The fact is many of those with judicial grievances normally pen judicial complaints while high on emotions and fall into the trap of contesting a judges decision based on the “mere legal error rule”.
Oberholzer v. Commission on Judicial Performance 20 Cal.4th 371 (Cal. 1999)
Finding that “[m]ere legal error, without more, . . . is insufficient to support a finding that a judge has violated the Code of Judicial Ethics”
Unfortunately, even if the ruling was incorrect, that argument won’t get you far and your judicial complaint will be dismissed quickly.
To hold judges accountable in your judicial complaint, you’ll need to focus on decisions which are:
Clearly contrary to law,
That were reached without following the procedures that confer legitimacy and credence upon judicial actions,
That represent an exercise of discretion motivated by bad faith,
That reflect repeated legal error that cannot be attributed to an honest mistake.
THE BURKES’ ATTACHING AFFIDAVITS
The Burkes attach individual affidavits pointing out the MJ shouted at John Burke the following question; “Are you a CRIMINAL?” John Burke, calmly replied; “Do I look like a CRIMINAL, your honor?”.
Note; Affidavits allege transcript of the hearing has no reference to this question by Magistrate Judge Bray. e.g. the transcript and audio was ‘doctored’. The Burkes’ had requested expedited copies but those requests were substantially delayed, time which the Burkes contend, allow for any changes and edits to be instructed and executed.
#pandemic @GovExec @GovAbbott @gov_justice @fbi @statebaroftexas @TexasLawyer @HoustonChron @KenPaxtonTX @tedcruz @SenTedCruz @BLaw @cnnbrk @abc13houston @ABAesq @MSNBC @reason @MotherJones @TexasLawyer @TexasGOP @texasdemocrats @TexasLawbook @TexasTribune @boyscouts @jewishsf pic.twitter.com/6ITfzFM8QT
— LawsInTexas (@lawsintexasusa) March 20, 2020
THE LINE BETWEEN LEGAL ERROR AND JUDICIAL MISCONDUCT: BALANCING JUDICIAL INDEPENDENCE AND ACCOUNTABILITY
Most of the complaints filed with state judicial conduct commissions-generally more than ninety percent-are dismissed every year.1 Some dismissed complaints do not allege a violation of the code of judicial conduct. For example, litigants sometimes complain that a judge did not return telephone calls because they do not understand that a judge is required to avoid such ex parte communications. Others are dismissed because the evidence does not support the complaint. For example, a Texas prison inmate alleged that the judge who had presided in his trial had been prejudiced against him because they had once been married; the State Commission on Judicial Conduct dismissed his complaint after its investigation revealed that the judge had never been· married to the complainant2.
Most of the complaints that are dismissed every year are dismissed as beyond the jurisdiction of the commissions because, in effect, the complainants are asking the commission to act as an appellate court and review the merits of a judge’s decision, claiming that a judge made an incorrect finding of fact, misapplied the law, or abused his or her discretion. Correcting errors is the role of the appellate courts, however, and a commission cannot vacate an order or otherwise provide relief for
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a litigant who is dissatisfied with a judge’s decision. In its annual report, the Kansas Commission on Judicial Qualifications explains:
Appealable matters constitute the majority of the [complaints that are not investigated] and arise from a public misconception of the Commission’s function. The Commission does not function as an appellate court. Examples of appealable matters which are outside the Commission’s jurisdiction include: matters involving the exercise of judicial discretion, particularly in domestic cases; disagreements with the judge’s application of the law; evidentiary or procedural matters, particularly in criminal cases; and allegations of abuse of discretion in sentencm• g.3
On the other hand, the code of judicial conduct does require a judge to “respect and comply with the law,”4 to “be faithful to the law and maintain professional competence in it,”5 and to “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” 6 Moreover, it would be incongruous if the principle “ignorance of the law is no excuse” applies to everyone but those charged with interpreting and applying the law to others. Thus, while mere legal error does not constitute misconduct, “[j]udicial conduct creating the need for disciplinary action can grow from the same root as judicial conduct creating potential appellate review ….”7 This article will review both cases in which a finding of misconduct was based on legal error and cases in which legal error was not sanctioned to describe the “something more” that transforms legal error into judicial misconduct.
Part of the justification for the “mere legal error” doctrine is that making mistakes is part of being human and is inevitable in the context in which most judicial decision-making takes place. It is not unethical to
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be imperfect, and it would be unfair to sanction a judge for not being infallible while making hundreds of decisions often under pressure.
All judges make legal errors. Sometimes this is because the applicable legal principles are unclear. Other times the principles are clear, but whether they apply to a particular situation may not be. Whether a judge has made a legal error is frequently a question on which disinterested, legally trained people can reasonably disagree. And whether legal error has been committed is always a question that is determined after the fact, free from the exigencies present when the particular decision in question was made. 8
In addition, if every error of law or abuse of discretion subjected a judge to discipline as well as reversal, the independence of the judiciary would be threatened.
[J]udges must be able to rule in accordance with the law which they believe applies to the case before them, free from extraneous considerations of punishment or reward. This is the central value of judicial independence . That value is threatened when a judge confronted with a choice of how to rule-and judges are confronted with scores of such choices every day-must ask not “which is the best choice under the law as I understand it,” but “which is the choice least likely to result in judicial discipline ?”9
Moreover, the authority to interpret and construe constitutional provisions and statutes resides in a state’s trial and appellate court system and in judges chosen by whatever method the state constitution dictates. The conduct commission members are not chosen the same ways judges are; many are not judges, and some are not lawyers. A problem would be created if the commission’s legal interpretation differed from that of the appellate courts, although that problem is ameliorated by the possibility of supreme court review of judicial discipline cases in most states. Furthermore, judicial conduct commission proceedings are not the ideal forum for debating whether a judge made an erroneous decision as the parties in the underlying proceeding would not necessarily participate, and the commission does not have the authority to remedy an error by vacating the judge’s order.
The appellate and discipline systems have different goals, however, and accomplishing both objectives in some cases requires both appellate
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review and judicial discipline.10 Appellate review “seeks to correct past prejudice to a particular party” while judicial discipline “seeks to prevent potential prejudice to future litigants and the judiciary in general.”11 “[A]n individual defendant’s vindication of personal rights does not necessarily protect the public from a judge who repeatedly and grossly abuses his judicial power.”12 Moreover, the discipline system’s goal of preventing potential prejudice to the judicial system itself cannot depend on “a party’s decision in litigation to expend the time and money associated with pursuing a question of judicial conduct that may be examined on review.” 13 The possibility of an appellate remedy for a particular judicial act, therefore, does not automatically and necessarily divest the judicial discipline authority of jurisdiction to review the same conduct.
Some courts have even questioned whether the invocation of judicial independence in judicial disciplinary proceedings misapplies the concept because judicial independence “does not refer to independence from judicial disciplinary bodies (or from higher courts).”14
In the traditional sense, the concept ofan independent judiciary refers to the need for a separation between the judicial branch and the legislative and executive branches…. Judicial independence requires a judge to commit to following the constitution, the statutes, common law principles, and precedent without intrusion from or intruding upon other branches of government.15
Even a federal court suggested that the constitutional measures meant to protect judicial independence were not intended to insulate individual judges from accountability to ” the world as a whole (including the judicial branch itsel f),” but “to safeguard the branch’ s independence from its two competitors.”16
The extensive involvement of other judges on the conduct commissions and in the review of judicial discipline cases ensures that the perspective of the judiciary and deference to its independence is
 JUDICIAL INDEPENDENCE AND ACCOUNTABILITY 1249
reflected in the decision whether to find misconduct based on legal error.17 Finally, judicial discipline for legal error does not always or even often result in removal but may simply lead to a reprimand, censure, or suspension.
