    [House Hearing, 109 Congress]
    [From the U.S. Government Publishing Office]

    IMPEACHING MANUEL L. REAL, A JUDGE OF THE UNITED STATES DISTRICT COURT
          FOR THE CENTRAL DISTRICT OF CALIFORNIA, FOR HIGH CRIMES AND
                                  MISDEMEANORS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON COURTS, THE INTERNET,
                           AND INTELLECTUAL PROPERTY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED NINTH CONGRESS

                                 SECOND SESSION

                                       ON

                                  H. Res. 916

                                   __________

                               SEPTEMBER 21, 2006

                                   __________

                               Serial No. 109-141

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                                     ______

                        U.S. GOVERNMENT PRINTING OFFICE
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                           COMMITTEE ON THE JUDICIARY

                F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
    HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
    HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
    LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
    ELTON GALLEGLY, California           JERROLD NADLER, New York
    BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
    STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
    DANIEL E. LUNGREN, California        ZOE LOFGREN, California
    WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
    CHRIS CANNON, Utah                   MAXINE WATERS, California
    SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
    BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
    JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
    MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
    RIC KELLER, Florida                  ADAM B. SCHIFF, California
    DARRELL ISSA, California             LINDA T. SANCHEZ, California
    JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
    MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
    J. RANDY FORBES, Virginia
    STEVE KING, Iowa
    TOM FEENEY, Florida
    TRENT FRANKS, Arizona
    LOUIE GOHMERT, Texas

                 Philip G. Kiko, General Counsel-Chief of Staff
                   Perry H. Apelbaum, Minority Chief Counsel
                                     ------

        Subcommittee on Courts, the Internet, and Intellectual Property

                          LAMAR SMITH, Texas, Chairman

    HENRY J. HYDE, Illinois              HOWARD L. BERMAN, California
    ELTON GALLEGLY, California           JOHN CONYERS, Jr., Michigan
    BOB GOODLATTE, Virginia              RICK BOUCHER, Virginia
    WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
    SPENCER BACHUS, Alabama              MAXINE WATERS, California
    BOB INGLIS, South Carolina           MARTIN T. MEEHAN, Massachusetts
    RIC KELLER, Florida                  ROBERT WEXLER, Florida
    DARRELL ISSA, California             ANTHONY D. WEINER, New York
    CHRIS CANNON, Utah                   ADAM B. SCHIFF, California
    MIKE PENCE, Indiana                  LINDA T. SANCHEZ, California
    J. RANDY FORBES, Virginia

                         Blaine Merritt, Chief Counsel

                             David Whitney, Counsel

                              Joe Keeley, Counsel

                              Ryan Visco, Counsel

                        Shanna Winters, Minority Counsel

                                C O N T E N T S

                                  ----------

                               SEPTEMBER 21, 2006

                               OPENING STATEMENT

                                                                       Page
    The Honorable Lamar Smith, a Representative in Congress from the
      State of Texas, and Chairman, Subcommittee on Courts, the
      Internet, and Intellectual Property............................     1
    The Honorable Howard L. Berman, a Representative in Congress from
      the State of California, and Ranking Member, Subcommittee on
      Courts, the Internet, and Intellectual Property................     3

                                   WITNESSES
                                   Panel One:

    The Honorable Manuel L. Real, United States District Judge for
      the Central District of California
      Oral Testimony.................................................     4
      Prepared Statement.............................................     8

                                   Panel Two:

    Mr. Arthur D. Hellman, Professor of Law, Pittsburgh School of Law
      Oral Testimony.................................................   100
      Prepared Statement.............................................   103
    Mr. Andrew E. Smyth, Attorney, Los Angeles, California
      Oral Testimony.................................................   131
      Prepared Statement.............................................   133
    Mr. Charles G. Geyh, Professor of Law, Indiana University School
      of Law
      Oral Testimony.................................................   138
      Prepared Statement.............................................   140

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Howard L. Berman, a
      Representative in Congress from the State of California, and
      Ranking Member, Subcommittee on Courts, the Internet, and
      Intellectual Property..........................................   163
    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Member, Subcommittee on Courts, the Internet, and Intellectual
      Property.......................................................   163
    Letter to the Honorable Lamar Smith, a Representative in Congress
      from the State of Texas, and Chairman, Subcommittee on Courts,
      the Internet, and Intellectual Property, and the Honorable
      Howard Berman, a Representative in Congress from the State of
      California, and Ranking Member, Subcommittee on Courts, the
      Internet, and Intellectual Property, from Gary Canter of Los
      Angeles, California............................................   165
    .................................................................

    IMPEACHING MANUEL L. REAL, A JUDGE OF THE UNITED STATES DISTRICT COURT
          FOR THE CENTRAL DISTRICT OF CALIFORNIA, FOR HIGH CRIMES AND
                                  MISDEMEANORS

                                  ----------

                          THURSDAY, SEPTEMBER 21, 2006

                      House of Representatives,
                  Subcommittee on Courts, the Internet,
                             and Intellectual Property,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 9:24 a.m., in
    Room 2141, Rayburn House Office Building, the Honorable Lamar
    Smith (Chairman of the Subcommittee) presiding.
        Mr. Smith. The Subcommittee on Courts, the Internet, and
    Intellectual Property will come to order.
        I am going to recognize myself and the Ranking Member for
    opening statements and then proceed to introduce our two panels
    today.
        Any civil officer, under the Constitution, including
    Federal judges, should be removed from office if impeached and
    convicted of treason, bribery or other high crimes and
    misdemeanors.
        But what conduct subjects a civil officer to impeachment?
    Bribery and treason are fairly straightforward concepts.
        Scholars have observed that the term ``high crimes and
    misdemeanors'' includes not only crimes for which an indictment
    may be brought but gray political offenses, corruption,
    maladministration or neglect of duty involving moral turpitude,
    arbitrary and oppressive conduct and even gross improprieties
    by judges and high officers of state.
        Against this backdrop, we will review the behavior of U.S.
    District Judge Manuel L. Real to determine whether he has
    indulged in impeachable conduct. Specifically we will focus on
    Judge Real's oversight of a bankruptcy case and related
    California unlawful detainer action from 2000 to 2001.
        In February of 2000, Judge Real interceded on behalf of a
    defendant known to him named Deborah Canter in a joint
    bankruptcy and California State unlawful detainer action. The
    defendant was going through a divorce and was ordered to vacate
    a home that was held in trust by her husband's family.
        The defendant filed a bankruptcy petition that
    automatically stayed eviction proceedings in October 1999, but
    the stay was eventually lifted. The defendant, represented by
    counsel, then signed a stipulation that allowed the State court
    to issue an eviction notice in February of 2000, approximately
    10 days before Judge Real interceded.
        According to portions of a 9th Circuit investigation of the
    matter, Judge Real received ex parte communications from Ms.
    Canter before he took action. He was also supervising the
    defendant as part of her probation in a separate criminal case
    in which she had pled guilty to perjury and loan fraud.
        Judge Real withdrew the complaint from the bankruptcy court
    and enjoined the State eviction proceeding. The defendant was
    allowed to live rent-free in a home for a period of years.
        When the trustee appealed by the mandamus to the 9th
    Circuit, Judge Real transferred to case to another district
    judge. The trustee eventually reclaimed the property on appeal
    but lost at least $35,000 in rent during the proceedings, and
    attorneys' fees were substantial.
        The 9th Circuit Court of Appeals twice dismissed complaints
    against Judge Real that were brought under the Judicial
    Councils Reform and Judicial Conduct and Disability Act of
    1980.
        In the wake of negative publicity surrounding the case,
    including a dissent from Judge Kozinski, one of the members of
    the judicial council investigating Judge Real, Chief Judge
    Schroeder of the 9th Circuit ordered a special committee to
    conduct a further investigation of Judge Real's conduct.
        The special committee held a closed hearing in Pasadena,
    California, last August 21st. A second hearing is tentatively
    slated for November.
        Notwithstanding the willingness of the 9th Circuit to
    review the case again, Judiciary Chairman Sensenbrenner
    believes that Judge Real's behavior, especially as detailed in
    portions of the September 29, 2005, judicial order, may rise to
    the constitutional level of impeachable conduct.
        This Subcommittee must consider the totality of Judge
    Real's behavior. Did his actions in the Canter case, from the
    time he learned of the bankruptcy and unlawful detainer actions
    until his rulings were reversed by the 9th Circuit, demean him
    and the Federal judiciary? Would the public have confidence in
    such a judge to act ethically and without favoritism in future
    proceedings?
        House Resolution 916 allows the House Committee on the
    Judiciary, which retains jurisdiction over impeachable issues,
    to investigate the matter.
        Following our hearing and further review by the
    Subcommittee, we will develop a report that includes findings
    of fact and recommendations that will be submitted to the full
    Committee.
        Our goal today really is two-fold. First, we want to
    determine what actually occurred when Judge Real presided over
    the Canter case in 2000 and 2001. And second, we need to learn
    more about existing impeachment precedents and whether they
    have application to Judge Real's alleged behavior.
        None of us on the Subcommittee relishes this undertaking.
    This is an exercise that we will approach with an open mind
    about the facts and the application of existing impeachment
    precedents. But this is one of the few ways available to
    Congress to ensure that the Federal judiciary retains its
    integrity and serves the public's interest.
        This point is emphasized by this week's release of the
    long-awaited Breyer Commission report on the operations of the
    judicial misconduct statutes. Among other revelations, the
    report concludes that the 9th Circuit has not handled the
    investigation of the case in the proper way, which lends
    greater validity to the need for our Subcommittee to conduct
    this hearing.
        That concludes my opening statement. And the gentleman from
    California, Mr. Berman, is recognized for his.
        Mr. Berman. Thanks very much, Mr. Chairman.
        One of the primary responsibilities of this Subcommittee is
    to work to ensure that our judicial branch maintains its
    independence. Therefore, while they may be a question as to
    whether certain judicial behavior was or was not appropriate
    and what the correct response should be, this congressional
    hearing on the impeachment of Judge Manuel Real is premature.
        As I understand it, the 9th Circuit, on May 23, 2006,
    convened a special committee to investigate the charges against
    Judge Real, and that a closed-door hearing on the matter was
    held on August 21, 2006. The investigation is ongoing.
        The Judicial Councils Reform and Judicial Conduct and
    Disability Act of 1980 established our current system of
    judicial self-discipline. It authorized the establishment of a
    judicial council in each of the 13 Federal circuits that would
    be responsible for the review of complaints against Federal
    judges, and it empowers the judges to suspend the judge or
    publicly or privately reprimand the judge.
        When a complaint is received, the chief judge reviews it
    and either dismisses the complaint as baseless or, if it has
    merit, the chief judge can assemble a special committee to make
    factual findings and refer the matter to the entire judicial
    council, who may then conduct any additional investigation it
    deems necessary.
        Finally, the complaint may be petitioned to the United
    States Judicial Conference for review. And the Judicial
    Conference may refer the complaint to the House of
    Representatives for consideration of impeachment.
        Following hearings in this Subcommittee, this act was
    amended with bipartisan support by the Judicial Improvements
    Act of 2002. This amendment enables the chief judges to conduct
    limited inquiries into the complaints.
        On April 29th of this year, the Judicial Conference held
    that it had no jurisdiction to review the judicial council's
    actions because no special committee had been appointed and
    factual disputes exist that could benefit from a special
    committee review.
        In May, the 9th Circuit chief judge responded by appointing
    a special committee to investigate. This special committee
    investigation is in line with the established procedures, and I
    contend this is the proper procedure to be followed. So,
    therefore, I think we should have held off on this hearing in
    order to allow this special committee to perform its job.
        If I just may make two comments in reaction to your opening
    statements, Mr. Chairman, the first is that I do hope, if the
    process is for the Subcommittee to make findings, factual
    issues and recommendations to the full Committee, that we not
    implement that process, or certainly not prepare that report,
    until after we have seen the report of the special committee
    that is now ongoing.
        And the second comment I wanted to make was simply that I
    am aware of the Breyer Commission's discussion of the different
    disciplinary cases in the Federal judicial system, and I do
    want to note that at the end of the report the commission said
    that, ``We believe that appointment of a special committee was
    called for in the first instance, and that this has now been
    done.''
        Thank you, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Berman.
        Without objection, other Members' opening statements will
    be made a part of the record.
        And, Judge Real, I would like to invite you to come
    forward, if you would. And if you would stay standing, I am
    going to swear you in.
        [Witness sworn.]
        Mr. Smith. Thank you. Please be seated.
        Our witness on the first panel is the Honorable Manuel L.
    Real, U.S. district judge for the Central District of
    California.
        Before his appointment to the Federal bench in 1966, Judge
    Real served in the Naval Reserve, practiced law, and was both
    an assistant Federal prosecutor as well as a U.S. attorney for
    the Southern District of California.
        He earned his B.S. degree from the University of Southern
    California and his law degree from the Loyola Law School in Los
    Angeles.
        Welcome to you, Judge. We have your written statement,
    which, without objection, will be made a part of the record.
        Normally, Judge Real, we limit witnesses to 5 minutes, but
    today we will be happy to give you 10 minutes and hope that
    that will be sufficient. And if you will proceed with your
    testimony.

