SPEAKERS CONTENTS INSERTS
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2001
OPERATIONS OF FEDERAL
JUDICIAL MISCONDUCT STATUTES
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
NOVEMBER 29, 2001
Serial No. 45
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
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MIKE PENCE, Indiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Courts, the Internet, and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
HENRY J. HYDE, Illinois
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ELTON GALLEGLY, California
BOB GOODLATTE, Virginia, Vice Chair
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
BLAINE MERRITT, Chief Counsel
DEBRA ROSE, Counsel
CHRIS J. KATOPIS, Counsel
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ALEC FRENCH, Minority Counsel
C O N T E N T S
NOVEMBER 29, 2001
OPENING STATEMENT
The Honorable Howard Coble, a Representative in Congress From the State of North Carolina, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable Howard L. Berman, a Representative in Congress From the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
WITNESSES
Mr. Douglas T. Kendall, Executive Director, Community Rights Counsel
Oral Testimony
Prepared Statement
Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh School of Law
Oral Testimony
Prepared Statement
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Mr. Michael J. Remington, Partner, Drinker Biddle & Reath L.L.P.
Oral Testimony
Prepared Statement
The Honorable William L. Osteen, U.S. District Judge for the Middle District of North Carolina
Oral Testimony
Prepared Statement
APPENDIX
Material submitted for the record
OPERATIONS OF FEDERAL JUDICIAL MISCONDUCT STATUTES
THURSDAY, NOVEMBER 29, 2001
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Howard Coble [Chairman of the Subcommittee] presiding.
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Mr. COBLE. Good morning, ladies and gentlemen. Welcome to the hearing this morning.
I am advised that there will imminently be a journal vote, in which case we will have to disembark and head for the floor. And I think there will be a new Member that will be sworn in, as well, so this may involve about 15 to 20 minutes. So if you all will rest easy while we are away—but Howard and I have decided to go ahead and give our opening statements, so that will at least save some time.
Today, we will review the operation of those mechanisms designed to compel ethical behavior among Federal judges. I emphasize to our witnesses that this hearing was not scheduled in response to individual misconduct cases brought to the attention of the Subcommittee. Rather, I firmly believe that the Subcommittee is charged by the Constitution and the House rules to conduct vigorous oversight on a regular basis.
On the whole, I believe that the Federal judiciary is functioning well, but no branch of government—and I think we will all agree—is immune from evaluation. The point of this hearing is to take the ethical temperature of the Third Branch and determine what, if anything, should be done to improve upon its current record. Such an exercise, I believe, will assist in improving the administration of the United States courts and also instill greater public confidence in their operations.
At this point, let me digress a moment, if I may, to caution our witnesses and our Subcommittee Members to try to stick to the subject matter at hand. More specifically, we have not convened this morning to debate competing judicial philosophies or schools of thought, nor are we meeting to critique the merits of individual district or circuit decisions that touch upon hot-button issues. Health care environment, organized labor or the workings of the American industry are topics that I think should not be emphasized today. I am not very interested in examining the reading habits or seminar attendance practices of life-tenured judges who are desirous of becoming better educated or informed. These are all good hearing topics, but I think are not the focus of the hearing today.
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We should primarily concern ourselves with determining whether the Judicial Conduct and Disability Act, along with the relevant recusal statutes, are working as intended.
To conclude, while each of us is possessed of unique life experiences and personal political convictions, I believe we are all united in our desire this morning to support a vibrant, strong and independent judiciary.
Finally, I personally wish to thank everyone on the panel for his patience in working around the evolving Subcommittee schedule in preparation for this hearing. Folks, as you all know, since September 11, things have had an irregular turn, scheduling and otherwise, and I appreciate your flexibility and also appreciate the Members of the Subcommittee for your flexibility.
I am now pleased to recognize my good friend, the distinguished gentleman from California, the Ranking Member, Mr. Berman, for his opening statement, after which we will adjourn to the floor and return soon.
Mr. Berman.
Mr. BERMAN. Thank you very much, Mr. Chairman. Given the accuracy of your prediction about a vote coming at this point, I was wondering if you can tell me when we are adjourning for the year.
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I thank you for calling this hearing on Federal judicial misconduct statutes. This hearing provides us the opportunity to discuss and evaluate the utility of these statutes and to find ways in which we can improve either the statutes themselves or the methods and frequency with which they are employed.
I would like to thank all of our witnesses for appearing today. Among the four witnesses, we have expert knowledge of the Federal courts, judicial ethics and the laws and commissions that govern judicial discipline and removal. I look forward to their input on this issue. I particularly welcome Mike Remington, who for many years gave his expertise on this side of the podium and now is appearing before us as a witness for the first time.
I have no doubt that many of our Nation's fine judges could impartially and fairly decide a case involving a company in which they hold stock. Likewise, many are highly capable of deciding a case solely on the facts presented while subsuming strong personal opinions on the issues presented or ignoring ex parte communications. Nonetheless, we must ensure that the procedures for reporting and evaluating potential conflicts are working smoothly. It is also important for us to determine how thoroughly complaints are treated within the judiciary if a concern is raised by a litigant.
Our laws must, to the extent possible, guarantee complete judicial impartiality while still preserving the independence of the judicial branch through self-regulation. Today's hearings should inform us on the success of the judicial misconduct statutes in achieving this goal.
This hearing will be useful in raising awareness of these issues and will help us to determine if and where additional legislation is necessary to prevent any Federal judicial misconduct or lessen the appearance of such misconduct.
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Mr. Chairman, I take your point that this is not a hearing about judicial decisions. While I might be tempted to view a decision that I don't like as judicial misconduct, I think that is probably not the standard that our Founding Fathers envisioned and—and so, to that extent, I concur with your admonition.
I yield back, Mr. Chairman, and look forward to hearing the witnesses when we come back from our vote.
Mr. COBLE. Thank you, Mr. Berman. And as to my prediction for adjournment, I will take that under advisement and be back to you.
Folks, you all rest easy for about 10 minutes and we will return.
[Recess.]
Mr. COBLE. Thank you, folks, for your indulgence; and we will proceed.
I regret—as you know, we have two new Members that have been assigned to our Subcommittee since we last met, and I wanted to recognize each of them, but neither is present. And I regret that particularly, Professor Hellman, because the gentlelady from Pennsylvania wanted to introduce you, but I will recognize her when she gets here. I am sure she will be here later.
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We are glad to have Arthur Hellman back with us, who has been here before. Professor Hellman teaches courses in Federal court civil procedure and constitutional law at the Pittsburgh School of Law. Earlier this year, Professor Hellman was designated as one of the school's first distinguished faculty scholars. He has participated in numerous institutional enterprises aimed at improving the administration of justice, both State and Federal. He served as the Chair of the Civil Justice Reform Committee of the American Judicature Society, and he supervised a distinguished group of legal scholars and political scientists in analyzing the innovations of the Ninth Circuit and its Court of Appeals. From 1999 through 2001, he served on the Ninth Circuit Court of Appeals Evaluation Committee.
Professor Hellman received his B.A. magna cum laude from Harvard University and his J.D. from the Yale School of Law. He has been a member of the faculty of the Pittsburgh School of Law since 1975.
Mr. Michael J. Remington, who was acknowledged by Mr. Berman—and I will reiterate what he said, Mike; it is good to have you back on the Hill.
Mr. Remington is a partner in the law firm of Drinker, Biddle & Reath, where he specializes in intellectual property law, court reform, government relations and lobbying. Prior to entering private practice, Mr. Remington held high-level positions in the three branches of the Federal Government. Most impressively, for a total of 13 years he was chief counsel of this very Subcommittee.
We have expanded our horizons jurisdiction-wise, Mike, since then, but it is good to have you back nonetheless.
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In the judicial branch, Mr. Remington served as law clerk to U.S. District Judge John W. Reynolds and deputy legislative affairs officer to the Judicial Conference of the United States under Chief Justice Warren Burger.
In the executive branch, he was a prosecutor in the Criminal Division of the U.S. Department of Justice, where he specialized in criminal appeals. Finally, Mr. Remington is the former director of the National Commission of Judicial Discipline and Removal, an entity established by Congress to study and report to the President, Chief Justice and Congress on issues relating to judicial misconduct and impeachment.
A former Fulbright Scholar in Paris and Peace Corps volunteer in Africa, Mr. Remington is a graduate of the University of Wisconsin, where he received his law degree. He is admitted to practice in the State of Wisconsin and the District of Columbia as a member of the Intellectual Property Section of the American Bar Association.
Now I apologize to some of you all for the lengthy introductions. Mr. Berman and I know all about these people that many of you in the audience may not, and I think, for your information, this is in order.
Mr. Doug Kendall, who is the founder and executive director of a public interest law firm that helps State and local governments defend environmental and land use protections. Mr. Kendall represents his clients in State and Federal appellate courts around the country.
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Mr. Kendall is the co-author of the ''Takings Litigation Handbook,'' a comprehensive guide to defending land use protection. He has written numerous CRC reports, law journal articles and opinion pieces in major papers. Mr. Kendall received his B.A. in economics with high distinction from the University of Virginia in 1986 and his J.D. From the University of Virginia School of Law in 1992.
Now I am going to take a little bit of liberty from the Chair in recognizing our final witness. Each of us represents districts where a very select group of people stand out, not only in their respective professions, but generally in life, and such is applicable to Judge Osteen. Judge Osteen is presently serving as district court judge for the Middle District of North Carolina. Was appointed by President Bush in June 1991. He is a past member of the North Carolina State legislature, Chair of the Guilford County Economic Opportunity Council, member of the Greensboro, North Carolina, City Zoning Commission, and member and Chair of the Greensboro City Human Relations Commission.
From 1969 to 1974, he was U.S. Attorney for the Middle District of North Carolina. And in that capacity, I have to say—I am proud to say, he was my boss. He received his B.A. degree in economics from Guilford College and his LL.B. From the University of North Carolina School of Law 3 years later.
We are pleased, as well, to have Mrs. Osteen in the audience.
It is good to have all of you with us. We have written statements from all of the witnesses on the panel, which I ask unanimous consent to submit to the record in their entirety.
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Before we begin, I am going to take some more liberty. I picked up today's edition of Roll Call and on the front page was embezzled or embodied or portrayed—strike that—embodied and portrayed a very handsome gentleman. And that was a very fine article, Mr. Delahunt. And I commend you for that.