Intemperate remarks can result in reversal on appeal, and citing the same concerns with judicial independence underlying the “mere legal error” rule, judges have argued that their in-court statements are entitled to deference and should not subject them to sanction.18 Courts and conduct commissions generally reject that argument, however, and intemperate remarks can lead not only to reversal but to a finding that the judge violated the code of judicial conduct requirement that “[a] judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.” 19
In In re Hammermaster, 20 the Supreme Court of Washington sanctioned a judge for, among other misconduct, telling 12 defendants he would either impose an indefinite jail sentence or life imprisonment if they did not pay the fines and costs imposed. The judge acknowledged that he knew the law did not allow for life imprisonment for failure to
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pay fines and that he had no authority as a municipal court judge to impose such sentences. He claimed that the remarks were a “technique of obvious exaggeration” to alert the defendants to the serious consequences of their actions and defended his conduct “on grounds that a judge is en.titled to latitude in dealing with defendants and that his statements were a reasonable exercise of judicial independence. “21
The court agreed that “a judge must have latitude when speaking with defendants,” but concluded that “using threats which exceed judicial authority is unacceptable, even if the judge believes such threats are the only way to coerce compliance.” 22 Rejecting the judge’s argument that his treatment of the defendants was an exercise of judicial independence, the court held, “[j]udicial independence does not equate to unbridled discretion to bully and threaten, to disregard the requirements of the law, or to ignore the constitutional rights of defendants.”23
A federal judge argued that the principles of judicial independence incorporated in the United States Constitution barred any sanction for “‘anything to do with anything that happened when the judge … was acting and deciding cases or in any phase of the decisional function,'” including “‘anything that the judge does verbally or physically in the course of adjudication. ” ’24 This exemption included, according to his counsel, racist disparagement of or even punching attorneys appearing before him. 25 The United States Court of Appeals for the District of Columbia Circuit rejected that argument. The court, assuming arguendo that disciplinary procedures may not constitutionally be used as a substitute for appeal,26 stated that the judge’s “theory plainly goes well beyond judicial acts realistically susceptible of correction through the avenues of appeal, mandamus, etc.”27 Even when those avenues are available, the court stated, “we are all at a loss to see why those should be the only remedies, why the Constitution, in the name of ‘judicial independence,’ can be seen as condemning the judiciary to silence in the
 JUDICIAL INDEPENDENCE AND ACCOUNTABILITY 1251
face of such conduct.”28 The court concluded, “we see nothing in the Constitution requiring us to view the individual Article III judge as an absolute monarch, restrained only by the risk of appeal, mandamus and like writs, the criminal law, or impeachment itself.” 29
In In re Van Voorhis,30 the California Commission on Judicial Performance emphasized that its finding of misconduct was based on the judge’s treatment of counsel when he ruled that certain evidence should be excluded, not on whether the ruling was correct.31 A deputy district attorney had attempted to have a police officer testify regarding the horizontal gaze nystagmus test administered to drivers stopped for driving while intoxicated, but the judge rejected her attempt, claiming that expert testimony was necessary. With the jury present and in a condescending and “somewhat hostile tone,” the judge engaged in a critique of the prosecutor that was disparaging, mocking, and sarcastic. 32
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The commission stated that even if it accepted the judge’s explanation that he was concerned that the defendant receive a fair trial, that concern would justify only his ruling, not his deprecation of the prosecutor’s motives, his ridiculing of her perception, or his prejudicing of her case. The commission concluded, “It is clear that … Judge Van Voohis lost his temper and made comments for the corrupt purpose of venting his anger or frustration.”33
A judge’s comments during sentencing, however, are one type of in court statement that commissions and courts are hesitant to subject to discipline, a reluctance based on concern that sanctions would discourage judges from articulating the bases for their sentencing decisions.34
In In re Lichtenstein,35 the Supreme Court of Colorado rejected the recommendation of the Commission on Judicial Discipline that a judge be publicly reprimanded for his comments in the sentencing of a man who had pied guilty to murdering his wife. Explaining why, for second degree murder, he was imposing a suspended sentence of four years in prison plus one year parole rather than the presumptive sentence oI eight to twelve years in prison, the judge referred to “highly provoking acts on the part of the victim.”36 The judge’s comments as well as the sentence generated extensive publicity. On appeal, the court overturned the
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judge’s sentence as an illegal mix of incarceration and probation and remanded the case for re-sentencing. 37
In the disciplinary proceedings, however, the. court concluded no misconduct was evident. The court noted that a statute required the judge to make specific findings on the record detailing the extraordinary circumstances justifying a sentence outside the presumptive range.38 The court concluded:
Although the sentencing comments contain some phraseology which, when read in isolation, might have offended the sensibilities of others, the full context of the sentencing hearing indicates that the choice of words was no more than an awkwardly executed effort to place on record the confused and highly emotional state of the defendant at the time of the killing, which, in the judge’s opinion, constituted a mitigating circumstance justifying a sentence below the presumptive range. The judge’s comments were not intended to be disrespectful of the law, the victim, or anyone else; nor do they reasonably lend themselves to such a connotation in the full context of the hearing. 39
Similarly, the Supreme Court of Michigan rejected the recommendation of the Commission on Judicial Tenure that a judge be sanctioned for improper remarks made during a sentencing for rape.40 The defendant, an attorney, had orally and digitally penetrated a woman he was representing in divorce proceedings. Sentencing guidelines required the judge to impose a prison term of 10 to 25 years or provide adequate justification for deviating downward; the judge imposed concurrent sentences of 18 months to 10 years for each of the three counts.
The court noted that two of the 12 reasons the judge gave to justify the downward deviation became the focus of national media attention.41 The judge had identified as mitigating factors “evidence that the Defendant helped the victim up off the floor after the occurrence” and the victim’s statement to a spouse-abuse agency that the sex had not been forced but that her resistance had been worn down by the defendant’s persistent requests. The court noted that the judge also used language that had been
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interpreted to mean that a lesser sentence was appropriate because the victim had asked for it.42
The court emphasized that “the justification for departure-the act of judicial discretion-is not at issue in this case.”43 The court did state that a judge is not immune from discipline for the manner in which a decision is articulated but continued “every graceless, distasteful, or bungled attempt to communicate the reason for a judge’s decision cannot serve as the basis for judicial discipline.’,44 Although affirming that it was committed to eradicating sexual stereotypes, the court stated it could not “ignore the cost of censoring inept expressions of opinion.’,45
Noting that “[t]he rationale for a severe sentence would inevitably have a negative effect on those who disagree with the verdict, and ‘sympathetic’ remarks would have a negative effect on those who believed the verdict was correct,” the court concluded that “honest explanation of the rationale for tailoring sentences to the offender and the offense” would be discouraged if misconduct were defined from “the perspective of the person most sensitive to such remarks.’,46 When a judge’s comment during sentencing was based on knowledge acquired during a proceeding, the court held, the comment is misconduct only if, from an objective perspective, it “displays an unfavorable predisposition indicating an inability to impartially determine the facts or when in combination with other conduct … it is clearly prejudicial to the fair administration of justice.’,47
Using that objective standard, the court found that the judge’s attempt to explain his view of the defendant’s lack of malevolent purpose did not constitute misconduct.48 The court emphasized that the judge did not inject
 JUDICIAL INDEPENDENCE AND ACCOUNTABILITY 1255
extraneous matters into the proceedings, make explicitly demeaning remarks, or use abusive language or an abusive manner.49
In contrast, accepting the presentment of the Advisory Committee on Judicial Conduct, the Supreme Court of New Jersey publicly reprimanded a judge for making statements in a sentencing proceeding that created the perception of a lack of imp artiality.50 The defendant had pled guilty to second degree sexual assault arising from her relationship with a minor who at the time was her student and 13 years old. Pursuant to a plea agreement, the former teacher had agreed to be sentenced to three years incarceration; the judge sentenced her to probation. The appellate division had reversed the sentence because the judge’s emphasis on the victim’s harm was an incorrect basis for a non curatorial sentence.
