A further guest contribution by Professor Arthur Hellman.
I am pleased to present this guest analysis from Professor Arthur Hellman concerning Judge Nelson’s case:
Earlier this week, both the New York Times and NPR circulated reports describing what the Times labeled the “parking lot confrontation” involving Ninth Circuit Judge Ryan D. Nelson. Bloomberg Law offered a more comprehensive treatment. These pieces followed the initial Friday report from the Idaho State Journal. In a guest piece published on Sunday night, I outlined how Judge Nelson’s conduct could potentially prompt a probe under the Judicial Conduct and Disability Act of 1980 (JCDA or the Act). The Act characterizes misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.” I will not recount that earlier discussion here, though subsequent events have altered the context, making an update worthwhile.
The essential facts are straightforward. The incident occurred in a parking lot in Idaho Falls, Idaho, on April 2. It seems to have started when another man (who has not yet been publicly named) told Judge Nelson twice to “Learn how to park.” A video released by the Idaho State Journal appears to show the judge knocking the man’s glasses off, chasing after him, and then stomping on the glasses. Nelson now faces misdemeanor battery and a charge of malicious destruction of property, both misdemeanors.
In my Sunday evening update, I stated that “the first step is for the Ninth Circuit Chief Judge, Mary Murguia, to identify a complaint” against Judge Nelson, thereby triggering the investigative process under the Act. That step has now occurred. On Monday, Chief Judge Murguia issued an order recognizing a complaint based on media coverage of Judge Nelson’s behavior and her own “limited inquiry of currently available information.”
Normally, proceedings alleging judicial misconduct remain confidential until they reach a conclusion. This is consistent with the treatment in the Eleanor Ross matter in the Atlanta district; the public learned of the investigation only after the Judicial Conference of the United States’ reviewing committee issued its final order affirming the private reprimand issued by the Eleventh Circuit Judicial Council. Yet, a provision in the Rules for Judicial-Conduct and Disability Proceedings (JC&D Rules), first adopted in 2008, authorizes the chief judge to “disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.”
Judge Murguia relied on this provision to justify the immediate disclosure of her Monday order. She also made clear, however, that there will be no further interim disclosures: “All subsequent misconduct proceedings will be confidential pursuant to [the statute and the Rules].” Unless something unforeseen occurs, we will need to await the final disposition to learn what actions she and the Judicial Council of the Circuit have taken to resolve the complaint.
I have elsewhere suggested (pp. 371-74) that this disclosure provision may clash with the statute’s confidentiality requirement. Nevertheless, so long as the judiciary is willing to release some interim orders publicly, there is no inherent reason not to disclose others as well. For instance, Judge Murguia could request that the Chief Justice transfer the case to a different circuit. If such a transfer is granted, it would seem appropriate to publish the transfer order.
Judge Murguia emphasized that all information prompting her order was “only very recently received.” Given that the criminal charges were filed on April 22 (per the Idaho State Journal), it is reasonable to conclude that Judge Nelson did not share the information with the Chief Judge before she learned of it from media reports.
It would have been prudent and courteous for Judge Nelson to self-report the episode early on. That could have enabled Chief Judge Murguia to conduct an informal inquiry—without necessarily naming a complaint—before public scrutiny began.
Late Sunday evening, David Lat discussed the episode on his “Original Jurisdiction” Substack blog. He noted that he had reached out to Judge Nelson for comment and had received a statement from Nelson’s counsel. The statement read: “Mr. Nelson is embarrassed by this incident. It is out of character and does not represent how he behaves. Immediately afterwards, Mr. Nelson reached out and offered an apology and full compensation for the sunglasses. He intends to work through the proper process.”
Thus, Nelson has not only offered an apology; he has also offered full restitution. Judge Murguia could plausibly determine that these actions constitute “voluntary corrective action.” If so, the Act and the Rules permit her to “conclude the proceeding” without needing to decide whether Judge Nelson engaged in misconduct. This is a customary practice, and I believe it aligns with the Act’s forward-looking aims.
One caveat remains: Judge Murguia would likely refrain from such a course unless she has confidence that the parking-lot altercation was an isolated incident rather than indicative of a broader pattern that might amount to misconduct. In this connection, Lat reported that two former clerks contacted him to say that the behavior seen in the video does not reflect the person they had known.
Granted, that evidence is not definitive. Former Second Circuit Chief Judge Dennis Jacobs—whose analysis of a comparable episode I cited in my previous post—also asserted that the ultimate issue is whether the judge’s extrajudicial conduct “creates in reasonable minds a perception that the Judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” (Emphasis added.) That is the central question Judge Murguia will need to address first, taking into account the apology Judge Nelson has already offered.
