Saturday, March 8, 2008

Trouble Brewing for D. Colo.'s Chief Judge: Strip Clubs, Prostitution, and Parking in a Handicapped Spot

Posted by Alan Childress

Here is the TV news story of a federal court investigation out of Denver, re Chief Judge Edward Nottingham of the U.S. District Court for the District of Colorado, for hiring prostitutes. He was already controversial long before these recent allegations due to prior strip club bills (WSJ Law Blog blurb here) and his demeanor -- also receiving the reputation (says this 'insider's' website) of having "gavelitis," and was "known for scheduling hearings at 6:30 a.m. for lawyers who had irked him."  He once jailed a litigant for four months for filing frivolous lawsuits, but out of jail she appealed them and won one.  I would say this kind of conduct is a more serious judicial abuse than even charges of illegality in his private life, though that is serious too. 

I personally believe anyone who expects anything at 6:30 a.m. is impeachable, though I know Jeff disagrees, as he is usually finishing an article by then.  (Jeff lives on a schedule that only makes sense if his home were a dot somewhere in the Atlantic.)  At any rate, it will not help Judge Nottingham going forward in the investigation that his name was so easily turned into the nickname "Naughty" by the prostitutes.  Res ipsa loquitur, anyone?   

By the way, some stories wrongly or ambiguously report the one being investigated as a Chief Judge in the Tenth Circuit.  That has got to irk Hon. Robert Henry, Chief Judge of the Tenth Circuit (formerly a law prof and dean at Oklahoma City University), and his wife.  Journalists really need to learn the basic Scales_of_justice structure of the federal courts.

One fair question to ask, I think, is why the most recent charges would be an impeachable offense to a federal judge but not to a U.S. Senator.  Is there something different about law judging over law making that requires more diligence to the rule of law outside of court?  Probably so, but it is worth asking.  The news story quotes the judge as having told one famous white collar criminal defendant: 

"If it is perceived that there is one law for the rich and one law for everyone else, the law ultimately falls into disrespect," said Judge Edward Nottingham to [Qwest CEO Joe] Nacchio. "The law does not care about your station in life."

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I think Judge Nottingham's use of witness intimidation and witness retaliation is a much bigger issue than his sex life, but I think they are related, that he made himself vulnerable to black mail and that he hates respectable women that he can't control. He fined us $102,000 without a rule 11 6 order. He put me in jail without stating an offense, three times, and then said "whoops". He said
“You will file on your behalf a motion to voluntarily dismiss (p. 32)…If you fail to withdraw those lawsuits, the next time you’re in this court you better be prepared with your toothbrush, because you will be going to jail. (p.33.)” Judge Edward W. Nottingham, CO 02-cv-1950, 9/2/05 document 884

“the Court’s order to the U.S. Marshals Service is that she will be taken into custody and held…. she will not be released until we have certified copies of the dismissals of these cases…” 2/4/06 transcript District of Colorado 02-1950 document 785 Judge Nottingham

Posted by: kay sieverding | Mar 8, 2008 5:31:00 PM

"One fair question to ask, I think, is why the most recent charges would be an impeachable offense to a federal judge but not to a U.S. Senator."

The standards are different, by virtue of the "good Behaviour" clause of Article III.

First, it is well-established from English precedents that violations of good behavior tenure are not necessarily acts of “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. art. II, § 4. For instance, a jailer “might forfeit his office for negligently allowing escapes, and a recorder might forfeit his office for failure to attend sessions of a corporation.” David R. Stras and Ryan W. Scott, Retaining Life Tenure: The Case For a Golden Parachute, 83. Wash.U. L.Q. 1397, 1407 (2005). Sir Edward Coke listed three grounds for forfeiture: abuse of office, nonuse of office, and refusal to exercise an office. Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72 (2006) at 90. Blackstone added that “the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king's bench.” 4 Blackstone, Commentaries 140-41. While abuse of office can easily rise to the level of an impeachable offense (e.g., soliciting bribes from litigants), most offenses contemplated under the good behavior clause don’t approach that threshold. A simple hypothetical -- conflating actual incidents in Colorado courts -- illustrates this point.

