According to news reports, an investigative committee of federal judges has held a hearing on misconduct allegations against Judge Mark Fuller, who sits on the U.S. District Court for the Middle District of Alabama.  (Although the proceedings are supposed to be confidential at this point, the judge’s attorney apparently has spoken to reporters.)  The investigation of Judge Fuller began last year after he was arrested following an altercation with his then-wife in an Atlanta hotel room; he claims self-defense.  The criminal charges against him have been dismissed following his compliance with the requirements of a pre-trial diversion program.  There have been many calls for his resignation.  The chair of the U.S. Senate Judiciary Committee has requested and received up-dates from the 11^th Circuit about the investigation.

In anticipation of a possible public decision later this year, this post will describe federal judicial discipline procedures under the Judicial Conduct and Disability Act of 1980.  28 U.S.C.A. §§ 351-364.  The recently revamped U.S. Courts web-site has a great deal of information on the process, including links to the circuit web-sites and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.  (In September 2014, a draft of proposed amendments to the Rules was released for public comment.)

Under the Act, any person may file with the clerk of the court of appeals for the circuit in which a judge sits a written complaint alleging that the judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” or “is unable to discharge all duties of office by reason of mental or physical disability.”  The chief judge of the circuit reviews the complaints.  The chief judge may also “identify a complaint” against a judge in a written order stating reasons.

After reviewing a complaint (and engaging in a limited inquiry if necessary), the chief judge will dismiss the complaint; conclude the proceeding if corrective action has been taken or if an intervening event makes action unnecessary (such as the judge’s retirement, resignation, or death); or appoint a special committee to investigate.  Like most complaints against state judges, most complaints against federal judges are dismissed.  The most frequent grounds for dismissal are that the allegations are “directly related to the merits of a decision or procedural ruling” or lack sufficient evidence to raise an inference that misconduct has occurred.

If a complaint is not dismissed, to investigate the allegations, the chief judge appoints a special committee comprised of the chief judge and equal numbers of circuit and district judges from the circuit.  The committee may hold a hearing.  The special committee makes findings and recommendations that are filed with the circuit judicial council.

After considering the special committee’s report, the judicial council may order further investigation; dismiss the complaint; certify the disability of the judge; request that the judge voluntarily retire; order that no further cases be assigned to the judge temporarily; privately censure or reprimand the judge; publicly censure or reprimand the judge; or order other appropriate action.

If there might be grounds for impeachment, a judicial council may refer the special committee’s report to the U.S. Judicial Conference Committee.  District and circuit judges cannot be removed under the Act, but the U.S. Judicial Conference Committee can refer a complaint to the House of Representatives for consideration of impeachment.  (A judicial council can order a bankruptcy judge removed and can order a chief district court judge to initiate removal proceedings for a magistrate judge.)

There are several significant differences between state judicial discipline proceedings and the federal process.

• The federal system does not have permanent, established agencies to review and dismiss or, when necessary, investigate and prosecute complaints like the 51 judicial conduct commissions in the states and D.C.
• No non-judge has a role in the decision-making in federal judicial discipline proceedings. The states have lay people and (except in West Virginia) non-judge attorneys involved in the process.
• If a complaint against a federal judge is dismissed, the chief judge’s order is public (without disclosure of the judge’s name), and many circuits (for example, the 1^st, 2^nd, 3^rd, 7^th, 9^th, and D.C.) have begun publishing those orders on their web-sites. In all but a handful of states, dismissal orders are confidential.  In only a few, dismissal orders available for public inspection, and only the Arizona Commission on Judicial Conduct and the Vermont Judicial Conduct Board post the orders (without disclosing the judge’s name) on-line.
• If a complaint against a state judge is dismissed, a complainant has no avenue for review or appeal although in some states the complainant can ask the commission to reconsider. In contrast, if a complaint against a federal judge is dismissed, the complainant can petition for review to the circuit judicial council, which can affirm or return the matter to the chief judge for further inquiry or appointment of a special committee.  Further, the complainant as well as the judge may petition the U.S. Judicial Conference Committee for review of the action taken by a judicial council based on a report of a special committee.

Recent actions by the U.S. Judicial Conference Committee:

In re Complaint of Judicial Misconduct (Cebull), 751 F.3d 611 (2014).  Granting a petition for review filed by a complainant, the U.S. Judicial Conference Committee adopted and published an order of the 9th Circuit Judicial Council publicly reprimanding a former judge for racist and political e-mails sent from his court e-mail account.

In re Complaint of Judicial Misconduct (Martin), 747 F.3d 869 (2014).  Denying a former judge’s petition, the U.S. Judicial Conference Committee ordered the publication of an order of the 2nd Circuit Judicial Council dismissing a complaint about the judge’s questionable travel expense requests but referring the complaint to the Public Integrity Section of the Department of Justice.

In re:  Complaint of Judicial Misconduct (Jones) (February 19, 2015).  Denying a petition for review filed by 13 individuals and public interest groups from an order of the Judicial Council of the D.C. Circuit, the U.S. Judicial Conference Committee adopted a special committee’s report dismissing complaints alleging that a judge exhibited bias toward certain classes of judicial claimants and claims or related to the merits of pending cases during a public lecture on the death penalty at the University of Pennsylvania Law School.