[House Report 107-459]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-459
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JUDICIAL IMPROVEMENTS ACT OF 2002
_______
May 14, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 3892]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3892) to amend title 28, United States Code, to make
certain modifications in the judicial discipline procedures,
and for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 7
Background and Need for the Legislation.......................... 7
Hearings......................................................... 8
Committee Consideration.......................................... 9
Vote of the Committee............................................ 9
Committee Oversight Findings..................................... 9
Performance Goals and Objectives................................. 9
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Constitutional Authority Statement............................... 11
Section-by-Section Analysis and Discussion....................... 11
Changes in Existing Law Made by the Bill, as Reported............ 20
Markup Transcript................................................ 36
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Judicial Improvements Act of 2002''.
SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.
(a) In General.--Part I of title 28, United States Code, is amended
by inserting after chapter 15 the following new chapter:
``CHAPTER 16--COMPLAINTS AGAINST JUDGES AND JUDICIAL DISCIPLINE
``Sec.
``351. Complaints; judge defined.
``352. Review of complaint by chief judge.
``353. Special committees.
``354. Action by judicial council.
``355. Action by Judicial Conference.
``356. Subpoena power.
``357. Review of orders and actions.
``358. Rules.
``359. Restrictions.
``360. Disclosure of information.
``361. Reimbursement of expenses.
``362. Other provisions and rules not affected.
``363. Court of Federal Claims, Court of International Trade, Court of
Appeals for the Federal Circuit.
``364. Effect of felony conviction.
``Sec. 351. Complaints; judge defined
``(a) Filing of Complaint by Any Person.--Any person alleging that
a judge has engaged in conduct prejudicial to the effective and
expeditious administration of the business of the courts, or alleging
that such judge is unable to discharge all the duties of office by
reason of mental or physical disability, 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.
``(b) Identifying Complaint by Chief Judge.--In the interests of
the effective and expeditious administration of the business of the
courts and on the basis of information available to the chief judge of
the circuit, the chief judge may, by written order stating reasons
therefor, identify a complaint for purposes of this chapter and thereby
dispense with filing of a written complaint.
``(c) Transmittal of Complaint.--Upon receipt of a complaint filed
under subsection (a), the clerk shall promptly transmit the complaint
to the chief judge of the circuit, or, if the conduct complained of is
that of the chief judge, to that circuit judge in regular active
service next senior in date of commission (hereafter, for purposes of
this chapter only, included in the term `chief judge'). The clerk shall
simultaneously transmit a copy of the complaint to the judge whose
conduct is the subject of the complaint. The clerk shall also transmit
a copy of any complaint identified under subsection (b) to the judge
whose conduct is the subject of the complaint.
``(d) Definitions.--In this chapter--
``(1) the term `judge' means a circuit judge, district
judge, bankruptcy judge, or magistrate judge; and
``(2) the term `complainant' means the person filing a
complaint under subsection (a) of this section.
``Sec. 352. Review of complaint by chief judge
``(a) Expeditious Review; Limited Inquiry.--The chief judge shall
expeditiously review any complaint received under section 351(a) or
identified under section 351(b). In determining what action to take,
the chief judge may conduct a limited inquiry for the purpose of
determining--
``(1) whether appropriate corrective action has been or can
be taken without the necessity for a formal investigation; and
``(2) whether the facts stated in the complaint are either
plainly untrue or are incapable of being established through
investigation.
For this purpose, the chief judge may request the judge whose conduct
is complained of to file a written response to the complaint. Such
response shall not be made available to the complainant unless
authorized by the judge filing the response. The chief judge or his or
her designee may also communicate orally or in writing with the
complainant, the judge whose conduct is complained of, and any other
person who may have knowledge of the matter, and may review any
transcripts or other relevant documents. The chief judge shall not
undertake to make findings of fact about any matter that is reasonably
in dispute.
``(b) Action by Chief Judge Following Review.--After expeditiously
reviewing a complaint undersubsection (a), the chief judge, by written
order stating his or her reasons, may--
``(1) dismiss the complaint--
``(A) if the chief judge finds the complaint to
be--
``(i) not in conformity with section
351(a);
``(ii) directly related to the merits of a
decision or procedural ruling; or
``(iii) frivolous, lacking sufficient
evidence to raise an inference that misconduct
has occurred, or containing allegations which
are incapable of being established through
investigation; or
``(B) when a limited inquiry conducted under
subsection (a) demonstrates that the allegations in the
complaint lack any factual foundation or are
conclusively refuted by objective evidence; or
``(2) 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.
The chief judge shall transmit copies of the written order to the
complainant and to the judge whose conduct is the subject of the
complaint.
``(c) Review of Orders of Chief Judge.--A complainant or judge
aggrieved by a final order of the chief judge under this section may
petition the judicial council of the circuit for review thereof. The
denial of a petition for review of the chief judge's order shall be
final and conclusive and shall not be judicially reviewable on appeal
or otherwise.
``(d) Referral of Petitions for Review to Panels of the Judicial
Council.--Each judicial council may, pursuant to rules prescribed under
section 358, refer a petition for review filed under subsection (c) to
a panel of no fewer than 5 members of the council, at least 2 of whom
shall be district judges.
``Sec. 353. Special committees
``(a) Appointment.--If the chief judge does not enter an order
under section 352(b), the chief judge shall promptly--
``(1) appoint himself or herself and equal numbers of
circuit and district judges of the circuit to a special
committee to investigate the facts and allegations contained in
the complaint;
``(2) certify the complaint and any other documents
pertaining thereto to each member of such committee; and
``(3) provide written notice to the complainant and the
judge whose conduct is the subject of the complaint of the
action taken under this subsection.
``(b) Change in Status or Death of Judges.--A judge appointed to a
special committee under subsection (a) may continue to serve on that
committee after becoming a senior judge or, in the case of the chief
judge of the circuit, after his or her term as chief judge terminates
under subsection (a)(3) or (c) of section 45. If a judge appointed to a
committee under subsection (a) dies, or retires from office under
section 371(a), while serving on the committee, the chief judge of the
circuit may appoint another circuit or district judge, as the case may
be, to the committee.
``(c) Investigation by Special Committee.--Each committee appointed
under subsection (a) shall conduct an investigation as extensive as it
considers necessary, and shall expeditiously file a comprehensive
written report thereon with the judicial council of the circuit. Such
report shall present both the findings of the investigation and the
committee's recommendations for necessary and appropriate action by the
judicial council of the circuit.