Gentlemen, as you all know, you have been advised that we would like you to confine your testimony to the 5-minute rule. Now, when that red light appears in your eyes you will know that 5 minutes have elapsed. You will not be keyholed or taken into custody if you violate that. But when you see that red light, that is your invitation to pretty well wrap it down. We have your written testimony, which has been reviewed, which will be reviewed again.
Ms. Hart is not here yet, so we will suspend that.
Mr. Kendall, if you will begin your testimony. Good to have all of you with us, gentlemen.
STATEMENT OF DOUGLAS T. KENDALL, EXECUTIVE DIRECTOR, COMMUNITY RIGHTS COUNSEL
Mr. KENDALL. Mr. Chairman and Members of the Subcommittee, thank you for conducting this important oversight hearing on the operation of Federal judicial misconduct and recusal statutes.
Community Rights Counsel's work on private judicial seminars, better known as ''junkets for judges,'' has focused on the operation of a Bozeman, Montana-based group called the Foundation for Research on Economics and the Environment, or FREE. FREE flies about 50 Federal judges a year to resorts and dude ranches in Montana to spend 5 or 6 days at a seminar on environmental law. FREE pays for judges' tuition, room and board, and travel expenses, a gift worth well over a $1,000.
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FREE seminars, in their words, reject top-down command and control environmentalism and promote private property rights, market incentives and voluntary arrangements. FREE receives about one-third of its funding from a handful of large corporations, including Texaco, General Electric and Monsanto; companies that regularly litigate environmental cases in Federal court.
FREE's remaining funding comes mainly from foundations, such as the Sarah Scaife Foundation, which simultaneously funds groups like the Pacific Legal Foundation to litigate environmental cases in Federal court. Free's corporate funders regularly send corporate officers to FREE seminars where they get to lecture to, dine with and in some cases, share a log cabin with Federal judges.
I don't think any objective observer could examine FREE's operation and conclude that FREE seminars advance public confidence in the judicial branch. Indeed, editorials from over 30 major newspapers from across the country have harshly criticized FREE and ''junkets for judges'' generally. As Representative Lofgren has stated, ''there is nothing more damaging to the citizens' faith in this country and due process of law than the belief, even if inaccurate, that those who are trusted to judge have been influenced by financial connections.''
I must say that I am surprised and disappointed by the Judicial Conference testimony suggesting that Advisory Opinion 67 does not necessarily require any inquiry into the litigation activities of the funders of organizations like FREE. I think this is a very strained interpretation of the words of AO 67.
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More importantly, ignorance, in this case, is not bliss. It is simply impossible for a judge to determine the propriety of attending a seminar without knowing whether the host is funded by corporations litigating before the judge. Respectfully, if AO 67 means what the judiciary is suggesting, it means it is not worth the paper it is written on.
Let me turn to the issue of stock conflicts. Judges should never rule in cases in which they own stock as a party. This is the brightest line in the rules of judicial ethics and it is not a difficult rule to follow. That is why I think the Kansas City Star story on stock conflicts by district court judges and the Community Rights Counsel study on stock conflicts by appellate court judges are so remarkable. These reports and others done subsequently have all examined very small samples and found significant numbers of stock conflicts.
The judiciary has taken some steps to correct the problems with stock conflicts, but the judiciary rejected the single most important reform: the posting of publicly available recusal lists. Adopting your wise comment to the Kansas City Star, Chairman Coble, quote, ''I don't think judges' financial holdings ought to be insulated from public knowledge.'' A theme running through both the stock conflict and junket stories, is the fact that judges' financial disclosure forms are inordinately difficult to obtain and too frequently omit required information. Unlike the other two branches of government, which allow immediate review of judges' public disclosure forms, the judiciary requires advanced notification of every Federal judge before releasing a form. This advanced notification takes weeks and hinders a review because litigants fear reprisal if a review becomes known by a judge.
Those obtaining judges' financial disclosure forms are often disappointed in their accuracy and completeness. Comparing judges' disclosure forms with a list of attendees obtained from FREE, Community Rights Counsel found that 13 of the 109 judges, 12 percent, that attended a FREE trip did not report the trip even after receiving a September, 1998 letter from the Financial Disclosure Committee warning, quote, ''Judges who have accepted such trips and not reported them in their financial disclosure form should immediately file amended reports.''
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Underdisclosure is just as larg a problem. For example, in 1998, only three of 34 judges that reported attending a FREE seminar estimated the value of the seminar gift as required under Federal disclosure laws. Again, echoing your wise words, Chairman Coble, the time to quote—it is time to, quote, ''get some sunlight into what appears to be a dark room,'' unquote.
Respectfully, I would recommend that the Committee ask the General Accounting Office to investigate the judiciary's compliance with Federal disclosure laws and make recommendations for improving the entire judicial disclosure process.
Thank you very much.
Mr. COBLE. Thank you, Mr. Kendall.
[The prepared statement of Mr. Kendall follows:]
PREPARED STATEMENT OF DOUGLAS T. KENDALL
Mr. Chairman and Member of the Committee: Thank you for conducting this important oversight hearing on the operation of federal judicial misconduct and recusal statutes. A bedrock of our system of government is the principle that no one—least of all a federal judge—is above the law. Judicial misconduct and recusal statutes help preserve the sanctity of this principle by ensuring that ethical and legal transgressions by judges are taken seriously, even if they do not rise to the level of an impeachable offense. These statutes must function properly in order to protect the public trust and confidence upon which our independent judiciary rests.
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I am the founder and Executive Director of Community Rights Counsel, a not-for-profit, public interest law firm located in Washington, DC with the mission of helping state and local governments defend land-use and environmental protections against court challenges. Surprisingly, CRC has also become deeply enmeshed in several issues pertaining to judicial ethics. I say surprisingly, because this was not supposed to be a substantial part of CRC's mission. CRC also regularly litigates in federal court, making it uncomfortable for us to also play the role of a judicial ethics watchdog organization.
CRC got involved in judicial ethics issues only after we learned that a corporate-funded outfit called the Foundation for Research on Economics and the Environment (FREE) located in Montana was hosting federal judges for week-long stays at resorts and dude ranches and teaching judges to be deeply skeptical about environmental laws and land-use protections. We have stayed involved in the subject because each place we looked, under every rock we turned, we have found troubling evidence of a problem. Our work has convinced me that the federal judicial misconduct and recusal statutes are not working as well as they should and that there is a need for vigilant oversight on this issue by Congress.
My testimony today will cover two topics that have been the subject of Community Rights Counsel reports: financial conflicts of interest and corporate-funded trips, what some have labeled ''junkets for judges.'' While these problems are distinct, common threads run between them. Both problems illustrate the critical need for accurate and timely public financial disclosure by judges and the serious flaws in the existing disclosure system. Both problems also illustrate the need for effective penalties for non-compliance with ethical standards and the inadequacy of the current judicial disciplinary system in acting as a serious deterrent. Finally, corporate litigants—as the funders of the trips and the source of the financial conflicts—are at the center of both problems. This fact is disturbing because at the same time these junkets and stock conflicts have come to light, there has emerged a new form of judicial activism from our federal courts that is pro-market, hostile to government regulations and in keeping with the interest of these same corporations.
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I. JUNKETS FOR JUDGES UNDERMINE PUBLIC CONFIDENCE IN THE JUDICIARY
Corporations and foundations that have a legal agenda in the courts are advancing this agenda by paying for free trips for federal judges to resorts and dude ranches. Once there, judges attend lectures making the case for curbing government regulation in favor of a free-market approach to matters like protecting the environment.
A. Corporations and Special Interests with Legal Agendas Should Not Be Permitted to Give Judges Gifts worth Thousands of Dollars
The problem with junkets for judges starts with the funding. Corporations and foundations with a legal agenda should not be permitted to fund, and thus shape, the legal education received by our federal judges. The fact that judicial education is being paid for by entities that have an interest in or are parties to federal litigation creates an appearance of improper influence and undermines public trust and confidence in the judiciary.
A July 2000 report by Community Rights Counsel, Nothing for Free: How Private Judicial Seminars are Undermining Environmental Protections and Breaking the Public's Trust, (recently republished in the Harvard Environmental Law Review and available online at www.tripsforjudges.org) provides a comprehensive look at the problems posed by privately funded judicial seminars. Nothing for Free found that between 1992 and 1998 more than 230 federal judges—more than a quarter of the federal judiciary—traveled to resorts at the expense of private interests with a stake in federal litigation.
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An April 2001 ABC News' 20/20 program, which focused on a trip hosted by George Mason's Law and Economics Center (LEC) at the Omni Tucson Golf Resort and Spa, perfectly illustrated this problem. The 20/20 program featured federal judges on the golf course and lounging poolside with cocktails. Several judges interviewed on camera called the trip a ''vacation.'' Meanwhile, ABC News discovered numerous cases in which LEC's corporate sponsors were litigating before a LEC attendee.
Consider finally a recusal motion recently filed in a case called Aguinda v. Texaco. Lawyers for 30,000 Ecuadorian Indians sought to remove the judge hearing their $1 billion environmental case against Texaco after learning that Texaco had been a regular and substantial contributor to FREE, which hosted a junket attended by the presiding judge. At the FREE trip, the former CEO of Texaco gave a lecture to the judge entitled ''The Environment: A CEO's Perspective.''
On the 20/20 program and elsewhere, judges have asserted that they were unaware of the corporate funding of FREE and LEC. For example, one judge told 20/20: ''I have no idea where [LEC] gets its money.'' When asked by 20/20 whether he knew that LEC gets its money from corporations, another judge responded, ''[LEC] didn't tell us that.'' When asked whether he had an obligation to find out, this judge responded: ''Not necessarily, I mean because what's the difference?''
Advisory Opinion 67, issued by the Judicial Conference's Committee on Codes of Conduct, requires that judges investigate the sponsors and ''source of funding'' for any privately funded seminar before attending. A September 1998 report, prepared by the Committee on Codes of Conduct in response to a request by several members of this Subcommittee, reaffirmed that under Advisory Opinion 67, ''specific information about the sponsor of the seminar, the source of funding, their involvement in litigation, the content of the seminar, and the judge's relationship to such litigation all bear on the question of whether a judge's participation is proper or improper under the Code of Conduct.''
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B. Corporations and Special Interests are Using Junkets to Advance a Legal Agenda
During an interview for 20/20, the Dean of the George Mason Law School frankly admitted that LEC is ''out to influence minds . . . If court cases are changed, then that is something we are proud of as well.'' FREE is equally brazen about using its seminars to promote ''free market environmentalism,'' a school of thought that embraces, in their words, ''property rights, market processes and responsible liberty'' and rejects ''command and control'' environmentalism.
