Appellate Judges

How to Make a Judicial Complaint Citing the Right Arguments In Law

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”. Unfortunately, even if the ruling was incorrect, that argument won’t get you far and your judicial complaint will be dismissed quickly.

LIT COMMENTARY

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,

or

That reflect repeated legal error that cannot be attributed to an honest mistake.

Example Cases

While Tumey was generally thought to focus on a judge’s financial interest, both personal and institutional, In re Murchison established a separate line of Supreme Court cases focusing on a judge’s possible “conflict arising from his participation in an earlier proceeding.” Caperton , 556 U.S.

Cain v. White (5th Cir. 2019)

When a state deprives a person of liberty or property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice, it deprives him of liberty and property without due process of law. Moore v. Dempsey, 261 U.S. 86; Frank v. Mangum, 237 US 309.

Tumey v. Ohio, 273 US 510, 511 (1927)

Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865, 879 (Cal. 1998) (“Petitioner does not contest the Commission’s findings and conclusion. (See Gonzalez v. Commission on Judicial Performance (1983) 33 Cal.3d 359, 374 ( Gonzalez) [basing discipline on “disregard for even the minimal requirements of fairness and due process”].)”)

Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865, 880 (Cal. 1998) (“In his petition to this court, petitioner “accepts the [Commission’s unanimous] finding that his statements concerning Ms. Staggs were inappropriate and could be deemed” prejudicial misconduct. (See Kennicksupra50 Cal.3d at p. 325 [basing finding of prejudicial misconduct on “unprofessional, demeaning and sexist” remarks].)”)

Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865, 883 (Cal. 1998) (“In connection with the Richard Henderson matter, the Commission also unanimously concluded that petitioner committed prejudicial misconduct in failing to disqualify himself and willful misconduct in directing alteration of court records to mislead the Commission.”)

Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865, 883 (Cal. 1998) (“In connection with the Richard Henderson matter, the Commission also unanimously concluded that petitioner committed prejudicial misconduct in failing to disqualify himself and willful misconduct in directing alteration of court records to mislead the Commission.”)

Petitioner’s actions in this regard constituted willful misconduct. (See Wenger v. Commission on Judicial Performance (1981) 29 Cal.3d 615, 643-645 ( Wenger) [backdating affidavit was willful misconduct].)

In the Matter of King, 409 Mass. 590, 601-2 (Mass. 1991) (“The Judge also argues that his decisions in connection with these bail hearings (particularly as the defendants all were represented by counsel) are inappropriate for consideration by the Commission because they were based on the exercise of his legal judgment and reviewable on appeal.

The Judge is correct that, generally, judges are immune from sanctions based solely on appealable errors of law or abuses of discretion. See Matter of Troy, 364 Mass. 15, 40 (1973). This is not an unqualified proposition, however; we will impose sanctions upon judges who utterly disregard law and established rules of practice in the face of contrary orders. See id. at 40-41.

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. The principles articulated in Matter of Troy, supra, were no bar to the Commission’s consideration of this charge.”)

In the Matter of King, 409 Mass. 590, 601-2 (Mass. 1991) (“The Commission’s jurisdiction. The Judge argues that the Commission’s jurisdiction does not extend to matters not found to be prejudicial to the administration of justice. Therefore, he contends, all charges not relating to the performance of his judicial duties must be dismissed. We decline to dismiss them. In a number of cases, we have imposed sanctions recommended by the Commission based on misconduct on the part of judges that was not directly related or prejudicial to the performance of their judicial duties or the administration of justice…Thus, the Commission’s jurisdiction is not limited only to misconduct directly prejudicial to the judicial function or the administration of justice.”)

Ryan v. Commission on Judicial Performance, 45 Cal.3d 518, 532 (Cal. 1988) (“The masters concluded that Judge Ryan committed wilful misconduct in this matter. The Commission agreed. The Commission determined that Judge Ryan should have known his contempt order was both substantively and procedurally invalid. Moreover, the Commission determined that the judge’s continued pursuit of the contempt case was done in bad faith and for an improper purpose.

Judge Ryan completely ignored the procedures required for issuing contempt orders. Starks could not be held in direct contempt because his statements were made outside the judge’s presence and after the court session had ended. (Code Civ. Proc., § 1209, subd. (b).) Moreover, the judge failed to follow the procedures for indirect contempt outlined in section 1211 of the Code of Civil Procedure. Section 1211 requires that an affidavit be presented to the judge reciting the facts constituting contempt. No such affidavit was presented. Judge Ryan found Starks guilty of contempt merely on the basis of the unsworn testimony presented in his chambers. Thus, the Commission was correct in concluding that Judge Ryan’s contempt order was procedurally invalid. ”)

Section 1209, subdivision (b) provides: “No speech or publication reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings.”

Ryan v. Commission on Judicial Performance, 45 Cal.3d 518, 532 n. 6 (Cal. 1988)

In Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678 [ 122 Cal.Rptr. 778, 537 P.2d 898], we held that ignorance of proper contempt procedures, without more, constituted bad faith. ( Id. at p. 694.)

The twelfth issue relating to whether the Bankruptcy Judge violated Canons of the Code of Judicial Conduct is not properly before this Court. See U.S. v. Microsoft Corp.,253 F.3d 34, 114 (D.C.Cir.2001) ( “The Code of [Judicial] Conduct contains no enforcement mechanism. The Canons, including the one that requires a judge to disqualify himself in certain circumstances, are self-enforcing. There are, however, remedies extrinsic to the Code. One is an internal disciplinary proceeding, begun with the filing of a complaint with the clerk of the court of appeals pursuant to 28 U.S.C. § 372(c). Another is disqualification of the offending judge under either 28 U.S.C. § 144, which requires the filing of an affidavit while the case is in the District Court, or 28 U.S.C. § 455, which does not.” (citations omitted)).

Dorsey v. U.S. Dep’t of Educ., 528 B.R. 137, 142 n. 6 (E.D. La. 2015)

“[J]udges do not choose their cases, and litigants do not choose their judges. We all operate on a blind draw system. Sometimes, both litigants and judges are disappointed by the luck of the draw. But the possibility of such disappointment is a risk judges and litigants alike must assume. . . .”

McCuin v. Texas Power Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983)

In McCuin, the Fifth Circuit Court of Appeals held that “to permit a disqualified chief judge to select the judge who will handle a case in which the chief judge is disabled would violate the congressional command that the disqualified judge be removed from all participation in the case.”

Matter of First Colonial Corp. of America, 693 F.2d 447, 450 n. 5 (5th Cir. 1983) (“Our rule against considering issues raised for the first time on appeal does not control (1) when a pure question of law is posed and a refusal to entertain such a question results in a miscarriage of justice, (2) where the interest of substantial justice is at stake, or (3) there was no opportunity to object to an order upon its issuance, In re Novack, 639 F.2d at 1277. ”)

In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976) (“It is argued that the government lacked standing to challenge the alleged conflict of interest, and that the trial judge had no jurisdiction to entertain the government’s motion for disqualification. We reject these contentions. The substance of the government’s motion was that appellant had violated the ethical canons of the American Bar Association, which prohibit a lawyer from representing parties with adverse interests. These ethical canons had been explicitly adopted by the local rules of the district court in which this action arose. When an attorney discovers a possible ethical violation concerning a matter before a court, he is not only authorized but is in fact obligated to bring the problem to that court’s attention. See Estates Theatres, Inc. v. Columbia Pictures Industries, Inc., 345 F. Supp. 93, 98 (S.D.N.Y. 1972). Nor is there any reason why this duty should not operate when, as in the present case, a lawyer is directing the court’s attention to the conduct of opposing counsel. In fact, a lawyer’s adversary will often be in the best position to discover unethical behavior. We also conclude that the trial judge had jurisdiction to act upon this claim of unethical conduct. Local rules whose validity is not challenged expressly incorporate the American Bar Association’s ethical canons and expressly give the district court the power to fashion sanctions. Furthermore, it is beyond dispute that lawyers are officers of the court and that the courts have the inherent authority to regulate their professional conduct. See Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 270-71 (2d Cir. 1975); Saier v. State Bar of Michigan, 293 F.2d 756, 760 (6th Cir.), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343 (1961).”)

