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?
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.