The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States on March 3, 2020, issued a memorandum decision addressing harassment complaints against Judge Carlos Murguia, who has since announced his resignation from the Kansas federal trial bench. Photo: Mike Scarcella/ALM

The chief judge for the U.S. Court of Appeals for the Tenth Circuit declined to initiate a formal sexual harassment complaint in 2017 into then-U.S. District Judge Carlos Murguia after he completed "medical treatment" in response to the claims, according to an order released Tuesday.

The information was revealed by the Judicial Conference's Committee on Judicial Conduct and Disability in an order concluding their probe into Murguia's conduct due to his resignation last month.

The document states that then-Chief Judge for the District of Kansas J. Thomas Marten informed Tenth Circuit Chief Judge Timothy Tymkovich in May 2016 that a former employee had accused Murguia of sexual harassment. Two other district judges had provided that information to Marten after first learning of the alleged harassment in April 2016 from judicial employees.

"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."

The medical professional, according to Tuesday's order, said after October 2016 that "Murguia had successfully completed treatment." The document does not provide details about the kind of medical treatment he received.

"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.

The order indicates further allegations came to light about Murguia in November 2017, including that he had an extramarital affair with a felon on probation at the time. "These allegations called into question Judge Murguia's candor and truthfulness during the Circuit Chief Judge's previous informal investigation," the document reads.

The circuit court then hired a retired FBI investigator to investigate Murguia further, which uncovered more allegations of misconduct.

"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.

A representative for the Office of the Circuit Executive for the Tenth Circuit referred comment to the Administrative Office for the Courts, which declined to comment. Tymkovich also deferred to the Administrative Office for comment.

Charles Geyh, a law professor at Indiana University who specializes in judicial ethics, said in the past that he did not think "the federal judiciary regarded sexual harassment of staff as different in kind from other forms of misconduct, which chief judges generally felt 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."

He said other behavior that is also considered a potential violation of the Judicial Conduct and Disability Act, like abusive actions toward lawyers and litigants, may be rooted in problems that could benefit from treatment and that the 2016 process undertaken by Tymkovich was "consistent with past practice."

However, Geyh said the 2017 allegations of sexual harassment against then-Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit "represented a pivot point for the federal judiciary—a moment of realization that sexual harassment was a problem too pervasive and too serious to be resolved in the usual way, without new and different protections and procedures in place."

"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."

Some, including lawmakers on Capitol Hill, have questioned how Murguia's conduct could have gone on for so long without anyone reporting it.

During a hearing last month on the federal judiciary's budget request, Rep. Norma Torres raised Murguia's case to Administrative Office of the Courts Director James Duff and chair of the Judicial Conference's budget committee, Senior District Judge John Lungstrum, who sat on the same Kansas court as Murguia.

"One of the most troubling things for me is that no one, no one, came forward. The victims were too afraid to come forward," Torres said. "The witnesses that could have potentially come forward on their behalf did not come forward. Other judges that might have been witnesses if they didn't come forward—I have to question whether they were also party to that harassment."

Lungstrum said the conduct had been reported by a court clerk to a judge and that Murguia's conduct was "an absolute shock."

"We have been extremely energetic in our efforts to work with those people who are the victims and those people who remain on Judge Murguia's staff, post his leaving the judiciary," the judge said.

That information from Tuesday's order was not included in a September order from the Tenth Circuit's Judicial Conference, which included Tymkovich, that reprimanded Murguia for his conduct—the most powerful tool in the judicial council's arsenal.

The council then referred Murguia's case to the Judicial Conference's Committee on Conduct and Disability for consideration and potential additional actions against Murguia.

On Tuesday, the committee said its "reviews and deliberations were ongoing" when Murguia submitted a letter to President Donald Trump resigning his commission as a judge.

The order also said that 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."

The last federal judge to be impeached and removed from the bench was District Judge G. Thomas Porteous of the Eastern District of Louisiana in 2010.

Sexual harassment emerged as a growing priority for the judiciary after a wave of allegations were made against Kozinski in 2017, who resigned from his seat over the claims.

Chief Justice John Roberts then directed the creation of a working group focused on judicial misconduct, which has since unveiled a series of reforms.

Congressional testimony from ex-law clerk Olivia Warren last month that alleged repeated harassment by the late Judge Stephen Reinhardt on the Ninth Circuit has put the spotlight back on the judiciary's efforts to address sexual harassment and raised questions about whether the reforms are doing enough to help affected judiciary employees.

Read more:

Former Law Clerk Alleges Repeated Sexual Harassment by Late Judge Stephen Reinhardt

Stunning Reinhardt Sexual Harassment Allegations Prompt Talk of Next Steps on Judicial Misconduct

Kansas Federal Judge Will Resign Amid New Scrutiny of Workplace Harassment Claims

House Questions Effectiveness of Sexual Misconduct Reforms in Wake of Judge's Repeated Harassment