During sentencing, the judge made several statements that attracted nation-wide media attention. For example, he suggested, “Maybe it was a way of [the victim] to, once this did happen, to satisfy his sexual needs. At 13, if you think back, people mature at different ages. We hear of newspapers and t.v. reports over the last several months of nine-year olds admitting having sex.”51
The committee found that the judge’s statements expressed stereotypical views regarding the sexual nature of young boys, noting that the views were “problematic and suspect” and “fundamentally inconsistent with the meaning and policy of the law that criminalizes the sexual activities between an adult and a minor, boy or girl.”52 The committee concluded:
The remarks of Respondent denote more than an honest mistake or inadvertent legal error. They suggest that, as a judge, Respondent was not simply mistaken about the law of sexual assault involving a minor boy. Respondent’s remarks imply a bias, that is, a preconception or predetermined point of view about the sexuality of minors that could impugn the impartiality and open-mindedness necessary to make correct and sound determinations in the application of the law.53
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Noting that a judge “may comment on the law and even express disapproval of the law, as long as his or her fairness and impartiality are not compromised,” the committee concluded that the judge’s “remarks, reasonably understood, constituted the expression of a bias. The reasonable interpretation, public perception and common understanding of those remarks would be indicative of a bias and lack of impartiality.”54
FAILURE TO EXERCISE DISCRETION
If a judge fails to exercise judicial discretion, the “mere legal error” rule is not a defense to a charge of misconduct based on the resulting decision. Such a decision is not entitled to the protection of judicial independence principles. Thus, although judicial decisions regarding findings of guilt, sentencing, and child custody are classic examples of decisions usually exempt from review by conduct commissions, judges are considered to have waived that exemption if their decisions were based on the flip of a coin or similar resort to fate rather than an exercise of judgment.55
For example, particularly given the compelling arguments on both sides, the Michigan Judicial Tenure Commission would certainly have dismissed a complaint about a judge’s decision that children involved in a custody dispute would spend Christmas Eve with their father rather than their maternal grandparents–except that the judge had resolved the
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question by flipping a coin.56 Another judge, who had taken a straw poll of the courtroom audience regarding the guilt of a defendant on a charge of battery-asking “If you think I ought to find him not guilty, will you stand up?”-argued -that his conduct was not sanctionable because his verdict was not based on the audience vote but on the evidence presented at trial and that he only called for an audience vote to “involve the public in the judicial process.”57 However, the Supreme Court of Louisiana held:
Whether or not Judge Best actually based his verdict on the audience’s vote does not determine whether or not his conduct is sanctionable. The mere fact that he asked the courtroom audience to vote on the guilt of the defendant gave the impression that Judge Best based his verdict on something other than the evidence presented at trial. This type of behavior destroys the credibility of the judiciary and undermines public confidence in the judicial process.58
Sentencing decisions reflecting pre-judgment also illustrate an abdication of discretion that makes a judicial decision vulnerable to sanction even if the sentence is otherwise legal. This exception includes both a policy of imposing the same sentence on all persons convicted of a particular offense59 and a policy of failing to consider sentencing options
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allowed by law.60 As the New York State Commission on Judicial Conduct stated, “Judicial discretion, which is at the heart of a judge’s powers, is nullified when a judge imposes a ‘policy’ that will dictate sentences in future cases.”61 Pre-determined sentences may also suggest that the judge is acting in bad faith for political reasons or to pander to the public rather than making an independent determination.62
Imposing a sentence to teach a lesson to someone other than the defendant also constitutes judicial misconduct rather than an abuse of discretion not subject to sanction. 63 For example, at issue in In re Hill was a city judge’s order providing that “all fines are $1 plus $21 court costs.”64 The order was issued ten days after the mayor had notified the city’s health plan that the city would no longer pay premiums for the judge. Before the judge lifted the order, nineteen cases were disposed of with $1 fines-including charges for assault, assault on a police officer, resisting arrest, disturbance of the peace, stealing under $15, and various traffic violations. The Commission on Retirement, Removal and Discipline charged that the judge’s orders were an “effort to use Respondent’s office for his private gain,” were “unfaithful and disrespectful to the law,” and “excluded judicial discretion,” concluding that the judge ordered the blanket reduction in fines to compel the
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payment of his health insurance.65 The Supreme Court of Missouri agreed that the judge should be sanctioned.66
CLEAR LEGAL ERROR
In most cases in which a state’s highest court applied the mere legal error rule to reject a conduct commission’s recommendation of discipline, the weakness in the commission’s case arose from the unsettled nature of the law, at least at the time the judge made the challenged decision. Thus, an appellate court’s reversal of a judge’s decision alone is not sufficient proof that the judge committed a legal error justifying sanction.
For example, on direct appeal, the Supreme Court of Alaska had reversed a trial judge who, in an ex parte proceeding, had ordered the complaining witness in an assault case imprisoned to ensure that she would appear to testify the next day and would be sober.67 In contrast, when it considered the Commission on Judicial Conduct recommendation that the judge be privately reprimanded for imprisoning the intoxicated witness, the court held that the judge’s legal errors, which violated the rights of the witness and defendant, did not constitute ethical misconduct.68 The court emphasized that the judge was faced with “a unique situation for which there was no available legal template.”69 Noting that, although it had overturned the judge’s decision in the underlying criminal case, the court of appeals had unanimously
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upheld it, the court stated that “reasonable judges could and did differ over whether the ex parte proceedings violated [the defendant’s] rights [underscoring] the difficulty and uncertainty of the situation with which [the judge] was presented.”70 The court emphasized that the judge had “committed a single deprivation of an individual’s constitutional rights, motivated by good faith concerns for orderly trial proceedings and the affected individual’s well-being.” 71
The Maine Supreme Judicial Court adopted a similar objective standard for considering whether legal error constitutes judicial conduct in In re Benoit.72
The reasonable judge of our standard must be reasonable both in prudently exercising his judicial powers and •in maintaining his professional competence. But the stan,dard must be further restricted to recognize that every error of law, even one that such a reasonable judge might avoid making, is not necessarily deserving of disciplinary sanction. A judge ought not be sanctioned … for an error of law that a reasonable judge would not have considered obviously wrong in the circumstances or for an error of law that is de minimis.7
The court held that a judicial decision constitutes a violation “if a reasonably prudent and competent judge would consider that conduct obviously and seriously wrong in all the circumstances.”74 On the other hand, the court stated, an erroneous decision is not misconduct if it was not obviously wrong or there was confusion or a question about its legality.75
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In In re Quirk,76 the Supreme Court of Louisiana held that a judge’s legal ruling may be found to have violated the code of judicial conduct only if the action is contrary to clear and determined law about which there is no confusion or question as to its interpretation and the legal error was egregious, made in bad faith, or made as part of a pattern or practice of legal error.77 Applying that standard to the case before it, the court dismissed the recommendation of the Judiciary Commission that a judge be sanctioned for sentencing hundreds of defendants to attend church once a week for a year as a condition of probation.78 Rejecting the commission finding that the judge’s church sentences were “clearly” unconstitutional, the court noted that there were cases from other jurisdictions that lent support to both the judge’s and the commission’s interpretations of the establishment clause.79 The court concluded that ·a finding of judicial misconduct where the law is “not clear, is ‘rife with confusion’ and is subject to varying interpretations, and where no court in a jurisdiction binding on Judge Quirk has spoken directly on the issue, would strike to the very heart” of the direction in Canon 1 of the code of judicial conduct that a judge “must be protected in the exercise of judicial independence.”80
In New York, the standard provides that discipline is inappropriate if the correctness of the judge’s decision is “sufficiently debatable.” Dismissing a State Commission on Judicial Conduct finding that a judge had engaged in misconduct by committing 16 defendants to jail without bail, the New York Court of Appeals held that the commission’s interpretation of the relevant statute was not clearly erroneous, but that an ambiguity in the statute provided some support for the judge’s position that he had discretion to determine whether a defendant should
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be granted bail.81 The court concluded that the ambiguity “cannot and need not be resolved” in judicial discipline proceedings but must “await a proper case and the proper parties,” and the ambiguity precluded the judge’s reading of the statute one way from constituting misconduct.82 The Supreme Court of Indiana also adopted a “sufficiently debatable” standard.83
The Supreme Court of Illinois held that the Courts Commission exceeded its constitutional authority when it applied “its own independent interpretation and construction” of a statute to evaluate a judge’s conduct.84 Thus, the court overturned a commission decision to suspend a judge for ordering male defendants to obtain haircuts as part of their sentences and ordering persons placed on probation to carry a card identifying them as probationers. 85 The court noted that at the time of the judge’s actions, no appellate court had interpreted the phrase “in addition to other conditions” in the relevant statute, although one of the judge’s orders regarding a haircut had subsequently been reversed.86 The court did hold that “where the law is clear on its face, a judge who repeatedly imposes punishment not provided for by law is subject to discipline.”87
Several tests for determining when legal error constitutes judicial misconduct have been adopted in California. In one case, the Supreme Court of California held that a judge’s view that he had discretion to curtail a deputy district attorney’s cross-examination had discretion to do so “had at least enough merit to prevent the holding of it from
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constituting misconduct.”88 The California Commission on Judicial Performance dismissed formal charges it had brought against an appellate judge for failing to follow the law after finding that the judge’s argument was not “so far-fetched as to be untenable.” 89
Taking a different approach in Oberholzer v. Commission on Judicial Performance,90 the court declined to debate whether a case in which a judge had dismissed criminal charges when the prosecution refused to proceed was distinguishable from a previous case in which his dismissal under similar circumstances had been reversed. Instead, the court focused on whether there were “additional factors that demonstrate more than legal error, alone.”91 The court stated that the critical inquiry was whether the judge’s action “clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty.”92
PATTERN OF LEGAL ERROR
Although there are cases in which misconduct has been found based on one erroneous decision,93 most cases in which judicial error was elevated to the level of judicial misconduct involved more than one example of legal error, and a pattern is one of the identified exceptions to the “mere legal error” rule. Judges have been sanctioned for patterns of failing to advise defendants of their rights (both statutory and constitutional) during criminal proceedings;94 imposing sentences in
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excess of statutory authority;95 accepting guilty pleas using a form that did not comply with statutory requirements; 96 holding trials in absentia;97 violating procedural requirements when conducting arraignments; 98 disregard of and indifference to fact or law in criminal and juvenile cases;99 illegally incarcerating individuals in non-criminal matters to satisfy a civil fine;100 accepting guilty pleas without obtaining proper written plea statements;101 a practice of stating, for the record, that defendants had waived their rights to have a speedy preliminary examination or timely trial without obtaining the defendants’ personal waivers of these rights;102 requiring pro se defendants who requested jury trials to answer an in-court ‘jury trial roll call” once a week and to discuss plea bargains with the prosecutor; 103 and failing to advise
 JUDICIAL INDEPENDENCE AND ACCOUNTABILITY 1265
litigants in family court cases of their statutory rights to counsel, a hearing, and the assistance of counsel.104 Of course, because those cases involved more than one instance of legal error, whether a single example of the same error would be considered egregious enough to justify sanction is not clear.105 Moreover, none of the cases discuss how many errors are required for a finding of a pattern.
