Judge Zilly’s sanctions order against Cyrus Sanai; Kozinski recuses himself

by Ted Frank on June 15, 2008

The furor over the Kozinski web site pseudo-scandal over what Wonkette calls “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts” has caused Judge Alex Kozinski to recuse himself from the obscenity trial, resulting in a mistrial. Kozinski is known for his ethical rectitude, which is perhaps why he did so, but one wishes that he didn’t permit the appalling LA Times coverage to create a perception of a perception of a bias, much less agree that that provides grounds for recusal. But with some implausibly calling for his resignation, discretion is perhaps the better part of valor. Still, as Jesse Walker notes, “There has been no shortage of free-speech trials in which the presiding judges had a moral objection to essentially innocuous material. I don’t see any reason why such a case shouldn’t be heard by a jurist with a history of tolerance.” And one wishes that the conservatives calling for Kozinski’s resignation would use that powder for Ninth Circuit judges who act ultra vires rather than for the jokes judges share in their own time.

Speaking of misplaced legal discipline, one wonders why Kozinski is facing investigation while Cyrus Sanai has avoided legal discipline from the bar. This July 2005 order from Judge Zilly in the Western District of Washington is telling:

Plaintiffs’ conduct in this litigation has been an indescribable abuse of the legal process, unlike anything this Judge has experienced in more than 17 years on the bench and 26 years in private practice: outrageous, disrespectful, and in bad faith. Plaintiffs have employed the most abusive and obstructive litigation tactics this Court has ever encountered, all of which are directed at events and persons surrounding the divorce of Sassan and Viveca Sanai, including parties, lawyers, and even judges. Plaintiffs have filed scores of frivolous pleadings, forcing baseless and expensive litigation. The docket in this case approaches 700 filings, a testament to Plaintiffs’ dogged pursuit of a divorce long past.

Plaintiffs have flatly refused to obey Orders of this Court, to cooperate with discovery, and to comply with their obligations under the Federal Rules. They have refused to appear for depositions and respond to discovery. When deposing opposing parties, their conduct has been abusive and disrespectful. They have intercepted and wiretapped the phone calls of other represented parties in this litigation. They have actively and improperly interfered with discovery, and required this Court to intervene all too frequently.

Plaintiffs have also disobeyed Orders of this Court relating to property owned by Sassan and Viveca during their marriage, including a vacant lot and the family home. In disregard of a direct Order from this Court, Plaintiff Fredric Sanai and Viveca Sanai effected lis pendens filings with the Snohomish County Auditor that were contrary to the Orders of this Court. See Transcript of Proceedings, docket no. 272; see also Order on Motion for Contempt, Sanctions, and Attorneys’ Fees, docket no. 262. The sanctions imposed by the Court for those actions are currently on appeal, but Plaintiffs’ disregard for the Orders of the Court is relevant to the Court’s consideration of Plaintiffs’ continued course of misconduct.

Sanai v. Sanai, Case No. C02-2165Z (W.D. Wash. Jul. 1, 2005). As a Los Angeles Superior Court judge found:

[Sanai] has proliferated needless, baseless pleadings that now occupy about 15 volumes of Superior Court files, not to mention the numerous briefs submitted in the course of the forays into the Court of Appeal and attempts to get before the Supreme Court, and not one pleading appears to have had substantial merit. The genesis of this lawsuit, and the unwarranted grief and expense it has spawned, are an outrage.

Sanai v. The U.D. Registry, Inc., 2005 WL 361327 at *15 n. 36 (Cal. App. 2005) (reversing fee award on other grounds). Where are the disciplinary authorities? Why hasn’t Judge Zilly referred a complaint for criminal contempt to the U.S. Attorney?

Earlier on Overlawyered.

Update, June 16: More.

Update, June 17: On Patterico, Cyrus Sanai has made available his brief arguing why Zilly’s sanctions order was incorrect. We highly recommend everyone read it, as the brief gives a very good sense of the merits of his arguments.

