SAN FRANCISCO (CN) – The 9th Circuit’s refusal to release racist emails from a former federal judge violates the First Amendment, two reporters claim in court.
Montana reporters John Adams and Shane Castle say they seek access to “discriminatory and inflammatory” emails found through an investigation of former Montana U.S. District Judge Richard Cebull.
Adams requested the investigation in 2012 after receiving an email from Cebull that contained a racially charged joke about President Barack Obama.
Adams claims that on Feb. 27, 2012, Judge Cebull sent him an email that stated: “Normally I don’t send or forward a lot of these, but even by my standards,
it was a bit touching. I want all of my friends to feel what I felt when I read this.
Hope it touches your heart like it did mine. This is so beautiful …
“A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’ His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!'” (Ellipsis in complaint.)
Adams claims that he interviewed the judge two days later, and Cebull “admitted to sending the email and admitted it was to and from his Court-issued email address.”
The reporters claim that the defendant Committee on Judicial Conduct and Disability of the Judicial Conference of the United States investigated Cebull and in January 2014 found that he 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 found that no rights had been violated, according to the complaint.
That prompted Adams and Castle to file a Freedom of Information Act request for copies of all the incoming and outgoing emails from Cebull’s government account. The committee denied it.
“FOIA has a specific exemption for the judicial branch,” the plaintiffs’ attorney Lawrence Organ told Courthouse News. “The concept behind it is that you don’t want people finding out how decisions are made, per se, like Supreme Court rulings where they talk about cases, then have an informal vote to see how the justices will rule. Those [emails] are not subject to review or record requests.
“The difference here is that the emails he [Cebull] sent don’t relate to a particular case.”
Adams and Castle sued the 9th Circuit’s committee and its executive Cathy Catterson, seeking declaratory judgment and an injunction.
They claim that the discriminatory emails are a public concern because parties appearing before Cebull “likely had their due process rights violated by his rulings.” Organ said it could lead to an influx of lawsuits.
“One of the things we don’t know about the emails is whether they address a specific case or if they contain general racist comments,” he said. “We know, based on the committee’s report, that there were hundreds of emails indicating bias against Native Americans, Hispanics and women, so who knows how many cases that might implicate?
“It appears, at least to some people, that they may have had rulings by Cebull that were the product of some bias, at least that’s what I’ve been told. There are several people that are considering filing habeas petitions or coram nobis arguments, or some other request for relief to see that what happened to them is changed.”
Organ stressed the importance of the press’ right to obtain the emails, which are public documents because they were sent using a government computer.
“Due process dictates that anybody that goes to court gets a hearing in the form of an impartial jurist,” Organ said. “This case goes to the very core of the judicial system. That’s why we think it is so important the press gets access to public documents. These emails were sent using a government computer, so how this is private, we don’t know.”
Adams and Castle say there is no justification for withholding the emails.
“The defendants, a section of the United States government, have no compelling interest justifying this prohibition, particularly after completing an investigation of complaints, finding merit of the complaints and having completed the investigation,” the complaint states. “The committee should therefore be enjoined from withholding the investigative file and/or the discriminatory emails concerning Judge Cebull from the plaintiffs so that the contents thereof can be reported to the public and so that any violations of due process can be exposed and rectified.”
Cebull, who was appointed to the federal bench by President George W. Bush in 2001, reported himself to the 9th Circuit after sending the email quoted above. He retired in 2013.
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