JUDICIAL COUNCIL OF THE
TENTH CIRCUIT

IN RE: COMPLAINT UNDER THE
JUDICIAL CONDUCT AND
DISABILITY ACT

No. 10-18-90022

Before TYMKOVICH, Chief Circuit Judge, KELLY, LUCERO, HARTZ, Circuit
Judges, BRIMMER, WADDOUPS, and DOWDELL, District Judges *
ORDER
In August 2018, Chief Judge Tymkovich identified a complaint of judicial
misconduct under the Judicial Conduct and Disability Act, 28 U.S.C. § 351–364, against
District Judge Carlos Murguia of the District of Kansas. Rules for Judicial-Conduct and
Judicial-Disability Proceedings Rule 5 (Jud. Conf. of the U.S. 2019). 1 Chief Judge
Tymkovich appointed a Special Committee, 2 pursuant to § 353 of the Act, to investigate
the allegations against Judge Murguia, and the Special Committee has submitted a report

The Honorable Mary Beck Briscoe and the Honorable Scott Skavdahl are
members of the Judicial Council but did not participate in the consideration of this
matter.

*

“Once a special committee has been appointed, and a proceeding is concluded by
the full judicial council on the basis of a remedial order of the council, Rule 24(a)(4)
provides for disclosure of the name of the subject judge.” Rules for Judicial-Conduct and
Judicial-Disability Proceedings Rule 24(a)(4) cmt. (Jud. Conf. of the U.S. 2019).
1

The members of the Special Committee are Circuit Judges Timothy M.
Tymkovich, Michael R. Murphy (presiding), and Carolyn B. McHugh, and District
Judges Claire V. Eagan and Philip A. Brimmer.
2

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 of its findings and recommendations to the Judicial Council and to Judge Murguia. Judge
Murguia has responded.
After consideration of the Special Committee’s report and Judge Murguia’s
response, the Judicial Council unanimously adopts the Special Committee’s conclusions
that Judge Murguia committed judicial misconduct by: (1) sexually harassing Judiciary
employees; (2) engaging in an extramarital sexual relationship with an individual who
had been convicted of felonies in state court and was then on probation; and (3)
demonstrating habitual tardiness for court engagements. The remainder of allegations
identified in the 2018 complaint are dismissed because the facts on which those
allegations are based have not been established. See Rule 20(b)(1)(A)(iii).
The Special Committee hired an investigator to assist with the matter. With her
assistance, the Special Committee conducted an extensive investigation including
interviews with 23 people and a hearing at which Judge Murguia testified under oath.
The Special Committee unanimously submitted its findings and recommendations. The
three findings of misconduct are explained below.
First, Judge Murguia gave preferential treatment and unwanted attention to female
employees of the Judiciary in the form of sexually suggestive comments, inappropriate
text messages, and excessive, non-work-related contact, much of which occurred after
work hours and often late at night. All of the harassed employees stated that they were
reluctant to tell Judge Murguia to cease his behavior because of the power he held as a

