Judicial misconduct complaints

Thanks to How Appealing (at 7:48 p.m.), I commend to your attention Gripes About Federal Bench: Banal to Bizarre, Peek into 11th Circuit misconduct file shows many complaints, no discipline. I ask you to read the article, and tell me what you think.

Here are my initial thoughts:

1.  The fact of “no discipline” from 2006 to the present does not surprise me in the least. With very few exceptions, judicial misconduct complaints are facially frivolous (the judge is controlled “by the devil,” the judge must have taken a bribe, the judge ignored the fact that “I am a sovereign citizen”) or is a gussyed up misconduct complaint which is in reality an effort to relitigate a case that the complaining party lost.* The recent cases of Judge Cebull or Judge Martin are very much the exception.**

2.   The Courts of Appeals should post all final orders on their web sites so it is easy for the press and the public to see them.

But, as I indicated, I am interested in your opinions. I am particularly interested in hearing from federal practitioners. What say you?

RGK

*The Administrative Office of the United States Courts has helpfully posted the rules for each Court of Appeals and related information entitled JUDICIAL CONDUCT & DISABILITY ACT: RESOURCES.

**For more on the sad but pending case of Judge Fuller (the hyperlink is to my earlier blog post), see here and here. Again, a hat tip to How Appealing (at 5:02 p.m.).

8 responses

  1. Most of us who are paying attention know that the federal judicial discipline system is a farce, and meritorious complaints don’t get filed because even the idiot who called you an “ethics dunce” for your STFU remark admitted that you always cover for one another, and filing an ethics complaint is an exercise in futility. As Professor Rotunda reported in the Washington Post:

    “After I testified in favor of the legislation in June, I received many supporting letters. For example, a federal judge, John Kane (who gave me permission to quote his e-mail), wrote, “I’ve been a district judge for 29 years and think the federal judicial house has brought this legislation on itself.” He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.

    Judge Kane’s e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, “and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, ‘John, think about it. The next time it could be you or me. We’ve got to stick together.’ ”

    Kane added, “I’ve recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a ‘kiss your sister’ operation that hasn’t worked and won’t as long as judges are covering one another’s butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record.

    Ronald Rotunda, The Courts Need This Watchdog, Wash. Post, Dec. 21, 2006. Other professors are in agreement.

    Judge Kozinski adds:

    “Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with the accused, whose conduct might not be all that different from what we have done-or been tempted to do-in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we’ve condemned when we see them at a judicial conference, committee meeting, judicial education program or some such event.”

    In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1200 (9th Cir. 2005) (Kozinski, J., dissenting).

    State disciplinary bodies are more credible. To their credit, California authorities get it right:

    “A judge’s error in a decision or ruling — by itself — is not misconduct. … The California Supreme Court has determined that a judge who commits legal error is subject to investigation and possible discipline only if the legal error clearly and convincingly reflects in addition bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duties.”

    State of California Commission on Judicial Performance, “How To File a Complaint” (web page).

    As Judge Kozinski adds, even a single indefensible judicial decision may constitute evidence of sanctionable misconduct:

    “Judicial action taken without any arguable legal basis … is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351 (a); Shaman, Lubet & Alfini, supra. § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake. The sort of evaluation that measures the seriousness of legal error is admittedly somewhat subjective, but the courts seem to agree that legal error is egregious when judges deny individuals their basic or fundamental procedural rights.”); In re Quirk, 705 So. 2d 172, 178 (La. 1997) (“A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct.” (citing Jeffrey M. Shaman, Judicial Ethics. 2 Geo. J. Legal Ethics 1, 9 (1988))).”

    In re Complaint, 425 F.3d at 1185.

    The legislative history of Section 351 states that “the phrase, ‘effective and expeditious administration of the business of the courts,’ was ‘intended to include willful misconduct in office, willful and persistent failure to perform duties of the office, habitual intemperance, and other conduct prejudicial to the administration of justice that brings the judicial office into disrepute.’” S. Rep. No. 96-362 at 9. As he always seems to, The Big Kozinski gets it dead, solid perfect.

    Why is it that when a federal judge gets it right, it is always in dissent?

    As I recall, you served on one of these committees, as have Kozinski and Kane. My question to you is, “Are they right, and if not, why not?”

