Courts

The Tenth Circuit Really Dropped The Ball On Sexual Harassment Investigation

It took entirely too long for anything to be done.

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I’ve been procrastinating writing this story for several days. It’s just that every time I read the details of the case I became enraged. Not the productive kind of anger, but the kind that has me slamming my laptop closed and just walking away. But it’s Friday and the time has come to tell how the Tenth Circuit really screwed the pooch in the sexual harassment scandal of former District of Kansas judge Carlos Murguia.

You may remember Murguia from coverage here at Above the Law. In September of last year, the judge was formally reprimanded by the Judicial Council of the U.S. Court of Appeals for the Tenth Circuit, chaired by Circuit Chief Judge Timothy Tymkovich, for “inappropriate behavior.”

The council found Murguia sexually harassed court employees, specifically finding he “gave preferential treatment and unwanted attention” to female employees, and engaged in “sexually suggestive comments, inappropriate text messages, and excessive non-work-related contacts, much of which occurred after work hours and often late at night.” They also found Murguia had a years-long extramarital relationship with a felon on probation (who is now back in prison), and was “habitually” late for court.

Murguia admitted to the misconduct and apologized for his behavior. But was soon back on the bench. That sparked some outcry, but a judiciary spokesperson promised the reprimand “is not the final step in the process.” But any further disciplinary action was halted when Murguia resigned his position, effective April 1.

The Tenth Circuit has released more details about how the allegations against Murguia were handled. Way back in April of 2016 then-Chief Judge for the District of Kansas J. Thomas Marten was informed of allegations that Murguia sexually harassed a former employee. Judge Tymkovich was informed, and rather than initiate a formal inquiry into this serious allegation, the Tenth Circuit chief went with an informal approach. In addition to an “informal investigation” (which seems like an oxymoron, but whatevs), the Tenth Circuit also sent Murguia for medical treatment. I guess because they think “sexual harassment” can be found in the Diagnostic and Statistical Manual of Mental Disorders?

“The Circuit Chief Judge promptly conducted an informal investigation in accordance with JC&D Rule 53 that included reviewing documentary evidence and confronting Judge Murguia,” the order reads, citing a conduct committee rule. “Judge Murguia expressed remorse for his conduct toward the judicial employee who had alleged sexual harassment and agreed to participate in assessment and treatment by a medical professional, at the recommendation of the Tenth Circuit’s Certified Medical Professional.”

After Murguia had “successfully completed treatment” (I’d love to see what the American Medical Association recommends as the appropriate treatment for sexually harassing employees, because the Tenth Circuit’s statement contains no details on what that entails), the entire matter had been swept under the rug:

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“The Circuit Chief Judge sent Judge Murguia a letter in February 2017 saying that there was credible evidence that he had engaged in misconduct, but that he would not initiate a formal misconduct complaint because of Judge Murguia’s apparent honesty in admitting his improper behavior, willingness to correct his behavior, cooperation with the Tenth Circuit’s Certified Medical Professional, and successful evaluation and treatment,” the order reads.

Just a few months later, in November 2017, additional allegations against Murguia came to light (including the particularly salacious detail that he began an extramarital affair with a felon who was on probation). And that, at least, gave the Tenth Circuit pause, “These allegations called into question Judge Murguia’s candor and truthfulness during the Circuit Chief Judge’s previous informal investigation.” Yeah, no kidding.

It was at that point that a retired FBI investigator was hired to actually investigate Murguia. And whaddya know? They found even more allegations! Because of course they did, this is what happens when you do a real investigation:

“Additional information regarding possible judicial misconduct by Judge Murguia, including his sexual harassment of two additional judicial employees, came to light during this investigation and showed Judge Murguia’s lack of candor and truthfulness during the informal investigation, including his lack of candor and truthfulness during his evaluation and treatment following the initial allegations,” the order reads.

According to the court’s statement, Murguia’s “underlying misconduct, as found by the Tenth Circuit Judicial Council, was serious enough to warrant this committee’s review to determine whether it should recommend a referral to Congress for its consideration of impeachment.” Of course, any further action against Murguia was short-circuited when he resigned.

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But what, exactly, should the casual court observer make of the distinct lack of urgency when the Tenth Circuit was confronted with evidence of sexual harassment of a fellow judge? Charles Geyh, an Indiana University Maurer School of Law professor who specializes in judicial ethics, told Law.com that  “chief judges generally felt [misconduct allegations] could and should best be managed informally first, with the threat of formal discipline held in reserve as a kind of shotgun behind the door if informal efforts failed.” And that before the allegations against former Ninth Circuit judge Alex Kozinski came to light no difference was seen between sexual harassment and other forms misconduct. Geyh goes on to note, that this case illustrates how harmful that approach can be for sexual harassment allegations:

“The early stages illustrate the traditional approach of seeking informal resolution first, followed by escalating sanctions culminating in an impeachment referral. That is a fine approach as a general matter, but when it comes to sexual harassment, this episode reveals a need for near-zero tolerance, to better protect the victims of harassment,” Geyh said. “That this judge was allowed to flout the process for four years is unacceptable.”

Of course that’s true. There’s so much hand-wringing about why victims of sexual harassment by federal judges are hesitant to come forward, well folks, we have (at least part of) the answer. Even when someone does come forward with credible accusations of sexual harassment it can take 3+ years for anything to be done. All the while the judge is still sitting on the bench. The process clearly needs to change.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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