Institutional concerns

Acknowledging the challenge of overcoming employees’ fears of retaliation if they report a judge’s workplace misconduct, the Judicial Council for the U.S. Court of Appeals for the 10th Circuit stated that “the most effective way” to assuage those fears “is to demonstrate that the Judiciary’s reporting systems are effective at addressing misconduct.”  Therefore, although it concluded an investigation of a former magistrate judge for the District of New Mexico because her term had ended, it released an order that described the allegations and summarized “institutional concerns” the matter illustrated.  In re:  Complaint Under the Judicial Conduct and Disability Act, Order (10th Circuit Judicial Council September 14, 2022).

2 former law clerks and 2 anonymous individuals who had also worked for the judge filed a complaint alleging that the judge’s behavior created an abusive and hostile work environment.  In response, the judge denied that she created a hostile work environment but said that she was willing to take appropriate corrective action.

The Chief Judge of the 10th Circuit appointed a special committee to investigate.  The committee’s investigators interviewed everyone who had worked full-time for the judge in her 16 years on the bench, which included law clerks, judicial assistants, and courtroom deputies.  They also interviewed 4 of her judicial colleagues and 3 other individuals.

The committee concluded, based on “the source, nature, and consistency of the evidence,” that there was “reason to believe” that the judge had engaged in sanctionable misconduct, including “unpredictable and hypercritical outbursts; manipulation of staff to undermine judges and employees; frequent threats of termination or actual terminations; and derogatory and egregious statements about her own staff, other court employees, and judges.”

The investigators reported the committee’s preliminary views to the judge, who informed the district court judges.  She was up for re-appointment, and the judges voted not to reappoint her.  Because of the procedural requirements in the rules, the Council could not issue a final order on the merits before the expiration of the judge’s term and, therefore, concluded the complaint due to intervening events.

However, even when a complaint has been concluded, Judicial Councils have the authority to assess what conditions may “have enabled misconduct or prevented its discovery” and determine “what precautionary or curative steps could be undertaken to prevent its recurrence,” under a comment to Rule 20 of the federal Rules for Judicial Conduct and Judicial Disability Proceedings.

Based on the committee’s recommendation, the Council identified 2 problems:  “1) a lack of awareness about what constitutes abusive conduct and/or a hostile work environment, and 2) widespread fear of retaliation that deterred reporting.”

First, it noted that employees explained that they had never reported the judge “because they did not know if her behavior would constitute abusive conduct or a hostile work environment.”  In addition, other judges who were interviewed “were unaware of the breadth and nature” of her conduct and “questioned whether what little information they had rose to the level of misconduct or implicated their reporting obligations.”

Second and “perhaps more problematic,” the Council stated that even the employees who thought her behavior could constitute misconduct “did not report the conduct because they feared retaliation.”  The employees stated that they have relied on and continue to rely on the judge’s recommendation to secure other positions and advance their careers.  The Council noted that even some employees who had not worked for the judge for years and had moved out of state were still reluctant to participate in the investigation.

The Council described the training the circuit has provided to judges and employees on workplace conduct issues, but “to address the continuing lack of awareness of what specifically constitutes abusive conduct and a hostile work environment,” it announced additional training on “the practical application of these terms,” believing “this will make judges more mindful of their conduct and their colleagues’ conduct and give employees confidence in what behavior should be reported.”  The training for judges will include “appropriate and inappropriate workplace conduct, standards and definitions of abusive conduct and hostile work environment, judges’ reporting obligations . . . , the prohibition against retaliation, and the need to be aware of possible retaliatory efforts by a colleague.”  The training for employees will include those topics plus the many ways an employee can report wrongful conduct and retaliation.

The Council concluded:

Although the District of New Mexico voted not to reappoint Judge Garza before the Judicial Council could take remedial action on the complaint, the district judges’ vote was a direct result of the complainants’ courage in reporting the alleged misconduct, the . . . guidance [from the Director of Workplace Relations], and the Special Committee’s investigation.  The Judiciary, including this Circuit, has made progress in the area of workplace conduct, but it is clear that there is more work to do.  The Judicial Council will work with the Tenth Circuit’s Workplace Conduct Committee to determine what other measures should be taken to make this circuit an exemplary place to work.