``Sec. 354. Action by judicial council
``(a) Actions Upon Receipt of Report.--
``(1) Actions.--The judicial council of a circuit, upon
receipt of a report filed under section 353(c)--
``(A) may conduct any additional investigation
which it considers to be necessary;
``(B) may dismiss the complaint; and
``(C) if the complaint is not dismissed, shall take
such action as is appropriate to assure the effective
and expeditious administration of the business of the
courts within the circuit.
``(2) Description of possible actions if complaint not
dismissed.--
``(A) In general.--Action by the judicial council
under paragraph (1)(C) may include--
``(i) ordering that, on a temporary basis
for a time certain, no further cases be
assigned to the judge whose conduct is the
subject of a complaint;
``(ii) censuring or reprimanding such judge
by means of private communication; and
``(iii) censuring or reprimanding such
judge by means of public announcement.
``(B) For article iii judges.--If the conduct of a
judge appointed to hold office during good behavior is
the subject of the complaint, action by the judicial
council under paragraph (1)(C) may include--
``(i) certifying disability of the judge
pursuant to the procedures and standards
provided under section 372(b); and
``(ii) requesting that the judge
voluntarily retire, with the provision that the
length of service requirements under section
371 of this title shall not apply.
``(C) For magistrate judges.--If the conduct of a
magistrate judge is the subject of the complaint,
action by the judicial council under paragraph (1)(C)
may include directing the chief judge of the district
of the magistrate judge to take such action as the
judicial council considers appropriate.
``(3) Limitations on judicial council regarding removals.--
``(A) Article iii judges.--Under no circumstances
may the judicial council order removal from office of
any judge appointed to hold office during good
behavior.
``(B) Magistrate and bankruptcy judges.--Any
removal of a magistrate judge under this subsection
shall be in accordance with section 631 and any removal
of a bankruptcy judge shall be in accordance with
section 152.
``(4) Notice of action to judge.--The judicial council
shall immediately provide written notice to the complainant and
to the judge whose conduct is the subject of the complaint of
the action taken under this subsection.
``(b) Referral to Judicial Conference.--
``(1) In general.--In addition to the authority granted
under subsection (a), the judicial council may, in its
discretion, refer any complaint under section 351, together
with the record of any associated proceedings and its
recommendations for appropriate action, to the Judicial
Conference of the United States.
``(2) Special circumstances.--In any case in which the
judicial council determines, on the basis of a complaint and an
investigation under this chapter, or on the basis of
information otherwise available to the judicial council, that a
judge appointed to hold office during good behavior may have
engaged in conduct--
``(A) which might constitute one or more grounds
for impeachment under article II of the Constitution,
or
``(B) which, in the interest of justice, is not
amenable to resolution by the judicial council,
the judicial council shall promptly certify such determination,
together with any complaint and a record of any associated
proceedings, to the Judicial Conference of the United States.
``(3) Notice to complainant and judge.--A judicial council
acting under authority of this subsection shall, unless
contrary to the interests of justice, immediately submit
written notice to the complainant and to the judge whose
conduct is the subject of the action taken under this
subsection.
``Sec. 355. Action by Judicial Conference
``(a) In General.--Upon referral or certification of any matter
under section 354(b), the Judicial Conference, after consideration of
the prior proceedings and such additional investigation as it considers
appropriate, shall by majority vote take such action, as described in
section 354(a)(1)(C) and (2), as it considers appropriate.
``(b) If Impeachment Warranted.--
``(1) In general.--If the Judicial Conference concurs in
the determination of the judicial council, or makes its own
determination, that consideration of impeachment may be
warranted, it shall so certify and transmit the determination
and the record of proceedings to the House of Representatives
for whatever action the House of Representatives considers to
be necessary. Upon receipt of the determination and record of
proceedings in the House of Representatives, the Clerk of the
House of Representatives shall make available to the public the
determination and any reasons for the determination.
``(2) In case of felony conviction.--If a judge has been
convicted of a felony under State or Federal law and has
exhausted all means of obtaining direct review of the
conviction, or the time for seeking further direct review of
the conviction has passed and no such review has been sought,
the Judicial Conference may, by majority vote and without
referral or certification under section 354(b), transmit to the
House of Representatives a determination that consideration of
impeachment may be warranted, together with appropriate court
records, for whatever action the House of Representatives
considers to be necessary.
``Sec. 356. Subpoena power
``(a) Judicial Councils and Special Committees.--In conducting any
investigation under this chapter, the judicial council, or a special
committee appointed under section 353, shall have full subpoena powers
as provided in section 332(d).
``(b) Judicial Conference and Standing Committees.--In conducting
any investigation under this chapter, the Judicial Conference, or a
standing committee appointed by the Chief Justice under section 331,
shall have full subpoena powers as provided in that section.
``Sec. 357. Review of orders and actions
``(a) Review of Action of Judicial Council.--A complainant or judge
aggrieved by an action of the judicial council under section 354 may
petition the Judicial Conference of the United States for review
thereof.
``(b) Action of Judicial Conference.--The Judicial Conference, or
the standing committee established under section 331, may grant a
petition filed by a complainant or judge under subsection (a).
``(c) No Judicial Review.--Except as expressly provided in this
section and section 352(c), all orders and determinations, including
denials of petitions for review, shall be final and conclusive and
shall not be judicially reviewable on appeal or otherwise.
``Sec. 358. Rules
``(a) In General.--Each judicial council and the Judicial
Conference may prescribe such rules for the conduct of proceedings
under this chapter, including the processing of petitions for review,
as each considers to be appropriate.
``(b) Required Provisions.--Rules prescribed under subsection (a)
shall contain provisions requiring that--
``(1) adequate prior notice of any investigation be given
in writing to the judge whose conduct is the subject of a
complaint under this chapter;
``(2) the judge whose conduct is the subject of a complaint
under this chapter be afforded an opportunity to appear (in
person or by counsel) at proceedings conducted by the
investigating panel, to present oral and documentary evidence,
to compel the attendance of witnesses or the production of
documents, to cross-examine witnesses, and to present argument
orally or in writing; and
``(3) the complainant be afforded an opportunity to appear
at proceedings conducted by the investigating panel, if the
panel concludes that the complainant could offer substantial
information.
