Reporters Can’t See|Judge’s Racist Emails

SAN FRANCISCO (CN) - A federal judge dismissed a lawsuit from reporters who claim the federal courts are 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 an 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 in the past four years.

The committee concluded that the complaints against Cebull were "well placed" but that no rights had been violated. Its findings 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 the committee and Ninth Circuit executive Cathy Catterson, 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 emails. He retired in 2013.

In March 2015, U.S. District Judge Yvonne Gonzalez Rogers ordered the Ninth Circuit to ensure preservation of Cebull's emails uncovered in the investigation.

But after a Feb. 16 hearing this year, Rogers dismissed the claims with prejudice, finding her court lacked jurisdiction and that the plaintiffs failed to state a viable First Amendment violation.

In her 25-page ruling on Feb. 25, Rogers said the committee and Catterson are entitled to sovereign immunity because the ultra vires exception which applies to federal officials acting outside their official capacities is not applicable here.

She also found that the plaintiffs lacked standing, since their complaint is ambiguous as to whether they made a request of the committee or only of Catterson.

"Accordingly, the court finds that plaintiffs have not alleged that their injury is fairly traceable to any conduct of the committee, at least not with clarity," Rogers wrote.

Rogers also found that the committee was entitled to judicial immunity.

"In the absence of allegations that the judges of the committee were acting outside their judicial role, but instead undertook the alleged actions in an administrative, legislative or executive capacity, absolute judicial immunity would apply," she wrote.

Catterson is entitled to quasi-judicial immunity, Rogers said, because her denial of the plaintiffs' request "was integral to the judicial process of investigating and deciding the complaints before the Ninth Circuit Judicial Council."

"While Catterson is alleged to have denied the request on grounds plaintiffs contend are unconstitutional, and therefore arguably in excess of her authority, she is not alleged to have acted 'in the clear absence of all jurisdiction,'" Rogers wrote.

Rogers also found that the plaintiffs failed to state a First Amendment violation, though they claimed that they were entitled access to Cebull's emails both as investigative materials and as general correspondence.

"While the court cannot simply rubberstamp Congress' determination that confidentiality, rather than public access, is necessary to the proper functioning of the process, plaintiffs have not offered allegations, authorities or persuasive argument that public access would play a significant positive role in judicial misconduct complaint procedures," Rogers said.

And "in the absence of any relevant authority permitting public or press access to this kind of information about a judicial officer," Rogers added, "plaintiffs have not stated even a qualified right of access to the information they seek."

The plaintiffs' attorney did not immediately respond to an email requesting comment Monday.

Douglas Young, with Farrella Braun in San Francisco, who represents Catterson, declined to comment.

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