It wasn’t, and he didn’t.

Canon 3(A) of the Judicial Ethics rules prohibits commenting on ANY pending or threatened litigation not before the judge, in that court or any other court (it is one of the things that preents them from moonlighting as lawyers). I wish you would read the relevant rules before commenting. The only litigation a judge can comment on (with certain exceptions not relevant here) is the case before him or her, and then only in the proper context, after meaningful opportunities by all sides to present their arguments. Judge Kozinski violated that rule in about as brazen a manner as could be

My article in 2005 was on an issue then before the Judicial Conference: the citation of unpublished opinions. The biggest opponent of that was Kozinski, so you had to use him as the proponent of the opposing view.

Judge Kozinski was perfectly entitled to debate the abstract issue, and if he had possessed the sense to cut his article in half, ommitting the latter section on my case, he would have committed no misconduct.

As for the likely effect of this on my case out of Seatle. It can only help. On future cases? I’ve had very good luck with judges whin I represent clients, and not so good luck when I am pro per in California. While Kozinski has his fans, a very large number of judges think he is an odious buffoon, and will in no way look badly upon me for taking him down a peg or too. So I think the effect will be a wash.

In the Ninth Circuit and in Washington State, obviously I will have a big problem. I will have cut off a financial resource to many district court judges and perhaps Washington State judges. That can only make them very, very angry at me. I’m not a Washington State lawyer, so after this family stuff I’m not thinking of qualifying there. As for the federal courts, well my primary area of practice is transactional, where I don’t talk to judges at all. I also have my English qualification, in case I feel like returning to the UK!

As for Sanai v. Saltz, well, I have a judge who ignored a direct instruction of the Court of Appeal to vacate void orders. That tends to annoy an appellate court far more than my extracurricular exposure of a different jurisdiction’s jurist.

Cyrus Sanai

Yes.

“Do you think that Judge Kozinski’s “rebuttal” violates that rule?”

Absolutely not.

Kozinski did not comment on litigation that he was presiding over or was likely to preside over. He indicated in the “comment” that he was disqualified from doing so. And Kozinski confined his comments to your credibility, and refrained from comment on the merits of the sole matter pending before the 9th circuit. Moreover, you specifically challenged him to respond, and I think less of you, frankly for the way you virtually invited Kozinski (cajoled into might be more accurate)and now post statements that completely omit to point out that your challenge predated his rebuttal.

I am also very troubled by the fact that you filed a vindictive and dubious ethics complaint against Judge Kozinski for issuing a comment that you invited by attacking by name in a prominent legal newspaper in the 9th circuit.

If you think all of this publicity you are garnering is enhancing your propensity to win any future favorable rulings in California, Washington, Los Angeles, or any trial or appellate court within the 9th circuit umbrella, or in front of any judge who hears about your dramatic litigation history and remembers your name you are very much not tracking with reality.

Do you think that Judge Kozinski’s “rebuttal” violates that rule?

Not wanting to improperly accuse you leaving out important facts regarding your posts re your dustup with Judge Kozinski, I looked up your Recorder opinion piece published September 16, 2008—three years before Judge Kozinski ascended to the chief judge position at the 9th circuit—entitled “Taking the Kozinski Challenge” and in which you not only mention the judge by name and criticize his views, but advocate the very issue before the court then pending in banc petition without disclosing that fact to the Recorder or its readers.

Judge Kozinski posted his REBUTTAL in the Recorder on September 23, 2005, noting that your piece DISQUALIFIED HIM from any participation in the pending petition, and questioning your timing.

Since you have written in the last few days that your publicity binge regarding Judge Kozinski (including your contacts with the LA Times and the resulting article) are all part of a “litigation strategy” to influence the 9th circuit in respect to your parent’s state court litigation, I find Judge Kozinski’s words of rebuttal on September 23, 2005 to be on the mark:

“Mr. Sanai’s byline modestly lists him as “an attorney with Buchalter Nemer in Los Angeles.” The firm’s Web site identifies him as “a Senior Counsel and English solicitor … [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions.” The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court’s Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process, … the most abusive and obstructive litigation tactics this court has ever encountered. …” Nor would the reader — unless he happened to enter Mr. Sanai’s name in the Westlaw CTA9-ALL database — realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.