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{ 28 comments }

1 Larry Reilly 06.15.08 at 12:08 pm

Oh, Ted,
Encore une fois: There are issues here that exist even if Sanai did not.
If it weren’t for ad hominem, I suppose you wouldn’t have any hominem at all.

Take that divorce case you’re quoting at length, one with family members acting as the lawyers (gosh, who woulda thunk there might be some extra passion and irrationality involved in such a situation?), and set it aside for just one moment.

Look at the pure issues in this matter: porn, by whatever degree/grade/legal it might be, available on the web from a judge sitting in an obscenity case; and copyrighted mp3 files available, too, which is a hot issue in the courts.

Now, take just those facts and issues and make believe the judge in question presides in one of those Judicial Hellholes, and never saw a plaintiff or class action he didn’t like. I’m only asking that you put down one prism and try another. I suspect you might see it differently. Just a hunch.

2 Ted Frank 06.15.08 at 12:28 pm

The record will reflect that there is a prominent Madison County attorney who has been accused of Mann Act violations and drug dealing, and that case has never been mentioned on this site until this comment, which also doesn’t mention the lawyer, though we’ve been critical of his litigation tactics. Our case against injustice in Madison County is based on what happens in the courts of Madison County, and not the private peccadilloes, legal or illegal, of the participants therein.

I stand by my position that Cyrus Sanai (whose abusive litigation record goes beyond his seven-year vendetta against his father) has done more to aggrieve the justice system than Judge Kozinski has.

3 Larry Reilly 06.15.08 at 1:39 pm

That was pretty cool.
In addressing my comment about how ad hominem attacks on Sanai have nothing to do with the Kozinski issues –quite a number of reasonable minds find them legitmiate issues — you used it as an ally-oop pass.
You turned my query into another an ad hominem attack on someone else while, wow, disguising it as an example of how honorable you are for having not done so earlier.
So, a lawyer in a tort case you dislike got caught having something to do with prostitution and drug dealing. Whew. That’s certainly dispositive in the preemption aspect of the case in Madison County.

You scrored low with that one, and get zero ehnancement for degree of difficulty because of contortions having nothing to do with the event being judged here.

If lightning-strike odds should place a Judicial Hellhole judge in similar straits as Kozinsi, I’ll be looking for you to put down the sword and aid the enemy from unfair attack.
Because it is all about law, rules, procedures and most…..most of all….principle. Right?

4 Ted Frank 06.15.08 at 1:51 pm

Criticizing Sanai’s appalling litigation conduct is not ad hominem. It’s frankly noteworthy if even if he hadn’t been pitching a non-story to the LA Times.

You claimed that we have a double standard, and that we would be lambasting Kozinski if he were not one of the sensible judges on the Ninth Circuit. I refuted that by noting that we have ignored a widely-publicized case about the private actions of a Madison County attorney.

I stand by my position that Cyrus Sanai has done more to aggrieve the justice system than Judge Kozinski has. I haven’t seen anyone make a reasoned case why there are legitimate issues with Kozinski. I’ve seen lots of bootstrapping from people with an ax to grind.

5 frankfromfresno 06.15.08 at 6:28 pm

One of the images that Mr. Sanai pulled from Kozinski’s hard drive (and which was linked to over at the Patterico blog) depicts what appears to be an underage male providing oral sex to himself.

I, thank heavens, don’t know much about the law of child pornography, but from what I do understand whenever there is a graphic depiction of a minor engaging in masturbation that is – by definition – child pornography.

Isn’t possession of child pornography a felony?

I know that Kozinski has “invited” an investigation of himself by the Court, but aren’t child pornography investigations the province of the district attorney or the US Attorney?

6 Miss Havisham, bitter anti-bride 06.15.08 at 7:21 pm

I don’t see what difference it makes that Mr. Sanai has a history of litigating. Does he have a history of lying? Providing false evidence? Hackery? (my word)

From what I’ve seen none of the material is illegal to view (although some of it is adult only type) but the judge wasn’t providing a service to the epublic. It was his private website (he thought).