Particularly troubling is the evidence that suggests that these private seminars are in fact changing court cases. CRC's Nothing for Free report documents a pattern of disturbing facts, including the following:
In 10 of the last decade's most dramatic departures from established precedent in the area of environmental law, the judge striking down the protection took part in at least one junket.
In six of these cases, the judge attended the trip while the case was pending.
In at least three of these cases, the judge ruled in favor of a litigant bankrolled by the trip's sponsors.
In one of the decade's most important environmental rulings, a judge ruled to uphold habitat protection, attended a seminar, came back, switched his vote, and wrote an opinion striking down a central component of the Endangered Species Act.
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Even assuming that the remarkable correlation documented in Nothing for Free is complete coincidence, this correlation still creates an awful appearance problem for judges and the judiciary. As Representative Zoe Lofgren of this subcommittee stated eloquently at an oversight hearing three years ago when word of these trips first came to light:
There is nothing more damaging to citizens' faith in the country and in the due process of law than the belief, even if inaccurate, that those who are trusted to judge have been influenced by financial connections.
C. Judicial Education Should Not Take Place in a Vacation Setting
The final problem with FREE and LEC junkets for judges is that they take place at resorts. Indeed, as noted above, several judges told 20/20 that they viewed the LEC seminar they were attending as a ''vacation,'' a statement validated by footage of judges on the Omni Tucson's championship golf course.
The exotic locales of the FREE and LEC trips exacerbate the appearance problems stemming from these programs in several ways. Most obviously, even if corporate litigants were permitted to fund judicial education, they certainly should not be permitted to pay for judicial vacations. Additionally, however, the resort settings give FREE and LEC a competitive advantage over seminars hosted by the taxpayer-funded Federal Judicial Center. As Abner Mikva stated in a recent New York Times opinion piece:
The federal judiciary has a Federal Judicial Center that provides educational seminars for judges on a wide range of legal topics. Since it uses taxpayer funds and answers to Congress, the program locales are not exotic, but the presentations are balanced.
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Judge Rya Zobel, former Director of the Federal Judicial Center, echoed Judge Mikva in testimony before this Subcommittee: ''we have offered annually a program on environmental law, for example, in conjunction with Lewis & Clark University. The primary complaint we've had about that is that we work the judges too hard.''
II. JUDICIAL STOCK CONFLICTS CANNOT BE TOLERATED
Over the last three years, news organizations and Community Rights Counsel have looked at different judges and different geographic regions and come to the same conclusion: judges are ruling far too frequently in cases in which they have a disqualifying financial conflict of interest.
A. Legal and Ethical Standards Are Unequivocal
The legal and ethical standards with respect to financial conflicts of interest could not be clearer. Judges cannot rule in a case in which he or she has a financial interest, period. This obligation is enshrined in federal law (28 U.S.C. §455) and the Canons of Judicial Ethics (Canon 3). It is enforced by a certification requirement which every judge must sign each year, subject to criminal and civil sanctions, certifying that:
In compliance with the provisions of 28 U.S.C. §455 and of Advisory Opinion No. 57 of the Advisory Committee on Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
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Judges are required by the Canons to ''keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse.'' (Canon 3(E)(2)). Judges must also ''manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified.'' (Canon 4(D)(4)).
B. Studies Reveal Remarkable Numbers of Stock Conflicts
Perhaps the most dramatic results were found in a study published in 1998 by the Kansas City Star. The Star looked at district court judges in four courthouses in four states and found 57 cases in which a judge had issued one or more orders despite owning stock in one of the parties. Remarkably, in three of the four courts examined, at least half of the judges ruled in one or more cases in which he or she had a financial conflict of interest.
Following up on the Kansas City Star's series, Community Rights Counsel conducted a study to identify conflicts of interest among active federal appellate judges. Looking only at a single year and at rulings on the merits published in the LexisR database, we identified eight judges that ruled in 17 cases in which they had a disqualifying financial interest (this study is available online at www.communityrights.org).
The results of CRC's study are particularly remarkable in light of the context in which they occurred. The disclosure forms we reviewed were filed after the Kansas City Star series and after receipt by each of the judges of an urgent letter from the Judiciary's Codes of Conduct Committee reminding them of the legal obligation ''not only to be informed about his or her personal financial interests but also to make a reasonable effort to be informed about the personal financial interests of the judge's spouse and minor children.''
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Nevertheless, every judge identified in our study certified under penalty of criminal and civil sanctions that they had not performed any adjudicatory function in which they had a disqualifying financial interest. For each judge, this certification was apparently inaccurate and a simple search on LexisR (available to every federal judge) would have revealed these conflicts. Moreover, each circuit court requires corporations to file a corporate disclosure form early in the appellate litigation process to ensure that judges can easily flag any financial conflicts. Our study strongly suggests that many judges are not taking their obligation to avoid financial conflicts seriously enough.
It is also troubling to note that in more than 80 percent of the conflict cases we identified, the judges in question ruled at least partially in favor of their financial interests. I do not view this as evidence that the judges were using their judicial power to advance their pecuniary interests. I am convinced that in the vast majority (if not all) of these cases, the conflict resulted from mere oversight. But I do find it very troubling when judges hold a great deal of stock in major corporate litigants, rule in favor of these litigants in most cases and, occasionally, rule in cases where they have a stock conflict. It certainly adds grist to the mill of those who argue that the judicial system is biased in favor of wealthy corporate interests.
Anyone who believes that the problem of stock conflicts has been solved in the aftermath of the Kansas City Star and Community Rights Counsel studies should review an August 2001 story published by the Times Leader of Wilkes Barre, Pennsylvania involving Senior Judge Edwin Kosik of the Middle District of Pennsylvania. Judge Kosik reportedly ruled in at least 10 cases in which PNC Bank appeared even though he owned stock in the bank. Remarkably, Judge Kosik admitted ruling in two bank cases in 1999 and 2000, after he realized the conflict and after he received a stern warning from the Codes of Conduct Committee about avoiding conflicts. Judge Kosik explained to the paper that his two rulings in favor of the bank required little decision-making and were not appealed. These explanations notwithstanding, Judge Kosik appears to have knowingly violated 28 U.S.C. §455 and the judiciary should take this apparent violation of federal law seriously.
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III. JUDGES' FINANCIAL DISCLOSURE FORMS ARE HARD TO OBTAIN AND OMIT REQUIRED
Information
A theme running through both the stock conflict and junkets stories is the fact that judges' financial disclosure forms are inordinately difficult to obtain and, too frequently, omit required information.
A. The Disclosure Review Process Is Unduly Burdensome
Unlike the other two branches of government, which allow review and duplication of financial disclosure forms on the same day they are requested, the judiciary's Financial Disclosure Office notifies a judge in writing before granting access to a financial disclosure report. This advance notification seems contrary to the Ethics Reform Act of 1989, which establishes detailed procedures for the disclosure process and makes no allowance for such advance notification. Because most litigants would rather not risk upsetting a judge, advance notification creates a powerful deterrent to many potential reviewers. It also takes at least a week, and frequently over a month, for the Financial Disclosure Office to process requests for review of a financial disclosure form.
The Judiciary's resistance to making public disclosures easily available to the public is perhaps best illustrated by the Committee on Financial Disclosure's decision to deny a request for disclosures filed by an online publisher called APBnews.com. In late 1999, APBnews.com requested a copy of the 1998 disclosure forms for each federal judge and magistrate with the intent of publishing them on the Internet (something already done for members of Congress). APBnews.com paid for the copies, but while waiting for the reports, the Financial Disclosure Committee issued an indefinite moratorium on the public release of any disclosures, to anybody. Eventually the Financial Disclosure Committee lifted the moratorium, but permanently barred APBnews.com from obtaining copies of the disclosure forms.
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This decision was in direct contradiction to federal disclosure law, which specifically permits use of the forms by ''news and communications media for dissemination to the general public.'' As such, it drew bi-partisan ire on Capitol Hill, with Senator Charles E. Grassley (R-Iowa) terming it ''an offense to the openness that helps define our system of government'' and Senator Patrick Leahy (D-VT) stating: ''The Judicial Conference should reconsider the scope of its decision, or Congress will have to do so.'' Editorial boards were even less kind, with major news organizations terming the decision ''laughable,'' ''infuriating,'' ''tortured,'' and ''embarrassing.'' Eventually, after APBnews.com filed suit and Chief Justice Rehnquist intervened, drafting a biting six-page memo critiquing the decision, the Judicial Conference overruled the Committee's decision.
B. Judges Routinely Omit Required Information
Those succeeding in obtaining judges' financial disclosure forms are often disappointed in the accuracy and completeness of the information conveyed therein.
For example, after publishing its series on stock conflicts in April 1998, the Kansas City Star reviewed the financial disclosure forms filed in May 1998 by the 33 judges included in their study. The Star found that one out of every three reports included information that by law should have been disclosed earlier. This new information led to the discovery of three additional conflicts of interest that were hidden by omissions in prior disclosure forms.
CRC made similar findings with respect to disclosure of judicial junkets. The laws and guidelines concerning what a judge must disclose to the public are clear and simple. Both federal law and Advisory Opinion 67 require that judges ''report the reimbursement of expenses and the value of the gift on their financial disclosure reports.''
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Comparing financial disclosure forms with attendee lists prepared by FREE and LEC, CRC determined that at least 22 federal judges failed to report FREE or LEC junkets, even after a September 1998 memorandum from the Financial Disclosure Committee warning: ''Judges who have accepted such trips and not reported them on their financial disclosure forms in past years should immediately file amended reports.'' This represents approximately 11% of the judges that FREE and LEC report attending junkets during this same time period. Put another way, nearly one out of every nine federal judges apparently failed to report a privately funded trip even after a personal reminder about the requirements of federal law from the Disclosure Committee.
Under-disclosure is as large a problem as non-disclosure. Again despite clear mandates, judges' financial disclosure reports routinely fail to report all the information required. For example, in 1998, only 3 of the 34 judges who reported attending FREE seminars attempted to estimate the value of the seminar gift, as required under federal disclosure law.
IV. THE JUDICIAL DISCIPLINE SYSTEM ESTABLISHED IN 28 U.S.C. 372 IS NOT ACTING AS AN EFFECTIVE DETERRENT
Federal judges are taking trips funded by corporate litigants, ruling despite financial conflicts and omitting basic information from financial disclosure forms. One searching for an explanation need look no further than recent statistics from the Administrative Office of the U.S. Courts regarding judicial disciplinary actions pursuant to the process established in 28 U.S.C. 372. These statistics, summarized in an April 1998 story by the Kansas City Star, demonstrate that the judicial discipline system is not working effectively to deter ethical violations.