In re Gopman, 531 F.2d 262 (5th Cir. 1976) Cited 90 times
Holding opposing counsel has standing to bring an ethical violation to a court’s attention if applicable ethical rules require counsel to do so

Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 451 Fed. Appx. 324, 8-9 (5th Cir. 2011) (“First, the court held O’Dwyer in direct contempt using the summary contempt procedures in Rule 42(b) of the Federal Rules of Criminal Procedure. Summary disposition is available whenever a judge can certify that he saw or heard the conduct that constitutes contempt and that conduct was done in the actual presence of the court. United States v. Wilson, 421 U.S. 309, 314-15 (1975). These procedures allow a judge summarily to punish someone who commits criminal contempt in the court’s presence if the judge saw or heard the contemptuous conduct, without a full hearing, see Rule 42(b), although this court still requires at least notice and a brief opportunity for the contemnor to be heard. United States v. Brannon, 546 F.2d 1242, 1249 (5th Cir. 1977). Also, despite the breadth given by the rule’s wording, when time is not of the essence, non-summary procedures should be used. Wilson, 421 U.S. at 319. Summary procedures are meant for situations in which immediate corrective steps must be taken to restore order and maintain the dignity and authority of the court. Farmer v. Strickland, 652 F.2d 427, 437 (5th Cir. Unit B Aug. 1981). The circuit courts of appeals are charged with the task of making sure the power of summary disposition is not abused. Wilson, 421 U.S. at 319.”)

MISC NOTES

https://casetext.com/statute/united-states-code/title-18-appendix/federal-rules-of-criminal-procedure/title-viii-supplementary-and-special-proceedings/section-42-criminal-contempt?resultsNav=false&tab=keyword

https://casetext.com/case/robertson-v-us-ex-rel-watson#

THE BURKES’ ATTACHING AFFIDAVITS

The Burkes attach individual affidavits[10] 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?”.[11]

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.

A-4                    Failure to investigate adequately a complaint that a judge ordered a transcript altered

Facts and complaint—A prisoner litigant complained that a district judge was responsible for two alterations in the litigant’s Rule 11 hearing transcript: (1) deleting the Chapter 4: How the Judicial Branch Administers the Act—Results reading in open court of the “stipulation of facts” complainant had signed as part of his plea bargain, and (2) deleting the judge’s alleged statement that complainant could raise at sentencing his problems with the criminal justice system. The complainant said he needed these parts of the record to appeal the judge’s denial of his petition seeking review of his conviction under 28 U.S.C. § 2255.

The complainant offered no specific evidence that the judge was responsible for any significant omissions, but he said that only the judge could have ordered the court reporter both to alter the transcript and still swear to its accuracy.

Asked by the chief judge to respond, the judge said that, as was his practice, “the stipulation was not read into the record at the plea [hearing], and so it was not appropriate for it to appear in the transcript.” He said the prosecutor paraphrased the stipulation.

The prosecutor’s paraphrase did appear in the transcript.

The complainant implied that the paraphrase included the stipulated facts that he said had been deleted from the signed stipulation that was read at the hearing.

The transcript, however, shows that at the plea hearing he assented to the prosecutor’s paraphrase, and the complaint does not allege that that portion of the transcript was doctored.

Chief judge order—The chief judge quoted at length from the judge’s response, then dismissed the complaint without further discussion, citing what is now section 352(b)(1)(A)(i), permitting dismissal of a complaint that does not allege misconduct or disability that is the subject of the Act.

Assessment—The dismissal is inconsistent with our Standard 5 (“an allegation is not ‘conclusively refuted by objective evidence’ simply because the judge complained against denies it”).

Complainant said that the stipulation of facts was read at the hearing; the judge said that it was not. To resolve this factual dispute, the chief judge could have asked, or could have had staff ask, counsel and the court reporter what was said.

Also, the judge’s response does not mention the allegation that the transcript omitted the judge’s telling complainant that he could raise at sentencing his problems with the criminal justice system.

The complaint’s inconsistencies regarding the stipulation of facts undercut its credibility, but not enough to obviate the need for a more extensive inquiry.

p.48-49, Implementation of the Judicial Conduct and Disability Act of 1980,  A Report to the Chief Justice, Chaired by US Supreme Court Justice Stephen Breyer (2006)

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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1 Each of the fifty states and the District of Columbia has established a judicial conduct organization charged with investigating complaints against judicial officers. In most states, the judicial conduct organization has been established by a provision in the state constitution; in the other states, the judicial conduct organization has been established by a court rule or by statute. Depending on the state, the judicial conduct organization is called a commission, board, council, court, or committee, and is described by terms such as inquiry, discipline, qualifications, disability, performance, review, tenure, retirement, removal, responsibility, standards, advisory, fitness, investigation, or supervisory. This paper will use the general term “judicial conduct commission” to describe all fifty-one organizations.

2 ANNUAL REPORT Of THE STATE COMM’N ON JUDICIAL CONDUCT ( 1999).

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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.

RATIONALE

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

  1. ANNUAL REPORT OF THE COMM’N ON JUDICIAL QUALIFICATIONS.
  2. MODEL CODE OF JUDICIAL CONDUCT Canon 2A (1990). The American Bar Association adopted the Model Code of Judicial Conduct in 1972 and revised it in Forty-nine states, the U.S. Judicial Conference, and the District of Columbia have adopted codes based on  (but  not identical to) either the 1972 or I990 model codes. (Montana  has  rules of conduct  for judges,  but they are not based on either model code.)
  3. MODEL CODE OF JUDICIAL CONDUCT Canon 38(2).
  4. at Canon 38(7).
  5. In re Laster, 274 N.W.2d 742, 745 (Mich. 1979) (public reprimand for judge who granted large number of bond remissions originally ordered forfeited by other judges). See also In re Lichtenstein, 685 P.2d 204,209 (Colo. 1984).
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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

8. In re Curda, 49 P.3d 255,261 (Alaska 2002).

9.• Id.

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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

10. In re Schenck, 870 P.2d 185 (Or. 1993).
11. Laster, 274 N.W.2d at 745. See also In re Lichtenstein , 685 P.2d 204, 209 (Colo. 1984).
12. Harrod v. Ill. Courts Comm’n, 372 N.E.2d 53, 65 (Ill. 19 77).
13. Schenck, 870 P.2d at 195 (rejecting judge’ s argument that his denial of a motion to disqualify was challengeable on mandamus or on appeal, but not sanctionable under the code of judicial conduct).
14. In re Hammerrna ster, 985 P.2d 924,936 (Wash. 1999).
15. Id at 935.
16. McBryde v. Comm. to Review Circuit Council Conduct and Disability Orders, 264 F.3d 52, 65 (D.C. Cir. 2001).

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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.

APPEALABLE DEMEANOR

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

  1. To ameliorate concerns that the very nature of judicial discipline for legal error involves viewing a judge’s “actions in the cool light of after-the-fact reflection by way perhaps of second­ guessing her judicial actions taken in what she perceived to be an emergency situation,” the Supreme Court of Mississippi noted that a sitting chancellor had presided over the fact-finding hearing of the Commission on Judicial Performance, that the Commission meeting to consider the case was presided over by a sitting circuit judge, and two county court judges, a chancellor, and one other circuit judge were also present and unanimously voted to find misconduct. See Comm’n on Judicial Performance v. Perdue, 853 So. 2d 85, 97 (Miss. 2003).
  2. In In re Seraphim, 294 N.W.2d 485 (Wis. 1980), the Supreme Court of  Wisconsin rejected the contrary argument and stated, “The fact that none of the cases over which respondent presided were reversed by this court because of judicial misconduct does not mean that no misconduct occurred or that this court condoned that which did occur. It means only that this court found no judicial misconduct that had so seriously affected the trial as to warrant reversal.” at 500.
  3. MODEL CODE OF JUDICIAL CONDUCT Canon 38(4) (1990). See, g., In re Jenkins, 503 N.W.2d 425 (Iowa 1993) (public reprimand for ten separate instances of intemperate behavior; the Supreme Court of Iowa had previously twice admonished the judge in its opinions on appeal from his decisions and had once reversed him because of his intemperate actions); In re O’Dea, 622 A.2d507 (Vt. 1993) (rejecting judge’s argument that Judicial Conduct Board was reviewing judicial decision-making by considering the charge that he denied a litigant her hearing rights and concluding that Board findings went to a lack of the attributes such as patience and courtesy, not incorrect judicial decision-making).
  4. 985 P.2d 924 (Wash. 1999) (censure and six-month suspension without pay).

