Proposed Amendments to the Federal Judicial Misconduct Rules: Comments and Suggestions

Hearing Before the Judicial Conference of the United States -- Committee on Judicial Conduct and Disability, October 30, 2014

U. of Pittsburgh Legal Studies Research Paper No. 2015-10

42 Pages Posted: 7 Apr 2015  

Arthur D. Hellman

University of Pittsburgh - School of Law

Date Written: January 23, 2015

Abstract

In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved a revised set of rules for handling complaints of misconduct or disability on the part of federal judges. Moving away from the decentralizing approach of the pre-2008 Illustrative Rules, the new rules were made binding on all of the federal judicial circuits.

On September 2, 2014, the Conference’s Committee on Judicial Conduct and Disability (Conduct Committee) issued a set of draft amendments to the Rules. The announcement invited comments on the proposed amendments. This statement was submitted in response to that invitation. The statement is in four parts. Part I provides some background. Part II discusses the policy changes proposed by the Committee. Part III addresses the special problems raised by “high-visibility” complaints. Part IV suggests some additional modest revisions in the Rules and flags issues that warrant the Committee’s attention in the future.

Most of the amendments in the published draft involve clarification or emphasis. But I have identified six revisions that do reflect changes of policy from the 2008 Rules. Five of the six reflect sound policy; they will serve to enhance transparency and strengthen procedural regularity. However, one proposed revision – an amendment that would allow tie votes in the Conduct Committee on petitions for review – is unwise. I urge the Committee to reconsider it.

Part IV addresses a variety of issues raised by the proposed draft and the Rules as originally adopted. These include: the chief judge’s obligation to “identify” a complaint based on public reports suggesting that a judge may have engaged in misconduct; judicial council authority to impose sanctions on complainants who abuse the process; disqualification of judges from proceedings under the 1980 Act; and making the Rules more user-friendly. The most detailed discussion involves two issues raised by the misconduct complaint against former District Judge Richard Cebull of Montana: judicial-council authority to conclude a proceeding and disclosure of judicial-council orders that have been vacated or modified.

Keywords: Federal Judicial Misconduct Statutes, Breyer Committee Report, Judicial Conduct, Judicial Misconduct, Federal Judges, Judicial Ethics, National Commission on Judicial Discipline and Removal, Rulemaking, United States Code Chapter 16, Reform, Judicial System, Federal Courts, Judicial Discipline

Suggested Citation

Hellman, Arthur D., Proposed Amendments to the Federal Judicial Misconduct Rules: Comments and Suggestions (January 23, 2015). Hearing Before the Judicial Conference of the United States -- Committee on Judicial Conduct and Disability, October 30, 2014; U. of Pittsburgh Legal Studies Research Paper No. 2015-10. Available at SSRN: https://ssrn.com/abstract=2554596

Arthur D. Hellman (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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