  2. Dear CA Jail4Judges,

    Thanks for your very detailed comment. I see you posted around 4:45 AM. I was up then too. On Tuesday, I started my sixth cycle of chemo replete with oral steroids via infusion. After that, I take 40 mg of steroids orally daily for 14 days. When I start this regime for each cycle, the first few days are tough because the steroids won’t allow me to sleep. Hence, I was up when you posted, but the darn computer at home failed. Have you ever tried to force Windows 7 to reset a router? It took me over 2 hours to do that, so I am just now getting to your comment.

    Here are my thoughts:

    1. I highly respect Professor Rotunda. Indeed, over 30 years ago he appeared as an expert witness for me when I tried the impeachment of the Nebraska Attorney General to the Nebraska Supreme Court. The basis of the articles of impeachment that I drafted for the Nebraska unicameral was that the Attorney General had violated his ethical obligations to the State, and Professor Rotunda agreed and so testified. He was gracious, thoughtful, very smart, and quite nice to a young lawyer who was scared to death. I will forever be in Ron’s debt.

    2. I also have a high regard for the judges mentioned in your comment, although I know them only by their superior reputations. I agree with you that their views should be taken seriously.

    3. I did serve on the Eighth Circuit Judicial Council during the time I was Chief Judge. In that capacity, I had occassion to review judicial conduct-complaint-opinions authored by the Chief Judge of the Eighth Circuit. My experience was that every complaint I reviewed was taken seriously by the Chief although most were frivolous.

    4. For six years, I served as a member of the Judicial Conference’s Committee on Codes of Conduct. That body is not the ethics police, but rather authors private opinions for judges giving ethical advice on questions arising under the Code of Conduct applicable to judges. There is a member from each Circuit plus a bankruptcy judge and a magistrate judge. The Committee will not issue an opinion until all or mostly all of the members agree. I can tell you that these opinion are detailed, similar to judicial opinions, and are taken seriously by the members of the Committee. The docket is extremely busy, and working on that Committee is like having to do double duty on the bench–accepting your regular docket of cases, and the docket of cases from the Committee, forces each member of the Committee to work a lot of overtime. From that experience, I can tell you without reservation that many (hundreds) of federal judges take their ethical obligations quite seriously as evidenced by the fact that they seek outside advice from the Committee. Frequently, the advice given by the Committee is not what one assumes the requesting judge wanted to hear. Nonetheless, never did I see the Committee issue a private opinion that was based on anything but an unbiased evaluation of the facts and the Code of Conduct.

    5. I urge you read the Opinions of the Committee on Judicial Conduct and Disability which reviews decisions by the Circuit Chief Judges and their respective Judicial Councils which you will find collected here for the period 2006 to the present. No fair reading of those seven opinions would lead a reasonable person to conclude that non-frivolous judicial misconduct complaints are resolved by application of the “good old boy” rule.

    6. I strongly disagree with you that the substantive strength of a judge’s opinion or actions ought to be a regular ground for a misconduct complaint. Short of a judge consistently “mailing it in” or abusing lawyers or litigants, the law enacted by Congress regarding these complaints was never intended to address the merits of a judge’s reasoning or actions in a given case. Indeed, if that were not the case, these misconduct complaints would substantially alter for the worse the entire appellate process.

    7. The process could and should be made more transparent by placing the final orders of the Chief Circuit Judge or his or her Judicial Council on the web site for the Circuit. That would go along way in disabusing folks of the notion that these complaints are blown off.

    8. There are times when the process fails I am sure. But, like Judge Kane, I too have served a long time as a district judge, now more than two decades. Before that I served over five years as a United States Magistrate Judge. Before that I served two years as a law clerk to a judge on the Eight Circuit Court of Appeals. I cannot recall a single case where I was persuaded that a judge who truly offended got off because the Chief Judge of the Eighth Circuit or the Eighth Circuit Judicial Council was protecting one of their own. Please appreciate that, in this regard, my experience is limited to the Eighth Circuit.

    I hope you find this reply responsive, although I am sure you will disagree. Again, I appreciate your detailed comment, and the important concerns that it raises.

    All the best.

    RGK

  3. The fact that judicial complaints are secret — and that the opinions deciding their complaints go out of their way not to name the judge and not to detail the allegations — undercuts any pretense that this is a fair or adequate system. It is ironic indeed that the sector of government that most high-handedly bloviates in favor of openness and publicity has, with respect to their own operations, such a code of silence. (Next time the Ninth Circuit says that Arizona has to release more info on their death penalty protocol, let’s just remember how little that Circuit tells us about the judges accused of misconduct.)