The more constructive question is: How do we know what is private on the internet and what is public? This must be somehow designated and maybe it was not clear to the judge on how he could ensure his personal webpages were in fact private. He may not have been able to password them or simply did not know about the technology. Everyone should know this.

7 Paul 06.15.08 at 8:26 pm

Larry,

For someone claiming we should be looking at what’s important, your first example is a little weird. What does legal porn have to do with obscenity? Is it really your position that the only people who should judge what is obscenity should be people who have a problem with porn?

Isn’t that like saying we should only let teetotalers preside in DWI trials? Conscientious objectors over courts martial? Quakers in assault cases? The Amish have sole domain over trials for hacking? If the porn is legal, it has absolutely no bearing on an obscenity case.

And the 2nd most important thing is that there are mp3s that were available? That’s not related to the obscenity case at all, which just means your whole “don’t pick on Sanai, pick on Kozinski” is just about favoritism.

The mp3 thing is a smokescreen, though. Just because something has a copyright doesn’t make it illegal to share online. The “You’re Pitiful” mp3 that was mentioned by so many media accounts was freely distributed by its owner as part of a media campaign to buy his next album, upon which that particular song did not, to my knowledge, reside.

But even if he had mp3s available on his drive, it would still take a trial to determine if he had in fact placed them there for illegal purpose. I love your description of that being a “hot issue” in courts at the moment, as the hottest issue revolving around music sharing that I am aware of is how few of those cases have actually made it into a court.

8 Larry Reilly 06.15.08 at 11:12 pm

Paul,
What exactly is legal porn, as you put it?
How do you define it? Legal porn?
Sexually explicit materials are legal. Sexually explicit materials that are obscene are illegal.
How to know?
Most of us are familiar with the clearest definition yet, from the late Justice Potter Stewart, who said: “I know it when I see it.”

This, Paul, is why there was an obscenity trial scheduled last week in Los Angeles. A jury was to determine whether someone had produced porn that a particular community finds obscene. There’s a scale, a gradation that leads legal porn into illegality; Volokh in defending his mentor said the other day that the porn at trial is “in a different league.”

American League? National League? Double AA. High Class A? Rookie League? NFL? Whatever.

Legal porn?

Perhaps to you that means whatever sexually explicit material you can buy in a smut shop, one that has a business license from a particular locality.

Huh?

Kozinski was presiding over a trial in which a community’s representatives were to determine whether something pornographic went so far as to be obscene, and thus against the law. (And it is some nasty shit, literally.)

And at the same time he was presiding over that case, Kozinski made available to the public (don’t bother here with whether or not it was inadvertent, because he certainly would discount that excuse in his role as a jurist) some pornography that easily in the not too distant past, and possibly now, would get thumbs down from an American jury somewhere. He was making available to the public pornography that during his career as a lawyer likely would have been subject to obscenity prosecution. And still possibly could?

So, is there a safe place on the jurisprudential timeline between bare breast photos that were prosecuted in the 1950s and now coprophilia where you’d like to give haven to Kozinski? I ask that only in the sense of saying, some reasonable people question Kozinski’s judgment in this. You don’t?

I do not think he’s a perv. I happen to think he has been a breath of fresh air for the judiciary; and yeast; and leavening; and on and on. He sparkles on an otherwise dull platter. I doubt we’ll lose his valuable contribution because of this; I sure hope not. But I think there are legitimate questions and issues involved; unlike Ted, I think they need to be asked and looked into.

mp3 smokescreen?
And that song you mentioned as being distributed for free by the “owner” as part of marketing campaign for something else, do you mean the originally written copyrighted song on paper, or do you mean the particular performance of that song, the copyright for which is owned by the SONY BMG label Scotti Bros.?