Furthermore, the Supreme Court of Louisiana held that judicial misconduct can be established by a pattern of repeated legal error even if the errors are not necessarily the same.106 The court found such a pattern in In re Fuselier.107 The pattern in that case involved three distinct types of legal error-abuse of the contempt power, conducting arraignments and accepting guilty pleas with no prosecutor present, and establishing a worthless checks program that did not meet statutory requirements. The court stated that the errors were not egregious or made in bad faith but that together, they were part of the same pattern or practice of failing to follow and apply the law.108
DECISIONS MADE IN BAD FAITH
The presence of bad faith can render an exercise of legal judgment judicial misconduct. “Bad faith” in this context means “acts within the lawful power of a judge which nevertheless are committed for a corrupt purpose, i.e., for any purpose other than the faithful discharge of judicial duties.”109 Even just a single error can lead to a finding of misconduct if the judge was acting in bad faith or intentionally failed to follow the law.110
For example, if a judge acts out of pique or to exact revenge, the judge’s decision loses the protection of the “mere legal error” rule. Thus, a judge’s sentence-usually unreviewable by a conduct commission-
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becomes the basis for a sanction if a judge imposes an unusually severe sentence on a defendant who refused the standard plea bargain111 or demanded a jury trial112 or if a judge imposed a higher than usual traffic fine to retaliate against a former employer. 113
Similarly, a judge’s bail decision becomes reviewable in discipline proceedings if the judge acts out of bias or revenge. In In re King,114 the Massachusetts Commission on Judicial Conduct found that Judge Paul H. King, brother of Governor Edward J. King, had set unusually high bail for four black defendants shortly after learning that large numbers of black voters in Boston voted for his brother’s opponent in the 1982 gubernatorial primary election, announcing to a clerk “[t]hat’s what blacks get for voting against my brother.” 115
The judge argued that the commission could not consider his bail decisions because they were based on the exercise of his legal judgment and reviewable on appeal. Acknowledging that “[t]he Judge is correct that, generally, judges are immune from sanctions based solely on appealable errors of law or abuses of discretion,” the court held:
In this case, the implication of the Judge’s argument is that a judge can make a single judicial decision for expressly racist and vindictive reasons and, so long as he does not make a habit of it, neither the Commission nor this court (outside of the usual avenues of appeal) can respond to that action. That is an implication that we will not countenance. It may be that the defendants in these cases had valid grounds on which to challenge the Judge’s decisions as to the amount of bail. It does not follow, however, that there was no judicial misconduct in the Judge’s setting the amount of their bail.116
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Other bad faith abuses of the bail power have also led to discipline.117 The New York State Commission on Judicial Conduct sanctioned a judge for misusing bail to attempt to coerce guilty pleas in three cases.118 For example, in one case, when a defense attorney in one case declined the court’s plea offer, the judge set bail at $500, although the prosecution was silent on bail. When the attorney asked why the judge was setting bail, she replied, “Because the way I see it is because he won’t plea. That’s why.”119 The commission found that the judge’s “statements during the proceedings convey the explicit message that she was using bail as a coercive tactic when defendants appeared reluctant to accept the plea that was offered.”120
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An intentional failure to follow the law, even with a benign motive, constitutes bad faith and consequently judicial misconduct. In In re LaBelle,121 the Court of Appeals of New York sanctioned a judge for failing to set bail for defendants in twenty-four cases although he knew that the law required that bail be set. Nine of those cases involved defendants who were homeless and in many cases suffering from the effects of drug or alcohol abuse, and the judge indicated that he did not set bail because, based on his knowledge of the defendants and in some cases pursuant to their explicit requests, he believed that they preferred to remain in jail and were more comfortable, safer, and better cared for there than if they were returned to the streets. Conceding it could not “find fault with these concerns,” the court concluded that “they do not justify petitioner’s failure to abide by the statutory requirement that he at least set bail, if only in a nominal amoun t.”122
Similarly, in In re Duckman, the judge explained that he had dismissed cases “in the interests of justice, using the guise of facial insufficiency” to dispose of a case when he “thought it was right to do it.”123 However, the judge had not given the prosecution notice, an opportunity to be heard, or an opportunity to redraft charges and had not required written motions, or, in the case of adjournments in contemplation of dismissal, the consent of the prosecutor.
The Court of Appeals of New York concluded that what was significant was both that the judge had dismissed the cases in knowing disregard of the law and the abusive, intemperate behavior he manifested while dismissing the cases.124 The court emphasized:
This matter does not involve “second-guessing” the adjudicative work of Judges, nor does it open a new avenue for Commission intrusion into that work Here the issue is not whether petitioner’s decisions
were right or wrong on the merits, but rather repeated, knowing disregard of the law to reach a result and courtroom conduct proscribed by the rules governing judicial behavior.125
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The interesting feature of the Duckman case was the question about judicial independence raised by the way Judge Duckman came to the commission’s attention and his ultimate removal from office. As the court described, “[t]he investigation was triggered not by appeals or complaints of wronged litigants or lawyers, but by a firestorm of public critisism generated by a separate tragedy.” 126 Three weeks after the judge had released on bail a defendant charged with stalking his former girlfriend, the defendant had located the former girlfriend, shot her, and then shot himself. The incident had produced “lurid newspaper coverage” and calls for the judge’s removal by political leaders.127 However, as the court noted, the commission had found that the judge’s bail decision was “a proper exercise of judicial discretion, not a basis for discipline” and dismissed the complaints against him arising from that case, instead proceeding on other conduct that came to light.128
The court acknowledged its concern with the threat to judicial independence “posed by unwarranted criticism or the targeting of Judges” and noted that “U]udges must remain free to render unpopular decisions that they believe are required by law.” 129 However, the court concluded:
Valid and vital though these concerns surely are, the difficult issue that confronts us in this matter is how to sanction the serious misconduct now fully documented before us-that the firestorm has exposed….
We are satisfied that in this particular case removal, rather than censure, does not imperil the independence of the judiciary. Indeed, on the merits of this case, the judiciary, the Bar, and the public are better served when an established course of misconduct is appropriately redressed and an unfit incumbent is removed from the Bench.13
Even the two dissenting judges did not claim that the judge should not be sanctioned at all, but argued censure was sufficient. The dissents argued that a removal implied
that Judges whose rulings displease the political powers that be may be subjected to a modern-day witch hunt in which their records are combed for indiscretions, their peccadillos strung together to make out
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a “substantial record” of misconduct and their judicial “sins” punished with the ultimate sanction ofremoval from office.131
EGREGIOUS LEGAL ERRORS
“Egregious” legal errors have been identified as a type of error that justifies disciplinary as well as appellate review. 132 “Egregious” implies something different than bad faith or a pattern of error as those are listed as separate grounds for departing from the mere legal error rule. Although “egregious” is a subjective term, the most obvious example of an egregious error is a denial of constitutional rights.
The Supreme Court of Louisiana adopted egregious legal error as one of the exceptions to its general rule that legal error is not sanctionable, stating that even a single instance of serious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduc t.133 The court found egregious legal error in In re Aucoin. 134 In that case, the court held that a disciplinary penalty was appropriate for a judge who had, among other misconduct, ordered “instanter trials” in criminal neglect of family cases immediately after the defendants pleaded not guilty. Agreeing with the Judiciary Commission finding that the judge’s misconduct constituted egregious legal error, the court concluded that the judge had “failed to comply with the law and disregarded the right of the accused to present a defense, as well as the basic tenets of due process.” 135 (Of course, as Aucoin involved eighteen cases, it might also fall within the pattern of legal error exception.)