Appropriate discourse or personal attack

Approving a resolution proposed by a special committee, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a district court judge for the first 2 sentences of a law review article he wrote entitled “The Roberts Court’s Assault on Democracy.”  Resolution of Complaints Against Adelman (7th Circuit Judicial Council June 22, 2020).  The article was published in March in the Harvard Law Review. 

The article begins:

By now it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes,” was a masterpiece of disingenuousness.  Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides.

According to the Council, the thesis of the article is that, in a number of decisions over the last 15 years, the U.S. Supreme Court has “undermined the rights of poor people and minorities to vote” and “increased the economic and political power of corporations and wealthy individuals,” resulting in “a form of government that is not as responsive as it should be to the will of the majority of the people.”

There were media reports about the article, and 3 individuals filed complaints.  For example, one stated:  “I don’t see how a party with a conservative background appearing before Judge Adelman could be confident that they would receive fair, even‐handed treatment.”

The Council noted that the complaints raised “competing policy considerations in an area of judicial ethics where there is ample room for disagreement.”

The nation has a long tradition of vigorous public debate over Supreme Court decisions, and judges, including judges in the district and circuit courts, have long participated in those debates.  Judges are able to bring special insight and perspective to those debates.  At the same time, judges also have special responsibilities stemming from their roles in dispensing even‐handed justice in all cases that come before them and in strengthening public confidence in the judiciary.

Noting that the judge drew much of his article “from dissenting opinions in the decisions he criticizes,” the decision stated that “judges criticize one another’s reasoning, sometimes harshly” and that the admonishment should not “be interpreted as suggesting that judges should be silenced from criticizing court decisions.”  The Council concluded that “the vast majority” of the judge’s “substantive criticism of Supreme Court decisions” was “well within the boundaries of appropriate discourse,” although it noted it was not “endorsing or disagreeing” with his views.

On the other hand, the Council explained, federal judges “need to write and speak in ways that will not interfere with their work as judges” or “with public perceptions that the judges will approach the cases before them fairly and impartially.”  It explained:

The opening two sentences could reasonably be understood by the public as an attack on the integrity of the Chief Justice rather than disagreement with his votes and opinions in controversial cases.  The attacks on Republican party positions could be interpreted, as the complainants have, as calling into question Judge Adelman’s impartiality in matters implicating partisan or ideological concerns.  While not addressed by specific rules of judicial conduct, these portions of the article do not promote public confidence in the integrity and impartiality of the judiciary.

In response to the complaints, the Council noted, the judge “tried to amend the article,” but it was too late, and offered to publicly acknowledge that “some points in the article are worded inappropriately,” to disavow “any intention to criticize the integrity of the Chief Justice or any other Justices,” and to reaffirm “his commitment to impartial administration of justice, in all cases of any type and with any parties.”  The Council also recognized that the judge “is a thoughtful and hardworking judge who has presided fairly over thousands of cases in his career.”

Finally, the Council noted that the public admonition would remind “all judges within the circuit of our obligations to ensure that judges’ public speaking and writing do not undermine public confidence in the fair administration of justice.”

Complaints like this, about judges’ non‐judicial writings, have been rare and should stay that way.  There is ample room for federal judges to speak and write about the law, including criticisms of past decisions, without prompting appropriate complaints.  Judges should be encouraged to do so consistent with Canon 4 for purposes of public and legal education.  At the same time, it behooves all federal judicial officers to speak and write about the law with special care for their responsibilities to the public and to the larger judicial system, including refraining from personal attacks.

Sexual harassment and fidelity to procedures

As discussed in a previous blog post, in September 2019, the Judicial Council for the U.S. Court of Appeals for the 10th Circuit publicly reprimanded and admonished Judge Carlos Murguia, a U.S. District Judge for the District of Kansas, for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, nonwork-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was on probation for state-court felony convictions; and (3) being habitually late for court proceedings and meetings for years.