And if there is any legal question at all, is it proper for a judge to be personally out front on an intellectual property issue that clearly is before the courts.

Hot?
Cold?
Just right?
Describe the docket however you wish.
Last October a jury found a Minnesota woman liable for more than $200,000 for making 24 copyrighted songs available on the internet. The judge in that case recently had misgivings and asked the lawyers for briefs thrashing out the difference between availability and publications.
I don’t know how many cases in pretrial stages it would take for you to think the nation’s docket is at least 98.6 degrees Farenheit — there are some cases underway out there. It’s certainly hot to lawyers and academics who work toil in that field.

And you say that it would take a trial to determine whether his mp3 files out there for the public was done for illegal purposes. Your point, other than making it clear you don’t represent him, is…….?

9 Miss Havisham 06.15.08 at 11:58 pm

The definition of obscenity for me is this:

An image or depiction that convinces me and three other persons that actual harm is being done to another at the time of the photo.

10 Miss Havisham 06.16.08 at 12:00 am

Is hate speech under the definition of obscenity? It should be.

11 pinbalwyz 06.16.08 at 12:47 am

How long ago was it when a notable governor and prosecutor in NY State was brought low for patronizing a prostitute?…Or a congressman for playing footsie in an airport bathroom stall? etc. etc. etc.

I was raised in the Mormon Church. As a teenager I was tried for my membership for being seen with my arm around my gf on the church lawn. The guy (Long Beach student Stake President) who brought the charges (Mr. Hartman) was a professor at Long Beach State Collect later ex-communicated for advocating sexual suragates as a form of therapy.

THE SCARLET LETTER is alive and well. Give it up people, prosecutors, judges, and jurors…and while you’re at it, quit beating off in your socks at night, it gums up the filters in the laundromat. (“Your Honor, I call as my first witness: THE BLUE DRESS!”)

12 Paul 06.16.08 at 1:03 am

Larry, if you think there can’t be a definition for legal porn (and I believe you have done a good job of illustrating why the idea of “obscenity” is ridiculous) then I suppose anyone in possession of anything that even mentions sex would have to recuse themselves until each and every such possession was evaluated by a jury? The only people who can preside over an obscenity trial must have never had contact with nudity? Never owned a book of poetry? Not have a coffee table that has been graced with National Geographic? Unless and until Kozinski is criminally convicted of being in possessiong of an image deemed illegal, then I’m going to say there’s no reason he should have had to recuse himself. Frankly, I believe that even if he WAS convicted of owning “obscene” materials it wouldn’t mean he should never preside over an obscenity trial. Is a judge who has gotten a parking ticket incapable of presiding over traffic court?

13 Paul 06.16.08 at 1:06 am

And as for the mp3, I mean the Weird Al Yankovic website posted the song for free and encouraged people to share it with their friends. That’s where I got it.

14 Cyrus Sanai 06.16.08 at 3:51 pm

Mr. Frank,

Your citation of the Sanai v. U.D. Registry, appeal is just an amazing piece of dishonesty. I won that appeal in its entirety.

What you conceal is that the Court of Appeal was quoting Judge Grimes to demonstrate misconduct and bias, and in the next paragraph the Court of Appeal tossed Grimes off the case, and the disposition was a complete reversal of everything Grimes did.

In particular, this is the entirety of the what the Court of Appeal wrote:

In making its fee award the trial court commented, “Plaintiff has proliferated needless, baseless pleadings that now occupy about 15 volumes of Superior
Court files, not to mention the numerous briefs submitted in the course of the forays into
the Court of Appeal and attempts to get before the Supreme Court, and not one pleading
appears to have had substantial merit. The genesis of this lawsuit, and the unwarranted grief and expense it has spawned, are an outrage.”

We agree in these circumstances the interests of justice are best served by having
all further proceedings heard by a different trial judge. (§ 170, subd. (c).)”