There are judicial discipline decisions in which legal error in one or two criminal cases was egregious enough to justify discipline (although the term “egregious” was not necessarily used). Those errors included finding a defendant guilty without a guilty plea or trial,136 revoking a
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defendant’s probation without the defendant’s attorney being present,137 accepting a defendant’s guilty plea without an attorney present and adjudicating a criminal matter for which there was no formal case opened,138 sentencing a defendant under the wrong statute,139 failing to follow proper procedures when a defendant failed to pay a fine,140 refusing to allow a self-represented defendant to cross-examine a police officer in a trial on a speeding ticket,141 knowingly convicting a defendant of an offense that had not been charged and was not a lesser included offense,142 refusing to set appeal bonds for misdemeanor defendants when clearly obligated by law to do so,143 issuing bench warrants for the arrests of misdemeanor defendants when their attorneys had been late even though the defendants themselves had been in court,144 forcing a defendant to enter a plea of guilty in the absence of his counsel,145
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using the criminal process to collect a civil debt,146 and detaining a juvenile for nearly six weeks before he had the assistance of counsel and without taking any evidence, 147 and twice convicting a defendant in the defendant’s absence and without a guilty plea.148
Findings of judicial misconduct have also been made where a judge conducted a single civil case in a manner that departed completely from the usual procedures required by the adversary system. For example, the Supreme Court of Louisiana found that a judge had committed an egregious legal error by rendering a default judgment against a defendant in a small claims case without serving the defendant with notice, convening a hearing, or receiving competent evidence from the plaintiff to make a prima facie case.149
Similarly, the California Commission on Judicial Performance sanctioned a judge for denying due process in a civil trial.150 Without stating that he was going to follow an alternative procedure nor offering the parties a traditional trial if they wanted one, the judge simply asked the parties to tell him wh_at the case was about. After the plaintiff spoke, the defendant’s attorney gave a version of his opening statement, and the defendant made a statement. The judge then alternated asking the parties questions; no one was placed under oath. After questioning the plaintiff and the defendant, the judge asked if either of them had anything else to add and told them that he was taking the case under submission. He asked the defendant’s attorney to prepare a statement of decision and judgment and subsequently signed the document prepared in favor of the defendant.
The judge conceded that he was wrong to conduct the trial the way he did but argued that this was merely legal error, not ethical misconduct, and thus not a ground for discipline. Rejecting that argument, the commission noted that “[ n]o legal question was presented
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to the parties or briefed. Rather, [the judge] proceeded as he was wont, apparently focused on his vision of efficiency with little regard for the values that underlie the usual procedures for presenting evidence and cross-examining witnesses.”151 The commission noted the masters’ finding that “no judge, much less a judge with [his] experience and intelligence, would reasonably believe that in proceeding in this truncated way that he was affording the parties the trial they were entitled to.” 152
A “parody of legal procedure” conducted by a state judge led the United States Court of Appeals for the Seventh Circuit to refer the judge to the Illinois Judicial Inquiry Board after vacating an injunction entered by the judge (the case had been removed to federal court).153 The court found that the state court injunctive proceeding had “violated so many rules of Illinois law-not to mention the due process clause of the fourteenth amendment-that it is not worth reciting them.” 154 As part of an FBI undercover investigation into the use of video poker machines for illegal gambling, Bonds Robinson, a special agent of the Illinois Liquor Control Commission, was soliciting bribes from Thomas Venezia, who ran a vending and amusement business. Venezia filed a petition requesting injunctive relief that was heard by Judge James Radcliffe.
Judge Radcliffe permitted Venezia’s attorney, Amiel Cueto, to ask Robinson questions about the confidential FBI investigation. Without making any findings of fact or conclusions of law , the judge then enjoined Robinson from extorting bribes from Venezia or unlawfully seizing his video poker machines even though Robinson had not been served with summons or a copy of the petition and had not been given an opportunity to consult with an attorney, present witnesses, ask questions, or say anything in his own behalf. Venezia and his company were eventually convicted of racketeering, illegal gambling, and conspiracy arising out of the operation of the illegal gambling business, while Cueto was eventually convicted of conspiracy to defraud the United States and obstruction of justice for his conduct throughout the investigation of Venezia, including the petition filed against Robinson.155
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Based on a stipulation of facts and joint recommendation by the Judicial Inquiry Board and Judge Radcliffe, the Illinois Courts Commission suspended him for three months without pay for the way he conducted the proceedings. 156 Even though it noted there was no evidence that the judge had an improper motive, the commission concluded that “even the most broad assessment of respondent’s failure to observe basic due process in conducting the hearing, causes us to conclude his conduct undermined confidence in the integrity and impartiality of the judiciary.” The commission also stated that “while the conduct was confined to a single hearing in a single case,” it “was egregious and deserving of discipline.”157 The court, however, reassured “busy and dedicated trial judges” that they did not need to fear disciplinary review of their decisions.
This is not a case of a judge having a bad day or committing errors in judgment, or issuing an ex parte temporary restraining order later determined to have been improvidently granted. This is not a case where appellate review would have sufficed or been the more appropriate procedure to address respondent’ s conduct. This is a case where even though Robinson was made a party to the litigation and
was present in respondent’s court, Robinson was stripped of the right to notice and his right to be heard. Applicable law was totally ignored.158
One member of the commission dissented, arguing that the matter was completely outside the commission’s jurisdiction. The dissent stated, “What Judge Radcliffe lacked was the prescience to divine that Robinson, in fact, was a legitimate federal mole wearing a wire, attempting to obtain evidence against Cueto and Venezia.” 159
What the dissent overlooks is that the judge did not need prescience to know what procedures should be followed and that in an adversarial system the due process procedures the judge ignored are designed to protect litigants from a judge’s lack of infallibility. The dissent’s argument displays an error inherent in an automatic, unquestioning application of the “mere legal error” doctrine. A decision in a single case-entering an ex parte order that awarded a father temporary custody of a minor child without a petition being filed, evidence being taken, or an official court file being established-led to sanction for a
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Mississippi judge.160 The judge’s actions violated several statutes, and her order was eventually vacated by a different judge. The court noted it was convinced that the judge’s actions were not taken in bad faith but emphasized that through her actions, the proper parent was deprived of the custody of a minor child for two and one-half months and had to incur attorneys fees in excess of $13,000 to have custody restored. Stressing that the exercise of judicial discretion is a very appropriate duty of a judge, the court stated it was not implying by its decision to sanction the judge
that our learned judges are subjecting themselves to judicial performance complaints in exercising judicial discretion, or even when there is a subsequent determination on appellate review that there has been an abuse of judicial discretion. Judicial complaints are not the appropriate vehicle to test a possible abuse of judicial discretion. This case is not about abuse of judicial discretion. This case is about clear violations of our judicial canons and our statutes.161
Although courts and commissions are generally reluctant to second guess a judge’s decision to control the courtroom through use of the contempt power,162 failure to adhere to proper procedures when exercising the contempt power is cognizable in the judicial discipline process given the liberty interests at stake.163
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For example, the Supreme Court of Florida sanctioned a judge for abuse of the contempt power in In re Perry.164 After the judge had cautioned six defendants with suspended licenses not to drive, they were arrested when they drove away from the courthouse and were brought back to the judge, who was waiting to hold them in contempt of court for driving with a suspended license. One of the defendants was unable to post bond (which the judge had set at $20,000) and, as a result, was incarcerated for twenty-six days.
The court held that it was clear that the judge had failed to follow the statutory procedures for indirect criminal contempt, emphasizing that it did not condone the defendants’ conduct.165 The court rejected the judge’s contention that his alleged transgressions were nothing more than errors of law that should not be subject to disciplinary proceedings. Acknowledging that “one of the most important and essential powers of a court is the authority to protect itself against those who disregard its dignity and authority or disobey its orders,” the court concluded that the contempt power is “a very awesome power” and “one that should never be abused.”166 •
[B]ecause trial judges exercise their power of criminal contempt to punish, it is extremely important that they protect an offender’s due process rights, particularly when the punishment results in the
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imprisonment of the offender. As such, it is critical that the exercise of this contempt power never be used by a judge in a fit of anger, in an arbitrary manner, or for the judge’s own sense of justice It is also extremely important to recognize that this discretionary power of .cnm. ma1 contemp. t 1s notb road or unreguI ated .167
In another case involving abuse of the contempt power, the Supreme Court of Nevada held that the Commission on Judicial Discipline had not functioned as an appellate body when it concluded that a judge’s long-standing abuse of the contempt power was sanctionable misconduc t.168 The court noted the commission’s finding that the judge’s contempt rulings on eight separate occasions resulted from his “inaccurate perception of his role as a judge, and from his unwillingness to tolerate actions by others which are not in harmony with his apparent belief that those who do not meet or respond to his demands and expectations are subject to imprisonment and punishment under the court’s contempt power.”169
The court also emphasized that the judge “was an experienced judge who continued to ignore binding precedent reversing his contempt rulings and emphasizing the importance of a district court’s strict adherence to [statutory provisions governing contemp]t.”170 Other cases involving abuse of the contempt power also note that the judge knew or should have known what the correct procedures were due to the judge’s experience, training, or available reference works or checklists.171 Thus, these cases do not involve hapless judges unfairly sanctioned for inadvertent legal errors attributable to human fallibility.
PROVISIONS DEFINING THE DIFFERENCE
In addition to case law, efforts to describe the distinction between legal error and judicial misconduct can be found in state codes of judicial conduct and rules governing conduct commissions.
