Statement of
Arthur D. Hellman
Professor of Law and Distinguished Faculty Scholar
University of Pittsburgh School of Law
House Committee on the Judiciary
Subcommittee on Courts, the Internet, and
Intellectual Property
Oversight Hearing on
Operations of Federal Judicial Misconduct and
Recusal Statutes
Arthur D. Hellman
University of Pittsburgh School of Law
Pittsburgh, PA 15260
Telephone: 412-648-1340
Fax: 412-648-2649
E-mail: hellman@law.pitt.edu
Federal Judicial Misconduct
In the Judicial Conduct and Disability Act of 1980, Congress sought to provide a mechanism for identifying and correcting judicial misconduct, without intruding on judicial independence. The Act struck an appropriate balance by establishing a system of decentralized self-regulation. The basic framework of the Act is sound, but even the best of systems may require modification to meet changes in conditions or perceptions over a period of time. In particular, the emergence of the Internet as a ubiquitous vehicle for communication calls for rethinking of procedures established in the pre-Internet era.
Proposed amendments. Experience suggests several modest modifications to the statutory scheme. The statute should be amended to explicitly recognize the authority of the chief judge (a) to conduct a limited inquiry into the validity of the complaint and (b) to dismiss the complaint if the limited inquiry demonstrates that the allegations lack any factual foundation or are conclusively refuted by objective evidence. Section 372(c)(3)A) should more fully specify other bases for dismissal that can be identified on the face of the complaint. The Act should be amended to permit petitions for review to be considered by a standing or rotating panel of the judicial council, rather than by the entire council.
Visibility of the process. A major purpose of the mechanism established by the 1980 Act is to foster public confidence in the federal judiciary. To that end, the mechanism must be visible. Visibility in this context entails two overlapping elements: the availability of the process must be made known to potential complainants, and the results of the process must be made known to all who are interested in the effective operation of the judicial system. On the available evidence, there is a real question whether these goals are being realized.
At a minimum, the web site of every federal court should include a prominent link to the rules and forms for filing a complaint under § 372(c) concerning a judge of that court. Beyond this, in the age of the Internet, more can and should be done to disseminate information about the disposition of complaints by chief judges, councils, and special committees. The Federal Judicial Center should be encouraged to conduct a study of the dispositions already on file there.
Assessing the record. The number of complaints filed against judges peaked in 1998; after that, the number has gone down in each successive year. The overwhelming majority of complaints are dismissed, either by the chief judge or by the judicial council upon review of the chief judge’s order. The paucity of meritorious complaints may reflect the availability of alternate mechanisms for correcting judicial misconduct, notably appellate review and informal processes. But the record is less reassuring than it would be if the courts had been more energetic in publicizing the existence of the complaint process.
Judicial Disqualification
Conflicts of interest. From time to time, a newspaper or advocacy group will publish an investigative report revealing that one or more judges have participated in cases notwithstanding a conflict of interest that mandated disqualification under 28 USC § 455(b). To minimize such situations, all federal courts should adopt the system now used in the Northern and Southern Districts of Iowa: posting on their web sites conflict lists for all judges of that court.
Recusals and en banc voting. 28 USC § 46(c) provides that en banc hearing can be ordered “by a majority of the circuit judges of the circuit who are in regular active service.” Some circuits interpret “majority” to mean a majority of all active judges, including judges who are recused. This means that recused judges are having an influence on case outcomes that by definition they should not have. The statute should be amended to make clear that recused judges are not counted.
Statement of
Arthur D. Hellman
Mr. Chairman and Members of the Subcommittee:
I appreciate your invitation to express my views at this oversight hearing on federal judicial misconduct and disqualification. By way of personal background, I am a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh School of Law. Among other subjects, I teach courses in Federal Courts and Constitutional Law. I have published numerous articles, monographs, and books dealing with various aspects of the work of the federal courts.
Over the years, I have been privileged to participate in a number of institutional enterprises aimed at improving the administrative of justice, both state and federal. I served as Chair of the Civil Justice Reform Committee of the American Judicature Society, and I supervised a distinguished group of scholars in analyzing the innovations of the Ninth Circuit and its court of appeals. More recently, I served on the Ninth Circuit Court of Appeals Evaluation Committee appointed by Chief Judge Procter Hug, Jr. Of course, in my testimony today I speak only for myself; I do not speak for any court or other institution.
This statement is in six parts. Part I introduces the statutory scheme for judicial discipline; it also calls attention to some of the resources available to the Subcommittee as it pursues its oversight responsibilities. Part II discusses possible amendments to the existing statute that warrant consideration at this time. Part III addresses some of the longer-range issues raised by the statute, and Part IV provides a brief assessment of the current operation of the system. Part V deals with judicial disqualification. It offers a better approach to disclosing judges’ conflicts of interest, and it flags a statutory ambiguity involving recusal by court of appeals judges. The statement concludes with brief comments on the Internet as a tool for safeguarding judicial integrity without interfering with judicial independence.
I. Introduction
A. Section 372(c) and the delicate balance
The federal judicial system is the envy of civilized nations throughout the world. Its stature rests in large part on two essential features: judicial independence and judicial integrity. For the most part, judicial independence and judicial integrity reinforce another. In one respect, however, there is a tension between the two. Because human beings are fallible, it is generally accepted that some mechanism is required to identify and correct instances in which particular judges have strayed from the norms of “good behavior.” But if the process is too bureaucratic, too heavy-handed, or too quick to move to formal adjudication, it poses a threat to the judges’ independence.