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According to the Star, in fiscal years 1996 and 1997 more than 1,000 formal complaints were filed against federal judges nationwide. The chief judges' decided that not one of these cases required official discipline. Indeed, the chief judges failed to send a single complaint on to the next level in the complaint process; investigation by a committee of judges. In more than 450 cases, complainants appealed the dismissal of their complaint to the judicial council of an appellate court. These councils rejected every appeal.
Undoubtedly, many of these complaints were filed by disgruntled litigants and warranted no disciplinary action. But given the evidence that suggests that ethical transgressions do occur with some regularity, it strains credibility to suggest that not one of over 1,000 formal complaints warranted any official disciplinary action.
As every judge knows, the law only works if there are penalties for its violation. In the case of transgressions by judges of legal and ethical standards, there appears to be no effective deterrent. This is reflected in the persistence of stock conflicts and non-disclosures despite explicit rules and clear reminders from the Administrative Office. It is also reflected in the cavalier reaction of many judges to reports of improprieties. For example:
Judge Tom Stagg of Louisiana responded to proof that he failed to disclose a junket by telling the Washington Post: ''The food was wonderful; the teachers were wonderful. If somebody doesn't like it, I'm sorry.''
When the Kansas City Star confronted Judge Ancer Haggerty with evidence that his financial disclosure form omitted basic information on his stock holdings, he refused to detail his actual holdings claiming: ''You are entitled to these reports, but that is all you are entitled to.''
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When asked by the New York Daily News if he had read the financial disclosure form upon which the judge certified, inaccurately, that he had not ruled in any cases where he had a financial conflict, Judge Whitman Knapp replied: ''Heavens, no! It wouldn't have any meaning to me.''
V. CONCLUSION AND RECOMMENDATIONS:
I again want to commend the Committee for conducting this important oversight hearing. As described above, there is substantial evidence that suggests that the federal judicial misconduct and recusal statutes are not working effectively enough to prevent erosion of the public's trust and confidence in the judicial branch. Permit me to leave you with several recommendations for using this Committee's oversight authority in responding to the problems posed by judicial junkets, stock conflicts and non-disclosure.
Ban Junkets: In June 1998, several members of this Committee requested that the judiciary reevaluate Advisory Opinion 67, which currently sets the standard for judges on attending junkets. In September 1998, the Judicial Conference's Committee on Codes of Conduct responded by asserting that the criterion established in the Opinion was adequate to avoid the appearance of impropriety. Clearly this has not proven to be the case. The time seems ripe for another request for reconsideration of Advisory Opinion 67. There is also a pressing need for clarification by the Committee concerning the type of inquiry Advisory Opinion 67 requires regarding the corporations and foundations that are the ''sources of funding'' for FREE and LEC trips.
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I also note that in the 106th Congress, Senator John Kerry (D-MA) and Senator Russ Feingold (D-WI) introduced legislation (S. 2990) that would have banned large gifts associated with privately funded judicial seminars. They have promised to introduce a revised bill this term and to fight for its passage. I urge members of this Committee to consider introducing legislation on this topic in the House.
Impose Penalties for Stock Conflicts and Non-Disclosure: There should be more effective penalties to enforce judges' disclosure obligations and the ban on ruling in cases in which a judge owns stock. For example, litigants discovering a stock conflict within some statute of limitations period should be able to vacate any adverse rulings and seek a new hearing before a judge without a conflict.
Post Recusal Lists at Local Courthouses: The Judicial Conference's Committee on Financial Disclosure considered and rejected a proposal that would have required judges to maintain an up-to-date ''recusal list'' available to litigants (without advance notification of the judge) at the clerk's office. This Committee should ask the Judicial Conference to reconsider implementation of this common-sense reform.
Make Financial Disclosure Forms Available without Advance Notification: The judiciary is currently seeking the extension of statutory authority (5 U.S.C. app. 4, §105(b)(3)) for the Judicial Conference to prevent ''the immediate and unconditional availability of [financial disclosure reports]'' where release of the forms could endanger a federal judge. This is sound public policy, but this statutory provision strongly implies that where there is no danger to a particular judge, financial disclosure forms should be immediately available. This is never the case with judges' financial disclosure forms. As described above, there is always a lengthy advance notification process that significantly hinders public review of judges' disclosure forms.
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An alternative procedure that seems to address the legitimate concerns of the judiciary would be as follows. Judges should annually file two versions of their financial disclosure forms: one for the Financial Disclosure Office and one for public review. Judges should be permitted to redact from the public review copy any information that is truly personal and sensitive (i.e. the judge's signature, any reference to the names of the judge's children, etc). These public review copies should then be made available immediately upon request. If the Judiciary, in consultation with the United States Marshal Service, decides that release of even this public review copy could endanger a judge, they should be permitted to further redact the report only to the extent necessary to protect the judge and only for as long as the danger to the judge exists.
Mr. COBLE. Now I am going to skip over you, Mike, because I have indicated earlier, we have been assigned two additional Members of this Subcommittee to replace vacancies that occurred when Congressman Scarborough and Congressman Hutchinson departed. The distinguished gentlelady from Pennsylvania, Ms. Hart, is coming aboard what Mr. Delahunt and Mr. Berman and I view as the best Subcommittee of the House Judiciary Committee Subcommittees.
Ms. Hart, I have upstaged you, but I know you wanted to recognize your former professor. So why don't you do that at this time, and we will hear from Professor Hellman.
And then we will get back to you, Mr. Remington.
Ms. HART. Thank you, Mr. Chairman. I just wanted to say, it is wonderful to be on this Committee. I was hoping that I would get to choose it on the first round. I was, unfortunately, too far at the end of the line, not that I am pleased that Representatives Hutchinson and Scarborough had to leave, but I am not bothered by the fact that there were vacancies on the Committee and I was able to fill one. So it is an honor to be here, Mr. Chairman.
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It is also an honor to introduce to the Committee and those here today a gentleman whose reputation has been, I think, widely known throughout the legal world for quite a while. His reputation, when I was a law student, was also widely known.
I was a student at the University of Pittsburgh during Arthur Hellman's tenure. While he is still teaching law, he has somehow found the time to become quite a distinguished authority on court systems, the Federal court system, as well, especially. And he is a professor of law at the University of Pittsburgh and distinguished faculty scholar at the University Pittsburgh School of Law.
I graduated from that university's school of law an unnamed number of years ago and have found that in my career of public service, my law degree and the things that I learned there, especially as far as procedural issues, have served me quite well. I was a State Senator for 10 years, as I know Professor Hellman knows well, and also now I am a freshman here.
But I must note that Professor Hellman, though widely known and widely published, has also been—and I am not making this up—widely loved by the students at the University of Pittsburgh School of Law, because those who study the law know, it can be quite dry. He does have a way—by the way, I was not one of his students, but several of my closest friends were—and was quite an entertaining and engaging professor. And that is a very good thing.
I want to thank you for taking the time to be with us today to share your knowledge with us on the Committee.
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And I would like to thank the Chairman for indulging me. Thank you.
Mr. COBLE. I thank the gentlelady. As I said earlier, Judge Osteen was my former boss and was always very evenhanded and fair with me, so I have no score to settle with him.
Professor, if you were not evenhanded and fair with the lady from Pennsylvania, that may be your problem. But we will recognize you for 5 minutes, Professor.
STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW
Mr. HELLMAN. Thank you, Mr. Chairman. And, of course, I did say in my statement that I do not speak for any institution or official body, but I think I do speak for the University of Pittsburgh School of Law in saying how proud we are to have one of our graduates not only in the United States House of Representatives, but serving on the Judiciary Committee and this particular very important Subcommittee.
In the Judicial Conduct and Disability Act of 1980, Congress provided a mechanism for identifying and correcting judicial misconduct without intruding on judicial independence. In my view, the basic framework of that act is sound. But even the best of systems require reexamination to consider the lessons of experience and to meet changes in conditions or even perceptions over a period of time.
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Now, in my written testimony, I've suggested some amendments to the statute that are grounded in the experience of, now, more than 20 years. These involved matters of detail, although I would not call them technicalities. They are more than that; and I hope we will have a chance to discuss these in the question period. But I would like to turn now to some of the broader issues raised by the statute.
A good place to begin is with the statistical report published each year by the Administrative Office. Now, I have attached to my statement as Table 1 a compilation of the AO's figures over the last 6 years. And one thing stands out from those figures: The overwhelming majority of complaints are dismissed, either by the chief judge or by the judicial council reviewing the chief judge's order.
I think a natural reaction to those figures would be: surely Federal judges, good as they generally are, can't be that good. Either some of the would-be complainants are not taking advantage of the statutory procedures or the courts are sometimes failing in their duty to act when judges fail to live up to the high standards we expect of them.
Now, neither of those possibilities can be ruled out, but before we jump to conclusions, I think it is important to emphasize that the formal mechanisms of the statute are not the only methods for dealing with misconduct or disability in the Federal judiciary.
First, the figures do not reflect the informal corrective processes that may take place in the absence of a formal complaint. And that is a fascinating aspect of this system.
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Second, many instances of judicial misconduct are dealt with through appellate review in particular cases. A good example is the Microsoft case that made the headlines just a few months ago. I also believe that in the long term, the most effective and efficient method of maintaining integrity in the Federal judiciary lies in rigorous scrutiny at the appointment stage, and we have that rigorous scrutiny today.
Yet, having said all that, I also have to say that the statistical record is not as reassuring as it could be and as it should be. And the reason is that the judiciary has not done enough to make the complaint process visible.
Now, it seems to me that there is one step that could go a long way toward increasing that visibility. The suggestion is that the Web site of every Federal court should include a prominent link to the rules and the forms that govern the filing of a complaint under section 372(c) concerning a judge of that court.
I think the Internet can also be helpful in many other ways, but I see that my time is almost up and there is one other matter I would like to touch upon. This hearing, which deals with judicial disqualification, is as good an opportunity as there will ever be to call the Subcommittee's attention to a minor statutory malfunction that otherwise is going to remain forever below everybody's radar.
Section 46(c) of title 28 provides that en banc rehearing can be ordered by a majority of the circuit judges who are in regular active service. And the circuits are divided on whether majority means a majority of all active judges—that is to say, an absolute majority—or a majority of the judges who are not recused. Five of the circuits follow an absolute majority rule. In those circuits, recused judges are having an effect on case outcomes that, by definition, they should not be having. And this is hardly a major problem but it is one that is easily corrected.
