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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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