-communication, combined with the late disclosure of
complainant’s parole status, may have contributed to
complainant’s removal. Based on the information available
to the judge at the time, the circumstances and timing of its
disclosure, and the time constraints imposed by the trial, it
cannot be said that the judge’s conduct was “prejudicial to the
effective and expeditious administration of the business of the
       IN RE COMPLAINT OF JUDICIAL MISCONDUCT               5

courts.” 28 U.S.C. § 351(a). Moreover, a review of the
underlying record shows that the judge did not treat
complainant or counsel in a “demonstrably egregious and
hostile manner.” Judicial-Conduct Rule 3(h)(1)(D); see also
In re Complaint of Judicial Misconduct, 761 F.3d 1097, 1099
(9th Cir. Jud. Council 2014) (“Misconduct includes treating
litigants or attorneys in a demonstrably egregious and hostile
manner. The comments here do not meet that standard. The
judge did not use demeaning language or heap abuse on
anybody”) (internal quotations omitted). Accordingly, these
allegations must be dismissed.              See 28 U.S.C.
§ 352(b)(1)(A)(iii), (b)(1)(B); In re Complaint of Judicial
Misconduct, 726 F.3d 1060, 1062 (9th Cir. Jud. Council
2013); Judicial-Conduct Rule 11(c)(1)(A), (D).

    To the extent complainant requests clarification on
whether he is permitted to re-enter the federal courthouse,
this question must be addressed to the subject judge, as such
relief is not available in these misconduct proceedings. See
28 U.S.C. § 354(a)(2); Judicial-Conduct Rule 11(a).

   DISMISSED.
