Appellate Judges

The Fifth Circuit’s Dismissal of the Burkes 2019 Judicial Complaint Has Now Been Proven to Be Error, in Law

LIT COMMENTARY

The in-house judicial review of complaints against judges in Texas is a secretive and frustrating process for complainants. LIT decided to go deep into this swamp, the judicial complaints process in Federal law, and what they uncovered is shocking. Similar to recusal of Judges, they get to decide their own guilt or innocence. It’s quite an absurd setup. Auditors would be astounded – maybe its why lawyers are not accountants – and as such there is no independent checks and balances on misconduct within the judicial branch.

For those who are unfamiliar, if you have a complaint against a judge in a federal district court or a bankruptcy judge or a magistrate judge (often referred to as the lower court), your complaint goes to the appeals court for review by the Chief Judge (5th Circuit). If you manage to get past the Chief Judge review (and the majority do not), it is referred to a Special Committee for review. The Fifth Circuit disclose on their website the current Judicial Council Members.

If you have a complaint about a judge who sits on the federal appeals court, and in Texas, our federal appeals court is in Louisiana, called the Court of Appeals for the Fifth Circuit, it also goes to the Chief Judge of the 5th Circuit for review. So yes, your complaint ends up in the hands of effectively a “colleague” of the judge or judges you are complaining about. In law, apparently that’s quite alright. We disagree.

The Formal Legal Terminology

The Judicial Conduct and Disability Act (1980) 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 Act also permits any person to allege conduct reflecting a judge’s inability to perform his or her duties because of “mental or physical disability.”

In 1980, Congress, in the Judicial Conduct and Disability Act, sought to create a discipline system that would prove effective while taking proper account of these competing risks. The Act creates a complex system that, in essence, requires the chief judge of a circuit to consider each complaint and, where appropriate, to appoint a special committee of judges to investigate further and to recommend that the circuit judicial council assess discipline where warranted.

In a word, the Act relies upon internal judicial branch investigation of other judges, but it simultaneously insists upon consideration by the chief circuit judge and members of the circuit judicial council, using careful procedures and applying strict statutory standards.

Due to public concerns about the Act, in particular the in-house control and self-regulation  – which was open to abuse – and because there hadn’t been any real review since implementation in 1980, in September 2006, The Judicial Conduct and Disability Act Study Committee issued a Report to the Chief Justice of the US Supreme Court. The chair of this committee was Justice Stephen Breyer. We refer to this report as “the Breyer Report” herein.

The Case Study Below. The Burkes 2019 Complaint Against 3 Fifth Circuit Judges

Below we start with the dismissal of the Burkes 2019 complaint against the 3 judges on the 5th circuit “non-random” selected panel for the 2018 decision in Deutsche Bank v Burke (18-20026) by then Chief Judge Carl Stewart (replaced by Priscilla Owen). It should be noted while reading this dismissal, the letter itself completely obliterates the Burkes complaint into an unrecognizable summary form, which fails to address many of the allegations asserted in the complaint itself.

This article is more analysis than a story. Why? Because the law relies on facts and truth rather than preamble and storytelling. With that in mind, there’s a color coded-analysis below. As stated, we’ve started with the letter of dismissal by the Fifth Circuit Chief Judge and then we move to the Burkes’ complaint. It is broken up with 2 color coded sections. The red section is what we refer to as the “Breyer report”. And the tan section, like this one, is LIT’s analysis and comments about the relevant section, which is reviewed in conjunction with the Breyer Report and case studies they analysed which align with the Burkes complaint (and as such should not have warranted dismissal by Chief Judge Stewart).

THE TROUBLING CONCLUSION

The U.S. Supreme Court issued a per curiam order March 23, 2020, instructing the U.S. Court of Appeals for the Fifth Circuit to conduct a “plain error” review of a prisoner’s argument that his sentence was improper. According to Bloomberg Law’s review, there’s at least 134 more opinions from the 5th Circuit that cite their unlawful ‘precedent’.

Here, the same problem persists. Complaints before the 5th Circuit are being dismissed erroneously in law.

On top of that, the judges assignment process for appeal cases at the Fifth Circuit is not random. It’s judges hand-picking cases for personal gain – and that is not allowed. Yet it’s happening all too often, based on this one complaint and supporting evidence.

In summary; In-house reviews of any sort are open to abuse by those who control it. External audit or oversight is essential to detect fraud at an early stage and implement controls to stop fraud from occurring. That is always a high risk problem, any auditor will tell you that e.g. Enron, Stanford etc. Here, the courts are excusing their dependence on in-house reviews to protect judges ‘independence’. However, that view must change based on the evidence presented herein. The Court of Appeals for the Fifth Circuit is repeatedly violating the procedural requirements as demanded by the Judicial Conduct and Disability Act (1980).

That’s not justice, that is lawlessness.

MEMORANDUM

Complainants, two civil litigants, have filed a judicial misconduct complaint against the three subject United States Circuit Judges.

Complainants were defendants in a mortgage foreclosure lawsuit filed by Bank X. The parties consented to proceed before a magistrate judge who ruled in the complainants’ favor. The bank filed an appeal, in which a three-judge panel (including one of the subject judges) held that the magistrate judge erred in finding that Bank X did not possess the right to foreclose under complainants’ deed of trust, vacated the final declaratory judgment, and remanded for further proceedings. On remand, the magistrate judge concluded that the panel’s decision was clearly erroneous and that failure to correct the error would result in manifest injustice. He again ruled in complainants’ favor. Bank X filed an appeal.

The three subject judges reversed the magistrate judge’s decision and rendered judgment in favor of Bank X. In the opinion, the judges discussed at length the magistrate judge’s decision to disregard the prior panel’s opinion.

Allegations

Complainants allege that the judges’ opinion was not only erroneous, but also demonstrated bias against homeowners in mortgage foreclosure cases, in general, and against them, in particular. They submit that the judges’ characterization of their conduct as homeowners who continued to live in their home for nearly a decade without paying the mortgage as living without cost was gratuitous, biased, and erroneous because, following the court’s adverse ruling, they were responsible for “the principal sum plus all interest and other fees.”

Complainants assert further that the judges’ “anger and bitterness” regarding the magistrate judge’s conduct upon remand guaranteed that “no other outcome was ever going to be considered in our case.” They also surmise that “where tribunal and verdict is done electronically” without affording the parties a hearing,”… there is little chance a homeowner is going to know if a judge is [engaging in misconduct].”

In addition, complainants contend that the judges’ bias against them “continues … post-opinion” because in addressing the issue of judicial discretion on remand in their opinion in a criminal appeal, the judges cited complainants’ appeal “in a petty statement of unity against [us].”

Complainants also report that in an “audit” of mortgage foreclosure appeals in a 12-month period, they found eleven matters “involv[ing] [Bank X].” They state that the subject judges served as a panel in three matters (“almost a third”) and ruled in Bank X’s favor in each instance. They submit that those rulings constitute additional “damning evidence” of the judges’ bias against homeowners.

To the extent that these allegations relate directly to the merits of the judges’ rulings, they are subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(ii). To the extent, if any, that complainants are implying that the judges interfered with the clerk’s random assignment of appeals in mortgage foreclosure cases involving Bank X, such a conclusory assertion is insufficient to support a finding of judicial misconduct and is subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii).

A-9                    Failure to inquire about a claim of improper appellate panel manipulation

Facts and complaint—A prisoner litigant complained that three circuit judges who ruled against him “had themselves assigned out of rotation to falsify information” in his habeas appeal.

Chief judge order—The chief judge summarily dismissed this allegation: “[T]he complaint is meritless to the extent that it asserts that the subject judges ‘had themselves assigned out of rotation’ There are well-established case processing arrangements at the Court of Appeals to ensure against judges picking their cases.”

Assessment—The dismissal is inconsistent with our Standard 4…

The file in complainant’s case or the court staff responsible for assigning judges to panels would almost certainly verify what the chief judge assumed to be true—that no exception had been made in complainant’s case—but the chief judge undertook or ordered no inquiry to confirm the assumption. The same chief judge undertook such an inquiry in two other matters in the 593-complaint sample that raised similar allegations about district judges. His dismissal order in one of those matters said that “the record reflects that complainant’s cases were assigned according to the district court’s normal procedures.”

p.52, 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)

LIT COMMENTARY

Interestingly, Chief Judge Stewarts’ response to the Burkes does not reference the internal procedures as with the case cited above:-

“[T]he complaint is meritless to the extent that it asserts that the subject judges ‘had themselves assigned out of rotation’ There are well-established case processing arrangements at the Court of Appeals to ensure against judges picking their cases.

No, Stewart’s wording is very suspicious as he words the answer as “conclusory” and not relying upon the well-established case processing arrangements. In other words, he doesn’t deny the Burkes allegations as they were clearly true:-

“To the extent, if any, that complainants are implying that the judges interfered with the clerk’s random assignment of appeals in mortgage foreclosure cases involving Bank X, such a conclusory assertion is insufficient to support a finding of judicial misconduct and is subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii).”

Notes;

FED. R. APP. P. WITH 5TH CIR. R. & IOPs

47.9 Rules for the Conduct of Proceedings Under the Judicial Conduct and Disability
Act, 28 U.S.C. §§ 351 et seq.

See separately published Judicial Council of the Fifth Circuit Rules Governing Complaints of Judicial Misconduct or Disability effective April 15, 1993 as amended through May 4, 2008.

See also image below re Judicial Council.

 

ALARMING POST DECISION FINDINGS

In relation to the appointment of Judge Catharina Haynes onto the Deutsche II 2018 panel after she sat on the first panel in 2015 (Deutsche I) – was vehemently contested by the Burkes. As shown herein, their complaint was dismissed.

However, in December 2019, the Burkes have found out that Haynes also injected herself into another highly contentious case at that time which was also subject to appeal from the same magistrate judge and appointed senior us district judge in the Burkes case, namely, former judge Stephen Wm. Smith and current senior judge David Hittner. For the record, the Burkes were unaware of this related case when they filed their complaint in January 2019. That stated, it is now very clear, that the reason Haynes wanted onto the Burkes case and the related Oil and Gas case for purely personal reasons;

(i) Judge Catharina Haynes wanted to admonish Magistrate Judge Stephen Wm Smith / Snr Judge David Hittner for rejecting her panel’s decision in 2015 in the Deutsche v Burke case #15-20201 (“Deutsche I“)

(ii) Judge Catharina Haynes is a former Thompson & Knight lawyer (and met her husband at this firm). Her husband, Craig Haynes, is currently a partner at this firm where Petrobras is a very important client, indeed so much so they regularly hire(d) key executives from Petrobras. In a related case, which happened to be on appeal at the same time as Deutsche II #18-20026 (2018). Whilst the case for Petrobras was represented by another Texas law firm, any negative result in that case would impact the revenues of a valued Thompson & Knight client. That could not happen. Rather than stay out of the 2018 appeal in that case, Haynes injected herself into the case to ensure the appeal would result in a victory for Petrobras and that would benefit herself and her husband and his firm.

Note: This Petrobras case was managed at the lower court by Magistrate Judge Stephen Wm. Smith / Snr Judge David Hittner. The 2018 appeal was by Petrobras, as these judges had ruled against Petrobras and Haynes was having ‘none of that’. Not surprisingly, the 2019 decision of the panel, which now comprised of Judge Catharina Haynes, Graves (frequently a sidekick of Haynes and who was on Deutsche II panel) and Ho, reversed in favor of….PETROBRAS.

This is corruption. It shows judges are using their power to steal decisions for family, friends and business associates. Furthermore, the judges on the court, the colleagues, are allowing it to happen, including then Chief Justice Carl Stewart.

This contradicts the Breyer Report and Standard 2

The same standard applies to allegations concerning a judge’s failure to recuse. A mere allegation that a judge should have recused is indeed merits related; the proper recourse is for a party to file a motion to recuse. Here, we have Haynes injecting herself into the Burkes case again in 2018 (after sitting in the Deutsche I appeal in 2015) and the Petrobras appeal in 2018.

The very different allegation that the judge failed to recuse for illicit reasons—i.e., not that the judge erred in not recusing, but that the judge knew he should recuse but deliberately failed to do so for illicit purposes—is not merits related.

LIT has a detailed article about this which you should read to bring yourself up-to-speed as it were.

STEWART, CARL E.

Chief Judge Cart Stewart of the Court of Appeals for the Fifth Circuit says he decided to become a lawyer because he saw that lawyers “made a difference in the community, both in effecting social change and improving life in the community.” – ABA Journal

In other respects, the assertions of bias appear entirely derivative of the merits-related charges, but to the extent that the allegations are separate, they are wholly unsupported, and are therefore subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii).

Dismissals based on a direct relationship to the merits of a decision or procedural ruling

The merits-relatedness ground for dismissal seeks to insulate judges from sanctions for their decisions and thus protect independent decision making. The Act tells chief judges to dismiss complaints that are “directly related to the merits of a decision or procedural ruling” (section 352(b)(1)(A)(ii)). Illustrative Rule 1(b) says that conduct covered by the Act “does not include making wrong decisions—even very wrong decisions—in cases.”

Our Standard 2 says “[t]he . . . complaint procedure cannot be a means for collateral attack on the substance of a judge’s rulings. The interest protected is the independence of the judge in . . . deciding . . . cases or controversies.”

But it adds: “an allegation . . . that the judge ruled against the complainant because the complainant was Asian, or because the judge doesn’t like the complainant personally, is not merits-related. What the allegation attacks is the propriety of arriving at rulings with an illicit or improper motive [and] thus goes beyond a mere attack on the correctness of the ruling itself.”

An often-misunderstood aspect of merits-relatedness involves the availability of a judicial remedy for the conduct complained of.

Under our Standard 2, as a general matter,“whether or not an allegation is merits-related has nothing to do with whether or not the complainant has an adequate appellate remedy.”

The“merits-related ground for dismissal exists to protect judges’ independence in making rulings, not to protect or promote the appellate process.

[A]n allegation that is otherwise cognizable under the Act should not be dismissed merely because an appellate remedy appears to exist ”

p.52, 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)

Inadequate limited inquiries

Section 352(a) authorizes the chief judge to “conduct a limited inquiry” to determine whether appropriate corrective action has been or could be taken or whether the facts in the complaint are either “plainly untrue” or incapable of being established through investigation. A chief judge who encounters matters “reasonably in dispute” should not make findings of fact but rather appoint a special investigative committee to do so. Section 352(a) authorizes the chief judge or staff to communicate orally with the subject judge, complainant, or witnesses and examine relevant documents in the case, and authorizes the chief judge to seek a written response from the judge.

Whether there was an adequate inquiry usually involved complaints dismissed as “frivolous.” In evaluating the dismissal of a complaint as frivolous, i.e., as lacking in supporting factual substantiation, the central question is: Does the complaint allege enough to call for a limited inquiry rather than a simple dismissal as frivolous?

Most of the dismissals we discuss below ARE, like the allegation of a manipulated appellate panel assignment above, problematic…

not because a limited inquiry would have suggested facts sufficient to merit appointment of a special committee. They are problematic rather in light of Illustrative Rule 4’s commentary’s assumption that the chief judge will contact a third party if the “complainant alleges an impropriety and asserts that he knows of it because it was observed and reported to him by a person who is identified.” Doing so helps identify the small number of complaints that may merit further investigation, and, even for the much larger number of complaints that turn out to be meritless, it helps make clear that the judicial branch takes complaints seriously.

Thus

our Standard 4 says that there should be a limited inquiry if a “complaint

. . . that is not inherently incredible and is not subject to dismissal on other grounds . . . assert[s] that the complaint’s allegation is supported by the transcript or by a named witness” or “sets forth allegations that are capable of being verified by looking at identifiable transcripts or questioning identifiable witnesses”; and

our Standard 5 deals with a limited inquiry that goes no further than questioning the subject The Act permits dismissal “[w]hen a limited inquiry . . . demonstrates that the allegations in the complaint lack any factual foundation or are conclusively refuted by objective evidence” (section 352(b)(1)(B)). Standard 5 says that “an allegation is not ‘conclusively refuted by objective evidence’ simply because the judge complained against denies it.”

p.45-46, 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)

LIT COMMENTARY

Here, the Chief Justice states that “bias” claims by the Burkes are “merit-related” and as such can be dismissed. This is error.

In the first case study from the Breyer Report above, it discussed personal dislike by a Judge is actionable;

But it adds: “an allegation . . . that the judge ruled against the complainant…because the judge doesn’t like the complainant personally, is not merits-related. 

You cannot then ignore, as Stewart did, the Burkes complaint against the ‘per curiam’ panel, where they stated in the 2018 unpublished to then published opinion 5 short days later;

“Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”

Secondly, the generalization by Stewart in not addressing  the documented allegations of  bias (by approving a special investigation), and combined with his off-the-cuff dismissal of the Burkes complaint without investigation is clearly error, in law as shown throughout this article.

The Burkes’ Original Complaint against 3 Fifth Circuit Judges (Jan. 2019)

COMPLAINT

When the Supreme Court of Texas and the Texas Court of Criminal Appeals adopted the Lawyers’ Creed in 1989, it was an expression of hope that the mood of antagonism prevailing during that decade could be replaced by civil litigation that lived up to its name. Underscoring a general decline in civility in litigation, a 1996 study reported that public respect had eroded dramatically for the legal profession, prompting Justice Nathan Hecht to state that the problem of incivility was so large that “any deep seated change will take at least half a generation.”1 Justice Hecht may have been too optimistic.

“Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”

The final sentence in the Burkes’ case, by the 3-panel at this Court of Appeals added no value to the Burkes’ case opinion and has no place in the court of law. It is also in error. The court is stating that when it forecloses, homeowners walk away for the amount of the alleged debt, yet the amount awarded historically includes the principal sum plus all interest and other fees. That completely contradicts “free living”.2

1 John Marks, “The American Unavil Wars: How Crude, Rude and Obnoxious Behavior Has Replaced Good Manners and Why That Hurts Our Politics and Culture”, U. S. News & World Report, 22 April 1996, 66-72

2 In 2006, Michael Maldonado borrowed $292,000 under a Home Equity Note to finance the purchase of a home in Houston, Texas… The final judgment reflects that the outstanding balance on the loan is $533,960.80. That sum consists of the outstanding principal, accrued and unpaid interest, escrow advances, and late charges and fees. See Maldonado v. CitiMortgage, No. 16- 20541 (Jan. 23, 2017, unpublished).

It shows Bias as well as breaches of Judges Ethical Canons.3

 In Potashnick v. Port City Construction Co.,  609  F.  2d  1101,  (5th  Circuit, 1980) this Court opined “a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.” (id. p. 1111).

3 See Texas Code of Judicial Conduct –Burkes understand that alone does not warrant reversal, but it is relevant when you have a Panel that blatantly ignores the Code of Conduct. http://www.txcourts.gov/media/514728/TXCodeOfJudicialConduct_20020822.pdf

Opinion: This is 2019, a Time Where Data is Accurate and Relevant

On review of the Rules relative to Judicial Complaints, there is a very narrow window for a Complainant to gain relief from an appellate court, like the Fifth Circuit. The Law has made up Codes of Conduct that are merely words, they hold no substance and ignored by those who are supposed to adhere to the Creeds and Codes. Judges and Courts are not held accountable for their actions, unless, for example, they slept with a parties lawyer4 or other verifiable sexual misconduct.5 As a “remote” case where tribunal and verdict is done electronically, there is little chance a homeowner is going to know if a Judge is taking a bribe or sleeping with opposing counsel.

It would be a more modern and transparent approach, if Courts were to review the public data and ask themselves:

“Can we honestly conclude we were legally, ethically and morally truthful in our distribution of a fair and impartial hearing for all parties?”

For example, Judge Higginbothams’ “no free houses” oral statements in Reinagel v Deutsche Bank, which Graves sat on and agreed with the Opinion, rendering foreclosure in favor of the Bank.