In the Judicial Conduct and Disability Act of 1980 (hereinafter “the Act”), Congress sought to reconcile the competing values. I believe that the Act – codified in section 372(c) of the Judicial Code – strikes an appropriate balance, and that the basic framework established in the statute is sound. But no product of human invention can be perfect. Moreover, even the best of systems may require modification to meet changes in conditions or perceptions over a period of time.
One element of the compromise that produced section 372(c) was the assurance of continuing legislative oversight. More than a decade has now passed since Congress last conducted a thorough examination of the operation of the system. Additionally, the emergence of the Internet as a ubiquitous vehicle for communication calls for rethinking of procedures established in the pre-Internet era. It is therefore appropriate and timely for this Subcommittee to conduct an oversight hearing on the operation of the Act and related issues of judicial misconduct and judicial discipline. And I am grateful for the opportunity to take part in this important endeavor.
Section 372(c) raises a wide range of issues, including deep questions of constitutional law associated with the process of impeachment and the possibility of prosecuting federal judges under criminal laws. I will concentrate here on the more mundane – and more common – issues growing out of the everyday operation of section 372(c) and the work of judges, chief judges, and circuit councils.
B. Resource materials for Congressional oversight
In pursuing its oversight responsibilities on issues of judicial misconduct and judicial discipline, the Subcommittee can benefit from the work of several institutions that have labored in this field over the past 20 years.
First, the Judicial Conference of the United States has promulgated Illustrative Rules Governing Judicial Misconduct and Disability. These Illustrative Rules address many procedural and substantive issues that are not addressed by the statute itself. They have been revised several times over the years, and they reflect the lessons of experience nationwide.
Second, each of the federal judicial circuits has adopted rules based on the Illustrative Rules. As it happens, the circuit I am most familiar with is the Ninth Circuit. The Ninth Circuit’s rules, available on the circuit’s web site, http://www.ce9.uscourts.gov/, include detailed commentaries on the purpose and operation of the rules. I have drawn on the Ninth Circuit’s rules in preparing this statement. References are to the version dated August 21, 2000.
Third, the National Commission on Judicial Discipline and Removal, established by Congress in late 1990, submitted a detailed report in August 1993 on a variety of issues relating to the 1980 Act and problems of judicial misconduct. The Commission was chaired by Robert W. Kastenmeier, former Chairman of this Subcommittee and author of the Judicial Conduct and Disability Act of 1980. The Commission’s report is published in 152 F.R.D. 265 (hereinafter “NCJDR Report”).
Fourth, the Federal Judicial Center, the research arm of the federal judiciary, carried out an empirical study at the behest of the National Commission. See Jeffrey N. Barr & Thomas E. Willgang, Decentralized Self-Regulation, Accountability, and Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. Rev. 25 (1993) (hereinafter “FJC Study”). This is a thorough, objective, and thoughtful piece of research that is enormously useful in showing how the Act has been implemented at the everyday operational level. I have drawn heavily on it here.
One other preliminary point warrants mention at this stage. Section 372(c) as currently written generally uses masculine pronouns. For consistency and ease of reference, I have followed suit here. If the statute is amended, Congress could take the opportunity to make all references gender-neutral.
II. Possible Amendments to Section 372(c)
For most of the nation’s history, the only formal procedure for dealing with misconduct by federal judges was the cumbersome process of impeachment. Criminal prosecution was a theoretical possibility, but until 1980, “no sitting federal judge was ever prosecuted and convicted of a crime committed while in office.” NCJDR Report at 326.
That era ended with the enactment of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (to give it its full name). The 1980 law, codified as section 372(c) of the Judicial Code, established a new set of procedures for judicial discipline and vested primary responsibility for implementing them in the federal judicial circuits. Minor changes were made in later years, notably in the Judicial Improvements Act of 1990.
In enacting section 372(c), Congress opted for a system that has aptly been described as “decentralized self-regulation.” See FJC Study at 29. I see no reason to revisit that decision, but I do think that some fine-tuning is in order. The suggestions in Part II are drawn largely from the Federal Judicial Center study and from the rules adopted by the Judicial Council of the Ninth Circuit in furtherance of the Act.
A. Recognizing authority of chief judge to conduct limited inquiry
Ordinarily, the process delineated in section 372(c) begins with the filing of a complaint about a judge with the clerk of the court of appeals for the circuit. The clerk must “promptly transmit” the complaint to the chief judge of the circuit. The chief judge, after “expeditiously reviewing” the complaint, has three options. He can dismiss the complaint; he can “conclude the proceeding if he finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events;” or he can appoint a special committee to investigate the allegations.
The Act says nothing about the procedures the chief judge may or must follow before determining which of these steps to take. However, for at least a decade, the Illustrative Rules have recognized the power of the chief judge to conduct a limited inquiry as part of the process of “expeditious[] review[].” The rules adopted by the various circuits also embody this authority. For example, the Ninth Circuit’s Rule 4(b) provides:
In determining what action to take, the chief judge may conduct a limited inquiry for the purpose of determining (1) whether appropriate corrective action has been or can be taken without the necessity for a formal investigation, and (2) whether the facts stated in the complaint are either plainly untrue or are incapable of being established through investigation. For this purpose, the chief judge may request the judge whose conduct is complained of to file a written response to the complaint. Such response will not be made available to the complainant unless authorized by the responding judge. The chief judge or his or her designee may also communicate orally or in writing with the complainant, the judge whose conduct is complained of, and other people who may have knowledge of the matter, and may review any transcripts or other relevant documents.
I agree with the Judicial Conference, the circuits, and the National Commission that authority to conduct a limited inquiry is implicit in the existing statute. For example, as already noted, the statute provides that the chief judge “may conclude the proceeding if he finds that appropriate corrective action has been taken.” It is hard to see how the chief judge could make such a finding without undertaking at least some investigation into the facts of the complaint.