By quoting the Court of Appeal’s decision (downloadable from Westlaw) without explaining that I WON THE APPEAL and that the language was quoted by the appellate court as the grounds for tossing Grimes off the case, you have committed precisely the same kind of misleading personal attacks she claims have been inflicted on her husband.

Cyrus Sanai

15 Cyrus Sanai 06.16.08 at 3:52 pm

As for what Judge Zilly wrote, that is exactly the matter that is before the Ninth Circuit at this time. Suffice to say at this moment that Judge Zilly is Seattle’s version of Manuel Real, only more dishonest.

Cyrus Sanai

16 Cyrus Sanai 06.16.08 at 3:56 pm

Finally, Mr. Frank, if you would like to inform yourself of what Judge Zilly really did, I would be happy to send you the appellate briefs. Just as I got Judge Grimes reversed and tossed off the case for her bias and misonduct, if I can have my appeals heard by a conscientous and unconflicted panel, I will win those cases as well. If you want to criticize me, Mr. Frank, you need to look into the entirety of the facts, and not just cherry pick contentions that favor your prejudices.

Cyrus Sanai

17 Cyrus Sanai 06.16.08 at 4:21 pm

Finally, here is my reasoned case concerning the underlying matter.

I am the attorney who tipped the Los Angeles Times onto the pornography and mp3 distributing website of the Presiding Judge of the Ninth Circuit Court of Appeals, Alex Kozinski. The news stories have portrayed me as a Beverly Hills attorney with a “grudge”, a “stalker”, and various other names. This site has made me out to be a pox on the legal profession. However, my issue with Kozinski is small part of a much struggle being waged against the federal court’s perpetration and protection of judicial corruption in the state and federal benches sitting in Washington State, Nevada, and Arizona.

The corruption I have personally witnessed occurred in Everett, a suburb of Seattle Washington. After my mother kicked my father out of the house for spousal abuse, I and most of my siblings sided with my mother in the divorce. While my mother employed a gentlemanly lawyer, my father had the smarts to hire a part-time judge (in Washington, unlike every other state, a lawyer can simultaneously be a judge and practice before the same court). After a trial before Washington state judge Joseph Thibodeau, he appointed Philip Maxeiner, who is both my father’s witness and accountant, as a judicial referee with the power to decide multiple key issues and carry out several critical matters that were the province of state court.

Appointment of a litigant’s employee or servant as a judicial referee is, for due process purposes, no different than allowing that litigant to wield the gavel, a kind of judicial bribery by proxy. Though nominally against state law, the Washington courts refuse to address any due process arguments raised against its corruption. (Washington’s judges grub for campaign contributions in open judicial elections). The Washington courts are also notable for their history of disqualifying and then seeking to silence any Washington state attorney who blows the whistle on judicial corruption.

Judicial bribery is nothing new, and the venerable Civil Rights Act of 1871- the same civil rights statute used to combat unconstitutional state laws, police brutality, and discriminatory state conduct-has long allowed litigants a direct pathway to injunctions against judicial malfeasance. While case law doctrine called Younger abstention restricts bars federal courts from directly intervening in ongoing state proceedings, this is subject to the extraordinary circumstances exception when the state tribunal lacks or appears to lack impartiality. The Ninth Circuit Court of Appeals has nonetheless ensured that the Civil Rights Act is ineffective against the corrupt appointment of special purpose judicial officers, and similar forms of black-robed malfeasance. The reason? Federal judges have imported these corrupt practices into the federal bench.

Two years ago two reporters from the Los Angeles Times profiled Nevada state and federal judges regularly deciding cases involving friends and business partners. They also exposed judges appointing cronies as special judicial officers such as receivers, who wield much of the powers of a judge and must be compensated by the parties to the litigation.