       TESTIMONY OF THE HONORABLE MANUEL L. REAL, UNITED STATES
         DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

        Judge Real. Thank you, Mr. Chairman and Members of the
    Committee.
        I am here today because a complaint was made, accusing me
    of judicial misconduct in my handling of a bankruptcy case more
    than 6 years ago. I am here to tell you that I categorically
    deny that I have committed any misconduct in any aspect of that
    case.
        In my nearly 40 years on the bench, I have presided over
    more than 31,000 cases, including thousands of civil and
    criminal trials. Like most judges, I have had a few complaints
    of misconduct made about me. However, not one of those
    complaints was ever found to be true. And I have never been
    sanctioned for any type of judicial misconduct.
        The complaint that brings me here was an accusation that I
    received a secret letter from a criminal defendant that caused
    me to decide an issue in her favor in a bankruptcy case. That
    accusation is untrue.
        The complaint was filed by a lawyer who had no connection,
    involvement or personal knowledge of the bankruptcy case. He
    has had a personal vendetta against me for over 20 years. In
    1984, I sanctioned that lawyer for his misconduct in a trial
    that I was handling. Since then, he has made personal attacks
    against me and has publicly called me ``crazy.''
        He also filed the present complaint against me. His first
    accusation was that I made decisions in the bankruptcy case
    because I had an improper personal relationship with the
    debtor, Deborah Canter. That complaint was investigated by the
    chief judge of the 9th Circuit and dismissed.
        The lawyer appealed. The 9th Circuit judicial council then
    conducted its own investigation, interviewing at least 15
    witnesses. One of its investigators interviewed Ms. Canter's
    bankruptcy lawyer. He said his wife had told him that she
    helped Ms. Canter prepare a secret letter to me asking for my
    help in preventing her eviction. Because of this, the judicial
    council sent the complaint back to the chief judge for further
    investigation.
        The chief judge, as permitted by the rules, conducted her
    own investigation. After that investigation, she concluded that
    there was no credible evidence of a secret letter from Ms.
    Canter to me. The chief judge dismissed the matter for a second
    time.
        The lawyer appealed again. This time, the judicial council
    affirmed the dismissal of the chief judge by a 7-3 vote.
        One of the dissenting judges, Judge Alex Kozinski, wrote a
    39-page opinion in which he concluded that I had received such
    a secret letter from Ms. Canter. Judge Kozinski's conclusion
    was based both on erroneous facts and his speculation. However,
    because of its vitriolic spirit and tone, Judge Kozinski's
    opinion received widespread news coverage.
        At the time, I refused to comment on the accusations made
    against me and have made no public comments until today. I have
    submitted my written testimony explaining the background of the
    bankruptcy case and the complaint of misconduct. I have also
    submitted an appendix of exhibits which is the evidence the
    chief judge and the judicial council had when it dismissed the
    complaint.
        Today I would like to make a few additional comments.
        The original accusation was that Ms. Canter was receiving
    special treatment because she reported to me personally, as
    part of her probation. That is untrue.
        In 1998, Ms. Canter pled guilty to making false statements
    and loan fraud. I sentenced her to 5 years of probation and
    2,000 hours of community service. As part of her probation, she
    was ordered to report to me every 120 days with her probation
    officer.
        That was in no way unusual. Since 1976, I have had a policy
    of requiring defendants that I place on probation to report to
    me in person every 120 days with their probation officer to
    tell me about their continued conduct. The 120-day meetings
    last no longer than 15 minutes, and the probationer is always
    accompanied by a probation officer.
        Ms. Canter was treated just the same as the more than 1,000
    defendants who I have placed on the 120-day programs over the
    last 35 years. I have not had contact with Ms. Canter other
    than in open court and at her 120-day meetings with her
    probation officer.
        The original accusation that I became involved with Ms.
    Canter's bankruptcy because I wanted to benefit her personally,
    that is also untrue. I have had 120-day meetings with Ms.
    Canter. One was in August 1999, and the other in January of
    2000.
        At the second 120-day meeting, Ms. Canter told me that
    lawyers for one of her creditors had filed her confidential
    pre-sentence report in her bankruptcy action.
        Pre-sentence reports are confidential records of the court,
    prepared by the probation department for my use in sentencing
    criminal defendants. They contain a lot of private information
    about the defendant. The reports are filed under seal and are
    not available to the public. As the judge presiding over Ms.
    Canter's criminal case, I was the only person who could release
    her pre-sentence report.
        In my nearly 40 years on the bench, I had never had another
    case where someone misused a pre-sentence report.
        After this 120-day meeting, I withdrew the reference of Ms.
    Canter's bankruptcy. This meant that the bankruptcy case was
    transferred to me for future handling. As a district judge, I
    am authorized by statute to do this. I took over the bankruptcy
    case because I wanted to find out if Ms. Canter's pre-sentence
    report had been misused.
        When I got the bankruptcy file, I personally reviewed it. I
    found out that the pre-sentence report had been filed as part
    of a motion to lift the automatic stay in her bankruptcy case.
        Under the bankruptcy law, all lawsuits against Ms. Canter
    were automatically stayed when she filed her bankruptcy. This
    included an unlawful detainer action filed by her father-in-law
    to evict her from her home. The motion requested the court to
    lift the stay to the eviction action, so the eviction action
    could go forward. And the bankruptcy judge, with the probation
    report in the file, had done so.
        I asked my secretary to find out the status of the unlawful
    detainer action. She contacted the State court and learned that
    a judgment had been entered. I concluded at that time that the
    pre-sentence report had been improperly used to lift the
    automatic stay so that the father-in-law could proceed with the
    unlawful detainer action.
        Therefore, I signed an order in February 2000 staying the
    unlawful detainer action to maintain the status quo. My reason
    for doing so was my concern over the misuse of the confidential
    pre-sentence report. I did not do so to benefit Ms. Canter
    because she was one of my probationers or because I had any
    sort of a personal relationship with her.
        The other accusation made against me was that I made my
    rulings in Ms. Canter's bankruptcy because I had received a
    secret letter from her asking for my help in preventing her
    eviction. This accusation arose because her former bankruptcy
    lawyer, Andrew Smyth, told a judicial council investigator that
    his wife said she helped prepare such a letter.
        As part of the chief judge's investigation, my secretary
    submitted a declaration confirming that I had not received any
    such letter or any communication from Ms. Canter. Ms. Canter
    also signed a declaration saying that she had never written or
    delivered such a letter or other document to me.
        I do know that I never received such a letter or any other
    such document from Ms. Canter. The only document I ever
    received from Ms. Canter were pleadings filed in her bankruptcy
    action.
        In Judge Kozinski's dissent, he goes into great length to
    try to prove that I did receive an improper communication from
    Ms. Canter. In my written testimony, I discuss some of the
    reasons why he was wrong, and will not repeat that testimony in
    this opening statement.
        In conclusion, I want to say again that the accusations of
    misconduct made against me are untrue. I did not receive any
    secret communication from Ms. Canter. I did not make any
    rulings in her bankruptcy based upon such a communication or
    for the purpose of benefiting her personally.
        I want to thank you for your opportunity for me to make
    this statement. I would be glad to answer any questions the
    Committee might have.
        [The prepared statement of Judge Real follows:]