”By failing to disclose his long-standing, active and abiding interest in the legal issue he discusses in his article, Mr. Sanai has done the reading public a disservice, cloaking his analysis with a varnish of objectivity. Worse, by publishing the article while he had a case raising this precise issue, Mr. Sanai used The Recorder to call unfair attention to his petition for rehearing, to the detriment of opposing parties who limited their advocacy to the briefs. And, by gratuitously drawing my name repeatedly into the controversy, he has also managed to disqualify me from participation in his case, skewing the en banc voting process.”

The Judge had a point then, and the same point is even more relevant now.

I had no idea until now that you had tried to get the 9th circuit to intervene nine times in the state court litigation involving your parents’ long over divorce action, or that you had a petition pending regrding that matter when you wrote the Recorder article to which Judge Kozinski responded a week later.

Here is what you wrote on September 16, 2005 (three years before Judge Kozinski became chief judge of the 9th), in a recorder piece you called “Taking the Kozinski Challenge” and in which peice you mentioned Judge Kozinski by name:

http://pda-appellateblog.blogspot.com/2005_09_01_pda-appellateblog_archive.html#112684339987535279

Here is the link to Judge Kozinski’s REBUTTAL to your peice:

http://pda-appellateblog.blogspot.com/2005_09_01_pda-appellateblog_archive.html#112684339987535279

Since you have admitted that your publicity campaign (including your contacts with the LA Times, the resulting article for which you take credit, and all of your many blog posts, is a part of a stratigy to influence the 9th circuit to see things your way in your pending family litigation, it seems to me the below quited comments by Kozinski from his 2005 REBUTTAL to your Op-Ed piece were quite accurate and bear repeating:

“Mr. Sanai’s byline modestly lists him as “an attorney with Buchalter Nemer in Los Angeles.” The firm’s Web site identifies him as “a Senior Counsel and English solicitor … [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions.” The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court’s Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process, … the most abusive and obstructive litigation tactics this court has ever encountered. …” Nor would the reader — unless he happened to enter Mr. Sanai’s name in the Westlaw CTA9-ALL database — realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.

By failing to disclose his long-standing, active and abiding interest in the legal issue he discusses in his article, Mr. Sanai has done the reading public a disservice, cloaking his analysis with a varnish of objectivity. Worse, by publishing the article while he had a case raising this precise issue, Mr. Sanai used The Recorder to call unfair attention to his petition for rehearing, to the detriment of opposing parties who limited their advocacy to the briefs. And, by gratuitously drawing my name repeatedly into the controversy, he has also managed to disqualify me from participation in his case, skewing the en banc voting process.”

In the above linked comment you state:

“I became interested in Judge Kozinski’s website, “alex.kozinski.com”, after he sought to influence a case before the Ninth Circuit Court of Appeals by publishing an article about the case in a legal newspaper, and more importantly, placing case related materials on his website, alex.kozinski.com.”

I read that you published an Op-Ed piece in the Recorder about the very same case, and that Judge Kozinski published a REBUTTAL, linking publicly available pleadings to his rebuttal in order to make his point.

Unless the case was pending in front of Kozinski, why should you be allowed to express your opinions about the same case (without, according to Kozinski) full disclosure by the Recorder about your role in the case, with out allowing the Kozinski the opportunity to reply?

And if Kozinski’s rebuttal to your Op-Ed piece criticizing the publication practices of the 9th circuit was proper (and why would it not be, the case was not before him, and he was not the chief judge at that time), what difference does it make where the linked pleadings were stored?

Respectfully, have a habit of leaving out key facts, like YOU published the opinion piece attacking Kozinski’s court, and he was simply RESPONDING, and that Judge Kozinski would not be appointed to the chief judge position until much later.

Your comment makes it sound like Kozinski gratuitously spoke publicly while he was chief judge to influence a pending case, when in fact you published an OP-Ed piece that did not fully disclose your involvement in the case, and Kozinski only issued a REBUTTAL to your specific accusations made in a legal news paper.