The disparate responses of the state and federal judiciary to this expose were dramatic. The Nevada Supreme Court instituted several important reforms, and appointed a commission to study its judicial practices. Anyone still holding their breath in expectation of similar action from the Ninth Circuit’s Judicial Council, responsible for judicial ethics and discipline for federal judges in Nevada, California and seven other Western states, should probably think about exhaling. Despite the filing of a judicial discipline complaints against federal judge James Mahan, the Ninth Circuit issued a white-wash exoneration of Mahan. This matches my personal experience: the Ninth Circuit Judicial Council and Court of Appeals have a consistent policy of not only ignoring challenges to the corrupt appointment of receivers and other sorts of special purpose judicial officers, but of directly punishing any private litigant who challenges such corruption in state or federal court.

The Ninth Circuit is not about to condemn state courts for lucrative wrongdoing in which its judges are embroiled; indeed, Judge Kozinski, has repeatedly advocated tossing out current judicial ethics law in favor of just “trust the judges”.

The Ninth Circuit has fended off challenges due process challenges to these practices in three ways. The first is allowing federal judges to bar litigants from employing state or federal actions to challenge judicial corruption, and making such orders non-appealable and unchallengeable. In my case, my mother, myself and my siblings were directly barred from making “interfering” with Maxeiner by a federal Judge, Thomas Zilly, and the Ninth Circuit refused to allow any direct or indirect appeal from his ruling or subsequent imposition of hundreds of thousand of dollars of sanctions for challenging Maxeiner’s appointment. This policy of barring appeals from such rulings is illegal under Supreme Court precedent, but because the Ninth Circuit makes these ruling through cryptic unpublished decisions and one-sentence dismissal orders, a clear challenge can never be framed for consideration by the United States Supreme Court.

The second means, closely related to the first, is the Ninth Circuit’s policy of making most of its rulings unpublished. Any invocation of the Civil Rights Act and exceptional circumstances is simply ignored by trial court judges and the Court of Appeal in postage-card sized rulings. Again, this is what happened to me; the special circumstances exception was ignored in the first set of appeals I filed, and have likewise been ignored in ongoing appeals of a dismissed collateral attack on the efforts of the Washington State Supreme Court to disbar my brother, a full-time prosecutor in Oregon, due to his efforts to challenge the corrupt appointment of Maxeiner in various courts.

For those litigants and lawyers who do not quietly accept the secret ash-canning of their challenges to corrupt appointments for judicial receivers and referees, the Ninth Circuit reserves its special punishment: intimidation. In my case, this was carried out by Kozinski. He published an article directly attacking me and discussing the merits of my case in the San Francisco Recorder in 2005, while the appeals where ongoing. He also put case-related materials on a web page devoted to my case within the domain “alex.kozinski.com, and linked the page to the on-line version of the article. That a sitting federal appellate court judge would publicly violate the federal canons of judicial ethics demonstrates how fiercely the Ninth Circuit ensures that constitutionally indefensible corruption remains practically invulnerable.

Fourteen months after I filed a judicial misconduct complaint against Kozinski—both public commentary on a pending case and inclusion of being directly against the judicial ethics rules—he supposedly issued a grudging apology to forestall an investigation (I’ve never received it). The December 2006 order resolving my complaint also found no evidence of the existence of the “alex.kozinski.com” site existed.

When I received that decision, I was dumbstruck, as 13 months previously I had walked a Ninth Circuit staff member investigating my complaint to finding the link. However, Judge Kozinski had temporarily taken down alex.kozinski.com, and Google and other search engines had purged most signs of its existence.

Three months or so after my complaint was terminated, the alex.kozinski.com site went up. Kozinski put the same article on the /articles/ directory, links to which could be found in, among other places, his Wikipedia entry. I filed a second complaint in November of last year, which states, inter alia, (a) here is the site that supposedly could not be found, and (b) if Judge Kozinski admits he should not have written the article, it is misconduct to further distribute it. It’s still pending before Judge Schroeder.

A month later, I enterd alex.kozinski.com into Google to see what else he might be doing with the site, and found links on Russian free mp3 sites to illegal mp3 files of copyrighted songs. I also found the collection of juvenile humor, ribald jokes, bizarre pictures and rated X porn that got Kozinski into hot water.