               Prepared Statement of the Honorable Manuel L. Real

        Mr. Smith. Thank you, Judge Real.
        I would like to ask you some questions about this subject
    of your dealings with Ms. Canter.
        Prior to your withdrawal of the referral, how many times
    had you met with her or seen her, both in open court and in
    your chambers during the probationary meetings?
        Judge Real. Twice at two 120-day meetings.
        Mr. Smith. Right. And what about in open court?
        Judge Real. I had not met her in open court at that time.
        Oh, I am sorry. In her criminal case?
        Mr. Smith. Right. I am talking about----
        Judge Real. At the time of her plea and at the time of her
    sentence.
        Mr. Smith. Right. And in the previous charges against her,
    how many times had she been in your court then?
        Judge Real. Only for her plea of ``not guilty,'' her plea
    of ``guilty,'' and the sentence.
        Mr. Smith. So three times in court and then twice in your
    chambers during the probationary meetings.
        Judge Real. With her probation officer.
        Mr. Smith. That is correct, and I am not implying
    otherwise.
        In those five meetings that you had with Ms. Canter, is it
    not possible that you might have developed some personal
    concern for her well-being?
        Judge Real. Well, for her well-being only in terms of how
    she was doing on probation during the 120-day meetings, because
    that is the purpose of the meeting.
        Mr. Smith. Right. But during those five meetings where you
    got to know her, did you feel protective of her in any way?
        Judge Real. No. No more than any other probation candidate
    that I have had.
        Mr. Smith. Okay. Given the fact that those five meetings
    were all a matter of public record, did you consider recusing
    yourself in the case simply because of the appearance, at least
    to the public, of impropriety or perhaps favoritism?
        Judge Real. I did----
        Mr. Smaltz. I am going to object to your question, Mr.
    Chairman. You are talking about five meetings. He didn't have
    five meetings. She appeared before him at the time of her
    arraignment and her sentence----
        Mr. Smith. No, if you will please sit down, I will clarify
    what I asked about. The five meetings that I referred to were
    three times in open court and twice in his chambers during the
    probationary meetings. Those were five contacts. And if
    ``contacts'' is a better word, I will be happy to substitute
    that description.
        The point I was making and the judge was just getting ready
    to answer was whether or not, during those five meetings or
    contacts you had with Ms. Canter, whether you developed any
    kind of a sensitivity to her well-being or felt concerned about
    her future.
        Judge Real. No different than any other probationer that I
    had.
        Mr. Smith. Okay. And then, as I mentioned, all five of
    these contacts were public. Wouldn't that perhaps give rise to
    a feeling among those who were observers that perhaps you did
    have some type of a personal feeling for her and about her
    well-being?
        And, as a result of that, if you weren't going to recuse
    yourself--and you said that you decided not to--wouldn't that
    give rise, I think, to a justified appearance of impropriety to
    those who might be looking at this particular case, given the
    actions that you took?
        Judge Real. No, because my withdrawal of the bankruptcy
    case was for the purpose of finding out about the probation
    report, which had been illegally used. And I wanted to find out
    about that. And I finally did find out about it, because I
    issued an order to show cause against the lawyers in the
    bankruptcy, in the unlawful detainer----
        Mr. Smith. Right. That explains why you took the act you
    did, but my question was going to the appearance of
    impropriety, where you had on public record five contacts with
    this individual, and, given the actions that you took, it might
    well have resulted in the appearance of impropriety to those
    who might be objective observers. That is my point, if you want
    to respond to that.
        Judge Real. Well, I don't believe so----
        Mr. Smith. Okay.
        REAL--Mr. Chairman, because I had the statutory ability to
    do that, and I had a purpose to do that, and it had nothing to
    do with her, in terms of her position.
        Mr. Smith. Right. And, again, because of those prior
    contacts, it did not occur to you to possibly consider recusing
    yourself?
        Judge Real. Not at that point, no.
        Mr. Smith. Okay.
        Judge Real. I did later.
        Mr. Smith. Okay. Judge Real, because of your actions,
    arguably the Canter family trust lost tens of thousands of
    dollars in lost rent and also in attorneys' fees. Did you feel
    any responsibility for the losses that were incurred by the
    Canter family trust?
        Judge Real. Mr. Smith, I don't know anything about the
    loss. I was not present and I was never called to the judicial
    council to answer any questions like that.
        As a matter of fact, what happened was, we found out later,
    that the divorce court had permitted her to be in the house,
    because it was the house that she and her by-then-ex-husband
    was occupying. So it had nothing to do with my order that she
    was occupying that house.
        Mr. Smith. Okay. And you were not aware that she was
    occupying the house rent-free?
        Judge Real. I did not know how she was occupying--I knew
    she was occupying the house, but not how.
        Mr. Smith. Okay. And my last question----
        Judge Real. She claimed some right of possession to the
    house.
        Mr. Smith. Right, which was subsequently found not to be
    substantial, but----
        Judge Real. Somewhat later. Much later.
        Mr. Smith. Okay. And, Judge Real, one other question, and
    that is: If you were ruling on a matter that denies a property
    owner his property, isn't that person entitled to some
    explanation?
        You are aware of the exchange you had with the individual
    involved, but don't you think, under the circumstances, it
    would have been proper judicial conduct to offer an
    explanation?
        Judge Real. Mr. Smith, I never made a decision to deprive
    the owner of his property. I never made that decision.
        Mr. Smith. Okay. Thank you, Judge Real.
        The gentleman from California, Mr. Berman, is recognized
    for his questions.
        Mr. Berman. Thank you, Judge Real. Good to see you again,
    and, I guess, better other places than here.
        In this investigative process that is now under way in the
    9th Circuit, are you able to speak in front of the
    investigative committee, much as you are doing here today, to
    give your version of these facts and respond to questions, or
    to submit materials in writing if that is the way they do it?
        Judge Real. I have already done that, Mr. Berman, and we
    filed our brief. As a matter of fact, on September 15th, we
    filed the brief in answer to the investigation.
        Mr. Berman. Well, then I am going to stay away from--until
    such time as we see what they came up with, I am going to stay
    away from fact questions.
        But given that you have, sort of, opened up the issue by
    coming here and testifying today, there is one thing that I
    didn't totally understand in your testimony. And it requires
    some speculation on your part, but it is speculation you
    obviously made and reached a conclusion about.
        The inclusion of the pre-sentence confidential report in
    the motion to suspend the stay on the unlawful detainer action
    in the bankruptcy proceeding, what--I can speculate too, but
    what was your thought process about why that was included in
    that? Because it obviously--I guess your concern was that it
    shouldn't have been used, whatever its purpose. But what would
    have been the motivation for that?
        Judge Real. Well, in reviewing the bankruptcy file, the
    probation report was there, and it was the only part of the
    evidence that was offered to the bankruptcy judge for
    withdrawal of the reference.
        Mr. Berman. Well, let me put it in my words to make sure I
    understand it. In a sense, are you saying that the only reason
    they had to put that in there was to show something about her
    that would cause the bankruptcy judge to be more sympathetic to
    removing the stay on the unlawful detainer action?
        Judge Real. That was my opinion then and my opinion now.
        Mr. Berman. Thank you, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Berman.
        The gentleman from California, Mr. Issa, is recognized for
    his questions.
        Mr. Issa. Thank you, Mr. Chairman.
        I am trying to understand one part of the whole decision
    process. My understanding is that, in order to take something
    away from the court of primary jurisdiction, the bankruptcy
    court, you had to find cause.
        What was your cause for taking away the decision of a
    lawfully appointed judge who specializes in that area of the
    law?
        Judge Real. The use of the probation report, which is my
    function as a United States district judge.
        Mr. Issa. No, I appreciate that. What I am trying to
    understand, though, is you took it away based on an allegation.
    Did you do what most colleagues would do in a collegial
    environment and say, ``It has been brought to my attention. Is
    this true?'' Did you try to do any discovery separate from
    yanking the case and then looking at it?
        Judge Real. No, I did not, because the primary jurisdiction
    is not in the bankruptcy court. The United States district
    judges are the bankruptcy judges. And the bankruptcy judges, as
    such, with that title, are appointed by the----
        Mr. Issa. Right, but they are not your magistrates. They
    have separate authority and routinely conclude the case without
    the intervention of the district judge.
        Judge Real. Well, they do because we refer--we refer--those
    cases to them.
        Mr. Issa. Right, but it hadn't been your case. It hadn't
    started----
        Judge Real. No, it had not been my case, no.
        Mr. Issa. Okay. So you yanked the case based on an
    allegation, redecided de novo what a bankruptcy judge had
    decided, and did so based on the assumption that, without that
    particular proprietary report that you believe, appropriately I
    am sure, was for your use only, it could not have been decided
    otherwise?
        Judge Real. That was my opinion.
        Mr. Issa. Okay. Well, let's go through that, since you are
    a bankruptcy judge in addition to a district judge, since you
    have asserted that.
        Because it does concern me, because, you know, I mean, I
    sort of grew up going into Federal court with the understanding
    that the difference between God and a Federal district judge is
    God doesn't think he is a Federal district judge. And that you
    have to assume that there is a great deal of power vested in
    you, but there is a limit.
        Your decision--how often would you routinely allow somebody
    to remain in a home, paying no rent for over a year, based on
    what? In other words, in a normal bankruptcy case, the debtor
    in possession, so to speak, has to pay rent or vacate. That is
    not unusual, is it?
        Judge Real. Well, no. And I didn't--I had no concern about
    leaving her in the home. She had been placed there by the
    divorce court, the State court, the State divorce court. And--
    --
        Mr. Issa. Well, no, had she been placed there or had she
    not yet been removed?
        Judge Real.--and the husband was ordered to pay support for
    her and her daughter. And----
        Mr. Issa. I appreciate that. But we are dealing with a
    decision made by a Federal judge pursuant to bankruptcy. And he
    had decided that, under the bankruptcy laws, which are Federal
    jurisdiction, that she had no right to stay there on a rent-
    free basis and that it was appropriate to say that she could
    not remain there.
        Because the State court had not said, ``Your right to be
    there is part of your divorce decree.'' Because if that were
    the case, there wouldn't have been the claim to the court,
    would there have been?
        Judge Real. No, she had a claim to the bankruptcy court.
    She had a claim to the bankruptcy court also. And a question of
    whether or not, aside from the marital property question, which
    the State court had to decide and which I said the State court
    should decide--and I denied a motion to stay the marital court,
    so that the marital court could decide the marital property.
    But she also had a promissory estoppel right in terms of that,
    to try that before the bankruptcy court.
        That is why I transferred the case to Judge Carter, because
    I felt then that it might have the appearance of impropriety if
    I tried that case or tried the facts surrounding that case.
        Mr. Issa. Well, I appreciate that, but, you know, I am
    still looking at an enrichment that occurred because you took a
    case from a court, reversed it by essentially allowing her to
    stay for a year, and didn't transfer it until a considerable
    time later.
        Why in the world did you choose to enrich this woman for
    $35,000 of value, based on our notes? Why wasn't that something
    that couldn't have been left alone as part of the decision? Or
    why couldn't you have immediately said, ``I am removing this
    document and sending it to a bankruptcy judge for
    consideration'' without that document?
        What was the reason for the delay that enriched her by so
    much?
        Judge Real. I don't know of any delay. The delay was, I
    think, occasioned by the lawyers, who could have come to me,
    and did on two occasions--one occasion. And after the second
    occasion, they did what they should have done at the end of the
    first occasion. And that is, they should have gone to the court
    of appeals.
        Because the Canters--this was the husband's father who had
    title to the property, but they had possession of the property.
    And the State court had allowed her in the property, I take it
    in lieu--I don't know that--but in lieu of support for her and
    the daughter. And the husband was working for the father-in-
    law.
        And this is all hindsight now. This was not known to me at
    the time that I made that decision. But hindsight, there is
    some question as to whether or not the husband should have been
    paying the father the rent that supposedly he had promised to
    the father, as support for the woman and her daughter.
        That was not----
        Mr. Issa. Mr. Chairman, will there be a second round?
        Mr. Smith. The gentleman's time has expired, and we do not
    expect a second round.
        Mr. Issa. Can I just leave with one question?
        Mr. Smith. The gentleman is recognized for an additional
    minute.
        Mr. Issa. Hopefully you can respond in writing; I would
    appreciate it. If you would just explain to me why in the world
    you would not simply have--once you pulled this from one judge
    who had considered a piece of information--inappropriately, in
    your opinion, and I am not disputing that--removed that
    document, immediately put it back down to the bankruptcy judge.
    If you had done that, wouldn't we have no reason to be here
    today?
        And that is the whole question, is, if you had done simply
    curing what you say was wrongfully looked at and putting it
    back to a judge immediately, wouldn't we appropriately not be
    here today?
        Thank you, Mr. Chairman.
        Mr. Smith. Okay. Thank you, Mr. Issa.
        The gentleman from California, Mr. Schiff, is recognized
    for questions.
        Mr. Schiff. Thanks, Chairman.
        I wanted to begin by echoing a couple of the sentiments
    expressed by my colleague Mr. Berman from California. I have
    appeared in Judge Real's court. I have known at least a couple
    of his counsel for many years.
        And this is not the circumstances in which I wished to see
    you again, Judge Real.
        I also want to reiterate what Mr. Berman said, which is
    raising an issue about the desirability or propriety of going
    forward with this hearing when the 9th Circuit is still in the
    midst of its own proceedings, particularly in a case like this
    where, even if you accept all the facts that are laid out as
    true, there is a substantial question, I believe, about whether
    it would rise to an impeachable offense. The Chairman alluded
    to this in his opening statement.
        But particularly where that is the case, where there is a
    substantial question where, even if all the facts were accepted
    as true, it would rise to an impeachable offense, I think it
    further calls into question why we would take action before the
    9th Circuit finishes its own action and makes its own
    recommendation.
        I have just a couple questions. One is on the misuse of the
    pre-sentence report that you alluded to, Judge.
        I guess my threshold question is, why was the pre-sentence
    report in the bankruptcy proceeding to begin with? How did it
    get there? Did you ever ascertain how that report would have
    gotten there? Did someone in the bankruptcy proceeding request
