Appellate Judges

Judicial Misconduct Complaint Disposals with an Error Rate of 30 Percent is Too High Said the Breyer Report

An error rate of close to 30 percent is far too high. Those kinds of cases, the Breyer Report said, are important because of publicity surrounding them, perhaps leading the public to form a view of the judiciary’s handling of all cases upon the basis of these few.

LIT COMMENTARY

The Breyer Committee Report Study and findings were released in 2006, fourteen years ago. Today, the error rate is going to be much, much higher. That’s why a ‘second’ Breyer Report won’t happen, but it’s needed for justice to be served in federal courts nationwide.

“Breyer Committee” report is out

Sept 19, 2006

After a two-year study, a federal courts committee headed by Supreme Court Justice Stephen G. Breyer reported on Tuesday that the lower federal courts have acted properly in dealing with most complaints about misconduct, ethical lapses or disabilities among U.S. District or Court of Appeals judges, but that the record was not as positive in “high-visibility cases.”

Named in May 2004 by the late Chief Justice William H. Rehnquist and supported by new Chief Justice John G. Roberts, Jr., the Judicial Conduct and Disability Act Study Committee explored the implementation of a 1980 federal law designed to deal with complaints that fall short of impeachable offenses — misconduct or failure to recuse from cases in which the judge had an alleged interest or conflict — and with problems over judges’ disability.

The final report, available on the Supreme Court’s web site as the first entry after clicking on “Public Information,” does not deal with any complaints about Supreme Court Justices. Discussing the report with media reporters, Justice Breyer said that “the Supreme Court was outside our scope; we kept pretty much to that scope.”

For lower court judges, the report concludes that “the chief circuit judges and judicial councils have properly implemented the Act in respect to the vast majority of the complaints filed.” But, in a second major conclusion, it found that in “high-visibility cases,” totaling 17 over a five-year period, the handling of five was “problematic.” It said it considered that “the mishandling of five such cases out of 17 — an error rate of close to 30 percent — far too high.: Those kinds of cases, it said, are important because of publicity surrounding them, perhaps leading the public “to form a view of the judiciary’s handling of all cases upon the basis of these few.” Moreover, it said, the mishandling of those cases might discourage others from complaining.

Chief Justice Roberts, joining Breyer in a discussion with media reporters, said he was “impressed with the thoroughness and the comprehensiveness” of the report. He said he had asked the U.S. Judicial Conference to have its committees take up the report’s recommendations (there were no suggestions for new legislation).

Justice Breyer told reporters that in judging how well lower courts had dealt with complaints, his committee had used “very tough but not impossible standards.” In finding a 2 percent error rate in the overall handling of complaints reviewed by the committee, Breyer said many were simple errors of not “dotting every i or crossing every t….Our conclusion of a 2 percent error rate does not suggest a serious problem.” The conclusion of the committee, he said, did not suggest that the entire system for handling complaints was riddled with problems.

Breyer was asked about the report’s omission of the identities of any of the judges in the 17 high visibility cases the panel considered He said that the underlying law requires anonymity, and noted that the names of judges were redacted in all of the files that the committee studied.

In looking at the 17 high visibility cases, Breyer added, it was “important to reduce” the error rate of nearly 30 percent. The panel’s recommendations seek to do so, he said, and noted as an example a suggestion that chief judges may wish to transfer some complaints to other circuits for initial investigation — presumably, to avoid sensitive problems in investigating a court’s own members.

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