    Add to that Judge Kane’s story related in the comments above, and it becomes clear: some misconduct panels may behave adequately, but the current structure of the process lends itself to misbehavior and cover-ups that should not be tolerated.

    I can name at least two utterly senile district judges (and one likely senile appellate judge) still deciding cases in my jurisdiction. Judge Kanne points to a disciplinary proceeding in the 10th Circuit where the Chief Judge evidently cast the deciding vote purely in a desire to avoid scandal, rather than on an evaluation of the evidence. The nation watched years ago as a judge in California was caught illegally interfering in bankruptcy proceedings for an attractive probationer, and dissipating millions of dollars from a foreign despot’s estate that was entrusted to the court for the victims’ benefit — resulting in a finding of no misconduct (over one judge’s vigorous and persuasive dissent.) It seems that only actual criminal charges (like for the Texas judge convicted of sexual assault, or the Georgia judge convicted of drug violations) are enough to spur disciplinary action. [Sure, that one judge in Montana was reprimanded for racist comments — but only once he’d already decided to step down.]

  4. Thank you for your detailed and thoughtful reply. I’m on enough drugs to stop a freight train. May we both get better soon.

    Judge Kopf: “I strongly disagree with you that the substantive strength of a judge’s opinion or actions ought to be a regular ground for a misconduct complaint. Short of a judge consistently “mailing it in” or abusing lawyers or litigants, the law enacted by Congress regarding these complaints was never intended to address the merits of a judge’s reasoning or actions in a given case.”

    Neither do I. But as Judge Kozinski points out, some rulings and judicial actions are so far beyond the pale that they could only be explained by judicial misconduct and cronyism. Congress intended that acts like that were to be sanctioned, but whenever judges don’t like a law, you have a tendency to interpret it out of existence (per Judge Kozinski). Where it matters, it is tough to even find instances of judicial fidelity to the law.

    This is our complaint at J4J (we call ourselves “JAILers”). When Judge Gertner tells us that she was “trained” on how to ‘get rid of’ pro se civil rights claims, her colleagues had to be doing it, and every judge had to issue opinions that were not just wrong, but willfully dishonest. Why is this not even sanctionable?

    Those are the federal judges we JAILers are trying to send to jail. They are committing crimes.

    And don’t try to tell me the appeals process works. Judge Posner says that there is a very high error rate, but errors are almost never caught, because appellate judges like Judge Arnold decide fifty appeals in two hours. You admit that you don’t even read most of the briefs submitted, and they don’t read the opinions “they” issue. Judges of the Courts of Appeal mail it in over 90% of the time.

    Then, there’s the guy who was banned here. He went into federal court saying that he was deprived of his due process right to a fair trial, but the judge invoked the Gertner rule and misused Rooker-Feldman to deprive him of a remedy. Tell me that “undue guild favoritism” and animus toward pro se litigants didn’t drive that decision. And judges wonder why people like that are angry.

    Then, there is the judge in Colorado who gives pro se complaints to his magistrate with obvious instructions to ‘make it go away,’ and issues the exact same fact-free and analysis-free opinion every time, word-for-word, as evidence that he has “reviewed” the magistrate’s work. Isn’t that good evidence of a trial judge “mailing it in?”

    Then, there are appellate judges who gotten so old and feeble that they can’t do their jobs. Instead of telling them to retire, appellate courts use them as rubber-stamps in unpublished opinions. You have said that that violates the right to a meaningful appeal, but who is responsible, if not the competent judges who use him in that manner?

    When judicial conduct is so egregious that everyone can see it as being egregious, it should be sanctionable. Intentional disregard of the law by a judge is willful misconduct, and intent is often inferred from conduct.

    I could even add Suja Thomas here (on abuses of summary judgment). While I might not have credentials, they do. These are serious people, making serious points.

    You can cherry-pick a half-dozen exemplary instances where the system worked, and if I had access to them, I expect that I would be able to pull out 600 to show where it failed, and 600 other instances where counsel didn’t bother to file because it was pointless to try. (Attorney Isodoro Rodrigues can do it right now without straining.)

    As Judge Kane argues, the system is “designed to fail.” Real abuses of power are routinely ignored. The only complaints that are filed are ones filed by people who don’t know that it is futile to file them and don’t know enough to file coherent ones. I would happily buy the trial judge a penis pump if he would get my case right the first time, as it is a lot cheaper than an appeal.

