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Quest for Judge’s Racist Email Hits Judicial Snag

OAKLAND, Calif. (CN) - Calling the case "fundamentally an issue of law," a federal judge seemed inclined Tuesday to dismiss claims the government is unconstitutionally withholding a former Montana federal judge's racist emails from the press.

Reporters John Adams and Shane Castle seek access to "discriminatory and inflammatory" emails found through an investigation of Richard Cebull, the former federal judge.

Adams requested the investigation after he received a 2012 email from Cebull's court-issued email address containing a racially charged joke about President Barack Obama.

During the investigation, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States found in 2014 that Cebull had sent hundreds of "racist, sexist and politically inflammatory" emails over the past four years.

The committee concluded that the complaints against Cebull were "well placed" but found that no rights had been violated. The committee's finding prompted the reporters to file a Freedom of Information Act request for copies of all the incoming and outgoing emails from Cebull's government account.

When the committee denied the request, the reporters sued, claiming the discriminatory emails are a public concern because parties appearing before Cebull "likely had their due process rights violated by his rulings."

Cebull, who was appointed to the federal bench by President George W. Bush in 2001, reported himself to the Ninth Circuit after sending the email in question. He retired in 2013.

In March 2015, U.S. District Judge Yvonne Gonzalez Rogers ordered the Ninth Circuit to ensure the preservation of Cebull's emails uncovered in the investigation. But at Tuesday's hearing she seemed doubtful that the case could move any further.

"I have worked through this up-ways, left-ways, right-ways and down-ways trying to figure out if there is some legal approach that would allow you to move forward, and at this point I just don't see that there is," Rogers aid.

"Perhaps greater minds than mine need to wrestle with this and see if I'm wrong, but that's where I am."

The reporters' attorney, Lawrence Organ, argued that the public has "a compelling interest in access to these documents, and there are no compelling interests that the government has advanced that would suggest that this information not be made public."

Since the investigation of Cebull is now closed, Organ said, there is no interest in protecting potential witnesses or protecting Cebull since the committee already found he engaged in inappropriate conduct.

"We are seeking the factual predicate to what the charges were against Judge Cebull, and that is of the highest order - ensuring that the judiciary is unbiased and reassuring the public that the processes by which biased judges are evaluated are important," he said.

But Rogers said that the case has been "teed up."

"We know what the issues are, and my decision will be wrong or right from either side's perspective," she said. "There's no point in trying to re-massage this."

She added that the existing public structure for dealing with misbehaving federal judges is impeachment.

"I certainly hope that people do not believe all federal judges act in the same manner that Judge Cebull had acted," Rogers said. "And, as you are well aware, it was other federal judges who made the complaints."

But as to whether Cebull's emails are publicly accessible, Rogers said that they are not.

"FOIA certainly doesn't apply, and that has been historically the mechanism that is available for the press to obtain information about the government," she said.

Elizabeth Shapiro, who represented the defendant committee, said there are also concerns with regard to separation of powers in the reporters' claims.

"The only alternative would be for the executive branch to be involved," said Shapiro, who is with the Department of Justice. "The judiciary self-polices here."

But Organ contended that invoking separation of powers "highlights the precise problem" with the case.

"The judiciary can claim the separation of powers doctrine as a shield to this information, and that is something that our Founding Fathers never anticipated," he said. "They always assumed that government, regardless of the branch, would be subject to the scrutiny of the press."

He added that such a shield makes the judicial branch a "star chamber."

In response, Rogers said, "I hope I do justice to the Constitution whether or not I rule in your favor."

Organ practices with the California Civil Rights Law Group in San Anselmo, California.

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