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I would urge the Subcommittee to read the opinion of Judge Carnes that I have cited in my statement. He analyzes the issue in detail. And I would urge you to take appropriate action, perhaps by drafting an amendment to be included in the next omnibus judiciary legislation.
In conclusion, these are a very important set of issues that have been raised here. And I hope we have the opportunity to ventilate them in detail.
Thank you, Mr. Chairman.
Mr. COBLE. Thank you, Professor.
[The prepared statement of Mr. Hellman follows:]
PREPARED STATEMENT OF ARTHUR D. HELLMAN
Mr. Chairman and Members of the Subcommittee:
I appreciate your invitation to express my views at this oversight hearing on federal judicial misconduct and disqualification. By way of personal background, I am a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh School of Law. Among other subjects, I teach courses in Federal Courts and Constitutional Law. I have published numerous articles, monographs, and books dealing with various aspects of the work of the federal courts.
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Over the years, I have been privileged to participate in a number of institutional enterprises aimed at improving the administrative of justice, both state and federal. I served as Chair of the Civil Justice Reform Committee of the American Judicature Society, and I supervised a distinguished group of scholars in analyzing the innovations of the Ninth Circuit and its court of appeals. More recently, I served on the Ninth Circuit Court of Appeals Evaluation Committee appointed by Chief Judge Procter Hug, Jr. Of course, in my testimony today I speak only for myself; I do not speak for any court or other institution.
This statement is in six parts. Part I introduces the statutory scheme for judicial discipline; it also calls attention to some of the resources available to the Subcommittee as it pursues its oversight responsibilities. Part II discusses possible amendments to the existing statute that warrant consideration at this time. Part III addresses some of the longer-range issues raised by the statute, and Part IV provides a brief assessment of the current operation of the system. Part V deals with judicial disqualification. It offers a better approach to disclosing judges' conflicts of interest, and it flags a statutory ambiguity involving recusal by court of appeals judges. The statement concludes with brief comments on the Internet as a tool for safeguarding judicial integrity without interfering with judicial independence.
I. INTRODUCTION
A. Section 372(c) and the delicate balance
The federal judicial system is the envy of civilized nations throughout the world. Its stature rests in large part on two essential features: judicial independence and judicial integrity. For the most part, judicial independence and judicial integrity reinforce another. In one respect, however, there is a tension between the two. Because human beings are fallible, it is generally accepted that some mechanism is required to identify and correct instances in which particular judges have strayed from the norms of ''good behavior.'' But if the process is too bureaucratic, too heavy-handed, or too quick to move to formal adjudication, it poses a threat to the judges' independence.
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In the Judicial Conduct and Disability Act of 1980 (hereinafter ''the Act''), Congress sought to reconcile the competing values. I believe that the Act—codified in section 372(c) of the Judicial Code—strikes an appropriate balance, and that the basic framework established in the statute is sound. But no product of human invention can be perfect. Moreover, even the best of systems may require modification to meet changes in conditions or perceptions over a period of time.
One element of the compromise that produced section 372(c) was the assurance of continuing legislative oversight. More than a decade has now passed since Congress last conducted a thorough examination of the operation of the system. Additionally, the emergence of the Internet as a ubiquitous vehicle for communication calls for rethinking of procedures established in the pre-Internet era. It is therefore appropriate and timely for this Subcommittee to conduct an oversight hearing on the operation of the Act and related issues of judicial misconduct and judicial discipline. And I am grateful for the opportunity to take part in this important endeavor.
Section 372(c) raises a wide range of issues, including deep questions of constitutional law associated with the process of impeachment and the possibility of prosecuting federal judges under criminal laws. I will concentrate here on the more mundane—and more common—issues growing out of the everyday operation of section 372(c) and the work of judges, chief judges, and circuit councils.
B. Resource materials for Congressional oversight
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In pursuing its oversight responsibilities on issues of judicial misconduct and judicial discipline, the Subcommittee can benefit from the work of several institutions that have labored in this field over the past 20 years.
First, the Judicial Conference of the United States has promulgated Illustrative Rules Governing Judicial Misconduct and Disability. These Illustrative Rules address many procedural and substantive issues that are not addressed by the statute itself. They have been revised several times over the years, and they reflect the lessons of experience nationwide.
Second, each of the federal judicial circuits has adopted rules based on the Illustrative Rules. As it happens, the circuit I am most familiar with is the Ninth Circuit. The Ninth Circuit's rules, available on the circuit's web site, http://www.ce9.uscourts.gov/, include detailed commentaries on the purpose and operation of the rules. I have drawn on the Ninth Circuit's rules in preparing this statement. References are to the version dated August 21, 2000.
Third, the National Commission on Judicial Discipline and Removal, established by Congress in late 1990, submitted a detailed report in August 1993 on a variety of issues relating to the 1980 Act and problems of judicial misconduct. The Commission was chaired by Robert W. Kastenmeier, former Chairman of this Subcommittee and author of the Judicial Conduct and Disability Act of 1980. The Commission's report is published in 152 F.R.D. 265 (hereinafter ''NCJDR Report'').
Fourth, the Federal Judicial Center, the research arm of the federal judiciary, carried out an empirical study at the behest of the National Commission. See Jeffrey N. Barr & Thomas E. Willgang, Decentralized Self-Regulation, Accountability, and Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. Rev. 25 (1993) (hereinafter ''FJC Study''). This is a thorough, objective, and thoughtful piece of research that is enormously useful in showing how the Act has been implemented at the everyday operational level. I have drawn heavily on it here.
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One other preliminary point warrants mention at this stage. Section 372(c) as currently written generally uses masculine pronouns. For consistency and ease of reference, I have followed suit here. If the statute is amended, Congress could take the opportunity to make all references gender-neutral.
II. POSSIBLE AMENDMENTS TO SECTION 372(C)
For most of the nation's history, the only formal procedure for dealing with misconduct by federal judges was the cumbersome process of impeachment. Criminal prosecution was a theoretical possibility, but until 1980, ''no sitting federal judge was ever prosecuted and convicted of a crime committed while in office.'' NCJDR Report at 326.
That era ended with the enactment of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (to give it its full name). The 1980 law, codified as section 372(c) of the Judicial Code, established a new set of procedures for judicial discipline and vested primary responsibility for implementing them in the federal judicial circuits. Minor changes were made in later years, notably in the Judicial Improvements Act of 1990.
In enacting section 372(c), Congress opted for a system that has aptly been described as ''decentralized self-regulation.'' See FJC Study at 29. I see no reason to revisit that decision, but I do think that some fine-tuning is in order. The suggestions in Part II are drawn largely from the Federal Judicial Center study and from the rules adopted by the Judicial Council of the Ninth Circuit in furtherance of the Act.
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A. Recognizing authority of chief judge to conduct limited inquiry
Ordinarily, the process delineated in section 372(c) begins with the filing of a complaint about a judge with the clerk of the court of appeals for the circuit. The clerk must ''promptly transmit'' the complaint to the chief judge of the circuit. The chief judge, after ''expeditiously reviewing'' the complaint, has three options. He can dismiss the complaint; he can ''conclude the proceeding if he finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events;'' or he can appoint a special committee to investigate the allegations.
The Act says nothing about the procedures the chief judge may or must follow before determining which of these steps to take. However, for at least a decade, the Illustrative Rules have recognized the power of the chief judge to conduct a limited inquiry as part of the process of ''expeditious review.'' The rules adopted by the various circuits also embody this authority. For example, the Ninth Circuit's Rule 4(b) provides:
In determining what action to take, the chief judge may conduct a limited inquiry for the purpose of determining (1) whether appropriate corrective action has been or can be taken without the necessity for a formal investigation, and (2) whether the facts stated in the complaint are either plainly untrue or are incapable of being established through investigation. For this purpose, the chief judge may request the judge whose conduct is complained of to file a written response to the complaint. Such response will not be made available to the complainant unless authorized by the responding judge. The chief judge or his or her designee may also communicate orally or in writing with the complainant, the judge whose conduct is complained of, and other people who may have knowledge of the matter, and may review any transcripts or other relevant documents.
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I agree with the Judicial Conference, the circuits, and the National Commission that authority to conduct a limited inquiry is implicit in the existing statute. For example, as already noted, the statute provides that the chief judge ''may conclude the proceeding if he finds that appropriate corrective action has been taken.'' It is hard to see how the chief judge could make such a finding without undertaking at least some investigation into the facts of the complaint.
Nevertheless, I believe it would be desirable to amend the Act to recognize the power explicitly. By hypothesis, the Act deals with matters of great sensitivity. Something as important as the power of the chief judge to conduct a limited factual inquiry should not be left to implication from other statutory language.
A second reason for amending the Act is that Congress can also make explicit the limitations on the power. For example, the amendment could make clear that the power to conduct a limited inquiry does not include the power to resolve issues of credibility. If the validity of a complaint depends on whether one believes an allegation that is not inherently incredible or refuted by objective evidence, the chief judge should appoint the special committee required by the statute.
B. Recognizing authority of chief judge to dismiss after limited inquiry
Under §372(c) as it now stands, the chief judge may dismiss a complaint for any of three reasons:
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(i) [The complaint is] not in conformity with paragraph (1) of this subsection. [Paragraph (1) provides: ''Any person alleging that a circuit, district, or bankruptcy judge, or a magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.'']
(ii) [The complaint is] directly related to the merits of a decision or procedural ruling, or
(iii) [The complaint is] frivolous. (Emphasis added.)
Experience suggests that a fourth category should be added, and that the third category should be delineated more fully.
The proposed fourth category would carry forward the suggestion (discussed above) that the chief judge be explicitly authorized to conduct a limited inquiry. If the limited inquiry demonstrates that the allegations lack any factual foundation or are conclusively refuted by objective evidence, the chief judge should be authorized to dismiss the complaint.
This suggestion draws upon both the Illustrative Rules and the Federal Judicial Center study. The FJC study recommended that the chief judge be authorized to dismiss the complaint if the limited inquiry demonstrates ''that the allegations lack any factual foundation.'' FJC Study at 63. However, I think the statute should be more explicit in addressing what may be a common situation: objective evidence uncovered by the inquiry conclusively refutes the allegations of the complaint. For example, the complaint may assert that the judge used an ethnic slur or other offensive language. An audio tape of the proceeding may demonstrate beyond question that the judge did not use the language attributed to him.