Or the Priscilla Owen question in Diaz v Deutsche Bank, where she stated she’d seen at least 50 complaints by homeowners who had mortgage payments returned without explanation, yet Deutsche Bank prevailed in this case she reviewed.

Below, the Burkes’ have provided, once again, the data previously supplied, showing this panels damning evidence of bias.

4 See Judge John Payton Jr, Dallas ; https://www.dmagazine.com/publications/d- magazine/2017/april/100-million-affair-dallas-county-courtroom-judge-john-peyton-jr-tina- peyton-divorce/

5 See Judge Samuel B. Kent – https://en.wikipedia.org/wiki/Samuel_B._Kent

DAVIS, W. EUGENE

GRAVES, JAMES E. (JR)

HAYNES, CATHARINA

The Panel; Davis, Graves and Haynes

During the Burkes’ two visits to the Fifth Circuit, they noted some oddities, and in particular, bias against homeowners. The Burkes conducted an audit of 12 months mortgage foreclosure cases heard in the Fifth between Nov. 2017 and Oct. 2018. In summary, there were 42 mortgage/foreclosure cases during this time. 11 of them (26%) involved Deutsche Bank.

Per the Burkes’ 12-month audit, (Nov. 2017 – Oct. 2018) this same 3-member panel sat on the following foreclosure related cases; (i) Deutsche Bank National Trust Co -v- Burke (18-20026), (ii) Blank -v- Deutsche Bank National Trust Co, (#18-10054), and (iii) Cervantes -v- Ocwen Loan Servicing, LLC, (#16- 41569)(frivolous), all in favor of the Banks/Servicers. That’s almost a third of the Deutsche/Ocwen Cases heard by the same 3 member panel.

See attached Exhibits; A, B and C relating to the specific arguments against Davis, Graves and Haynes.

Summary

“A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part.” (Williams v Pennsylvania)

The anger and bitterness that was opined in this Courts’ final opinion shows this panel was very upset with the lower court Judge. No other outcome was ever going to be considered in the Burkes’ case.6

The post-opinion bias continues, the actions by this Panel have not gone unnoticed by the Burkes. They cited this published case in criminal proceedings, USA -v- Pittman, (18-10203) Opinion dated 11th December, 2018 – a petty statement of unity against this original complaint, resubmitted herein as requested.

The complaint threshold herein has been met as the Burkes’ have presented evidence that prejudice or impartiality emanates from data and on the record, conversations from the courts own records and actions that show bias to the Burkes in this case.

Prayer

Overall, the Panel was Bias. The ruling should not be allowed to stand. Respectfully, this complaint can be corrected by recalling the mandate, reversing the erroneous appellate court decision and finding in favor of the Burkes’, as the lower court did, not once, but twice, in accordance with the correct laws of the land and for justice to be served.

6 See Norton v. State, 755 SW2d 522 (Tex.  App.  –  Houston  [1st Dist.] 1988, p.d.r. refused, 771 SW2d 560) “ . . . and if the jury gives her probation, I’ll give her jail time.”

DAVIS, W. EUGENE

EXHIBIT A

Judge W. Eugene Davis

Per financial disclosures, Davis holds and/or has previously owned shares in Deutsche Bank. A panel Judge in the appeal, where Deutsche Bank is a party.

A conflict of interest.7

7 A judge who is a stockholder in a corporation is  disqualified  from  hearing  a  case  in which that corporation is a  party –Pahl v. Whitt, 304 SW2d 250 (Tex. App. – El Paso 1957, no writ history)

We  are aware of news reports alleging various ethical improprieties, such as judges’ failures to report reimbursement for attending privately sponsored seminars and judges’ failures to recuse in cases where they own stock. These issues are important ones. They may well merit inquiry.

And we recognize that the Judicial Conference of the United States has asked other committees to make recommendations about these matters.

They do not fall within the mandate of this Committee.

Complaints, though, are nevertheless filed under the Act alleging that judges failed to recuse themselves when their financial holdings created conflicts of interest. Thus, after we present our recommendations, we endorse consideration of requiring judges to use conflict-avoidance software to reduce the number of recusal complaints filed under the Act.

p.2, 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)

LIT COMMENTARY

Stewart ignored the complaint against Davis. It is not addressed in his response dismissing the complaint.

HAYNES, CATHARINA

EXHIBIT B

 

Judge Catharina Haynes

Haynes was on our panel in both the 2016 and 2018 appeal. The FED. R. APP.

  1. WITH 5TH CIR. R. & IOPs – IOP relative to Judge Assignments details the scheduling and “separation of assignment of judges and calendaring of cases”. Clearly, this was not applied. See Williams v Pennsylvania, Supreme Court (2015).

Not only was Haynes on the original case, she became the controlling Judge in this appeal. That’s like asking a Judge that’s ruled in a case to rule on the subsequent appeal. How likely is Haynes to reverse her own Opinion from the earlier appeal?

No ethics, advocacy, civility nor access to justice was provided by Haynes, the main panel author for this appeal. The fact is undeniable. This case was discarded with hardly a flicker of an eye across the briefs and motions presented.

The response times, the administrative errors, namely the inexplicable denial of a motion by the Burkes’ which had been classified as “insufficient”, yet opposing Counsel had also filed an insufficient motion, but this was allowed by Haynes, the refusal of due process, also confirm it was standard practice to immediately deny the Burkes’ motions and briefs.8

For the above reasons, we hold the opinion that Haynes is Bias.9

8 See Burke’s MOTION FOR EXTENSION OF TIME TO RETAIN LEGAL COUNSEL TO ANSWER PLAINTIFFS MOTION TO AMEND JUDGMENT (Submitted Oct. 21, 2018, 5th)

9 “Bias,” the Court warns in Williams v Pennsylvania, “is easy to attribute to others and difficult to discern in oneself.” Thus, there must be an “objective standard” that requires certain judges to recuse regardless of whether they think they are capable of deciding a particular case impartially. The Constitution’s due process guarantees, the Court concludes, establish that “there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”

– https://www.supremecourt.gov/opinions/15pdf/15-5040_6537.pdf

A-14                             Improperly dismissing a complaint on the grounds that an appellate affirmance of the underlying litigation put the judge’s courtroom behavior beyond the Act’s reach

Facts and complaint—Two attorneys complained that the district judge who presided over an employment discrimination suit in which they represented the plaintiffs used intemperate language and facial gestures disparaging the attorneys, was dismissive of the female attorney, showed a lack of respect for her and for female witnesses, and frequently voiced disapproval and impatience toward complainants and their witnesses.

At the close of plaintiffs’ evidence the judge granted judgment as a matter of law for defendants. Plaintiffs appealed and the attorneys then filed this misconduct com- plaint, which the chief judge held in abeyance pending resolution of the appeal.

The court of appeals affirmed the judgment and said the judge’s conduct did not affect its merits, but the court criticized the conduct nevertheless.

For example: “[A]t various times the judge made remarks on the record, some in the presence of the jury, using language that would charitably be called salty, and that many would consider vulgar, particularly in a courtroom. We consider this type of language to be unbefitting a federal judge.”

The chief judge then asked the judge to respond to the complaint. The judge, for the most part, did not dispute the allegations about his conduct; instead, he explained the provocation for it. He acknowledged use of coarse language and “a lack of patience and a tendency toward sarcasm,” and explained his low opinion of complainants’ legal ability.

Chief judge order—Several paragraphs of the chief judge’s order read like a reprimand (e.g., the “judge’s language and conduct . . . have tarnished . . . the image of the federal judiciary”). The chief judge nevertheless concluded that “in light of the affirmance of the judge’s dismissal of the underlying lawsuit, the judge’s conduct was not prejudicial to the effective and expeditious administration of the business of the courts within the meaning of [28 U.S.C. § 351(a)].”

Assessment—That the plaintiffs’ case was weak is irrelevant to whether the judge’s language and deprecating comments constituted misconduct.

Dismissal of the complaint is inconsistent with our Standard 3 (“discourtesy transcends the expected rough- and-tumble of litigation and moves into the sphere of cognizable misconduct . . . if a reasonable observer would regard it as prejudicial to the effective and expeditious administration of the business of the courts”).

Conduct that was questionable enough to deserve the court’s and chief judge’s harsh criticism merited a special committee to determine if it met the statutory standard for misconduct.

Moreover, the special committee and judicial council stages need not entail inordinate time and burden, at least for a matter (like this one) with little or no factual dispute. And a censure from the judicial council would carry greater weight than one from the chief judge alone, and indicate that any sanction reflects more than one judge’s views.

p.57-58, 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)

A-6                    Failure to inquire about claims of a judge’s bias toward a litigant

Facts and complaint—A litigant filed a complaint against the judge who presided over his long-closed criminal case. He had sought the return of government-seized property and alleged that his attorney told him that the judge, angry because the sentence he imposed on complainant had been partially reversed, said he would bar the complainant from a status conference on the motion for return of the property, didn’t like complainant, would not see him, and would have given him more prison time if he could. As for complainant’s unreturned property, the judge allegedly said, “Tough.” Complainant contended that the judge had injected personal animus into the case.

Chief judge order—The chief judge dismissed the complaint, in part on the proper ground that its objections to the judge’s rulings were merits-related. But the chief judge went on to state, “To the extent that Complainant alleges improper animus, the allegations are totally conclusory, contain no suggestion of corroboration in the record, and do not appear to have any basis in fact. Hence, the complaint is legally frivolous ”

Assessment—The dismissal is inconsistent with our Standard 4.

The allegations are not “totally conclusory”; they point to specific comments allegedly made by the judge to the attorney, who allegedly would support the allegations. If the attorney contradicted the allegations, the chief judge’s limited inquiry could end there.

p.57-58, 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)

LIT COMMENTARY

The Breyer report, “Implementation of the Judicial Conduct and Disability Act ~ September 2006”, specifically denounces actions similar to that of Stewart in this case.

The fact that his ‘colleague’, a fellow Fifth Circuit judge, rather than say a lower court Judge or Magistrate Judge, clearly has influenced his decision to dismiss. We call it #corruption.

As highlighted throughout this article, there was more than sufficient evidence in the complaint against Haynes to warrant a special committee appointment. And this is accentuated by the post discovery re Catharina Haynes injecting herself not only into the Burkes case, but into related case(s) for personal gain and/or vendettas.

See  FED. R. APP. P. WITH 5TH CIR. R. & IOPs – p.34-4 (Judge Assignments)

Furthermore, it has been highlighted that at a minimum, Standards 2, 3, and 4 were breached by Haynes (and the other 2 panel members joined in the ‘per curiam’ opinion in Deutsche II) when she penned the final sentence of the opinion. Furthermore, the Chief  and the judges cannot rely upon Standard 5 (mere denial of allegations). The Burkes factual allegations warranted further investigation.

Note, the Burkes believe Haynes penned the opinion as she was the single judge signing off on motions during this second appeal. Her panel member judges joined in that opinion, including the abhorrent and bias statement below:-

“Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”

GRAVES, JAMES E. (JR)

EXHIBIT C

Judge James Earl Graves, Jr

A family man with 3 sons, all licensed lawyers. One of his sons, Jeffrey, started his working career as a mortgage loan originator for the biggest bank in the State of Mississippi, namely BankPlus.

In our audit, over the 12 month period (2017-2018), Graves sat on 7 mortgage foreclosure related panel cases, which included either/and/or Deutsche Bank/Ocwen, both the Bank and Mortgage Servicer named in the Burkes’ case.

Questionably, he did not sit on any foreclosure cases which did not include either Deutsche Bank or Ocwen Loan Servicing during this period.

In 4 of those 7 cases (57%), Warnings or similar were issued to homeowners defending their foreclosures. These included statements like:-

“Mason IS WARNED, as a non-prisoner, that future frivolous filings will invite the imposition of sanctions, which may include monetary sanctions or restrictions on his ability to file pleadings in this court or any court subject to this court’s jurisdiction. APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.”

The Hon. Judge Graves was also on the Panels’ well cited case regarding Reinagel et al v. Deutsche Bank National Trust Company, case number 5:11-cv- 00989 (pub.) and the Burkes’ have previously invited the Panel to listen to the Oral recording of that hearing where Judge Higginbotham laughs after saying there will be “no free houses”.

Graves is complicit and Bias. (See Williams v Pennsylvania)

LIT COMMENTARY

Stewart seems to have consolidated this in his 2 categories of dismissal. The allegations, like with Haynes, merit investigation by a panel as it relies upon clearly stated evidence, not conclusory as Stewart claims.

Merits-related dismissal—Dismissal of the complaint as merits-related is inconsistent with Committee Standard 2 (complaints that go “beyond a mere attack on the correctness of the ruling itself ” are not necessarily merits-related).

And the judicial selection is worthy of investigation as to why Graves only sat on Deutsche Bank / Ocwen cases in a 12 month period. With only 3 panel members voting, his favoritism for the Banks / non-Banks is evidence of bias, especially where Deutsche Bank has never lost a case at the Fifth Circuit since the financial crisis and he’s on many of the ‘non-random’ 3-panels.

See  FED. R. APP. P. WITH 5TH CIR. R. & IOPs  – p.34-4 (Judge Assignments)

Note: Bias is a theme in the Burkes’ complaint and if you take the time to read Breyers’ report, it comes in many forms. The 2006 report indicates that the Burkes’ complaint falls into the ‘bias’ category which should have triggered further review, rather than dismissal. A special committee investigation could review the data and the cases to which Graves was appointed and see if it undermined the selection process for judge appointments at the Fifth Circuit.

In summary, if Graves injected himself into even just one of those cases, that shows bias. The Burkes allegation(s) and information warranted further investigation.

OWEN, PRISCILLA R.

Appendix E

Committee Standards for Assessing Compliance with the Act

(as approved by the Committee in August 2004, with revisions approved June 2005 and March 2006)

  1. “Expeditious ” Section 352(a).

The commentary to Illustrative Rule 4 defines this standard as follows: “In our view, it would be a rare case in which more than sixty days is permitted to elapse from the filing of the complaint to the chief judge’s action on it.”

The researchers will demarcate sixty days as the outer limit of expeditious review and report to the Committee what percentage of complaints do not result in a ruling by the chief judge within sixty days.

The researchers will be able to report to the Committee the time taken for chief judge disposition on a circuit-by-circuit basis. (Evaluating expeditious review may be possible only for complaints in which there is no petition for judicial council review of a chief judge’s action, because the AO data files contain only one termination date, which is keyed to the overall disposition of the complaint.)

  1. “Directly related to the merits of a decision or procedural ” Section 352(b)(1)(A)(ii).

The core policy reflected here is that the complaint procedure cannot be a means for collat- eral attack on the substance of a judge’s rulings. The interest protected is the independence of the judge in the course of deciding Article III cases and controversies. Any allegation that calls into question the correctness of an official action of a judge—without more—is merits related.

This constitutes a broad reading of the phrase “decision or procedural ruling.” It is not limited to rulings issued in deciding cases per se.

Thus, a complaint challenging the correctness of a judge’s determination to dismiss a prior misconduct complaint would be properly dismissed as merits related—i.e., as challenging the substance of the judge’s administrative determination to dismiss the complaint—even though it does not concern the judge’s rulings in any case.

A petition for review can be filed with the circuit council. Similarly, an allegation that a chief judge had incorrectly declined to approve a Criminal Justice Act voucher is merits related under this standard.

Thus, an allegation—however unsupported—that a judge conspired with a prosecutor in order to reach a particular ruling is not merits related, even though it “relates” to a ruling in a colloquial sense. What that allegation attacks is the propriety of conspiring with the prosecutor. The allegation thus goes beyond a mere attack on the correctness (“the merits”) of the ruling itself.

Similarly, an allegation—however unsupported—that a judge ruled against the complainant because the complainant was Asian, or because the judge doesn’t like the complainant personally, is not merits related. What the allegation attacks is the propriety of arriving at rulings with an illicit or improper motive. The allegation thus goes beyond a mere attack on the correctness of the ruling itself.

Most such complaints are more properly dismissed as frivolous—i.e., lacking in factual substantiation. If a judge did in fact conspire with a prosecutor, or rule on the basis of a party’s ethnicity, that is fodder for the complaint process because it is not merits related.

The same standard applies to allegations concerning a judge’s failure to recuse. A mere allegation that a judge should have recused is indeed merits related; the proper recourse is for a party to file a motion to recuse.

The very different allegation that the judge failed to recuse for illicit reasons—i.e., not that the judge erred in not recusing, but that the judge knew he should recuse but deliberately failed to do so for illicit purposes—is not merits related.

Such allegations are almost always dismissed for lack of factual substantiation.

In the same spirit, an allegation that a judge used an inappropriate term to refer to a class of people is not merits related merely because the judge used it on the bench or in an opinion. The correctness of the judge’s rulings is not at stake. An allegation that a judge was rude to counsel or others while on the bench is not merits related.

As the 1993 Barr-Willging study noted at 65ff, whether or not an allegation is merits-related has nothing to do with whether or not the complainant has an adequate appellate remedy. The merits-related ground for dismissal exists to protect judges’ independence in making rulings, not to protect or promote the appellate process.

A complaint alleging incorrect rulings is merits related even though the complainant—a non-party—has no judicial recourse.

By the same token, an allegation that is otherwise cognizable under the Act should not be dismissed merely because an appellate remedy appears to exist (e.g., vacating a ruling that resulted from an improper ex parte communication).

A complaint of delay in a single case is properly dismissed as merits related.

Such an allegation may be said to challenge the correctness of an official action of the judge, i.e., the official action of assigning a low priority to deciding the particular case in question. A judicial remedy exists in the form of a mandamus petition. But, by the same token, an allegation of an habitual pattern of delay in a number of cases, or an allegation of deliberate delay arising out of an illicit motive, is not merits related.

Because of the special need to protect judges’ independence in deciding what to say in an opinion or ruling, a somewhat different standard applies to determine the merits-relatedness of a non-frivolous allegation that a judge’s language in a ruling reflected an improper motive.

If the judge’s language was relevant to the case at hand, then the chief judge may presume the judge’s choice of language was merits-related.

Thus a chief judge may properly dismiss an allegation that a judge’s language that is relevant to a ruling was inserted out of an illicit motive, absent evidence aside from the ruling itself to suggest improper motive.

If, on the other hand, the challenged language does not seem relevant on its face, then the chief judge should ordinarily inquire of the judge complained against.

If such an inquiry demonstrates that the challenged language was indeed relevant to the case at hand, then the chief judge may properly dismiss the allegation.

  1. “Not in conformity with section 351(a).” Section 352(b)(1)(A)(i).

This language permits dismissal of an allegation that, even if true, does not constitute misconduct under the statutory standard.

This standard does not appear susceptible to precise definition outside the context of particular fact-situations. Presumably that was the intent of the Act’s drafters.

The standard is given such coherence as it has by the Code of Conduct for U.S. Judges and the accumulated precedent of the circuits under the Act, insofar as those precedents have been revealed. One can assess dismissals under this standard by asking whether a reasonable observer would see a significant possibility that the allegation did meet the statutory standard. This is essentially the approach of the 1993 study (see, e.g., fn. 60 at 57).

Allegations of discourteous behavior by a judge may raise this problem.

It cannot always be clear what degree of alleged discourtesy transcends the expected rough-and-tumble of litigation and moves into the sphere of cognizable misconduct. These appraisals have an “I know it when I see it” quality. Again, when in doubt—when a reasonable observer would think it possible (not 50+%, but 20%) that the alleged discourtesy was serious enough—the researchers should treat the allegation as cognizable.

Needless to say, the fact that a judge’s alleged conduct occurred off the bench and had nothing to do with the performance of official duties, absolutely does not mean that the allegation cannot meet the statutory standard.

The Code of Conduct for U.S. Judges expressly covers a wide range of extra-official activities.

Allegations that a judge personally participated in fundraising for a charity or attended a partisan political event—conduct having nothing to do with official duties—are certainly cognizable.

