96 Cal. Daily Op. Ser v. 5485, 96 Daily Journald.a.r. 8970in Re Charge of Judicial Misconduct, 91 F.3d 90 (9th Cir. 1996)

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US Court of Appeals for the Ninth Circuit - 91 F.3d 90 (9th Cir. 1996)

Judicial Council of the Ninth Circuit.

July 24, 1996.

Before: HUG, Chief Judge, SCHROEDER, NOONAN, FERNANDEZ, and T.G. NELSON,1  Circuit Judges, and BYRNE, KEEP, GEORGE,2  and McKIBBEN, District Judges.


On January 19, 1996, a complaint of misconduct was recognized against a district judge of this circuit. Administrative consideration of such complaints is governed by the Rules of the Judicial Council of the Ninth Circuit Governing Complaints of Judicial Misconduct or Disability (Misconduct Rules), issued pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. 28 U.S.C. § 372(c).

A special investigative committee was appointed under 28 U.S.C. § 372(c) (4) and Misconduct Rule 9, and the matter was ultimately referred to the judicial council. The judicial council scheduled a special session to consider the matter and determine what action, if any, should be taken under 28 U.S.C. § 372(c) (6) and Misconduct Rule 14.

Before that meeting could take place, however, the district judge retired from office pursuant to 28 U.S.C. § 371(a).

Because he is no longer a judicial officer, he is no longer subject to the judicial disciplinary procedures of Section 372(c) and the remedies they prescribe. In re Charge of Judicial Misconduct, 782 F.2d 181 (9th Cir.Jud. Council 1986). The district judge's voluntary retirement under Section 371(a) is sufficient to render the charges and related issues moot. In re Complaint of Judicial Misconduct, 10 F.3d 99, 100 (3d Cir.Jud. Council 1993) (retirement moots misconduct proceedings even though the judge continues to collect an annuity for past service).

Believing that the dismissal is within the prudential discretion of the judicial council, Judge Noonan concurs.


FERNANDEZ, Circuit Judge, concurs in the result.


Sitting in place of Judge Trott, who recused


Sitting in place of Judge Kay, who was unavailable to participate in these proceedings