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.


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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.


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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.

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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) (www.gajqc.com/news.cfm).

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) (http://judicial.state.nv.us/Finding%20of%20Fact–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) (www.scjc.state.ny.us/).

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) (www.cjc.state.wa.us).

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.