Nevertheless, many might argue that judges are entitled to some zone of privacy in extra-official activities into which their colleagues ought not venture. Perhaps the statutory standard of misconduct could be construed in an appropriate case to have such a concept implicitly built-in. Thus, for example, a chief judge might decline to investigate an allegation that a judge habitually was nasty to her husband, yelling and making a scene in public (as long as there was no allegation of criminal conduct such as physical abuse), even though this might embarrass the judiciary, on the ground that such matters do not constitute misconduct. Complaints raising such issues are so rare as to obviate the need for ground rules for them in advance.

More common are complaints alleging conduct that occurred before the judge went on the federal bench.

Whether such an allegation can constitute misconduct under the statutory standard is a question that the judiciary does not appear to have resolved conclusively. It would seem that at least some chief judges believe that the Act simply does not extend to pre-judicial conduct.

A contrary view is that pre-judicial conduct can be prejudicial to the current administration of the business of the courts (e.g., the extreme case of a well-publicized allegation with some factual support that a judge had committed a felony while in private practice), so the statutory standard does not preclude allegations concerning prejudicial conduct.

Rather than have the researchers try to resolve such an important question that the circuit councils themselves have not settled, the researchers will place any such cases (probably two to five) in a separate category and identify them for Committee review.

  1. “Frivolous, lacking sufficient evidence to raise an inference that misconduct has ” Section 352(b)(1)(A)(iii).

These two clauses both set out the same standard: “frivolous” means “lacking sufficient evidence to raise an inference that misconduct has occurred.”

This second clause was added in the 2002 amendments, and it seems clear that it was added in order to define “frivolous.” Without that definition, a layperson’s colloquial understanding would translate “frivolous” as unimportant. Thus, readers of a public order dismissing as frivolous groundless claims of racial bias might mistakenly conclude that the judiciary did not consider racial bias an important concern.

Accordingly, these are not two separate standards that need to be analyzed separately.

The second clause is simply a helpful elaboration of what is meant by “frivolous.”

The key question for the review of complaints dismissed under this standard will be, “When does a complaint allege enough to call for a limited inquiry by the chief judge under section 352(b)(1)(B), rather than a simple dismissal as frivolous?” There can be no hard and fast rule, but generally all a complaint (i.e., a complaint that is not inherently incredible and is not subject to dismissal on other grounds) need do is assert that the complaint’s allegation is supported by the transcript or by a named witness. Then it should be incumbent on the chief judge (through staff as the chief judge deems appropriate, of course) to consult the transcript or question the alleged witness. Indeed, a complaint need not itself identify a particular transcript or witness, if the complaint sets forth allegations that are capable of being verified by looking at identifiable transcripts or questioning identifiable witnesses. Depending on what the transcript or the witnesses reveal, it may be appropriate for the chief judge to question the judge complained against.

In the situation where a complaint raises an allegation not inherently incredible as to which only the judge complained against is a practicable source, then it should be incumbent on the chief judge to question the judge complained against. An example is an allegation by a court employee that on occasions when she was alone with the judge, he touched her inappropriately. There are no witnesses and no transcript. Even if the chief judge, from personal knowledge of the judge complained against, is morally certain that this allegation is false, the Act requires that the chief judge at least make a limited inquiry of the judge complained against.

An allegation may be dismissed as inherently incredible even if it is not literally impossible for the allegation to be true. An allegation is “inherently incredible” if no reasonable person would believe that the allegation, either on its face or in the light of other available evidence, could be true. For example, an allegation that a judge accepted a bribe in return for permitting the filing of a timely response to a civil complaint that the defendant had a legal right to file, may not be literally impossible, but is sufficiently incredible that, even if the complaint named witness to the transaction, the chief judge has no obligation to in- quire of the named witness before dismissing the complaint.

  1. “When a limited inquiry . . . demonstrates that the allegations in the complaint lack any factual foundation or are conclusively refuted by objective ” Section 352(b)(1)(B). But—“The chief judge shall not undertake to make findings of fact about any matter that is reasonably in dispute.” Section 352(a).

These two statutory standards should be read to dovetail. In other words, a matter is not “reasonably” in dispute if a limited inquiry shows the allegations to lack any factual foundation or to be conclusively refuted by objective evidence.

The fundamental principle here is that an allegation is not “conclusively refuted by objective evidence” simply because the judge complained against denies it. The limited inquiry has to produce something more than that in the way of “refutation” before it will be appropriate to dismiss a complaint (that is not inherently incredible) without a special committee investigation. If it is literally the complainant’s word against the judge’s—there is simply no other significant evidence—then there must be a special committee investigation. This is because who is telling the truth is a matter reasonably in dispute (even if the chief judge is morally certain that the judge complained against is no liar). A straight-up credibility determination, in the absence of other significant evidence, is ordinarily for the circuit council, not the chief judge.

Dismissal following a limited inquiry typically occurs where the complaint refers to transcripts or to witnesses, and when the chief judge consults the transcripts and questions the witnesses, and they all support the judge.

The researchers may find dismissals following limited chief judge inquiry in which it appears that the chief judge may have given excessive weight to the denial of the judge complained against. These should be coded as problematic. For example, the complaint alleges that the judge said X, and the complaint mentions, or it is independently clear, that five people may have heard what the judge said. The chief judge is told by the judge complained against and one witness that the judge did not say X, and the chief judge (who in private never believed for one second that the complaint had any validity) dismisses the complaint without ever questioning the other four possible witnesses.

If all five witnesses say the judge did not say X, dismissal is called for. If potential witnesses, reasonably accessible, have not been questioned, then the matter remains reasonably in dispute.

  1. “Incapable of being established through ” Section 352(b)(1)(A)(iii).

Arguably, the only situation in which dismissal on this basis is appropriate is the situation of the unidentified or unavailable source. For example, a complaint alleges that an unnamed attorney told the complainant that the judge did X. The judge complained against denies it. The chief judge requests that the complainant (who does not purport to have observed the judge do X) identify the unnamed witness, or that the unnamed witness come forward so that the chief judge can evaluate the unnamed witness’s account. The complain- ant responds that he has spoken with the unnamed witness, that the unnamed witness is an attorney who practices in federal court, and that the unnamed witness is unwilling to be identified or to come forward. The allegation is then properly dismissed as incapable of being established through investigation. If the only witness to alleged misconduct refuses to submit to examination and cross-examination, and there is no other significant evidence, the matter cannot proceed.

Very few complaints are resolved on this basis, so the researchers can treat the few that they find on an ad hoc basis without the aid of a preset standard. Perhaps the research will suggest a standard.

  1. “Appropriate corrective ” Section 352(b)(2).

The statute authorizes the chief judge to conclude the proceedings on a finding that “ap- propriate corrective action has been taken.” Action taken is appropriate when it serves to “remedy the problem raised by the complaint” (Illustrative Rule 4(d)). Because the statute deals with the conduct of judges, the emphasis is on correction of the judicial conduct that was the subject of the complaint. Accordingly, changing a procedural or court rule a judge has allegedly violated will not ordinarily be sufficient to remedy judicial conduct that was alleged to be in violation of a preexisting rule.

Terminating a complaint based on corrective action is premised on the implicit under- standing that voluntary self-correction of misconduct is preferable to sanctions imposed from without. The chief judge might facilitate this process by giving the subject judge an objective view of the appearance of the judicial conduct in question and by suggesting appropriate corrective measures. In the end, however, “corrective action” as the term is used in sec. 352(b)(2) means voluntary action taken by the judge complained against. A remedial action directed by the chief judge or by an appellate court without the participation of the subject judge in formulating the directive or by agreeing to comply with it does not constitute corrective action under the statute. Neither the chief judge nor an appellate court has authority under the Act to impose a formal remedy or sanction; only the judicial coun- cil can impose a formal remedy or sanction (sec. 354(a)(2)). Compliance with a previous council order may serve as corrective action to conclude a later complaint about the same behavior.

Where a judge’s conduct has resulted in identifiable, particularized harm to the complainant or another individual, appropriate corrective action should include steps taken by that judge to acknowledge and redress the harm, if possible, such as by an apology, recusal from a case, or a pledge to refrain from similar conduct in the future. While the Act is generally forward-looking, any corrective action should to the extent possible serve to correct a specific harm to an individual, if such a harm can reasonably be remedied. Ordinarily corrective action will not be “appropriate” to justify conclusion of a complaint unless the complainant or other individual is meaningfully apprised of the nature of the corrective action in the chief judge’s order, in a direct communication from the judge complained against, or otherwise.

Voluntary corrective action should be proportionate to any plausible allegations of misconduct in the complaint. The form of corrective action should also be proportionate to any sanctions that a judicial council might impose after investigation (see Illustrative Rule 14(f)), such as a private or public reprimand or a change in case assignments. In other words, a slight correction will not suffice to dispose of a weighty allegation.

  1. “Action no longer necessary because of intervening ” Section 352(b)(2).

The statute does not expressly call for dismissal of complaints that are untimely or moot, except that section 352(b)(2) permits the chief judge to “conclude the proceeding” if “action on the complaint is no longer necessary because of intervening events.” Illustrative Rule 4(c)(4) fills that gap by calling for “dismissal” if “the complaint is otherwise not appropriate for consideration.” The commentary to Illustrative Rule 4 explains that this ground for dismissal “is intended to accommodate dismissals of complaints for reasons such as untimeliness . . . or mootness.”

The 1993 study found no significant issues surrounding untimeliness or mootness, and it is unlikely that any significant issue has arisen since then. There have been com- plaints challenging actions taken twenty years earlier, but it has always been a simple matter to dismiss these as merits related or frivolous. Occasionally a complaint is dismissed as moot—because the judge complained against is no longer a judge—but this has yet to raise controversy. Ordinarily stepping down from an administrative post such as chief judge or judicial council member or court committee chair does not constitute an event that would render unnecessary any further action on a complaint alleging judicial misconduct. As long as the subject of the complaint performs judicial duties, a complaint alleging judicial misconduct should be treated on its merits.

The complaint screening form will note the few complaints dismissed because intervening events have made action unnecessary, which can be further analyzed as appropriate.

  1. “On the basis of information available to the chief judge of the circuit, the chief judge may, by written order stating reasons therefor, identify a complaint for purposes of this chapter and thereby dispense with filing of a written ” Section 351(b).

The commentary to Illustrative Rule 1 recognizes that this statutory language places the question of identifying a complaint “within the discretion of the chief judge.”

Illustrative Rule 1(j) provides that a chief judge who has identified a complaint “will not be considered a complainant” and need not automatically recuse from further proceedings on the complaint. The commentary to Illustrative Rule 1 elaborates that “the identification of a complaint . . . will advance the process no further than would the filing of a complaint by a complainant. [T]he chief judge has the same options in the investigation and determination of an identified complaint that the chief judge would have had if the complaint had been filed.”

The chief judge should therefore keep in mind that the determination whether to identify a complaint is fundamentally different than the ultimate determination whether to appoint a special committee. The threshold is much lower. If an identified complaint is ultimately dismissed without appointment of a special committee, that does not mean that the complaint should not have been identified in the first place.

To be sure, a chief judge may determine not to identify a complaint under circumstances in which information available to the chief judge makes it clear that unfiled allegations against a judge are merits-related, do not constitute misconduct under the statute, or are unsupported or incapable of being established through investigation, or under circumstances in which the subject judge has undertaken appropriate corrective action. A chief judge should not, however, decline to identify a complaint solely on the basis that allegations that appear cognizable under the statute, for which there appears to be some potential evidentiary support, are not deemed by the chief judge to be credible. Nor should a chief judge decline to identify a complaint solely on the basis that the unfiled allegations could be raised by one or more persons in a filed complaint, but none of these persons has opted to do so.

A chief judge may properly treat identifying a complaint as a last resort to be considered only after all informal approaches at a resolution have failed. However, the more public and high-visibility the unfiled allegations are, the more desirable it will be for the chief judge—absent an informal resolution of the matter—to identify a complaint (and then, if the circumstances warrant, dismiss or conclude the identified complaint without appointment of a special committee) in order to assure the public that the allegations have not been ignored.

Guide to Judiciary Policy

Vol. 2: Ethics and Judicial Conduct

Pt. E: Judicial Conduct and Disability Act and Related Materials

Ch. 3: Rules for Judicial-Conduct and Judicial-Disability Proceedings

ARTICLE I. GENERAL PROVISIONS

  1. Scope
  2. Effect and Construction
  3. Definitions
  4. Covered Judges

ARTICLE II. INITIATION OF COMPLAINT

  1. Identification of Complaint
  2. Filing of Complaint
  3. Where to Initiate Complaint
  4. Action by Circuit Clerk
  5. Time for Filing or Identifying Complaint
  6. Abuse of Complaint Procedure

ARTICLE III. REVIEW OF COMPLAINT BY CHIEF JUDGE

  1. Chief Judge’s Review

ARTICLE IV. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

  1. Special Committee’s Composition
  2. Conduct of Special-Committee Investigation
  3. Conduct of Special-Committee Hearings
  4. Subject Judge’s Rights
  5. Complainant’s Rights in Investigation
  6. Special-Committee Report

ARTICLE V. REVIEW BY JUDICIAL COUNCIL

  1. Petition for Review of Chief-Judge Disposition Under Rule 11(c), (d), or (e)
  2. Judicial-Council Disposition of Petition for Review
  3. Judicial-Council Action Following Appointment of Special Committee

Last revised (Transmittal 02-027) May 4, 2016

ARTICLE VI. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

  1. Committee on Judicial Conduct and Disability
  2. Procedures for Review

ARTICLE VII. MISCELLANEOUS RULES

  1. Confidentiality
  2. Public Availability of Decisions
  3. Disqualification
  4. Transfer to Another Judicial Council
  5. Withdrawal of Complaint or Petition for Review
  6. Availability of Rules and Forms
  7. Effective Date

Appendix to the Rules: Form AO 310 (Complaint of Judicial Misconduct or Disability)

310 Overview

Section 320 of this chapter reproduces the Rules for Judicial-Conduct and Judicial-Disability Proceedings. They were adopted on March 11, 2008, and took effect on April 10, 2008. They were amended on September 17, 2015, and published in final form in May 2016.

320 Rules for Judicial-Conduct and Judicial-Disability Proceedings

Preface

These Rules were promulgated by the Judicial Conference of the United States, after public comment, pursuant to 28 U.S.C. §§ 331 and 358, to establish standards and procedures for addressing complaints filed by complainants or identified by chief judges under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364.

ARTICLE I. GENERAL PROVISIONS

Scope

These Rules govern proceedings under the Judicial Conduct and Disability Act (the Act), 28 U.S.C. §§ 351–364, to determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to discharge the duties of office because of mental or physical disability.

COMMENTARY ON RULE 1

In September 2006, the Judicial Conduct and Disability Act Study Committee (“Breyer Committee”), appointed in 2004 by Chief Justice Rehnquist, presented a report (“Breyer Committee Report”), 239 F.R.D. 116 (Sept. 2006), to Chief Justice Roberts that evaluated implementation of the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 351–364. The Breyer Committee had been formed in response to criticism from the public and Congress regarding the effectiveness of the Act’s implementation. The Executive Committee of the Judicial Conference directed its Committee on Judicial Conduct and Disability to consider the Breyer Committee’s recommendations and to report on their implementation to the Conference.

The Breyer Committee found that it could not evaluate implementation of the Act without establishing interpretive standards, Breyer Committee Report, 239 F.R.D. at 132, and that a major problem faced by chief judges in implementing the Act was the lack of authoritative interpretive standards. Id. at 212–15. The Breyer Committee then established standards to guide its evaluation, some of which were new formulations and some of which were taken from the “Illustrative Rules Governing Complaints of Judicial Misconduct and Disability,” discussed below. The principal standards used by the Breyer Committee are in Appendix E of its Report. Id. at 238.

Based on the Breyer Committee’s findings, the Committee on Judicial Conduct and Disability concluded that there was a need for the Judicial Conference to exercise its power under Section 358 of the Act to fashion standards guiding the various officers and bodies that must exercise responsibility under the Act. To that end, the Committee on Judicial Conduct and Disability proposed rules that were based largely on Appendix E of the Breyer Committee Report and the Illustrative Rules.

The Illustrative Rules were originally prepared in 1986 by the Special Committee of the Conference of Chief Judges of the United States Courts of Appeals, and were subsequently revised and amended, most recently in 2000, by the predecessor to the Committee on Judicial Conduct and Disability. The Illustrative Rules were adopted, with minor variations, by circuit judicial councils, to govern complaints under the Judicial Conduct and Disability Act.

After being submitted for public comment pursuant to 28 U.S.C. § 358(c), the Judicial Conference promulgated the present Rules on March 11, 2008. They were amended on September 17, 2015.

Effect and Construction

Generally. These Rules are mandatory; they supersede any conflicting judicial-council rules. Judicial councils may promulgate additional rules to implement the Act as long as those rules do not conflict with these Rules.

Exception. A Rule will not apply if, when performing duties authorized by the Act, a chief judge, a special committee, a judicial council, the Committee on Judicial Conduct and Disability, or the Judicial Conference expressly finds that exceptional circumstances render application of that Rule in a particular proceeding manifestly unjust or contrary to the purposes of the Act or these Rules.

COMMENTARY ON RULE 2

Unlike the Illustrative Rules, these Rules provide mandatory and nationally uniform provisions governing the substantive and procedural aspects of misconduct and disability proceedings under the Act.  The mandatory nature of these Rules is authorized by 28 U.S.C. § 358(a) and (c). Judicial councils retain the power to promulgate rules consistent with these Rules. For example, a local rule may authorize the electronic distribution of materials pursuant to Rule 8(b).

Rule 2(b) recognizes that unforeseen and exceptional circumstances may call for a different approach in particular cases.

Definitions

Chief Judge. “Chief judge” means the chief judge of a United States court of appeals, of the United States Court of International Trade, or of the United States Court of Federal Claims.

Circuit Clerk. “Circuit clerk” means a clerk of a United States court of appeals, the clerk of the United States Court of International Trade, the clerk of the United States Court of Federal Claims, or the circuit executive of the United States Court of Appeals for the Federal Circuit.

Complaint. A complaint is:

a document that, in accordance with Rule 6, is filed by any person in his or her individual capacity or on behalf of a professional organization; or

information from any source, other than a document described in (c)(1), that gives a chief judge probable cause to believe that a covered judge, as defined in Rule 4, has engaged in misconduct or may have a disability, whether or not the information is framed as or is intended to be an allegation of misconduct or disability.

Court of Appeals, District Court, and District Judge. “Courts of appeals,” “district court,” and “district judge,” where appropriate, include the United States Court of Federal Claims, the United States Court of International Trade, and the judges thereof.

Disability. “Disability” is a temporary or permanent impairment, physical or mental, rendering a judge unable to discharge the duties of the particular judicial office. Examples of disability include substance abuse, the inability to stay awake during court proceedings, or impairment of cognitive abilities that renders the judge unable to function effectively.

Judicial Council and Circuit. “Judicial council” and “circuit,” where appropriate, include any courts designated in 28 U.S.C. § 363.

Magistrate Judge. “Magistrate judge,” where appropriate, includes a special master appointed by the Court of Federal Claims under 42 U.S.C. § 300aa-12(c).

Misconduct. Cognizable misconduct:

is conduct prejudicial to the effective and expeditious administration of the business of the courts. Misconduct includes, but is not limited to:

using the judge’s office to obtain special treatment for friends or relatives;

accepting bribes, gifts, or other personal favors related to the judicial office;

having improper discussions with parties or counsel for one side in a case;

treating litigants, attorneys, or others in a demonstrably egregious and hostile manner;

engaging in partisan political activity or making inappropriately partisan statements;

soliciting funds for organizations;

retaliating against complainants, witnesses, or others for their participation in this complaint process;

refusing, without good cause shown, to cooperate in the investigation of a complaint under these Rules; or

violating other specific, mandatory standards of judicial conduct, such as those pertaining to restrictions on outside income and requirements for financial disclosure.

is conduct occurring outside the performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.

does not include:

an allegation that is directly related to the merits of a decision or procedural ruling. An allegation that calls into question the correctness of a judge’s ruling, including a failure to recuse, without more, is merits-related. If the decision or ruling is alleged to be the result of an improper motive, e.g., a bribe, ex parte contact, racial or ethnic bias, or improper conduct in rendering a decision or ruling, such as personally derogatory remarks irrelevant to the issues, the complaint is not cognizable to the extent that it attacks the merits.

an allegation about delay in rendering a decision or ruling, unless the allegation concerns an improper motive in delaying a particular decision or habitual delay in a significant number of unrelated cases.