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Some of the measures limit the application of the code of judicial conduct, which is the starting point for findings of judicial misconduct. For example, the Arizona Code of Judicial Conduct provides, in the commentary to Canon 1, that, “A judicial decision or administrative act later determined to be incorrect as a matter of law or as an abuse of discretion is not a violation of this code unless done repeatedly or intentionally.” 172 Similarly, Commentary to Canon 1 of the Kentucky Code of Judicial Conduct states, “This Code is intended to apply to every aspect of judicial behavior except purely legal decisions made in good faith in the performance of judicial duties. Such decisions are subject to judicial review.”173 The reporter’s notes to Canon 3B(2) of the Vermont Code of Judicial Conduct explain that, “This section, like Section 2A, is not intended to make a judge’s error of law the basis for discipline. . . . To show lack of faithfulness to the law or lack of professional competence, a pattern of decisions willfully or blatantly ignoring or misstating established legal principles would be necessary.” 174
Other definitions of the distinction between judicial misconduct and judicial error depend on limits to the role of judicial conduct commissions. For example, a comment to Canon 1 of the Wisconsin Code of Judicial Conduct notes that the statute creating the Judicial Commission states that “[t]he commission may not function as an appellate court to review the decisions of a court or judge or to exercise superintending or administrative control over determinations of courts or judges.” The comment emphasizes that “[i]t is important to remember this concept as one interprets this chapter, particularly in light of the
- CODE OF JUDICIAL CONDUCT Canon I cmt.; see also CAL. CODE OF JUDICIAL ETHICS Canon I (“A judicial decision or administrative act later determined to be incorrect legally is not itself a violation of this Code.”); MASS. CODE OF JUDICIAL CONDUCT, Canon IA cmt. (“A judicial decision or action determined by an appellate court to be incorrect either as a matter of law or as an abuse of discretion is not a violation of this Code unless the decision or action is committed knowingly and in bad faith.”).
- CODE OF JUDICIAL CONDUCT.
- CODE OF JUDICIAL CONDUCT ; see also R.I. CODE OF JUDICIAL CONDUCT, Canon I (“This Code . . . is intended to apply to every aspect of judicial behavior except purely legal decisio ns. Legal decisions made in the course of judicial duty are subject solely to judicial review. The provisions of this Code are to be construed and applied to further that objective.”); W. VA. CODE OF JUDICIAL CONDUCT, Canon 2A cmt. (” Errors in finding facts or in interpreting or applying law are not violations of this canon unless such judicial determinations involve bad faith or are done willfully or deliberately.”); WIS. CODE OF JUDICIAL CONDUCT, Supreme Court Rule 60.02 (“This
chapter applies to every aspect of judicial behavior except purely leg al decisi ons. Legal decisions made in the course of judicial duty on the record are subject solely to judicial review.”).
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practice of some groups or individuals to encourage dissatisfied litigants to file simultaneous appeals and judicial conduct complaints.”175
Many states have a provision in their rules or enabling provisions, similar to that found in Rule 9B of the Arkansas Judicial Discipline and Disability Commission, that states, “[i]n the absence of fraud, corrupt motive or bad faith, the Commission shall not take action against a judge for making findings of fact, reaching a legal conclusion or applying the law as he understands it. Claims of error shall be considered only in appeals from court proceedings.”176
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The primary responsibility for protecting judicial independence from the threat of unacceptable discipline lies with the judicial conduct commissions as they screen complaints received about a judge’s decision, dismissing those that are more properly left to the appellate authorities. The case law does not support any suggestion that judges should fear scrutiny by the judicial conduct commissions when they are faced with making an unpopular decision or one in an unsettled area of the law. To avoid sanction for legal error, judges do not have to worry about avoiding mere oversights or misreadings of the law but only need to comply with clear due process requirements and avoid bullying and patently unfair conduct. That the possibility of discipline for legal error may induce those types of second thoughts before judicial decision making is not a threat to judicial independence.
The commissions’ vigilance in dismissing the many complaints outside their jurisdiction results in very few state supreme court decisions rejecting sanction recommendations based on the “mere legal error” rule, and the rule is usually announced in the course of a decision in which an exception to the rule is applied to allow for sanction. The rule allows for the protection of judicial independence while the many exceptions allow the commissions and reviewing courts to hold judges accountable for decisions that are clearly contrary to law, that were reached without following the procedures that confer legitimacy and credence upon judicial actions, that represent an exercise of discretion motivated by bad faith, or that reflect repeated legal error that cannot be attributed to an honest mistake.
The current statutory structure with respect to complaints against federal judges and judicial discipline was enacted on November 2, 2002, as the Judicial Improvements Act of 2002, P.L. 107- 273, 28 U.S.C. §§ 351-364. These provisions are applicable to federal circuit judges, district judges, bankruptcy judges, and magistrate judges. They do not apply to the Justices of the U.S. Supreme Court. The U.S. Court of Federal Claims, the Court of International Trade, and the Court of Appeals for the Federal Circuit are each directed to prescribe rules consistent with these provisions to address complaints pertaining to their own judges.
The procedures under 28 U.S.C. §§ 351-364 include a complaint process, review of complaints initially by the chief judge of the circuit within which the judge in question sits, and, if appropriate, referral of the complaint to a special investigating committee, to a panel of the judicial council of the circuit involved, and, if needed, to the Judicial Conference of the United States. At any point in the process, as deemed appropriate, action may be taken on the complaint. Where a complaint alleges conduct that may rise to the level of impeachable offenses, the Judicial Conference may certify that the matter may warrant consideration of impeachment and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers necessary.
Two such referrals were received by the House in the 111th Congress regarding Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas and Judge G. Thomas Porteous Jr. of the U.S. District Court for the Eastern District of Louisiana. Judge Kent was impeached by the House of Representatives. His Senate impeachment trial was dismissed after he resigned from office and the House indicated that it did not wish to pursue the matter further. Judge Porteous was also impeached by the House of Representatives. On December 8, 2010, the Senate, sitting as a Court of Impeachment, voted to convict Judge Porteous on all four of the articles of impeachment brought against him. A judgment of removal from office flowed automatically from his conviction. In a rare additional judgment, the Senate disqualified him from holding federal office in the future.
In both the 110th and the 111th Congresses, the U.S. House of Representatives received a referral from the Judicial Conference of the United States reflecting its determination, after completion of the statutory federal judicial discipline process, that consideration of impeachment might be warranted with respect to a federal judge. On June 19, 2008, the Speaker of the House of Representatives received a referral regarding U.S. District Court Judge G. Thomas Porteous Jr. of the Eastern District of Louisiana.1 The House began its impeachment investigation of Judge Porteous in the 110th Congress, but did not complete it before the end of that Congress.2 The matter was taken up again in the 111th Congress.3 On March 11, 2010, the House impeached Judge Porteous for, among other things, accepting kickbacks, soliciting favors, falsifying bankruptcy documents, and knowingly making false statements about his past in order to obtain a federal judgeship.4 The Senate convicted him on all four articles of impeachment later that year.5
On June 10, 2009, the Speaker of the House received a referral regarding U.S. District Court Judge Samuel B. Kent of the Southern District of Texas.6 Judge Kent was impeached by the House of Representatives.7 His Senate impeachment trial was dismissed after he resigned from office and the House indicated that it did not wish to pursue the matter further.