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 federal judge. One of the employees eventually told him explicitly to stop his harassing
conduct, but he continued.
This type of behavior violates several provisions of the Code of Conduct for
United States Judges. See Code of Conduct for U.S. Judges, Canon 3B(4) (providing that
“[a] judge should not engage in any form of harassment of court personnel”); Canon 3
cmt. to 3A(3) (advising that “[t]he duty to be respectful includes the responsibility to
avoid comment or behavior that could reasonably be interpreted as harassment”); Canon
3 cmt. to 3B(4) (advising that “harassment encompasses a range of conduct having no
legitimate role in the workplace”). Further, the Rules include “[a]busive or [h]arassing
behavior” in the definition of misconduct, which, in turn, includes “engaging in
unwanted, offensive, or abusive sexual conduct, including sexual harassment.” Rule
4(a)(2) & 4(a)(2)(A).
Second, Judge Murguia engaged in a years-long extramarital sexual relationship
with a drug-using individual who was then on probation and is now incarcerated (because
of probation violations) for state-court felony convictions. A judge’s sexual affair does
not constitute misconduct in all cases; whether a judge’s affair, even with a convicted
felon, is misconduct depends on the circumstances surrounding the relationship. But the
Special Committee found, and the Council agrees, that Judge Murguia placed himself in
such a compromised position that he made himself susceptible to extortion.
Given the risk of extortion and potential for embarrassment to the Judiciary, Judge
Murguia’s relationship implicates Code of Conduct Canons 1 and 2. The relationship
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 itself is in violation of Canon 2, which is titled “A Judge Should Avoid Impropriety and
Appearance of Impropriety in All Activities.” Judge Murguia’s relationship with a
convicted felon on probation could cause “reasonable minds, with knowledge of all the
relevant circumstances,” to “conclude that the judge’s honesty, integrity, impartiality,
temperament, or fitness to serve as a judge is impaired.” Canon 2 cmt. to 2A. The
Commentary to Canon 2A is explicit that the prohibition on impropriety (or the
appearance thereof) “applies to both professional and personal conduct” and that “[a]
judge must expect to be the subject of constant public scrutiny and accept freely and
willingly restrictions that might be viewed as burdensome by the ordinary citizen.” Id.
Third, Judge Murguia has been habitually late for court proceedings and meetings
for years. The Special Committee found general agreement among witnesses that Judge
Murguia was frequently late for court proceedings, often requiring attorneys, parties, and
juries to wait, and sometimes making attorneys late for proceedings in other courtrooms.
A repeated cause of this tardiness was Judge Murguia’s regularly scheduled lunchtime
basketball games on days when he had hearings or trials, leaving the jury and others
waiting for him to return. Judge Murguia was counseled about his tardiness fairly early
in his federal judicial career, but his conduct persisted nonetheless.
A judge’s habitual disrespect for attorneys, jurors, and witnesses is a violation of
the Code of Conduct for United States Judges. Canon 3 advises that “[a] judge should be
. . . respectful[] and courteous to litigants, jurors, witnesses, [and] lawyers[,]” Canon
3A(3), “[a] judge should dispose promptly of the business of the court . . . ,” Canon
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 3A(5), and “[a] judge should diligently discharge administrative responsibilities . . . and
facilitate the performance of the administrative responsibilities of other judges and court
personnel,” Canon 3B(1). Given the number of years Judge Murguia engaged in this
practice, his having been previously counseled against it, and the resulting lack of respect
this demonstrated toward jurors, attorneys, and litigants, his behavior amounts to
misconduct. See Rule 4 cmt. (“[A] pattern of such violations of the Code might well rise
to the level of misconduct.”).
Judge Murguia admitted that he engaged in these three forms of misconduct.
During the course of the investigation and proceedings, he also apologized for his
behavior and assured the Judicial Council that he will not engage in this or any other
inappropriate conduct in the future. In addition, the Special Committee found no
evidence that his misconduct continued after he was served with the complaint. He has
also offered to take voluntary corrective action.
Despite these assurances, we note that Judge Murguia was less than candid with
the Special Committee. When initially confronted with the allegations, he did not fully
disclose the extent of his misconduct. He tended to admit to allegations only when
confronted with supporting documentary evidence. His apologies appeared more tied to
his regret that his actions were brought to light than an awareness of, and regret for, the
harm he caused to the individuals involved and to the integrity of his office. Moreover,
his misconduct is very serious and occurred over a lengthy period.

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 As judges, we have an obligation to foster a nondiscriminatory and courteous
workplace that is respectful of everyone inside and outside the Judiciary. Judges have a
duty to maintain the integrity and propriety of the Judiciary and to ensure that the public
has a positive view of, and experience with, the Judiciary. Judge Murguia’s actions fell
well short of these obligations.
In accordance with Rule 20(b)(1)(D), the Judicial Council is empowered to take
remedial action to ensure the effective and expeditious administration of the business of
the courts. One option is to issue a private reprimand. This course of action would serve
to identify and denounce the misconduct. Such action might be sufficient to deter future
misconduct. However, the conduct of Judge Murguia was too serious and the importance
of maintaining the integrity of the Judiciary in the mind of the public too important for a
private reprimand. The most severe sanction available to the Council in this matter is a
public reprimand. 3 Although we appreciate the public reprimand may cause
embarrassment to the Judiciary, misconduct that rises to this level calls for transparency
and a powerful disincentive. 4

Considering the statutory requirement for certifying a misconduct matter for
impeachment, 28 U.S.C. § 354(b)(2), and the applicable constitutional standard of “high
Crimes and Misdemeanors,” the evidence and facts in this matter are insufficient to
recommend the Judicial Conference refer this matter to Congress for impeachment.
Const. art. II, sec. 4.
3

In a private letter, the Council is also requiring Judge Murguia to take certain
corrective actions, with which Judge Murguia has agreed.
4

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 Pursuant to 28 U.S.C. § 354(a)(2)(A)(iii), the Judicial Council reprimands Judge
Murguia for his conduct described in this Order, conduct that was prejudicial to the
effective and expeditious administration of the business of the courts. The Judicial
Council further admonishes Judge Murguia for his violations of the Code of Conduct.
The Circuit Executive is directed to transmit this Order to Judge Murguia and the
Judicial Conference Committee on Judicial Conduct and Disability. See Rule 20(f). The
Circuit Executive is also directed to ensure that this reprimand is publicly available.
Judge Murguia has agreed to waive his right to seek review of this Order from the
Committee on Judicial Conduct and Disability under Rules 21 and 22. Therefore, this
matter is concluded, and this Order shall be made publicly available immediately. See
Rule 24. The Special Committee’s report and other materials related to this matter shall
remain confidential pursuant to 28 U.S.C. § 360.
So ORDERED, September 30, 2019, and
Entered on behalf of the Judicial Council
of the Tenth Circuit
By:
Honorable Timothy M. Tymkovich
Chief Circuit Judge

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