    it of the probation office? Why did the probation office
    provide it in a bankruptcy proceeding? That does seem
    extraordinary.
        Judge Real. The counsel who was representing Mr. Canter,
    the senior Canter, who was asking for the lifting of the stay,
    filed it with a request for judicial notice, filed it with the
    bankruptcy judge specifically for the purpose of the withdrawal
    of the stay.
        Mr. Schiff. But how would he get a copy of the pre-sentence
    report?
        Judge Real. We never learned that. We have never learned
    that.
        Mr. Schiff. Well, and I don't know if you can comment on
    this----
        Judge Real. It was not given to him by his wife.
        Mr. Schiff. Well, was he made a witness in the proceedings
    in the 9th Circuit? Was he asked under oath how he got a copy
    of the pre-sentence report?
        Judge Real. No, he was not. His lawyer apologized profusely
    on the order to show cause but never told me how she got the
    probation report, which was filed in the divorce case.
        And the bankruptcy lawyer on the order to show cause was
    represented by a lawyer who I had a lot of trust in and who
    told me it would be withdrawn from the bankruptcy and that the
    matter would be taken care of.
        Mr. Schiff. Now, you mentioned that the pre-sentence report
    in the bankruptcy proceeding was the only evidence that they
    had, in terms of deciding whether to lift the automatic stay.
        Judge Real. That was the motion for judicial notice, and
    that was it, basically. There were some other things but
    nothing of any substance.
        Mr. Schiff. And I don't know whether you can discuss this
    either, given that the confidentiality of the pre-sentence
    report may not be confidential anymore. Was there something in
    the pre-sentence report that was the basis of the argument in
    the bankruptcy about why the automatic stay should be lifted?
        Judge Real. Well, you know, probation reports, they have an
    awful lot of personal information that is given to the judge,
    so that the judge can make a determination as to what sentence
    to impose, which is not generally available to the public.
        Mr. Schiff. You mention in your testimony that the action
    that you took did not have the effect of keeping her in the
    property and the loss of the $35,000 in revenue to the trust.
    Can you explain that? I am not sure I----
        Judge Real. Well, that is my opinion.
        First of all, she was placed there by the State court, as I
    assume--and I don't know that, because I have not looked at the
    State file--but I assume that she was placed there as part of
    the support that comes from an order to show cause during the
    divorce proceedings for she and her daughter to live in the
    house during the period of time that the divorce was going on.
    And so, she was there by that order. She was not placed there
    by my order in any event--in any event.
        And certainly, the withdrawal of the stay was done with an
    illegal purpose, at least in my view at the time, with an
    illegal purpose, and that is the illegal use of the probation
    report.
        Mr. Smith. The gentleman's time has expired.
        Mr. Schiff. Mr. Chairman, may I have an additional minute,
    as well?
        Mr. Smith. Without objection, the gentleman is recognized
    for one more minute.
        Mr. Schiff. I just wanted to comment on the five
    appearances that this defendant had in your courtroom. Three
    were during plea----
        Judge Real. She is at a lectern, and I am on the bench.
        Mr. Schiff. In terms of those three in-the-courtroom
    proceedings, those are proceedings where she is required to be
    present and so are you.
        Judge Real. Yes.
        Mr. Schiff. So if you weren't present, that would be a
    problem.
        In terms of the two meetings with the probation officer,
    what you do is probably extraordinary, in the sense that I
    don't know of many judges that meet with all the probation
    officers every 120 days. I am not sure I know of any of them
    that does that.
        Is it correct that your meeting with this probationer is a
    practice that you followed with--how many other of the
    probationers in your----
        Judge Real. Thousands of them that I have had over the 35
    years that I have been doing that program.
        Mr. Schiff. And the extent of your interaction with her is
    confined to those five meetings: the three you are required to
    have and the two that you have with all of your probationers?
        Judge Real. In the presence of the probation officer, yes.
        Mr. Schiff. So you never had any meetings with her outside
    of the presence of the public in the courtroom or the probation
    officer?
        Judge Real. Never.
        Mr. Schiff. And no phone conversations with her?
        Judge Real. No phone conversations, no letters, no nothing.
    I have never met her other than those three times in the
    courtroom and twice in the 120-day program.
        Mr. Schiff. Thank you, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Schiff.
        The gentleman from Utah, Mr. Cannon, is recognized for his
    questions.
        Mr. Cannon. Thank you, Mr. Chairman.
        How many other judges do this kind of 120-day program?
        Judge Real. On our court, none.
        Mr. Cannon. Do you know of other judges around the country
    that do that?
        Judge Real. I do, but I can't remember now, because I have
    sent some probation officers to other parts of the country and
    had the probationer report to that judge with the probation
    officer in that area.
        Mr. Cannon. I think that is a remarkably good concept and
    one that takes an extraordinary amount of your time. And I
    appreciate that.
        Does it work?
        Judge Real. They say it works. I have--at least the
    probation office tells me that I have a lot less violations of
    probation than the other judges.
        Mr. Cannon. Well, it is obvious that you invest a lot in
    your job and your office and that you are quite a determined
    person. Is that a fair thing to say, do you think?
        Judge Real. Thank you.
        Mr. Cannon. I am not sure that is actually--you know, it is
    a clear quality, at least from what I understand.
        Is Ms. Canter attractive?
        Judge Real. You are asking me, and----
        Mr. Cannon. Yes. Do you recall her?
        Judge Real. I recall her. And if you want just a frank
    answer, she is not attractive to me.
        Mr. Cannon. What I am really--where I am--do you remember
    her? Did she make an impact on you? And there is some real
    anger over what happened, anger by the family, perhaps not at
    you, but at her, which led to someone getting a copy of her
    pre-sentence report and filing it.
        Judge Real. Yes.
        Mr. Cannon. And your reaction to that filing was also
    angry, was it not?
        Judge Real. Absolutely.
        Mr. Cannon. Well, can you describe that a little bit?
        Judge Real. Well, I think--that is a confidential report.
    That is something that we can't allow, because, if we allow it
    here, it then becomes a practice in every case in which we have
    a probation report, that it becomes part of what people try to
    get to help them with whatever they are doing outside of the
    court.
        Mr. Cannon. And that anger that you felt, that righteous
    indignation, however you would characterize it, resulted in
    your taking an aggressive approach to that case and getting it
    transferred to yourself.
        Judge Real. Well, I think it was. I think a little bit of
    it was that I did not want to embarrass the bankruptcy judge.
        Mr. Cannon. How could he have been embarrassed? Somebody
    filed something in his court, why would he be----
        Judge Real. Well, no, by my going to him and saying, you
    know, ``You can't do this kind of thing''----
        Mr. Cannon. Well, but he didn't do anything. Somebody filed
    that in his case.
        Judge Real. Well, somebody filed it, but he made the order
    withdrawing the stay based, at least in my view, based upon----
        Mr. Cannon. And how was your view informed?
        Judge Real. How was it informed?
        Mr. Cannon. Yes, why did you----
        Judge Real. I saw the bankruptcy file and saw that the
    report was part of a motion for judicial notice of this
    document.
        Mr. Cannon. Right. And the bankruptcy judge then removed
    the stay.
        Judge Real. Yes.
        Mr. Cannon. Did he refer to the pre-sentence report?
        Judge Real. He made no--no, bankruptcy judges don't make
    any reference to anything----
        Mr. Cannon. Right. They are awfully busy.
        Judge Real. They are awfully busy, and they just----
        Mr. Cannon. In fact, he may not have even looked at that
    pre-sentence report.
        Judge Real. He may not have. He may not have.
        Mr. Cannon. But it was the violation of what you thought of
    as protocol, the rules of the court----
        Judge Real. Yes.
        Mr. Cannon.--that enraged you and caused you to look at the
    file and then remove the judge from the case and take over the
    case yourself.
        Judge Real. Well, I didn't remove him from the case. I
    withdrew the case to my court.
        Mr. Cannon. Your court. And that led to some nasty
    allegations. There are a lot of people that dislike you, I take
    it.
        Judge Real. No, I don't think there are a lot of people
    that dislike me. There are a few.
        Mr. Cannon. Do you recall having a call from the attorney
    general, General Dan Lungren at the time, about an order you
    made during which he explained to you that California law
    prohibited him from doing what you asked?
        Judge Real. Yes. I do remember----
        Mr. Cannon. Do you recall what your response to him was?
        Judge Real.--that, very well.
        Mr. Cannon. What was your response to him?
        Judge Real. My response to him was that he was wrong. And I
    thought he was wrong at the time----
        Mr. Cannon. Did you give him a rationale for why he was
    wrong, or did you just----
        Judge Real. I believe I----
        Mr. Cannon.--order him to do something?
        Judge Real. I believe I did. But I don't remember. I don't
    remember all of the detail of that. But I knew Dan Lungren, and
    I thought we were friendly. And that was a situation----
        Mr. Cannon. Would you characterize that conversation as
    relatively arbitrary, on your part, or as friendly and
    rational?
        Judge Real. I thought, from my standpoint, it was friendly
    and rational, because he was telling me about a statute that I
    read differently than he did.
        Mr. Cannon. Thank you, Mr. Chairman. I see my time has
    expired.
        I hope that we can wait for the judicial report that we are
    expecting on this matter and come back. The problem here is
    complex. And on the one hand, we want tough judges--judges who
    are going to do things that make sense.
        And may I ask for 1 minute, by unanimous consent?
        Mr. Smith. The gentleman's time has expired, but he is
    recognized, without objection, for an additional minute.
        Mr. Cannon. We want tough judges. What we don't want are
    autocratic judges--judges that abuse their position. And a
    Federal judge has massive authority. And so, I hope that this
    case is one that we will revisit after we have a little more
    information from the judicial council.
        Thank you, and I yield back.
        Mr. Smith. Thank you, Mr. Cannon.
        The gentlewoman from California, Ms. Waters, is recognized
    for her questions.
        Ms. Waters. Thank you very much, Mr. Chairman.
        I would like to place on the record that I do not know
    Judge Real, I have never met him, I have never called him, I
    have never talked with him, and I am not a lawyer.
        So, having said all of that, my only question is, why are
    we holding this hearing, when I understand that there is still
    pending a hearing on this matter?
        I guess I could ask you, Judge Real, if anyone disclosed to
    you why you would be here today, knowing that a hearing is
    pending.
        There was one closed hearing, I am told. Is that correct?
    In Pasadena?
        Judge Real. There was one, yes.
        Ms. Waters. And there will be another one. Is that right?
        Judge Real. I believe so.
        Ms. Waters. Do you disadvantage yourself at all by being
    here today?
        Judge Real. I beg your pardon?
        Ms. Waters. Are you placing yourself at a disadvantage by
    being here today, trying to answer all of the questions of the
    Members of this Committee, when there is another hearing by
    your peers that is going to be held?
        Judge Real. I came by invitation, Ms. Waters. And I felt
    that it was more than just an invitation.
        Ms. Waters. Well, I think that Mr. Berman is absolutely
    correct in deciding that we should not try and delve into the
    facts of this matter here, that this should be left to the
    hearing that is pending, and that we should not proceed with
    this hearing in this fashion today.
        I commend you for being here. I don't know what your
    lawyer's advice to you was about coming here today. You are not
    under subpoena, is that right?
        Judge Real. I would rather not answer that question, Ms.
    Waters.
        Ms. Waters. All right. Thank you. I have no further
    questions.
        Mr. Smith. Okay. Thank you, Ms. Waters.
        The gentlewoman from California, Ms. Lofgren, is recognized
    for her questions.
        Ms. Lofgren. Mr. Chairman, I will be brief.
        I have also never met the judge before. I am a lawyer and
    have plenty of friends who have, in fact, appeared before the
    judge over the years.
        I think it is important that we put this meeting here today
    in a context of what we are doing here in the Congress.
        I am also not going to ask particular questions, because
    the Judicial Conference is reviewing this matter pursuant to
    the statute that we all participated in passing, the Judicial
    Improvements Act of 2002. And it seems to me that if we
    believed in the statute that we adopted, we would let that
    process move forward instead of engaging in this process.
        Obviously the Congress has the responsibility to impeach in
    cases of high crimes and misdemeanors, and obviously judges
    under the Constitution, article 3, section 1, serve only during
    times of good behavior.
        But I believe that we are here today because of the
    animosity felt by the majority toward the 9th Circuit, and that
    you are a victim of that animosity. And for that, I apologize
    to you.
        Now, looking at the record, I have private opinions about
    some of your decision, honestly. And certainly you are not
    always a popular judge among the people I know who have
    appeared before you. But that is not a reason to shortcircuit
    the proceedings that have begun.
        And I, again, would urge that, not only the Congress follow
    the process that we have established, but I think also the 9th
    Circuit should be a bit more prompt in utilizing these
    structures that we have provided for them. If they had been
    more prompt, we certainly wouldn't be here today either.
        So, with that, I would yield back the balance of my time.
        Mr. Smith. Does the gentlewoman yield back?
        Ms. Lofgren. I do.
        Mr. Smith. Thank you, Ms. Lofgren, for your questions.
        That concludes the questions by the Members of this panel,
    Judge Real. And we thank you for appearing, and we thank you
    for your responses today.
        Judge Real. Thank you, Mr. Chairman.
        Mr. Smith. Would our next witnesses please come forward and
    remain standing? And I will swear you all in.
        [Witnesses sworn.]
        Thank you, and please be seated.
        Mr. Smith. Our first witness is Arthur Hellman, professor
    at the University of Pittsburgh School of Law. Professor
    Hellman has testified a number of times before our Subcommittee
    on Courts and constitutional issues. We received his B.A. magna
    cum laude from Harvard College in 1963 and his J.D. in 1966
    from the Yale Law School.
        Our next witness is Andrew E. Smyth, a private attorney
    from Los Angeles, California. Mr. Smyth represented Deborah
    Canter in the bankruptcy action that gave rise to these
    proceedings. He has served as a deputy public defender for
    Riverside County, California, and for the past 29 years has
    practiced law in the Los Angeles area, specializing in
    bankruptcy law. Mr. Smyth is a graduate of the University of
    California-Los Angeles and the University of Southern
    California's School of Law.
        Our final witness is Charles Geyh, professor of law at the
    Indiana University School of Law. Before teaching, Professor
    Geyh clerked for the 11th Circuit, practiced law in Washington,
    and served as a counsel for the House Judiciary Committee. He
    earned his undergraduate and law degrees from the University of
    Wisconsin.
        Welcome to you all.
        We have written statements from all the witnesses. And,
    without objection, the complete opening statements will be made
    a part of the record. However, would you please limit your oral
    testimony to 5 minutes?
        And, Professor Hellman, we will begin with you.