A review of that decision was begun by the U.S. Judicial Conference Committee on Judicial Conduct and Disability, focusing on whether the judge’s conduct might be grounds for impeachment, including whether there was a pattern and practice of judicial misconduct and whether the judge’s “failure to cooperate in and lack of truthfulness during the misconduct proceedings, which unnecessarily delayed the proceedings and prevented fulsome corrective action, constituted additional judicial misconduct.”

However, the U.S. Judicial Conference Committee concluded the proceedings after the judge resigned.  The Committee has previously held that the Judicial Conduct and Disability Act does not apply when a judge is no  longer in office.  The Committee did not release the report of the special committee, did not make additional findings or conclusions, and did not describe the conduct that the Judicial Council had found constituted sexual harassment.  It did provide some additional details “to the extent necessary to demonstrate fidelity” to its procedures but only those that did not jeopardize the confidentiality and anonymity requested by the victims and witnesses.

Below is a timeline of the Murguia case:


4/2016             Judges in the District of Kansas begin receiving information from judicial employees about Judge Murguia and give that information to the Chief District Judge.

5/2016             The Chief District judge reports to the Chief Circuit Judge that a former employee of Judge Murguia alleges that he had sexually harassed her.

10/2016           The Chief Circuit Judge conducts an informal investigation; Judge Murguia expresses remorse and agrees to participate in assessment and treatment by a medical professional.

Sometime after 10/2016
The Circuit’s certified medical professional indicates that the judge had successfully completed treatment.


2/2017             The Chief Circuit Judge notifies Judge Murguia that, although there was credible evidence of misconduct, a formal complaint would not be filed against him because he had admitted his improper behavior, seemed willing to correct his behavior, and his evaluation and treatment had been successful.

11/2017           The Circuit learns of more allegations about Judge Murguia and hires a retired FBI investigator to investigate.


8/2018             Based on information gathered during the investigation, the Chief Circuit Judge identifies a complaint of judicial misconduct.

9/2018             The Chief Circuit Judge appoints a special committee to investigate.  14 former and current staff members are interviewed, including 3 judicial employees whom Judge Murguia had allegedly sexually harassed.


4/23/2019       The special committee holds a hearing that includes testimony by Judge Murguia.

7/2019             The special committee issues a report to the Judicial Council.

9/30/2019       The Judicial Council issues its reprimand and admonishment.


2/6/2020         In a letter to the secretary of the U.S. Judicial Conference, the Chief District Judge, and the Chief Circuit Judge, the House Judiciary Committee states that the Judicial Council’s order raises questions about “the adequacy of the Judiciary’s recent steps to better protect its employees from wrongful workplace conduct.”

2/18/2020       Judge Murguia resigns effective April 1.

3/3/2020         Based on his resignation, the U.S. Judicial Conference Committee concludes disciplinary proceedings against Judge Murguia.

3/6/2020         In a joint statement, several members of U.S. House argue that the U.S. Judicial Conference Committee’s order “unfortunately underscore[s] that the judiciary’s processes for handling workplace misconduct continue to fall short.”


“Transparency and a powerful disincentive”

Adopting the conclusions of a special committee, the 10th Circuit Judicial Council publicly reprimanded a U.S. District Judge for the District of Kansas for (1) giving preferential treatment and unwanted attention to female court employees through sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, often after work hours and late at night; (2) engaging in a years-long extramarital sexual relationship with a drug-using individual who was then on probation for state-court felony convictions and is now incarcerated for probation violations; and (3) being habitually late for court proceedings and meetings for years.  In re:  Complaint under the Judicial Conduct and Disability Act (Murguia), Order (Judicial Council for the U.S. Court of Appeals for the 10th Circuit September 30, 2019).  The Council also stated that, in a private letter, it was requiring the judge to take “certain corrective actions” to which he agreed.  The judge also agreed to waive his right to seek review of the order.  The special committee’s investigation included interviews with 23 people and a hearing at which the judge testified under oath.

(1) The committee found that the judge gave preferential treatment and unwanted attention to female employees of the judiciary “in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.  All of the harassed employees stated that they were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge.  One of the employees eventually told him explicitly to stop his harassing conduct, but he continued.”