Nevertheless, I believe it would be desirable to amend the Act to recognize the power explicitly. By hypothesis, the Act deals with matters of great sensitivity. Something as important as the power of the chief judge to conduct a limited factual inquiry should not be left to implication from other statutory language.
A second reason for amending the Act is that Congress can also make explicit the limitations on the power. For example, the amendment could make clear that the power to conduct a limited inquiry does not include the power to resolve issues of credibility. If the validity of a complaint depends on whether one believes an allegation that is not inherently incredible or refuted by objective evidence, the chief judge should appoint the special committee required by the statute.
B. Recognizing authority of chief judge to dismiss after limited inquiry
Under § 372(c) as it now stands, the chief judge may dismiss a complaint for any of three reasons:
(i) [The complaint is] not in conformity with paragraph (1) of this subsection. [Paragraph (1) provides: “Any person alleging that a circuit, district, or bankruptcy judge, or a magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.”]
(ii) [The complaint is] directly related to the merits of a decision or procedural ruling, or
(iii) [The complaint is] frivolous. (Emphasis added.)
Experience suggests that a fourth category should be added, and that the third category should be delineated more fully.
The proposed fourth category would carry forward the suggestion (discussed above) that the chief judge be explicitly authorized to conduct a limited inquiry. If the limited inquiry demonstrates that the allegations lack any factual foundation or are conclusively refuted by objective evidence, the chief judge should be authorized to dismiss the complaint.
This suggestion draws upon both the Illustrative Rules and the Federal Judicial Center study. The FJC study recommended that the chief judge be authorized to dismiss the complaint if the limited inquiry demonstrates “that the allegations lack[] any factual foundation.” FJC Study at 63. However, I think the statute should be more explicit in addressing what may be a common situation: objective evidence uncovered by the inquiry conclusively refutes the allegations of the complaint. For example, the complaint may assert that the judge used an ethnic slur or other offensive language. An audio tape of the proceeding may demonstrate beyond question that the judge did not use the language attributed to him.
This proposal, like the first one, would largely codify present practice. For example, the Ninth Circuit’s rules provide that the term “frivolous” includes “alleging facts that are shown by a limited inquiry [to be] plainly untrue [or] lacking sufficient evidentiary support either (i) to raise an inference that some kind of cognizable misconduct has occurred, or (ii) to warrant further investigation.” (Emphasis added.)
I do not take issue with this interpretation of section 372(c). It is not unreasonable to say that an allegation that is “plainly untrue” or that “lack[s] sufficient evidentiary support” falls within the realm of the “frivolous.” Nevertheless, there are at least three reasons why it is desirable to amend the statute to establish a separate category for dismissals based on limited inquiry.
First, the Ninth Circuit’s rules, like those of other circuits, may stretch the term “frivolous” somewhat beyond its generally accepted meaning. As the FJC study pointed out, “complainants may more commonly understand the term … to refer to complaints that contain insufficient factual allegations to warrant inquiry. A dismissal for frivolousness, therefore, could readily be misunderstood as an indication that the chief judge did not take the complaint's allegations seriously.” FJC Study at 63.
Second, as also noted by the FJC study, a misunderstanding of that kind would be particularly unfortunate when a complaint alleges ethnic, gender, or some other kind of bias. “A dismissal as ‘frivolous’ might leave the unseemly impression that allegations of that kind do not concern the judiciary.” Id.
Third – and generalizing from the preceding point – I think it is desirable to distinguish between dismissals based on the complaint alone and those based on evidence outside the complaint. This point is further developed in Section C, immediately below.
C. Specifying other bases for dismissal identifiable on the face of the complaint
In addition to the language quoted above, the current Ninth Circuit rules define “frivolous” to include “making charges that are wholly unsupported or alleging facts that are shown by a limited inquiry [to be] (A) plainly untrue, (B) incapable of being established through investigation, or (C) lacking sufficient evidentiary support either (i) to raise an inference that some kind of cognizable misconduct has occurred, or (ii) to warrant further investigation.” 9th Cir. R. 4(c)(3).
While I respect the Ninth Circuit’s efforts to be comprehensive and meticulous in giving content to the term “frivolous,” I am concerned that the formulation improvidently intermingles reasons for dismissal that can be identified from the complaint alone and those that require some consideration of materials outside the complaint.
Lawyers are familiar with the distinction between a dismissal on the pleadings and the grant of summary judgment. The distinction is reflected in Rule 12(c) of the Federal Rules of Civil Procedure:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
For two reasons, recognition of the distinction is especially appropriate here. First, the complainant has a legitimate interest in knowing whether his complaint was found wanting on its face or whether the chief judge relied on other evidence in reaching his conclusion. Second, if the matter proceeds to review by the judicial council (see section D, below), the reviewing body should not have to speculate as to whether the dismissal was based on the complaint alone.
In this light, I think it is desirable to amend subsection (iii) of § 372(c)(3)(A) by specifying other reasons for dismissal that can be identified on the face of the complaint. Drawing on the Ninth Circuit’s rules and commentary, I suggest that the provision might authorize the chief judge to dismiss the complaint if it “is frivolous, if it does not include sufficient evidence to raise an inference that misconduct has occurred, or if the allegations are incapable of being established through investigation.”
The amendment should make clear that dismissals in these categories are distinct from dismissals after limited inquiry. By the same token, the judicial councils of the circuits, in submitting the reports required by 28 USC § 332(g), should give separate tallies for dismissals after limited inquiry and dismissals based on the complaint alone. The Director of the Administrative Office should do so as well in the summaries published annually in accordance with 28 USC § 604(h)(2). This additional information will shed important light on the operation of the system and thus will assist Congress in the performance of its oversight function.
