March 7, 2008 — Committee on Codes of Conduct of the
Judicial Conference of the United States seeks
public comments on proposed revisions to the Code of
Conduct for federal Judges.
The proposed revisions are based in large part
on revisions adopted by the American Bar
Association in February 2007, amending the ABA
Model Code of Judicial Conduct. Click
here for more information. And see Andrew Lienvense & Andrew Cohn,
Federal Judiciary and the ABA Model Code: The
Parting of the Ways, 28 Justice System
Journal 271 (2007).
Comments may be submitted to the Committee on
Codes of Conduct by e-mail to:
codecomments@ao.uscourts.gov. The deadline
for comment submission is April 18, 2008.
Click
here for a text-searchable version. A review of the proposed rules by Suzanne
Blonder (senior staff counsel for H.A.L.T.) is
here. A critique of the new rules by Elena
Sassower (Center for Judicial Accountability) is
here. A critique by Richard Cordero, Esq. is
here. A critique by Ken Smith, J.D. is here.
Jan.
22, 2008 – When Judges Judge Judges, the Result is Usually
Foreseeable: Judicial Conference Committee on Judicial Conduct
and Disability conflates administrative discipline with the
doctrine of Absolute Immunity
In this
Jan. 14, 2008 Opinion, the Committee considered whether
repetitive failure to include reasons (findings-of-facts
and/or conclusions-of-law) constituted misconduct. The
Committee concluded that:
the type of misconduct
alleged in the complaint may not be cognizable under the Act
. . . [because] . . .it would be entirely contrary to th[e]
purpose[s of the Act] to use a misconduct proceeding to
obtain redress for or even criticism of -- the merits of a
decision with which a litigant or misconduct complainant
disagrees. Adjudication is a self-contained process governed
by extensive statutory provisions and rules of procedure.
Inserting misconduct proceedings into this process would
cause these provisions and rules to be far less “effective”
and “expeditious.” Moreover, allowing judicial decisions to
be questioned in misconduct proceedings would inevitably
begin to affect the nature of those decisions and would
raise serious constitutional issues regarding judicial
independence under Article III of the Constitution. Judges
should render decisions according to their conscientiously
held views of prevailing law without fear of provoking a
misconduct investigation. Indeed, for these very reasons,
judges have absolute immunity from civil liability for their
decisions, Pierson v. Ray, 386 U.S. 547, 553-54
(1967), a principle fully applicable to misconduct
proceedings.
Essentially, the Committee holds that, not only is a judge
immune from civil suit (not just civil liability of damages)
but, also that the administrative disciplinary process
should not be applied to a judge’s rulings (the essence of
the job).
It’s tantamount to holding that an airline employer should
exclude consideration of pilots’ operation, inspections,
take-offs, landings, etc. of passenger jets in their
internal disciplinary processes.
It seems that abdication of judicial accountability under
the rubric of judicial independence has become a
institutional cancer that threatens to undermine our
Republic. Yet, at the same time, Senator Patrick Leahy, has
been leading a legislative effort to get pay raises for the
judiciary, explaining:
Our democracy and the rights we enjoy
depend on a strong and independent Judiciary . . . During
the last few years it has been the courts that have acted to
protect our liberties and our Constitution . . . . The
quality of the Judiciary is threatened if judges’ salaries
are inadequate to attract and retain our best legal minds.
Given the essential role that the Judiciary plays in our
system of government, we should pass this raise to judicial
salaries. [Click
here].
If that wasn’t enough, former Justice Sandra Day O’Connor
has been traveling the country, defending the “independence
of the judiciary” and suggesting that most Americans need to
take a lesson in civics. (Click
here). Other federal
judges, so busy that they can’t read litigants’ briefs and
must refer them to magistrates, are giving similar speeches
hither and yon (like the one John E. Jones III gave to the
Anti-Defamation League, discussing, “the creeping disrespect
for the judiciary that exists today.” (Click
here)).
The judiciary, it seems, continually fails to recognize that, key to
retaining judicial independence is maintaining respect for
the judiciary and, there can be no respect for the judiciary
without meaningful judicial accountability.
Jan 21, 2008 – Senators
Kyl (R-Ariz.) and Feingold (D-Wis.) propose banning federal judges from
educational junkets
So
reports Lawrence Hurley, The Daily Journal:
Two U.S. senators are trying to make a proposed pay
increase for the federal judiciary more palatable to Congress by inserting into
the legislation a ban on judges attending controversial all-expenses-paid
educational junkets.