       TESTIMONY OF ARTHUR HELLMAN, PROFESSOR OF LAW, PITTSBURGH
                             SCHOOL OF LAW

        Mr. Hellman. Thank you, Mr. Chairman.
        Nobody can take any pleasure in the circumstances that
    bring us to this hearing room today. But there are, I think,
    some good reasons why we are here. Allegations of serious
    misconduct have been lodged against a Federal judge, and those
    allegations come not simply from a citizen complainant but also
    from respected members of the Federal judiciary.
        Under the Constitution, when a Federal judge is accused of
    serious misconduct, the power of impeachment is vested solely
    in the House of Representatives. But impeachment is a
    cumbersome process, and more than 25 years ago, Congress
    established an alternate set of procedures--procedures that
    Congress hoped would enable the Judiciary itself to deal with
    all but the most serious instances of misbehavior by Federal
    judges.
        In this particular matter, though, the procedures did not
    operate as they should have done, as the Breyer Committee
    concluded so very, very forcefully in the report it issued
    Tuesday. And so, we find ourselves here.
        The resolution that is the subject of this hearing raises
    two questions.
        First, do the accusations against Judge Real fall within
    the category of very serious abuses that, under the
    Constitution, may be the subject of impeachment proceedings?
        Second, if there is a possibility that Judge Real has
    committed an impeachable offense, what recommendation should
    this Subcommittee make to the full House Judiciary Committee in
    response to the charge from the Chairman?
        On the first question, my view is that, based on the public
    record, the allegations against Judge Real could provide an
    adequate basis for impeachment, but only marginally so. There
    are no allegations of criminality, and based on the available
    record there is no evidence of corruption. In modern times, no
    Federal judge has been convicted and removed from office
    without a showing of criminality or corruption or both.
        On the other hand, the allegations may fit within the broad
    concepts of malconduct and abuse of power that the framers had
    in mind when they drafted the impeachment provisions. In
    addition, in 1913, the Senate voted to convict Judge Robert
    Archbald on an article of impeachment that did not, within its
    four corners, allege either criminality or corruption.
        Putting all that together, I concluded in my statement that
    it is at least possible that impeachment is warranted.
        Now, obviously I had not heard Judge Real's testimony when
    I wrote my statement, and you may conclude, based on that
    testimony, that no further action by the House is necessary.
    But I will assume for the moment that you have not ruled out
    the possibility that impeachment proceedings are justified.
        That brings me to the second question. On that assumption,
    what course of action should the Subcommittee recommend to the
    full Committee?
        And here it seems to me that the key fact is that, at long
    last, a special committee has been appointed under chapter 16
    of the Judicial Code to investigate the alleged misconduct. And
    in my view, the preferable course of action is to suspend
    proceedings on H. Res. 916 until the special committee has
    completed its work and the judicial council and/or the Judicial
    Conference have acted upon its report.
        Now, I understand and share the frustrations at the failure
    of the 9th Circuit to appoint a special committee until more
    than 3 years after the filing of the complaint, two separate
    rulings by the judicial council, and a ruling by a committee of
    the Judicial Conference of the United States.
        But that history cannot be undone. And from a forward-
    looking perspective, the House can only benefit from waiting
    for the processes within the Judiciary to run their course. At
    best, the council and the conference will deal with the matter
    in a way that satisfies all of you that justice has been done.
    At worst, you will be able to proceed with impeachment on a
    much stronger footing than you can do today.
        You will have a full record, compiled through the process
    that Congress itself has ordained. And whatever you do will
    have the enhanced credibility that comes from having given the
    judicial branch the opportunity to deal appropriately with a
    transgressor in its ranks.
        I would like to conclude by looking beyond this particular
    controversy. Although I think that the Subcommittee should wait
    before acting on H. Res. 916, that doesn't necessarily mean
    that there is no work for the Subcommittee to do.
        In particular, the Subcommittee may want to consider
    whether the very troubling history of the accusations against
    Judge Real and their treatment by the 9th Circuit, whether that
    has revealed gaps in chapter 16 that warrant legislative
    attention.
        I mention some of those in my statement, and I will add one
    more: Maybe the statute should be amended to provide for some
    greater transparency. And I hope we have a chance to talk about
    these and other suggestions.
        If the Judiciary Committee uses this unfortunate episode to
    strengthen the ability of the judicial branch itself to deal
    with judicial misconduct, that will provide something of a
    silver lining, whatever the outcome of the proceedings against
    Judge Real.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Hellman follows:]

                    Prepared Statement of Arthur D. Hellman

        Mr. Smith. Okay, thank you, Professor Hellman.
        Mr. Smyth.

                 TESTIMONY OF ANDREW SMYTH, ATTORNEY,
                        LOS ANGELES, CALIFORNIA

        Mr. Smyth. Yes, good morning, Mr. Smith.
        I was hired in December 1999 by Ms. Canter to represent her
    in a chapter 13 bankruptcy. She had filed herself right before
    the unlawful detainer trial to stop the trial.
        I recognize this as what would be called a bad-faith
    bankruptcy, and that the judges do not like you filing simply
    to delay your eviction from a house you don't own. I
    substituted in, nevertheless, because I thought I could help
    her talk to the Canter family and get more time.
        This was--the Canter husband Alan's lawyers asked me would
    I agree to modify the stay so a divorce matter could continue,
    which had to do with property rights. My view is that is one of
    the places the automatic stay does not apply; the divorce
    matter may go ahead. So I so stipulated.
        Then I got the relief from stay petition. And I disagree
    with Judge Real; it would be granted no matter what was
    attached. All it needed to say was it was not her property,
    which it wasn't, and they were trying to evict her. A relief
    from stay is not a ruling that she loses or she leaves. It just
    removes a barrier that lets the State court matter go ahead.
        I told her, ``Let's not even defend it,'' because I don't
    like going in to see a bankruptcy judge defending such a case.
    We filed a plan to pay a minimal amount of $100, so we weren't
    really dealing with her creditors; we were using the bankruptcy
    just to keep her there.
        I told her even if we had shown up in court, 90 percent of
    the time the judge will simply lift the stay. All the creditor
    has to say is, ``This is an unlawful detainer matter. The
    property doesn't belong to the debtor.'' The judge, Zurzolo,
    wrote an opinion that the stay shouldn't apply because it is
    not property of the State and nobody is seeking money. I think
    the Los Angeles sheriff follows that.
        Another misconception about the proceedings below that I
    think might be got from Judge Real's testimony is that there
    was no--the divorce matter did not keep her there. The house
    belonged to Alan Canter and the trust. They were not parties to
    the divorce court proceedings, so no order could have been
    issued against them. Clearly the divorce didn't keep her there
    because there was a U.D.--unlawful detainer--matter going on.
        She hired another lawyer who stipulated to a judgment--it
    wasn't because of the probation report. She had a full day in
    court on her unlawful detainer, and she stipulated--she got
    herself an extra month. She got rid of tens of thousands of
    back rent as part of a deal. And in return, the Canter trust
    got an order of writ of possession. Everyone got what they
    wanted.
        When Judge Real withdrew the reference and took over the
    case, there was no case or controversy in front of them. Nobody
    was asking for that. The matter had been resolved, as to
    possession.
        I certainly didn't ask--I didn't make any motion that it be
    withdrawn. It was withdrawn, and then later he put the stay
    back in.
        At that time, I substituted out of Ms. Canter's case,
    because I couldn't--I was doing things for her for either
    nothing or very low fees. And I said, ``Well, I will keep
    writing things, but I don't want to go to court and use the
    time.''
        She came and asked me to write an adversary proceeding for
    her, which I was surprised she knew the term. She insisted we
    file a complaint asking for title to the house and part title
    to Canters. She had not claimed these as assets in her 13. I
    told her the proper place was Judge Denner's court.
        No matter how much I insisted--Judge Denner was the divorce
    court judge--she insisted it be done in the bankruptcy court.
    So I ghost-wrote it for her, and it was filed.
        I did write a pleading saying that when the Canters came in
    to dissolve Judge Real's injunction, I said there was
    irreparable harm. But in fact, the main prerequisite is a
    chance you are going to win, probably that you will prevail on
    the merits. Well, there was nothing in front of Judge Real the
    first time to prevail on the merits on. There was no case. It
    was unlikely we would prevail on the merits, because Ms. Canter
    never had an interest in the property.
        Later we went to the 9th Circuit. I was mystified, had no
    reason to know why the judge did it. Mr. Katz, who was
    previously a bankruptcy judge, kind of kept asking me. I
    thought he might be accusing me of, you know, back-dooring a
    judge. I said, ``I don't have any idea. I am as mystified as
    you.''
        Later I asked my wife, and she said she had written a
    letter, which turns out to be a declaration on Ms. Canter's
    behalf, and sent it to Judge Real.
        I don't know if Judge Real ever got it. I know that he has
    admitted ex parte communication right in the probation matter.
        So I feel he withdrew it. I think he helped her quite a
    bit. The rental value of the property--I live one block away--
    is not $1,000 a month, because that is Hancock Park. $1,000 a
    month was the dad giving the son a good deal. The rental value
    at that time was $3,500 a month.
        I suppose I was happy my client got all of this time, but I
    just don't think there was any legal arguable basis for Judge
    Real to do what he----
        [The prepared statement of Mr. Smyth follows:]

                     Prepared Statement of Andrew E. Smyth

        Mr. Smith. Okay. Thank you, Mr. Smyth.
        Professor Geyh.