``(c) Procedures.--Any rule prescribed under this section shall be
made or amended only after giving appropriate public notice and an
opportunity for comment. Any such rule shall be a matter of public
record, and any such rule promulgated by a judicial council may be
modified by the Judicial Conference. No rule promulgated under this
section may limit the period of time within which a person may file a
complaint under this chapter.
``Sec. 359. Restrictions
``(a) Restriction on Individuals Who Are Subject of
Investigation.--No judge whose conduct is the subject of an
investigation under this chapter shall serve upon a special committee
appointed under section 353, upon a judicial council, upon the Judicial
Conference, or upon the standing committee established under section
331, until all proceedings under this chapter relating to such
investigation have been finally terminated.
``(b) Amicus Curiae.--No person shall be granted the right to
intervene or to appear as amicus curiae in any proceeding before a
judicial council or the Judicial Conference under this chapter.
``Sec. 360. Disclosure of information
``(a) Confidentiality of Proceedings.--Except as provided in
section 355, all papers, documents, and records of proceedings related
to investigations conducted under this chapter shall be confidential
and shall not be disclosed by any person in any proceeding except to
the extent that--
``(1) the judicial council of the circuit in its discretion
releases a copy of a report of a special committee under
section 353(c) to the complainant whose complaint initiated the
investigation by that special committee and to the judge whose
conduct is the subject of the complaint;
``(2) the judicial council of the circuit, the Judicial
Conference of the United States, or the Senate or the House of
Representatives by resolution, releases any such material which
is believed necessary to an impeachment investigation or trial
of a judge under article I of the Constitution; or
``(3) such disclosure is authorized in writing by the judge
who is the subject of the complaint and by the chief judge of
the circuit, the Chief Justice, or the chairman of the standing
committee established under section 331.
``(b) Public Availability of Written Orders.--Each written order to
implement any action under section 354(a)(1)(C), which is issued by a
judicial council, the Judicial Conference, or the standing committee
established under section 331, shall be made available to the public
through the appropriate clerk's office of the court of appeals for the
circuit. Unless contrary to the interests of justice, each such order
shall be accompanied by written reasons therefor.
``Sec. 361. Reimbursement of expenses
``Upon the request of a judge whose conduct is the subject of a
complaint under this chapter, the judicial council may, if the
complaint has been finally dismissed under section 354(a)(1)(B),
recommend that the Director of the Administrative Office of the United
States Courts award reimbursement, from funds appropriated to the
Federal judiciary, for those reasonable expenses, including attorneys'
fees, incurred by that judge during the investigation which would not
have been incurred but for the requirements of this chapter.
``Sec. 362. Other provisions and rules not affected
``Except as expressly provided in this chapter, nothing in this
chapter shall be construed to affect any other provision of this title,
the Federal Rules of Civil Procedure, the Federal Rules of Criminal
Procedure, the Federal Rules of Appellate Procedure, or the Federal
Rules of Evidence.
``Sec. 363. Court of Federal Claims, Court of International Trade,
Court of Appeals for the Federal Circuit
``The United States Court of Federal Claims, the Court of
International Trade, and the Court of Appeals for the Federal Circuit
shall each prescribe rules, consistent with the provisions of this
chapter, establishing procedures for the filing of complaints with
respect to the conduct of any judge of such court and for the
investigation and resolution of such complaints. In investigating and
taking action with respect to any such complaint, each such court shall
have the powers granted to a judicial council under this chapter.
``Sec. 364. Effect of felony conviction
``In the case of any judge or judge of a court referred to in
section 363 who is convicted of a felony under State or Federal law and
has exhausted all means of obtaining direct review of the conviction,
or the time for seeking further direct review of the conviction has
passed and no such review has been sought, that judge shall not hear
cases unless the judicial council of the circuit (or, in the case of a
judge of a court referred to in section 363, that court) determines
otherwise.''.
(b) Conforming Amendment.--The table of chapters for part I of
title 28, United States Code, is amended by inserting after the item
relating to chapter 15 the following new item:
``16. Complaints against judges and judicial discipline..... 351''.
SEC. 3. TECHNICAL AMENDMENTS.
(a) Retirement for Disability.--(1) Section 372 of title 28, United
States Code, is amended--
(A) in the section caption by striking ``; judicial
discipline''; and
(B) by striking subsection (c).
(2) The item relating to section 372 in the table of sections for
chapter 17 of title 28, United States Code, is amended by striking ``;
judicial discipline''.
(b) Judicial Conference.--Section 331 of title 28, United States
Code, is amended in the fourth undesignated paragraph by striking
``section 372(c)'' each place it appears and inserting ``chapter 16''.
(c) Judicial Councils.--Section 332 of title 28, United States
Code, is amended--
(1) in subsection (d)(2)--
(A) by striking ``section 372(c) of this title''
and inserting ``chapter 16 of this title''; and
(B) by striking ``372(c)(4)'' and inserting
``353''; and
(2) by striking the second subsection designated as
subsection (h).
(d) Recall of Bankruptcy Judges and Magistrate Judges.--Section
375(d) of title 28, United States Code, is amended by striking
``section 372(c)'' and inserting ``chapter 16''.
(e) Director of the Administrative Office of the United States
Courts.--Section 604 of title 28, United States Code, is amended--
(1) in subsection (a)(20)--
(A) in subparagraph (B), by striking ``372(c)(11)''
and inserting ``358''; and
(B) in subparagraph (C), by striking ``372(c)(15)''
and inserting ``360(b)''; and
(2) in subsection (h)--
(A) in paragraph (1), by striking ``section 372''
each place it appears and inserting ``chapter 16''; and
(B) in paragraph (2), by striking ``section
372(c)'' and inserting ``chapter 16''.
(f) Court of Appeals for Veterans Claims.--Section 7253(g) of title
38, United States Code, is amended--
(1) in paragraph (1)--
(A) by striking ``section 372(c)'' and inserting
``chapter 16''; and
(B) by striking ``such section'' and inserting
``such chapter'';
(2) in paragraph (2)--
(A) in the first sentence, by striking ``paragraphs
(7) through (15) of section 372(c)'' and inserting
``sections 354(b) through 360''; and
(B) in the second sentence, by striking ``paragraph
(7) or (8) of section 372(c)'' and inserting ``section
354(b) or 355''; and
(3) in paragraph (3)(B), by striking ``372(c)(16)'' and
inserting ``361''.