D. Authorizing review by a committee of the judicial council
Under § 372(c)(10), a complainant who is dissatisfied with the chief judge’s order dismissing the complaint or terminating the proceeding may seek review of the order by filing a petition addressed to the judicial council of the circuit. The judicial council then considers the petition under rules adopted pursuant to § 372(c)(11). That paragraph authorizes each judicial council to “prescribe such rules for the conduct of proceedings under this subsection, including the processing of petitions for review, as [the council] considers to be appropriate.”
Nothing in section 372(c) explicitly authorizes the council to delegate the review function to a smaller group within the council, and it appears that in most circuits all members of the council participate in the process. However, at least one circuit reads section the statute as authorizing delegation. As reported in Rule 7 of the rules adopted by the Fifth Circuit, “By standing resolution the judicial council may delegate the review process to rotating panels drawn at random with power to act on behalf of the full council.” (The rules can be found at the court’s web site. See http://www.ca5.uscourts.gov/Clerk/ClerksOffice.cfm.)
Reasonable people can disagree as to whether the Fifth Circuit’s “standing resolution” is authorized by the statute. In any event, the idea is a good one. The Federal Judicial Center study suggested that the Act “should be amended to permit petitions for review to be determined by a standing or rotating three-judge panel of the judicial council, rather than by the entire council.” FJC Study at 194. I endorse this suggestion, with one modification: I would require that the review panel consist of at least three members of the council (one of whom must be a district judge), but I would not specify the number in the statute. Some councils may prefer a larger review body; they should not be denied that option.
The reason for allowing panel review is twofold. First, some of the judicial councils are quite large; for example, the Fifth Circuit’s has 19 members. Requiring 19 judges to review a chief judge’s order dismissing a complaint is not a good use of scarce judicial resources.
Second and more important, vesting the review function in the entire council risks diffusing responsibility. In contrast, if the task is assigned to a group of 3 or 5 judges, those judges can concentrate on the tasks and are likely to put more time and effort into the review process. (For further discussion, see FJC Report at 161-63.)
E. Reorganizing section 372(c)
In the current version of section 372(c), the provision governing dismissals by the chief judge is found in paragraph (3), while the provision authorizing review of such orders by the circuit council is found in paragraph (10). If Congress amends the Act, I suggest that the statute should be reorganized so that closely related provisions are arranged in a logical sequence.
In fact, I would go further. As noted at the outset, the provisions of the 1980 Act establishing new procedures for dealing with allegations of misconduct by federal judges were codified in section 372(c) of the Judicial Code. It seems anomalous that matters so important and wide-ranging would be incorporated into Title 28 as a single subsection of an existing section. I think these provisions warrant their own section, and indeed their own chapter, in the Judicial Code. Separate chapters have been established for “executions and judicial sales” (Chapter 127), “Moneys paid into court” (Chapter 129), and “Attachment in postal suits” (Chapter 173). Surely judicial discipline should be put on an equal footing from an organizational perspective.
This is partly a matter of practicality; a separate chapter, with separate catchlines for each section, would be easier to locate and navigate. But there is also symbolic value in placing the provisions on judicial discipline in a chapter devoted to that subject alone.
III. Other Issues Warranting Attention
The proposals in Part II (other than the suggestion for reorganizing and relocating section 372(c)) draw on existing rules and practices in the circuits as well as the Federal Judicial Center study. For that reason, I offer them with some confidence. (Of course, the particular language should be chosen with care.) Other aspects of the process also warrant scrutiny by the Subcommittee; however, the evidence now available does not point to the need for statutory revision at this time. I discuss them here because I believe it is worthwhile to put the issues on the table as the Subcommittee pursues its oversight responsibilities.
A. Inclusion of reasons for dismissing complaints
Section 372(c)(3) states that the chief judge may dismiss a complaint “by written order stating his reasons.” However, the Federal Judicial Center study found that “not all chief judges’ orders of dismissal have provided a statement of the allegations of the complaint and the reasons, as opposed to the conclusions, supporting its dismissal.” In fact, three of the eight circuits in the study “had long-standing practices of issuing conclusory form orders to dispose of insubstantial complaints.” FJC Study at 80.
Even when the authors of the study looked only at “arguably meritorious allegations,” they found that the chief judges’ orders were not always “responsive.” (In assessing “responsiveness,” the authors “looked for whether the chief judge restated [the particular] allegation and responded to it and whether the chief judge stated conclusions or specific reasons for the conclusions.” FJC Study at 82.)
The authors of the study anticipated that all circuits would soon be moving to a system under which the chief judge would articulate reasons for dismissing a complaint. That was in 1993. Unfortunately, as far as I am aware, there is no published information that tells us whether this has in fact occurred. If it has, there is no need to do anything. If chief judges in one or more circuits continue to issue “conclusory form orders,” that is a matter of concern. This is so for several reasons. Among them:
· When a complaint is dismissed with a conclusory form order, the complainant may lack confidence that the chief judge has actually considered the grievance. This will reinforce the sense of mistrust that often underlies the filing of a complaint against a judge.
· As pointed out by the National Commission, a non-conclusory statement “may be critical … to the understanding of those engaged in oversight or evaluation.” NCJDR at 351.
If some complaints are still being disposed of with a conclusory form order, either the Judicial Conference or Congress should consider imposing a requirement that the chief judge state the reasons for a disposition adverse to the complainant.
