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.
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).
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).
The Burkes’ Original Complaint against 3 Fifth Circuit Judges (Jan. 2019)
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
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).
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.
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.
“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.
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.
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
Judge Catharina Haynes
Haynes was on our panel in both the 2016 and 2018 appeal. The FED. R. APP.
- 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
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)
Committee Standards for Assessing Compliance with the Act
(as approved by the Committee in August 2004, with revisions approved June 2005 and March 2006)
“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.)
“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.
“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.
“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.
“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.
“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.
“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.
“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.
“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.