    TESTIMONY OF CHARLES GEYH, PROFESSOR OF LAW, INDIANA UNIVERSITY
                             SCHOOL OF LAW

        Mr. Geyh. Thank you, Mr. Chairman.
        I could point to Professor Hellman and say, ``I will say
    what he said,'' except law professors are incapable of such
    brevity. And so, I will take a couple of additional minutes.
        It seems to me that we are in a matter that is under
    investigation in the Ninth Circuit, and there are, as far as I
    am concerned, four possibilities that could be out there.
        One is, as Judge Real testified, that there was no
    misconduct, he did nothing wrong.
        A second--and this is far-fetched, but, you know,
    additional investigation could conceivably reveal an illicit
    quid pro quo in which Judge Real made decisions in exchange for
    favors of some kind, sexual or otherwise, in which case I think
    there would be the kind of corruption that would clearly give
    rise to a crime or misdemeanor worthy of impeachable conduct.
        The third possibility is that Judge Real simply engaged in
    an ill-advised ex parte communication.
        And the fourth is that there was a certain form of, what I
    would characterize as, simple favoritism: not motivated by a
    quid pro quo, but simply by a desire to help out a litigant
    under circumstances in which the judge's impartiality was set
    to one side and the judge made certain decisions for the
    benefit of Ms. Canter, motivated largely by bias in her favor.
        Which of these is, you know, remains up for grabs. I would
    argue, however, that, as to the last two, the possibility of an
    ex parte communication or simple favoritism, if you look at the
    impeachment precedents, there really isn't much out there in
    the way of support for the proposition that an isolated act of
    simple favoritism, absent a pattern of misconduct, would give
    rise to an impeachable offense.
        Professor Hellman does refer to the Archbald case, although
    that really does involve a case involving an implicit quid pro
    quo there. We had multiple episodes in which Judge Archbald was
    out there engaging in business transactions with prospective
    litigants, benefiting himself at the expense of the adversary
    process.
        And so, for that reason, I am a little bit leery of saying
    that stands as a proposition for something exactly like this,
    which is an isolated case.
        That said, it is precisely because these cases are complex
    and it is precisely because oftentimes they give rise to a
    conclusion that an impeachable offense isn't there that, as of
    1939, the Congress decided, ``Enough of this. We are going to
    start turning over investigation of criminal matters to the
    Department of Justice. And we are going to start looking to the
    circuit judicial councils to investigate matters of judicial
    misconduct. And only after they have concluded are we going to
    be weighing in.''
        In 1980, you added an explicitly disciplinary mechanism
    which was a terrific idea, and it is an even better idea now,
    because Congress is busier now than it ever was before. There
    are more judges now than there ever were before. And I worry
    that, if Congress gets back into the business of investigating
    judges on a regular basis, it is inevitably going to do it
    idiosyncratically.
        The best solution is to turn to the judicial council first,
    wait for them to be finished, and if, on the basis of their
    conclusions, you say there is more evidence of an impeachable
    offense there, that is the time to go after it, not before.
        Now, in this case, I think this Subcommittee is rightly
    frustrated, because you expect the circuit judicial council to
    do its job, and it hasn't. It hasn't done its job. And so you
    are understandably frustrated.
        But it seems to me that the Breyer Commission report, which
    was issued yesterday, should give you a lot more confidence to
    go forward with what I think is the best way to proceed, as
    Professor Hellman suggests. They went forward, and on page 80
    of their report they say that the Ninth Circuit bungled the
    process. And they tell the Ninth Circuit, here is what you need
    to do.
        Under circumstances in which the Ninth Circuit is now
    continuing with the process--and I have confidence, frankly,
    that the Ninth Circuit will, now that it has the opportunity to
    listen to the Breyer Commission and see what it has to say, do
    the right thing.
        In my prepared testimony, I suggest that, really, the best
    thing to do, if you are concerned, is to look at ways to
    improve the disciplinary process, rather than to re-open, sort
    of, the 19th-century practice of investigating judges on a
    regular basis.
        And in my testimony, I suggest that one problem with the
    disciplinary process is that it is subject to such a vague
    standard; that, if you look at it, judges are subject to
    discipline if they engage in conduct ``prejudicial to the
    expeditious business of the courts.'' What does that mean? It
    is a very vague standard.
        My suggestion is, why not link it more directly to
    misconduct in the code of conduct for United States judges,
    which gives you specific dos and don'ts. If you look at that
    code, it says, ``Don't engage in ex parte contacts. Don't
    exhibit favoritism.'' It provides a measure of clarity that
    would be very helpful. And I think it has been a mistake for
    the Judiciary not to follow it.
        The Breyer Committee thinks so too. And yesterday they
    issued, among their recommendations, that, from this point
    forward, the Judiciary ought to be using the Code of Judicial
    Conduct to discipline judges. And I think that is wise.
        Bottom line for me is, impeachment at the end of the road
    still might be something this Committee ought to explore. But
    the first recourse is to wait for the Ninth Circuit to finish
    its business, and then, once you have a full record, to go
    forward or not. Because I think it is unlikely that you are
    going to find an impeachable offense, but you could, for the
    reasons that Professor Hellman indicates.
        Thank you.
        [The prepared statement of Mr. Geyh follows:]