B. Visibility of the disciplinary mechanism
One purpose of the mechanism established by the 1980 Act is, of course, to foster public confidence in the federal judiciary. To that end, the mechanism must be visible. Visibility in this context entails two overlapping elements: the availability of the process must be made known to potential complainants, and the results of the process must be made known to all who are interested in the effective operation of the judicial system. On the available evidence, there is a real question whether these goals are being realized. For example:
· A spot check indicates that the rules governing complaints under section 372(c) are available on the web sites of most of the courts of appeals, but at the district court level the record is much more hit-and-miss. This may be because complaints are filed with the clerk of the court of appeals, but I think that most people would expect to find information about filing complaints concerning a trial judge on the web site of the court on which that judge sits.
· The web site of the federal judiciary gives a brief answer to the question, “How do I file a complaint against a judge?” However, the page does not include links to anything that might help – the statute, the Illustrative Rules, a form for filing a complaint, or any other explanatory material. See http://www.uscourts.gov/faq.html.
· The orders and memoranda filed by the chief judges of the various circuits are available only at the clerk’s office of the circuit where they were issued and at the Federal Judicial Center, to which copies are sent. Anyone wanting to study these dispositions systematically would face formidable logistical obstacles.
· The Federal Judicial Center study concluded, after an examination of published orders, that “[d]issemination of information about interpretations of the Act … seems notably absent.” FJC Study at 88. That report was completed in 1993, but a follow-up search on Westlaw using the same query suggests that the picture has not changed.
It is understandable that judges do not wish to shine the spotlight on judicial misconduct or disability, even when the overwhelming majority of complaints are plainly without merit. However, to the extent that the low visibility is the result of conscious choice (rather than indifference or inadvertence), I think the policy is misguided. A telling vignette comes from the FJC Study (at 129). A chief judge reported:
After a newspaper article accusing the judiciary of a cover-up in [a special committee matter which resulted in a private, rather than a public, reprimand], a local reporter wanted to look at 372(c) files. We were able to show him files of reasoned orders. He was very surprised. I think he went away thinking this was an honest ship.
Yet even if the picture were not so positive, visibility would still be essential to the success of the system. This is so for both instrumental and symbolic reasons. At a practical level, the courts benefit if they learn about problems at the earliest possible stage, and complaints under § 372(c) can help. But some meritorious complaints will never be filed if the existence of the process is insufficiently publicized. The courts can also benefit in another way – by learning how other courts are handling allegations of misconduct or disability.
Perceptions are also important. Today, the federal judiciary is highly respected. The spate of criminal prosecutions of federal judges that aroused alarm at the time of the National Commission report is happily behind us. But that only means that this is a time for building confidence. A visible complaint process contributes significantly to that goal. Without it, we have no way of knowing whether a paucity of meritorious complaints truly reflects a healthy system or simply a lack of awareness that a complaint procedure exists. Here are some suggestions for enhancing the visibility of the process:
· At a minimum, the web site of every federal court should include a prominent link to the rules and forms for filing a complaint under § 372(c) concerning a judge of that court.
· Chief judges and judicial councils should send more of their non-routine dispositions of § 372(c) complaints for on-line publication by Westlaw, Lexis, Findlaw, and other services.
· Consideration should be given to asking the courts to send routine dispositions to the Federal Judicial Center in electronic form, so that the dispositions (or at least a selected group) can be made available easily to other courts, to oversight committees in Congress, and to researchers.
· The Federal Judicial Center should be encouraged to conduct a follow-up study to the one completed in 1993. This study need not be as elaborate or comprehensive; what we need above all is an analysis of the dispositions already on file at the Center.
Notwithstanding what I have said about enhancing the visibility of the complaint process, one other point deserves emphasis. The formal mechanisms of section 372(c) are not the only methods for dealing with misconduct or disability in the federal judiciary. These other methods will be discussed briefly in Part IV of this statement.
C. Confidentiality in the era of the Internet
As the National Commission observed in its report, some of the most controversial issues surrounding the enactment and implementation of section 372(c) have involved concerns about confidentiality. See NCJDR Report at 349-51. In its current version, the statute requires that confidentiality be maintained in “investigations” (paragraph (14)), but it does not address issues of confidentiality in cases where no special committee is appointed. The latter, of course, encompass the vast majority of complaints.
The Illustrative Rules fill this gap in two ways. Rule 16 lays down a broad rule of confidentiality for all proceedings under the Act. Rule 17 provides that when a complaint has been finally disposed of, the supporting memoranda will be made available for public inspection at the clerk’s office and copies will be sent to the Federal Judicial Center; however, in all dismissals and in most other proceedings, “the publicly available materials will not disclose the name of the judge complained about without his or her consent.”
The Federal Judicial Center study found that maintenance of confidentiality was a serious problem – not because of anything the judges did, but because outsiders are not bound by rules of confidentiality. “As a practical matter,” the study noted, “a complainant can call a press conference (as many have), disclose the contents of the complaint, and discuss the allegations and the process.” The study quoted one chief judge: “If there’s a serious allegation, the reality is that confidentiality is unlikely.” FJC Study at 178-79.
The development of the Internet has substantially exacerbated the problem of maintaining confidentiality. This is so not only when allegations are “serious,” but also when they are plainly appropriate for dismissal. Today it is not necessary to “call a press conference;” a complainant – or anyone else – can place documents on a web site, and they will be instantly available to anyone in the world.
To get a sense of what is available, I did a search on Google. I found less material than I expected – a few complaints and a few orders. One document purported to be an order of dismissal that identified the judge who was the subject of the complaint. The version of the order on file at the Federal Judicial Center does not identify the judge.
On the basis of current information, it does not appear that disclosure of section 372(c) material presents a problem that requires immediate attention. Others at this hearing may have different experiences that suggest a greater urgency. Of course the possible remedies are substantially limited by the First Amendment’s protection of rights of expression.