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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

  1. Id. at 935.
  2. Id.
  3. Id. at 936.
  4. McBryde, 264 F.3d at 67.
  5. See Id.
  6. Complaints against federal judges are filed under the Judicial Conduct and Disability Act of 1980. See 28 U.S .C. 372(c).
  7. McBryde, 264 F.3d at 68.
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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

  1. The court described one instance in which the judge had ordered a lawyer to attend a reading comprehension course when she failed to have her client attend a settlement conference as required by the judge’s standard pretrial order. The court noted:

Appeal is a most improbable avenue of redress for someone like the hapless counsel bludgeoned into taking reading comprehension courses and into filing demeaning affidavits, all completely marginal to the case on which she was working. Possibly she could have secured review by defying his orders, risking contempt and prison.

Id. at 67-68.

  1. Id.
  2. Van Voorhis, Decision and Order (Cal. Comm’n on Judicial Performance Feb. 27, 2003) (removal for eleven instances of improper courtroom demeanor), available at http://cjp.ca.gov/pubdisc.htm, petition for review denied, available at http://www.courtinfo.ca.gov/ courts/supreme/.
  3. The masters had found that the prosecutor’s attempt to have a police officer describe the horizontal gaze nystagmus test was reasonable. The incident before Judge Van Voorhis took place  in 1999, and in 1995, the California Court of Appeals had held that the gaze nystagmus test was admissible as a basis for an officer’s opinion that a defendant was driving under influence of alcohol without requiring expert testimony. See People v. Joehnk, 42 Cal. Rptr. 2d 6 (Cal. Ct. App. 1995).
  4. Van Voorhis. The judge began by asking, “Now we have opened the door to something that really you have no intention of completing. Do we leave the jury with these half-truths?” The judge disparaged the prosecutor’s case by noting that although the officer had seen “a person demonstrate some sort of symptom,” that did not necessarily connect it to alcohol, continuing “probably everybody she has ever arrested has a smaller finger on the end of their  That  doesn’t mean that everybody with a small finger is a drunk.” When the prosecutor  attempted  to move the proceedings along, the judge responded, “That really doesn’t  solve  the  problem completely because you went down a road that you could not complete and now this jury has heard about gaze nystagmus, and they are supposed to wonder what it all means.” After the prosecutor asked to approach the bench, the judge, “with a smirk on his face,” replied in a condescending and mocking tone, “And what would you tell me up here?” The prosecutor replied that  she  had questions for the court, and the judge told her “ask me now.” The judge then conducted a lengthy colloquy critical of the prosecutor in which he questioned the prosecutor’s motives for seeking to introduce the evidence, ridiculed her perspective, and threatened to declare a mistrial if she continued. The masters found that the judge’s last comments in the colloquy were made in a “sing-

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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

song, sarcastic, and very condescending tone of voice.” The commission adopted the  masters’ finding that the “judge’s statements here could not have been meant for any purpose other than to deliberately ridicule [the deputy district attorney] and prejudice her case in front of the jury” and, therefore, the judge made his comments “for a corrupt purpose (which is any purpose other than the faithful discharge of judicial duties).”

  1. Id at 12.
  2. See, g., Cahill, Majority Decision of Commission Dismissing Charges (Md. Comm’n on Judicial Disabilities 1996) (finding that nothing a judge had said during the sentencing of a husband for the murder of his wife rose to the level ofsanctionable conduct); Statement of the Supreme Court of New Hampshire Committee on Judicial Conduct Relating to Complaints Against Judge William J. O’Neil (December 22, 1993) (finding judge’s remarks at a sentencing hearing for a man charged with assaulting his estranged wife did not reflect gender bias).
  3. 685 P.2d 204 (Colo. 1984).
  4. at 206. The judge stated:

The Court finds that his mental state, his mental and emotional condition, combined with the sudden heat of passion caused by a series of highly provoking acts on the part of the victim of leaving him without any warning; in fact, based on the testimony that the Court has heard, in a sense deceiving him as to her intentions by being extremely loving and caring up to and through the morning that she left the family home with the full intention of obtaining a divorce and proceeding with a separation from him without even giving him any knowledge of her whereabouts or that of their son, the Court finds that this affected the Defendant sufficiently so that it excited an irresistible passion as it would in any reasonable person under the circumstances and, consequently, would warrant a sentence under the extraordinary mitigating terms of the statute.

Id.

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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

  1. See People v. District Court of the City & County of  Denver,  673 P.2d 991  (Colo.  1983). 38. See COLO. REV. STAT . 18-1-105(7) (1983) (repealed).
  2. Lichtenstein, 685 P.2d at 209.
  3. See In re Hocking, 546 N.W.2d 234 (Mich. 1996). The court did suspend the judge for three days without pay for intemperate and abusive conduct toward an attorney.
  4. See id. at 239.

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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

        1. In addressing what he felt was the defendant’s  lack  of  culpabili ty, as  compared  to other offenses and offenders, the judge had stated :

    The fact that the victim agreed to the Defendant’s 2:00 a.m., Sunday morning visit is a mitigating circumstance, again with regard to the presence of an evil state of mind on behalf of the Defendant. This is not a perfect world, but as common sense tells me that when a man calls a woman  at  2:00 a.m. and  says  he wants to come over and  talk and  he’ s- that’s accepted, a reasonable person , whether you want to shake your head or not, Ms. Maas [the prosecuting attorney], I haven’t been living in a  she ll.  reasonable person understands that mean certain things. They may be wrong.

    Id.

        1. Id.
        2. 44. Id. at 240.
        3. Id.
        4. Id.
        5. (citations omitted).
        6. See Id.

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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

  1. See at 241.
  2. See Gaeta, Order, (N.J. Ct. May 7, 2003). The judge had waived his right  to a hearing and consented to the reprimand. Unfortunately, the court’s order does not describe the conduct, but a copy of the Committee’s presentment is available at http://www.judiciary.state.nj.us/ pressrel/gaeta.pdf.
  3. Gaeta, No. ACJC 2002-171, Presentment at 5-6 (N.J. Ct. Advisory Comm. on Judicial Conduct).
  4. at 9.
  5. at 10.

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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

  1. at 11. However, the committee found that the judge’s remarks did not reflect any underlying bias and that he was fully capable of avoiding any repetition of his conduct. See also Litynski (Minn. Board on Judicial Standards June 26, 199 I) (public reprimand for inappropriately injecting personal, religious, and philosophical beliefs in the sentencing of a defendant on a charge of animal abandonment; according to a newspaper account, in fining the defendant $1 for abandoning five puppies in a trash bin in freezing weather, the judge stated, “God ordained the killing of animals. He himself killed animals to provide skins for Adam and Eve after they sinned. (Animal rights activists] are not concerned about the millions of unborn babies that are slaughtered each year, many of whom, like these puppies are tossed into dumpsters after being killed.”)
  2. See In re Daniels, 340 So. 2d 301 (La. 1976) (censure for giving the appearance of deciding the guilt or innocence of various defendants by flipping a coin); Turco, Stipulation (Wash. Comm’n on Judicial Conduct Oct. 2, 1992) (censure for a judge who had tossed a coin to decide a traffic infraction and entered a finding against the defendant when the defendant lost the coin toss). See also DeRose , Determination (N.Y. State Comm’ n on Judicial Conduct Nov. 13, 1979) (admonition for judge who had dismi ss ed a case based on his decision, made in advance, to dismiss the first case to come before him upon his ascending the bench), available at http://scjc.state.ny.us/determinations /d/de_rose.htm; Aaron (Cal. Comm’n on Judicial Performance July 8, 2002) (censure with agreement to resign for, among other misconduct, on numerous occasions, remanding defendants based on his “smell test” of the defendants’ hair and/or his examination of their eyes), available at http:1/cjp.ca.gov/pubdisc.htm.