                     Prepared Statement of Charles G. Geyh

        Mr. Smith. Thank you, Professor Geyh.
        Professor Hellman, let me direct my first question to you.
    You have just heard Professor Geyh say that the judicial
    council ``didn't do its job'' and ``bungled the process.''
        How would you describe the investigation to date by the
    Ninth Circuit? Do you think they have done a good job of
    investigating this matter, or do you have another description
    of it?
        Mr. Hellman. Well, I have another description. The Breyer
    Committee, in fact, concluded that both of the two chief judge
    dismissals and the second order of the judicial council were
    inconsistent with the statute.
        Oddly enough, though, in my view, the clearest departure
    from the statutory procedures came in the circuit council's
    review of the first order dismissing the complaint. Because it
    is evident that the council thought that there were unresolved
    factual issues in the record before it. And that, strikingly,
    is why Judge Kozinski wrote the letter to Judge Real that led
    to the inaccurate response that Judge Real discusses in his
    statement.
        But if the council thought there were unresolved factual
    issues, it should not have undertaken that investigation on its
    own at that point in the proceedings. It should have directed
    the chief judge to appoint the special committee, which it had
    the power to do.
        Now, I think there were flaws elsewhere, but that, to mind,
    was the more egregious and most obvious.
        Mr. Smith. Okay. Thank you, Professor Hellman.
        And, Professor Hellman and Mr. Smyth, my next question is
    this: Is there any doubt in your mind, either based on the
    record, Professor Hellman, or on your personal experience, Mr.
    Smyth, that Judge Real wanted the Canter litigation to be
    resolved in her favor?
        Mr. Hellman. I don't think I can speculate about that.
    That, to my mind, is one of the issues that I would like to see
    the special committee address.
        Mr. Smith. Okay. And, Mr. Smyth?
        Mr. Smyth. Well, I think he simply--I think he wanted to do
    what she either asked for in the letter or she asked for--and
    that is give her more time. Ultimately I think he saw she
    couldn't get the house. But I think he wanted to give her--she
    wanted time for retraining. She asked for it, and he wanted to
    give it to her.
        Mr. Smith. Okay. Thank you, Mr. Smyth.
        And, Professor Hellman, last question for you, and that is:
    What precedence are you aware of, historical precedence, that
    might apply to this case at hand?
        Mr. Hellman. Well, I would like to say a little bit more
    about the Archbald case that both Professor Geyh and I have
    mentioned, because it is the strongest; it is the one of most
    interest here.
        There were actually 13 articles of impeachment that were
    voted by the House against Judge Archbald. Now, six of those
    were based on conduct, or alleged conduct, that took place when
    Judge Archbald was a district judge, before he was appointed to
    the Commerce Court, and the Senate acquitted on all of those.
    So we can put those aside.
        But the Senate also acquitted on one article, it happened
    to be article 2, that did allege specific quid pro quo
    corruption while Judge Archbald was a judge of the Commerce
    Court.
        And, to my mind, it is very striking, the contrast between
    the Senate's acquittal on article 2 and its conviction on
    article 4. Because article 4, as I have said, within its four
    corners, didn't allege corruption, didn't allege criminality.
        So this suggests two things to me: One, that the senators
    studied those articles rather closely; they didn't just vote en
    bloc for or against. And second, that the conviction on article
    4, yes, it was part of a--the articles themselves alleged a
    pattern of corruption, but the senators didn't vote on a
    pattern. They voted on the individual articles. And article 4
    didn't say criminality, didn't say corruption. They convicted
    anyway.
        Mr. Smith. Okay. Thank you, Professor Hellman.
        And, Mr. Smyth, just want to get your opinion as to how you
    feel Judge Real treats litigants and attorneys in his court.
        Mr. Smyth. Well, I mainly appear in bankruptcy court, but
    after 30 years I have appeared in front of him 10 times. I have
    had one jury trial, a summary judgment proceeding.
        I think the word is autocratic. He is pro-police. In the
    trial I had, I felt he didn't mind indicating to the jury what
    side he was on. I know judges in England can sum up, but here
    it is not forbidden but they never do.
        But it is hard to say----
        Mr. Smith. How did the judge indicate to the jury what side
    he was on?
        Mr. Smyth. Well, there might be--this was a police case,
    and, you know, it could be imagination, but simply taking a
    request to--let's say, crossly-examining your witnesses, facial
    expressions. Of course everyone knows how he treats Mr. Yagman,
    who is--for police cases and, I suppose, talking rudely. And
    sometimes he is very arrogant and rude in the way he talks. We
    have an example in this case.
        So I don't appear there very often, but I don't like
    appearing there.
        Mr. Smith. Okay. Thank you, Mr. Smyth.
        The gentleman from California, Mr. Berman, is recognized
    for his questions.
        Mr. Berman. Thank you, Mr. Chairman.
        I really would like to use most of my time to ask our
    professors more on this issue of changing the process that we
    have legislated and amended in a way that you think would make
    it better. You start speaking to that in your testimony, but I
    haven't fully absorbed all that written testimony.
        But, first, I just want to--Mr. Smyth, you stated as a,
    sort of, a factual certainty the receipt of a letter.
        Mr. Smyth. No. No, I did not. In fact, I said I didn't know
    if he got it. I know--I believe my wife that she----
        Mr. Berman. No, no. I heard you. You----
        Mr. Smyth. Oh, no.
        Mr. Berman. You said, ``I don't know if he made his
    decision based on the letter'' or--it came across to me as
    assuming he received a letter, which he has denied receiving.
        Mr. Smyth. No, no.
        Mr. Berman. And I guess the only question I have for you
    is, do you have first-hand knowledge of whether or not such a
    letter was sent?
        Mr. Smyth. I am sure if you play the tape, I specifically
    said I don't know if he got the letter. It turns out it was a
    declaration. I don't know--the only knowledge I have is----
        Mr. Berman. Okay. All right. Then you are saying I
    misunderstood your references to----
        Mr. Smyth. I do have knowledge of things that make it
    likely he did. But I specifically said here I don't know that
    he did or not.
        Mr. Berman. I am sorry. Okay.
        I, of course, Professor Hellman, was most intrigued by your
    inclusion of a footnote which indicates that Judge Kozinski's,
    I guess it was a dissent, which I haven't read yet. My theory
    is we shouldn't be doing this until after the special committee
    concludes its work and issues a report. And the corollary of
    that is, why read something until I have to?
        But your footnote talks--``Judge Kozinski suggested that
    Judge Real be required to compensate the trust for the damage
    it suffered as a result of the judge's unlawful injunction.''
    Meaning the injunction was reversed on appeal on the grounds
    there was no basis in law for the injunction?
        Mr. Hellman. I am not sure whether he was referring solely
    to that or to the additional assumption that there was
    misconduct as well. It is hard for me to imagine he would be
    saying a judge should be required to compensate simply because
    his decision is reversed on appeal. It is hard enough to get
    people to become Federal judges today. I mean, nobody would
    take the position under that rule.
        Mr. Berman. Yes. My fear was you would start extending it
    to Members of Congress for bad votes taken. I mean, there are
    consequences to this kind of suggestion that should make some
    of us have concerns.
        But develop a little more, if you can, just synthesize in
    the remaining time, you and Professor Geyh, if you could, what
    kinds of changes should we be making in the law.
        Mr. Hellman. Thank you. First, on that one, I think it is
    reasonably clear that a compensatory remedy would not be
    permitted under the current statute. It would be a very tough
    argument, and for the reasons you have indicated, I think that
    is a very doubtful line.
        To my mind, the more promising line--and I have to say the
    Breyer Committee report reinforces this--would be to clarify
    even more--I think it is clear in the statute--but to clarify
    even more when the special committee has to be appointed.
        Because in the high-profile cases that the Breyer Committee
    investigated, that was one of the repeated failings, that the
    chief judge did not appoint a special committee when he or she
    should have done so.
        And so, maybe the statute could make absolutely clear that,
    in all but the most obvious cases, the chief judge does appoint
    a special committee.
        The other aspect----
        Mr. Berman. And by that, you mean create a legal situation
    where, essentially, the chief judge feels, if there are factual
    allegations which one assumes are true, would there be some
    basis for thinking there was wrongdoing, create the committee,
    rather than--in order almost to--it isn't the chief judge
    concluding that the judge did something wrong, but that, by
    operation of law in this situation, they really had no choice
    but to create the committee. Get the personal consequences--
    reduce the personal consequences of the decision about the
    difficult job of policing your own.
        Mr. Hellman. Yes, and to make very clear that a formal
    investigation is a--anything like getting sworn declarations--
    this case presents, actually, a very good example of that. The
    statute draws a line between the limited inquiry--that is the
    word in the statute--the limited inquiry that the chief judge
    can conduct and a formal investigation, which implicitly is the
    special committee.
        Well, the chief judge got sworn declarations. And it seems
    to me that, when you are getting sworn declarations, that is a
    formal investigation. And that tells you, appoint a special
    committee. But----
        Mr. Berman. Mr. Chairman, may I have one additional minute?
        Mr. Smith. The gentleman's time has expired. Without
    objection, he is recognized for an additional minute.
        Mr. Berman. In my unfortunate concurring capacity as the
    Ranking Democrat on the Ethics Committee, the similarities of
    problems and difficulties between the concept of self-
    discipline in the judicial branch and the difficulties we face
    in the legislative branch, the parallels are very interesting.
        Professor Geyh, what do you think of this notion of tilting
    more toward the more formal investigative committee?
        Mr. Geyh. Well, I think it is a good idea for the reasons
    the Breyer Committee gives. And it seems to me that one
    desirable outcome of this would be for the Subcommittee to take
    a look at the Breyer Committee report, in its oversight
    capacity, to work with the Judicial Conference to make sure
    that they promptly adopt the recommendations of the Breyer
    Committee.
        I think that it is true that if district judges are out on
    their own, engaging in fact-finding that is less than complete,
    it does this process a disservice. That the norm, when there
    are factual issues to be found, ought to be to create an
    investigative committee. And what the Breyer Committee says is,
    that ought to be our new norm; that ought to be the way we do
    business.
        I don't think--whether we need legislation that makes it
    unalterable worries me a little, because in some situations it
    may not be necessary. But that ought to be the norm.
        And that is really where I think this Committee could do
    the most good, is in ensuring that this Breyer Committee report
    isn't just deepsixed.
        Mr. Smith. Okay. Thank you, Mr. Berman.
        The gentleman from California, Mr. Gallegly, is recognized
    for questions.
        Mr. Gallegly. Thank you very much, Mr. Chairman.
        And I apologize for coming in a few minutes late. I would
    like to have asked Judge Real a couple questions, but that
    didn't take place because of my absence.
        I was the first non-lawyer on this board, and, as a result
    of that, I am always a little more careful when you are dealing
    with some very technical issues. And I do more listening than
    talking, normally. When you start talking, you stop learning,
    around this place.
        I did find it very interesting--is it ``Smith'' or
    ``Smythe''?
        Mr. Smyth. ``Smith'' with a ``Y,'' your honor--pardon me,
    Mr. Gallegly.
        Mr. Gallegly. Okay. Mr. Smyth, your assessment of Judge
    Real's, for lack of a better word, demeanor on the bench seemed
    to be--you had some fairly strong opinions of that, which I
    assume has been a result of several years of experience.
        Mr. Smyth. Well, I am not really the person to ask, because
    I probably had 10 appearances. And he is not real exceptional.
    There are two other Federal judges in Los Angeles I would--you
    know, it is not quite like bankruptcy court or municipal court.
    It is not as relaxed. If you are not careful, you will be
    knocked down a bit.
        So I would say this: He is not, let's say, unfair. But he
    is an autocratic-type judge.
        Mr. Gallegly. Well, let me ask you this. Have you had any
    experience or any opinion of Stephen Yagman?
        Mr. Smyth. Only what I have read. I have done some similar
    police-type cases, and I have read a lot about him, so I do
    have some opinions.
        Mr. Gallegly. And what would those opinions be?
        Mr. Smyth. Well, he is almost sort of reckless in the way--
    he is for suing the police, but the way, for instance, he
    accused Judge Keller of being a drunk simply so he could have
    Judge Keller recuse himself. That sort of typifies--and, of
    course, I know his problems now with the taxes. And he is a
    self-promoter.
        But, I mean, he does a good job in suing police officers
    who have misconduct. And I understand he has had a running
    battle for years with Judge Real.
        Mr. Gallegly. Does he have a reputation of bringing
    lawsuits against cities and counties for the conduct of their
    police officers?
        Mr. Smyth. Yes.
        Mr. Gallegly. Thank you very much, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Gallegly.
        The gentlewoman from California, Ms. Waters, is recognized
    for questions.
        Ms. Waters. Thank you very much, Mr. Chairman and Members.
        I would like to ask the witnesses a little bit about this
    process. I have spent some time here reading Mr. Yagman's
    background and his actions. And it seems that there is an
    element of revenge here, based on a decision by Judge Real that
    sanctioned him and caused him to have to pay $250,000. It was
    reversed. However, Mr. Yagman appears to have put a lot of time
    in going after Judge Real. And it appears to be consistent with
    his behavior, some of which has been alluded to here earlier.
        Now, I am wondering this. If, in fact, this case had gone
    to the special committee, is there anything that would have
    allowed them to make a special finding about who Mr. Yagman
    was, whether or not this was a credible complaint, whether or
    not it was a revenge complaint, whether or not his actions in
    this case and other cases would deem him to be someone who was
    not credible.
        What I am wondering is, you mentioned that there are some
    things that maybe need to be looked at for the future, that
    perhaps there are some areas to be improved.
        I have heard a lot about areas that could be improved, as
    it has to do with the judicial council or with the chief
    justice. But I want to know if there has been any discussion
    about those who bring complaints and whether or not there can
    be a finding and, following the first hearing of the special
    committee, there will be no more actions taken, because the
    finding that was made by that special committee was such that
    this was not a legitimate complaint.
        Mr. Geyh. It is possible for the chief judge to dismiss
    complaints as frivolous, and a significant percentage of them
    are.
        I am a little bit leery about creating, sort of,
    presumptions based upon who the complainant is, in part because
    a significant measure of these complaints are filed by
    prisoners and others who it might be very easy and quick to say
    are inherently unbelievable and we will disregard what they
    have to say.
        In some ways, I am comfortable with the notion that the
    chief and the committee, if warranted, will take a look to see
    beyond who is making the complaint, to see if there is any
    ``there'' there. And if there is, conducting an investigation,
    even if the source of the complaint is suspect.
        I understand your point, and there is--I mean, the vast
    majority of complaints are dismissed before any investigation
    is undertaken, for all the right reasons.
        Ms. Waters. Well, if I may interrupt you, I certainly don't
    mean that there could be a finding that this person's past
    actions alone should create a situation where they could go no
    further in investigating or coming here to the Congress of the
    United States.
        But I do think that there should be something that would
    take into consideration the relationship between the one making
    the complaint and the judge. Whether or not there has been a
    case where the complainant has been disadvantaged, had been
    sanctioned, in some way that would cause them to want to get
    back. And whether or not they took extraordinary actions to get
    back at the judge, who, you know, ruled against them.
        I mean, I do think that is in addition to, not simply
    looking at the background of a person and the fact that they
    may have been involved in other actions or complaints, but as
    it relates to this particular judge.
        Mr. Geyh. No, point taken. In the current framework--and,
    Professor Hellman, help me out here if I am wrong--I think that
    the nature of the witness is going to be germane only insofar
    as it bears on the truth or falsehood of the accusations being
    made.
        Mr. Hellman. Yes, I agree with just about everything
    Professor Geyh has said.
        And I would add this one point: Congress made a very
    considered and conscious decision in 1980 to let anybody file a
    complaint. And I think one of the reasons they had for that--in
    this case, you had somebody who has absolutely no connection to
    the case who just comes in out of nowhere.
        But I think Congress thought, and I think it was a very
    good decision, to simply let insiders or people who were
    involved, that would not necessarily reveal misconduct. But the
    consequence is that, sometimes, it sort of goes too far in the
    other direction.
        But I think the judges can deal with this under the current
    system, and they will, as Professor Geyh says, simply dismiss
    the complaints that are filed out of vindictiveness or
    maliciousness.
        Ms. Waters. Well----
        Mr. Smith. Thank you, Ms. Waters. Your time has expired.
        Ms. Waters. Thank you.
        Mr. Smith. Thank you.
        The gentleman from California, Mr. Issa, is recognized for
    his questions.
        Mr. Issa. Thank you, Mr. Chairman.
        And I, too, like Mr. Gallegly, am not an attorney. So a lot
    of time, trying to understand the complexity of what is right
    or wrong for a judge requires that I draw on 20 years of
    business and anecdotal examples.
        But, Professor Hellman, perhaps you could help me with
    this. Almost 30 years ago, I had an artisan's lien against
    goods that I had manufactured in house, physically in my plant.
    Classic example: Company filed for bankruptcy. Their bank, who
    had a lien but an inferior lien to the mechanic's lien, tried
    to get the assets out; went to Federal court. The bankruptcy
    judge said, ``I will give you the''--and I can never pronounce
    this properly--``the indubitable equivalent.'' And he took my
    goods. I never got a penny. Had first and best lien; I was
    screwed.
        I understood the power, from that day forward, that a
    bankruptcy judge had, or any Federal judge, to ignore with
    impunity what is in fact clear, established law and predictable
    outcome in most cases. And there is nothing you can do about
    it.
        In this case, it appears as though the Federal judge, who
    was a bankruptcy judge, specifically an appointed judge for
    that, made an appropriate ruling, sans this other piece of
    information.
        That, if you did not have--and there has been no evidence
    placed here today, including by the judge himself, that he had
    any knowledge of some specific court ruling that said, ``You
    are getting this house as part of a settlement. Your ex-husband
    is supposed to pay his father''--any of these other things that
    have been talked about or surmised. Based on bankruptcy law,
    that house should have been vacated or paid for.
        This judge made a decision to take that decision away from
    the bankruptcy judge without showing cause and without
    specifically showing his cause for the cause here today.
        In your experience, is that out of the ordinary? And does
    that imply some level of hubris, whether or not it is
    impeachable?
        Mr. Hellman. Well, from what we have heard, it seems as if
    there were aspects of this case that were out of the ordinary.
        There is one other point, though, that your questions raise
    and which I think has not adequately been dealt with up to this
    point today, which is that there is something of a tension
    between the misconduct process and the appeal process.
        I mean, I think the ordinary assumption is that errors,
    even gross errors, awful errors, that judges make will be
    corrected in the appeal process.
        And my understanding--I have to say, by the way, bankruptcy
    is one of those areas of law that I just shrink from. I have no
    background in it, and the technicalities I find just beyond me.
        Mr. Issa. Apparently that is because you are not just any
    district judge, who, by definition, is a bankruptcy judge and
    has primary authority.
        Mr. Hellman. But one of the things I understand that
    Congress did do was to make, at least in the more recent
    statutes, perhaps not at the time that you were involved in
    that matter--one of the things that Congress has done is to
    make appeals easier, as a general rule, in bankruptcy. So that,
    in bankruptcy--if there are bankruptcy people around, they will
    probably correct me, but my understanding is that it is much
    easier to take an appeal in the middle of a case in a
    bankruptcy proceeding than it is in district cases.
        So that is one of the things that Congress can do--I guess
    bankruptcy isn't this Subcommittee either, so we are all lucky
    in that respect, but one of the things----
        Mr. Issa. It took us three Congresses to get a new
    bankruptcy law passed. I am sure it will be three more before
    we start talking about a new one.
        Mr. Hellman. Well, but----
        Mr. Berman. Will the gentleman yield?
        Mr. Issa. Of course.
        Mr. Berman. I think we can say, based on your comments
    earlier and now, that, had you been here in the late 1970's and
    1980's, you would have been on the Kastenmeier side of the
    Rodino-Kastenmeier fight about Federal judges and bankruptcy
    judges.
        Mr. Issa. Reclaiming my time, I have no doubt I would have
    been on one side. [Laughter.]
        So, with the intricacy of this, do you think that it is
    appropriate for a district judge to take something and, without
    the facts--as the judge stated here today, he didn't have them.
    He is only surmising today that these things existed in a case
    that he never saw. He never saw the State case. He simply said,
    I have got a bankruptcy judge who made this decision. The case
    record included something which, although I understand is not
    illegal by any means, as the judge said, but in fact he thought
    inappropriate to be considered, reversed a case in bankruptcy.
        I go back to the same question for any of the three
    panelists, since the red light is blinking: Doesn't this reek
    of hubris of a judge who has simply said, ``I have all the
    power, I will do what I want to do and let the appellate court
    decide if they don't like it later''?
        Mr. Hellman. Just a very, very quick response. My initial
    reaction, reading that passage in Judge Real's statement, was
    to ask, wouldn't it have been easier just to ask the bankruptcy
    judge first and wait to get an answer before taking action?
        Mr. Issa. Anyone else, quickly, since we are blinking?
        Mr. Geyh. My reaction is to say that what you are
    describing might well constitute reversible error. And does it
    require an element of hubris? The answer is perhaps. I think it
    is important to understand that the Code of Judicial Conduct
    talks in terms of judicial demeanor as well. This might,
    likewise, be the subject for judicial discipline in appropriate
    cases.
        I get very nervous, however, when we start talking about
    impeaching judges because their decisions are inappropriate,
    even outrageously inappropriate. That is where I start drawing
    the line, for myself.
        Mr. Smyth. I have a comment. I disagree--you made a comment
    that seemed to say bankruptcy judges aren't constrained by the
    rules as much as others. They are.
        I think you were the victim of what they call a preference
    action, where your own property, undoubtedly belongs to you,
    still give it to a trustee; it seems unfair. Yes, it does seem
    to be, but this is not the only Federal judge who says, ``I am
    the judge, and I will do it, and see if you can reverse me.''
    That is what it seemed like.
        Mr. Smith. Thank you, Mr. Issa.
        Mr. Issa. Thank you.
        Mr. Smith. The gentleman from California, Mr. Schiff, is
    recognized for his questions.
        Mr. Schiff. Professor Hellman, the standard for
    impeachment, the power that we have to impeach, is that the
    same standard that is applied whether we are impeaching a
    Federal judge or impeaching a Member of Congress or impeaching
    a president of the United States? Is it the same standard?
        Mr. Hellman. The constitutional standard is the same one.
    There is only one standard in the Constitution. It says,
    ``treason, bribery and other high crimes and misdemeanors.''
        Mr. Schiff. So if the standard was--whether you are
    autocratic or not, we could impeach a lot of our Committee
    Chairmen. [Laughter.]
        Present company excluded, of course. He would only be
    censured. [Laughter.]
        But others----
        Mr. Hellman. Might I add just one thing to that, though?
    Because I think the term ``high crimes and misdemeanors'' is
    misleading if it is read as focusing on criminality in the
    ordinary sense.
        There is some useful material on that in Professor Geyh's
    statement, because what he points out there is that the framers
    distinguished between ordinary crimes, which would be
    prosecuted through the courts, and what they called political
    offenses--I think that was Hamilton's word--that would be
    punished by the legislature through the impeachment process.
    And what that looks----
        Mr. Schiff. Mr. Hellman, I only have 5 minutes. I am sorry.
        Mr. Hellman. Sure.
        Mr. Schiff. But you may be able to get some of that
    material in, in the form of my questions.
        But what I was interested in was, you made a statement
    during your original testimony that there were no allegations
    here of criminality or corruption, and that it would be
    extraordinary, if not unprecedented, to impeach a judge on the
    basis of allegations that did not approach criminality or
    corruption.
        Mr. Hellman. Correct.
        Mr. Schiff. It seems to me that, you know, there have been
    statements about the judge's judicial temperament. There have
    been questions raised about whether the case should have been
    withdrawn from bankruptcy.
        But the gravamen of the complaint is the ex parte contact.
    Without the allegation of an ex parte contact, it may be
    reversible error, as Mr. Geyh points out, but it would be even
    more extraordinary, in terms of an impeachable case, because
    you wouldn't have criminality, you wouldn't have corruption,
    which we don't have even if you accept all the allegations as
    true. But then you would have nothing, really, more than
    judicial temperament and a reversible error.
        Isn't the gravamen of the complaint here the ex parte
    contact?
        Mr. Hellman. I agree with you, without the allegation of ex
    parte contact, I think you are clearly below the standard, yes.
        Mr. Schiff. We don't have the opportunity, I think, here to
    really delve into whether the ex parte contact took place or
    not. The judge has said it didn't. There are a lot of
    questions, Mr. Smyth, I could ask you about that, because part
    of the allegations involve your wife, as I understand them. But
    in my 2 minutes remaining, we don't have time to do that.
        But I did want to ask, and I guess, Professor, you might be
    the right--and Mr. Geyh, as well--you have proposed that when
    there are substantial allegations, that a special committee--
    that the presumption should be a special committee should be
    formed.
        And I guess the one question I would have on that is, here
    we have a case where somebody completely removed from the
    complaining conduct, Mr. Yagman, is the complainant. So, not a
    party to the proceedings, no percipient knowledge, someone who
    arguably read about this in the paper and decided this is a way
    to file a complaint against this judge, someone who is now, as
    I understand, under indictment himself, has the ability to
    initiate this.
        And I don't know that we want, in circumstances like that,
    everyone to be able to initiate a special committee. Would it
    be a better remedy, in part, to provide--and I actually had a
    statutory fix for this. The Judicial Conference said they
    couldn't intervene because no committee had been formed.
        Couldn't either the Judicial Conference on its own or the
    Congress legislatively change the law, such that, whether a
    special committee is created or not, the conference would have
    the ability to intervene? Is that a potential remedy?
        Mr. Hellman. Yes.
        And first, just to clarify, I am not saying that a special
    committee should be formed in the ordinary case, because the
    vast majority of cases--of complaints--are plainly without
    merit, and I wouldn't want a special committee in those.
        But I think what you suggest is a very promising route. For
    example, one simple fix that would have taken care of this case
    would be to say that any one member of the judicial council can
    authorize an appeal to the Judicial Conference. So that would
    get it even if there was no special committee. And that would
    broaden the availability of a Judicial Conference review.
        Mr. Schiff. This goes to the issue----
        Mr. Smith. The gentleman's time has expired, but, without
    objection, he is recognized for an additional minute.
        Mr. Schiff. Thank you. And I will be briefer than that.
        This goes to the point that Mr. Berman was making, which we
    are wrestling with in the Congress too, about whether to allow
    outside complaints against Members of Congress, as opposed to
    only internal complaints.
        And, of course, the risk is you get political opponents
    making complaints. The risk for a judge is that you get
    aggrieved litigants making complaints. And that affects their
    independence on the bench in future cases.
        Anyway, I appreciate your testimony.
        I yield back my time, Mr. Chairman.
        Mr. Smith. Thank you, Mr. Schiff.
        I would like to thank all Members for their interest and
    for their attendance, and also our witnesses for their
    testimony today.
        This has all been very, very helpful. Thank you, again.
        We stand adjourned.
        [Whereupon, at 11:15 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Howard L. Berman, a Representative
         in Congress from the State of California, and Ranking Member,
        Subcommittee on Courts, the Internet, and Intellectual Property
        Mr. Chairman,

