Feds Will Review Note-Passing Judge Notes In Court Disparaged Blacks, Hispanics, Unions

The chief federal judge in Eastern Washington is asking for a judicial investigation of U.S. District Court Judge Alan McDonald for writing inappropriate notes in court.

U.S. District Judge William Fremming Nielsen said he has asked the 9th Circuit Judicial Council to review the controversy.

“It has been referred to us and it will be taken up in accordance with our rules,” said Mark Mendenhall, 9th Circuit spokesman in San Francisco.

The nine-judge Judicial Council for the 9th Circuit, which includes Washington state, has the power to certify a judge’s disability, request a judge’s retirement, temporarily halt the assignment of new cases, or censure or reprimand, either privately or in public.

The council can also decide to take no action.

The Spokesman-Review reported last Sunday that McDonald and a clerk had passed disparaging notes in court for years.

In one note, McDonald wrote “Ah is im po tent!” while a black man was testifying.

In a trial with Hispanic defendants and attorneys, his court clerk wrote: “It smells like oil in here - too many `Greasers.”’ In another case in Yakima, McDonald referred to labor union representatives as “union mafia” and “gangsters.”

Nielsen released a prepared statement to the newspaper on Wednesday about the controversy.

“The judges of this District feel that comments which may contain racial, ethnic and sexual connotations are inappropriate in court. Due to the factual matter revealed, this Court has referred the matter to the 9th Circuit Court of Appeals,” the statement said.

McDonald is on vacation and was unavailable for comment Wednesday.

In a previous interview, McDonald said the notes are private, were never intended for the public and are being misinterpreted.

McDonald said he was referring to himself when he wrote “Ah is im po tent!” “This is a term of self-deprecation that I employ. … `Ah is the judge, because ah is im po tent,”’ McDonald said. “Whatever its original origin, it has no racial connotation to me. I’m about as color blind as anybody you know.”

McDonald explained that some of the notes he and his clerk exchanged were jokes that helped “break the monotony” of court proceedings but didn’t affect the outcomes.

Since Sunday’s article revealing the contents of some of McDonald’s notes, public reaction in the Northwest has been strong.

On Tuesday’s editorial pages, The Seattle Times said McDonald’s notes “show disrespect for the court he serves” and called for a judicial reprimand.

On Wednesday, the Seattle Post-Intelligencer said the notes “merit official sanction.”

Also Wednesday, the Yakima Herald-Republic in McDonald’s hometown called for the 72-year old judge to retire.

Barring that, the judiciary should refrain from assigning him any more cases, the Herald-Republic said.

“The words `fair and impartial’ now ring hollow in the McDonald courtroom,” the newspaper editorialized.

Two members of Washington’s congressional delegation said they are dismayed by McDonald’s note-writing.

“These accusations are extremely troubling and it’s imperative that our judges are both fair and impartial,” said Democratic Sen. Patty Murray.

Jennifer Scott, press secretary for Rep. Doc Hastings, said the Pasco Republican found the allegations “troubling” and wants an explanation.

McDonald’s former court reporter, Kathryn Blankenship, said the judge and clerk, Pam Posada, passed hundreds of similar notes in the nine years she worked as a court reporter.

She is suing McDonald, claiming she was fired after testifying in a closed 1994 hearing about the note-passing and other alleged misconduct in McDonald’s court.

McDonald says she has carried on a vendetta against him after losing her job in 1995.

In a Jan. 10 interview, McDonald said he’d never seen the “Greaser” note before the newspaper provided him a copy.

Blankenship disputed that, saying he laughed after Posada passed it to him during a 1991 trial in Yakima.

George Trejo, a Hispanic lawyer and a participant in that trial, said he’s considering filing a judicial misconduct complaint against McDonald with the 9th Circuit.

Trejo also called for tossing out cases McDonald has handled in his 15 years as a federal judge. Trejo said all McDonald’s rulings are called into question by the biases revealed in the notes.

Guadalupe Gamboa, a lawyer and state director of the United Farm Workers, said McDonald is known as a conservative judge who is unfriendly to Hispanics.

“It was known he’d rule against farm workers and for the growers. We always tried to avoid getting him,” Gamboa said.

“When the decision-maker is biased from the outset, you’re not playing on a fair field. We see this as very serious,” he said.

In the Jan. 10 interview in Spokane, arranged by Judge Nielsen, McDonald said he’s simply “earthier” than other federal judges and isn’t racially prejudiced.

His Hispanic neighbors remain skeptical.

At the very least, McDonald should apologize to those he’s offended, Gamboa said. “We’d like to see an apology and a program to sensitize him and his employees,” Gamboa said.

McDonald, who has a reduced caseload as a senior judge, doesn’t hear all the federal cases in Yakima, Nielsen said.

The Eastern District’s four full-time judges also rotate to hear cases in Yakima, Nielsen said.

Since he took senior status in December 1996, McDonald hasn’t been assigned to any criminal cases, Nielsen added.

This sidebar appeared with the story: WHAT’S NEXT Timeline

The Judicial Council investigation could take several weeks to several months. Judge McDonald will be given a chance to respond to the complaint against him, Mendenhall said.