(2) The committee found that the judge “engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions.”  The Council stated that a judge’s sexual affair, even with a convicted felon, is not always misconduct but agreed with the committee’s finding that the judge “placed himself in such a compromised position that he made himself susceptible to extortion” and that “given the risk of extortion and potential for embarrassment to the Judiciary, Judge Murguia’s relationship implicates Code of Conduct Canons 1 and 2.”

(3) The committee stated that the judge has been habitually late for court proceedings and meetings for years, noting general agreement among witnesses that he “was frequently late for court proceedings, often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms.”  The committee found that the judge’s regularly scheduled lunchtime basketball games was a repeated cause of his tardiness.  The committee noted that the judge’s tardiness persisted even though he had been “counseled about his tardiness fairly early in his federal judicial career . . . .”

The judge admitted that he engaged in the misconduct, apologized during the investigation and proceedings, and assured the Council that he would not engage in this or any other inappropriate conduct in the future.  The committee found no evidence that his misconduct continued after he was served with the complaint and noted he offered to take voluntary corrective action.

However, the Council noted, the judge had been less than candid with the committee, failing to disclose the extent of his misconduct when initially confronted with the allegations and admitting “allegations only when confronted with supporting documentary evidence.”  The Council concluded that “his apologies appeared more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused to the individuals involved and to the integrity of his office.”  The Council emphasized that the judge’s misconduct “is very serious and occurred over a lengthy period.”

The Council found that the judge’s conduct “was too serious and the importance of maintaining the integrity of the Judiciary in the mind of the public too important for a private reprimand.”  The Council concluded that, although a “public reprimand may cause embarrassment to the Judiciary, misconduct that rises to this level calls for transparency and a powerful disincentive.”  Noting that a public reprimand is the most severe sanction available it could impose, the Council also concluded that the matter was “insufficient to recommend the Judicial Conference refer this matter to Congress for impeachment” “considering the statutory requirement for certifying a misconduct matter for impeachment, . . . and the applicable constitutional standard of ‘high Crimes and Misdemeanors.’”

With respect to the sexual harassment allegations, the Council cited several provisions in the Conduct of Conduct for U.S. Judges and the Rules for Judicial-Conduct and Judicial-Disability Proceedings that were part of “a package of workplace conduct-related amendments” adopted in March 2019 by the U.S. Judicial Conference.  The 10th Circuit cited:

Canon 3B(4):  “A judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff.  A judge should not engage in any form of harassment of court personnel.  A judge should not retaliate against those who report misconduct.  A judge should hold court personnel under the judge’s direction to similar standards.”

Comment to Canon 3B(4):  “Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others.”

Rule 4(a)(2)(A):  “Cognizable misconduct includes:  . . . engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault.”

Federal judges – Top judicial ethics stories of 2015

Misconduct by a federal judge – or an allegation of such misconduct – is always a high profile matter, and discipline proceedings involving several federal judges and the revision of the discipline process itself were among the top judicial ethics stories of 2015.

In September, the U.S. Judicial Conference sent to the speaker of the House of Representatives its certification that the impeachment of former District Judge Mark Fuller may be warranted, based on the report of a special committee adopted by the 11th Circuit Judicial Council.  Fuller, who sat in the Middle District of Alabama, had been arrested in August 2014 on misdemeanor battery charges for beating his wife.  The criminal charges were dismissed following his compliance with a pre-trial diversion program.  He resigned effective August 2015.

Noting that the judge’s resignation may have obviated the need for certification in a case “with less egregious and protracted conduct,” the Conference stated its action was also a public censure of the judge’s “reprehensible conduct.”  The Conference found that:

  • Judge Fuller physically abused Kelli Fuller at least eight times, both before and after they were married, which included and culminated in the assault that took place on August 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia.
  • Judge Fuller made repeated statements under oath before the Special Committee that he never, at any time, hit, kicked, or punched Kelli Fuller, which were false and material under 18 U.S.C. § 1621 [the federal criminal perjury statute].
  • Judge Fuller made false statements to the Chief Judge of the Eleventh Circuit in late September 2010 in a way that caused a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice. These false statements, in combination with the actions outlined in (a) and (b), contributed to the overall determination that Judge Fuller’s conduct may constitute grounds for impeachment.
  • The conduct described in (a)-(c) has individually and collectively brought disrepute to the federal Judiciary.