Purpose and Summary
The purpose of H.R. 3892, the ``Judicial Improvements Act
of 2002,'' is to reorganize and clarify the existing statutory
mechanism that allows individuals to file complaints against
Article III judges. These reforms will offer more guidance to
circuit chief judges when evaluating individual complaints,
while providing individuals with more insight as to the
disposition of their cases. The overall reorganization will
make the process of learning about and filing a complaint more
user-friendly.
Background and Need for the Legislation
The statutory mechanism by which citizens may register
complaints against sitting Federal judges is the ``Judicial
Councils Reform and Judicial Conduct and Disability Act of
1980'' (the ``Act'' or the ``1980 Act'').\1\ One of the
contributors to the development and implementation of the Act
observed that
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\1\ 28 U.S.C. Sec. 372(c).
[it] was the product of extensive dialogues between the
legislative and judicial branches of government.
Congress made it . . . evident to the judiciary that
there be in place a formal and credible supplement to
the impeachment process for resolving complaints of
misconduct or disability brought against Federal
judges, while the judiciary revealed to Congress its
concern that any such system not prove to be a cure
worse than the disease. . . . The 1980 Act recognized
that judicial independence and public accountability
are not mutually exclusive. [It] satisfied the
constitutional parameters by asking the judiciary to
self-regulate and by reserving removal authority to the
House and Senate. The Act establishes procedures and
mechanisms within the judicial branch to consider and
respond to complaints against judges. Most complaints
are handled initially by the chief judges of the
circuits and then by the judicial councils of the
circuits, but when impeachable offenses are identified,
the councils and the Judicial Conference are empowered
to refer the matter directly to the Congress.\2\
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\2\ Operations of Federal Judicial Misconduct Statutes: Hearings
Before the Subcomm. On Courts, the Internet, and Intellectual Property
of the House Comm. on the Judiciary, 107th Cong., 1st Sess.
[hereinafter ``Subcommittee Hearing''] 56, 58 (testimony of Michael J.
Remington).
The Act and its self-regulatory construct, for the most
part, have been generally well-received over the past 22 years
by Congress, the Judiciary, and legal critics. At the same
time, and not surprisingly, it has also inspired a body of
scholarly critique and evaluation \3\ which has identified
select provisions within the statute that could be improved
upon to ensure that legitimate complaints are more thoroughly
evaluated without diminishing the independence of the
Judiciary.
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\3\ See Report of the National Commission on Judicial Discipline
and Removal (August 1993), and Jeffrey N. Barr & Thomas E. Willgang,
Decentralized Self-Regulation, Accountability, and Judicial
Independence Under the Federal Judicial Conduct and Disability of 1980,
142 U. Pa. L. Rev. (1993).
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Given that Congress has not thoroughly evaluated the
operations of the Act in more than a decade, and mindful of its
oversight responsibilities under House rules and the U.S.
Constitution, the Subcommittee on Courts, the Internet, and
Intellectual Property conducted a November 29, 2001, hearing on
the judicial misconduct statutes. In the wake of the hearing
and based on testimony \4\ received at that time, the Committee
now finds that the following provisions within the Act should
be revised:
---------------------------------------------------------------------------
\4\ See especially Subcommittee Hearing 39-52 (testimony of Arthur
D. Hellman, Professor of Law and Distinguished Faculty Scholar,
University of Pittsburgh School of Law).
1. LThe Act should be reorganized as a separate chapter
within title 28 of the U.S. Code so as to publicize its
---------------------------------------------------------------------------
existence and to facilitate its use.
2. LThe power of a circuit chief judge to conduct a
``limited inquiry'' should be defined more clearly,
both for the benefit of the chief judge in articulating
reasons for disposing of a case and for a complainant
who wishes to understand such a disposition.
3. LThe concept of dismissing a case for
``frivolousness'' should be expanded upon for the same
reason.
4. LA judicial council should be given the explicit
authority to refer a complaint to a five-member panel
for greater scrutiny.
In sum, the Committee finds that the Act functions well but
could function better. These changes, if implemented pursuant
to enactment of H.R. 3892, will respond to the needs of chief
judges, judicial councils, and the Judicial Conference in
understanding their obligations under the Act. This legislation
also addresses the concerns of complainants and the American
public who must have confidence that the application of the Act
is premised on fairness and accessibility.
Hearings
The Subcommittee on Courts, the Internet, and Intellectual
Property conducted an oversight hearing on the Operation of
Federal Judicial Misconduct Statutes \5\ and Recusal Statutes
on November 29, 2001. Four witnesses testified at the hearing:
Michael J. Remington, a private attorney who worked for the
1993 National Commission on Judicial Discipline and Removal;
Arthur Hellman, Professor at the University of Pittsburgh
School of Law; Douglas T. Kendall, Executive Director of
Community Rights Counsel, a citizens advocacy group; and Judge
William L. Osteen, U.S. district judge for the middle district
of North Carolina.
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\5\ 28 U.S.C. Sec. 372(c).
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Committee Consideration
On March 20, 2002, the Subcommittee on Courts, the
Internet, and Intellectual Property met in open session and
ordered favorably reported the bill H.R. 3892 with a single
amendment in the nature of a substitute, by voice vote, a
quorum being present. On April 24, 2002, the Committee met in
open session and ordered favorably reported the bill H.R. 3892
with a single amendment in the nature of a substitute, a quorum
being present.
Vote of the Committee
There were no recorded votes on H.R. 3892.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
The general consensus among Members of the Subcommittee and
the witnesses who testified at the oversight hearing on the
operations of the judicial misconduct statutes is that the
Federal judiciary is held in high esteem by Congress and the
American public. In proposing a basic reorganization of and
other amendments to 28 U.S.C. Sec. 372(c), the Committee
believes that the Federal Judiciary will be better positioned
to accomplish two primary goals or objectives.
First, the responsibilities of a chief judge in evaluating
the merits of a complaint will be more clearly defined,
especially when a decision is made to dismiss a complaint. In
conjunction with new statutory authority for a judicial council
to refer a complaint to a five-member panel, the Federal
Judiciary will be empowered to make dispositive decisions that
are more fully informed and articulated. This will not only
assist a chief judge or judicial council with their
responsibilities, but will also enable a complainant to
understand more fully the reasoning behind the disposition of a
petition. The goal, therefore, is to instill greater public
confidence in this self-regulatory system by enabling judges to
offer greater explicitness in rendering decisions.