    Doesn’t it always come down to what CONGRESS intended? While you may think that it is a bad idea for judges to be sanctioned for weak and even absurd opinions, it appears that Congress respectfully disagrees. What you or I think shouldn’t matter, because they write the law.

  5. Practitioner,

    I agree with you that the rule should be changed so that the default in all cases–dismissal or otherwise–is to name the judge in the final order. I think a similar rule should be applied to complaining parties but I can understand why others might say that such a rule would deter legitimate complaints. I could live with keeping the rule the same as it is now for complaining parties, but I strongly believe that judges should be named wherever possible.

    Thanks for taking the time to write. I am very sorry that you feel the way you do.

    All the best.

    RGK

  6. In the case Judge Kane related, the judge was soliciting a bribe. How is that not turned over to the U.S. Attorney? “Tell us where the Ring might be found, and you shall have everlasting friendship from Sauron. Refuse, and things shall not go as well.” When a judge soliciting a bribe from an attorney whose firm appears before him regularly is “a close call,” it is clear that the system is broken. We can’t trust in the judgment of judges because they have proven themselves unworthy of our trust.

    If there was any doubt that the system has failed, Judge Kozinski extinguished it in his Real dissent:

    “The so-called hearing on the second of these motions gives a pretty good flavor of the judge’s attitude in this matter. The motion (and an unrelated motion) were argued together on June 18, 2001 — after Deborah Canter had occupied the property for some 15 months past the eviction judgment. Deborah was present (apparently pro se), but said nothing of substance. After counsel for the Trust soliloquized for about a page of transcript, we find the following unilluminating exchange:

    THE COURT: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied — I’m sorry. The motion to dismiss is granted with ten days to amend.

    MR. KATZ: And the motion to lift the stay is denied?

    THE COURT: Denied; that’s right.

    MR. KATZ: May I ask the reasons, your Honor?

    THE COURT: Just because I said it, Counsel.

    I could stop right here and have no trouble concluding that the judge committed misconduct. It is wrong and highly abusive for a judge to exercise his power without the normal procedures and trappings of the adversary system — a motion, an opportunity for the other side to respond, a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law, though they surely serve those purposes as well. More fundamentally, they lend legitimacy to the judicial process by ensuring that judicial action is — and is seen to be — based on law, not the judge’s caprice.”

    Owing to the Gertner Rule, virtually all pro se civil rights cases don’t even get past summary judgment, so the only evidence we have of judicial misconduct is a decision that makes no earthly sense. We have to be able to rely on this as evidence of misconduct, or it will never be exposed.

    The only way to fix this is to take it out of the hands of judges, and put it in the hands of the people. While we don’t want judges to answer to Congress, they ought to have to answer to us, because the only power they have, we entrust to them with the understanding that they will not abuse it. They have abused their trust — not in every case, but in enough cases where they are no longer worthy of our trust.

  7. I am confused. What is the point of these disciplinary hearings? The best (worst?) they can do is take away a judge’s caseload. Of course, thanks to Article III, the judge still gets full salary. So, to summarize, the ultimate punishment is no work for full pay. A lifetime of paid vacation. Cruel and unusual punishment, for sure, but certainly a strong deterrent.

  8. In the Eleventh Circuit, you cannot file a complaint against a judge without identifying yourself. Setting aside misconduct for a moment, there is no process by which to address/challenge the mental fitness of a judge who may be in decline. Even if you have the highest respect for that judge and don’t wish to cause him or her embarrassment or pain, there can come a time when the judge is no longer fit to serve. The only process of which I am aware is to file a complaint with the Circuit, in which you must identify yourself and thus potentially place your client’s interests in jeopardy.

    For misconduct, the same dilemma presents itself. As an example, it often took several months to get a hearing date in front of one of our judges while he was still on the bench. Clients would sit in pretrial detention, waiting for revocation hearings or sentencings, and you could not get a hearing set. If you filed a mandamus, you risked the judge’s ire being directed toward the client. So we waited. Members of the bar knew there were issues for years, but did nothing for fear of harming clients and their own professional reputations. The issue was only resolved when the judge was removed for other reasons.

    Lastly, chemo sucks. I am grateful that I don’t have personal experience, but this is an indisputable fact. I wish you well in your treatment.

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