INTRODUCTION

Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts 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. (28 U.S. Code § 351).

A BRIEF DISCUSSION OF A COMPLAINT OF JUDICIAL MISCONDUCT

A. Rules for Judicial-Conduct Proceedings

The Judicial Conference of the United States promulgated rules to establish standards and procedures for addressing complaints filed by complainants under the Judicial Conduct and Disability Act (Act), 28 U.S.C. §§ 351-364.

The complaint procedures are not intended to provide a means of reviewing a judge’s decision or ruling in a case. Nor should a complaint be filed in any ongoing case, even if the complaint relates to the judge overseeing that case.

This article does not address “disability” which is defined as a temporary or permanent impairment, physical or mental, rendering a judge unable to discharge the duties of the particular judicial office. Examples of disability include substance abuse, the inability to stay awake during court proceedings, or impairment of cognitive abilities that renders the judge unable to function effectively.

B. Cognizable Misconduct

Cognizable Misconduct is conduct prejudicial to the effective and expeditious administration of the business of the courts. Cognizable misconduct includes, but is not limited to, the following:

(1) Violation of Specific Standards of Judicial Conduct. Cognizable misconduct includes:

(A) using the judge’s office to obtain special treatment for friends or relatives;

(B) accepting bribes, gifts, or other personal favors related to the judicial office;

(C) engaging in improper ex parte communications with parties or counsel for one side in a case;

(D) engaging in partisan political activity or making inappropriately partisan statements;

(E) soliciting funds for organizations; or

(F) violating rules or standards pertaining to restrictions on outside income or knowingly violating requirements for financial disclosure.

(2) Abusive or Harassing Behavior. Cognizable misconduct includes:

(A) engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault;

(B) treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner; or

(C) creating a hostile work environment for judicial employees.

(3) Discrimination. Cognizable misconduct includes intentional discrimination on the basis of race, color, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age, or disability;

(4) Retaliation. Cognizable misconduct includes retaliating against complainants, witnesses, judicial employees, or others for participating in this complaint process, or for reporting or disclosing judicial misconduct or disability;

(5) Interference or Failure to Comply with the Complaint Process. Cognizable misconduct includes refusing, without good cause shown, to cooperate in the investigation of a complaint or enforcement of a decision rendered under these Rules; or

(6) Failure to Report or Disclose. Cognizable misconduct includes failing to call to the attention of the relevant chief district judge or chief circuit judge any reliable information reasonably likely to constitute judicial misconduct or disability.

(7) Conduct Outside the Performance of Official Duties. Cognizable misconduct includes conduct occurring outside the performance of official duties if the conduct is reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.

C. Conduct Not Constituting Cognizable Misconduct

(1) Allegations Related to the Merits of a Decision or Procedural Ruling. Cognizable misconduct does not include an allegation that calls into question the correctness of a judge’s ruling, including a failure to recuse.

(2) Allegations About Delay. Cognizable misconduct does not include an allegation about delay in rendering a decision or ruling, unless the allegation concerns an improper motive in delaying a particular decision or habitual delay in a significant number of unrelated cases.

D. The Canons of the Code of Conduct for United States Judges

Judicial complaints are not a mechanism for challenging the correctness of the merits of substantive or procedural rulings in a case. However, where a judge’s misconduct violates the Canons of the Code of Conduct, such complaints are not merits-based.

Canon 2A of the Code of Conduct for United States Judges requires federal judges to show respect for and comply with the law, and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 3 requires that a judge should perform the duties of the office fairly, impartially and diligently, given that the duties of judicial office take precedence over all other activities. A judge must perform these duties with respect for others, including litigants before her or him, and cannot engage in behavior that is harassing, abusive, prejudiced, or biased. Section 3B(3) of the Code of Conduct for Judges provides that, “A judge should exercise the power of appointment fairly and only on the basis of merit, avoiding unnecessary appointments, nepotism, and favoritism.”

Commentary to Rule 4 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings gives some examples of non-merits-based ruling. For example, an allegation that a judge conspired with a prosecutor to make a particular ruling is not merits-related, even though it “relates” to a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with the prosecutor and goes beyond a challenge to the correctness – “the merits” – of the ruling itself. An allegation that a judge ruled against the complainant because the complainant is a member of a particular racial or ethnic group, or because the judge dislikes the complainant personally, is also not merits-related.

E. Filing of Complaint

A form is not necessary to file a complaint, but the complaint must be written and must include a concise statement that details the specific facts on which the claim of misconduct is based. The statement of facts should include a description of:

(1) what happened;

(2) when and where the relevant events happened; and

(3) any information that would help an investigator check the facts.

F. Action by Circuit Clerk

Upon receiving a complaint against a judge, the circuit clerk must open a file, assign a docket number according to a uniform numbering scheme promulgated by the Committee on Judicial Conduct and Disability, and acknowledge the complaint’s receipt. The circuit clerk must promptly send copies of the complaint to the chief judge and copies of the complaint to each judge who is the subject of a complaint. The circuit clerk must retain the original complaint.

G. Chief Judge’s Review

When a complaint is filed, the chief judge must review the complaint. If a complaint contains information constituting evidence of misconduct, but the complainant does not claim it as such, the chief judge must treat the complaint as if it did allege misconduct and give notice to the subject judge. After reviewing a complaint, the chief judge must determine whether it should be:

(1) dismissed;

(2) concluded on the ground that voluntary corrective action has been taken;

(3) concluded because intervening events have made action on the complaint no longer necessary; or

(4) referred to a special committee.

A complaint may be dismissed in whole or in part to the extent that the chief judge concludes that the complaint:

(A) alleges conduct that, even if true, is not prejudicial to the effective and expeditious administration of the business of the courts;

(B) is directly related to the merits of a decision or procedural ruling;

(C) is frivolous;

(D) is based on allegations lacking sufficient evidence to raise an inference that misconduct has occurred;

(E) is based on allegations that are incapable of being established through investigation; or

(F) is otherwise not appropriate for consideration under the Act.

If some or all of a complaint is not dismissed or concluded, the chief judge must promptly appoint a special committee to investigate the complaint or any relevant portion of it and to make recommendations to the judicial council. Before appointing a special committee, the chief judge must invite the subject judge to respond to the complaint either orally or in writing if the judge was not given an opportunity during the limited inquiry.

After the judicial council considers a special committee’s report, it will generally issue an order on your complaint and provide you with a copy of that order.

If the order does not dismiss or conclude your complaint, the order may sanction the judge by:

(a) censuring or reprimanding the judge, either by private communication or by public announcement;

(b) ordering that no new cases be assigned to the judge for a limited, fixed period;

(c) in the case of a district judge, requesting the judge to retire voluntarily; and

(d) recommending corrective action.

Federal judges appointed under Article III of the U.S. Constitution (e.g., circuit and district judges) hold office for life pending good behavior. Only Congress can remove an Article III judge from office. If the judicial council finds an Article III judge’s conduct may warrant impeachment, it must refer that finding to the Judicial Conference. On referral, the Judicial Conference will determine whether to certify the matter to Congress, which will then decide whether to initiate impeachment proceedings.

KEY TAKEAWAYS FROM THIS ARTICLE

A judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts when:

(1) The conduct is reasonably likely to result in a substantial and widespread lowering of public confidence in the courts among reasonable people; and

(2) The conduct threatens public confidence in the integrity, impartiality, and proper functioning of the judiciary.