Second, the basic reorganization of 28 U.S.C. Sec. 372(c)--
by codifying it as a new chapter in title 28 of the Code--not
only elevates the statute to a more deserved and appropriate
level of importance, it spotlights its very existence. If for
no other reason, this change will assist the Congress and the
Federal Judiciary in attaining a second goal or objective: to
publicize the existence of a statutory mechanism that allows
individuals to register and pursue meritorious complaints
against sitting judges. This is a highly worthwhile goal,
because it evinces a willingness on the part of the judiciary
to develop an even more open and honest relationship with the
public, thereby enhancing public regard for Federal judges in
their professional capacities as public servants.
The Committee also notes that the Chairman of the
Subcommittee on Courts, the Internet, and Intellectual
Property, Representative Coble, and the Ranking Subcommittee
Member, Representative Berman, sent a letter to the Chief
Justice \7\ regarding additional reforms that the Judicial
Conference might wish to pursue in its efforts to increase
public confidence in the ethical stature of its members. These
suggestions include the development of links to the rules and
forms governing judicial complaint procedures on every Federal
court's web site; the posting of ``conflict lists'' on these
same web sites for recusal purposes; and renewing a commitment
to the timely and thorough filing of financial disclosure
forms. These reforms will help the Judiciary to meet the goals
or objectives previously mentioned.
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\7\ Letter from the Honorable Howard Coble, Chairman, and the
Honorable Howard L. Berman, Ranking Member, the Subcommittee on Courts,
the Internet, and Intellectual Property of the House Committee on the
Judiciary [hereinafter ``Chairman Coble and Ranking Member Berman''],
to the Honorable William H. Rehnquist, Chief Justice, United States
Supreme Court (February 27, 2002). (Reprinted on page 16).
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Finally, Chairman Coble and Ranking Member Berman have
written to the Federal Judicial Center,\8\ requesting an update
on the disposition of cases under the Act. It is hoped that the
information provided by the Center will help the Committee to
understand if the relevant dispositions lack sufficient
explanation as to their outcome, and what percentage of the
dispositions are directly related to the merits of a decision
or procedural ruling. The Center's response will better inform
the Committee's understanding of the operation of the Act and
the Judiciary as to its obligations under it.
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\8\ Letter from Chairman Coble and Ranking Member Berman to the
Honorable Fern M. Smith, Director, the Federal Judicial Center (January
29, 2002). (Reprinted on page 19).
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New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3892, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974.
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 7, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3892, the Judicial
Improvements Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3892--Judicial Improvements Act of 2002.
H.R. 3892 would establish a new chapter in the Federal
judicial code regarding complaints against judges and
disciplinary procedures. Based on information from the
Administrative Office of the United States Courts, CBO
estimates that enacting the bill would have no impact on the
budget of the courts because similar procedures are followed
under current law. Because enacting H.R. 3892 would not affect
direct spending or receipts, pay-as-you- go procedures would
not apply to the bill.
H.R. 3892 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on State, local, or tribal governments.
The CBO staff contact for this estimate is Lanette J.
Walker, who can be reached at 226-2860. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article III, section 1 of the Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title. The short title of H.R. 3892 is the
``Judicial Improvements Act of 2002.''
Section 2. Judicial Discipline Procedures. Section 2
reorganizes the current ``Judicial Conduct and Disability Act
of 1980'' by creating a new chapter (16) in Part 1 of title 28
to address the issue of judicial complaints and misconduct.
Given the importance of providing citizens a mechanism by which
they may question judicial conduct, the statute should not be
buried in a subsection of the code. The reorganization is
easier to follow and easier to find. (The November 29, 2001,
hearing on the matter revealed that judicial complaint
procedures are under-publicized, to the public detriment.)
Changes to the text of the current statute are, for the most
part, few in number, and either clarifying or technical in
nature.
More specifically, section 2 creates the following new
sections of new chapter 16 of title 28 of the U.S. Code:
New Section 351. Complaints; judges defined. Any person who
believes a judge has indulged in conduct ``prejudicial'' to the
business of the courts, or who alleges that a judge cannot
discharge the duties of office based on a mental or physical
disability, may file a written complaint with the clerk of
court for the circuit in which the judge presides. The clerk
then transfers the complaint to the chief judge of the circuit
for disposition, or if the chief judge is the subject of the
complaint, to the circuit judge next most senior.
Circuit, district, bankruptcy, and magistrate judges are
explicitly covered by the statute.
This new section clarifies that bankruptcy judges are
covered, consistent with original intent of current statute.
New Section 352. Review of complaint by chief judge. The
chief judge shall review a complaint upon receipt, and may
conduct a ``limited inquiry'' to determine: (1) whether
``appropriate corrective action'' has been taken or may be
taken, thereby obviating the need for a formal investigation;
and (2) whether the facts stated in the complaint are plainly
untrue or are incapable of being established through
investigation.
The chief judge is empowered to request a written response
from the judge who is the subject of the complaint, and also to
communicate with the complainant and anyone else who has
knowledge of the matter. The chief judge may not undertake fact
findings about any matter that is ``reasonably in dispute.''
The chief judge may dismiss a complaint, by written order
stating the reasons why, if the complaint is filed inconsistent
with the requirements of new Sec. 351; is directly related to
the merits of a decision or ruling; or is frivolous, lacks
sufficient evidence to raise an inference that misconduct has
occurred, or contains allegations which are incapable of being
established through investigation. In addition, the chief judge
may dismiss a complaint when a limited inquiry demonstrates
that the allegations ``lack any factual foundation or are
conclusively refuted by objective evidence.'' The proceeding
may also be concluded if the chief judge believes that
appropriate corrective action has been taken or that further
action is unwarranted because of ``intervening events.''
A complainant who disagrees with a chief judge's final
order under new Sec. 352 may petition a judicial council within
that circuit for review. A decision by a judicial council to
deny review is final and may not be reviewed or appealed
further. A judicial council which elects to review a petition
may refer it to a panel of no fewer than five members, at least
two of whom must be district judges.
The power of a chief judge to conduct a ``limited inquiry''
pursuant to these changes is consistent with the views of the
National Commission on Judicial Discipline and Removal, the
circuits, and the Judicial Conference. Such power should be
defined more clearly and not left to implication from other
sources, as is the case in the current statute. The expansion
of the concept of a complaint dismissed for frivolousness
tracks recommendations set forth in the Illustrative Rules
Governing Judicial Misconduct and Disability, developed by the
Judicial Conference, and those offered by the Federal Judicial
Center. This offers greater guidance to the chief judge and
will better inform a complainant in the event of a dismissal.