Subject Judge. “Subject judge” means any judge described in Rule 4 who is the subject of a complaint.

COMMENTARY ON RULE 3

Rule 3 is derived and adapted from the Breyer Committee Report and the Illustrative Rules.

Unless otherwise specified or the context otherwise indicates, the term “complaint” is used in these Rules to refer both to complaints identified by a chief judge under Rule 5 and to complaints filed by a complainant under Rule 6.

Under the Act, a “complaint” may be filed by “any person” or “identified” by a chief judge. See 28 U.S.C. § 351(a), (b). Under Rule 3(c)(1), a complaint may be submitted by a person, in his or her individual capacity, or by a professional organization. Generally, the word “complaint” brings to mind the commencement of an adversary proceeding in which the contending parties are left to present the evidence and legal arguments, and judges play the role of an essentially passive arbiter. The Act, however, establishes an administrative, inquisitorial process. For example, even absent a complaint under Rule 6, chief judges are expected in some circumstances to trigger the process — “identify a complaint,” see 28 U.S.C. § 351(b) and Rule 5 — and conduct an investigation without becoming a party. See 28 U.S.C. § 352(a); Breyer Committee Report, 239 F.R.D. at 214; Illustrative Rule 2(j). Even when a complaint is filed by someone other than the chief judge, the complainant lacks many rights that a litigant would have, and the chief judge, instead of being limited to the “four corners of the complaint,” must, under Rule 11, proceed as though misconduct or disability has been alleged where the complainant reveals information of misconduct or disability but does not claim it as such. See Breyer Committee Report, 239 F.R.D. at 183–84.

An allegation of misconduct or disability filed under Rule 6 is a “complaint,” and the Rule so provides in subsection (c)(1). However, both the nature of the process and the use of the term “identify” suggest that the word “complaint” covers more than a document formally triggering the process. The process relies on chief judges considering known information and triggering the process when appropriate. “Identifying” a “complaint,” therefore, is best understood as the chief judge’s concluding that information known to the judge constitutes probable cause to believe that misconduct occurred or a disability exists, whether or not the information is framed as, or intended to be, an accusation. This definition is codified in subsection (c)(2).

Rule 3(e) relates to disability and provides only the most general definition, recognizing that a fact-specific approach is the only one available. A mental disability could involve cognitive impairment or any psychiatric or psychological condition that renders the judge unable to discharge the duties of office. Such duties may include those that are administrative. If, for example, the judge is a chief judge, the judicial council, fulfilling its obligation under 28 U.S.C. § 332(d)(1) to make “necessary and appropriate orders for the effective and expeditious administration of justice,” may find, under 28 U.S.C. § 45(d) or § 136(e), that the judge is “temporarily unable to perform” his or her chief-judge duties.  In that event, an appropriate remedy could involve, under Rule 20(b)(1)(D)(vii), temporary reassignment of chief-judge duties to the next judge statutorily eligible to perform them.

The phrase “prejudicial to the effective and expeditious administration of the business of the courts” is not subject to precise definition, and subsection (h)(1) therefore provides some specific examples. Although the Code of Conduct for United States Judges may be informative, its main precepts are highly general; the Code is in many potential applications aspirational rather than a set of disciplinary rules.

Ultimately, the responsibility for determining what constitutes misconduct under the statute is the province of the judicial council of the circuit, subject to such review and limitations as are ordained by the statute and by these Rules.

Even where specific, mandatory rules exist — for example, governing the receipt of gifts by judges, outside earned income, and financial disclosure obligations — the distinction between the misconduct statute and these specific, mandatory rules must be borne in mind. For example, an inadvertent, minor violation of any one of these rules, promptly remedied when called to the attention of the judge, might still be a violation but might not rise to the level of misconduct under the statute. By contrast, a pattern of such violations of the Code might well rise to the level of misconduct.

Under Rule 3(h)(1)(G), a judge’s efforts to retaliate against any person for his or her involvement in the complaint process may constitute cognizable misconduct. The Rule makes this explicit in the interest of public confidence in the complaint process.

Rule 3(h)(1)(H) provides that a judge’s refusal, without good cause shown, to cooperate in the investigation of a complaint under these Rules may constitute cognizable misconduct. While the exercise of rights under the Fifth Amendment to the Constitution would constitute good cause under Rule 3(h)(1)(H), given the fact-specific nature of the inquiry, it is not possible to otherwise anticipate all circumstances that might also constitute good cause. The Commentary on Rule 13 provides additional discussion regarding Rule 3(h)(1)(H). The Rules contemplate that judicial councils will not consider commencing proceedings under Rule 3(h)(1)(H) except as necessary after other means to acquire the information have been tried or have proven futile.

Rule 3(h)(2) reflects that an allegation can meet the statutory standard even though the judge’s alleged conduct did not occur in the course of the performance of official duties. And some conduct in the categories listed under subsection (h)(1), or in categories not listed, might depending on the circumstances amount to “misconduct” under subsection (h)(2), or under both subsection (h)(1) and subsection (h)(2). Also, the Code of Conduct for United States Judges expressly covers a wide range of extra-official activities, and some of these activities may constitute misconduct. For example, allegations that a judge solicited funds for a charity or participated in a partisan political event are cognizable under the Act.

On the other hand, judges are entitled to some leeway in extra-official activities.

For example, misconduct may not include a judge being repeatedly and publicly discourteous to a spouse (not including physical abuse) even though this might cause some reasonable people to have diminished confidence in the courts. Rule 3(h)(2) states that conduct of this sort is covered, for example, when it might lead to a “substantial and widespread” lowering of such confidence.

Rule 3(h)(3)(A) tracks the Act, 28 U.S.C. § 352(b)(1)(A)(ii), in excluding from the definition of misconduct allegations “[d]irectly related to the merits of a decision or procedural ruling.” This exclusion preserves the independence of judges in the exercise of judicial power by ensuring that the complaint procedure is not used to collaterally attack the substance of a judge’s ruling. Any allegation that calls into question the correctness of an official action of a judge — without more — is merits-related. The phrase “decision or procedural ruling” is not limited to rulings issued in deciding Article III cases or controversies. Thus, a complaint challenging the correctness of a chief judge’s determination to dismiss a prior misconduct complaint would be properly dismissed as merits-related — in other words, as challenging the substance of the judge’s administrative determination to dismiss the complaint — even though it does not concern the judge’s rulings in Article III litigation. Similarly, an allegation that a judge had incorrectly declined to approve a Criminal Justice Act voucher is merits-related under this standard.

Conversely, an allegation — however unsupported — that a judge conspired with a prosecutor to make a particular ruling is not merits-related, even though it “relates” to a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with the prosecutor and goes beyond a challenge to the correctness — “the merits” — of the ruling itself. An allegation that a judge ruled against the complainant because the complainant is a member of a particular racial or ethnic group, or because the judge dislikes the complainant personally, is also not merits-related. Such an allegation attacks the propriety of arriving at rulings with an illicit or improper motive. Similarly, an allegation that a judge used an inappropriate term to refer to a class of people is not merits-related even if the judge used it on the bench or in an opinion; the correctness of the judge’s rulings is not at stake. An allegation that a judge treated litigants or attorneys in a demonstrably egregious and hostile manner while on the bench is also not merits-related.

The existence of an appellate remedy is usually irrelevant to whether an allegation is merits-related. The merits-related ground for dismissal exists to protect judges’ independence in making rulings, not to protect or promote the appellate process. A complaint alleging an incorrect ruling is merits-related even though the complainant has no recourse from that ruling. By the same token, an allegation that is otherwise cognizable under the Act should not be dismissed merely because an appellate remedy appears to exist (for example, vacating a ruling that resulted from an improper ex parte communication). However, there may be occasions when appellate and misconduct proceedings overlap, and consideration and disposition of a complaint under these Rules may be properly deferred by the chief judge until the appellate proceedings are concluded in order to avoid, inter alia, inconsistent decisions.

Because of the special need to protect judges’ independence in deciding what to say in an opinion or ruling, a somewhat different standard applies to determine the merits-relatedness of a non-frivolous allegation that a judge’s language in a ruling reflected an improper motive. If the judge’s language was relevant to the case at hand — for example, a statement that a claim is legally or factually “frivolous” — then the judge’s choice of language is presumptively merits-related and excluded, absent evidence apart from the ruling itself suggesting an improper motive. If, on the other hand, the challenged language does not seem relevant on its face, then an additional inquiry under Rule 11 is necessary.

With regard to Rule 3(h)(3)(B), a complaint of delay in a single case is excluded as merits-related. Such an allegation may be said to challenge the correctness of an official action of the judge — in other words, assigning a low priority to deciding the particular case. But, by the same token, an allegation of a habitual pattern of delay in a significant number of unrelated cases, or an allegation of deliberate delay in a single case arising out of an illicit motive, is not merits-related.

The remaining subsections of Rule 3 provide technical definitions clarifying the application of the Rules to the various kinds of courts covered.

Covered Judges

A complaint under these Rules may concern the actions or capacity only of judges of United States courts of appeals, judges of United States district courts, judges of United States bankruptcy courts, United States magistrate judges, and judges of the courts specified in 28 U.S.C. § 363.

COMMENTARY ON RULE 4

This Rule tracks the Act. Rule 8(c) and (d) contain provisions as to the handling of complaints against persons not covered by the Act, such as other court personnel, or against both covered judges and noncovered persons.

ARTICLE II. INITIATION OF COMPLAINT

Identification of Complaint

Identification. When a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related complaint has been filed. A chief judge who finds probable cause to believe that misconduct has occurred or that a disability exists may seek an informal resolution that he or she finds satisfactory. If no informal resolution is achieved or is feasible, the chief judge may identify a complaint and, by written order stating the reasons, begin the review provided in Rule 11. If the evidence of misconduct is clear and convincing and no informal resolution is achieved or is feasible, the chief judge must identify a complaint. A chief judge must not decline to identify a complaint merely because the person making the allegation has not filed a complaint under Rule 6.  This Rule is subject to Rule 7.

Submission Not Fully Complying with Rule 6. A legible submission in substantial but not full compliance with Rule 6 must be considered as possible grounds for the identification of a complaint under Rule 5(a).

COMMENTARY ON RULE 5

This Rule is adapted from the Breyer Committee Report, 239 F.R.D. at 245–46.

The Act authorizes a chief judge, by written order stating reasons, to identify a complaint and thereby dispense with the filing of a written complaint. See 28 U.S.C. 351(b). Under Rule 5, when a chief judge becomes aware of information constituting reasonable grounds to inquire into possible misconduct or disability on the part of a covered judge, and no formal complaint has been filed, the chief judge has the power in his or her discretion to begin an appropriate inquiry. A chief judge’s decision whether to informally seek a resolution and/or to identify a complaint is guided by the results of that inquiry. If the chief judge concludes that there is probable cause to believe that misconduct has occurred or a disability exists, the chief judge may seek an informal resolution, if feasible, and if failing in that, may identify a complaint. Discretion is accorded largely for the reasons police officers and prosecutors have discretion in making arrests or bringing charges. The matter may be trivial and isolated, based on marginal evidence, or otherwise highly unlikely to lead to a misconduct or disability finding. On the other hand, if the inquiry leads the chief judge to conclude that there is clear and convincing evidence of misconduct or a disability, and no satisfactory informal resolution has been achieved or is feasible, the chief judge is required to identify a complaint.

An informal resolution is one agreed to by the subject judge and found satisfactory by the chief judge. Because an informal resolution under Rule 5 reached before a complaint is filed under Rule 6 will generally cause a subsequent Rule 6 complaint alleging the identical matter to be concluded, see Rule 11(d), the chief judge must be sure that the resolution is fully appropriate before endorsing it. In doing so, the chief judge must balance the seriousness of the matter against the particular judge’s alacrity in addressing the issue. The availability of this procedure should encourage attempts at swift remedial action before a formal complaint is filed.

When a chief judge identifies a complaint, a written order stating the reasons for the identification must be provided; this begins the process articulated in Rule 11. Rule 11 provides that once a chief judge has identified a complaint, the chief judge, subject to the disqualification provisions of Rule 25, will perform, with respect to that complaint, all functions assigned to the chief judge for the determination of complaints filed by a complainant.

In high-visibility situations, it may be desirable for a chief judge to identify a complaint without first seeking an informal resolution (and then, if the circumstances warrant, dismiss or conclude the identified complaint without appointment of a special committee) in order to assure the public that the allegations have not been ignored.

A chief judge’s decision not to identify a complaint under Rule 5 is not appealable and is subject to Rule 3(h)(3)(A), which excludes merits-related complaints from the definition of misconduct.

A chief judge may not decline to identify a complaint solely on the basis that the unfiled allegations could be raised by one or more persons in a filed complaint, but none of these persons has opted to do so.

Subsection (a) concludes by stating that this Rule is “subject to Rule 7.” This is intended to establish that only (i) the chief judge of the home circuit of a potential subject judge, or (ii) the chief judge of a circuit in which misconduct is alleged to have occurred in the course of official business while the potential subject judge was sitting by designation, shall have the power or a duty under this Rule to identify a complaint.

Subsection (b) provides that submissions that do not comply with the requirements of Rule 6(d) must be considered under Rule 5(a). For instance, if a complaint has been filed but the form submitted is unsigned, or the truth of the statements therein are not verified in writing under penalty of perjury, then a chief judge must nevertheless consider the allegations as known information and as a possible basis for the identification of a complaint under the process described in Rule 5(a).

Filing of Complaint

Form. A complainant may use the form reproduced in the appendix to these Rules or a form designated by the rules of the judicial council in the circuit in which the complaint is filed. A complaint form is also available on each court of appeals’ website or may be obtained from the circuit clerk or any district court or bankruptcy court within the circuit. A form is not necessary to file a complaint, but the complaint must be written and must include the information described in (b).

Brief Statement of Facts. A complaint must contain a concise statement that details the specific facts on which the claim of misconduct or disability is based. The statement of facts should include a description of:

what happened;

when and where the relevant events happened;

any information that would help an investigator check the facts; and

for an allegation of disability, any additional facts that form the basis of that allegation.

A complaint should be typewritten if possible. If not typewritten, it must be legible. An illegible complaint will be returned to the complainant with a request to resubmit it in legible form. If a resubmitted complaint is still illegible, it will not be accepted for filing.

Complainant’s Address and Signature; Verification. The complainant must provide a contact address and sign the complaint. The truth of the statements made in the complaint must be verified in writing under penalty of perjury. If any of these requirements are not met, the submission will be accepted, but it will be reviewed under only Rule 5(b).

Number of Copies; Envelope Marking. The complainant shall provide the number of copies of the complaint required by local rule. Each copy should be in an envelope marked “Complaint of Misconduct” or “Complaint of Disability.” The envelope must not show the name of any subject judge.

COMMENTARY ON RULE 6

The Rule is adapted from the Illustrative Rules and is self-explanatory.

Where to Initiate Complaint

Where to File. Except as provided in (b),

a complaint against a judge of a United States court of appeals, a United States district court, a United States bankruptcy court, or a United States magistrate judge must be filed with the circuit clerk in the jurisdiction in which the subject judge holds office.

a complaint against a judge of the United States Court of International Trade or the United States Court of Federal Claims must be filed with the respective clerk of that court.

a complaint against a judge of the United States Court of Appeals for the Federal Circuit must be filed with the circuit executive of that court.

Misconduct in Another Circuit; Transfer. If a complaint alleges misconduct in the course of official business while the subject judge was sitting on a court by designation under 28 U.S.C. §§ 291–293 and 294(d), the complaint may be filed or identified with the circuit clerk of that circuit or of the subject judge’s home circuit. The proceeding will continue in the circuit of the first-filed or first-identified complaint. The judicial council of the circuit where the complaint was first filed or first identified may transfer the complaint to the subject judge’s home circuit or to the circuit where the alleged misconduct occurred, as the case may be.

COMMENTARY ON RULE 7

Title 28 U.S.C. § 351 states that complaints are to be filed with “the clerk of the court of appeals for the circuit.” However, in many circuits, this role is filled by circuit executives. Accordingly, the term “circuit clerk,” as defined in Rule 3(b) and used throughout these Rules, applies to circuit executives.

Section 351 uses the term “the circuit” in a way that suggests that either the home circuit of the subject judge or the circuit in which misconduct is alleged to have occurred is the proper venue for complaints. With an exception for judges sitting by designation, the Rule requires the filing or identification of a misconduct or disability complaint in the circuit in which the judge holds office, largely based on the administrative perspective of the Act. Given the Act’s emphasis on the future conduct of the business of the courts, the circuit in which the judge holds office is the appropriate forum because that circuit is likely best able to influence a judge’s future behavior in constructive ways.

However, when judges sit by designation, the non-home circuit has a strong interest in redressing misconduct in the course of official business, and where allegations also involve a member of the bar — ex parte contact between an attorney and a judge, for example — it may often be desirable to have the judicial and bar misconduct proceedings take place in the same venue. Rule 7(b), therefore, allows transfer to, or filing or identification of a complaint in, the non-home circuit. The proceeding may be transferred by the judicial council of the filing or identified circuit to the other circuit.

Action by Circuit Clerk

Receipt of Complaint. Upon receiving a complaint against a judge filed under Rule 6 or identified under Rule 5, the circuit clerk must open a file, assign a docket number according to a uniform numbering scheme promulgated by the Committee on Judicial Conduct and Disability, and acknowledge the complaint’s receipt.

Distribution of Copies. The circuit clerk must promptly send copies of a complaint filed under Rule 6 to the chief judge or the judge authorized to act as chief judge under Rule 25(f), and copies of complaints filed under Rule 6 or identified under Rule 5 to each subject judge. The circuit clerk must retain the original complaint. Any further distribution should be as provided by local rule.

Complaint Against Noncovered Person. If the circuit clerk receives a complaint about a person not holding an office described in Rule 4, the clerk must not accept the complaint under these Rules.

Complaint Against Judge and Another Noncovered Person. If the circuit clerk receives a complaint about a judge described in Rule 4 and a person not holding an office described in Rule 4, the clerk must accept the complaint under these Rules only with regard to the judge and must so inform the complainant.

COMMENTARY ON RULE 8

This Rule is adapted from the Illustrative Rules and is largely self-explanatory.

The uniform docketing scheme described in subsection (a) should take into account potential problems associated with a complaint that names multiple judges. One solution may be to provide separate docket numbers for each subject judge.

Separate docket numbers would help avoid difficulties in tracking cases, particularly if a complaint is dismissed with respect to some, but not all of the named judges.

Complaints against noncovered persons are not to be accepted for processing under these Rules but may, of course, be accepted under other circuit rules or procedures for grievances.

Time for Filing or Identifying Complaint

A complaint may be filed or identified at any time. If the passage of time has made an accurate and fair investigation of a complaint impracticable, the complaint must be dismissed under Rule 11(c)(1)(E).

COMMENTARY ON RULE 9

This Rule is adapted from the Act, 28 U.S.C. §§ 351, 352(b)(1)(A)(iii), and the Illustrative Rules.

Abuse of Complaint Procedure

Abusive Complaints. A complainant who has filed repetitive, harassing, or frivolous complaints, or has otherwise abused the complaint procedure, may be restricted from filing further complaints. After giving the complainant an opportunity to show cause in writing why his or her right to file further complaints should not be limited, the judicial council may prohibit, restrict, or impose conditions on the complainant’s use of the complaint procedure. Upon written request of the complainant, the judicial council may revise or withdraw any prohibition, restriction, or condition previously imposed.