The porn and mp3 files that Kozinski put on his website were obvious judicial misconduct. But it is not my real issue with him. My problem him and his colleagues is that they not only ignore judicial misconduct and corruption within the federal courts, but they foster and protect its existence in the courts of Washington State and certain other states.

There are three institutions that could put a halt to this. One might think the US Supreme Court would be the obvious place to turn, but its policy is only to accept cases to state what the law is, and not address misapplications of the law by the Courts of Appeals, even where such misapplications are repeated over and over. Due, ironically enough, to criticism by Judge Kozinski of the Ninth Circuit’s mishandling of the investigation of the Ninth Circuit’s most notorious judge, Manuel Real, the Judicial Conference pushed through rules that give it the final review of all judicial misconduct decisions. However, the Conference has been highly deferential to the Ninth Circuit to date.

This leaves Congress to set the Ninth Circuit straight. The Ninth Circuit’s refusal to deal with corruption as practiced by federal judges like Mahan, its intimidation and punishment of litigants and lawyers who challenge such misconduct of state or federal judges, and its refusal to apply civil rights law or its own judicial conduct rules to corrupt appointments of judicial referees, receivers and the like, easily merit Congressional investigation and intervention. Representative Sensenbrenner has proposed creating an inspector general for the federal judiciary; transferring the Ninth Circuit judicial misconduct investigation power to an inspector general for a few years would give this idea a deserved trial run. Congress should clarify civil rights law to allow separate review of all judicial decisions where a judge or an appointee has a financial interest in a case. Congress should also require a federal court to vacate state court rulings and impose damages and attorneys fees on state court judges and their appointees who have a business, employment, or financial relationship with a litigant in a case before the judge or appointed judicial officer. More cries of “trust the judges” will rise from the judicial branch, but it is no less prone to corruption and misconduct than the other two branches, and deserves no immunity from the constitutional system of checks and balances that guard against misconduct and corruption.

18 Ted Frank 06.16.08 at 4:38 pm

The California Court of Appeal vacated the fee award on a technicality that nullified four years of litigation. They did not disagree (or agree) with the underlying findings by the trial judge. Sanai v. Saltz, 2005 WL 1515401 (Cal. App.).

One might uncharitably suggest that Mr. Sanai played “heads I win, tails don’t count” by proceeding with the litigation for years before claiming that the proceedings were void because they needed to be stayed while an interlocutory appeal was pending, but we will not pass judgment on that particular tactic.

I’ll let others dive into Mr. Sanai’s personal version of Jarndyce v. Jarndyce.

19 Cyrus Sanai 06.16.08 at 4:53 pm

The decision you quote from was preceded by a decision on the merits of the attorneys fee award, which reversed it on the merits.

You are deliberately ignoring the last portion of the decision, which quotes the language criticizing me, then tosses her off the case under the statute reserved for removing trial court judges for bias and misconduct. You are a California lawyer. You know what removal under Code Civ. Proc. Section 170.1(c) means: it means bias and/or misconduct.

If you want to be fair to your readers, link to the ABA Journal article on Judge Kozinski’s file-sharing. That is something you, his wife, and other partisans pretend does not exist. Until you explain what gave Judge Kozinski impunity to do this, you really are nothing more than a dishonest partisan hack.

Cyrus Sanai

20 GolfAddict 06.16.08 at 5:10 pm

Mr. Sanai,

You had your day in court and you lost. There is no vast judicial conspiracy against you — you seem to have a case that was a loser on the merits and then proceeded to over-litigate it to the point of having sanctions imposed against you.

Get a grip on reality.

21 Ted Frank 06.16.08 at 5:18 pm

You overstate your case, Cyrus.

