U.S. Judge Reprimanded For Notes Council Says Mcdonald’S ‘Offensive Banter’ Created Appearance Of Bias

The 9th Circuit Judicial Council in San Francisco issued a rare public reprimand Monday of U.S. District Judge Alan McDonald for exchanging offensive notes in court with a clerk.

The notes were the subject of a Jan. 30 Spokesman-Review story that triggered the judicial misconduct investigation.

McDonald, 72, wasn’t biased against any ethnic or religious groups, but his “offensive banter” created an appearance of bias and violated judicial conduct codes, said a 9th Circuit committee formed to investigate the controversy.

In its order Monday, the nine-judge judicial council called McDonald’s conduct “prejudicial to the effective administration of the business of the courts.”

The council followed the recommendations of the committee headed by 9th Circuit Judge Thomas Nelson of Boise. The committee also included Procter Hug Jr. of Reno, chief judge of the sprawling Western circuit.

A public reprimand is “extraordinarily rare,” said Stephen Gillers, a professor at New York University School of Law and author of a widely used textbook on legal ethics.

“I can’t think of another recent example of public discipline of a federal judge in this manner,” Gillers said Monday.

“It’s very important that they did this because the conduct was unacceptable, and it’s important for the credibility of the federal courts to say so explicitly,” Gillers said.

McDonald issued a statement Monday through his lawyer, Walter Meyer of Yakima, saying they were pleased the committee concluded McDonald “is not or was not biased against any ethnic, racial or religious group.”

“The judge recognizes and regrets that a different impression may have been created by these events. He accepts the reprimand for the creation of an ‘appearance,’ which was never intended,” the statement said.

U.S. District Judge William Fremming Nielsen, who had referred the matter to the judicial council in early February, said the language in the 9th Circuit report is what he expected.

Judge McDonald “is not a racist,” Nielsen said. “But this had to be public because of the publicity it has received over the past six months. This is a public hand-slapping.”

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

In a Yakima trial with Hispanic defendants and attorneys, McDonald’s in-court clerk, Pam Posada, wrote, “It smells like oil in here - too many ‘Greasers.”’

In another Yakima case, McDonald referred to labor union representatives dressed in dark suits as “union mafia” and “gangsters.”

Most of the notes were provided by Kay Blankenship, McDonald’s former court reporter. Others came from Bill Powell, a Spokane attorney who retrieved some notes from a waste basket in McDonald’s courtroom during a 1990 jury trial.

In a Jan. 10 interview arranged by Nielsen, McDonald said the notes weren’t meant to be seen by the public and were being misinterpreted.

“I don’t need to apologize for them because they were never intended to be in a situation where they could be misunderstood,” McDonald told The Spokesman-Review.

He also said he is simply “earthier” than other federal judges because of his rural Yakima roots.

This week, Hispanic groups called on McDonald to apologize directly to their community. They had been especially upset by the “Greaser” note.

On April 4, the Mexican-American Legal Defense and Education Fund, the nation’s largest Hispanic civil rights group, filed a misconduct complaint against McDonald for “conduct prejudicial” to the courts.

Monday, fund lawyer Aisha Qaasim said the group was pleased with the public reprimand - but disappointed the committee exonerated McDonald for racial bias.

“The report was weak. It should have said those comments aren’t justified in any context,” Qaasim said.

Lupe Gamboa, a lawyer and Northwest regional director of the United Farm Workers of America, said McDonald needs to work hard to dispel doubts about his objectivity.

“This has been very prejudicial to the trust that people have about the neutrality of the courts. It puts a heavy cloud on Judge McDonald that he is going to have to work very hard to dispel. I question whether he’ll be able to do that,” Gamboa said.

McDonald has been on semi-retired “senior” status since December 1996. Senior judges work a reduced caseload while continuing to draw their full $141,300-a-year salaries.

The issue goes beyond McDonald, Gamboa added.

“The judiciary is all white in Eastern Washington, and a large portion of the people who go before them are brown. People already have a perception that the judicial system is biased against them, and this type of conduct just reaffirms that,” Gamboa said.

Three days after The Spokesman-Review story on McDonald’s note-passing habits, Nielsen referred the issue to the 9th Circuit for investigation.

The story triggered strong public reaction, including newspaper editorials around the Northwest calling for an official reprimand or stronger sanctions against McDonald.

In a rare criticism of a sitting judge, the Washington Bar Association also called on the 9th Circuit for a full investigation with a public resolution.

Monday, Jan Eric Peterson, president-elect of the state Bar Association, said the bar is pleased with the 9th Circuit investigation.

“It sends a couple of messages. Federal judges are accountable, and disparaging remarks, however intended, that appear to reflect bias are a serious matter,” Peterson said.

Over six months, the committee interviewed 18 people and reviewed the notes and newspaper articles.

In their recent report, committee members concluded McDonald “is not and was not biased against any ethnic, racial, or religious group.”

“Nonetheless, the Committee concludes that Judge McDonald on occasion violated the statutory standard of conduct by his practice, and by his condoning the practice among his courtroom staff, of writing and exchanging in open court, notes that could reasonably be interpreted as reflecting bias,” the committee said.

The notes “created an appearance of impropriety, undermined the public’s confidence in an impartial judiciary, and impugned the dignity and seriousness of the ongoing court proceedings.

“For these reasons, the committee concludes that more than a private reprimand is warranted.”

According to national court statistics, of 2,259 complaints filed against federal judges from 1996 to 1998, three resulted in a finding against a judge. A reprimand is one kind of a finding.

Most complaints are dismissed because they are related to the merits of a case the judge has decided or are “frivolous allegations unsupported by evidence,” according to the 9th Circuit’s 1998 annual report.

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

McDonald could have appealed the ruling to the Judicial Conference of the United States, but chose not to.

The controversy didn’t merit the strongest sanction, a recommendation of impeachment to Congress, NYU’s Gillers said.

“This is serious, but not so serious as to merit removal from office. If he did it again, that would be different,” Gillers said.