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This proposal, like the first one, would largely codify present practice. For example, the Ninth Circuit's rules provide that the term ''frivolous'' includes ''alleging facts that are shown by a limited inquiry [to be] plainly untrue [or] lacking sufficient evidentiary support either (i) to raise an inference that some kind of cognizable misconduct has occurred, or (ii) to warrant further investigation.'' (Emphasis added.)
I do not take issue with this interpretation of section 372(c). It is not unreasonable to say that an allegation that is ''plainly untrue'' or that ''lack[s] sufficient evidentiary support'' falls within the realm of the ''frivolous.'' Nevertheless, there are at least three reasons why it is desirable to amend the statute to establish a separate category for dismissals based on limited inquiry.
First, the Ninth Circuit's rules, like those of other circuits, may stretch the term ''frivolous'' somewhat beyond its generally accepted meaning. As the FJC study pointed out, ''complainants may more commonly understand the term—to refer to complaints that contain insufficient factual allegations to warrant inquiry. A dismissal for frivolousness, therefore, could readily be misunderstood as an indication that the chief judge did not take the complaint's allegations seriously.'' FJC Study at 63.
Second, as also noted by the FJC study, a misunderstanding of that kind would be particularly unfortunate when a complaint alleges ethnic, gender, or some other kind of bias. ''A dismissal as 'frivolous' might leave the unseemly impression that allegations of that kind do not concern the judiciary.'' Id.
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Third—and generalizing from the preceding point—I think it is desirable to distinguish between dismissals based on the complaint alone and those based on evidence outside the complaint. This point is further developed in Section C, immediately below.
C. Specifying other bases for dismissal identifiable on the face of the complaint
In addition to the language quoted above, the current Ninth Circuit rules define ''frivolous'' to include ''making charges that are wholly unsupported or alleging facts that are shown by a limited inquiry [to be] (A) plainly untrue, (B) incapable of being established through investigation, or (C) lacking sufficient evidentiary support either (i) to raise an inference that some kind of cognizable misconduct has occurred, or (ii) to warrant further investigation.'' 9th Cir. R. 4(c)(3).
While I respect the Ninth Circuit's efforts to be comprehensive and meticulous in giving content to the term ''frivolous,'' I am concerned that the formulation improvidently intermingles reasons for dismissal that can be identified from the complaint alone and those that require some consideration of materials outside the complaint.
Lawyers are familiar with the distinction between a dismissal on the pleadings and the grant of summary judgment. The distinction is reflected in Rule 12(c) of the Federal Rules of Civil Procedure:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
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For two reasons, recognition of the distinction is especially appropriate here. First, the complainant has a legitimate interest in knowing whether his complaint was found wanting on its face or whether the chief judge relied on other evidence in reaching his conclusion. Second, if the matter proceeds to review by the judicial council (see section D, below), the reviewing body should not have to speculate as to whether the dismissal was based on the complaint alone.
In this light, I think it is desirable to amend subsection (iii) of §372(c)(3)(A) by specifying other reasons for dismissal that can be identified on the face of the complaint. Drawing on the Ninth Circuit's rules and commentary, I suggest that the provision might authorize the chief judge to dismiss the complaint if it ''is frivolous, if it does not include sufficient evidence to raise an inference that misconduct has occurred, or if the allegations are incapable of being established through investigation.''
The amendment should make clear that dismissals in these categories are distinct from dismissals after limited inquiry. By the same token, the judicial councils of the circuits, in submitting the reports required by 28 USC §332(g), should give separate tallies for dismissals after limited inquiry and dismissals based on the complaint alone. The Director of the Administrative Office should do so as well in the summaries published annually in accordance with 28 USC §604(h)(2). This additional information will shed important light on the operation of the system and thus will assist Congress in the performance of its oversight function.
D. Authorizing review by a committee of the judicial council
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Under §372(c)(10), a complainant who is dissatisfied with the chief judge's order dismissing the complaint or terminating the proceeding may seek review of the order by filing a petition addressed to the judicial council of the circuit. The judicial council then considers the petition under rules adopted pursuant to §372(c)(11). That paragraph authorizes each judicial council to ''prescribe such rules for the conduct of proceedings under this subsection, including the processing of petitions for review, as [the council] considers to be appropriate.''
Nothing in section 372(c) explicitly authorizes the council to delegate the review function to a smaller group within the council, and it appears that in most circuits all members of the council participate in the process. However, at least one circuit reads section the statute as authorizing delegation. As reported in Rule 7 of the rules adopted by the Fifth Circuit, ''By standing resolution the judicial council may delegate the review process to rotating panels drawn at random with power to act on behalf of the full council.'' (The rules can be found at the court's web site. See http://www.ca5.uscourts.gov/Clerk/ClerksOffice.cfm.)
Reasonable people can disagree as to whether the Fifth Circuit's ''standing resolution'' is authorized by the statute. In any event, the idea is a good one. The Federal Judicial Center study suggested that the Act ''should be amended to permit petitions for review to be determined by a standing or rotating three-judge panel of the judicial council, rather than by the entire council.'' FJC Study at 194. I endorse this suggestion, with one modification: I would require that the review panel consist of at least three members of the council (one of whom must be a district judge), but I would not specify the number in the statute. Some councils may prefer a larger review body; they should not be denied that option.
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The reason for allowing panel review is twofold. First, some of the judicial councils are quite large; for example, the Fifth Circuit's has 19 members. Requiring 19 judges to review a chief judge's order dismissing a complaint is not a good use of scarce judicial resources.
Second and more important, vesting the review function in the entire council risks diffusing responsibility. In contrast, if the task is assigned to a group of 3 or 5 judges, those judges can concentrate on the tasks and are likely to put more time and effort into the review process. (For further discussion, see FJC Report at 161–63.)
E. Reorganizing section 372(c)
In the current version of section 372(c), the provision governing dismissals by the chief judge is found in paragraph (3), while the provision authorizing review of such orders by the circuit council is found in paragraph (10). If Congress amends the Act, I suggest that the statute should be reorganized so that closely related provisions are arranged in a logical sequence.
In fact, I would go further. As noted at the outset, the provisions of the 1980 Act establishing new procedures for dealing with allegations of misconduct by federal judges were codified in section 372(c) of the Judicial Code. It seems anomalous that matters so important and wide-ranging would be incorporated into Title 28 as a single subsection of an existing section. I think these provisions warrant their own section, and indeed their own chapter, in the Judicial Code. Separate chapters have been established for ''executions and judicial sales'' (Chapter 127), ''Moneys paid into court'' (Chapter 129), and ''Attachment in postal suits'' (Chapter 173). Surely judicial discipline should be put on an equal footing from an organizational perspective.
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This is partly a matter of practicality; a separate chapter, with separate catchlines for each section, would be easier to locate and navigate. But there is also symbolic value in placing the provisions on judicial discipline in a chapter devoted to that subject alone.
III. OTHER ISSUES WARRANTING ATTENTION
The proposals in Part II (other than the suggestion for reorganizing and relocating section 372(c)) draw on existing rules and practices in the circuits as well as the Federal Judicial Center study. For that reason, I offer them with some confidence. (Of course, the particular language should be chosen with care.) Other aspects of the process also warrant scrutiny by the Subcommittee; however, the evidence now available does not point to the need for statutory revision at this time. I discuss them here because I believe it is worthwhile to put the issues on the table as the Subcommittee pursues its oversight responsibilities.
A. Inclusion of reasons for dismissing complaints
Section 372(c)(3) states that the chief judge may dismiss a complaint ''by written order stating his reasons.'' However, the Federal Judicial Center study found that ''not all chief judges' orders of dismissal have provided a statement of the allegations of the complaint and the reasons, as opposed to the conclusions, supporting its dismissal.'' In fact, three of the eight circuits in the study ''had long-standing practices of issuing conclusory form orders to dispose of insubstantial complaints.'' FJC Study at 80.
Even when the authors of the study looked only at ''arguably meritorious allegations,'' they found that the chief judges' orders were not always ''responsive.'' (In assessing ''responsiveness,'' the authors ''looked for whether the chief judge restated [the particular] allegation and responded to it and whether the chief judge stated conclusions or specific reasons for the conclusions.'' FJC Study at 82.)
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The authors of the study anticipated that all circuits would soon be moving to a system under which the chief judge would articulate reasons for dismissing a complaint. That was in 1993. Unfortunately, as far as I am aware, there is no published information that tells us whether this has in fact occurred. If it has, there is no need to do anything. If chief judges in one or more circuits continue to issue ''conclusory form orders,'' that is a matter of concern. This is so for several reasons. Among them:
When a complaint is dismissed with a conclusory form order, the complainant may lack confidence that the chief judge has actually considered the grievance. This will reinforce the sense of mistrust that often underlies the filing of a complaint against a judge.
As pointed out by the National Commission, a non-conclusory statement ''may be critical—to the understanding of those engaged in oversight or evaluation.'' NCJDR at 351.
If some complaints are still being disposed of with a conclusory form order, either the Judicial Conference or Congress should consider imposing a requirement that the chief judge state the reasons for a disposition adverse to the complainant.
B. Visibility of the disciplinary mechanism
One purpose of the mechanism established by the 1980 Act is, of course, to foster public confidence in the federal judiciary. To that end, the mechanism must be visible. Visibility in this context entails two overlapping elements: the availability of the process must be made known to potential complainants, and the results of the process must be made known to all who are interested in the effective operation of the judicial system. On the available evidence, there is a real question whether these goals are being realized. For example:
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A spot check indicates that the rules governing complaints under section 372(c) are available on the web sites of most of the courts of appeals, but at the district court level the record is much more hit-and-miss. This may be because complaints are filed with the clerk of the court of appeals, but I think that most people would expect to find information about filing complaints concerning a trial judge on the web site of the court on which that judge sits.
The web site of the federal judiciary gives a brief answer to the question, ''How do I file a complaint against a judge?'' However, the page does not include links to anything that might help—the statute, the Illustrative Rules, a form for filing a complaint, or any other explanatory material. See http://www.uscourts.gov/faq.html.
The orders and memoranda filed by the chief judges of the various circuits are available only at the clerk's office of the circuit where they were issued and at the Federal Judicial Center, to which copies are sent. Anyone wanting to study these dispositions systematically would face formidable logistical obstacles.
The Federal Judicial Center study concluded, after an examination of published orders, that ''[d]issemination of information about interpretations of the Act—seems notably absent.'' FJC Study at 88. That report was completed in 1993, but a follow-up search on Westlaw using the same query suggests that the picture has not changed.