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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

  1. See In re Brown, 662 N.W.2d 733 (Mich. 2003) (censure for this and other misconduct). The judge was assigned to a divorce case in which one of the issues was the custody of two minor children. After the mother moved out of the state, custody was temporarily awarded to the maternal grandparents. On December 14, 2001, the maternal grandparents and the father, both with counsel, appeared before the judge for an evidentiary hearing to determine if the house purchased by the father was a suitable residence for the children and to confirm that the father had begun working a day shift so he could care for them. During the hearing, the attorney for the grandparents raised the issue of where the children would spend the Christmas holidays. The judge encouraged the  parties to resolve the matter themselves, but when they were unable to agree, she told the parties it was nothing more than a coin flip. Although the grandparents’ attorney and  the father protested,  the judge produced a coin, allowed the father to call heads or tails, and flipped it. The father called heads, which is the side of the coin that ended face up after the flip, and the judge ordered that the children would spend Christmas Eve with the father. See Id.
  2. In re Best, 719 So. 2d 432, 435 (La. 1998 ).
  3. at 435-36 (censure for this and other misconduct) .
  4. See Velasquez, Decision and Order (Cal. Comm’ n on Judicial Performance Apr. 16 , 1997) (censure for, among other misconduct, making it known publicly what specific sentences he would impose on DUI offenders); Tracy, Determination (N.Y. State Comm’n on Judicial Conduct Nov . 19, 2001) (publicly announcing and following a policy concerning the sentence he would impose in certain types of drunk-driving cases), available at http://scjc.state.ny.us/ determinations/t/tracy_edward.htm.

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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

  1. See In re Whitney, 922 P.2d 868 (Cal. 1996) (censure for, among other misconduct, as a matter of routine practice, failing to consider probation or concurrent sentencing for defendants pleading guilty or no contest at arraignment) .
  2. Tracy, Determination (N.Y. State Comm’n on Judicial Conduct Nov . 19, 2001) available at www.scjc.ny.us/determinations/t/tracyedward.htm.
  3. See Velasquez, Decision and Order Imposing Public Censure (Cal. Comm’n on Judicial Performance Apr. 16, 1997) (noting judge’s policy for sentencing persons convicted of DUI had been adopted out of political considerations arising from the judge’s dispute with other judges); Tracy, Determination (N.Y. State Comm’n on Judicial Conduct Nov. 19, 2001) (noting the expression of “a blanket ‘policy’ against drunk drivers  may pander  to popular sentiment  that  all such defendants should be treated harshly”), available at http://www.scjc.state.ny.us/ Determinations/T/tracy,_edward.htm.
  4. See, e.g, In re Justin, 577 N.W.2d 71 (Mich. 1998) (censure for judge who had assessed fines, fees, and costs in ordinance cases involving the City of Jackson in a way that reduced  the city’s revenues following a dispute involving pension benefits for court  employees);  Warnke, Hanna, Moseley, Evans (Tex. State Comm’n on Judicial Conduct June 25, 1996)  (public admonitions for four judges who reduced virtually all traffic fines in their courts to $1 plus court costs to send a message to the county commissioners regarding the impropriety of treating courts as revenue-generating agencies).
  5. In re Hill, 8 S.W.2d 578 (Mo. 2000).

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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

  1. Id. at 583.
    1. at 584 (suspension until the end of term·for this and other misconduct). The court found that none of the judge’s asserted justifications for the orders-“reducing his caseload, better controlling his docket, avoiding congestion in the courts, exercising his discretion over fine schedules and prisoner releases, and responding to public and aldermanic complaints about the amount offines”-had any support in the record.
    2. See Raphael v. State, 994 P.2d 1004 (Alaska 2000).1.W. had been subpoenaed to testify in the criminal trial of Wilfred Raphael, her former domestic companion who had been indicted for a series of serious attacks upon her. When she arrived in court on the day she was scheduled to give testimony, she was intoxicated. In an ex parte meeting, the assistant district attorney expressed concern to the judge that l.W. would either fail to appear a second time or would not be able to stay sober. After a brief hearing, the judge imprisoned 1.W. for contempt. In reversing the defendant’s conviction, the court concluded that the judge violated W.’ s right to notice and a meaningful hearing by giving her no advance notice that she stood accused of contempt and questioning her while she was intoxicated. The court also held that the judge violated Raphael’s due process rights and right to be present at every stage of his trial by holding the hearing ex parte and allowing the impression that 1.W.’s freedom and continued custody of her children was contingent upon the nature of her testimony against him. Id.
    3. See In re Curda, 49 P.3d 255 (Alaska 2002).
    4. Id. at 261.

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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

70. Id.

  1. Id. The court stated that it was aware of “‘no contested American case approving the disciplining of a judge for a single incident of good faith legal error when the judge acted without animus.”‘ Id. (quoting the judge’s argument), That claim overlooks numerous cases. See discussion infra notes 132-61. Moreover, the commission in Curda was requesting a private reprimand, and it is quite possible that commissions in ther states have privately reprimanded judges for single incidents of good faith legal error, but the court would not be aware of such actions.
  2. 487 A.2d 1158 (Me. 1985).
  3. Id. at I 163. 74, Id.
  4. In the case before it, the court held that the judge’s decision to incarcerate a creditor was not obviously wrong, although it was judicial error, because there was confusion as to the remedies that were available to a judgment creditor. at I 168-69, Similarly, the court concluded that the judge’s decision to deny defendants’ motions for stay of sentence pending appeal was  not misconduct because there was some question whether anyone other than a superior court  judge could stay the execution of a district court fine pending appeal. Id. at 1170.

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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

  1.  705 So. 2d 172 (La. 1997).
    1. See id. at 181.
    2. See id.
    3.  Id.
    4. at 183. The court did acknowledge, in a footnote, that there was a decision from the Louisiana first circuit court of appeal that making church attendance a condition of probation violated the state and federal constitutions. See State v. Morgan, 459 So.2d 6 (La. Ct. App. 1984). Noting the judge’s court was within the jurisdiction of the third circuit court of appeal, the court concluded, “although a trial court’s decision may constitute legal error under the jurisprudence  of the first circuit, this is irrelevant from the viewpoint of the trial judge, for it may not constitute legal error in the third circuit should the third circuit choose an interpretation different from its sister circuit.” Quirk, 705 So. 2d at 181 n.17.

At least three times since the decision in Quirk, the court has found that standard to have been met and sanctioned a judge for legal error. See discussion of In re Aucoin, 767 So. 2d 30 (La. 2000) infra notes 134-35; In re Fuselier, 837 So. 2d 1257 (La. 2003) infra notes 107-08; In re Landry, 789 So. 2d 1271 (La. 2001) infra note 149.

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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

81. See In re LaBelle, 591 N.E.2d 1156, 1161 (N.Y. 1992). The judge believed that the defendants were in need of a psychiatric examination to determine their fitness to proceed, their behavior indicated that they could not be relied upon to attend such an examination, and there was no responsible person who could ensure that the defendants would attend. The judge had argued that he had discretion to confine a defendant without bail, either in jail or in a hospital, pending a psychiatric report. See id.
82. Id.
83. See In re Spencer, 798 N.E.2d 175, 183 (Ind. 2003).
84. Harrod v. Ill. Courts Comm’n, 372 N.E.2d 53, 66 (Ill. 1977).
85. The court issued a writ of mandamus against the members of the Courts Commission directing them to expunge the suspension order against the judge from their records “regardless of whether he believes the form of punishment will have a beneficial corrective influence.” Id. at 65. See also State Comm’n on Judicial Conduct v. Gist, No. 3-88-252-CV, 1990 Tex. App. LEXIS 2729 (Tex. App. Ct. 1990) (voiding the public reprimand of a judge by the Texas Commission on Judicial Conduct for a sentencing practice involving back-dating because the legality of the sentencing practice had not yet been decided by the court of criminal appeals).
86. Harrod, 372 N.E.2d at 66. See People v. Dunn, 356 N.E.2d 1137 (Ill. App. Ct. 1976).
87. Harrod, 372 N.E. at 65.