Please don’t assume when you write these things that we—who only heard of you and your beef with the judge last week—know as much about the background of this dustup as you do. One might get the incorrect impression that you are trying to mislead.

http://news.google.com/news?btcid=c4cc32fc179afeda

Also take a look at subsection (a).

As to service of the memorandum of costs after judgment, again you need to understand California law. Under the Enforcement of Judgment Law, unless an attorney files a notice requiring all enforcement proceedings to be served on the attorney–never done here–you have to serve on the address last used by the party itself in the litigation, if known.

While California’s appellate law clerks are just fabulous–I can’t say enough good things about Division 7’s–the clerks in the LA Superior Court are of varying quality (some very good, some horrible). Here the clerk got convinced in ex parte phone calls by the other side that I had done something wrong, though I still don’t know what. She asked me for the agents for service of process, I wrote em down on a copy of the service list, which she then attached to the proof of service.

I was horrified for two reasons. First, if I had served the memorandum on the agents for service of process, that would be wrong. Often, the agents for service of process are attorneys or CSC, and are not at the address of the party, which is what the ELJ explicitly requires. Second, I would not have modified, in the open, a proof of service that I had not signed. That would be grossly improper. The proof of service I submitted was the correct proof of service, and I am pretty annoyed at myself that I fell for this. Indeed, I had previously filed the correct proof of service, including the Express Mail receipts, with the trial court.

I had fallen into traps set by this firm before, and I regret to say it happened again. However–and you have to be a lawyer to understand this–once you have a judgment issued, the only way to change the result is via a motion to amend or vacate the judgment. The other side filed a motion to strike “pleadings” because it was the only thing within the time limit after I had the ex parte action of the court vacated because of a false declaration of notice by Michael Saltz.

Anyway, that’s the story.

By the way, I think California trial court judges meet the bell curve. There are terrific, terrific judges, there are average, and there are horrible ones. Judge Grimes runs an efficient courtroom I will give her that, but for a smart woman she is a dumb judge. She has been reversed on very elementary points of law in a number of published and unpublished decisions that to me show she is an embarrassment.

Judge Green is a charming guy, and I am sure was absolutely outstanding in front of a jury, but any time it takes 3 months to get a written order issued from a judge, there is a problem. One motion I lost before him still does not have an order in the docket after nearly a year. That’s a “disaster”.

As to my other harsh language, when the Court of Appeal orders a judge to vacate certain orders, the trial court judge must do that without question. Judge Green never did it, and used the past void actions of the court as the basis for denying me leave to amend. That is just wrong.

In my professonional life, when I am not pro per, I get at least decent trial court judges in California. I’ve had a bad pair in Sanai v. Saltz, but that’s the draw. I believe that California’s judicial misconduct and discipline system is the most effective in the US; the structural problems in the Ninth and Washington State simply do not exist, and part of the reason I judge them so harshly on this issue is that California’s state system shows how good things can be.

The issue with Washington State and the Ninth is not a matter of the draw, or bias. The issue there is structural–if my arguments prevail, a verated practice will disappear, and Washington’s judges will have much less to offer their contributors, business partner and fellow judge/attorneys when favor trading occurs.

There are some parts of this country where the judiciary is riven by deep-rooted corruption. Just read about Cook County before the federal prosecutions. Current jurisdictions with similar issues include Brooklyn, NY; Louisiana; and Mississippi. With Washington State, it is structural, primarily because of the influence of the dual attorneys/judges who run the system in Everett and the like.

That’s where I have to say the haters are making a tactical error. Sanai v. Saltz gets decided by the Court of Appeal independent of what Ted Frank thinks; of course, he’ll just say the Court of Appeal is “confused” like he stated the California Supreme Court was “confused” on void vs. voidable. Nonetheless, on prevailing his credibility will take another hit.

Second, on Kozinski–which is the issue, remember?–the more I get my story out, the harder it is for the courts to ashcan it. That’s why I take the hits and appear in forums like that.

Anyone who practices ad hominem attacks should look what it got Judge Kozinski. He wrote a WSJ piece in 2001 attacking Mecham, and now Kozinski is going to face that charge in a context of heightened scrutiny. He wrote a piece attacking me, which he grudgingly conceded was wrongful, but covered up the role of his website. Look how smart that was.

Cyrus Sanai