LATEST SALVO IN THE JUDICIAL MISCONDUCT COMPLAINT AGAINST JUDGE DU
The assignment of the newly filed Amarin v. Hikma case to Judge Du, provides what in my profession is called "a free bite of the apple." I bit.
Quick Synopsis:
With a pending Judicial Misconduct Complaint against Judge Du based upon the "appearance of impropriety", a second Amarin case has been assigned to Judge Du. The appropriate remedy is recusal. The Ninth Judicial Circuit needs to enforce Canon 3A(6) by ordering her immediate recusal from all Amarin cases.
July 20, 2020
Elizabeth Smith - Circuit Executive
Office of the Circuit Executive
United States Courts for the Ninth Circuit
James R. Browning United States Courthouse
95 Seventh Street
P.O. Box 193939
San Francisco, CA 94119-3939
Re: Complaint of Judicial Misconduct No. 20-90059
Dear Ms. Smith:
I am the Complainant in the above-captioned matter. The purpose of this correspondence is to alert the Ninth Judicial Circuit of a new development which may affect the disposition of this matter. Specifically, Judge Du has just been assigned to a newly filed Amarin case, despite the known pendency of this Judicial Misconduct matter alleging the appearance of impropriety with respect to Amarin.
By way of background, unlike the overwhelming majority of Judicial Misconduct Complaints processed by the Ninth Judicial Circuit, this is not an easily dispatched non-meritorious grievance filed by a disgruntled litigant inappropriately misusing this forum to attack the merits of an adverse court decision. Rather, this Complaint focuses on Judge Miranda M. Du’s extrajudicial comment during an interview with the Nevada Lawyer magazine.
The Complaint relies largely on Canon 3A(6) as clarified in the Comment providing, “The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality which would violate Canon 2A.” (emphasis added).
The Complaint further contends that Judge Du’s extrajudicial violation of Canon 3A(6) creates the perception that the public confidence in Judge Du’s impartiality would most certainly be denigrated in the eyes of any reasonable person with even the most rudimentary understanding of the subject matter in the underlying case. While the Complaint does not ask for a specific remedy, the obvious remedy under these circumstances, is for Judge Du’s recusal from any further matters involving Amarin, whether she voluntarily recuses herself, or is involuntarily recused through an Order from the Ninth Judicial Circuit.
On July 13, 2020, Amarin filed a patent infringement suit in the District of Nevada, captioned, Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA, Inc., Case No.: 3:20-cv-00421-MMD-CLB. Of primary importance, and the reason for the submission of this correspondence, is that the letters in the caption “MMD” confirm that the case has somehow been assigned to Judge Miranda M. Du, despite the existence of this pending Judicial Misconduct proceeding.
There has been no indication thus far that Judge Du has voluntarily recused herself from the recently filed case. In the interests of full disclosure, the newly filed case, rather than being fully litigated on the merits, will be disposed of via Consent Judgment, and consolidated with the Federal Circuit appeal (20-1723) of the original case tried by Judge Du, Amarin Pharma, Inc. v. Hikma Pharmaceuticals, USA, Inc., et. al. 2:16-cv-02525 (MMD) (NJK).
But that is not the point. Despite the pending Judicial Misconduct proceeding alleging the appearance of impropriety with regard to the first Amarin proceeding, Judge Du has inexplicably been assigned to the newly filed Amarin proceeding. Moreover, the current appeal has been fully briefed, and while there most likely will be oral argument before the Federal Circuit decision is rendered, the distinct possibility exists that the case could be remanded back to Judge Du for further proceedings.
This case is a true test of whether the Comment to Canon 3A(6), “If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality which would violate Canon 2A”, is merely an empty platitude, or a legitimate enforceable barometer governing the conduct of the Federal judiciary. “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Buckley v. Valeo, 424 U.S. 1, 67, 96 S.Ct. 612, 658, 46 L.Ed.2d 659 (1976).
Accordingly, I respectfully request that the Ninth Judicial Circuit act both with purpose and haste, to enforce Canon 3A(6). No matter what the outcome, I truly thank the Ninth Judicial Circuit for its kind consideration, and the opportunity to be heard on this matter.
Respectfully submitted,
Michael S. Kasanoff
AI