The senators, Jon Kyl, R-Ariz., and Russ Feingold, D-Wis., have circulated an
early draft of their proposed amendment to the Federal Judicial Salary
Restoration Act, which is currently pending before the Senate Judiciary
Committee.
The draft amendment would ban judges from attending "a program, a significant
purpose of which is the education of United States federal or state judges,"
hosted by any organization other than the federal government or relevant
judicial and bar association groups..
The issue has been a bone of contention between the judiciary and Congress in
recent years following a series of media accounts of judges attending
educational seminars that were funded by organizations that receive donations
from big business and other interest groups.
The proposal, which could be altered before being formally introduced, would
also put a limit on gifts, including travel expenses and accommodation that
exceed $1,500 for a single trip of $5,000 over the course of a year.
Other senators on the committee have indicated interest in the amendment,
sources say.
Senate Judiciary Committee Chairman Sen. Patrick J. Leahy, D-Vt., has not stated
publicly where he stands, but he has previously introduced legislation that
would ban junkets and has been critical of the judiciary's handling of the
matter.
One of the most outspoken critics of judicial seminars, Douglas Kendall, of
public-interest law firm Community Rights Counsel, welcomed the development..
"I think it's true that if you are going to give judges a $50,000 raise, it's a
perfect opportunity to do something about this," he said.
The committee could take up the issue as early as [this] Thursday, after the
Senate returns from its holiday recess.
The underlying bill, welcomed by the judiciary, calls for district judges to
earn $247,800, a substantial increase over the current salary of $166,000.
Dick Carelli, a spokesman for the U.S. Judicial Conference, declined to comment
on the proposed amendment, although he noted that the judiciary continues to
support judges attending seminars as long as they follow the conference's
disclosure procedures.
"The bottom line is that the Judicial Conference thinks that judges can clearly
go to seminars," he said..
A statement on the judiciary's Web site says that the Judicial Conference
"believes that neither it nor any other entity should seek to limit judges'
access to knowledge or censor their right to increase that knowledge."
At least one impetus for the junkets ban appears to be the belief among some
committee members that the pay raise is too much, according to sources familiar
with the process.
Committee spokeswoman Erica Chabot conceded that "the big concern" raised by
certain senators was the amount of the proposed raise.
But she added that it's not clear whether passage of the Kyl-Feingold amendment
will be enough to win over the doubters.
Kendall is hopeful that it will at least convince Feingold and Kyl themselves.
"Feingold and Kyl have been hesitant about the pay raise, but it may help," he
said of the amendment.
The House Judiciary Committee has passed a less generous bill that would
increase salaries by 31 percent, meaning that a district court judge would earn
$218,000.
That bill does not contain a provision banning the junkets.
The Judicial Conference took action in fall 2006 to address concerns about
judges attending the privately-funded seminars.
It introduced a new regulation requiring all groups holding such seminars,
including the Law and Economics Center at George Mason University in Virginia,
to disclose their financial contributors.
The Daily Journal reported in August 2006 that 9th U.S. Circuit Court of Appeals
Judge Andrew J. Kleinfeld had attended seminars at the Law and Economics Center
that were part-funded by ExxonMobil Corp.
Fairbanks, Alaska-based Kleinfeld, who was not aware of Exxon's involvement, is
one of the judges on a panel that reduced the damages that ExxonMobil had to pay
as a result of the Exxon Valdez oil spill.
To
learn more about the issue of seminars or "junkets for judges," click
here.
A year-2000 study by the Community Rights Counsel (C.R.C.) regarding the issue
of junkets for judges is located here and
an entire Web site dedicated to the subject of junkets for judges is
here.
Dec. 31, 2007 - 2007
Year-End Report on the Federal Judiciary contains familiar illusory "tough talk"
about judicial discipline
"[T]he Judiciary must relentlessly ensure that federal judges maintain the
highest standards of integrity. Federal judges hold a position of public trust,
and the public has a right to demand that they adhere to a demanding code of
conduct. The overwhelming majority do. But for those who do not, the Judiciary
must take appropriate action. Last year, a study committee commissioned by the
former Chief Justice and chaired by Associate Justice Stephen Breyer issued a
Report on the Implementation of the Judicial Conduct and Disability Act of 1980.