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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

88. Kennick v. Comm’n on Judicial Performance, 787 P.2d 591,604 (Cal. 1990).
89. Kline, Decision and Order of Dismissal (Cal. Comm’n on Judicial Performance, Aug. 19, 1999) available at http://cjp.ca.gov./pubdisc.htm. In a dissent, the judge had refused to follow state supreme court precedent, arguing he could do so under an exception to the stare decisis principle.
90. 975 P.2d 663 (Cal. I 999).
91. Id. at 680.
92. Id. (citations omitted). A concurring opinion disagreed with this approach, stating “[w]hen, as here, the Commission has no extrinsic evidence of bad faith or improper motive-no evidence, that is, apart from the nature of the ruling itself-the Commission generally should not pursue an investigation into, or impose discipline for, a legal ruling that has reasonably arguable merit.” Id. at 682. (Werdegar, J. concurring).
93. See discussion infra notes 132-61.
94. See, e.g., Shannon, Determination (N.Y. State Comm’n on Judicial Conduct Nov. 19, 2001) (admonition for, among other misconduct, failing to advise defendants of right to assigned counsel and failing to assign counsel to eligible defendants charged with non-vehicle and traffic infractions as required by statute), available at http://www.scjc.state.ny.us/determinations/ s/shannon.htm; Henne, Decision and Order Imposing Public Censure (Cal. Comm’n on Judicial Performance Oct. 13, 1999) (censure for, among other misconduct, reinstating and modifying the terms of probation for two defendants without advising probationers that they had the constitutional

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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

  1. See Comm’n on Judicial Performance v. Neal, 774 So. 2d 414 (Miss. 2000) (public reprimand for, among other misconduct, imposing fines and sentences in excess of statutory authority); Reid, Determination (N.Y. State Comm’n on Judicial Conduct May 17, 2002) (censure for, among other misconduct, in 16 cases after accepting guilty pleas, imposing fines that were $20 to $70 in excess of the statutorily authorized maximum fine for the specific convictions),  available at http://www.scjc.state.ny.us/determinations/r/reid.htm; Bauer, Determination (N.Y. State Comm’n on Judicial Conduct Mar. 30, 2004) (removal for, in addition to other misconduct, imposing illegal sentences in four cases), available at http://www.scjc.state.ny.us/determinations/b/bauer.htm.
  2. See In re Hammermaster, 985 P.2d 924 (Wash. 1999); Reid, Stipulation, Agreement, and Order of Admonishment (Wash. State Comm’n on Judicial Conduct Oct. 5, 2001) (admonition for, among other misconduct, a pattern or practice of accepting guilty pleas using forms that did not contain space for listing the elements of the crime or the factual basis for the plea, as required by statute), available at http://www.cjc.state.wa.us.
  3. See In re Hammermaster, 985 P.2d 924 (Wash. 1999) (censure and six-months suspension for this and other misconduct).
  4. See In re Holien, 612 N.W.2d 789 (Iowa 2000) (removal for this and other misconduct).
  5. See In re Scott, 386 N.E.2d 218 (Mass. 1979) (public reprimand).

100. See In re Benoit, 487 A.2d 1158, 1166 (Me. 1985) (censure and suspension for this and other misconduct).

  1. See In re Michels, 75 P.3d 950 (Wash. 2003) (censure and 120-day suspension for this  and other misconduct).
  2. See Roeder (Cal. Comm’n on Judicial Performance Dec. 16, 2003), available at http://cjp.ca.gov./pubdisc.htm.

103. In re Walsh, 587 S.E.2d 356, 357 (S.C. 2003) (removal for this and other misconduct).

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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-

  1. See In re Reeves, 469 N.E.2d 1321 (N.Y. 1984) (removal  for this and other misconduct).
  2. See discussion infra notes 132-61.
  3. See generally In re Quirk, 705 So. 2d 172, 178 (La. 1997).
  1. 837 So. 2d 1257 (La. 2003).
  2. See id. at 1268.
  3. Cannon v. Comm’n on Judicial Qualifications, 537 P.2d 898,909 (Cal. 1975).

110. See Comm’n on Judicial Performance v. Lewis, 830 So. 2d 1138 (Miss. 2002) (public reprimand for ordering a handgun that had been seized from a minor forfeited to the court even after charges against the minor were dismissed in violation of a statute; the court found that a specific intent to use the powers of the judicial office to accomplish a purpose that the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith and gives the Commission on Judicial Performance jurisdiction); Judicial Inquiry and Review Comm’n v. Lewis, 568 S.E.2d 687 (Va. 2002) (censure for enforcing an order that the judge knew had been stayed by another court).

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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

  1. See Ryan v. Comm’n on Judicial Performance, 754 P.2d 724 (Cal. 1988) (removal for this and other misconduct).
  2. See In re Cox, 680 N.E.2d 528 (Ind. 1997) (30-day suspension without pay for this and other misconduct).
  3. See Lindell-Cloud, Detennination (N.Y. Comm’n on Judicial Conduct July 14, 1995) (censure), available at http://www.scjc.state.ny.us/detenninations/l/lindell-cloud.htm.
  4. 568 N.E.2d 588 (Mass. 1991).
  5. at 594 (censure for this and other misconduct).
  6. Id.

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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

  1. See, e.g., In re Perry, 641 So. 2d 366 (Fla. 1994) (holding that bonds of $10,000 for a traffic offense and $5,000 for a contempt offense were arbitrary, unreasonable, and designed to punish the defendants rather than to assure their presence for trial; judge was reprimanded for this and other misconduct, see discussion infra notes 164-67); In re Yengo, 371 A.2d 41 (N.J. 1977) (removal for, among other misconduct, using bail as an arbitrary weapon for harassment of defendants); McKevitt, Determination (N.Y. Comm’n on Judicial Conduct Aug. 8, 1996) (censure for refusing to set bail because he had been required to get out of bed to conduct the arraignment), available at http://www.scjc.state.ny.us/determinations/m/mckevittl.htm; Jutkofsky, Determination (N.Y. State Comm’n on Judicial Conduct Dec. 24, 1985) (removal for, among other misconduct, threatening defendants with high bail and jail for minor offenses, coercing guilty pleas from defendants who were often unrepresented and, on occasion, youthful), available at http://www.scjc.state.ny.us/determinations/j/jutkofsky.htm; Ellis, Determination (N.Y.  State Comm’n on Judicial Conduct July 14, 1982) (removal for among other misconduct, in 23 cases, abusing the bail process by deliberately incarcerating certain defendants for indefinite  periods of time in order to coerce them to plead guilty; deliberately failing to appoint counsel for indigent defendants), available at  http://www.scjc.state.ny.us/determinations/e/ellis,_anthony_(2).htm; Bauer, Determination (N.Y. State Comm’n on Judicial Conduct Mar. 30, 2004) (removal for, in addition to other misconduct, coercing guilty pleas by setting exorbitant, punitive bail), available at http://www.scjc.state.ny.us/determinations/b/bauer.htm; Disciplinary Counsel v. O’Neill, No. 2004- 0809, 2004 Ohio LEXIS 1965, at *I (Ohio Sept. 7, 2004) (suspending judge from practice  of law  for two years, with one year stayed conditionally, for, in addition to other misconduct, forcing pleas from defendants by threatening to revoke or actually revoking their bonds because the defendants wanted to exercise their rights to refuse an offered plea and go to trial).

118. Recant, Determination (New York State Commission on Judicial Conduct Nov. 19, 2001) (censure, pursuant to agreement, for this and other misconduct), available at http://www.scjc.state.ny.us/determinations/r/recant.htm.

119. Id.

  1. Id. In a second case, the judge denied the defense attorney’s oral motion to dismiss the complaint for facial insufficiency and asked whether his client wanted time served, noting the defendant had a warrant on which she could keep him in, and asked him if he wanted to be heard on bail. When the defense attorney responded, “You would hold my client in?” the judge replied, “Not if he pleads to the disorderly conduct, I won’t.” When the defendant refused to plead guilty, the judge set $500 bail on the warrant and $1 bail on the instant matter. In a third case in which the  judge earlier in the day had issued a bench warrant and ordered bail forfeited when the defendant was not in court on time, the judge advised the defense attorney that the defendant had two choices: to “acknowledge responsibility” for his crime or she was “likely to increase his bail.” When the

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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

attorney informed the court that the defendant was unable to pay the mandatory fine, the judge replied, “Jfhe wants to fight it, that’s fine. I’m telling you now, I’m  likely to set bail. I’m giving you  a heads up.” Id.