Overview of Statutory Provisions
This report will discuss the present statutory structure governing complaints against federal judges, and judicial discipline where appropriate. The statutory framework stems from the Judicial Improvements Act of 2002, P.L. 107-273, Div. C, Title I, Subtitle C, 116 Stat 1856 (Nov. 2, 2002), 28 U.S.C. §§351-364. It replaced judicial discipline procedures in the Judicial Conduct and Disability Act of 1980, as amended, codified at the former 28 U.S.C. § 372(c). The current statutory procedures are applicable to complaints against federal circuit judges, district judges, bankruptcy judges, and magistrate judges. They are not applicable to Justices of the U.S. Supreme Court. In addition, the U.S. Court of Federal Claims, the Court of International Trade, and the Court of Appeals for the Federal Circuit are each required to prescribe rules, consistent with the provisions in 28 U.S.C. §§ 351-364, establishing procedures for the filing of complaints with respect to the conduct of judges of those courts, for investigation of such complaints, and for taking appropriate action with respect to them. In investigating and taking action regarding complaints brought against their respective judges, each of these three courts has the powers granted to a judicial council8 in dealing with federal circuit judges, district judges, bankruptcy judges, or magistrate judges.9
The judicial discipline process under 28 U.S.C. §§ 351-364 is initiated by the filing of a complaint by any person, alleging that a judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of the office by reason of mental or physical disability.”10 A written complaint containing a brief statement of the pertinent facts is filed with the clerk of the court for the circuit within which the judge sits. Alternatively, the chief judge of the circuit, in the interests of effective and expeditious administration of the business of the courts and based on information available to him or her, may identify a complaint by written order stating the reasons for the complaint.11 The clerk of the court receiving a written complaint promptly transmits that complaint to the chief judge of the circuit unless the complaint concerns the chief judge. In the latter circumstance, the clerk shall transmit the complaint to the circuit judge in regular service on the court who is next most senior in date of commission. That circuit judge would then carry out
the responsibilities of the chief judge with respect to that complaint in all matters under this judicial discipline process.12
Once a complaint is filed or identified, the chief judge must review it expeditiously to determine whether appropriate corrective action has been or can be taken without the need for a formal investigation, and whether the facts stated in the complaint are either plainly untrue or incapable of establishment through investigation. The chief judge may ask the judge who is the focus of the complaint to file a written response, which is not shared with the complainant unless the judge responding authorizes its disclosure. The chief judge or his or her designee may also communicate orally or in writing with the complainant, the judge who is the focus of the complaint, or anyone else who may have pertinent information; he or she may also review any transcripts or documentary evidence. The chief judge may not make any findings of fact regarding matters reasonably in dispute. After this review, the chief judge, by written order, may dismiss the complaint if it is not in conformity with the requirements of 28 U.S.C. § 351(a), or if he or she finds that the complaint directly relates to the merits of a decision or procedural ruling or that it is frivolous—that is, lacking sufficient evidence to raise an inference that misconduct has occurred—or that it contains allegations that are incapable of being established through investigation. The chief judge may also conclude the proceeding if he or she finds that appropriate corrective action has been taken or that action on the complaint is no longer needed because of intervening events. Copies of the written order are to be transmitted by the chief judge to the complainant and to the judge involved.13 The complainant or the judge involved in the complaint may petition the judicial council14 of the circuit seeking review of the order of the chief judge. If the petition for review is denied, that decision is final and not subject to review.15 The judicial council may refer a petition for review to a panel of at least five members of the judicial council, two of whom must be U.S. district judges.16
If the chief judge does not dismiss the complaint or conclude the proceedings under 28 U.S.C. § 352(b), then he or she must promptly appoint himself or herself, along with equal numbers of circuit judges and district judges, to a special committee to investigate the facts and allegations in the complaint. The chief judge must also promptly certify the complaint and any other pertinent documents to each member of the special committee, and provide written notice of this action to the complainant and the judge involved. The committee must conduct such investigation as it finds necessary and then expeditiously file a comprehensive written report of its investigation with the judicial council of the circuit involved. In conducting its investigation, the special committee has full subpoena powers.17 The report of the committee must present both findings of the investigation and recommendations for necessary and appropriate action by the judicial council.18
Upon receipt of such a report, the judicial council of the circuit involved has several options available to it. It may conduct any additional investigation it deems necessary, and it may dismiss the complaint.19 If the complaint is not dismissed, the council shall take appropriate action to assure effective and expeditious administration of the business of the courts in the circuit, including ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint; censuring or reprimanding the judge by means of private communication; and censuring and reprimanding the judge by means of public announcement.20 Like the special committee, the judicial council may exercise full subpoena powers in conducting its investigation.21
If the judge who is the subject of the complaint holds his or her office during good behavior, action taken by the judicial council may include certifying disability of the judge pursuant to procedures and standards under 28 U.S.C. § 372(b); and requesting that the judge voluntarily retire, with the provision that the length of service requirements under 28 U.S.C. § 371 shall not apply.22 The judicial council may not order removal from office of any judge appointed to hold office during good behavior.23
If the focus of the complaint is a magistrate judge, the action taken by the judicial council may include directing the chief judge of the district of the magistrate judge to take such action as the judicial council considers appropriate.24 Any removal of a magistrate judge by the judicial council must be in accordance with 28 U.S.C. § 631, while any removal by the judicial council of a bankruptcy judge must be in accordance with 28 U.S.C. § 152.25 The judicial council must provide immediate written notice of the action taken to the complainant and to the judge whose conduct is the subject of the complaint.26
The judicial council may also, in its discretion, refer any complaint under 28 U.S.C. § 351, along with the record of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United States. If the judicial council determines, based on a complaint and related investigation or on other information available to the judicial council, that a judge holding office during good behavior may have engaged in conduct which might constitute one or more grounds for impeachment under Article II, Sec. 4 of the U.S. Constitution, the judicial council must promptly certify its determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States.27 The judicial
council must also promptly certify its determination, along with any complaint and a record of any associated proceedings, to the Judicial Conference if the council determines that a judge holding office during good behavior may have engaged in conduct which, in the interest of justice, is not amenable to resolution by the judicial council. If the judicial council makes a referral to the Judicial Conference of the United States, the judicial council must, unless contrary to the interests of justice, immediately provide written notice of its action to the complainant and to the judge involved.28 If dissatisfied with an action of the judicial council, the complainant or the judge may petition the Judicial Conference for review of that action. The Judicial Conference, or, should the conference so choose, a standing committee appointed by the Chief Justice under 28 U.S.C. § 331 to exercise its authority under the judicial discipline process, may grant a petition filed by a complainant or a judge aggrieved by an action of the judicial council. If a petition for review is denied, that decision is final and conclusive and not subject to judicial review.29
Upon receipt of a referral or certification, the Judicial Conference considers any prior proceedings and engages in such further investigation as it deems appropriate. The Judicial Conference may exercise its authority under the judicial discipline provisions as a conference, or through a standing committee appointed by the Chief Justice under 28 U.S.C. § 331. In conducting any investigation under the judicial discipline process, the Judicial Conference, or a standing committee appointed by the Chief Justice for the purpose, may exercise full subpoena power under 28 U.S.C. § 356(b). After having reviewed the information before it, the Judicial Conference, by majority vote, may, if the complaint is not dismissed, take such action as is appropriate to assure the effective and expeditious administration of the business of the courts.
This may include ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge involved; censuring or reprimanding the judge by means of private communication; and reprimanding the judge by means of public communication. If the judge involved holds his or her office during good behavior, the options available to the Judicial Conference may include certifying disability of the judge under 28 U.S.C. § 372(b); and requesting the judge voluntarily retire, with the provision that the length of service requirements under 28 U.S.C. § 371 not apply. If the judge is a magistrate judge, the Judicial Conference may direct the chief judge of the district of the magistrate judge to take such action as the Judicial Conference deems appropriate.30
If the Judicial Conference concurs in the judicial council’s determination that impeachable offenses may be involved, or if the Judicial Conference makes its own determination that consideration of impeachment may be warranted, the conference must certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action
the House considers necessary. When the Judicial Conference’s determination and record of proceedings are received by the House of Representatives, the Clerk of the House must make that determination and any reasons for the determination available to the public.31
If a judge has been convicted of a felony under federal or state law and has exhausted all avenues of direct review of that conviction, or if the time for direct review has passed and no review has been sought, the Judicial Conference, by majority vote and without any referral or certification from the relevant judicial council under 28 U.S.C. § 354, may transmit a determination that impeachment may be warranted, together with relevant court records, to the House of Representatives for whatever action the House deems necessary.32 If a judge has been convicted of a federal or state felony and has exhausted direct appeals of the conviction or if the time to seek further direct review has passed and no such review has been sought, then that judge shall not hear or decide cases unless the judicial council of the circuit in the case of federal circuit judges, district judges, bankruptcy judges, or magistrate judges; or the U.S. Court of Federal Claims, the Court of International Trade, or the Court of Appeals of the Federal Circuit, respectively, in the case of a judge of one of those courts, determines otherwise. No service of such a convicted judge, once the conviction is final and the time for appeals has expired, may be included for purposes of determining years of service under 28 U.S.C. §§ 371(c), 377, or 178, or creditable service under 5 U.S.C., chapter 83, subchapter III, or chapter 84.33
No judge whose conduct is the subject of an investigation under 28 U.S.C. §§ 351-364 may serve on a special committee under 18 U.S.C. § 353, upon a judicial council, upon the Judicial Conference, or upon a standing committee established under 28 U.S.C. § 331, until all proceedings relating to that investigation have been completed. Nor may anyone intervene or appear as amicus curiae in any judicial discipline proceeding before a judicial council or the Judicial Conference.34
Except for the public disclosure, under 28 U.S.C. § 355, by the Clerk of the House of Representatives of a determination by the Judicial Conference in a given case that impeachment may be warranted and any reasons for that determination, all papers, documents, and records of proceedings related to judicial discipline proceedings under 28 U.S.C. §§ 351-364 are to be kept confidential and not disclosed to any person in any proceeding unless certain criteria are met.