Finally, permitting a judicial council to refer a petition to a
panel of at least five members for review creates flexibility
and enhances the likelihood that the petition will receive
greater scrutiny and process.
New Section 353. Special committees. If the complaint is
not dismissed under new Sec. 352, the chief judge shall appoint
himself/herself and an equal number of district and circuit
judges to a ``special committee'' to investigate the facts and
allegations contained in the complaint. Notice is given to the
complainant and affected judge.
The Committee is empowered to conduct an investigation as
extensive as it considers necessary, and must expeditiously
file a comprehensive written report--containing findings and
recommendations for action--with the judicial council of the
circuit.
There is no change to current law beyond reorganization in
new Sec. 353.
New Section 354. Action by judicial council. Upon receipt
of a report, a judicial council may conduct a further
investigation; dismiss the complaint; or, failing dismissal,
take such action as is ``appropriate.''
Possible courses of action if a complaint is not dismissed
include: ordering, on a temporary basis, that the affected
judge may no longer be assigned cases; privately censuring/
reprimanding the judge; or publicly censuring/reprimanding the
judge.
In any case involving an Article III judge who cannot
discharge his/her responsibilities based on a permanent mental
or physical disability, a judicial council may certify the
disability pursuant to 28 U.S.C. Sec. 372(b) and request that
the judge voluntarily retire.
In the case of a magistrate judge, a judicial council may
direct the chief judge of the district of the magistrate judge
to take such action as the judicial council deems appropriate.
A judicial council may not order the removal of any Article
III judge, and removals of magistrate or bankruptcy judges must
be done in conformity with other provisions in title 28.
A judicial council is further empowered, in its discretion,
to share a complaint and related findings, or other information
otherwise available to the judicial council, with the Judicial
Conference. A judicial council must share any information which
suggests that a judge has committed an impeachable offense, or
has indulged in behavior that ``is not amenable to resolution''
by the judicial council.
There is no change to current law beyond reorganization in
new Sec. 354.
New Section 355. Action by Judicial Conference. New
Sec. 355 empowers the Judicial Conference, after reviewing the
information forwarded by a judicial council pursuant to new
Sec. 354, to take appropriate action by majority vote. The
Conference is required to submit any recommendation of
impeachment to the House of Representatives, including a
recommendation based on State or Federal felony conviction of a
judge.
In this section, the reference to ``felony'' in the current
statute is clarified with the substituted ``felony under State
or Federal law'' in new chapter 16. This dovetails with the
treatment of felony convictions in new Sec. 364. Otherwise,
there is no other change to existing law.
New Section 356. Subpoena power. New Sec. 356 confers full
subpoena power on judicial councils, special committees, the
Judicial Conference, and any standing committees appointed by
the Chief Justice which are conducting investigations related
to judicial misconduct under this chapter.
There is no change to current law beyond reorganization in
new Sec. 356.
New Section 357. Review of orders and actions. An aggrieved
judge may petition the Judicial Conference to review the action
of a judicial council taken pursuant to new Sec. 354. Except as
otherwise permitted under this section or new Sec. 352, all
orders and determinations are final and not subject to review.
There is no change to current law beyond reorganization in
new Sec. 357.
New Section 358. Rules. New Sec. 358 authorizes each
judicial council and the Judicial Conference to prescribe rules
for the conduct of proceedings in an investigation. Minimum
standards governing notice and process for the complainant and
affected judge are included. Rules may not be amended in the
absence of public notice and comment; and the Judicial
Conference may modify the rules developed by a judicial
council.
There is no change to current law beyond reorganization in
new Sec. 358.
New Section 359. Restrictions. No judge who is the subject
of an investigation may serve upon a special committee,
judicial council, Judicial Conference, or standing committee
until ``all related proceedings'' of an investigation under new
chapter 16 are complete.
There is no change to current law beyond reorganization in
new Sec. 359.
New Section 360. Disclosure of Information. Unless
otherwise provided in new chapter 16, all papers, documents,
and records of an investigation are confidential and may not be
disclosed, subject to three exceptions: (1) a judicial council
elects to release a report developed by a special committee to
the complainant and the affected judge; (2) the judicial
council, Judicial Conference, or the Senate or House of
Representatives by resolution releases information related to
an impeachment investigation; or (3) the affected judge, and
either the chief judge of the circuit, the Chief Justice, or
the chairman of a standing committee authorize in writing their
joint desire to disclose information.
Each written order to implement any action which is issued
by a judicial council, the Judicial Conference, or a standing
committee shall be made available to the appropriate clerk of
court's office. Unless contrary to the interests of justice,
each order shall be accompanied by written reasons explaining
the decision.
There is no change to current law beyond reorganization in
new Sec. 360.
New Section 361. Reimbursement of expenses. An affected
judge may request that he/she be reimbursed through the
Administrative Office of the Courts for reasonable expenses
incurred in the course of an investigation when a complaint is
dismissed.
There is no change to current law beyond reorganization in
new Sec. 361.
New Section 362. Other provisions and rules not affected.
Except as expressly provided in new chapter 16, the legislation
does not affect the Federal Rules of Procedure, Evidence,
Criminal Procedure, or Appellate Procedure.
There is no change to current law beyond reorganization in
new Sec. 362.
New Section 363. Court of Federal Claims, Court of
International Trade, Court of Appeals for the Federal Circuit.
The Court of Federal Claims, Court of International Trade, and
Court of Appeals for the Federal Circuit shall establish
procedures for the filing of complaints regarding the conduct
of any judge of such court and for the investigation and
resolution of complaints. Each of these courts will have the
same powers granted to judicial councils under new chapter 16.
There is no change to current law beyond reorganization in
new Sec. 363.
New Section 364. Effect of felony conviction. If a judge
under new chapter 16 is convicted of a State or Federal felony,
and has exhausted all means of direct review of the conviction,
or the time for obtaining such review has passed, that judge
may not hear cases unless the relevant judicial council (or the
court of a judge as set forth in new Sec. 363) determines
otherwise.
New Sec. 364 implements a recommendation developed by the
1993 National Commission on Judicial Discipline and Removal.
There is no other change beyond reorganization in new Sec. 364.
