INTRODUCTION

This article provides a short overview of how a miscreant federal judge is able to evade: (a) sanctions which may result from a complaint filed with the clerk of the court of appeals against him or her pursuant to 28 U.S.C. § 351-364; and (b) impeachment by the Congress.

Court of Appeals

The present statutory structure governing complaints against federal judges and judicial discipline where appropriate stems from the Judicial Improvements Act of 2002, P.L. 107-273, Div. C, Title I, Subtitle C, 116 Stat 1856 (Nov. 2, 2002), 28 U.S.C. §§351- 364. It replaced judicial discipline procedures in the Judicial Conduct and Disability Act of 1980, as amended, codified at the former 28 U.S.C. § 372(c). The current statutory procedures are applicable to complaints against federal circuit judges, district judges, bankruptcy judges, and magistrate judges. They are not applicable to justices of the U.S. Supreme Court.

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).

The following order and memorandum of reasons illustrates how a miscreant federal judge may evade sanctions and retain his pension.

Order and Memorandum of Reasons

“A complaint of judicial misconduct was lodged in September 2014 against United States District Judge Harry Lee Hudspeth of the Western District of Texas, in effect alleging that he did not properly respond to a court employee’s claim that United States District Judge Walter S. Smith, Jr. had made inappropriate and unwanted sexual advances toward the employee. The complaint was held in abeyance pending resolution of the judicial misconduct proceeding against Judge Smith.

Prior to the conclusion of the judicial misconduct proceeding against Judge Smith, Judge Hudspeth retired from judicial office under 28 U.S.C. § 371(a).

A judge who retires from office under § 371(a) is ‘no longer a judicial officer,’ and is ‘no longer subject to the disciplinary procedures of Section 372(c) [now 28 U.S.C. § 351 et seq.] and the remedies they prescribe.’ In re Charge of Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996), citing In re Complaint of Judicial Misconduct, 10 F.3d 99, 100 (3d Cir. Judicial Council 1994); see also In re Complaint of Judicial Misconduct, No. 13-02 (Judicial Conference of the United States 2014) (noting that after Judge Boyce Martin’s retirement from office, the Second Circuit Judicial Council found that ‘the retirement was an intervening event that had made further proceedings unnecessary’ per Rules for Judicial-Conduct and Judicial-Disability Proceedings Rule 20(b)(1)(B)).

In the light of Judge Hudspeth’s retirement from office, the Judicial Council is no longer able to impose any sanction under 28 U.S.C. § 354(a)(2)(A) or (B). Moreover, even assuming the allegations of the complaint are true, the Council concludes that they would not warrant recommending the extraordinary step of attempting the impeachment of a judge who is no longer on the bench.

Pursuant to the Rules for Judicial-Conduct and Judicial-Disability Proceedings Rule 20(b)(1)(B), the Judicial Council concludes this proceeding because the intervening event of Judge Hudspeth’s retirement from office has made further action unnecessary.

The Committee considered whether impeachment and conviction after retirement would affect a judge’s annuity [pension] under 28 U.S.C. § 371(a). The text of the Constitution (Article I, section 3, clause 7 states that ‘Judgment in Cases of Impeachment’ extends only to removal from office and disqualification from further office) and the statute (a judge who has retired under § 371(a) ‘shall’ receive the annuity, with no stated exceptions) indicate that impeachment after retirement would not result in loss of the annuity. See also Johnson v. United States, 79 F.Supp. 208, 210-11 (Ct. Cl. 1948) (the statutory right to salary [now annuity] after retirement is a property right likely subject to the protection of the Fifth Amendment). The Council further finds that the likelihood that Judge Hudspeth will attain public office in the future is minimal, certainly not such as would warrant the significant additional expenditure and drain on judicial and Congressional resources that completing this proceeding and attempting impeachment would entail.” The Judicial Council of the Fifth Circuit, Docket No. 05-14-90121, In Re: Complaint of Judicial Misconduct Against United States District Judge Harry Lee Hudspeth, Under the Judicial Improvements Act of 2002, Chief Judge Carl E. Stewart, October 21, 2016.

U.S. House of Representatives

Any person alleging that a federal judge has engaged in conduct which is reasonably likely to result in a substantial and widespread lowering of public confidence in the integrity and impartiality of the judiciary may file material related to the conduct of the federal judge with the U.S. House of Representatives.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the Party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law (Article I, Section 3, Clause 7 of the Constitution).

The resignation (self-removal from office) of a federal judge under investigation for impeachment often ends impeachment proceedings. For example, proceedings were ended following the resignation of Judges English, Delahay, and Kent.

The Two Magical Words

“I retire,” is all a miscreant federal judge needs to say in order to evade punishment under 28 U.S.C. § 351-364 or impeachment by the Congress. Moreover, if he or she retires at age 65 or later, a pension for life is guaranteed.