121. 591 N.E.2d I 156 (N.Y. 1992)(censure).
122. Id. at 1162.
123. In re Duckman, 699 N.E.2d 872,875 (N.Y. 1998).
124. See id. at 874.
125. Id. at 881 n.7.
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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

126. Id. at 880 .
127. Id. at 881 (Titone, 1., dissenting) .
128. id. at 880.
129. Id.
130. Id. at 880-81.

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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


  1. Id.
    at 882-82 (Titone, J., dissenting). See also id. at 884-88 (Bellacosa, J., dissenting).

132 . The term apparently did not originate from a case but  from  a  treatise.  See  JEFFREY  SHAMAN, ET AL., JUDICIAL CONDUCT AND ETHICS, § 2.02 {3d ed. 1995).

  1. See Quirk, 705 So. 2d at 178 . 134 . 767 So . 2d 30 (La. 2000).
  2. . at 33. (censure for this and other misconduct).
  3. See, g., Henne, Decision and Order Imposing Public Censure (Cal. Comm’n on Judicial Performance Oct. 13, 1999) (censure for this and other misconduct) ; Comm’n on Judicial Performance v. Wells, 794 So. 2d 1030 (Miss . 2001) (public reprimand for convicting a defendant based on affidavits alone); Hise, Determination (N.Y. State Comm’n on Judicial Conduct May 17, 2002) (relying on the defendant’s incriminating statements at arraignment  to  convict  an unrepresented defendant and impose a jail sentence without a trial and without the defendant
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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

changing    his   plea    to   guilty   or   waivmg    his   guaranteed    right    to   a   trial),   available  at http://www.scjc.state.ny.us/deterrninations/h/hise.htm.

  1. See EnEarl, Findings of Fact, Conclusions of Law and Imposition of Discipline (Nev. Comm’n on Judicial Discipline Sept. 18, 2003) (public reprimand), available at http://www.judicial.state.nv.us/enearldecision.htm.

.  138.  See Delgado (Tex. State Comm’n on Judicial Conduct Apr. 12, 2001) (admonition  for this  and other misconduct).

  1. See Comm’n on Judicial Performance v. Byers, 757 So. 2d 961 (Miss. 2000) (public reprimand and fine for, among other misconduct, sentencing defendant under wrong statute  and doing nothing to correct error); Office of Disciplinary Counsel v. Karto,  760  E.2d  412 (Ohio 2002) (six-month suspension for, among other misconduct, relying on an outdated statute book, incorrectly sentencing a juvenile); Driver (Tex. State Comm’n on Judicial Conduct Dec. 17, 1999) (ordered payment of fines for violation of ordinances after authorization for penalties had been repealed).
  2. See, e.g., Nichols, Determination (N.Y. State Comm’n on Judicial Conduct    19, 2001) (committing defendant to jail after defendant stated that he was unable to pay $100 fine for traffic infraction and failing to advise defendant of his right to be resentenced), available at http://www.scjc.state.ny.us/deterrninations/n/nichols.htm; In re Hamel, 668 N.E.2d 390 (N.Y. 1996) (removal for two incidents in which the judge improperly jailed individuals for their purported failure to pay fines and restitution obligations that he had imposed); In re Roberts, 689 N.E.2d 911 (N.Y. 1997) (removal for, in addition to other misconduct, directing the arrest and summarily ordering an individual to eighty-nine days in jail, without affording constitutional and procedural safeguards for failure to pay a mandatory $90 surcharge following her guilty  plea to theft  of services  for a  $1.50 cab fare); Bartie (Tex. State Comm’n on Judicial Conduct June 28, 2000) (among other misconduct, failing to conduct indigency hearing before committing defendant to jail to pay off fme, failing  to offer the options of paying fine in installments or performing community service in lieu of jail).
  3. See Henne, Decision and Order Imposing Public Censure (Cal. Comm’n on Judicial Performance Oct. I 3, 1999).
  4. See In re Brown, 527 S.E.2d 651 (N.C. 2000).
  5. See In re Vaughn, 462 E.2d 728 (Ga. 1995) (removal for this and other misconduct).
  6. See Id.
  7. See Id.

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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

  1. See Comm’n on Judicial Performance v. Willard, 788 So. 2d 736 (Miss. 2001) (removal for this and other misconduct).
  2. See In re Benoit, 487 A.2d 1158, 1167 (Me. 1985).
  3. Bauer, Determination (N.Y. State Comm’n on Judicial Conduct Mar. 30, 2004) (removal for this and other misconduct), available at http://www.scjc.state.ny.us/determinations/b/bauer.htm.
  4. See In re Landry, 789 So. 2d 1271 (La. 2001) (six-month suspension without  pay). See also Williams, Determination (N.Y. State Comm’n on Judicial Conduct Nov. 19, 2001) (admonition for, among other misconduct, holding a summary proceeding on a landlord’s  petition  for eviction and back rent and signing the judgment without a hearing on contested issues or according pro se defendants full opportunity to be heard), available at http://www.scjc.state.ny.us/ determinations/w/williams,_edward_( I ).htm.
  5. See Broadman, Decision and Order (Cal. Comm ‘n on Judicial Performance Feb. 26, 1999) (admonition for this and other misconduct), available at http://www.cjp.ca.gov./pubdisc.htm.
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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

  1. Id. at 4.
  2. Id.
  3. Venezia v. Robinson, 16 F.3d 209,210 (7th Cir. 1994).
  4. Id.
  5. See United States v. Cueto, 151 F.3d 620 (7th Cir. 1998).

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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

  1. See Radcliffe, Order (Ill. Cts. Comm’n Aug. 23, 2001).
  2. Id.
  3. Id.
  4. Id.
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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

CONTEMPT

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

  1. See Comm’n on Judicial Performance v. Perdue, 853 So. 2d 85 (Miss. 2003) (thirty­ day suspension without pay).
  2. at 97.
  3. See, Hinton v. Judicial Retirement and Removal Comm’ n, 854 S.2d 756 (Ky. 1993) (setting aside a finding of misconduct and holding that, in light of judge’s duty and the discretion to control the courtroom, the proper remedy was by appeal and the judicial exercise of contempt power cannot be subject to disciplinary proceeding).
  4. See, e.g., Cannon v. Comm’n on Judicial Qualifications 537 P.2d 898 (Cal. 1975) (removal for, among other misconduct, completely ignoring proper procedures in punishing for a contempt committed in the immediate presence of a court; court rejected judge’s argument that the Commission was seeking to hold the judge accountable for erroneous judicial rulings); In re Jefferson, 753 So. 2d 181 (La. 2000) (removal for, among other misconduct, abuse of contempt authority by failing to follow any of the procedures for punishment of contempt and imposing a sentence that far exceeded the legally permissible punishment); Comm’ n on Judicial Performance v. Willard, 788 So. 2d 736 (Miss. 2001) (removal for, among other misconduct , holding court clerk in contempt without following due process); Teresi, Determination (N.Y. State Comm’n on Judicial Conduct Feb. 8, 2001) (censure, pursuant to agreement, for, in addition to other misconduct, finding both parties in a divorce case guilty of contempt and sentencing them to jail based on the other party’s unsworn statements, without holding hearing required by law), available at http://www.scjc.state.ny.us/determinations/t/teresi.htm; Recant, Determination (N.Y. State Comm’n

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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

on Judicial Conduct Nov. 19, 2001) (censure, pursuant to agreement, for, in addition to other misconduct, holding two defendants in custody without complying with summary contempt procedures and excluding two Legal Aid Society attorneys from the courtroom without complying with the requirements of a summary contempt), available at http://www.scjc.state.ny.us/ determination s/r/recant.htm.