Section 3. Technical Amendments. Section 3 makes technical
and conforming amendments to the relevant provisions of the
U.S. Code based on the content of sections 1 and 2.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART I--ORGANIZATION OF COURTS
Chapter Sec.
1. Supreme Court................................................ 1
* * * * * * *
351 Complaints against judges and judicial discipline...........
* * * * * * *
CHAPTER 15--CONFERENCES AND COUNCILS OF JUDGES
* * * * * * *
Sec. 331. Judicial Conference of the United States
The Chief Justice of the United States shall summon
annually the chief judge of each judicial circuit, the chief
judge of the Court of International Trade, and a district judge
from each judicial circuit to a conference at such time and
place in the United States as he may designate. He shall
preside at such conference which shall be known as the Judicial
Conference of the United States. Special sessions of the
Conference may be called by the Chief Justice at such times and
places as he may designate.
The district judge to be summoned from each judicial
circuit shall be chosen by the circuit and district judges of
the circuit and shall serve as a member of the Judicial
Conference of the United States for a term of not less than 3
successive years nor more than 5 successive years, as
established by majority vote of all circuit and district judges
of the circuit. A district judge serving as a member of the
Judicial Conference may be either a judge in regular active
service or a judge retired from regular active service under
section 371(b) of this title.
If the chief judge of any circuit, the chief judge of the
Court of International Trade, or the district judge chosen by
the judges of the circuit is unable to attend, the Chief
Justice may summon any other circuit or district judge from
such circuit or any other judge of the Court of International
Trade, as the case may be. Every judge summoned shall attend
and, unless excused by the Chief Justice, shall remain
throughout the sessions of the conference and advise as to the
needs of his circuit or court and as to any matters in respect
of which the administration of justice in the courts of the
United States may be improved.
The Conference shall make a comprehensive survey of the
condition of business in the courts of the United States and
prepare plans for assignment of judges to or from circuits or
districts where necessary. It shall also submit suggestions and
recommendations to the various courts to promote uniformity of
management procedures and the expeditious conduct of court
business. The Conference is authorized to exercise the
authority provided in [section 372(c)] chapter 16 of this title
as the Conference, or through a standing committee. If the
Conference elects to establish a standing committee, it shall
be appointed by the Chief Justice and all petitions for review
shall be reviewed by that committee. The Conference or the
standing committee may hold hearings, take sworn testimony,
issue subpoenas and subpoenas duces tecum, and make necessary
and appropriate orders in the exercise of its authority.
Subpoenas and subpoenas duces tecum shall be issued by the
clerk of the Supreme Court or by the clerk of any court of
appeals, at the direction of the Chief Justice or his designee
and under the seal of the court, and shall be served in the
manner provided in rule 45(c) of the Federal Rules of Civil
Procedure for subpoenas and subpoenas duces tecum issued on
behalf of the United States or an officer or any agency
thereof. The Conference may also prescribe and modify rules for
the exercise of the authority provided in [section 372(c)]
chapter 16 of this title. All judicial officers and employees
of the United States shall promptly carry into effect all
orders of the Judicial Conference or the standing committee
established pursuant to this section.
The Conference shall also carry on a continuous study of
the operation and effect of the general rules of practice and
procedure now or hereafter in use as prescribed by the Supreme
Court for the other courts of the United States pursuant to
law. Such changes in and additions to those rules as the
Conference may deem desirable to promote simplicity in
procedure, fairness in administration, the just determination
of litigation, and the elimination of unjustifiable expense and
delay shall be recommended by the Conference from time to time
to the Supreme Court for its consideration and adoption,
modification or rejection, in accordance with law.
The Judicial Conference shall review rules prescribed under
section 2071 of this title by the courts, other than the
Supreme Court and the district courts, for consistency with
Federal law. The Judicial Conference may modify or abrogate any
such rule so reviewed found inconsistent in the course of such
a review.
The Attorney General shall, upon request of the Chief
Justice, report to such Conference on matters relating to the
business of the several courts of the United States, with
particular reference to cases to which the United States is a
party. The Chief Justice shall submit to Congress an annual
report of the proceedings of the Judicial Conference and its
recommendations for legislation.
Sec. 332. Judicial councils of circuits
(a) * * *
* * * * * * *
(d)(1) * * *
(2) All judicial officers and employees of the circuit
shall promptly carry into effect all orders of the judicial
council. In the case of failure to comply with an order made
under this subsection or a subpoena issued under [section
372(c) of this title] chapter 16 of this title, a judicial
council or a special committee appointed under section
[372(c)(4)] 353 of this title may institute a contempt
proceeding in any district court in which the judicial officer
or employee of the circuit who fails to comply with the order
made under this subsection shall be ordered to show cause
before the court why he or she should not be held in contempt
of court.
* * * * * * *
[(h)(1) The United States Court of Appeals for the Federal
Circuit may appoint a circuit executive, who shall serve at the
pleasure of the court. In appointing a circuit executive, the
court shall take into account experience in administrative and
executive positions, familiarity with court procedures, and
special training. The circuit executive shall exercise such
administrative powers and perform such duties as may be
delegated by the court. The duties delegated to the circuit
executive may include but need not be limited to the duties
specified in subsection (e) of this section, insofar as they
are applicable to the Court of Appeals for the Federal Circuit.
[(2) The circuit executive shall be paid the salary for
circuit executives established under subsection (f ) of this
section.
[(3) The circuit executive may appoint, with the approval
of the court, necessary employees in such number as may be
approved by the Director of the Administrative Office of the
United States Courts.
[(4) The circuit executive and staff shall be deemed to be
officers and employees of the United States within the meaning
of the statutes specified in subsection (f )(4).
[(5) The court may appoint either a circuit executive under
this subsection or a clerk under section 711 of this title, but
not both, or may appoint a combined circuit executive/clerk who
shall be paid the salary of a circuit executive.]
* * * * * * *
CHAPTER 16--COMPLAINTS AGAINST JUDGES AND JUDICIAL DISCIPLINE
Sec.
351. Complaints; judge defined.
352. Review of complaint by chief judge.
353. Special committees.
354. Action by judicial council.
355. Action by Judicial Conference.
356. Subpoena power.
357. Review of orders and actions.
358. Rules.
359. Restrictions.
360. Disclosure of information.
361. Reimbursement of expenses.
362. Other provisions and rules not affected.
363. Court of Federal Claims, Court of International Trade, Court of
Appeals for the Federal Circuit.