Let us say that, for whatever reason, Judge Good harbored a secret grudge toward the Diamond Cabaret (they wouldn't hire his ugly daughter), and the corporation files a tax lawsuit that ends up in his court. And let us also say that, while his was otherwise the most efficient docket in the land, he decides to ignore the case. Has he committed a “high crime”? Of course not! A “misdemeanor”? Not even close. No judge in the history of our Republic has ever been impeached for non-criminal behavior in a single case. See generally, H.R. 916: Impeaching Manuel Real, a Judge of the District Court for the Central District of California for High Crimes and Misdemeanors, Hearings Before the House Judiciary Committee, September 21, 2006 (prepared testimony of Prof. Charles Geyh) (historical background). Would it be grounds for discipline? Perhaps, but the system of judicial discipline in federal courts is so feckless as to not constitute a meaningful deterrent. See generally, Kenneth L. Smith, Public Comment (to the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States Judicial Council), September 26, 2007, available at

In the shire of Nottingham in 1758, a lowly citizen could issue a writ of scire facias to Judge Good in the name of the King, requiring him to give an account of himself in a court of law. But in the court of Judge Nottingham in 2008, without the benefit of the writ, the proprietors of the Cabaret are bereft of remedy. To be shut out of court is to be deprived of every right appurtenant to citizenship, intolerable in a nation that presumes to be governed by the rule of law. As such, it would follow that the Constitution permits Judge Good’s hypothetical victims to proceed against him and remove him from his office for willful refusal to exercise that office. And this raises a separate issue, to be addressed in the next post.

Posted by: RK | Mar 8, 2008 7:20:14 PM

The question the Constitution doesn’t answer is one of who is supposed to enforce good behavior tenure. My thought is that it is the people themselves. I’d like your thoughts on this.

Although most agents of the Crown served “at the pleasure of the King,” public officials were often given a freehold in their offices. See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer). Lesser lords were also given the authority to bestow freeholds, which created an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security. See e.g., Harcourt v. Fox, 1 Show. 426 (K.B. 1692) (re: clerk of the peace). Without some kind of effective controls upon their conduct, this would engender intolerable injustice, as the King’s ministers would be free to vent their spleen upon defenseless subjects with impunity.

Under England’s constitutional framework, the King ‘could do no wrong’ as a matter of definition, but his ministers could. Accordingly, English law offered a vast array of remedies for the citizen injured as a result of their wrongful conduct. Blackstone explains:

"THAT the king can do no wrong, is a necessary and fundamental principle of the English constitution: meaning only, as has formerly been observed, that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people: and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever therefore it happens, that, by misinformation or inadvertence, the crown hath been induced to invade the private rights of any of it's subject, though no action will lie against the sovereign, (for who shall command the king?) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it perfumes that to know of an injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king's own name, his orders to his judges to do justice to the party aggrieved."

3 Blackstone, Commentaries 254-55.

Originally, English judges served at the pleasure of the King. This system created self-evident problems of its own, as a judge whose continuance in a lucrative office depended on the pleasure of the King would be disinclined to incur his wrath by ruling against him. The Act of Settlement of 1701 remedied this situation, by granting English judges life tenure quamdiu se bene gesserint (conditioned on good behavior) and establishing fixed salaries.

Under the common law, the good behavior tenure of public officeholders was enforced by the sovereign through the writ of scire facias. But as this power concerned only the interests of his subjects, and as the king exercised it only as parens patriae, he was bound de jure to allow the use of it to any subject interested. Blackstone explains:

"WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias."

3 Blackstone, Commentaries 260-61. Our own Supreme Court elaborates:

"Charters and patents authenticating grants of personal privileges were in the earlier days of the English government made by the crown. They were supposed to emanate directly from the king, and were not issued under any authority given by acts of parliament, nor were they regulated by any statutes. Being, therefore, in their origin an exercise of his personal prerogative, the power of revoking them, so far as they could be revoked at all, was in the king, and was exercised by him as a personal privilege. This mode of revoking patents, however, seems to have fallen into disuse, and the same end was attained by the issue of writs of scire facias in the name of the king, to show cause why the patents should not be repealed or revoked. These were, of course, returnable into some court, and it appears to have been the practice to do this in the court of king's bench, or in the court of chancery, where the record of the patent always remained in what was called the 'Petty Bag Office.'"

United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888).