While the study committee found that, overall, the Judiciary does an excellent
job of handling complaints about judges, it also found that there remains room
for improvement. The Judicial Conference has implemented eight of the twelve
recommendations in the Report, and the remaining four will be considered at the
Conference’s next meeting. James Madison observed in Federalist No. 51 that, if men were angels,
there would be no need for government. Likewise, if judges were beyond
imperfection, there would be no need for judicial discipline procedures. History
and human nature teach that the Judiciary must be continually vigilant in
maintaining the high standards of judicial office. When entertaining a complaint
about a judge, the Judiciary must apply the same qualities of reason,
impartiality, and wisdom that epitomize the judicial process. The Judiciary
cannot tolerate misconduct. The public rightly expects the Judiciary to be fair
but firm in policing its own."
2007 Year-End Report on the Federal Judiciary
Dec. 20, 2007 - Federal Judge in New Orleans
referred for Impeachment.
Although internal investigations of federal judges are rare and, although no
judge not indicted has ever been impeached, the Fifth Circuit has referred
Thomas Porteous, Jr. for impeachment. Porteous was adjudged to have: filed
"numerous false statements under oath" during his joint bankruptcy proceedings
with his wife; concealed assets; failed to identify gambling losses; violated
Bankruptcy Court orders against taking on more debt; engaged in fraudulent and
deceptive conduct" concerning a debt he owed; and took gifts from attorneys with
cases on his docket and failed to report them for six years (from 1994 to 2000).
The full text article regarding Porteous, including links to the rulings, is
here. Here in Colorado, we are awaiting the outcome of an FBI investigation
concerning federal
Chief Judge Nottingham's alleged use of courthouse computer equipment
for one-handed Internet surfing. Also, an inquiry may be or has been initiated
against U.S. Magistrate Judge Michael J. Watanabe, to determine whether he failed to report income
from a lobbying group, whose constituents have appeared as defendants in cases
before him or whether his speaking engagements for the lobbying group
constitutes the appearance of impropriety in violation of the applicable
judicial canons. (Click
here).
Oct. 25, 2007 - Judges
impose secrecy on remake of ethics rules
As the federal judiciary embarks on a historic revision of its rules against
judicial misconduct, the panel of judges that's overseeing the drafting of new
regulations refuses to disclose the public comments that could help shape the
overhaul.
After requesting public comments about the proposed rules, the Committee
on Judicial Conduct and Disability refuses to say how many responses it
received, who commented or what was said.
"I have never heard of public comments being made confidentially," said Abner Mikva, a retired chief judge of the U.S. Court of Appeals for the District
of Columbia Circuit. "I'm trying to think of an explanation, but this strikes me
as very strange.">> full article text >>
October 17, 2007 - HALT, an organization of Americans for Legal Reform, submits proposal for Proposed Rules Governing Judicial Misconduct and Disability Proceedings.
A link to the organization's proposed amendments is
here.
Sept. 26, 2007 -
Comment to the Committee on Judicial Conduct and Disability includes an acrid
indictment of the Tenth Circuit
Ken Smith, J.D. submitted his
memorandum to the Committee on Judicial Conduct and Disability during
the period of public comment regarding the Proposed Rules Governing Judicial
Conduct and Disability.
Sept. 24, 2007 -
The Committee on Judicial Conduct and Disability of the Judicial Conference of
the United States will hold a one half-day hearing at 10:00 a.m. on Thursday,
September 27, 2007, regarding its Draft Rules Governing Judicial Conduct and
Disability Proceedings under 28 U.S.C. §351-364.
The draft rules are intended to implement the recommendations contained in the
Breyer Report issued by the Judicial Conduct and Disability Act Study Committee,
chaired by Justice Stephen Breyer and appointed by the Late Chief Justice
William Rehnquist. The hearing will be held in the U.S. Courthouse at 225 Cadman
Plaza East, Brooklyn, New York. If you want to petition that the judges hold a
hearing on the Draft Rules where you live, send your request to Circuit Judge
Ralph Winters, Chair of the Committee on Judicial Conduct and Disability at
JudicialConductRules@ao.uscourts.gov. The Committee has required
from those that have requested to testify at the hearing that they give in
advance a written indication of their intended testimony.
August 24, 2007 -
Proposed Rules for Federal Judges
The Committee on Judicial Conduct and Disabilities of the Judicial Conference of
the United States has promulgated proposed amended rules for misconduct and
disability proceedings against federal judges. The comment review period ends on
October 15. Comments may be submitted by e-mail to
judicialconductrules@ao.uscourts.gov. If the Judicial Conference adopts
these draft rules, they will be binding upon chief judges, circuit judicial
councils, and circuit staff. Comments should include the sender's name, mailing
address, organization (if applicable), and occupation. For more information,
visit
www.uscourts.gov/library/judicialmisconduct/commentonrules.html. The Draft
for Public Comment regarding the Rules Governing Judicial Conduct is
here.