Orchestrated Complaints. When many essentially identical complaints from different complainants are received and appear to be part of an orchestrated campaign, the chief judge may recommend that the judicial council issue a written order instructing the circuit clerk to accept only a certain number of such complaints for filing and to refuse to accept additional complaints. The circuit clerk must send a copy of any such order to anyone whose complaint was not

COMMENTARY ON RULE 10

This Rule is adapted from the Illustrative Rules.

Rule 10(a) provides a mechanism for a judicial council to restrict the filing of further complaints by a single complainant who has abused the complaint procedure. In some instances, however, the complaint procedure may be abused in a manner for which the remedy provided in Rule 10(a) may not be appropriate. For example, some circuits have been inundated with submissions of dozens or hundreds of essentially identical complaints against the same judge or judges, all submitted by different complainants. In many of these instances, persons with grievances against a particular judge or judges used the Internet or other technology to orchestrate mass complaint-filing campaigns against them. If each complaint submitted as part of such a campaign were accepted for filing and processed according to these Rules, there would be a serious drain on court resources without any benefit to the adjudication of the underlying merits.

A judicial council may, therefore, respond to such mass filings under Rule 10(b) by declining to accept repetitive complaints for filing, regardless of the fact that the complaints are nominally submitted by different complainants. When the first complaint or complaints have been dismissed on the merits, and when further, essentially identical submissions follow, the judicial council may issue a second order noting that these are identical or repetitive complaints, directing the circuit clerk not to accept these complaints or any further such complaints for filing, and directing the clerk to send each putative complainant copies of both orders.

ARTICLE III. REVIEW OF COMPLAINT BY CHIEF JUDGE

Chief Judge’s Review

Purpose of Chief Judge’s Review. When a complaint is identified by the chief judge or is filed, the chief judge must review it unless the chief judge is disqualified under Rule 25. If a complaint contains information constituting evidence of misconduct or disability, but the complainant does not claim it as such, the chief judge must treat the complaint as if it did allege misconduct or disability and give notice to the subject judge. After reviewing a complaint, the chief judge must determine whether it should be:

dismissed;

concluded on the ground that voluntary corrective action has been taken;

concluded because intervening events have made action on the complaint no longer necessary; or

referred to a special committee.

Chief Judge’s Inquiry. In determining what action to take under Rule 11(a), the chief judge may conduct a limited inquiry. The chief judge, or a designee, may communicate orally or in writing with the complainant, the subject judge, and any others who may have knowledge of the matter, and may obtain and review transcripts and other relevant documents. In conducting the inquiry, the chief judge must not determine any reasonably disputed issue. Any such determination must be left to a special committee appointed under Rule 11(f) and to the judicial council that considers the committee’s report.

Dismissal;

Permissible grounds. A complaint must be dismissed in whole or in part to the extent that the chief judge concludes that the complaint:

alleges conduct that, even if true, is not prejudicial to the effective and expeditious administration of the business of the courts and does not indicate a mental or physical disability resulting in the inability to discharge the duties of judicial office;

is directly related to the merits of a decision or procedural ruling;

is frivolous;

is based on allegations lacking sufficient evidence to raise an inference that misconduct has occurred or that a disability exists;

is based on allegations that are incapable of being established through investigation;

has been filed in the wrong circuit under Rule 7; or

is otherwise not appropriate for consideration under the Act.

Impermissible grounds. A complaint must not be dismissed solely because it repeats allegations of a previously dismissed complaint if it also contains material information not previously considered and does not constitute harassment of the subject judge.

Corrective Action. The chief judge may conclude a complaint proceeding in whole or in part if:

an informal resolution under Rule 5 satisfactory to the chief judge was reached before the complaint was filed under Rule 6; or

the chief judge determines that the subject judge has taken appropriate voluntary corrective action that acknowledges and remedies the problems raised by the complaint.

Intervening Events. The chief judge may conclude a complaint proceeding in whole or in part upon determining that intervening events render some or all of the allegations moot or make remedial action impossible.

Appointment of Special Committee. If some or all of a complaint is not dismissed or concluded, the chief judge must promptly appoint a special committee to investigate the complaint or any relevant portion of it and to make recommendations to the judicial council. Before appointing a special committee, the chief judge must invite the subject judge to respond to the complaint either orally or in writing if the judge was not given an opportunity during the limited inquiry. In the chief judge’s discretion, separate complaints may be joined and assigned to a single special committee. Similarly, a single complaint about more than one judge may be severed and more than one special committee appointed.

Notice of Chief Judge’s Action; Petition for Review.

When chief judge appoints special committee. If the chief judge appoints a special committee, the chief judge must notify the complainant and the subject judge that the matter has been referred to a committee, notify the complainant of a complainant’s rights under Rule 16, and identify the members of the committee. A copy of the order appointing the special committee must be sent to the Committee on Judicial Conduct and Disability.

When chief judge disposes of complaint without appointing special committee. If the chief judge disposes of a complaint under Rule 11(c), (d), or (e), the chief judge must prepare a supporting memorandum that sets forth the reasons for the disposition. If the complaint was initiated by identification under Rule 5, the memorandum must so indicate. Except as authorized by 28 U.S.C. § 360, the memorandum must not include the name of the complainant or of the subject judge. The order and memoranda incorporated by reference in the order must be promptly sent to the complainant, the subject judge, and the Committee on Judicial Conduct and Disability.

Right to petition for review. If the chief judge disposes of a complaint under Rule 11(c), (d), or (e), the complainant and the subject judge must be notified of the right to petition the judicial council for review of the disposition, as provided in Rule 18. If the chief judge so disposes of a complaint that was identified under Rule 5 or filed by its subject judge, the chief judge must transmit the order and memoranda incorporated by reference in the order to the judicial council for review in accordance with Rule 19. In the event of such a transmission, the subject judge may make a written submission to the judicial council but will have no further right of review except as allowed under Rule 21(b)(1)(B). When a disposition is to be reviewed by the judicial council, the chief judge must promptly transmit all materials obtained in connection with the inquiry under Rule 11(b) to the circuit clerk for transmittal to the council.

Public Availability of Chief Judge’s Decision. The chief judge’s decision must be made public to the extent, at the time, and in the manner provided in Rule 24.

COMMENTARY ON RULE 11

This Rule describes complaint-review actions available either to the chief judge or, where that judge is the subject judge or is otherwise disqualified under Rule 25, to the judge designated under Rule 25(f) to perform the chief judge’s duties under these Rules. Subsection (a) of this Rule provides that where a complaint has been filed under Rule 6, the ordinary doctrines of waiver do not apply. The chief judge must identify as a complaint any misconduct or disability issues raised by the factual allegations of the complaint even if the complainant makes no such claim with regard to those issues. For example, an allegation limited to misconduct in fact-finding that mentions periods during a trial when the judge was asleep must be treated as a complaint regarding disability. A formal order giving notice of the expanded scope of the proceeding must be given to the subject judge.

Subsection (b) describes the nature of the chief judge’s inquiry. It is based largely on the Breyer Committee Report, 239 F.R.D. at 243–45. The Act states that dismissal is appropriate “when a limited inquiry . . . demonstrates that the allegations in the complaint lack any factual foundation or are conclusively refuted by objective evidence.” 28 U.S.C. § 352(b)(1)(B). At the same time, however, Section 352(a) states that “[t]he chief judge shall not undertake to make findings of fact about any matter that is reasonably in dispute.” These two statutory standards should be read together so that a matter is not “reasonably” in dispute if a limited inquiry shows that the allegations do not constitute misconduct or disability, that they lack any reliable factual foundation, or that they are conclusively refuted by objective evidence.

In conducting a limited inquiry under subsection (b), the chief judge must avoid determinations of reasonably disputed issues, including reasonably disputed issues as to whether the facts alleged constitute misconduct or disability, which are ordinarily left to the judicial council and its special committee. An allegation of fact is ordinarily not “refuted” simply because the subject judge denies it. The limited inquiry must reveal something more in the way of refutation before it is appropriate to dismiss a complaint that is otherwise cognizable. If it is the complainant’s word against the subject judge’s— in other words, there is simply no other significant evidence of what happened or of the complainant’s unreliability — then there must be a special-committee investigation.

Such a credibility issue is a matter “reasonably in dispute” within the meaning of the Act.

However, dismissal following a limited inquiry may occur when a complaint refers to transcripts or to witnesses and the chief judge determines that the transcripts and witnesses all support the subject judge. Breyer Committee Report, 239 F.R.D. at 243. For example, consider a complaint alleging that the subject judge said X, and the complaint mentions, or it is independently clear, that five people may have heard what the judge said. Id. The chief judge is told by the subject judge and one witness that the judge did not say X, and the chief judge dismisses the complaint without questioning the other four possible witnesses. Id. In this example, the matter remains reasonably in dispute. If all five witnesses say the subject judge did not say X, dismissal is appropriate, but if potential witnesses who are reasonably accessible have not been questioned, then the matter remains reasonably in dispute. Id.

Similarly, under subsection (c)(1)(A), if it is clear that the conduct or disability alleged, even if true, is not cognizable under these Rules, the complaint should be dismissed. If that issue is reasonably in dispute, however, dismissal under subsection (c)(1)(A) is inappropriate.

Essentially, the standard articulated in subsection (b) is that used to decide motions for summary judgment pursuant to Fed. R. Civ. P. 56. Genuine issues of material fact are not resolved at the summary judgment stage. A material fact is one that “might affect the outcome of the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Similarly, the chief judge may not resolve a genuine issue concerning a material fact or the existence of misconduct or a disability when conducting a limited inquiry pursuant to subsection (b).

Subsection (c) describes the grounds on which a complaint may be dismissed.

These are adapted from the Act, 28 U.S.C. § 352(b), and the Breyer Committee Report, 239 F.R.D. at 239–45.  Subsection (c)(1)(A) permits dismissal of an allegation that, even if true, does not constitute misconduct or disability under the statutory standard.

The proper standards are set out in Rule 3 and discussed in the Commentary on that Rule. Subsection (c)(1)(B) permits dismissal of complaints related to the merits of a decision by a subject judge; this standard is also governed by Rule 3 and its accompanying Commentary.

Subsections (c)(1)(C)–(E) implement the statute by allowing dismissal of complaints that are “frivolous, lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation.” 28 U.S.C. § 352(b)(1)(A)(iii).

Dismissal of a complaint as “frivolous” under Rule 11(c)(1)(C) will generally occur without any inquiry beyond the face of the complaint.  For instance, when the allegations are facially incredible or so lacking in indicia of reliability that no further inquiry is warranted, dismissal under this subsection is appropriate.

A complaint warranting dismissal under Rule 11(c)(1)(D) is illustrated by the following example. Consider a complainant who alleges an impropriety and asserts that he knows of it because it was observed and reported to him by a person who is identified. The subject judge denies that the event occurred. When contacted, the source also denies it. In such a case, the chief judge’s proper course of action may turn on whether the source had any role in the allegedly improper conduct. If the complaint was based on a lawyer’s statement that he or she had an improper ex parte contact with a judge, the lawyer’s denial of the impropriety might not be taken as wholly persuasive, and it would be appropriate to conclude that a real factual issue is raised. On the other hand, if the complaint quoted a disinterested third party and that disinterested party denied that the statement had been made, there would be no value in opening a formal investigation. In such a case, it would be appropriate to dismiss the complaint under Rule 11(c)(1)(D).

Rule 11(c)(1)(E) is intended, among other things, to cover situations when no evidence is offered or identified, or when the only identified source is unavailable.

Breyer Committee Report, 239 F.R.D. at 243. For example, a complaint alleges that an unnamed attorney told the complainant that the subject judge did X. Id. The subject judge denies it. The chief judge requests that the complainant (who does not purport to have observed the subject judge do X) identify the unnamed witness, or that the unnamed witness come forward so that the chief judge can learn the unnamed witness’s account. Id.  The complainant responds that he has spoken with the unnamed witness, that the unnamed witness is an attorney who practices in federal court, and that the unnamed witness is unwilling to be identified or to come forward. Id. at 243–44. The allegation is then properly dismissed as containing allegations that are incapable of being established through investigation. Id.

If, however, the situation involves a reasonable dispute over credibility, the matter should proceed. For example, the complainant alleges an impropriety and alleges that he or she observed it and that there were no other witnesses; the subject judge denies that the event occurred. Unless the complainant’s allegations are facially incredible or so lacking indicia of reliability as to warrant dismissal under Rule 11(c)(1)(C), a special committee must be appointed because there is a material factual question that is reasonably in dispute.

Dismissal is also appropriate when a complaint is filed so long after an alleged event that memory loss, death, or changes to unknown residences prevent a proper investigation.

Subsection (c)(2) indicates that the investigative nature of the process prevents the application of claim preclusion principles where new and material evidence becomes available. However, it also recognizes that at some point a renewed investigation may constitute harassment of the subject judge and should not be undertaken, depending of course on the seriousness of the issues and the weight of the new evidence.

Rule 11(d) implements the Act’s provision for dismissal if voluntary appropriate corrective action has been taken. It is largely adapted from the Breyer Committee Report, 239 F.R.D. at 244–45. The Act authorizes the chief judge to conclude the complaint proceedings if “appropriate corrective action has been taken.” 28 U.S.C. 352(b)(2). Under the Rule, action taken after a complaint is filed is “appropriate” when it acknowledges and remedies the problem raised by the complaint. Breyer Committee Report, 239 F.R.D. at 244. Because the Act deals with the conduct of judges, the emphasis is on correction of the judicial conduct that was the subject of the complaint.

Id. Terminating a complaint based on corrective action is premised on the implicit understanding that voluntary self-correction or redress of misconduct or a disability is preferable to sanctions. Id. The chief judge may facilitate this process by giving the subject judge an objective view of the appearance of the judicial conduct in question and by suggesting appropriate corrective measures. Id. Moreover, when corrective action is taken under Rule 5 satisfactory to the chief judge before a complaint is filed, that informal resolution will be sufficient to conclude a subsequent complaint based on identical conduct.

“Corrective action” must be voluntary action taken by the subject judge. Breyer Committee Report, 239 F.R.D. at 244. A remedial action directed by the chief judge or by an appellate court without the participation of the subject judge in formulating the directive or without the subject judge’s subsequent agreement to such action does not constitute the requisite voluntary corrective action. Id. Neither the chief judge nor an appellate court has authority under the Act to impose a formal remedy or sanction; only the judicial council can impose a formal remedy or sanction under 28 U.S.C. 354(a)(2). Id. Compliance with a previous judicial-council order may serve as corrective action allowing conclusion of a later complaint about the same behavior. Id.

Where a subject judge’s conduct has resulted in identifiable, particularized harm to the complainant or another individual, appropriate corrective action should include steps taken by that judge to acknowledge and redress the harm, if possible, such as by an apology, recusal from a case, or a pledge to refrain from similar conduct in the future. Id. While the Act is generally forward-looking, any corrective action should, to the extent possible, serve to correct a specific harm to an individual, if such harm can reasonably be remedied. Id. In some cases, corrective action may not be “appropriate” to justify conclusion of a complaint unless the complainant or other individual harmed is meaningfully apprised of the nature of the corrective action in the chief judge’s order, in a direct communication from the subject judge, or otherwise. Id.

Voluntary corrective action should be proportionate to any plausible allegations of misconduct in a complaint.  The form of corrective action should also be proportionate to any sanctions that the judicial council might impose under Rule 20(b), such as a private or public reprimand or a change in case assignments.  Breyer Committee Report, 239 F.R.D at 244–45. In other words, minor corrective action will not suffice to dispose of a serious matter. Id.

Rule 11(e) implements Section 352(b)(2) of the Act, which permits the chief judge to “conclude the proceeding,” if “action on the complaint is no longer necessary because of intervening events,” such as a resignation from judicial office. Ordinarily, however, stepping down from an administrative post such as chief judge, judicial-council member, or court-committee chair does not constitute an event rendering unnecessary any further action on a complaint alleging judicial misconduct. Breyer Committee Report, 239 F.R.D. at 245. As long as the subject of a complaint performs judicial duties, a complaint alleging judicial misconduct must be addressed. Id.

If a complaint is not disposed of pursuant to Rule 11(c), (d), or (e), a special committee must be appointed. Rule 11(f) states that a subject judge must be invited to respond to the complaint before a special committee is appointed, if no earlier response was invited.

Subject judges receive copies of complaints at the same time that they are referred to the chief judge, and they are free to volunteer responses to them. Under Rule 11(b), the chief judge may request a response if it is thought necessary. However, many complaints are clear candidates for dismissal even if their allegations are accepted as true, and there is no need for the subject judge to devote time to a defense.

The Act requires that the order dismissing a complaint or concluding a proceeding contain a statement of reasons and that a copy of the order be sent to the complainant. 28 U.S.C. § 352(b). Rule 24, dealing with availability of information to the public, contemplates that the order will be made public, usually without disclosing the names of the complainant or the subject judge. If desired for administrative purposes, more identifying information can be included in a non-public version of the order.

When a complaint is disposed of by the chief judge, the statutory purposes are best served by providing the complainant with a full, particularized, but concise explanation, giving reasons for the conclusions reached. See also Commentary on Rule 24 (dealing with public availability).

Rule 11(g) provides that the complainant and the subject judge must be notified, in the case of a disposition by the chief judge, of the right to petition the judicial council for review. Because an identified complaint has no “complainant” to petition for review, the chief judge’s dispositive order on such a complaint will be transmitted to the judicial council for review. The same will apply where a complaint was filed by its subject judge. A copy of the chief judge’s order, and memoranda incorporated by reference in the order, disposing of a complaint must be sent by the circuit clerk to the Committee on Judicial Conduct and Disability.

ARTICLE IV. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

Special Committee’s Composition

Membership. Except as provided in (e), a special committee appointed under Rule 11(f) must consist of the chief judge and equal numbers of circuit and district judges. These judges may include senior judges. If a complaint is about a district judge, bankruptcy judge, or magistrate judge, then, when possible, the district-judge members of the special committee must be from districts other than the district of the subject judge. For the courts named in 28 U.S.C. 363, the special committee must be selected from the judges serving on the subject judge’s court.

Presiding Officer. When appointing the special committee, the chief judge may serve as the presiding officer or else must designate a committee member as the presiding officer.

Bankruptcy Judge or Magistrate Judge as Adviser. If the subject judge is a bankruptcy judge or magistrate judge, he or she may, within 14 days after being notified of the special committee’s appointment, ask the chief judge to designate as a committee adviser another bankruptcy judge or magistrate judge, as the case may be. The chief judge must grant such a request but may otherwise use discretion in naming the adviser. Unless the adviser is a Court of Federal Claims special master appointed under 42 U.S.C. § 300aa-12(c), the adviser must be from a district other than the district of the subject bankruptcy judge or subject magistrate judge. The adviser cannot vote but has the other privileges of a special-committee member.

Provision of Documents. The chief judge must certify to each other member of the special committee and to any adviser copies of the complaint and statement of facts, in whole or relevant part, and any other relevant documents on file.

Continuing Qualification of Special-Committee Member. A member of a special committee may continue to serve on the committee even though the member relinquishes the position of chief judge, active circuit judge, or active district judge, as the case may be, but only if the member continues to hold office under Article III, Section 1, of the Constitution of the United States, or under 28 U.S.C. § 171.

Inability of Special-Committee Member to Complete Service. If a member of a special committee can no longer serve because of death, disability, disqualification, resignation, retirement from office, or other reason, the chief judge must decide whether to appoint a replacement member, either a circuit or district judge as needed under (a). No special committee appointed under these Rules may function with only a single member, and the votes of a two-member committee must be unanimous.

All actions by a special committee must be by vote of a majority of all members of the committee.

COMMENTARY ON RULE 12

This Rule is adapted from the Act and the Illustrative Rules.

