Mr. Fuller has done the honorable thing, even if there was an inducement

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See Jada F. Smith, Federal Judge to Quit Post; He Faced Abuse Charge, New York Times (May 29, 2015).*

Even if his resignation was induced under 28 U.S. Code § 354(a)(2)(B)(ii) (“If the conduct of a judge appointed to hold office during good behavior is the subject of the complaint, action by the judicial council under paragraph (1)(C) may include—requesting that the judge voluntarily retire, with the provision that the length of service requirements under section 371 of this title shall not apply”), Mr. Fuller has done the honorable thing. For that, I applaud him.

RGK

*For prior posts on this subject, see here, here and here.

Why I don’t favor the impeachment of Judge Fuller

In my post yesterday, I suggested a mechanism short of impeachment to get rid of Judge Fuller. Impeachment was not one of them. In this post I explain the fundamental reason why I don’t favor impeachment and why I am frightened by the thought.

Fuller’s despicable conduct was nevertheless private, and it was unconnected to the performance of his judicial duties. If you examine the prior impeachment cases tried in the Senate from the list and summary prepared by the Federal Judicial Center and presented in my (updated) post of yesterday, you won’t see anything comparable. Now, let me be clear, I don’t mean to excuse Fuller’s behavior or suggest that domestic violence should be tolerated in any way. I mean “comparable” in the way lawyers and judges parse precedents. And, what sticks out to me is the private nature of the abhorrent conduct.

It is perfectly fair for you to ask: So what? Here’s my answer: “I don’t trust the House of Representatives to exercise restraint once articles of impeachment are presented against a federal judge for conduct that is private in nature.” I fear political witch hunts against judges who have offended the party controlling the House.

Image credit: maghis.oxfordjournals.org

Image credit: maghis.oxfordjournals.org

I have thought a lot about impeachment. I even have experience advising a legislative body whether to impeach, and when the body elected to disregard my advice to condemn but not impeach, trying the impeachment case I advised against. I know what can happen when a legislative body gets wound up. Such bodies almost never exercise restraint. They don’t think about the consequences, and if they don’t like the political stripes of the person in the cross-hairs there is an almost irresistible urge to get partisan.

Let me give you an example of case that fully illustrates my fear. While I will not name the judge, the case I next describe is a real one.

Judge A killed a man. The judge was driving his car and crossed into an adjacent lane. The older man in that next lane was on a little motorcycle. The judge’s car hit the motorcycle, and knocked the operator to the concrete. He died at the scene or shortly thereafter. Judge A should never have been driving. He was blind in one eye and when his hearing aids failed to work properly (as they often did) he was deaf. Judge A was also an icon. He was revered by judges and lawyers across the nation. He was the very essence of a model judge, and various national organizations had recognized him as such. But a man was dead, and the judge’s poor judgment (“reckless driving”) compelled the local prosecutor to charge the judge. Judge A admitted his error, and was placed in a diversion program which required community service. The judge completed the community service hours as required. Judge A had decided lots of high-profile cases. The outcome of many of those cases was distinctly “liberal” when viewed from the fractured lens of the true believers on the right.

Now, if Fuller’s private conduct justifies impeachment, tell me why Judge A’s private conduct resulting in death does not also justify impeachment? More particularly, if Judge A really pissed off the House and that body had been fuming about his liberal decisions, do you really think Judge A would be treated fairly by the House? I don’t.

Get rid of Fuller, but don’t impeach him for his private conduct. The good men and women who serve the federal judiciary will rue the day if you do.

RGK

If Judge Fuller won’t resign, the Chief Judge of the Circuit and the Circuit Judicial Council should stop him from handling cases for as long as the law allows

Judge Fuller got a sweet deal when prosecutors allowed him to enter some type of diversion program that will allow him to erase his criminal conviction for beating the crap out of his wife in a fancy hotel room while reeking with booze. See here and here for recent coverage (with a hat tip to How Appealing).

Now that we know the resolution of the criminal process, we can focus on the fact that Mark Fuller is an active United States District Judge. As such he holds immense power, and he exercises that power alone. What should happen if Fuller won’t resign? And from all accounts, he has no intention of voluntarily quitting.

I would not waste the effort trying to impeach him. I know something about impeachment having actually tried such a case before the Nebraska Supreme Court where I sought to oust Nebraska’s Attorney General. I doubt that you would ever get the House to act and any such action would probably not succeed as a legal matter even if you did. By the time it got to trial in the Senate, under his plea deal, the conviction would no longer exist. It will have been erased.

Instead, the Chief Judge of the Circuit and the Circuit Judicial Council should strip him of his ability to hear cases for as long as the law allows. See 28 U.S. Code § 354(a)(2)(A)(i) (“ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint”). They should also publicly reprimand him and formally request that he resign. Id.§ 354(a)(2)(A)(ii-iii) & § 354(a)(2)(B)(ii). Pay him forever as an inducement to resign–the statute gives them that leverage. I don’t care. That’s chump change. Just neuter him for as long as possible. Approach this process practically and quickly. But be tough.

I don’t care about punishing Judge Fuller. I don’t want to hurt his family. I just want him off the bench for as long as possible. Why? It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal trial courtroom. That courtroom is a hallowed place where trust in the one person wearing a black robe is absolutely indispensable.*

UPDATE: For those who suggest impeachment is the proper route, I urge careful consideration of the prior impeachment cases.  Here is the list and a short summary of those cases prepared by the Federal Judicial Center, the research arm of the federal judiciary:

Impeachments of Federal Judges

John Pickering, U.S. District Court for the District of New Hampshire.
Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

Samuel Chase, Associate Justice, Supreme Court of the United States.
Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

James H. Peck, U.S. District Court for the District of Missouri.
Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

Mark W. Delahay, U.S. District Court for the District of Kansas.
Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

Charles Swayne, U.S. District Court for the Northern District of Florida.
Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

Robert W. Archbald, U.S. Commerce Court.
Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

George W. English, U.S. District Court for the Eastern District of Illinois.
Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

Harold Louderback, U.S. District Court for the Northern District of California.
Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

Harry E. Claiborne, U.S. District Court for the District of Nevada.
Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

Samuel B. Kent, U.S. District Court for the Southern District of Texas.
Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.

Federal Judicial Center, History of the Federal Judiciary, impeachments of Federal Judges, (Last accessed September 11, 2014 at 3:10 PM).

RGK

*By the way, this has nothing to do with the Ray Rice case.

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.).

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