Retirement Is Not An “Intervening Event”

As noted above, the present statutory structure governing complaints against federal judges and judicial discipline where appropriate stems from the Judicial Improvements Act of 2002, P.L. 107-273, Div. C, Title I, Subtitle C, 116 Stat 1856 (Nov. 2, 2002), 28 U.S.C. §§351- 364. It replaced judicial discipline procedures in the Judicial Conduct and Disability Act of 1980, as amended, codified at the former 28 U.S.C. § 372(c). The current statutory procedures are applicable to complaints against federal circuit judges, district judges, bankruptcy judges, and magistrate judges. They are not applicable to justices of the U.S. Supreme Court.

28 U.S.C. § 352(b)(2) provides: After expeditiously reviewing a complaint under subsection (a), the chief judge, by written order stating his or her reasons, may – “conclude the proceeding if the chief judge finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events.”

“Intervening events” has no stated definition in the Judicial Improvements Act of 2002, P.L. 107-273, Div. C, Title I, Subtitle C, 116 Stat 1856 (Nov. 2, 2002), 28 U.S.C. §§351- 364. Logically, “intervening events” would be limited to death, incarceration, elevation to the U.S. Supreme Court, or other profound events. A miscreant federal judge should not be able to create an “intervening event” (e.g., voluntarily retiring from office) solely for the purpose of evading sanctions and retaining his or her pension. If retirement is an “intervening event,” then fleeing the country to avoid prosecution for tax evasion or sexual assault could also be considered an “intervening act.”

On October 21, 2016, Chief Judge Carl E. Stewart issued his opinion based in large part on the 1993 opinion of Third Circuit Chief Judge Dolores K. Sloviter which states:

“I find that this complaint is not cognizable under 28 U.S.C. Sec. 372(c). We need not decide in this case whether the claims of complainant adequately allege that respondent ‘has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts’ or ‘is unable to discharge all the duties of office by reason of mental or physical disability,’ within the meaning of 28 U.S.C. Sec. 372(c)(1). Instead, I believe that 28 U.S.C. Sec. 372(c)(3)(B) is dispositive, because that provides that a Chief Judge may conclude the proceeding if [s]he finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events….The language of section 372(c)(3)(B)….was added in 1990. It codified what has been reported to be the general practice of circuit chief judges to dismiss complaints under section 372(c) on the ground that a judge had left the bench, whether by death, retirement….” In Re Complaint of Judicial Misconduct, 10 F.3d 99 (3d Cir. 1994), Judicial Council of the Third Circuit, October. 27, 1993. Order Denying Petition for Review Jan. 14, 1994. Memorandum Opinion, Chief Judge Sloviter.

Chief Judge Carl E. Stewart relies on Judge Sloviter’s opinion that the complaint of judicial misconduct is “not cognizable under 28 U.S.C. Sec. 372(c).” Judge Sloviter further explained in 1993, and Judge Stewart cites in 2016, “The language of section 372(c)(3)(B) underlined above was added in 1990. It codified what has been reported to be the general practice of circuit chief judges to dismiss complaints under section 372(c) on the ground that a judge had left the bench, whether by death, retirement….”

There’s only one problem. As explained above, 28 U.S.C. Sec. 372(c) was rendered obsolete by the Judicial Improvements Act of 2002.

As a result of Judge Stewart’s reliance on Judge Sloviter's outdated opinion, Judge Hudspeth was able to evade sanctions and retain his full pension.

It is important to point out that “…what has been reported to be the general practice of circuit chief judges to dismiss complaints under section 372(c) on the ground that a judge had left the bench, whether by death, retirement…” is a common-law doctrine.

In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. Common law has no statutory basis.

Retirement is not an “intervening event.” It is judge-made law. More to the point, it is law made by judges for judges.

Addressing the “I Retire” Loophole in 28 U.S.C. § 351-364

The Judiciary Accountability Act of 2021, introduced in the House and Senate on July 29, 2021, would amend the statute by specifically providing: (a) the resignation, retirement from office, or death of a judge who is the subject of a complaint under section 351 shall not be grounds for (1) the dismissal of the complaint, or (2) the conclusion that the complaint is no longer necessary; and (b) the special committee shall complete its investigation and file a report without regard for the resignation, retirement from office, or death of the judge whose conduct is the subject of the complaint.”

S.2553 – Judiciary Accountability Act of 2021

Sponsor: Sen. Mazie K. Hirono (D-HI) (Introduced 07/29/2021).

To amend title 28, United States Code, to protect employees of the Federal judiciary from discrimination, and for other purposes.

SEC. 8. ACCOUNTABILITY FOR JUDICIAL MISCONDUCT.

“(d) Effect Of Resignation Or Retirement Of Judge. – Chapter 16 of title 28, United States Code, is amended –

(1) in section 352, by adding at the end the following:

(e) Effect Of Vacancy Of Office. – The resignation, retirement from office under chapter 17, or death of a judge who is the subject of a complaint under section 351 shall not be grounds for –

(1) the dismissal of the complaint under subsection (b)(1); or

(2) the conclusion that the complaint is no longer necessary under subsection (b)(2); and

(2) in section 353, by adding at the end the following:

(d) Effect Of Vacancy Of Office. – The special committee shall complete its investigation and file a report under subsection (c) without regard for the resignation, retirement from office under chapter 17, or death of the judge whose conduct is the subject of the complaint.”