Rule 12 leaves the size of a special committee flexible, to be determined on a case-by-case basis. The question the size of a special committee is one that should be weighed with care in view of the potential for consuming the members’ time; a large committee should be appointed only if there is a special reason to do so. Rule 12(a) acknowledges the common practice of including senior judges in the membership of a special committee.

Although the Act requires that the chief judge be a member of each special committee, 28 U.S.C. § 353(a)(1), it does not require that the chief judge preside. Accordingly, Rule 12(b) provides that if the chief judge does not preside, he or she must designate another member of the special committee as the presiding officer.

Rule 12(c) provides that the chief judge must appoint a bankruptcy judge or magistrate judge as an adviser to a special committee at the request of a bankruptcy or magistrate subject judge. Subsection (c) also provides that the adviser will have all the privileges of a member of the special committee except a vote. The adviser, therefore, may participate in all deliberations of the special committee, question witnesses at hearings, and write a separate statement to accompany the committee’s report to the judicial council.

Rule 12(e) provides that a member of a special committee who remains an Article III judge may continue to serve on the committee even though the member’s status otherwise changes. Thus, a special committee that originally consisted of the chief judge and an equal number of circuit and district judges, as required by the law, may continue to function even though changes of status alter that composition. This provision reflects the belief that stability of membership will contribute to the quality of the work of such committees.

Stability of membership is also the principal concern animating Rule 12(f), which deals with the case in which a special committee loses a member before its work is complete. The Rule permits the chief judge to determine whether a replacement member should be appointed. Generally, appointment of a replacement member is desirable in these situations unless the special committee has conducted evidentiary hearings before the vacancy occurs. However, cases may arise in which a special committee is in the late stages of its work, and in which it would be difficult for a new member to play a meaningful role. The Rule also preserves the collegial character of the special-committee process by prohibiting a single surviving member from serving as a committee and by providing that a committee of two surviving members will, in essence, operate under a unanimity rule.

Rule 12(g) provides that actions of a special committee must be by vote of a majority of all the members. All the members of a special committee should participate in committee decisions. In that circumstance, it seems reasonable to require that special-committee decisions be made by a majority of the membership, rather than a majority of some smaller quorum.

Conduct of Special-Committee Investigation

Extent and Methods of Special-Committee Investigation. A special committee should determine the appropriate extent and methods of its investigation in light of the allegations of the complaint and its preliminary inquiry. The investigation may include use of appropriate experts or other professionals. If, in the course of the investigation, the special committee has cause to believe that the subject judge may have engaged in misconduct or has a disability that is beyond the scope of the complaint, the committee must refer the new matter to the chief judge for a determination of whether action under Rule 5 or Rule 11 is necessary before the committee’s investigation is expanded to include the new matter.

Criminal Conduct. If the special committee’s investigation concerns conduct that may be a crime, the committee must consult with the appropriate prosecutorial authorities to the extent permitted by the Act to avoid compromising any criminal investigation. The special committee has final authority over the timing and extent of its investigation and the formulation of its recommendations.

The special committee may arrange for staff assistance to conduct the investigation. It may use existing staff of the judiciary or may hire special staff through the Director of the Administrative Office of the United States Courts.

Delegation of Subpoena Power; Contempt. The chief judge may delegate the authority to exercise the subpoena powers of the special committee. The judicial council or special committee may institute a contempt proceeding under 28 U.S.C. § 332(d) against anyone who fails to comply with a subpoena.

COMMENTARY ON RULE 13

This Rule is adapted from the Illustrative Rules.

Rule 13, as well as Rules 14, 15, and 16, are concerned with the way in which the special committee carries out its mission. They reflect the view that the special committee has two roles that are separated in ordinary litigation. First, the special committee has an investigative role of the kind that is characteristically left to executive branch agencies or discovery by civil litigants. 28 U.S.C. § 353(c). Second, it has a formalized fact-finding and recommendation-of-disposition role that is characteristically left to juries, judges, or arbitrators. Id. Rule 13 generally governs the investigative stage. Even though the same body has responsibility for both roles under the Act, it is important to distinguish between them in order to ensure that appropriate rights are afforded at appropriate times to the subject judge.

Rule 13(a) includes a provision making clear that the special committee may choose to consult appropriate experts or other professionals if it determines that such a consultation is warranted. If, for example, the special committee has cause to believe that the subject judge may be unable to discharge all of the duties of office by reason of mental or physical disability, the committee could ask the subject judge to respond to inquiries and, if necessary, request the judge to undergo a medical or psychological examination.  In advance of any such examination, the special committee may enter into an agreement with the subject judge as to the scope and use that may be made of the examination results. In addition or in the alternative, the special committee may ask to review existing records, including medical records.

The extent of the subject judge’s cooperation in the investigation may be taken into account in the consideration of the underlying complaint. If, for example, the subject judge impedes reasonable efforts to confirm or disconfirm the presence of a disability, the special committee may still consider whether the conduct alleged in the complaint and confirmed in the investigation constitutes disability. The same would be true of a complaint alleging misconduct.

The special committee may also consider whether such a judge might be in violation of his or her duty to cooperate in an investigation under these Rules, a duty rooted not only in the Act’s definition of misconduct but also in the Code of Conduct for United States Judges, which emphasizes the need to maintain public confidence in the judiciary, see Canon 2(A) and Canon 1 cmt., and requires judges to “facilitate the performance of the administrative responsibilities of other judges and court personnel,” Canon 3(B)(1). If the special committee finds a breach of the duty to cooperate and believes that the breach may amount to misconduct under Rule 3(h)(1)(H), it should determine, under the final sentence of Rule 13(a), whether that possibility should be referred to the chief judge for consideration of action under Rule 5 or Rule 11. See also Commentary on Rule 3.

One of the difficult questions that can arise is the relationship between proceedings under the Act and criminal investigations. Rule 13(b) assigns responsibility for coordination to the special committee in cases in which criminal conduct is suspected, but gives the committee the authority to determine the appropriate pace of its activity in light of any criminal investigation.

Title 28 U.S.C. § 356(a) provides that a special committee will have full subpoena powers as provided in 28 U.S.C. § 332(d). Section 332(d)(1) provides that subpoenas will be issued on behalf of a judicial council by the circuit clerk “at the direction of the chief judge of the circuit or his designee.” Rule 13(d) contemplates that, where the chief judge designates someone else as presiding officer of the special committee, the presiding officer also be delegated the authority to direct the circuit clerk to issue subpoenas related to committee proceedings. That is not intended to imply, however, that the decision to use the subpoena power is exercisable by the presiding officer alone. See Rule 12(g).

Conduct of Special-Committee Hearings

Purpose of Hearings. The special committee may hold hearings to take testimony and receive other evidence, to hear argument, or both. If the special committee is investigating allegations against more than one judge, it may hold joint or separate hearings.

Special-Committee Evidence. Subject to Rule 15, the special committee must obtain material, nonredundant evidence in the form it considers appropriate. In the special committee’s discretion, evidence may be obtained by committee members, staff, or Witnesses offering testimonial evidence may include the complainant and the subject judge.

Counsel for Witnesses. The subject judge has the right to counsel. The special committee has discretion to decide whether other witnesses may have counsel present when they testify.

Witness Fees. Witness fees must be paid as provided in 28 S.C. 1821.

All testimony taken at a hearing must be given under oath or affirmation.

Rules of Evidence. The Federal Rules of Evidence do not apply to special-committee hearings.

Record and Transcript. A record and transcript must be made of all hearings.

COMMENTARY ON RULE 14

This Rule is adapted from the Act, 28 U.S.C. § 353, and the Illustrative Rules. Rule 14 is concerned with the conduct of fact-finding hearings.

Special-committee hearings will normally be held only after the investigative work has been completed and the committee has concluded that there is sufficient evidence to warrant a formal fact-finding proceeding. Special-committee proceedings are primarily inquisitorial rather than adversarial. Accordingly, the Federal Rules of Evidence do not apply to such hearings. Inevitably, a hearing will have something of an adversary character. Nevertheless, that tendency should be moderated to the extent possible.

Even though a proceeding will commonly have investigative and hearing stages, special-committee members should not regard themselves as prosecutors one day and judges the next. Their duty — and that of their staff — is at all times to be impartial seekers of the truth.

Rule 14(b) contemplates that material evidence will be obtained by the special committee and presented in the form of affidavits, live testimony, etc. Staff or others who are organizing the hearings should regard it as their role to present evidence representing the entire picture. With respect to testimonial evidence, the subject judge should normally be called as a special-committee witness. Cases may arise in which the subject judge will not testify voluntarily. In such cases, subpoena powers are available, subject to the normal testimonial privileges. Although Rule 15(c) recognizes the subject judge’s statutory right to call witnesses on his or her own behalf, exercise of this right should not usually be necessary.

Subject Judge’s Rights

Notice.

The subject judge must receive written notice of:

the appointment of a special committee under Rule 11(f);

the expansion of the scope of an investigation under Rule 13(a);

any hearing under Rule 14, including its purposes, the names of any witnesses the special committee intends to call, and the text of any statements that have been taken from those witnesses.

Suggestion of additional witnesses. The subject judge may suggest additional witnesses to the special committee.

Special-Committee Report. The subject judge must be sent a copy of the special committee’s report when it is filed with the judicial council.

Presentation of Evidence. At any hearing held under Rule 14, the subject judge has the right to present evidence, to compel the attendance of witnesses, and to compel the production of documents. At the request of the subject judge, the chief judge or the judge’s designee must direct the circuit clerk to issue a subpoena to a witness under 28 U.S.C. § 332(d)(1). The subject judge must be given the opportunity to cross-examine special-committee witnesses, in person or by counsel.

Presentation of Argument. The subject judge may submit written argument to the special committee and must be given a reasonable opportunity to present oral argument at an appropriate stage of the investigation.

Attendance at Hearings. The subject judge has the right to attend any hearing held under Rule 14 and to receive copies of the transcript, of any documents introduced, and of any written arguments submitted by the complainant to the special committee.

Representation by Counsel. The subject judge may choose to be represented by counsel in the exercise of any right enumerated in this Rule. As provided in Rule 20(e), the United States may bear the costs of the representation.

COMMENTARY ON RULE 15

This Rule is adapted from the Act and the Illustrative Rules.

The Act states that these Rules must contain provisions requiring that “the judge whose conduct is the subject of a complaint . . . be afforded an opportunity to appear (in person or by counsel) at proceedings conducted by the investigating panel, to present oral and documentary evidence, to compel the attendance of witnesses or the production of documents, to cross-examine witnesses, and to present argument orally or in writing.” 28 U.S.C. § 358(b)(2). To implement this provision, Rule 15(e) gives the subject judge the right to attend any hearing held for the purpose of receiving evidence of record or hearing argument under Rule 14.

The Act does not require that the subject judge be permitted to attend all proceedings of the special committee. Accordingly, the Rules do not give a right to attend other proceedings — for example, meetings at which the special committee is engaged in investigative activity, such as interviewing persons to learn whether they ought to be called as witnesses or examining for relevance purposes documents delivered pursuant to a subpoena duces tecum, or meetings in which the committee is deliberating on the evidence or its recommendations.

Complainant’s Rights in Investigation

Notice. The complainant must receive written notice of the investigation as provided in Rule 11(g)(1). When the special committee’s report to the judicial council is filed, the complainant must be notified of the filing. The judicial council may, in its discretion, provide a copy of the report of a special committee to the complainant.

Opportunity to Provide Evidence. If the complainant knows of relevant evidence not already before the special committee, the complainant may briefly explain in writing the basis of that knowledge and the nature of that evidence. If the special committee determines that the complainant has information not already known to the committee that would assist in the committee’s investigation, a representative of the committee must interview the complainant.

Presentation of Argument. The complainant may submit written argument to the special committee. In its discretion, the special committee may permit the complainant to offer oral argument.

Representation by Counsel. A complainant may submit written argument through counsel and, if permitted to offer oral argument, may do so through counsel.

Cooperation.  In exercising its discretion under this Rule, the special committee may take into account the degree of the complainant’s cooperation in preserving the confidentiality of the proceedings, including the identity of the subject judge.

COMMENTARY ON RULE 16

This Rule is adapted from the Act and the Illustrative Rules.

In accordance with the view of the process as fundamentally administrative and inquisitorial, these Rules do not give the complainant the rights of a party to litigation and leave the complainant’s role largely to the discretion of the special committee.

However, Rule 16(b) gives the complainant the prerogative to make a brief written submission showing that he or she is aware of relevant evidence not already known to the special committee. (Such a submission may precede any written or oral argument the complainant provides under Rule 16(c), or it may accompany that argument.) If the special committee determines, independently or from the complainant’s submission, that the complainant has information that would assist the committee in its investigation, the complainant must be interviewed by a representative of the committee. Such an interview may be in person or by telephone, and the representative of the special committee may be either a member or staff.

Rule 16 does not contemplate that the complainant will ordinarily be permitted to attend proceedings of the special committee except when testifying or presenting oral argument. A special committee may exercise its discretion to permit the complainant to be present at its proceedings, or to permit the complainant, individually or through counsel, to participate in the examination or cross-examination of witnesses.

The Act authorizes an exception to the normal confidentiality provisions where the judicial council in its discretion provides a copy of the report of the special committee to the complainant and to the subject judge. 28 U.S.C. § 360(a)(1).

However, the Rules do not entitle the complainant to a copy of the special committee’s report.

In exercising their discretion regarding the role of the complainant, the special committee and the judicial council should protect the confidentiality of the complaint process. As a consequence, subsection (e) provides that the special committee may consider the degree to which a complainant has cooperated in preserving the confidentiality of the proceedings in determining what role beyond the minimum required by these Rules should be given to that complainant.

Special-Committee Report

The special committee must file with the judicial council a comprehensive report of its investigation, including findings and recommendations for council action. The report must be accompanied by a statement of the vote by which it was adopted, any separate or dissenting statements of special-committee members, and the record of any hearings held under Rule 14. In addition to being sent to the subject judge under Rule 15(b), a copy of the report and any accompanying statements and documents must be sent to the Committee on Judicial Conduct and Disability.

COMMENTARY ON RULE 17

This Rule is adapted from the Illustrative Rules and is self-explanatory. The provision for sending a copy of the special-committee report and accompanying statements and documents to the Committee on Judicial Conduct and Disability was new at the time the Judicial Conference promulgated the Rules for Judicial-Conduct and Judicial-Disability Proceedings in 2008.

ARTICLE V. REVIEW BY JUDICIAL COUNCIL

Petition for Review of Chief-Judge Disposition Under Rule 11(c), (d), or (e)

Petition for Review. After the chief judge issues an order under Rule 11(c), (d), or (e), the complainant or the subject judge may petition the judicial council of the circuit to review the order. By rules promulgated under 28 U.S.C. § 358, the judicial council may refer a petition for review filed under this Rule to a panel of no fewer than five members of the council, at least two of whom must be district judges.

When to File; Form; Where to File. A petition for review must be filed in the office of the circuit clerk within 42 days after the date of the chief judge’s order. The petition for review should be in letter form, addressed to the circuit clerk, and in an envelope marked “Misconduct Petition” or “Disability Petition.” The name of the subject judge must not be shown on the envelope. The petition for review should be typewritten or otherwise legible. It should begin with “I hereby petition the judicial council for review of . . . ” and state the reasons why the petition should be granted. It must be signed.

Receipt and Distribution of Petition. A circuit clerk who receives a petition for review filed in accordance with this Rule must:

acknowledge its receipt and send a copy to the complainant or subject judge, as the case may be;

promptly distribute to each member of the judicial council, or its relevant panel, except for any member disqualified under Rule 25, or make available in the manner provided by local rule, the following materials:

copies of the complaint;

all materials obtained by the chief judge in connection with the inquiry;

the chief judge’s order disposing of the complaint;

any memorandum in support of the chief judge’s order;

the petition for review; and

an appropriate ballot; and

send the petition for review to the Committee on Judicial Conduct and Disability. Unless the Committee on Judicial Conduct and Disability requests them, the circuit clerk will not send copies of the materials obtained by the chief judge.

Untimely Petition. The circuit clerk must refuse to accept a petition that is received after the time allowed in (b).

Timely Petition Not in Proper Form. When the circuit clerk receives a petition for review filed within the time allowed but in a form that is improper to a degree that would substantially impair its consideration by the judicial council — such as a document that is ambiguous about whether it is intended to be a petition for review — the circuit clerk must acknowledge its receipt, call the filer’s attention to the deficiencies, and give the filer the opportunity to correct the deficiencies within the original time allowed for filing the petition or within 21 days after the date on which a notice of the deficiencies was sent to the complainant, whichever is later. If the deficiencies are corrected within the time allowed, the circuit clerk will proceed according to paragraphs (a) and (c) of this Rule. If the deficiencies are not corrected, the circuit clerk must reject the petition.

COMMENTARY ON RULE 18

Rule 18 is adapted largely from the Illustrative Rules.

Subsection (a) permits the subject judge, as well as the complainant, to petition for review of the chief judge’s order dismissing a complaint under Rule 11(c), or concluding that appropriate corrective action or intervening events have remedied or mooted the problems raised by the complaint pursuant to Rule 11(d) or (e). Although the subject judge may ostensibly be vindicated by the dismissal or conclusion of a complaint, the chief judge’s order may include language disagreeable to the subject judge. For example, an order may dismiss a complaint, but state that the subject judge did in fact engage in misconduct. Accordingly, a subject judge may wish to object to the content of the order and is given the opportunity to petition the judicial council of the circuit for review.

Subsection (b) contains a time limit of 42 days to file a petition for review. It is important to establish a time limit on petitions for review of chief judges’ dispositions in order to provide finality to the process. If the complaint requires an investigation, the investigation should proceed; if it does not, the subject judge should know that the matter is closed.

The standards for timely filing under the Federal Rules of Appellate Procedure should be applied to petitions for review. See Fed. R. App. P. 25(a)(2)(A), (C).

Rule 18(e) provides for an automatic extension of the time limit imposed under subsection (b) if a person files a petition that is rejected for failure to comply with formal requirements.

Judicial-Council Disposition of Petition for Review

Rights of Subject Judge. At any time after a complainant files a petition for review, the subject judge may file a written response with the circuit clerk. The circuit clerk must promptly distribute copies of the response to each member of the judicial council or of the relevant panel, unless that member is disqualified under Rule 25. Copies must also be distributed to the chief judge, to the complainant, and to the Committee on Judicial Conduct and Disability. The subject judge must not otherwise communicate with individual judicial-council members about the matter. The subject judge must be given copies of any communications to the judicial council from the complainant.

Judicial-Council Action. After considering a petition for review and the materials before it, the judicial council may:

affirm the chief judge’s disposition by denying the petition;

return the matter to the chief judge with directions to conduct a further inquiry under Rule 11(b) or to identify a complaint under Rule 5;

return the matter to the chief judge with directions to appoint a special committee under Rule 11(f); or

in exceptional circumstances, take other appropriate action.

Notice of Judicial-Council Decision. Copies of the judicial council’s order, together with memoranda incorporated by reference in the order and separate concurring or dissenting statements, must be given to the complainant, the subject judge, and the Committee on Judicial Conduct and Disability.

Memorandum of Judicial-Council Decision. If the judicial council’s order affirms the chief judge’s disposition, a supporting memorandum must be prepared only if the council concludes that there is a need to supplement the chief judge’s explanation. A memorandum supporting a judicial-council order must not include the name of the complainant or the subject judge.

Review of Judicial-Council Decision. If the judicial council’s decision is adverse to the petitioner, and if no member of the council dissented, the complainant must be notified that he or she has no right to seek review of the decision. If there was a dissent, the petitioner must be informed that he or she can file a petition for review under Rule 21(b).

Public Availability of Judicial-Council Decision. Materials related to the judicial council’s decision must be made public to the extent, at the time, and in the manner set forth in Rule 24.

COMMENTARY ON RULE 19

This Rule is adapted largely from the Act and is self-explanatory.