* * *
In December, based on the report of a special committee, the 5th Circuit Judicial Council reprimanded District Judge Walter Smith for inappropriate and unwanted physical and non-physical sexual advances toward a court employee in 1998; the Council also directed that no new cases be assigned to the judge for 1 year.  In re Smith, Order and memorandum (December 4, 2015).  Judge Smith sits in the Western District of Texas.  The Council also found that the judge “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts” and “allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation.”  According to news reports, the complainant, an attorney, has asked that the decision to reprimand Judge Smith and not seek his impeachment be reviewed by the Committee on Judicial Conduct and Disability of the Judicial Conference.

* * *
In February, the Committee on Judicial Conduct and Disability of the Judicial Conference denied a petition for review filed by 13 individuals and public interest groups from the dismissal of their complaint alleging that Judge Edith Jones made statements during a public lecture on the death penalty that exhibited bias or related to the merits of pending cases.  In re:  Complaint of Judicial Misconduct (Jones) (February 19, 2015).  Judge Jones sits on the Court of Appeals for the 5th Circuit.  The speech was made at the University of Pennsylvania Law School on February 20, 2013.

The special counsel hired to investigate the complaint had found no recording of the lecture, and the special committee’s report, adopted by the Judicial Council of the D.C. Circuit, noted that, “although there is general agreement regarding the themes that Judge Jones discussed, the judge and the complainants sharply disagree about the wording and tone of many of her comments.”  The complaint alleged, for example, that the judge had stated that certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.  The special committee agreed that such suggestions would constitute misconduct but concluded that, in the absence of a recording and in light of the witnesses’ conflicting recollections, it could not “find, by a preponderance of the evidence, that Judge Jones made those comments in her initial remarks” and that, whatever her initial remarks, she “used the question-and-answer period to clarify that she did not adhere to such views.”

On review, the U.S. Judicial Conference Committee found no error in the Judicial Council’s conclusions.

* * *
In September, the Judicial Conference amended the Rules for Judicial-Conduct and Judicial-Disability Proceedings for federal judges, with “dozens of clarifications and restyling and policy changes.”  The Conference emphasized:

  • A new “requirement that chief judge and circuit judicial council final orders disposing of a misconduct or disability complaint be published on a court’s public website. . . . Previously the JC&D Rules only required that final orders be made public at the office of the circuit clerk or on the court’s public website.”
  • 2 new grounds for “cognizable misconduct:” “retaliating against complainants, witnesses, or others for their participation in the complaint process” and “refusing without good cause shown, to cooperate in the investigation of a complaint under these rules.”
  • “An expansion of the meaning of ‘disability’ so it may include ‘impairment of cognitive abilities that renders the judge unable to function effectively.’”

Problem-causing judges

Last month, the Mississippi Supreme Court removed a judge from office and fined him $3,500 for failing to follow the law in drug court and other misconduct.  Commission on Judicial Performance v. Thompson (Mississippi Supreme Court May 5, 2015).  (He has asked for re-consideration.)  Contrary to statute, participants in the judge’s drug court had been routinely kept in the program for more than 2 years, and the judge had enrolled participants from other jurisdictions that did not have drug courts even after receiving an opinion from the attorney general advising him not to do so.  In addition, without adequate notice or hearings, participants were arrested and jailed for “contempt of orders of the drug court” that were discussed at “staffing meetings” at which they were not present and even though they were in the program for offenses that were not punishable with jail time.  The Court noted that the judge’s “apparent defense . . .was that, because it was drug court in which incarceration was a ‘sanction,’ he did not have to use contempt-of-court procedures because ‘drug court is different from regular court.’”