  1. 641 So. 2d 366 (Fla. 1994).
  2. See id. at 368. Similarly, the Indiana Commission on Judicial Qualifications  has disciplined several judges for issuing ex parte change of custody orders without meeting statutory requirements. See, e.g., Spencer (Ind. Comm’n on Judicial Qualifications Dec.  28, 1999) (granting ex parte petition for change of custody without notice to the custodial father and failing to communicate with the Florida judge who had assumed jurisdiction). In addition, in response to the substantial number of complaints it was receiving about judge’s granting ex parte temporary child custody petitions, the Commission issued an advisory opinion reminding judges to be “as cautious with the rights of the opposing party as with scrutinizing the merits of the petition.” Ind. Comm. on Judicial Qualifications, Advisory Opinion 1-0I at 3, available at http://www.in.gov/judiciary/ admin/judqual/opinions.html. In the opinion, the commission stated it did not intend “to curtail the proper exercise of broad judicial discretion” nor to substitute its ” judgments for that of a judge who finds on some rational basis that circumstances warrant emergency relief.” Id. at 2. The commission did state it hoped “to improve and promote the integrity of our judiciary, and to help promote the public’ s confidence in the judiciary, by alerting judges, and lawyers, to the stringent and imposing ethical duties judicial officers undertake when considering whether to affect custodial rights ex parte. Id.

166 . Perry, 641 So. 2d at 368-69.

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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.

  1. Id.

168 . Goldman v. Nev. Comrn’ n on Judicial Discipline, 830 P.2d 107 (Nev. 1992).

  1. Id. at 133.
  2. Id.
  3. See Cannon v. Comrn’n on Judicial Qualifications, 537 P.2d 898, 909 (Cal. 1975) (noting when disciplining judge for contempt that judge was an experienced judge, with more than nine years on the bench and had at hand reference works that dealt with proper contempt procedures) ; Perry, 641 So. 2d at 369 (noting that all judges in Florida receive training on the appropriate procedures for applying their contempt powers and are provided with a checklist to follow  in holding a defendant in contempt).

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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

  1. 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.”).
  2. CODE OF JUDICIAL CONDUCT.
  3. 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

  1. CODE OF JUDICIAL CONDUCT SCR 60.02 cmt; see also RULES OF THE MICH. JUDICIAL TENURE COMM’N R. 9.203 (“The commission may not function as an appellate court to review the decisions of the court or to exercise superintending or administrative  control  of  the courts, except as that review is incident to a complaint of  judicial  misconduct.  An  erroneous decision by a judge made in good faith and with due diligence  is not judicial  misconduct.”); R.I. CODE OF JUDICIAL CONDUCT Canon I cmt. (“The role of the judicial conduct organizations like the Commission on Judicial Tenure and Discipline is not that of an appellate court. The commission shall 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.”)
  2. JUDICIAL DISCIPLINE & DISABILITY COMM’N RULES R. 98; see also RULES OF THE ARIZ. COMM ‘N ON JUDICIAL CONDUCT R. 7 (“The commission shall not take action against a judge for making erroneous findings of fact or conclusions of law in the absence of fraud, corrupt  motive, or bad faith on the judge’s part, unless such findings or conclusions constitute such an abuse of discretion as to otherwise violate one of the grounds for discipline described in these rules or the code.”); COLO. RULES OF JUDICIAL DISCIPLINE R. 5 (“In the absence of fraud, corrupt motive, bad faith, or any of the above grounds, the commission shall not take action against a judge for making erroneous findings of fact or legal conclusions which are subject to appellate  review.”);  Reg. of Conn. State Agencies§ 51-5lk-4(h) (“Although complaints regarding issues which are subject to appellate review are not within the jurisdiction of the [Judicial Review] Council,  any  complaint which contains allegations of prohibited conduct separate from issues which are subject to appellate review shall be investigated as to such prohibited conduct only.”); RULES OF PROC. OF THE CT. OF THE JUDICIAL OF THE STATE OF DEL. R. 3(b)(3) (“The Chief Justice may decline to refer to the Committee, and may dismiss, sua sponte, any complaint which, upon its face, is (I) frivolous, (2) lacking in good faith, (3) based upon a litigant’s disagreement with the ruling of a judge, or (4) is properly a matter subject to appellate review.”); RULES OF THE KY. JUDICIAL RETIREMENT AND REMOVAL COMM’N R. 4.020(2) (“Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.”); MASS. STATUTES, Ch. 21 IC§ 2(4) (“In the absence of fraud, corrupt motive, bad faith, or clear indication that the judge’s conduct violates the code of judicial conduct, 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. Commission proceedings shall not be a substitute for an appeal.”); RULES OF THE MINN. 8D. ON JUDICIAL STANDARDS R. 4C (“In the absence of fraud, corrupt motive or bad faith, the board shall not take action against a judge for making findings of fact, reaching a legal conclusion or applying the law as understood by the judge. Claims of error shall be left to the appellate process.”); RULES OF THE MISS. COMM’N ON JUDICIAL PERFORMANCE R. 2 (“In the absence of fraud, corrupt motive, or bad faith, the Commission shall not consider allegations against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he understands it.”); RULES OF THE NEV. COMM’N ON JUDICIAL DISCIPLINER. 9 (“In the absence of fraud or bad faith occurring  in the commission of  an act  constituting  a ground for discipline set forth in Rule 11, the commission must take no action against a judge for making

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CONCLUSION

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.

findings of fact, reaching a legal conclusion, expressing views of law or policy in a judicial opinion, or otherwise declaring or applying the law in the course of official duties. The commission has no jurisdiction to review or to base charges upon differences of opinion between judges as to matters of law or policy, or as to other issues committed to judicial or administrative discretion.  Claims  of error must be left to the appellate process.”); RULES OF THE N.H. SUP. CT. R. 39(9) (The Committee on Judicial Conduct “shall not consider complaints against a judge or master or referee related to his rulings. Such matters should be left to the appellate process.”).

Summary

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.

Introduction

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.

1 See 154 Cong. Rec. H5727-05 (June 19, 2008), 2008 WL 2467232 (Cong.Rec.) (“7225. A letter from the Secretary, Judicial Conference of the United States, transmitting Judicial Conference determination that United States Judge G. Thomas Porteous, Jr., of the Eastern District of Louisiana, has engaged in conduct for which consideration of impeachment may be warranted, pursuant to 28 U.S.C. 355(b)(1); to the Committee on the Judiciary.”) The Order and Public Reprimand issued by the Judicial Council for the Fifth Circuit concerning Judge G. Thomas Porteous on September 10, 2008, may be found at http://www.ca5.uscourts.gov/news/news/ GTP%20ORDER%20AND%20PUBLIC%20REPRIMAND.pdf. The certificate with respect to Judge Porteous from the Judicial Conference of the United States to the Speaker of the House may be found at http://www.ca5.uscourts.gov/ news/news/PorteousOrder/CERTIFICATE%20TO%20THE%20SPEAKER.PDF.

2 See H.Res. 1448 (110th Cong.).

3 H.Res. 15 (111th Cong.).

4 H.Res. 1031, 111th Cong. (as passed by the House); 156 CONG. REC. H1335-37 (daily ed. Mar. 11, 2010).

5 156 CONG. REC. S8609-611 (daily ed. Dec. 8, 2010).

6 Judge Kent pleaded guilty to obstruction of justice on February 23, 2009. Transcript of Plea Hearing, United States v. Kent, No. H-08-CR-596 (U.S. District Court, S.D. Tex., Houston Div. Feb 23, 2009), at 17-18, cited at H.Rept. 111- 159 at 10 (June 17, 2009). He was sentenced to 33 months in prison followed by three years of supervised release, a  $1,000 fine, and $6,550 in restitution. United States v. Kent, No. 4:08cr596-001/RV, at 2, 6 (S.D. Tex. May 11, 2009) (Judgment in a Criminal Case). See H.Rept. 111-159, at 13. Following his conviction, the Judicial Council of the U.S. Court of Appeals for the Fifth Circuit, on May 27, 2009, recommended impeachment pursuant to 28 U.S.C. 354(b)(2)(A). The Judicial Council’s recommendation may be accessed at http://www.ca5.uscourts.gov/news/news/ SBK%20Certification.pdf. See also, H.Rept. 111-159, at 32-33. The matter was referred to the Judicial Conference of the United States. In a letter to the Speaker of the House of Representatives dated June 9, 2009, the Judicial Conference transmitted the certification of its determination that impeachment might be warranted. See 154 Cong. Rec. H6536-04 (June 10, 2009), 2009 WL 1617545 (Cong.Rec.) (“2103. A letter from the Secretary, Judicial Conference of the United States, transmitting a Judicial Conference determination that United States Judge Samuel B. Kent of the Southern District of Texas, has engaged in conduct for which consideration of impeachment may be warranted, pursuant to 28 U.S.C. 355(b)(1)-(2); to the Committee on the Judiciary.”) See also, H.Rept. 111-159, at 29-31.