The judicial council should ordinarily review the decision of the chief judge on the merits, treating the petition for review for all practical purposes as an appeal. The judicial council may respond to a petition for review by affirming the chief judge’s order, remanding the matter, or, in exceptional cases, taking other appropriate action. A petition for review of a judicial council’s decision may be filed under Rule 21(b) in any matter in which one or more members of the council dissented from the order.

Judicial-Council Action Following Appointment of Special Committee

Subject Judge’s Rights. Within 21 days after the filing of the report of a special committee, the subject judge may send a written response to the members of the judicial council. The subject judge must also be given an opportunity to present argument, personally or through counsel, written or oral, as determined by the judicial council. The subject judge must not otherwise communicate with judicial-council members about the matter.

Judicial-Council Action.

Discretionary actions. Subject to the subject judge’s rights set forth in subsection (a), the judicial council may:

dismiss the complaint because:

even if the claim is true, the claimed conduct is not conduct prejudicial to the effective and expeditious administration of the business of the courts and does not indicate a mental or physical disability resulting in inability to discharge the duties of office;

the complaint is directly related to the merits of a decision or procedural ruling;

the facts on which the complaint is based have not been established; or

the complaint is otherwise not appropriate for consideration under 28 U.S.C. §§ 351–364.

conclude the proceeding because appropriate corrective action has been taken or intervening events have made the proceeding unnecessary.

refer the complaint to the Judicial Conference with the judicial council’s recommendations for action.

take remedial action to ensure the effective and expeditious administration of the business of the courts, including:

censuring or reprimanding the subject judge, either by private communication or by public announcement;

ordering that no new cases be assigned to the subject judge for a limited, fixed period;

in the case of a magistrate judge, ordering the chief judge of the district court to take action specified by the council, including the initiation of removal proceedings under 28 U.S.C. § 631(i) or 42 U.S.C. § 300aa-12(c)(2);

in the case of a bankruptcy judge, removing the judge from office under 28 U.S.C. § 152(e);

in the case of a circuit or district judge, requesting the judge to retire voluntarily with the provision (if necessary) that ordinary length-of-service requirements be waived;

in the case of a circuit or district judge who is eligible to retire but does not do so, certifying the disability of the judge under 28 U.S.C. § 372(b) so that an additional judge may be appointed; and

in the case of a circuit chief judge or district chief judge, finding that the judge is temporarily unable to perform chief-judge duties, with the result that those duties devolve to the next eligible judge in accordance with 28 U.S.C. § 45(d) or 136(e).

take any combination of actions described in (b)(1)(A)-(D) of this Rule that is within its pwer.

Mandatory actions. A judicial council must refer a complaint to the Judicial Conference if the council determines that a circuit judge or district judge may have engaged in conduct that:

might constitute ground for impeachment; or

in the interest of justice, is not amenable to resolution by the judicial council.

Inadequate Basis for Decision. If the judicial council finds that a special committee’s report, recommendations, and record provide an inadequate basis for decision, it may return the matter to the committee for further investigation and a new report, or it may conduct further investigation. If the judicial council decides to conduct further investigation, the subject judge must be given adequate prior notice in writing of that decision and of the general scope and purpose of the additional investigation. The judicial council’s conduct of the additional investigation must generally accord with the procedures and powers set forth in Rules 13 through 16 for the conduct of an investigation by a special committee.

Judicial-Council Vote. Judicial-council action must be taken by a majority of those members of the council who are not disqualified. A decision to remove a bankruptcy judge from office requires a majority vote of all the members of the judicial council.

Recommendation for Fee Reimbursement. If the complaint has been finally dismissed or concluded under (b)(1)(A) or (B) of this Rule, and if the subject judge so requests, the judicial council may recommend that the Director of the Administrative Office use funds appropriated to the judiciary to reimburse the judge for reasonable expenses incurred during the investigation, when those expenses would not have been incurred but for the requirements of the Act and these Rules. Reasonable expenses include attorneys’ fees and expenses related to a successful defense or prosecution of a proceeding under Rule 21(a) or (b).

Judicial-Council Order. Judicial-council action must be by written order. Unless the judicial council finds that extraordinary reasons would make it contrary to the interests of justice, the order must be accompanied by a memorandum setting forth the factual determinations on which it is based and the reasons for the council action. Such a memorandum may incorporate all or part of any underlying special-committee report. If the complaint was initiated by identification under Rule 5, the memorandum must so indicate. The order and memoranda incorporated by reference in the order must be provided to the complainant, the subject judge, and the Committee on Judicial Conduct and Disability. The complainant and the subject judge must be notified of any right to review of the judicial council’s decision as provided in Rule 21(b). If the complaint was identified under Rule 5 or filed by its subject judge, the judicial council must transmit the order and memoranda incorporated by reference in the order to the Committee on Judicial Conduct and Disability for review in accordance with Rule 21. In the event of such a transmission, the subject judge may make a written submission to the Committee on Judicial Conduct and Disability but will have no further right of review.

COMMENTARY ON RULE 20

This Rule is largely adapted from the Illustrative Rules.

Rule 20(a) provides that within 21 days after the filing of the report of a special committee, the subject judge may address a written response to all of the members of the judicial council. The subject judge must also be given an opportunity to present argument to the judicial council, personally or through counsel, or both, at the direction of the council. Whether that argument is written or oral would be for the judicial council to determine. The subject judge may not otherwise communicate with judicial-council members about the matter.

Rule 20(b)(1)(D) recites the remedial actions enumerated in 28 U.S.C. § 354(a)(2) while making clear that this list is not exhaustive. A judicial council may consider lesser remedies. Some remedies may be unique to senior judges, whose caseloads can be modified by agreement or through statutory designation and certification processes.

Under 28 U.S.C. §§ 45(d) and 136(e), which provide for succession where “a chief judge is temporarily unable to perform his duties as such,” the determination whether such an inability exists is not expressly reserved to the chief judge. Nor, indeed, is it assigned to any particular judge or court-governance body. Clearly, however, a chief judge’s inability to function as chief could implicate “the effective and expeditious administration of justice,” which the judicial council of the circuit must, under 28 U.S.C. § 332(d)(1), “make all necessary and appropriate orders” to secure. For this reason, such reassignment is among a judicial council’s remedial options, as subsection (b)(1)(D)(vii) makes clear. Consistent with 28 U.S.C. §§ 45(d) and 136(e), however, any reassignment of chief-judge duties must not outlast the subject judge’s inability to perform them. Nor can such reassignment result in any extension of the subject judge’s term as chief judge.

Rule 20(c) provides that if the judicial council decides to conduct an additional investigation, the subject judge must be given adequate prior notice in writing of that decision and of the general scope and purpose of the additional investigation. The conduct of the investigation will be generally in accordance with the procedures set forth in Rules 13 through 16 for the conduct of an investigation by a special committee.

However, if hearings are held, the judicial council may limit testimony or the presentation of evidence to avoid unnecessary repetition of testimony and evidence before the special committee.

Rule 20(d) provides that judicial-council action must be taken by a majority of those members of the council who are not disqualified, except that a decision to remove a bankruptcy judge from office requires a majority of all the members of the council as required by 28 U.S.C. § 152(e).  However, it is inappropriate to apply a similar rule to the less severe actions that a judicial council may take under the Act. If some members of the judicial council are disqualified in the matter, their disqualification should not be given the effect of a vote against council action.

With regard to Rule 20(e), the judicial council, on the request of the subject judge, may recommend to the Director of the Administrative Office that the subject judge be reimbursed for reasonable expenses incurred, including attorneys’ fees. The judicial council has the authority to recommend such reimbursement where, after investigation by a special committee, the complaint has been finally dismissed or concluded under subsection (b)(1)(A) or (B) of this Rule. It is contemplated that such reimbursement may be provided for the successful prosecution or defense of a proceeding under Rule 21(a) or (b), in other words, one that results in a Rule 20(b)(1)(A) or (B) dismissal or conclusion.

Rule 20(f) requires that judicial-council action be by order and, normally, that it be supported with a memorandum of factual determinations and reasons. Notice of the action must be given to the complainant and the subject judge, and must include notice of any right to petition for review of the judicial council’s decision under Rule 21(b).

Because an identified complaint has no “complainant” to petition for review, a judicial council’s dispositive order on an identified complaint on which a special committee has been appointed must be transmitted to the Committee on Judicial Conduct and Disability for review. The same will apply where a complaint was filed by its subject judge.

ARTICLE VI. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

Committee on Judicial Conduct and Disability

Committee Review. The Committee on Judicial Conduct and Disability, consisting of seven members, considers and disposes of all petitions for review under (b) of this Rule, in conformity with the Committee’s jurisdictional statement. Its review of judicial-council orders is for errors of law, clear errors of fact, or abuse of discretion. Its disposition of petitions for review is ordinarily final. The Judicial Conference may, in its sole discretion, review any such Committee decision, but a complainant or subject judge does not have a right to this review.

Reviewable Upon petition. A complainant or subject judge may petition the Committee for review of a judicial-council order entered in accordance with:

(A)       Rule 20(b)(1)(A), (B), (D), or (E); or

(B)       Rule 19(b)(1) or (4) if one or more members of the judicial council dissented from the order.

Upon Committee’s initiative. At its initiative and in its sole discretion, the Committee may review any judicial-council order entered under Rule 19(b)(1) or (4), but only to determine whether a special committee should be appointed. Before undertaking the review, the Committee must invite that judicial council to explain why it believes the appointment of a special committee is unnecessary, unless the reasons are clearly stated in the council’s order denying the petition for review. If the Committee believes that it would benefit from a submission by the subject judge, it may issue an appropriate request. If the Committee determines that a special committee should be appointed, the Committee must issue a written decision giving its reasons.

Committee Vote. Any member of the Committee from the same circuit as the subject judge is disqualified from considering or voting on a petition for review related to that subject judge. Committee decisions under (b) of this Rule must be by majority vote of the qualified Committee members. Those members hearing the petition for review should serve in that capacity until final disposition of the petition, whether or not their term of committee membership has ended. If only six members are qualified to consider a petition for review, the Chief Justice shall select an additional judge to join the qualified members to consider the petition. If four or fewer members are qualified to consider a petition for review, the Chief Justice shall select a panel of five judges, including the qualified Committee members, to consider it.

Additional Investigation. Except in extraordinary circumstances, the Committee will not conduct an additional investigation. The Committee may return the matter to the judicial council with directions to undertake an additional investigation. If the Committee conducts an additional investigation, it will exercise the powers of the Judicial Conference under 28 U.S.C. § 331.

Oral Argument; Personal Appearance. There is ordinarily no oral argument or personal appearance before the Committee. In its discretion, the Committee may permit written submissions.

Committee Decision. A Committee decision under this Rule must be transmitted promptly to the Judicial Conference. Other distribution will be by the Administrative Office at the direction of the Committee chair.

All orders of the Judicial Conference or of the Committee (when the Conference does not exercise its power of review) are final.

COMMENTARY ON RULE 21

This Rule is largely self-explanatory.

Rule 21(a) is intended to clarify that the delegation of power to the Committee on Judicial Conduct and Disability to dispose of petitions for review does not preclude review of such dispositions by the Judicial Conference. However, there is no right to such review in any party.

Rules 21(b)(1)(B) and (b)(2) are intended to fill a jurisdictional gap as to review of a dismissal or a conclusion of a complaint under Rule 19(b)(1) or (4). Where one or more members of a judicial council reviewing a petition have dissented, the complainant or the subject judge has the right to petition for review by the Committee. Under Rule 21(b)(2), the Committee may review such a dismissal or conclusion in its sole discretion, whether or not a dissent occurred, and only as to the appointment of a special committee. Any review under Rule 21(b)(2) will be conducted as soon as practicable after the dismissal or conclusion at issue. No party has a right to such review, and such review will be rare.

Rule 21(c) provides for review only by Committee members from circuits other than that of the subject judge. The Rule provides that every petition for review must be considered and voted on by at least five, and if possible by seven, qualified Committee members to avoid the possibility of tie votes. If six, or four or fewer, members are qualified, the Chief Justice shall appoint other judges to join the qualified members to consider the petition for review. To the extent possible, the judges whom the Chief Justice selects to join the qualified members should be drawn from among former members of the Committee.

Under this Rule, all Committee decisions are final in that they are unreviewable unless the Judicial Conference, in its discretion, decides to review a decision.

Committee decisions, however, do not necessarily constitute final action on a complaint for purposes of Rule 24.

Procedures for Review

Filing Petition for Review. A petition for review of a judicial-council decision on a reviewable matter, as defined in Rule 21(b)(1), may be filed by sending a brief written statement to the Committee on Judicial Conduct and Disability at JCD_PetitionforReview@ao.uscourts.gov or to:

Judicial Conference Committee on Judicial Conduct and Disability
Attn: Office of General Counsel
Administrative Office of the United States Courts One Columbus Circle, NE
Washington, D.C. 20544

The Administrative Office will send a copy of the petition for review to the complainant or the subject judge, as the case may be.

Form and Contents of Petition. No particular form is required. The petition for review must contain a short statement of the basic facts underlying the complaint, the history of its consideration before the appropriate judicial council, a copy of the council’s decision, and the grounds on which the petitioner seeks review. The petition for review must specify the date and docket number of the judicial-council order for which review is sought. The petitioner may attach any documents or correspondence arising in the course of the proceeding before the judicial council or its special committee. A petition for review should not normally exceed 20 pages plus necessary attachments. A petition for review must be signed by the petitioner or his or her attorney.

A petition for review must be submitted within 42 days after the date of the order for which review is sought.

Action on Receipt of Petition. When a petition for review of a judicial-council decision on a reviewable matter, as defined in Rule 21(b)(1), is submitted in accordance with this Rule, the Administrative Office shall acknowledge its receipt, notify the chair of the Committee on Judicial Conduct and Disability, and distribute the petition to the members of the Committee for their deliberation.

COMMENTARY ON RULE 22

Rule 22 is self-explanatory.

ARTICLE VII. MISCELLANEOUS RULES

Confidentiality

General Rule. The consideration of a complaint by a chief judge, a special committee, a judicial council, or the Committee on Judicial Conduct and Disability is confidential. Information about this consideration must not be disclosed by any judge or employee of the judiciary or by any person who records or transcribes testimony except as allowed by these Rules. A chief judge may disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.

All files related to a complaint must be separately maintained with appropriate security precautions to ensure confidentiality.

Disclosure in Decisions. Except as otherwise provided in Rule 24, written decisions of a chief judge, a judicial council, or the Committee on Judicial Conduct and Disability, and dissenting opinions or separate statements of members of a council or the Committee may contain information and exhibits that the authors consider appropriate for inclusion, and the information and exhibits may be made public.

Availability to Judicial Conference. On request of the Judicial Conference or its Committee on Judicial Conduct and Disability, the circuit clerk must furnish any requested records related to a complaint. For auditing purposes, the circuit clerk must provide access to the Committee on Judicial Conduct and Disability to records of proceedings under the Act at the site where the records are kept.

Availability to District Court. If the judicial council directs the initiation of proceedings for removal of a magistrate judge under Rule 20(b)(1)(D)(iii), the circuit clerk must provide to the chief judge of the district court copies of the report of the special committee and any other documents and records that were before the council at the time of its decision. On request of the chief judge of the district court, the judicial council may authorize release to that chief judge of any other records relating to the investigation.

Impeachment Proceedings. If the Judicial Conference determines that consideration of impeachment may be warranted, it must transmit the record of all relevant proceedings to the Speaker of the House of Representatives.

Subject Judge’s Consent. If both the subject judge and the chief judge consent in writing, any materials from the files may be disclosed to any person. In any such disclosure, the chief judge may require that the identity of the complainant, or of witnesses in an investigation conducted under these Rules, not be revealed.

Disclosure in Special Circumstances. The Judicial Conference, its Committee on Judicial Conduct and Disability, or a judicial council may authorize disclosure of information about the consideration of a complaint, including the papers, documents, and transcripts relating to the investigation, to the extent that disclosure is justified by special circumstances and is not prohibited by the Act. Disclosure may be made to judicial researchers engaged in the study or evaluation of experience under the Act and related modes of judicial discipline, but only where the study or evaluation has been specifically approved by the Judicial Conference or by the Committee on Judicial Conduct and Disability. Appropriate steps must be taken to protect the identities of the subject judge, the complainant, and witnesses from public disclosure. Other appropriate safeguards to protect against the dissemination of confidential information may be imposed.

Disclosure of Identity by Subject Judge. Nothing in this Rule precludes the subject judge from acknowledging that he or she is the judge referred to in documents made public under Rule 24.

Assistance and Consultation. Nothing in this Rule prohibits a chief judge, a special committee, a judicial council, or the Judicial Conference or its Committee on Judicial Conduct and Disability, in the performance of any function authorized under the Act or these Rules, from seeking the help of qualified staff or experts or from consulting other judges who may be helpful regarding the performance of that function.

COMMENTARY ON RULE 23

Rule 23 was adapted from the Illustrative Rules.

The Act applies a rule of confidentiality to “papers, documents, and records of proceedings related to investigations conducted under this chapter” and states that they may not be disclosed “by any person in any proceeding,” with enumerated exceptions. 28 U.S.C. § 360(a). Three questions arise: Who is bound by the confidentiality rule, what proceedings are subject to the rule, and who is within the circle of people who may have access to information without breaching the rule?

With regard to the first question, Rule 23(a) provides that judges, employees of the judiciary, and those persons involved in recording proceedings and preparing transcripts are obliged to respect the confidentiality requirement. This of course includes subject judges who do not consent to identification under Rule 23(i).

With regard to the second question, Rule 23(a) applies the rule of confidentiality broadly to consideration of a complaint at any stage.

With regard to the third question, there is no barrier of confidentiality among a chief judge, a judicial council, the Judicial Conference, and the Committee on Judicial Conduct and Disability. Each may have access to any of the confidential records for use in their consideration of a referred matter, a petition for review, or monitoring the administration of the Act. A district court may have similar access if the judicial council orders the district court to initiate proceedings to remove a magistrate judge from office, and Rule 23(e) so provides.

In extraordinary circumstances, a chief judge may disclose the existence of a proceeding under these Rules. The disclosure of such information in high-visibility or controversial cases is to reassure the public that the judiciary is capable of redressing judicial misconduct or disability. Moreover, the confidentiality requirement does not prevent the chief judge from “communicat[ing] orally or in writing with . . . [persons] who may have knowledge of the matter,” as part of a limited inquiry conducted by the chief judge under Rule 11(b).

Rule 23 recognizes that there must be some exceptions to the Act’s confidentiality requirement. For example, the Act requires that certain orders and the reasons for them must be made public. 28 U.S.C. § 360(b). Rule 23(c) makes it explicit that written decisions, as well as dissenting opinions and separate statements, may contain references to information that would otherwise be confidential and that such information may be made public. However, subsection (c) is subject to Rule 24(a), which provides the general rule regarding the public availability of decisions. For example, the name of a subject judge cannot be made public in a decision if disclosure of the name is prohibited by that Rule.

The Act makes clear that there is a barrier of confidentiality between the judicial branch and the legislative branch. It provides that material may be disclosed to Congress only if it is believed necessary to an impeachment investigation or trial of a judge. 28 U.S.C. § 360(a)(2). Accordingly, Section 355(b) of the Act requires the Judicial Conference to transmit the record of a proceeding to the House of Representatives if the Conference believes that impeachment of a subject judge may be appropriate. Rule 23(f) implements this requirement.

The Act provides that confidential materials may be disclosed if authorized in writing by the subject judge and by the chief judge. 28 U.S.C. § 360(a)(3). Rule 23(g) implements this requirement. Once the subject judge has consented to the disclosure of confidential materials related to a complaint, the chief judge ordinarily will refuse consent only to the extent necessary to protect the confidentiality interests of the complainant or of witnesses who have testified in investigatory proceedings or who have provided information in response to a limited inquiry undertaken pursuant to Rule 11. It will generally be necessary, therefore, for the chief judge to require that the identities of the complainant or of such witnesses, as well as any identifying information, be shielded in any materials disclosed, except insofar as the chief judge has secured the consent of the complainant or of a particular witness to disclosure, or there is a demonstrated need for disclosure of the information that, in the judgment of the chief judge, outweighs the confidentiality interest of the complainant or of a particular witness (as may be the case where the complainant is delusional or where the complainant or a particular witness has already demonstrated a lack of concern about maintaining the confidentiality of the proceedings).