The Judiciary Accountability Act of 2021 is certainly a step in the right direction. It would prohibit the ability of a miscreant federal judge to merely say “I retire” in order to evade punishment under 28 U.S.C. § 351-364. There is just one problem. The sanctions currently available are virtually meaningless: (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.

Moreover, if the bad federal judge retires at age 65 or later, he or she would still be guaranteed a full pension for life. Some commentators have suggested giving the judicial councils the power to remove a miscreant federal judge’s pension. I strongly disagree. As explained below, it is ludicrous to presume that “judges judging judges” is a viable solution.

The Congressional Power of Impeachment

Under our Constitution, the American people must look to the Congress to protect them from persons unfit to hold high office because of serious misconduct that has violated the public trust. Where, as here, the evidence overwhelmingly establishes that a Federal judge has committed impeachable offenses, our duty requires us to bring articles of impeachment and to try him before the United States Senate. (H.R. Rep. No. 111-427, “Impeachment of Judge G. Thomas Porteous, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 1031,” 111th Cong., 2d Sess. (2010)).

The congressional power of impeachment constitutes an important aspect of the various checks and balances that were built into the Constitution to preserve the separation of powers. It is a tool, entrusted to the House and Senate alone, to remove government officials in the other branches of government, who either abuse their power or engage in conduct that warrants their dismissal from an office of public trust.

The American public needs Congress to use its power of impeachment to hold miscreant judges accountable, thereby preserving the separation of powers and restoring public confidence in the integrity and impartiality of the judiciary.

Addressing the “I Retire” Loophole in Impeachment

As explained above, judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States. The resignation (self-removal from office) of a federal judge under investigation for impeachment often ends impeachment proceedings.

The impeachment of a federal judge may be initiated by any citizen, a U.S. Representative, or by a Complaint of Judicial Misconduct (28 U.S. Code § 351) which subsequently results in the Judicial Conference of the United States informing the U.S. House of Representatives that the impeachment of a judge may be warranted.

Congress must address the current ability of a miscreant federal judge to say “I retire” during impeachment proceedings by the Congress in order to evade punishment and (if he or she retires at age 65 or later) receive a pension for life.

Judges. Judging. Judges. Is. A. Bad. Idea.

Justice Neil Gorsuch’s Candid Comment

In February 2017, Judge Neil Gorsuch made the following comment to Nebraska Republican Senator Ben Sasse in response to President Trump‘s anti-judiciary attacks: “Any attack on brothers and sisters of the robe is an attack on all judges.”

I appreciate Associate Justice Gorsuch’s candor. It is clear that a federal judge, who desires to maintain the prestige of the bench and does not want to alienate his colleagues, would: (a) allow a fellow brother or sister of the robe to retire without punishment and still receive a full pension; (b) never consider initiating an impeachment proceeding against a fellow brother or sister of the robe; and (c) consider any complaint of misconduct or impeachment proceeding initiated against a fellow brother or sister of the robe from an outside party to be an attack on all judges.

Judicial Disciplinary Actions Taken (2010 – 2018)

On September 26, 2019, Bloomberg Law published an article titled, “Judges Policing Judges: True Disciplinary Actions Are Rare,” wherein the following data from the Administrative Offices of the U.S. Courts is instructive.

Types of Judicial Disciplinary Actions Taken By Circuit Courts (2010 – 2018)

Complaints Terminated – 10,957

Intervening Events (e.g., retirement) – 121

Voluntary Corrective Action – 21

Censure or Reprimand – 5

Corrective Action – 4

Informal Resolution – 1

Requesting Voluntary Retirement – 1

Suspension of Assignments – 1

Although 121 bad judges were allowed to retire with full pensions, not a single complaint of judicial misconduct was referred to the Judicial Conference to determine whether to certify the matter to Congress, which would then decide whether to initiate impeachment proceedings.

Allowing a miscreant judge to retire without punishment and still receive a full pension does not protect the integrity of the judicial branch and uphold the public trust.

Judiciary Informs Congress of Its Opposition to the Judiciary Accountability Act of 2021

On August 25, 2021, the Judiciary informed Congress that it opposes the proposed Judiciary Accountability Act. In a letter to key lawmakers, Judge Roslynn R. Mauskopf, secretary of the Judicial Conference of the United States, wrote that the bill “fails to recognize the robust safeguards that have been in place within the Judiciary to protect Judiciary employees, including law clerks, from wrongful conduct in the workplace, including protections against discrimination, harassment, retaliation, and abusive conduct.”

“Further, the bill interferes with the internal governance of the Third Branch; creates structures that compete with existing governing bodies and authorities within the Judiciary; and imposes intrusive requirements on Judicial Conference procedures,” Mauskopf wrote.

The Chief Justice of the United States is the presiding officer of the Judicial Conference. Membership is comprised of the chief judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit.

The fact that the members of the Judicial Conference oppose the Judiciary Accountability Act of 2021 (S.2553) indicates they agree with Justice Gorsuch: “Any attack on brothers and sisters of the robe is an attack on all judges.”