The writ of scire facias was a formidable deterrent in the hands of the public: If a minister of the Crown knew that he would lose his lucrative sinecure if he ‘vented his spleen’ on one of the subjects he was charged with serving, he would be far less likely to indulge his darker impulses. If this were England, the people could do it themselves. Here, it is anyone's guess, as to the best of my knowledge it has never been tried.

Posted by: RK | Mar 8, 2008 7:22:21 PM

What has always amazed me is not bad federal judges abusing their positions in the courtroom, but that the good judges and law professors are so astonishingly solicitous of the practice. By way of example, the memo I cited earlier opines that

"there may not be a bar for judicial conduct on the planet set lower than the one established by the Tenth Circuit. Professor Ronald Rotunda observes:

[Judge] John Kane (who gave me permission to quote his e-mail), wrote, "I've been a district judge for 29 years and think the federal judicial house has brought this legislation on itself." He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.

Judge Kane's e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, "and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.'" [Ronald D. Rotunda, “The Courts Need This Watchdog,” Washington Post, Dec. 21, 2006 at A-29.]

The judges of that Circuit have established a standard for perfidy Judge Nottingham couldn’t live down to if he moved into the Diamond Cabaret. Assuming Judge Kane’s veracity, Tenth Circuit judges saw nothing wrong with one of their colleagues soliciting a bribe!"

Smith at 1.

In one case, Nottingham performed his "de novo review" of a recommendation of dismissal in a pro se case (under Fed. R. Civ. P. 72) three days before the due date for objections to the order. When the litigant submitted a fully hyperlinked brief, Nottingham struck the brief in its entirety and re-entered the order. Order Accepting Magistrate Judge’s Recommendation and Striking Pl’s. Objections Thereto, Harrington v. Wilson, No. 05-cv-01858-EWN-MJW (D.Colo. filed Sep. 25, 2006). What Judge Naughty does on his own time frankly doesn't concern me overmuch, but when a federal judge abuses his office, he should imho be drawn and quartered in the way they did it during medieval England.

Posted by: RK | Mar 8, 2008 7:41:59 PM

BTW, here's my personal take on the scandal: If you take a real good look at him, he looks like Paulie Walnuts. :)

Posted by: RK | Mar 8, 2008 7:45:02 PM

It is now confirmed that the Tenth Circuit Judicial Council is, indeed, investigating Chief Judge Edward Nottingham, notwithstanding his attorney's denial regarding the same. See

Posted by: Pete Smith | Mar 13, 2008 1:39:15 PM

Denver Chief U.S. District Court Judge Edward Nottingham resigned to
end the judicial misconduct investigations against him.

There are now five other public federal judicial misconduct
investigations pending. [ U.S. Magistrate Judge Alan J. Baverman, U.S.
District Court Judge Samuel Kent, U.S. District Court Judge Thomas
Porteous, U.S. District Court Judge Manuel Real, and Chief U.S.
Circuit Judge Alex Kozinski].

It appears Magistrate Judge Alan J. Baverman will likely be the next
to resign [ see ] as his judicial
complaint warranted the formation of a judicial investigative
committee for supported allegations of extortion of $1,000,000,
obstruction of justice, witness tampering, perjury and threats of

According to a recent October 13, 2008 article -- there have only been
18 federal investigative committee formed in response to the 1,454
federal judicial complaints filed in the U.S. over the last few years
[ see ]. This
article describes the federal judicial misconduct investigative

The frequent corruption headlines relating to the financial markets
and politics should be a lesson to us all --- we should always act to
rid ourselves of corruptions instead of limiting our actions to only
instances that very directly affect our own lives. Unchecked
corruption does eventually affect us all.

I hope readers of this post agree and will actually make an effort to
ensure the pending judicial investigations receive a proper 'open-eye'
investigation. Make some calls, send some emails, forward information
to others who may actually make a difference, or volunteer your own

As Edmund Burke stated in 1770, "All that is necessary for the triumph
of evil is that good men do nothing" and "When bad men combine, the
good must associate; else they will fall one by one, an unpitied
sacrifice in a contemptible struggle." These words are as true today
as they were centuries ago.

Please do not sit idle. Do not allow our system of justice to follow
the path of our financial system.

Posted by: Judicial Misconduct | Oct 22, 2008 8:51:20 AM

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