Rule 23(h) permits disclosure of additional information in circumstances not enumerated. For example, disclosure may be appropriate to permit a prosecution for perjury based on testimony given before a special committee. Another example might involve evidence of criminal conduct by a judge discovered by a special committee.

Subsection (h) also permits the authorization of disclosure of information about the consideration of a complaint, including the papers, documents, and transcripts relating to the investigation, to judicial researchers engaged in the study or evaluation of experience under the Act and related modes of judicial discipline. The Rule envisions disclosure of information from the official record of a complaint proceeding to a limited category of persons for appropriately authorized research purposes only, and with appropriate safeguards to protect individual identities in any published research results. In authorizing disclosure, a judicial council may refuse to release particular materials when such release would be contrary to the interests of justice, or when those materials constitute purely internal communications. The Rule does not envision disclosure of purely internal communications between judges and their colleagues and staff.

Under Rule 23(j), any of the specified judges or entities performing a function authorized under these Rules may seek expert or staff assistance or may consult with other judges who may be helpful regarding performance of that function; the confidentiality requirement does not preclude this. A chief judge, for example, may properly seek the advice and assistance of another judge who the chief judge deems to be in the best position to communicate with the subject judge in an attempt to bring about corrective action. As another example, a new chief judge may wish to confer with a predecessor to learn how similar complaints have been handled. In consulting with other judges, of course, a chief judge should disclose information regarding the complaint only to the extent the chief judge deems necessary under the circumstances.

Public Availability of Decisions

General Rule; Specific Cases. When final action has been taken on a complaint and it is no longer subject to review, all orders entered by the chief judge and judicial council, including memoranda incorporated by reference in those orders and any dissenting opinions or separate statements by members of the judicial council, but excluding any orders under Rule 5 or 11(f), must be made public, with the following exceptions:

if the complaint is finally dismissed under Rule 11(c) without the appointment of a special committee, or if it is concluded under Rule 11(d) because of voluntary corrective action, the publicly available materials must not disclose the name of the subject judge without his or her consent.

if the complaint is concluded because of intervening events, or dismissed at any time after a special committee is appointed, the judicial council must determine whether the name of the subject judge should be disclosed.

if the complaint is finally disposed of by a privately communicated censure or reprimand, the publicly available materials must not disclose either the name of the subject judge or the text of the reprimand.

if the complaint is finally disposed of under Rule 20(b)(1)(D) by any action other than private censure or reprimand, the text of the dispositive order must be included in the materials made public, and the name of the subject judge must be disclosed.

the name of the complainant must not be disclosed in materials made public under this Rule unless the chief judge orders disclosure.

Manner of Making Public. The orders described in (a) must be made public by placing them in a publicly accessible file in the office of the circuit clerk and by placing the orders on the court’s public website. If the orders appear to have precedential value, the chief judge may cause them to be published. In addition, the Committee on Judicial Conduct and Disability will make available on the judiciary’s website,uscourts.gov, selected illustrative orders described in paragraph (a), appropriately redacted, to provide additional information to the public on how complaints are addressed under the Act.

Orders of Committee on Judicial Conduct and Disability. Orders of the Committee on Judicial Conduct and Disability constituting final action in a complaint proceeding arising from a particular circuit will be made available to the public in the office of the circuit clerk of the relevant court of appeals. The Committee on Judicial Conduct and Disability will also make such orders available on the judiciary’s website, uscourts.gov. When authorized by the Committee on Judicial Conduct and Disability, other orders related to complaint proceedings will similarly be made available.

Complaints Referred to Judicial Conference. If a complaint is referred to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2), materials relating to the complaint will be made public only if ordered by the Judicial Conference.

COMMENTARY ON RULE 24

Rule 24 is adapted from the Illustrative Rules and the recommendations of the Breyer Committee.

The Act requires the circuits to make available only written orders of a judicial council or the Judicial Conference imposing some form of sanction. 28 U.S.C. § 360(b). The Judicial Conference, however, has long recognized the desirability of public availability of a broader range of orders and other materials. In 1994, the Judicial Conference “urge[d] all circuits and courts covered by the Act to submit to the West Publishing Company, for publication in Federal Reporter 3d, and to Lexis all orders issued pursuant to [the Act] that are deemed by the issuing circuit or court to have significant precedential value to other circuits and courts covered by the Act.” Report of the Proceedings of the Judicial Conference of the United States, Mar. 1994, at 28.

Following this recommendation, the 2000 revision of the Illustrative Rules contained a public availability provision very similar to Rule 24. In 2002, the Judicial Conference again voted to encourage the circuits “to submit non-routine public orders disposing of complaints of judicial misconduct or disability for publication by on-line and print services.” Report of the Proceedings of the Judicial Conference of the United States, Sept. 2002, at 58. The Breyer Committee Report further emphasized that “[p]osting such orders on the judicial branch’s public website would not only benefit judges directly, it would also encourage scholarly commentary and analysis of the orders.” Breyer Committee Report, 239 F.R.D. at 216. With these considerations in mind, Rule 24 provides for public availability of a wide range of materials.

Rule 24 provides for public availability of orders of a chief judge, a judicial council, and the Committee on Judicial Conduct and Disability, as well as the texts of memoranda incorporated by reference in those orders, together with any dissenting opinions or separate statements by members of the judicial council. No memoranda other than those incorporated by reference in those orders shall be disclosed.

However, these orders and memoranda are to be made public only when final action on the complaint has been taken and any right of review has been exhausted. The provision that decisions will be made public only after final action has been taken is designed in part to avoid public disclosure of the existence of pending proceedings.

Whether the name of the subject judge is disclosed will then depend on the nature of the final action. If the final action is an order predicated on a finding of misconduct or disability (other than a privately communicated censure or reprimand) the name of the subject judge must be made public. If the final action is dismissal of the complaint, the name of the subject judge must not be disclosed. Rule 24(a)(1) provides that where a proceeding is concluded under Rule 11(d) by the chief judge on the basis of voluntary corrective action, the name of the subject judge must not be disclosed. Shielding the name of the subject judge in this circumstance should encourage informal disposition.

If a complaint is dismissed as moot, or because intervening events have made action on the complaint unnecessary, after appointment of a special committee, Rule 24(a)(2) allows the judicial council to determine whether the subject judge will be identified. In such a case, no final decision has been rendered on the merits, but it may be in the public interest — particularly if a judicial officer resigns in the course of an investigation — to make the identity of the subject judge known

Once a special committee has been appointed, and a proceeding is concluded by the full judicial council on the basis of a remedial order of the council, Rule 24(a)(4) provides for disclosure of the name of the subject judge.

Rule 24(a)(5) provides that the identity of the complainant will be disclosed only if the chief judge so orders. Identifying the complainant when the subject judge is not identified would increase the likelihood that the identity of the subject judge would become publicly known, thus circumventing the policy of nondisclosure. It may not always be practicable to shield the complainant’s identity while making public disclosure of the judicial council’s order and supporting memoranda; in some circumstances, moreover, the complainant may consent to public identification.

Rule 24(b) makes clear that circuits must post on their external websites all orders required to be made public under Rule 24(a).

Matters involving orders issued following a special-committee investigation often involve highly sensitive situations, and it is important that judicial councils have every opportunity to reach a correct and just outcome. This would include the ability to reach informal resolution before a subject judge’s identity must be released. But there must also come a point of procedural finality. The date of finality — and thus the time at which other safeguards and rules such as the publication requirement are triggered — is the date on which the judicial council issues a Final Order. See In re Complaint of Judicial Misconduct, 751 F.3d 611, 617 (2014) (requiring publication of a judicial council order “[e]ven though the period for review had not yet elapsed” and concluding that “the order was a final decision because the Council had adjudicated the matter on the merits after having received a report from a special investigating committee”). As determined in the cited case, modifications of this kind to a final order are subject to review by the Committee on Judicial Conduct and Disability.

Disqualification

General Rule. Any judge is disqualified from participating in any proceeding under these Rules if the judge, in his or her discretion, concludes that circumstances warrant disqualification. If a complaint is filed by a judge, that judge is disqualified from participating in any consideration of the complaint except to the extent that these Rules provide for a complainant’s participation. A chief judge who has identified a complaint under Rule 5 is not automatically disqualified from considering the complaint.

Subject Judge. A subject judge is disqualified from considering a complaint except to the extent that these Rules provide for participation by a subject judge.

Chief Judge Disqualified from Considering Petition for Review of Chief Judge’s Order. If a petition for review of the chief judge’s order entered under Rule 11(c), (d), or (e) is filed with the judicial council in accordance with Rule 18, the chief judge is disqualified from participating in the council’s consideration of the petition.

Member of Special Committee Not Disqualified. A member of the judicial council who serves on a special committee, including the chief judge, is not disqualified from participating in council consideration of the committee’s report.

Subject Judge’s Disqualification After Appointment of Special Committee. Upon appointment of a special committee, the subject judge is disqualified from participating in the identification or consideration of any complaint, related or unrelated to the pending matter, under the Act or these Rules. The disqualification continues until all proceedings on the complaint against the subject judge are finally terminated with no further right of review.

Substitute for Disqualified Chief Judge. If the chief judge is disqualified from performing duties that the Act and these Rules assign to a chief judge, those duties must be assigned to the most-senior active circuit judge not disqualified. If all circuit judges in regular active service are disqualified, the judicial council may determine whether to request a transfer under Rule 26, or, in the interest of sound judicial administration, to permit the chief judge to dispose of the complaint on the merits. Members of the judicial council who are named in the complaint may participate in this determination if necessary to obtain a quorum of the council.

Judicial-Council Action When Multiple Judges Disqualified. Notwithstanding any other provision in these Rules to the contrary, a member of the judicial council who is a subject judge may participate in its disposition if:

participation by one or more subject judges is necessary to obtain a quorum of the judicial council;

the judicial council finds that the lack of a quorum is due to the naming of one or more judges in the complaint for the purpose of disqualifying that judge or those judges, or to the naming of one or more judges based on their participation in a decision excluded from the definition of misconduct under Rule 3(h)(3); and

the judicial council votes that it is necessary, appropriate, and in the interest of sound judicial administration that one or more subject judges be eligible to otherwise disqualified members may participate in votes taken under (g)(1)(B) and (g)(1)(C).

Disqualification of Members of Committee on Judicial Conduct and Disability. No member of the Committee on Judicial Conduct and Disability is disqualified from participating in any proceeding under the Act or these Rules because of consultations with a chief judge, a member of a special committee, or a member of a judicial council about the interpretation or application of the Act or these Rules, unless the member believes that the consultation would prevent fair-minded participation.

COMMENTARY ON RULE 25

Rule 25 is adapted from the Illustrative Rules.

Subsection (a) provides the general rule for disqualification.  Of course, a judge is not disqualified simply because the subject judge is on the same court. However, this subsection recognizes that there may be cases in which an appearance of bias or prejudice is created by circumstances other than an association with the subject judge as a colleague. For example, a judge may have a familial relationship with a complainant or subject judge. When such circumstances exist, a judge may, in his or her discretion, conclude that disqualification is warranted.

Subsection (e) makes it clear that the disqualification of the subject judge relates only to the subject judge’s participation in any proceeding arising under the Act or these Rules. For example, the subject judge cannot initiate complaints by identification, conduct limited inquiries, or choose between dismissal and special-committee investigation as the threshold disposition of a complaint. Likewise, the subject judge cannot participate in any proceeding arising under the Act or these Rules as a member of any special committee, the judicial council of the circuit, the Judicial Conference, or the Committee on Judicial Conduct and Disability. The Illustrative Rule, based on Section 359(a) of the Act, is ambiguous and could be read to disqualify a subject judge from service of any kind on each of the bodies mentioned. This is undoubtedly not the intent of the Act; such a disqualification would be anomalous in light of the Act’s allowing a subject judge to continue to decide cases and to continue to exercise the powers of chief circuit or district judge. It would also create a substantial deterrence to the appointment of special committees, particularly where a special committee is needed solely because the chief judge may not decide matters of credibility in his or her review under Rule 11.

While a subject judge is barred by Rule 25(b) from participating in the disposition of the complaint in which he or she is named, Rule 25(e) recognizes that participation in proceedings arising under the Act or these Rules by a judge who is the subject of a special committee investigation may lead to an appearance of self-interest in creating substantive and procedural precedents governing such proceedings. Rule 25(e) bars such participation.

Under the Act, a complaint against the chief judge is to be handled by “that circuit judge in regular active service next senior in date of commission.” 28 U.S.C. § 351(c).

Rule 25(f) provides that seniority among judges other than the chief judge is to be determined by date of commission, with the result that complaints against the chief judge may be routed to a former chief judge or other judge who was appointed earlier than the chief judge. The Rules do not purport to prescribe who is to preside over meetings of the judicial council. Consequently, where the presiding member of the judicial council is disqualified from participating under these Rules, the order of precedence prescribed by Rule 25(f) for performing “duties that the Act and these Rules assign to a chief judge” does not apply to determine the acting presiding member of the council. That is a matter left to the internal rules or operating practices of each judicial council. In most cases the most senior active circuit judge who is a member of the judicial council and who is not disqualified will preside.

Sometimes a single complaint is filed against a large group of judges. If the normal disqualification rules are observed in such a case, no court of appeals judge can serve as acting chief judge of the circuit, and the judicial council will be without appellate members. Where the complaint is against all circuit and district judges, under normal rules no member of the judicial council can perform the duties assigned to the council under the statute.

A similar problem is created by successive complaints arising out of the same underlying grievance. For example, a complainant files a complaint against a district judge based on alleged misconduct, and the complaint is dismissed by the chief judge under the statute. The complainant may then file a complaint against the chief judge for dismissing the first complaint, and when that complaint is dismissed by the next senior judge, still a third complaint may be filed. The threat is that the complainant will bump down the seniority ladder until, once again, there is no member of the court of appeals who can serve as acting chief judge for the purpose of the next complaint. Similarly, complaints involving the merits of litigation may involve a series of decisions in which many judges participated or in which a rehearing en banc was denied by the court of appeals, and the complaint may name a majority of the judicial council as subject judges.

In recognition that these multiple-judge complaints are virtually always meritless, the judicial council is given discretion to determine: (1) whether it is necessary, appropriate, and in the interest of sound judicial administration to permit the chief judge to dispose of a complaint where it would otherwise be impossible for any active circuit judge in the circuit to act, and (2) whether it is necessary, appropriate, and in the interest of sound judicial administration, after appropriate findings as to need and justification are made, to permit subject judges of the judicial council to participate in the disposition of a petition for review where it would otherwise be impossible to obtain a quorum.

Applying a rule of necessity in these situations is consistent with the appearance of justice. See, e.g., In re Complaint of Doe, 2 F.3d 308 (8th Cir. Jud. Council 1993) (invoking the rule of necessity); In re Complaint of Judicial Misconduct, No. 91-80464 (9th Cir. Jud. Council 1992) (same). There is no unfairness in permitting the chief judge to dispose of a patently insubstantial complaint that names all active circuit judges in the circuit.

Similarly, there is no unfairness in permitting subject judges, in these circumstances, to participate in the review of the chief judge’s dismissal of an insubstantial complaint. The remaining option is to assign the matter to another body. Among other alternatives, the judicial council may request a transfer of the petition under Rule 26. Given the administrative inconvenience and delay involved in these alternatives, it is desirable to request a transfer only if the judicial council determines that the petition for review is substantial enough to warrant such action.

In the unlikely event that a quorum of the judicial council cannot be obtained to consider the report of a special committee, it would normally be necessary to request a transfer under Rule 26.

Rule 25(h) recognizes that the jurisdictional statement of the Committee on Judicial Conduct and Disability contemplates consultation between members of the Committee and judicial participants in proceedings under the Act and these Rules. Such consultation should not automatically preclude participation by a member in that proceeding.

Transfer to Another Judicial Council

In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.

COMMENTARY ON RULE 26

Rule 26 implements the Breyer Committee’s recommended use of transfers.

Breyer Committee Report, 239 F.R.D. at 214–15.

Rule 26 authorizes the transfer of a complaint proceeding to another judicial council selected by the Chief Justice. Such transfers may be appropriate, for example, in the case of a serious complaint where there are multiple disqualifications among the original judicial council, where the issues are highly visible and a local disposition may weaken public confidence in the process, where internal tensions arising in the council as a result of the complaint render disposition by a less involved council appropriate, or where a complaint calls into question policies or governance of the home court of appeals. The power to effect a transfer is lodged in the Chief Justice to avoid disputes in a judicial council over where to transfer a sensitive matter and to ensure that the transferee council accepts the matter.

Upon receipt of a transferred proceeding, the transferee judicial council shall determine the proper stage at which to begin consideration of the complaint — for example, reference to the transferee chief judge, appointment of a special committee, etc.

Withdrawal of Complaint or Petition for Review

Complaint Pending Before Chief Judge. With the chief judge’s consent, the complainant may withdraw a complaint that is before the chief judge for a decision under Rule 11. The withdrawal of a complaint will not prevent the chief judge from identifying or having to identify a complaint under Rule 5 based on the withdrawn complaint.

Complaint Pending Before Special Committee or Judicial Council. After a complaint has been referred to the special committee for investigation and before the committee files its report, the complainant may withdraw the complaint only with the consent of both the subject judge and either the special committee or the judicial council.

Petition for Review. A petition for review addressed to the judicial council under Rule 18, or the Committee on Judicial Conduct and Disability under Rule 22, may be withdrawn if no action on the petition has been taken.

COMMENTARY ON RULE 27

Rule 27 is adapted from the Illustrative Rules and treats the complaint proceeding, once begun, as a matter of public business rather than as the property of the complainant. Accordingly, the chief judge or the judicial council remains responsible for addressing any complaint under the Act, even a complaint that has been formally withdrawn by the complainant.

Under subsection (a), a complaint pending before the chief judge may be withdrawn if the chief judge consents. Where the complaint clearly lacked merit, the chief judge may accordingly be saved the burden of preparing a formal order and supporting memorandum. However, the chief judge may, or be obligated under Rule 5, to identify a complaint based on allegations in a withdrawn complaint.

If the chief judge appoints a special committee, Rule 27(b) provides that the complaint may be withdrawn only with the consent of both the body before which it is pending (the special committee or the judicial council) and the subject judge. Once a complaint has reached the stage of appointment of a special committee, a resolution of the issues may be necessary to preserve public confidence. Moreover, the subject judge is given the right to insist that the matter be resolved on the merits, thereby eliminating any ambiguity that might remain if the proceeding were terminated by withdrawal of the complaint.

With regard to all petitions for review, Rule 27(c) grants the petitioner unrestricted authority to withdraw the petition. It is thought that the public’s interest in the proceeding is adequately protected, because there will necessarily have been a decision by the chief judge and often by the judicial council as well in such a case.

Availability of Rules and Forms

These Rules and copies of the complaint form as provided in Rule 6(a) must be available without charge in the office of the circuit clerk of each court of appeals, district court, bankruptcy court, or other federal court whose judges are subject to the Act. Each court must also make these Rules, the complaint form, and complaint-filing instructions available on the court’s website, or provide an Internet link to these items on the appropriate court of appeals website or on www.uscourts.gov.

Effective Date

These Rules will become effective 30 days after promulgation by the Judicial Conference of the United States.

Appendix to the Rules: Form AO 310 (Complaint of Judicial Misconduct or Disability)

The Fifth Circuit’s Dismissal of the Burkes 2019 Judicial Complaint Has Now Been Proven to Be Error, in Law
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