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




                               BEFORE THE

                       AND INTELLECTUAL PROPERTY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                              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


29-969                      WASHINGTON : 2006
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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
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

             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

                     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

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

                               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

               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



                      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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 


    Judge Real. Thank you, Mr. Chairman and Members of the 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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-
    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 
    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 
    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 
    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 
    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 
    Judge Real. We never learned that. We have never learned 
    Mr. Schiff. Well, and I don't know if you can comment on 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    Ms. Waters. All right. Thank you. I have no further 
    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 
    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.

                         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 
    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 
    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.

                    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 
    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 
    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 
    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 
    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.

                         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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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