7 H.Res. 424 (111th Cong.), authorizing and directing the House Committee on the Judiciary to inquire whether the House should impeach Judge Kent, was introduced on May 12, 2009, and agreed to without objection the same day. H.Res. 520 (111th Cong.), a resolution impeaching Judge Kent and setting forth four articles of impeachment, was introduced June 9, 2009. H.Rept. 111-159, accompanying H.Res. 520, noted the referral to the House from the Judicial Conference, quoted the basis of the Judicial Conference’s determination that consideration of impeachment may be warranted, id. at 21-22, and included a copy of the transmittal letter from the Judicial Conference to the Speaker of the (continued…)

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

(…continued)

House and the certificate of the Judicial Conference setting forth its determination. Id. at 29-31. The recommendation of the Judicial Council for the Fifth Circuit is included as an attachment to the certification. Id. at 32-33. The House agreed to H.Res. 520 (111th Cong.) on June 19, 2009, voting separately on each of the four articles of impeachment (Roll No. 415, Roll No. 416, Roll No. 417, and Roll No. 418).

8 Each circuit has a judicial council, which consists of the chief judge of the circuit and an equal number of circuit judges and district judges of the circuit. 28 U.S.C. § 332(1)(a). Judicial councils are charged with making “necessary and appropriate orders for the effective and expeditious administration of justice” within their circuits. Id. at

  • 332(d)(1). Among their responsibilities is the formulation of circuit policy, the implementation of policy directives received from the United States Judicial Conference, and the annual submission of a report to the Administrative Office of the United States Courts on the number and nature of orders entered during the year that relate to judicial misconduct. See id. at § 332(g).

9 Action by the judicial council of a circuit is addressed in particular in 28 U.S.C. § 354.

10 28 U.S.C. § 351(a). The websites of each of the judicial circuits provide access to the complaint form that must be used in filing a complaint and copies of the RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS adopted by the Judicial Council of the United States on March 11, 2008. Links to these websites may be found at http://www.uscourts.gov/library/judicialmisconduct/index.html. Links to Opinions of the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States may also be found on this website.

11 28 U.S.C. § 351(b).

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

12 Id. at § 351(c). For purposes of this discussion, the term “chief judge” will apply to the chief judge, or in the case of a complaint against the chief judge, to the circuit judge handling the complaint against the chief judge.

13 28 U.S.C. § 352.

14 See supra note 8 (describing the composition and responsiblities of judicial councils).

15 28 U.S.C. § 352(c).

16 Id. at § 352(d). The rules governing the conduct of judicial discipline proceedings by each judicial council or by the Judicial Conference of the United States, including a referral of a chief judge’s order for review by a panel of a judicial council, are prescribed by that judicial council or by the Judicial Conference, respectively, under 28 U.S.C. § 358.

17 28 U.S.C. § 356(a), relying upon subpoena powers under 28 U.S.C. § 332(d).

18 Id. at § 353.

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

19 Id. at §§ 354(a)(1)(A) and 354(a)(1)(B). If the complaint has been finally dismissed under 28 U.S.C. § 354(a)(1)(B), then, under 28 U.S.C. § 361, upon the request of the judge who is the subject of the complaint, the judicial council may recommend to the Director of the Administrative Office of the U.S. Courts that he award reimbursement for those reasonable expenses, including attorneys’ fees, incurred by the judge during the investigation which would not have been incurred but for the requirements of the judicial discipline process. The reimbursement would be drawn from funds appropriated to the Federal judiciary.

20 28 U.S.C. §§ 354(a)(1)(C) and 354(a)(2).

21 Id. at § 356(a), citing subpoena powers under 28 U.S.C. § 332(d).

22 28 U.S.C. § 354(a)(2)(B).

23 Id. at § 354(a)(3). Cf., U.S. Const., Art. III, Sec. 1 (life tenure during good behavior.)

24 28 U.S.C. § 354(a)(2)(C).

25 Id. at § 354(a)(3)(B).

26 Id. at § 354(a)(4).

27 See, e.g., In re: Samuel B. Kent, United States District Judge, Southern District of Texas, Docket No. 07-05-351- 0086 (Judicial Council of the Fifth Circuit May 27, 2009), the certification, under 28 U.S.C. § 354(b)(2)(A), by the Judicial Council for the Fifth Circuit to the Judicial Conference of the United States that Judge Samuel B. Kent, of the (continued…)

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

(…continued)

U.S. District Court for the Southern District of Texas, had engaged in conduct which constituted one or more grounds  for impeachment under Article II of the Constitution. This certification may be found at http://www.ca5.uscourts.gov/ news/news/SBK%20Certification.pdf. See also, In re: Complaint of Judicial Misconduct against United States District Judge G. Thomas Porteous, Jr. under the Judicial Conduct and Disability Act of 1980, Docket No. 07-05-351-0085, at 4-5 (Judicial Council of the Fifth Circuit December 20, 2007) (Memorandum and Order), certifying to the Judicial Conference of the United States, pursuant to 28 U.S.C. § 354(b)(2)(A), “its determination that United States District Judge G. Thomas Porteous, Jr. has engaged in conduct … which might constitute one or more grounds for impeachment under Article II of the Constitution.” This certification may be found at http://www.ca5.uscourts.gov/news/news/ PorteousOrder/MEMORANDUM%20ORDER%20AND%20CERTIFICATION.PDF.

28 28 U.S.C. § 354(b).

29 Id. at § 357.

30 Id. at § 355(a), cross-referencing 28 U.S.C. §§ 354(a)(1)(C) and 354(a)(2).

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

31 28 U.S.C. § 355(b)(1). See, e.g., the certificate from the Judicial Conference to the Speaker of the U.S. House of Representatives regarding Judge Kent, which may be found at H.Rept. 111-159, 29-33; the certificate from the Judicial Conference to the Speaker of the U.S. House of Representatives regarding Judge Porteous, which may be found at http://www.ca5.uscourts.gov/news/news/PorteousOrder/CERTIFICATE%20TO%20THE%20SPEAKER.PDF.

32 28 U.S.C. § 355(b)(2).

33  Id. at § 364.

34  Id. at § 359.

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

Statistical Information

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.

36 Statistics about complaints filed against federal judges under this statutory framework and the disciplinary action taken can be found under the heading “Judicial Business of the United States Courts” in Tables 10 and S-22 of the Annual Report of the Director of the Administrative Office of the United States Courts. See, e.g., Administrative Office of the United States Court, 2010 Annual Report of the Director of the Administrative Office of the United States Courts (2010), available at http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/AdministrativeOffice/ DirectorAnnualReport/AnnualReport_2010.aspx. In FY2008, there were changes in the reporting requirements with respect to complaints against judges, resulting in two separate sets of statistical tables. 2008 Annual Report of the Director of the Administrative Office of the United States Courts at 35; see also, id., Tables 10, 11, S-22A, and S- 22B.The complaints from October 1, 2007, through May 10, 2008, covered in table S-22A concerned 112 Circuit Judges, 344 District Judges, 24 Bankruptcy Judges, and 105 Magistrate Judges. The complaints from May 11, 2008, through September 30, 2008, covered in table S-22B concerned 165 Circuit Judges, 382 District Judges, 2 Court of Federal Claims Judges, 16 Bankruptcy Judges, and 107 Magistrate Judges.

37 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, DIRECTOR’S ANNUAL REPORT 2010 38,

http://www.uscourts.gov/judbususc/judbus.html.

38 Id.

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.

39 Id. at 76.

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.

 

Conclusion

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.

40 See id. at 10.

41 See id.

42 Administrative Office of the United States Courts, supra note 37, at 38.

Author Contact Information

Emily C. Barbour Legislative Attorney

ebarbour@crs.loc.gov, 7-5842

Acknowledgments

Portions of this report were written by Elizabeth B. Bazan.

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.

Impeachments of Federal Judges

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.

 

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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