D. Sharing of the initial review responsibility
One chief judge suggested to the authors of the FJC study that the Act be amended to authorize chief judges to delegate review of complaints to another judge. FJC Study at 186. The judge explained:
The chief judge's job is very time consuming; anything that can be delegated should be. There's no reason the chief judge must be involved in every one of these complaints. The chief judge should be able to decide whether a complaint must be looked at more carefully. The chief judge should hang on to anything that’s close or controversial, but most are not; the chief judge could delegate those.
As long as the volume of complaints remains at its current modest levels, it is hard to justify authorizing the chief judge to delegate part of the review function. Nevertheless, I think the idea is worth keeping on the table – though not necessarily for the reasons quoted above.
First, a central feature of the system of decentralized self-regulation established by the Act is the opportunity for the chief judge to facilitate action that leads to the correction of errant behavior. To be effective, this process may require interpersonal skills that will not always be a chief judge’s strong point. (I hasten to add that this comment is not based on the performance of any of the chief judges whose work I have observed.) If another court of appeals judge – perhaps a highly respected senior judge – is willing and able to take on part of the responsibility, there is much to be said for allowing the delegation.
Second, if the judiciary takes vigorous steps to increase the visibility of the § 372(c) process, this may result in a substantial increase in the number of complaints filed. Under those circumstances, it would be useful if the chief judge, especially in a large circuit, could delegate part of the review work to another judge.
If Congress were to pursue this suggestion, it might be desirable to include a requirement that any delegation be approved by the judicial council of the circuit.
Each year, the Director of the Administrative Office of United States Courts publishes a report that tabulates the number of judicial complaints filed and concluded during the preceding year. Table I (attached) presents the data for the last six years. Three things stand out.
First, the number of complaints filed against judges peaked in 1998, with an astonishing 52% increase over 1997. After that, the number has gone down in each successive year. The Director of the Administrative Office has attributed the jump in 1998 to “the use of relatively new Internet and fax-on-demand services, which made information on procedures for filing complaints more widely accessible.” 1999 Annual Report at 40. (One wonders, then, why the number dropped so substantially in succeeding years.)
Second, the overwhelming majority of complaints are dismissed, either by the chief judge or by the judicial council upon review of the chief judge’s order. In 1999, for example, of the 831 complaints that were concluded, only 15 were not dismissed – less than 2%. This includes 2 complaints that were “withdrawn;” we do not know what the circumstances of withdrawal were.
Third, the pace of activity has picked up in the last three years. Ten complaints were considered by circuit investigative committees, compared with a total of 3 in the preceding three years. But the numbers are too small, and the information too sparse, to enable us to say that a distinctly different pattern has emerged. Certainly the proportion of complaints that are not dismissed remains very low.
A natural reaction to these figures would be: surely federal judges – good as they generally are – cannot be that good. Either some would-be complainants are not taking advantage of the procedures of section 372(c), or the chief judges and judicial councils are sometimes failing in their duty to act when judges fall short of the standards we expect of them.
Neither possibility can be ruled out. Moreover, the small number of non-frivolous complaints carries less weight than it would if the courts had been more energetic in publicizing the existence of the complaint process. But there are also more benign explanations that may account for the low numbers.
First, the figures do not reflect the informal corrective processes that may take place in the absence of a formal complaint. One of the most important findings of the Federal Judicial Center study is that informal processes often operate very effectively to deal with matters that fall within the potential reach of section 372(c). The study quotes comments by two former chief judges that capture the experience in most of the circuits that the authors visited:
“In my experience, the most serious complaints never hit the complaint process.”
“There are more remedial actions taking place outside the complaint process than following formal complaints.”
The full description in the study (at 131-44) provides valuable insights into the operation of informal processes.
Second, many instances of judicial misconduct are dealt with through appellate review of particular cases. A good example is the opinion of the District of Columbia Circuit excoriating Judge Thomas Jackson for his out-of-court comments on the pending Microsoft case. See United States v. Microsoft Corp., 253 F.3d 34, 107-117 (D.C. Cir. 2001), http://ecfp.cadc.uscourts.gov/MS-Docs/1720/0.pdf. Not only was the public reprimand as harsh as any that might be meted out by the Judicial Council under section 372(c), but after the widespread publicity that the opinion received, we can be confident that no federal judge will engage in similar behavior for a very long time to come. If we agree with the Illustrative Rules that the thrust of the 1980 Act is “essentially forward-looking,” with the emphasis on “correcting conditions that interfere with the proper administration of justice in the courts,” we can say that the system has worked, albeit not through section 372(c).
Finally, the most efficient method of maintaining integrity in the federal judiciary lies in rigorous scrutiny in the appointment process. Nominees today receive that kind of scrutiny, including “full-field” investigations by the FBI. I believe that this process helps to explain why there are so few non-frivolous complaints against federal judges.
I do not suggest that these considerations diminish the importance of section 372(c). On the contrary, section 372(c) will continue to play an essential role in dealing with misconduct or disability on the part of federal judges. In particular, informal processes could not operate as efficaciously as they do if the possibility of formal proceedings did not loom in the background. As the Federal Judicial Center study puts it (at 136-37), the chief judge “bargain[s] in the shadow of the Act.”
Today’s oversight hearing is a valuable step in making the section 372(c) process more effective. The amendments to the statute suggested in Part II can effect modest improvements in the system. But the greatest need is to enhance the visibility of the complaint procedure. I hope the judiciary will pursue the suggestions in Part III. If no progress is made, Congress may have to step in.