Unfortunately, Judge Thompson is not the only drug court judge who apparently exaggerated the differences between problem-solving courts and traditional courts.  In March, based on his agreement not to serve in judicial office again, the Indiana Commission on Judicial Qualifications concluded its investigation of a former judge’s conduct and supervision of a county drug court program.  In the Matter of Jacobi, Stipulation and agreement (Indiana Commission on Judicial Qualifications March 13, 2015).  The Commission was investigating allegations that the judge had failed to advise participants that they had the right to an attorney before admitting to the violation of a drug court rule that could result in deprivation of liberty; that some drug court participants had spent unnecessary time in jail or were unlawfully detained because the judge had failed to supervise or train court staff; and that the judge had permitted a practice in which initial hearings on alleged drug court rule violations, work release violations, or crimes were not immediately scheduled after participants were arrested.

Last week, according to news reports, a state grand jury indicted now former judge Amanda Williams for making false statements and violating her oath of office by falsely stating during a hearing before the Georgia Judicial Qualifications Commission that she had not given directions to the sheriff’s office regarding the incarceration of a drug court participant.

In March 2011, the National Public Radio program “This American Life” broadcast an episode that concluded the way then-judge Williams ran her drug court violated “the basic philosophy of all drug courts.”  In November 2011, the Commission filed a notice of formal proceedings that alleged Judge Williams, in addition to other misconduct, had a practice of holding drug court participants indefinitely without a hearing and a policy of delaying their placement into treatment; showed favoritism to certain participants; engaged in a pattern of improper ex parte communications with regard to who would be admitted to drug court and acted as a “gatekeeper” for the drug court; expressed bias in criminal matters in the drug court; failed to be patient, dignified, and courteous; and made false representation to the Commission.  For example, the notice alleged that the judge had ordered Lindsey Dills confined “until further order of the court” for violating her drug court contract and directed that she was “not to have any telephone privileges and no one is to contact or visit her except [the drug court counselor]!   Nobody!  Total restriction!”  Dills remained in custody for approximately 73 days and attempted suicide while in solitary confinement.  In December 2011, based on the judge’s resignation and agreement not to serve in judicial office again, the Commission dismissed the notice.  In re Williams, Consent Order (Georgia Judicial Qualifications Commission December 19, 2011).

What happens when a judge on a problem-solving court becomes a judicial discipline problem will be one of the topics discussed in a session on judicial ethics and problem-solving courts at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015, in Chicago.  Registration is now available.  The session will also consider ethical guidance for judges on problem-solving courts about issues such as ex parte communications, demeanor, fund-raising, and disqualification.

Federal judicial discipline

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 11th 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 1st, 2nd, 3rd, 7th, 9th, 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.

Judges and domestic violence

Several reporters have called the Center for Judicial Ethics to ask how many judges have been removed for domestic violence since the arrest of Judge Mark Fuller, U.S. District Court for the Middle District of Alabama, on battery charges for allegedly beating his wife in an Atlanta hotel room and his subsequent plea agreement to pre-trial diversion.

No federal judges have been removed or even impeached for domestic violence, although it is not clear whether that means it is not considered an impeachable defense or whether the question has not arisen because no other federal judge has been charged with domestic violence or any judges so charged have resigned or retired before impeachment could be considered.  The Federal Judicial Center has a list of impeachments.  There have been 15 impeachments of federal judges in the country’s 225 years; only eight led to conviction and removal; four of the other judges were acquitted, and three resigned so the articles of impeachment were dismissed.  The Center is not aware of any cases in which federal judges have been publicly disciplined for domestic violence.  The U.S. Court of Appeals for the 11th Circuit has ordered that all cases pending before Judge Fuller be immediately re-assigned to other judges and that no new legal matter be assigned to him.  According to news reports, Judge Fuller has been asked to explain his conduct to the Chief Judge, and a nine-judge committee has been appointed to handle the investigation, the first steps in the federal judicial discipline process.

There have been state judges or former judges publicly disciplined for domestic violence, although none have been removed, at least in the last 24 years.  A list of those cases is below.

The Georgia Judicial Qualifications Commission, with the consent of the judge, made public the fact that it had privately reprimanded a judge but not the content of the reprimand.  The report of disposition states that the Commission matter originated with media reports that the judge had been arrested based on allegations he engaged in a physical altercation with his wife.  Subsequently, the judge and the special prosecutor agreed that the charges would be dismissed based upon his pre-trial diversion agreement to attend marital and stress counseling.  In re Weaver, Report of Disposition (Georgia Judicial Qualifications Commission July 18, 2012) (

Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly censured a former judge for committing domestic battery against his now ex-wife and having been convicted of the charge arising from the incident; the Commission also prohibited him from seeking and accepting judicial office in Nevada for four years.  He lost his re-election bid.  In the Matter of Abbatangelo, Findings of Fact, Conclusions of Law, Consent Order of Discipline (Nevada Commission on Judicial Discipline March 30, 2011) (–Abbatangelo%202011.pdf).