        One of the primary responsibilities of the Subcommittee is to work
    to insure that our judicial branch maintains its independence.
    Therefore, while there may be a ``question'' as to whether certain
    judicial behavior was or was not appropriate, and what the correct
    response should be, this congressional hearing on the impeachment of
    Judge Manuel Real is premature. As I understand it, the Ninth Circuit
    on May 23, 2006 convened a special committee to investigate the charges
    against Judge Real and that a closed door hearing on the matter was
    held on August 21, 2006, and the investigation is ongoing.
        The Judicial Councils Reform and Judicial Conduct and Disability
    Act of 1980 established our current system of judicial self discipline.
    It authorized the establishment of a Judicial Council in each of the
    thirteen federal circuits that would be responsible for the review of
    complaints against federal judges and it empowers the Councils to
    suspend the judge, or publicly or privately reprimand the judge. When a
    complaint is received, the chief judge reviews it, and either dismisses
    the complaint as baseless or--if it has merit--the chief judge can
    assemble a special committee to make factual findings and refer the
    matter to the entire Judicial Council, who may then conduct any
    additional investigation it deems necessary. Finally, the complaint may
    be petitioned to the United States Judicial Conference for review, and
    the Judicial Conference may refer the complaint to the House of
    Representatives for consideration of impeachment.
        Following hearings in this Subcommittee, this act was amended--with
    bipartisan support--by the Judicial Improvements Act of 2002. This
    amendment enables the chief judges to conduct limited inquiries into
    the complaints.
        On April 29th of this year the Judicial Conference held that it had
    no jurisdiction to review the Judicial Council's actions because no
    special committee had been appointed and factual disputes exist that
    could benefit from a special committee review. In May, the Ninth
    Circuit Chief Judge responded by appointing a special committee to
    investigate. This special committee investigation is in-line with the
    established procedures, and I contend this is the proper procedure to
    be followed.
        I think we should have held off on this hearing in order to allow
    the special committee to perform its job.
                                   __________

    Prepared Statement of the Honorable John Conyers, Jr., a Representative
      in Congress from the State of Michigan, and Member, Subcommittee on
                Courts, the Internet, and Intellectual Property

        The abuse of judicial authority is troublesome and dangerous not
    only to the parties it affects, but to the very stature of the
    judiciary.
        However, impeachment of a federal judge for noncriminal activity
    deserves the closest of scrutiny and a fair process. I don't believe
    this resolution meets either of those demands.
        First, this resolution is premature. A Special Committee of the
    Ninth Circuit is currently investigating the charges against Judge
    Real. That committee was lawfully appointed pursuant to statute, has
    subpoena authority, and will issue a full report with recommendations.
    The Committee most recently conducted closed-door hearings in August.
        There is no reason to intervene in the current process. This
    committee passed the Judicial Improvement Act of 2002--affirming this
    process--on a voice vote, with vocal support from both sides of the
    aisle. It is completely improper for the committee to now intervene
    because it simply does not like the results of that process or because
    it thinks it is moving too slowly.
        Second, the Resolution rushes to judgment on the factual issues
    when the Chief Judge of the Ninth Circuit has twice dismissed the
    complaint against Judge Real. Truly, a matter of such import should not
    be conducted in an ad hoc and rushed fashion. Impeachment of a federal
    judge for noncriminal activity is exceedingly rare, as it should be,
    and must be afforded all the protections and procedures of regular
    order.
        I respect the Chairman's concerns with enforcing judicial
    discipline, but we actually discourage the Judiciary from policing
    itself when we intervene to mandate Congressionally preferred results.
    Truly, what will be the incentive to pass judgment on one another when
    Congress will substitute its own judgment at will?
        That being said, I look forward to hearing the various factual
    accounts from our witnesses today and discussing the rigid standards of
    impeachment that exist in this arena.

    Letter to the Honorable Lamar Smith, a Representative in Congress from
    the State of Texas, and Chairman, Subcommittee on Courts, the Internet,
         and Intellectual Property, and the Honorable Howard Berman, a
     Representative in Congress from the State of California, and Ranking
        Member, Subcommittee on Courts, the Internet, and Intellectual
             Property, from Gary Canter of Los Angeles, California