A guest post from Professor Arthur Hellman.
I am pleased to relay this contribution by Professor Arthur Hellman about the parking-lot confrontation involving Judge Ryan D. Nelson, a matter I previously covered here:
Bloomberg Law reported over the weekend that Judge Ryan D. Nelson of the Ninth Circuit has been charged with misdemeanor battery for his actions during an April 2 confrontation with a man in a parking lot in Idaho Falls, Idaho. Nelson has also been charged with malicious injury to property — the “property” being the other man’s glasses, which Nelson allegedly knocked off and stomped on. The altercation apparently began when the other man spoke to the judge twice, saying: “Learn how to park.”
The Idaho State Journal published video of the incident along with a more detailed account of what happened. A pretrial conference is scheduled for June 18.
Under the Judicial Conduct and Disability Act of 1980 (JCDA), Congress established a framework for handling complaints alleging that a federal judge “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability.” Nelson’s alleged behavior could reasonably support a finding of misconduct under the JCDA; it could also implicate the disability provision. How should the judiciary respond to this report?
By design, complaints against judges may be filed by “any person” and then reviewed by the Chief Judge of the Circuit. But the Chief Judge does not need to await a formal filing before starting the process. She may “identify” a complaint with the same effect. I have argued that “when reports of possible misconduct have become public, the chief judge should be required to identify a complaint.” Doing so would reassure the public that the judiciary is genuinely committed to policing misconduct within its ranks. And if the judge is exonerated, the proceeding will help dispel the cloud that could otherwise hang over the judge’s reputation.
Thus, the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint. What comes next? The statute allows Judge Murguia to conduct a “limited inquiry,” but not to “make findings of fact about any matter that is reasonably in dispute.” Should there be disputed facts relevant to the complaint, she must appoint a Special Committee similar to the one that recently scrutinized the allegations against Judge Eleanor Ross of Atlanta.
Let me fast-forward to the question: does Judge Nelson’s conduct fall within the statutory definition of misconduct cited above? After all, unlike Judge Ross, Nelson’s actions occurred outside the courtroom and were not connected to his judicial duties.
The most extensive treatment of that question in JCDA decisions appears in a misconduct order issued by Chief Judge Dennis Jacobs of the Second Circuit nearly twenty years ago. The case concerned a campfire dispute on a beach, with the central allegation that the judge engaged in misconduct by deliberately striking the complainant without justification, resulting in a criminal charge. The resemblance to the Nelson case is notable.
Judge Jacobs began with the premise that extrajudicial conduct could fall under the Act, but after thorough analysis (which merits reading in full), he concluded that the beach assault did not. He summarized by stating that “this was a one-time private dispute between private citizens, one of whom happens to be a judge. At worst, the Judge used physical force to terminate a private confrontation in which the Complainant was using obscenities in the presence of the Judge’s small children.”
As the quoted remark suggests, there were mitigating circumstances in that matter that do not neatly mirror the Nelson episode. Yet there could be other mitigating factors here as well. Josh Blackman has noted that the parking lot adjoins a hospice center; it is possible that something going on in Judge Nelson’s life led him to “snap.”
If this proves to be an isolated episode tied to a serious medical issue, that might justify treating the conduct as not constituting misconduct under the Act. Indeed, if Judge Nelson offers an apology to the person involved (which I would expect him to do in any event), the Chief Judge or the Judicial Council could “conclude the proceeding” under the Act upon finding that “appropriate corrective action has been taken.” This would avoid having to determine whether Nelson’s actions amounted to misconduct.
The hospice setting also raises the possibility that Judge Nelson’s conduct reflects a disability or the effects of medications. That is another factor the Chief Judge and the Judicial Council should examine and weigh in their assessment.
On the other side of the ledger, shortly after his confirmation in 2018, the Wall Street Journal reported that in the two decades before his appointment he had accumulated a substantial record of traffic citations. “He’s gotten tickets for speeding, disobeying traffic lights and signs, illegal turns, seat-belt violations, not carrying proof of insurance, skipping an auto inspection and not registering his vehicle. He’s been cited on his boat as well.”
If those behaviors ceased after his appointment as a judge, they should not preclude a finding that the parking-lot altercation was an isolated event. But if they persisted, they would raise questions about whether the incident reflects a temperament inconsistent with the judicial calling, and possibly about his fitness for the bench, similar to concerns raised about Judge Ross. (My own view is that the most serious finding against Judge Ross concerns false statements to investigators; that charge mirrors one basis used to impeach District Judge Samuel B. Kent in 2009. No such conduct is alleged here.)
Nevertheless, it is far too early to condemn Judge Nelson. The criminal case must run its course, and so must the processes under the Judicial Conduct and Disability Act and the judiciary’s implementing rules. When all inquiries have run their course, there will be ample opportunity to assess Judge Nelson’s prospects as a federal judge.
