                                                                             FILED
                               FOR PUBLICATION                               MAY 27 2014

                                                                         MOLLY C. DWYER, CLERK
                               JUDICIAL COUNCIL                            U.S. COURT OF APPEALS



                            OF THE NINTH CIRCUIT


IN RE COMPLAINT OF                                No. 12-90155

JUDICIAL MISCONDUCT                               ORDER



KOZINSKI, Chief Judge:

      Complainant alleges that a district judge improperly delegated the judicial

power to a deputy clerk in his civil case. Complainant points to an order to show

cause, which lists a variety of jurisdictional defects, some of which are marked

with a check mark, and others which are not. The form also contains a narrative

explanation of the defect and has “Deputy Clerk” typed in the signature line.

Complainant infers that the order must have been issued by the deputy clerk

without specific directions from the judge.

      “[J]udges can have assistants who are not themselves judges” and those

assistants may “advise and assist the real judge.” Geras v. Lafayette Display

Fixtures, Inc., 742 F.2d 1037, 1046–47 (7th Cir. 1984) (Posner, J., dissenting).

Judges are free to give such assistants specific or general instructions and trust the

assistants to perform the functions they’ve been assigned. For example, it is not an
impermissible delegation of judicial authority for the judge not to draft every word

of an order or not to cite-check his own opinions. The key is that the subordinate

is acting pursuant to instructions from, and under the supervision of, the judge, and

that the judge exercises authority over the substantive disposition of the matters

presented to him.

      The order that the district court employed to help screen out jurisdictional

defects early is not objectionable, even if the deputy clerk exercises some

independent discretion in determining whether there is a likely deficiency. So long

as the form is approved and adopted by the judge, and the deputy clerk is trained

and supervised, the function of detecting possible defects in pleadings is

sufficiently ministerial that it does not implicate the judicial function.

      The clerk here did little more than point out possible problems to the parties,

and give the party who may have committed the transgression an opportunity to

explain why the perceived problem didn’t exist, or correct the problem. The

ultimate decision as to whether the pleading is defective, and what action to take if

the defect is not corrected, was retained by the judge. Even assuming, then, that

the deputy clerk acted on his own in filling out and filing the order to show

cause—and there is no evidence that he did—this does not amount to misconduct.

See 28 U.S.C. § 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(A), (D).


      DISMISSED.