V. Issues Relating to Judicial Disqualification
Disqualification or recusal of judges (the two terms are used interchangeably) is covered by sections 144 and 455 of the Judicial Code. Section 455 was completely rewritten in 1974. The statute requires a federal judge to disqualify himself in five specified circumstances, set forth in 28 USC § 455(b), and also “in any proceeding in which his impartiality might reasonably be questioned.” In this part of my statement I discuss two issues relating to the disqualification of judges.
A. Timely disclosure of judges’ conflicts of interest
From time to time, a newspaper or advocacy group will publish an investigative report revealing that one or more judges have participated in cases notwithstanding a conflict of interest that mandated disqualification under 28 USC § 455(b). Perhaps the best known example is the study conducted by the Kansas City Star in 1998. The newspaper reported that federal judges in Kansas City and elsewhere “repeatedly have presided over lawsuits against companies in which they own stock.” More recently, the Community Rights Counsel (CRC) publicized a research report indicating “that in 1997 at least eight federal appellate judges … ruled on the merits in at least 17 federal appeals in which they had a disqualifying conflict of interest.”
The judges attributed their participation in the conflict cases to innocent mistakes or memory lapses. And the Star “found no evidence that any judge benefited personally or let his stock holdings influence his rulings.” (The CRC offered no comparable disclaimer.) Nevertheless, episodes of this kind are harmful to the judiciary. At best, the judges – and perhaps the winning lawyers – suffer embarrassment. At worst, a cloud is cast over the judges’ integrity.
This is another area where technology can be helpful. The Star emphasized that to determine whether a judge has a conflict of interest, the lawyer or litigant had to request copies of disclosure statements that were available only from the Administrative Office in Washington, D.C. Although the Judicial Conference of the United States has now authorized release of the disclosure reports to groups that want to post them on the Internet, it appears that the posting has not yet occurred.
The Northern and Southern Districts of Iowa (and perhaps other federal courts) have found a better way. Here is how it works.
· The web sites of those districts post “conflict lists” for the judges who sit on those courts. See, e.g., http://www.iand.uscourts.gov/. Each list is preceded by this statement: “Pursuant to this court’s policy of disclosing relationships that pose potential or actual conflicts of interest, financial or otherwise, Judge [X] will not be handling cases involving …” The list that follows may include names of corporations, individuals, and law firms.
· Court rules require attorneys in civil cases to “review the list and immediately notify the Clerk of Court if it appears the presiding judge may have a conflict with any association, firm, partnership, corporation, or other artificial entity either related to any party or having a pecuniary interest in the case.”
· The Northern District of Iowa goes one step further than the Southern. At the bottom of each list is the following notation: “Persons having knowledge that a case has been assigned to Judge [X] involving an entity or individual described above, or one related thereto, should immediately notify the Clerk of Court in writing of the potential conflict.”
On the available evidence, the Iowa system is a forward-looking use of Internet technology that should be a model for all federal courts. There are at least four benefits from this system.
1. By allowing – and indeed requiring – the parties to take part in the conflict-identification process, the Iowa courts substantially increase the likelihood that conflicts will be discovered early in a lawsuit. Court personnel still conduct their own check, but two pairs of eyes are better than one. And of course the parties and their lawyers have a special incentive to make sure that their case is not heard by a judge who has a conflict.
2. By placing the list on the court’s web site, the court makes it easy for interested observers, including advocacy groups like the CRC, to monitor judges’ compliance with conflict of interest rules.
3. Unlike the financial disclosure forms, which are filed once a year and often are out of date by the time they are made public, the web site listing can be updated whenever changes in a judge’s portfolio or other events require it. Courts can easily establish procedures for judges to inform their clerks’ offices of such developments.
4. The Iowa system bypasses the concerns about judges’ safety that initially led the Judicial Conference to resist sharing of the disclosure forms. The web site list provides only the necessary information: Judge X is recused in cases involving Corporation Y. This could be because the judge owns stock in the corporation, because he represented the corporation before going on the bench, or for some other reason.
Admittedly, the system is not perfect. The most serious problem is that judges do not always notify the Clerk of Court of new conflicts, so the list is not necessarily accurate and up-to-date. Nevertheless, the Iowa system is a tremendous improvement over the practice elsewhere.
In March 1999, the Judicial Conference of the United States rejected a proposal to “encourag[e] all courts to maintain in the clerk’s office a recusal list for each judge that would be available to litigants upon written request.” According to the Washington Post (Sept. 13, 1999), the judges cited “security and privacy concerns.” However, that position appears to have been superseded by the vote one year later to allow release of financial disclosure forms for posting on the Internet. In this light, I suggest the following steps:
· All federal courts should adopt the Iowa system and post on their web sites conflict lists for all judges of that court.
· Each court should adopt, implement, and monitor procedures for assuring that judges inform the Clerk of Court, on a regular basis, of changes in stock holdings or other circumstances that will require changes in the conflict lists.
· Judges should be encouraged to establish arrangements with their brokers to receive notification of relevant portfolio changes in a form that can be forwarded immediately to the Clerk of Court. E-mail would seem like a good tool for this purpose.
Technology holds out other possibilities as well. Lawyers are familiar with “conflict checking” software that is used to avoid conflicts of interest when a law firm is considering taking on a new client. Similar software could check judges’ conflict lists against the “statements of interest” filed by litigants in civil suits. But even if such software is developed, the Iowa system would still be a desirable backstop, if only because it enables outside groups to monitor compliance with disqualification rules.
B. Effect of judicial disqualification in en banc voting
Today’s oversight hearing on judicial discipline and disqualification offers an appropriate opportunity to call the Subcommittee’s attention to a minor statutory malfunction that otherwise is likely to remain uncorrected. The issue involves the effect of recusals by court of appeals judges when the court votes on whether to hear a case en banc.
