71 Judicature 282 (1987-1988)
Misconduct and Disability of Federal Judges: The Unreported Informal Responses

handle is hein.journals/judica71 and id is 284 raw text is: Misconduct and disability of federal judges:
the unreported informal responses
Although the formal statistics may suggest that responses to complaints against
federal judges are inadequate, in fact many problems are resolved informally by the
judiciary itself.
by Collins T. Fitzpatrick

he purpose of this article is to
point out to the bar and public
that there are important in-
formal ways of dealing with
improper behavior of federal judges in
addition to the formal ones. These in-
formal methods have been greatly
strengthened by the enactment of the
federal judicial discipline statute.
Congress enacted the Judicial Coun-
cils Reforms and Judicial Conduct and
Disability Act of 1980 to create a mech-
anism and procedures within the judi-
cial branch of government to consider
and respond to complaints against fed-
eral judges.' This statute, which be-
came effective October 1, 1981, provides
the judiciary with an excellent tool to
investigate and correct improper judi-
cial behavior without infringing on the
necessary independence of the judges. It
is set forth in 28 U.S.C. 372(c). Section
332 of Title 28 also provides the circuit
judicial council with general authority
to issue orders necessary and appropriate
for the effective and expeditious admin-
istration of justice.
Prior to enactment of the Act, there
was much debate over the need for a
judicial discipline mechanism, whether
such a mechanism should be located
within the judiciary or as a separate
commission, and whether removal of a
lifetime judge from office other than by
impeachment would be constitutional.
Subsequent to passage there has been
criticism of the local rules adopted by
each circuit due to the lack of uniformity
and arguable due process failings.2 To
respond to those criticisms, in March
1987, the Judicial Conference of the
United States recommended that each
judicial council adopt local rules sub-

stantially similar to the Illustrative Rules
Governing Complaints of Judicial Mis-
conduct and Disabilities.3 The nonstatu-
tory ways in which the judiciary polices
itself were not strongly noted in the
debate or subsequent criticism.
The 1987 Annual Report of the Direc-
tor of the Administrative Office of the
United States Courts reports that 232 ju-
dicial misconduct complaints were filed,
and 244 were concluded during the year
ending June 30, 1987 (all complaints are
not necessarily concluded within a sta-
tistical year). The circuit chief judges
dismissed 198 complaints, an additional
35 were dismissed by the judicial coun-
cils, two complaints were withdrawn,
eight were terminated after appropriate
action was taken, and one was referred to
the U.S. Judicial Conference. The statis-
tics do not report what was the appro-
priate action. One might look at these
statistics and conclude that the federal
courts are in very good shape because
there are not very many problems. One
might also look at these statistics and
surmise that the judiciary is not taking
its responsibilities seriously enough be-
cause there are certainly more problems
than nine a year in the entire country.
The cold statistics do not report the
extentof the problems on the bench, nor
do they report the extent of the judi-
ciary's corrective actions in dealing with
these problems. Why are there not more
formal complaints? First, attorneys4 are
often reluctant to file a judicial miscon-
duct complaint for fear the judge might
be prejudiced against their current or
future clients. While there has always
been a reluctance by attorneys to petition
for a writ of mandamus against a partic-
ular judge, there seems to be even more

reluctance to file a judicial misconduct
complaint. This reluctance similarly
limits attorney complaints to the Judi-
ciary Committees of Congress and would
limit complaints to any proposed insti-
tution, such as a judicial tenure commis-
sion. The reluctance of active attorneys
to complain is endemic to a system such
as ours in which due process requires
that thejudge be informed of the identity
of the complainant.
In addition to the reluctance of attor-
neys to formally complain, the bar often
assumes that, because the judge's im-
proper behavior is common knowledge
among the bar, the circuit and district
chief judges and the judicial council are
also aware that a particular judicial
officer is having problems. Even when a
chief judge suspects a problem, it is rare
for the chief judge to know the dimen-
sions. Attorneys need to utilize the com-
plaint process, not for annoying judicial
personality quirks, but for serious im-
proper behavior which impedes the ad-
ministration of justice or prevents a
1. H.R. Rep. No. 96-1313, 96th Cong., 2nd Sess.
(1980), at 1.
2. There is no problem with the removal from
office of magistrates or bankruptcy judges as they
are not appointed for life. There is authority for
their removal by the judicial council in 28 U.S.C.
372(c)(6)(vii), 631, and 152. Senior district and
circuit judges sit by designation. Their judicial
career can be ended by the chief judge of the circtit
or the judicial council by revoking or not issuing a
designation. 28 U.S.C. 294. Whether a senior
judge sits has no effect on the right to receive a
salary for life.
3. For a discussion of the illustrative rules, see,
Burbank, Politics and progress in implementing
the Federal Judicial Discipline Act, 71 JUDICATURE
13 (1987).
4. 1 focus on attorneys, as most lay complainants
(with the exception of those concerned with delay)
are litigants who believe that the judge's adverse
ruling is proof the judge is not competent or has
engaged in misconduct with the other party.

282 Judicature  Volume 71, Number 5   February-March, 1988

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