It is understandable that judges do not wish to shine the spotlight on judicial misconduct or disability, even when the overwhelming majority of complaints are plainly without merit. However, to the extent that the low visibility is the result of conscious choice (rather than indifference or inadvertence), I think the policy is misguided. A telling vignette comes from the FJC Study (at 129). A chief judge reported:
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After a newspaper article accusing the judiciary of a cover-up in [a special committee matter which resulted in a private, rather than a public, reprimand], a local reporter wanted to look at 372(c) files. We were able to show him files of reasoned orders. He was very surprised. I think he went away thinking this was an honest ship.
Yet even if the picture were not so positive, visibility would still be essential to the success of the system. This is so for both instrumental and symbolic reasons. At a practical level, the courts benefit if they learn about problems at the earliest possible stage, and complaints under §372(c) can help. But some meritorious complaints will never be filed if the existence of the process is insufficiently publicized. The courts can also benefit in another way—by learning how other courts are handling allegations of misconduct or disability.
Perceptions are also important. Today, the federal judiciary is highly respected. The spate of criminal prosecutions of federal judges that aroused alarm at the time of the National Commission report is happily behind us. But that only means that this is a time for building confidence. A visible complaint process contributes significantly to that goal. Without it, we have no way of knowing whether a paucity of meritorious complaints truly reflects a healthy system or simply a lack of awareness that a complaint procedure exists. Here are some suggestions for enhancing the visibility of the process:
At a minimum, the web site of every federal court should include a prominent link to the rules and forms for filing a complaint under §372(c) concerning a judge of that court.
Chief judges and judicial councils should send more of their non-routine dispositions of §372(c) complaints for on-line publication by Westlaw, Lexis, Findlaw, and other services.
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Consideration should be given to asking the courts to send routine dispositions to the Federal Judicial Center in electronic form, so that the dispositions (or at least a selected group) can be made available easily to other courts, to oversight committees in Congress, and to researchers.
The Federal Judicial Center should be encouraged to conduct a follow-up study to the one completed in 1993. This study need not be as elaborate or comprehensive; what we need above all is an analysis of the dispositions already on file at the Center.
Notwithstanding what I have said about enhancing the visibility of the complaint process, one other point deserves emphasis. The formal mechanisms of section 372(c) are not the only methods for dealing with misconduct or disability in the federal judiciary. These other methods will be discussed briefly in Part IV of this statement.
C. Confidentiality in the era of the Internet
As the National Commission observed in its report, some of the most controversial issues surrounding the enactment and implementation of section 372(c) have involved concerns about confidentiality. See NCJDR Report at 349–51. In its current version, the statute requires that confidentiality be maintained in ''investigations'' (paragraph (14)), but it does not address issues of confidentiality in cases where no special committee is appointed. The latter, of course, encompass the vast majority of complaints.
The Illustrative Rules fill this gap in two ways. Rule 16 lays down a broad rule of confidentiality for all proceedings under the Act. Rule 17 provides that when a complaint has been finally disposed of, the supporting memoranda will be made available for public inspection at the clerk's office and copies will be sent to the Federal Judicial Center; however, in all dismissals and in most other proceedings, ''the publicly available materials will not disclose the name of the judge complained about without his or her consent.''
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The Federal Judicial Center study found that maintenance of confidentiality was a serious problem—not because of anything the judges did, but because outsiders are not bound by rules of confidentiality. ''As a practical matter,'' the study noted, ''a complainant can call a press conference (as many have), disclose the contents of the complaint, and discuss the allegations and the process.'' The study quoted one chief judge: ''If there's a serious allegation, the reality is that confidentiality is unlikely.'' FJC Study at 178–79.
The development of the Internet has substantially exacerbated the problem of maintaining confidentiality. This is so not only when allegations are ''serious,'' but also when they are plainly appropriate for dismissal. Today it is not necessary to ''call a press conference;'' a complainant—or anyone else—can place documents on a web site, and they will be instantly available to anyone in the world.
To get a sense of what is available, I did a search on Google. I found less material than I expected—a few complaints and a few orders. One document purported to be an order of dismissal that identified the judge who was the subject of the complaint. The version of the order on file at the Federal Judicial Center does not identify the judge.
On the basis of current information, it does not appear that disclosure of section 372(c) material presents a problem that requires immediate attention. Others at this hearing may have different experiences that suggest a greater urgency. Of course the possible remedies are substantially limited by the First Amendment's protection of rights of expression.
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D. Sharing of the initial review responsibility
One chief judge suggested to the authors of the FJC study that the Act be amended to authorize chief judges to delegate review of complaints to another judge. FJC Study at 186. The judge explained:
The chief judge's job is very time consuming; anything that can be delegated should be. There's no reason the chief judge must be involved in every one of these complaints. The chief judge should be able to decide whether a complaint must be looked at more carefully. The chief judge should hang on to anything that's close or controversial, but most are not; the chief judge could delegate those.
As long as the volume of complaints remains at its current modest levels, it is hard to justify authorizing the chief judge to delegate part of the review function. Nevertheless, I think the idea is worth keeping on the table—though not necessarily for the reasons quoted above.
First, a central feature of the system of decentralized self-regulation established by the Act is the opportunity for the chief judge to facilitate action that leads to the correction of errant behavior. To be effective, this process may require interpersonal skills that will not always be a chief judge's strong point. (I hasten to add that this comment is not based on the performance of any of the chief judges whose work I have observed.) If another court of appeals judge—perhaps a highly respected senior judge—is willing and able to take on part of the responsibility, there is much to be said for allowing the delegation.
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Second, if the judiciary takes vigorous steps to increase the visibility of the §372(c) process, this may result in a substantial increase in the number of complaints filed. Under those circumstances, it would be useful if the chief judge, especially in a large circuit, could delegate part of the review work to another judge.
If Congress were to pursue this suggestion, it might be desirable to include a requirement that any delegation be approved by the judicial council of the circuit.
IV. THE SYSTEM TODAY
Each year, the Director of the Administrative Office of United States Courts publishes a report that tabulates the number of judicial complaints filed and concluded during the preceding year. Table I (attached) presents the data for the last six years. Three things stand out.
First, the number of complaints filed against judges peaked in 1998, with an astonishing 52% increase over 1997. After that, the number has gone down in each successive year. The Director of the Administrative Office has attributed the jump in 1998 to ''the use of relatively new Internet and fax-on-demand services, which made information on procedures for filing complaints more widely accessible.'' 1999 Annual Report at 40. (One wonders, then, why the number dropped so substantially in succeeding years.)
Second, the overwhelming majority of complaints are dismissed, either by the chief judge or by the judicial council upon review of the chief judge's order. In 1999, for example, of the 831 complaints that were concluded, only 15 were not dismissed—less than 2%. This includes 2 complaints that were ''withdrawn;'' we do not know what the circumstances of withdrawal were.
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Third, the pace of activity has picked up in the last three years. Ten complaints were considered by circuit investigative committees, compared with a total of 3 in the preceding three years. But the numbers are too small, and the information too sparse, to enable us to say that a distinctly different pattern has emerged. Certainly the proportion of complaints that are not dismissed remains very low.
A natural reaction to these figures would be: surely federal judges—good as they generally are—cannot be that good. Either some would-be complainants are not taking advantage of the procedures of section 372(c), or the chief judges and judicial councils are sometimes failing in their duty to act when judges fall short of the standards we expect of them.
Neither possibility can be ruled out. Moreover, the small number of non-frivolous complaints carries less weight than it would if the courts had been more energetic in publicizing the existence of the complaint process. But there are also more benign explanations that may account for the low numbers.
First, the figures do not reflect the informal corrective processes that may take place in the absence of a formal complaint. One of the most important findings of the Federal Judicial Center study is that informal processes often operate very effectively to deal with matters that fall within the potential reach of section 372(c). The study quotes comments by two former chief judges that capture the experience in most of the circuits that the authors visited:
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''In my experience, the most serious complaints never hit the complaint process.''
''There are more remedial actions taking place outside the complaint process than following formal complaints.''
The full description in the study (at 131–44) provides valuable insights into the operation of informal processes.
Second, many instances of judicial misconduct are dealt with through appellate review of particular cases. A good example is the opinion of the District of Columbia Circuit excoriating Judge Thomas Jackson for his out-of-court comments on the pending Microsoft case. See United States v. Microsoft Corp., 253 F.3d 34, 107–117 (D.C. Cir. 2001), http://ecfp.cadc.uscourts.gov/MS-Docs/1720/0.pdf. Not only was the public reprimand as harsh as any that might be meted out by the Judicial Council under section 372(c), but after the widespread publicity that the opinion received, we can be confident that no federal judge will engage in similar behavior for a very long time to come. If we agree with the Illustrative Rules that the thrust of the 1980 Act is ''essentially forward-looking,'' with the emphasis on ''correcting conditions that interfere with the proper administration of justice in the courts,'' we can say that the system has worked, albeit not through section 372(c).
Finally, the most efficient method of maintaining integrity in the federal judiciary lies in rigorous scrutiny in the appointment process. Nominees today receive that kind of scrutiny, including ''full-field'' investigations by the FBI. I believe that this process helps to explain why there are so few non-frivolous complaints against federal judges.
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I do not suggest that these considerations diminish the importance of section 372(c). On the contrary, section 372(c) will continue to play an essential role in dealing with misconduct or disability on the part of federal judges. In particular, informal processes could not operate as efficaciously as they do if the possibility of formal proceedings did not loom in the background. As the Federal Judicial Center study puts it (at 136–37), the chief judge ''bargain[s] in the shadow of the Act.''
Today's oversight hearing is a valuable step in making the section 372(c) process more effective. The amendments to the statute suggested in Part II can effect modest improvements in the system. But the greatest need is to enhance the visibility of the complaint procedure. I hope the judiciary will pursue the suggestions in Part III. If no progress is made, Congress may have to step in.
V. ISSUES RELATING TO JUDICIAL DISQUALIFICATION
Disqualification or recusal of judges (the two terms are used interchangeably) is covered by sections 144 and 455 of the Judicial Code. Section 455 was completely rewritten in 1974. The statute requires a federal judge to disqualify himself in five specified circumstances, set forth in 28 USC §455(b), and also ''in any proceeding in which his impartiality might reasonably be questioned.'' In this part of my statement I discuss two issues relating to the disqualification of judges.