28 USC § 46(c) provides that en banc hearing can be ordered “by a majority of the circuit judges of the circuit who are in regular active service.” The circuits are divided on whether “majority” means (a) a majority of all active judges or (b) a majority of the active judges who are not recused. For convenience, I will refer to rule “a” as the “absolute majority rule.” Five circuits – the Fourth, Fifth, Sixth, Eleventh, and District of Columbia – now follow that rule. See Judith A. McKenna, Laural A. Hooper & Mary Clark, Case Management Procedures in the Federal Courts of Appeals 23 (Federal Judicial Center 2000).
In circuits that require an absolute majority, en banc rehearing can be denied even though a majority of the judges who would participate in rehearing vote in favor of it. This means that recused judges are having an influence on case outcomes that by definition they should not have.
The potential consequences of the rule can be seen by considering a case that was scheduled for rehearing en banc in November in the Third Circuit. In In re Cendant Corp. Litigation, 264 F.3d 301 (3d Cir. 2001), the panel ruled 2-1 that the district court properly enjoined an arbitration proceeding. The majority consisted of 2 active judges. Four of the circuit’s 12 active judges were recused. Under the absolute majority rule, en banc rehearing would have been foreclosed even if all 6 of the non-recused active non-panel members had voted for en banc.
The absolute majority rule means that recused judges are, in effect, paired with non-recused judges who vote in favor of en banc rehearing. Each judge who is recused cancels out the affirmative vote of a judge who is not recused.
The arguments against the absolute majority rule are set forth in detail in a lucid opinion by Judge Edward Carnes of the Eleventh Circuit in Gulf Power Co. v. Fed. Communications Comm’n (No. 98-6222), 226 F.3d 1220 (11th Cir. 2000) (opinion on denial of rehearing en banc). I commend Judge Carnes’s analysis to you.
Some years ago, a certiorari petition asked the Supreme Court to resolve the intercircuit conflict on the interpretation of 28 USC § 46(c). The Court denied review. See Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir. 1983), cert. denied, 464 U.S. 1040 (1984). (At that time the Fourth Circuit did not follow the absolute majority rule.) As far as I know, the Appellate Rules Committee of the Judicial Conference has not taken up the issue.
The problem arises because of disagreement over the interpretation of an Act of Congress. It is therefore appropriate that Congress resolve the matter. A simple solution would be to add at the end of the first sentence of § 46(c) the words “and who are not disqualified,” so that the statute would provide that en banc hearing can be ordered “by a majority of the circuit judges of the circuit who are in regular active service and who are not disqualified.” Another approach would be to add a new sentence or subsection defining “majority” for purposes of the rule.
(The Third Circuit, although rejecting the absolute majority rule, does require that “the judges who are not disqualified constitute a majority of the judges who are in regular active service.” Internal Operating Procedures 9.5.3. I would not include that limitation.)
VI. Conclusion: The Courts and the Internet
Assuring the integrity of the federal judiciary while respecting the imperative of judicial independence will always be a challenging task. We are fortunate to live in an era when advancing technologies offer new ways of meeting the challenge.
Today, advancing technology is represented by the Internet. The Internet is a uniquely powerful and effective tool for communication. It is a tool that did not exist when Congress last revised the statute on judicial misconduct, much less when Congress rewrote the provisions dealing with judges’ conflict of interest.
The current statutes represent a careful and balanced approach – although, as outlined above, some fine-tuning is in order. But optimum operation of the systems has been hampered because people often do not have the information they need. That is where the Internet comes in.
The federal judiciary has shown itself to be innovative and service-oriented in its use of the Internet in adjudication and case management. Appellate opinions can be found on line on the day they are filed. Dockets can be searched through PACER. Most intriguingly, some courts have initiated electronic filing systems “permitting attorneys in selected civil cases to file documents with the Court and deliver them to opposing parties directly from their computers using the Internet.” See, e.g., https://ecf.cand.uscourts.gov/.
The same spirit can be applied to the matters that are the subject of this oversight hearing. As explained in Part III, courts can use the Internet to enhance the visibility of the procedure for filing complaints against judges. This will make the process more credible as well as more effective. As discussed in Part V, courts can use the Internet to help judges avoid inadvertent violations of the conflict of interest rules.
These suggestions are only a beginning. Other innovative uses of the Internet – and of technologies not yet invented – will permit the courts to further strengthen the mechanisms for preserving judicial integrity without impinging on judicial independence.
Table 1
Judicial Complaints Filed, Concluded, and Pending
Fiscal Years 1995 through 2000
1995* 1996* 1997* 1998* 1999* 2000
Filed 567 529 680 1,035 782696
Concluded 557 610 489 1,011 831 715
By Chief Judges 401 361 274 750 410 359
Dismissed 387 351 266 742 397 343
Corrective Action Taken 12 3 2 3 11 13
Withdrawn 2 7 6 5 2 3
By Judicial Councils 156 249 215 261 421 356
After Review of Chief Judge=s Dismissal
Dismissed 155 248 213 257 417 354
Withdrawn --- --- --- --- --- ---
Action Taken 1 --- --- --- --- ---
Referred to Judicial Conference --- --- --- --- --- ---
After Report by Investigative Committee
Dismissed --- 1 1 2 2 ---
Withdrawn --- --- --- --- 2 ---
Action Taken --- --- 1 2 --- 2
Referred to Judicial Conference --- --- --- --- --- ---
Pending 188 [107] 202 230 181 162
Summary
1995 1996 1997 1998* 1999* 2000
Total Concluded 557 610 489 1,011 831 715
Total Not Dismissed 15 10 9 10 15 18
Percent Not Dismissed .026 .016 .018 .009 .018 .025