Disclosure is permitted to the extent that (1) the judicial council of the circuit in its discretion releases a copy of a report of a special committee under 28 U.S.C. § 353(c) to the complainant and to the judge who is the subject of the complaint; (2) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House by resolution, releases any such material believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or (3) such disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under 28 U.S.C. § 331. Each written order to implement any action on a complaint under 28 U.S.C. § 354(a)(1)(C), which is issued by a judicial council, the
Judicial Conference, or the standing committee established under 28 U.S.C. § 331, is to be made available to the public through the clerk’s office of the court of appeals for the circuit involved. Unless contrary to the interests of justice, each order must be accompanied by written reasons supporting it.35
The annual reports of the Director of the Administrative Office of the United States Courts provide statistical information related to the federal courts. This information, which is available online, includes the number of complaints filed against federal judges under 28 U.S.C. §§ 351- 364 and the type of disciplinary action taken.36 According to the 2010 Annual Report of the Director of the Administrative Office of the United States Courts, 1,448 complaints were filed in the 2010 fiscal year, down 7% from the previous year. In addition, 1,159 complaints were concluded between October 1, 2009, and September 30, 2010.37 However, 1,143 complaints were still pending resolution at the close of the 2010 fiscal year.38 As Figure 1 illustrates, the number of complaints left unresolved at the close of the fiscal year has increased every year since 2006.
Figure 1. Complaints Filed, Concluded, and Left Pending over the Last Five Years
Source: Compiled by CRS from the Annual Reports of the Director of Administrative Office of the United States Courts.
A single complaint can state several accusations. In the 2010 fiscal year, the allegation most commonly made against federal judges was that the federal judge in question had abused the judicial power by issuing an erroneous, delayed, or unsupported decision.39 As illustrated by Figure 2, the second most common type of allegation concerned favoritism or animus toward a litigant or attorney.
Figure 2. Five Most Common Allegations Against Federal Judges in FY2010
Source: Compiled by CRS from the 2010 Annual Report of the Director of the Administrative Office of the United States Courts.
Notes: “Abuse of Judicial Power” refers to erroneous, delayed, or unsupported decisions. “Favoritism of Animus” encompasses hostility, personal bias, or racial, religious, or ethnic prejudice against a litigant or attorney. “Conflict of Interest” includes a judge’s refusal to recuse. “Miscellaneous Misconduct” encompasses all “Other Misconduct” as the term is used in Table S-22 of the 2010 Annual Report.
As shown by Figure 3, most complaints are dismissed in full by the circuit chief judge.40 Complaints rarely result in the appointment of a special investigating committee and are even less likely to be referred to the Judicial Conference.41 No complaint was referred to the Judicial Conference in the 2010 fiscal year.42
Figure 3. Resolution of Complaints Against Federal Judges over the Last Five Years
Source: Compiled by CRS from the Annual Reports of the Director of Administrative Office of the United States Courts.
The federal judicial discipline framework under 28 U.S.C. §§ 351-364 provides a mechanism for consideration of complaints against federal circuit judges, district judges, bankruptcy judges, and magistrate judges. It does not apply to U.S. Supreme Court Justices. Nor does it apply to the U.S. Court of Federal Claims, the Court of International Trade, or the Court of Appeals for the Federal Circuit, each of which is required to prescribe rules, consistent with the provisions in 28 U.S.C. § 351-364, establishing procedures for the filing of complaints with respect to the conduct of judges of that court, for investigation of such complaints, and for taking appropriate action with respect to them. The statutory structure under 28 U.S.C. §§ 351-364 provides a means for each complaint to be explored and for disciplinary action to be taken where warranted by the facts involved. As in the recent cases of Judge G. Thomas Porteous Jr. and Judge Samuel B. Kent, where an investigation under this judicial discipline process uncovers conduct which may rise to the level of an impeachable offense, the matter may be referred by the Judicial Conference of the United States to the Speaker of the U.S. House of Representatives for the House to consider whether to pursue impeachment of the judge involved.
DEPARTMENT OF JUSTICE
PUBLIC INTEGRITY SECTION
FEDERAL JUDICIAL BRANCH
During 2018, the Section brought no cases involving the federal judicial branch.
The Public Integrity Section has sole responsibility for the investigation and prosecution of federal judges due to the potential appearance issues that might arise if a local United States Attorney’s Office were to investigate an allegation of wrongdoing by a judge before whom that United States Attorney’s Office appears on a regular basis. The investigation of allegations of criminal wrongdoing in the federal judicial branch is a very sensitive matter. These investigations may involve intrusions into pending federal cases, cooperation from parties or witnesses who are appearing before the court, or potential disruption of the normal judicial process. In addition, the Section must coordinate closely with supervisory judges and the Administrative Office of United States Courts to facilitate the assignment of magistrates and judges from outside of the judicial district to handle requests during the investigation, such as grand jury supervision, or applications for warrants or electronic surveillance. The Public Integrity Section has developed substantial experience and expertise in these matters over the years.
FEDERAL JUDICIAL BRANCH (2008)
As of December 31, 2008, four matters involving allegations of corruption affecting the federal judicial branch were pending in the Public Integrity Section. During 2008, the Section closed one matter involving crimes affecting the judicial branch.
United States v. Kent, Southern District of Texas
United States District Court Judge Samuel B. Kent was indicted on August 28, 2008, on charges of abusive sexual contact and attempted aggravated sexual abuse for his alleged repeated assaults on an employee of the Office of the Clerk of Court. Kent was nominated for the federal bench on August 3, 1990, by President George H.W. Bush.
The indictment set a precedent as the first case of a United States District Court judge charged with a federal sexual crime and only the sixth time in the last 30 years that a federal judge has been charged with a federal crime in the United States; the last case was in 1991.
John Pickering, U.S. District Court for the District of New Hampshire.
Impeached by the U.S. House of Representatives, March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office, March 12, 1804.
Samuel Chase, Associate Justice, Supreme Court of the United States.
Impeached by the U.S. House of Representatives, March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate, March 1, 1805.
James H. Peck, U.S. District Court for the District of Missouri.
Impeached by the U.S. House of Representatives, April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate, January 31, 1831.
West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.
Mark W. Delahay, U.S. District Court for the District of Kansas.
Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.
Charles Swayne, U.S. District Court for the Northern District of Florida.
Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate, February 27, 1905.
Robert W. Archbald, Commerce Court and U.S. Court of Appeals for the Third Circuit.
Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.
George W. English, U.S. District Court for the Eastern District of Illinois.
Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.
Harold Louderback, U.S. District Court for the Northern District of California.
Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate, May 24, 1933.
Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.
Harry E. Claiborne, U.S. District Court for the District of Nevada.
Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.
Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.
Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.
Samuel B. Kent, U.S. District Court for the Southern District of Texas.
Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.
G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.
Congress has created a procedure that permits any person to file a complaint in the courts about the behavior of federal judges—but not about the decisions federal judges make in deciding cases. Almost all complaints in recent years have been dismissed because they do not follow the law about such complaints. The law says that complaints about judges’ decisions and complaints with no evidence to support them must be dismissed.
If you are a litigant in a case and believe the judge made a wrong decision—even a very wrong decision—you may not use this procedure to complain about the decision. An attorney can explain the rights you have as a litigant to seek review of a judicial decision.
The web site of each judicial circuit has the rules that explain what may be complained about, who may be complained about, where to file a complaint, and how the complaint will be processed. The circuit web site also gives you access to the form you must use.
- First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico)
- Second Circuit (Connecticut, New York, Vermont)
- Third Circuit (Delaware, New Jersey, Pennsylvania, Virgin Islands)
- Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, West Virginia)
- Fifth Circuit (Louisiana, Mississippi, Texas)
- Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee)
- Seventh Circuit (Illinois, Indiana, Wisconsin)
- Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)
- Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington)
- Tenth Circuit (pdf) (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
- Eleventh Circuit (Alabama, Florida, Georgia)
- United States Court of Appeals for the District of Columbia Circuit
- United States Court of Appeals for the Federal Circuit (pdf)
- Judicial Conduct and Disability Act of 1980. (See 28 U.S.C. §§ 351-364.)
- Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice — The Judicial Conduct and Disability Act 1980 Act authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.”
- Opinions of the Committee on Judicial Conduct and Disability
|Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice|
|Judicial Conduct and Disability Act Study Committee; Stephen Breyer; Sarah Evans Barker; Pasco M. Bowman; D. Brock Hornby; Sally M. Rider; J. Harvie Wilkinson III|
|2006, 183 pages|
|(In Print: Available for Distribution)|
|The Judicial Conduct and Disability Act 1980 Act authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.” The late Chief Justice William H. Rehnquist, in 2004, responded to criticism from Congress and others about the way in which the Act had been implemented by appointing a committee led by Supreme Court Justice Stephen Breyer.
The committee reviewed several groups of complaint dispositions, including a large sample from 2001-03, and concluded that overall the judiciary is implementing the Act as Congress intended; it also found, however, an unacceptably high number of problematic dispositions among the small number of complaints it examined that had received news coverage or Congressional attention. In reviewing dispositions, the Committee developed and applied standards that take into account the value of protecting judicial independence in making decisions in a case.
The Federal Judicial Center is serving as a repository for the Committee’s published report.
The report was reprinted at 239 Federal Rules Decisions 116.
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