A. Timely disclosure of judges' conflicts of interest
From time to time, a newspaper or advocacy group will publish an investigative report revealing that one or more judges have participated in cases notwithstanding a conflict of interest that mandated disqualification under 28 USC §455(b). Perhaps the best known example is the study conducted by the Kansas City Star in 1998. The newspaper reported that federal judges in Kansas City and elsewhere ''repeatedly have presided over lawsuits against companies in which they own stock.'' More recently, the Community Rights Counsel (CRC) publicized a research report indicating ''that in 1997 at least eight federal appellate judges—ruled on the merits in at least 17 federal appeals in which they had a disqualifying conflict of interest.''
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The judges attributed their participation in the conflict cases to innocent mistakes or memory lapses. And the Star ''found no evidence that any judge benefited personally or let his stock holdings influence his rulings.'' (The CRC offered no comparable disclaimer.) Nevertheless, episodes of this kind are harmful to the judiciary. At best, the judges—and perhaps the winning lawyers—suffer embarrassment. At worst, a cloud is cast over the judges' integrity.
This is another area where technology can be helpful. The Star emphasized that to determine whether a judge has a conflict of interest, the lawyer or litigant had to request copies of disclosure statements that were available only from the Administrative Office in Washington, D.C. Although the Judicial Conference of the United States has now authorized release of the disclosure reports to groups that want to post them on the Internet, it appears that the posting has not yet occurred.
The Northern and Southern Districts of Iowa (and perhaps other federal courts) have found a better way. Here is how it works.
The web sites of those districts post ''conflict lists'' for the judges who sit on those courts. See, e.g., http://www.iand.uscourts.gov/. Each list is preceded by this statement: ''Pursuant to this court's policy of disclosing relationships that pose potential or actual conflicts of interest, financial or otherwise, Judge [X] will not be handling cases involving . . .'' The list that follows may include names of corporations, individuals, and law firms.
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Court rules require attorneys in civil cases to ''review the list and immediately notify the Clerk of Court if it appears the presiding judge may have a conflict with any association, firm, partnership, corporation, or other artificial entity either related to any party or having a pecuniary interest in the case.''
The Northern District of Iowa goes one step further than the Southern. At the bottom of each list is the following notation: ''Persons having knowledge that a case has been assigned to Judge [X] involving an entity or individual described above, or one related thereto, should immediately notify the Clerk of Court in writing of the potential conflict.''
On the available evidence, the Iowa system is a forward-looking use of Internet technology that should be a model for all federal courts. There are at least four benefits from this system.
1. By allowing—and indeed requiring—the parties to take part in the conflict-identification process, the Iowa courts substantially increase the likelihood that conflicts will be discovered early in a lawsuit. Court personnel still conduct their own check, but two pairs of eyes are better than one. And of course the parties and their lawyers have a special incentive to make sure that their case is not heard by a judge who has a conflict.
2. By placing the list on the court's web site, the court makes it easy for interested observers, including advocacy groups like the CRC, to monitor judges' compliance with conflict of interest rules.
3. Unlike the financial disclosure forms, which are filed once a year and often are out of date by the time they are made public, the web site listing can be updated whenever changes in a judge's portfolio or other events require it. Courts can easily establish procedures for judges to inform their clerks' offices of such developments.
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4. The Iowa system bypasses the concerns about judges' safety that initially led the Judicial Conference to resist sharing of the disclosure forms. The web site list provides only the necessary information: Judge X is recused in cases involving Corporation Y. This could be because the judge owns stock in the corporation, because he represented the corporation before going on the bench, or for some other reason.
Admittedly, the system is not perfect. The most serious problem is that judges do not always notify the Clerk of Court of new conflicts, so the list is not necessarily accurate and up-to-date. Nevertheless, the Iowa system is a tremendous improvement over the practice elsewhere.
In March 1999, the Judicial Conference of the United States rejected a proposal to ''encourag[e] all courts to maintain in the clerk's office a recusal list for each judge that would be available to litigants upon written request.'' According to the Washington Post (Sept. 13, 1999), the judges cited ''security and privacy concerns.'' However, that position appears to have been superseded by the vote one year later to allow release of financial disclosure forms for posting on the Internet. In this light, I suggest the following steps:
All federal courts should adopt the Iowa system and post on their web sites conflict lists for all judges of that court.
Each court should adopt, implement, and monitor procedures for assuring that judges inform the Clerk of Court, on a regular basis, of changes in stock holdings or other circumstances that will require changes in the conflict lists.
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Judges should be encouraged to establish arrangements with their brokers to receive notification of relevant portfolio changes in a form that can be forwarded immediately to the Clerk of Court. E-mail would seem like a good tool for this purpose.
Technology holds out other possibilities as well. Lawyers are familiar with ''conflict checking'' software that is used to avoid conflicts of interest when a law firm is considering taking on a new client. Similar software could check judges' conflict lists against the ''statements of interest'' filed by litigants in civil suits. But even if such software is developed, the Iowa system would still be a desirable backstop, if only because it enables outside groups to monitor compliance with disqualification rules.
B. Effect of judicial disqualification in en banc voting
Today's oversight hearing on judicial discipline and disqualification offers an appropriate opportunity to call the Subcommittee's attention to a minor statutory malfunction that otherwise is likely to remain uncorrected. The issue involves the effect of recusals by court of appeals judges when the court votes on whether to hear a case en banc.
28 USC §46(c) provides that en banc hearing can be ordered ''by a majority of the circuit judges of the circuit who are in regular active service.'' The circuits are divided on whether ''majority'' means (a) a majority of all active judges or (b) a majority of the active judges who are not recused. For convenience, I will refer to rule ''a'' as the ''absolute majority rule.'' Five circuits—the Fourth, Fifth, Sixth, Eleventh, and District of Columbia—now follow that rule. See Judith A. McKenna, Laural A. Hooper & Mary Clark, Case Management Procedures in the Federal Courts of Appeals 23 (Federal Judicial Center 2000).
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In circuits that require an absolute majority, en banc rehearing can be denied even though a majority of the judges who would participate in rehearing vote in favor of it. This means that recused judges are having an influence on case outcomes that by definition they should not have.
The potential consequences of the rule can be seen by considering a case that was scheduled for rehearing en banc in November in the Third Circuit. In In re Cendant Corp. Litigation, 264 F.3d 301 (3d Cir. 2001), the panel ruled 2–1 that the district court properly enjoined an arbitration proceeding. The majority consisted of 2 active judges. Four of the circuit's 12 active judges were recused. Under the absolute majority rule, en banc rehearing would have been foreclosed even if all 6 of the non-recused active non-panel members had voted for en banc.
The absolute majority rule means that recused judges are, in effect, paired with non-recused judges who vote in favor of en banc rehearing. Each judge who is recused cancels out the affirmative vote of a judge who is not recused.
The arguments against the absolute majority rule are set forth in detail in a lucid opinion by Judge Edward Carnes of the Eleventh Circuit in Gulf Power Co. v. Fed. Communications Comm'n (No. 98–6222), 226 F.3d 1220 (11th Cir. 2000) (opinion on denial of rehearing en banc). I commend Judge Carnes's analysis to you.
Some years ago, a certiorari petition asked the Supreme Court to resolve the intercircuit conflict on the interpretation of 28 USC §46(c). The Court denied review. See Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir. 1983), cert. denied, 464 U.S. 1040 (1984). (At that time the Fourth Circuit did not follow the absolute majority rule.) As far as I know, the Appellate Rules Committee of the Judicial Conference has not taken up the issue.
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The problem arises because of disagreement over the interpretation of an Act of Congress. It is therefore appropriate that Congress resolve the matter. A simple solution would be to add at the end of the first sentence of §46(c) the words ''and who are not disqualified,'' so that the statute would provide that en banc hearing can be ordered ''by a majority of the circuit judges of the circuit who are in regular active service and who are not disqualified.'' Another approach would be to add a new sentence or subsection defining ''majority'' for purposes of the rule.
(The Third Circuit, although rejecting the absolute majority rule, does require that ''the judges who are not disqualified constitute a majority of the judges who are in regular active service.'' Internal Operating Procedures 9.5.3. I would not include that limitation.)
VI. CONCLUSION: THE COURTS AND THE INTERNET
Assuring the integrity of the federal judiciary while respecting the imperative of judicial independence will always be a challenging task. We are fortunate to live in an era when advancing technologies offer new ways of meeting the challenge.
Today, advancing technology is represented by the Internet. The Internet is a uniquely powerful and effective tool for communication. It is a tool that did not exist when Congress last revised the statute on judicial misconduct, much less when Congress rewrote the provisions dealing with judges' conflict of interest.
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The current statutes represent a careful and balanced approach—although, as outlined above, some fine-tuning is in order. But optimum operation of the systems has been hampered because people often do not have the information they need. That is where the Internet comes in.
The federal judiciary has shown itself to be innovative and service-oriented in its use of the Internet in adjudication and case management. Appellate opinions can be found on line on the day they are filed. Dockets can be searched through PACER. Most intriguingly, some courts have initiated electronic filing systems ''permitting attorneys in selected civil cases to file documents with the Court and deliver them to opposing parties directly from their computers using the Internet.'' See, e.g., https://ecf.cand.uscourts.gov/.
The same spirit can be applied to the matters that are the subject of this oversight hearing. As explained in Part III, courts can use the Internet to enhance the visibility of the procedure for filing complaints against judges. This will make the process more credible as well as more effective. As discussed in Part V, courts can use the Internet to help judges avoid inadvertent violations of the conflict of interest rules.
These suggestions are only a beginning. Other innovative uses of the Internet—and of technologies not yet invented—will permit the courts to further strengthen the mechanisms for preserving judicial integrity without impinging on judicial independence.
EXECUTIVE SUMMARY
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FEDERAL JUDICIAL MISCONDUCT
In the Judicial Conduct and Disability Act of 1980, Congress sought to provide a mechanism for identifying and correcting judicial misconduct, without intruding on judicial independence. The Act struck an appropriate balance by establishing a system of decentralized self-regulation. The basic framework of the Act is sound, but even the best of systems may require modification to meet changes in conditions or perceptions over a period of time. In particular, the emergence of the Internet as a ubiquitous vehicle for communication calls for rethinking of procedures established in the pre-Internet era.
Proposed amendments. Experience suggests several modest modifications to the statutory scheme. The statute should be amended to explicitly recognize the authority of the chief judge (a) to conduct a limited inquiry into the validity of the complaint and (b) to dismiss the complaint if the limited inquiry demonstrates that the allegations lack any factual foundation or are conclusively refuted by objective evidence. Section 372(c)(3)A) should more fully specify other bases for dismissal that can be identified on the face of the complaint. The Act should be amended to permit petitions for review to be considered by a standing or rotating panel of the judicial council, rather than by the entire council.