Bias is 170.1(a)(6)(B). Section 170.1(c) is merely reassignment at the discretion of the appellate court, and can be done without any finding of bias. The Seventh Circuit reassigns cases on remand as a default rule, and this is a good rule for other appellate courts to follow. Nothing in the appellate court decision said there was bias in the lower court’s ruling; nothing in the appellate court decision contradicted the lower court’s characterization of your litigation conduct. I’ve ignored nothing.

An uncharitable reader might draw some conclusions from the fact that you misstated what the appellate court did. I would never do that; I assume it was an honest mistake that just coincidentally made you look better than the actual opinion did.

22 Cyrus Sanai 06.16.08 at 5:50 pm

The case law concerning this statute, which you should be familiar with, says that reassignment under this statute is reserved for cases of bias or misconduct. The Seventh Circuit may have a different practice. But in California, under that statute, it is the law. If you can find a published case saying differently, bring it to my attention. You are just making up the law as you go along, Ted.

Also, and let’s make this clear, I have not lost the case involving Judge Grimes, and I have not lost the matters previously before Judge Zilly. Everything is proceeding, and nothing is final. Which is, by the way, where Mrs. Kozinski has become an advocate for judicial misconduct.

Judges don’t get to speak out on matters before their courts unless it is assigned to them, and then only through the opinion process (or in trial court judges, in open court at a noticed proceeding). Judge Kozinski and any other federal judge should be disciplined for attacking any attorney in the press, unless that case is before that judge and the criticisms are made through the opinion hearing process. Judge Kozinski’s original article was misconduct, which he conceded, and he now appears to be using his wife to commit additional misconduct.

Cyrus Sanai

23 Ted Frank 06.16.08 at 5:57 pm

It’s quite clear that Judge Kozinski will be recused from any Sanai-related litigation. Judge Kozinski’s wife doesn’t lose her right to speak out against attorney misconduct.

And, by the way, it took me exactly 12 seconds to find a case holding that 170.1(c) doesn’t require a finding of misconduct or bias: “A reviewing court has the statutory authority, either on its own motion or at the request of a party, to order that further proceedings in the trial court take place before a different judge when the interests of justice so require.” State Farm Mut. Auto. Ins. Co. v. Superior Court, 121 Cal.App.4th 490, 498 (2004).

24 Miss Havisham 06.16.08 at 9:33 pm

That said, Mr. Frank, it appears Mr. Sanai trashed a judge for naught.

25 OBQuiet 06.16.08 at 10:36 pm

I wonder is the strategy is to make oneself so obnoxious and personally disliked by every judge that they all have to recluse themselves when you do something really awful?

26 tres king 06.17.08 at 12:35 am

spend a little less time with the pontificating, and 2 minutes viewing the material.

everything I’ve seen from the judge’s website indicates that it really is like looking through adult cards at a Spencer’s gift store.

cut me a break.

27 Tom Cod 06.17.08 at 3:18 pm

Yes, Sanai may be a kook and a crank, but sometimes people like that unearth information of misconduct by public officials which cannot be ignored, regardless of the character and motivations of the informant. Kozinski is a federal judge who should have had enough wisdom to not allow himself to be put into this situation. As it stands now, his inappropriate and unbecoming conduct, exposed by whomever, brings the judiciary into disrepute and he should face the appropriate consequence or prempt that by resigning.

28 Miss Havisham, bitter anti-bridled 06.17.08 at 11:48 pm

“Yes, Sanai may be a kook and a crank, but sometimes people like that unearth information of misconduct by public officials which cannot be ignored, regardless of the character and motivations of the informant.”

I agree with you on this, that is why I do not blame the LAT- at all. They are merely the messenger, and a half blind one at that.

So, kudos for the effort.

But Tom Cod, it is not our business to pry into the personal consensual, completely legal lives of any fellow citizen. Even elevated to this level, private interest (Sanai) does not trump the public interest (service of a good judge!) Mr. Sanai was personally offended. Many of us are often personally offended by things in this world. Some of them are so offensive and obscene as to be rendered illegal. Mr. Sanai knows this. He’s not such a kook.

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