The Ohio Supreme Court suspended a judge’s license to practice for one year, but stayed the suspension with conditions, for two convictions of disorderly conduct because of physical altercations with his girlfriend.  Disciplinary Counsel v. Russo, 923 N.E.2d 144 (Ohio 2010).

Adopting the presentment of the Advisory Committee on Judicial Conduct to which the judge had consented, the New Jersey Supreme Court censured a former judge for domestic violence and causing a motor vehicle accident while driving in an intoxicated condition.  In the Matter of Paragano, Order (New Jersey Supreme Court January 30, 2007).

Approving a consent to censure based on stipulated facts, the Oregon Supreme Court publicly censured a judge who had pled guilty to assault for recklessly causing physical injury to his wife and entered into the domestic violence deferred sentencing program.  In re Moultrie, 139 P.3d 955 (Oregon 2006).

Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a part-time judge who had angrily confronted his wife, waved a knife close to her throat, and threatened to run her through.  In the Matter of Roepe, Determination (New York State Commission on Judicial Conduct June 27, 2001) (

The Washington Supreme Court censured a former judge and suspended him from office until the end of his term for intentionally striking or pushing his wife, causing her to fall.  The court also ordered that the judge complete a domestic violence program before he could serve in any future judicial capacity.  In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Pursuant to a stipulation in which the judge admitted the allegations of the complaint filed by the Judicial Commission, acknowledged that he had no defense to those allegations, and agreed that the court might impose an appropriate sanction, the Wisconsin Supreme Court publicly reprimanded a former judge for battering his wife and causing her bodily harm.  The judge had run for re-election after the conduct had occurred and was defeated.  In the Matter of Crivello, 564 N.W.2d 785 (Wisconsin 1997).

In a stipulation and agreement between the Washington State Commission on Judicial Conduct and a judge who had twice intentionally struck and caused bodily harm to his then-spouse and entered a plea of guilty to two counts of assault, the judge agreed and stipulated to resign and terminate his judicial duties no later than December 1, 1993.  He also agreed not to seek or serve in any judicial office in Washington unless the Supreme Court granted a petition for reinstatement of eligibility.  In re Perkins, Stipulation and Agreement (Washington State Commission on Judicial Conduct October 21, 1993) (

More federal transparency

The U.S. Judicial Conference Committee on Judicial Conduct and Disability has released for public comment a draft of proposed amendments to the rules for judicial conduct and disability proceedings and has scheduled a public hearing for October 30 in D.C. The committee explained that the draft amendments “are designed to make the Act’s complaint process more effective and efficient, improve its transparency, clarify language in the JCD Rules, and fill procedural gaps. They deal with publication requirements, varieties of misconduct and disability, potential remedies, special-committee procedures, appeal rights, consultation options, and other matters.”

One of the proposed changes involves only switching one small word for another small word, but it could make a big improvement in transparency in some circuits. Where Rule 24b now states that final orders “must be made public by placing them in a publicly accessible file in the office of the circuit clerk or by placing the orders on the court’s public website,” under the proposed amendments, final orders “must be made public by placing them in a publicly accessible file in the office of the circuit clerk and by placing the orders on the court’s public website” (emphasis added). Commentary emphasizes that “Rule 24(b) makes clear that circuits must post on their external websites all orders required to be made public . . . .” (In the federal discipline process, unlike most states, all final orders are public although, if the complaint is dismissed or if a private censure or reprimand is issued, the judge’s name is not disclosed in the publicly available materials. For more about the federal judicial discipline process, visit the Center’s web-site.)

Many federal circuits already publish final orders on their web-sites, for example, the 1st, the 3rd, the 7th, the 9th, the 10th, and D.C.