364. Effect of felony conviction.
Sec. 351. Complaints; judge defined
(a) Filing of Complaint by Any Person.--Any person alleging
that a judge has engaged in conduct prejudicial to the
effective and expeditious administration of the business of the
courts, or alleging that such judge is unable to discharge all
the duties of office by reason of mental or physical
disability, 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.
(b) Identifying Complaint by Chief Judge.--In the interests
of the effective and expeditious administration of the business
of the courts and on the basis of information available to the
chief judge of the circuit, the chief judge may, by written
order stating reasons therefor, identify a complaint for
purposes of this chapter and thereby dispense with filing of a
written complaint.
(c) Transmittal of Complaint.--Upon receipt of a complaint
filed under subsection (a), the clerk shall promptly transmit
the complaint to the chief judge of the circuit, or, if the
conduct complained of is that of the chief judge, to that
circuit judge in regular active service next senior in date of
commission (hereafter, for purposes of this chapter only,
included in the term ``chief judge''). The clerk shall
simultaneously transmit a copy of the complaint to the judge
whose conduct is the subject of the complaint. The clerk shall
also transmit a copy of any complaint identified under
subsection (b) to the judge whose conduct is the subject of the
complaint.
(d) Definitions.--In this chapter--
(1) the term ``judge'' means a circuit judge,
district judge, bankruptcy judge, or magistrate judge;
and
(2) the term ``complainant'' means the person
filing a complaint under subsection (a) of this
section.
Sec. 352. Review of complaint by chief judge
(a) Expeditious Review; Limited Inquiry.--The chief judge
shall expeditiously review any complaint received under section
351(a) or identified under section 351(b). In determining what
action to take, the chief judge may conduct a limited inquiry
for the purpose of determining--
(1) whether appropriate corrective action has been
or can be taken without the necessity for a formal
investigation; and
(2) whether the facts stated in the complaint are
either plainly untrue or are incapable of being
established through investigation.
For this purpose, the chief judge may request the judge whose
conduct is complained of to file a written response to the
complaint. Such response shall not be made available to the
complainant unless authorized by the judge filing the response.
The chief judge or his or her designee may also communicate
orally or in writing with the complainant, the judge whose
conduct is complained of, and any other person who may have
knowledge of the matter, and may review any transcripts or
other relevant documents. The chief judge shall not undertake
to make findings of fact about any matter that is reasonably in
dispute.
(b) Action by Chief Judge Following Review.--After
expeditiously reviewing a complaint under subsection (a), the
chief judge, by written order stating his or her reasons, may--
(1) dismiss the complaint--
(A) if the chief judge finds the complaint
to be--
(i) not in conformity with section
351(a);
(ii) directly related to the merits
of a decision or procedural ruling; or
(iii) frivolous, lacking sufficient
evidence to raise an inference that
misconduct has occurred, or containing
allegations which are incapable of
being established through
investigation; or
(B) when a limited inquiry conducted under
subsection (a) demonstrates that the
allegations in the complaint lack any factual
foundation or are conclusively refuted by
objective evidence; or
(2) 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.
The chief judge shall transmit copies of the written order to
the complainant and to the judge whose conduct is the subject
of the complaint.
(c) Review of Orders of Chief Judge.--A complainant or
judge aggrieved by a final order of the chief judge under this
section may petition the judicial council of the circuit for
review thereof. The denial of a petition for review of the
chief judge's order shall be final and conclusive and shall not
be judicially reviewable on appeal or otherwise.
(d) Referral of Petitions for Review to Panels of the
Judicial Council.--Each judicial council may, pursuant to rules
prescribed under section 358, refer a petition for review filed
under subsection (c) to a panel of no fewer than 5 members of
the council, at least 2 of whom shall be district judges.
Sec. 353. Special committees
(a) Appointment.--If the chief judge does not enter an
order under section 352(b), the chief judge shall promptly--
(1) appoint himself or herself and equal numbers of
circuit and district judges of the circuit to a special
committee to investigate the facts and allegations
contained in the complaint;
(2) certify the complaint and any other documents
pertaining thereto to each member of such committee;
and
(3) provide written notice to the complainant and
the judge whose conduct is the subject of the complaint
of the action taken under this subsection.
(b) Change in Status or Death of Judges.--A judge appointed
to a special committee under subsection (a) may continue to
serve on that committee after becoming a senior judge or, in
the case of the chief judge of the circuit, after his or her
term as chief judge terminates under subsection (a)(3) or (c)
of section 45. If a judge appointed to a committee under
subsection (a) dies, or retires from office under section
371(a), while serving on the committee, the chief judge of the
circuit may appoint another circuit or district judge, as the
case may be, to the committee.
(c) Investigation by Special Committee.--Each committee
appointed under subsection (a) shall conduct an investigation
as extensive as it considers necessary, and shall expeditiously
file a comprehensive written report thereon with the judicial
council of the circuit. Such report shall present both the
findings of the investigation and the committee's
recommendations for necessary and appropriate action by the
judicial council of the circuit.
Sec. 354. Action by judicial council
(a) Actions Upon Receipt of Report.--
(1) Actions.--The judicial council of a circuit,
upon receipt of a report filed under section 353(c)--
(A) may conduct any additional
investigation which it considers to be
necessary;
(B) may dismiss the complaint; and
(C) if the complaint is not dismissed,
shall take such action as is appropriate to
assure the effective and expeditious
administration of the business of the courts
within the circuit.
(2) Description of possible actions if complaint
not dismissed.--
(A) In general.--Action by the judicial
council under paragraph (1)(C) may include--
(i) ordering that, on a temporary
basis for a time certain, no further
cases be assigned to the judge whose
conduct is the subject of a complaint;
(ii) censuring or reprimanding such
judge by means of private
communication; and
(iii) censuring or reprimanding
such judge by means of public
announcement.
(B) For article iii judges.--If the conduct
of a judge appointed to hold office during good
behavior is the subject of the complaint,
action by the judicial council under paragraph
(1)(C) may include--
(i) certifying disability of the
judge pursuant to the procedures and
standards provided under section
372(b); and
(ii) requesting that the judge
voluntarily retire, with the provision
that the length of service requirements
under section 371 of this title shall
not apply.
(C) For magistrate judges.--If the conduct
of a magistrate judge is the subject of the
complaint, action by the judicial council under
paragraph (1)(C) may include directing the
chief judge of the district of the magistrate
judge to take such action as the judicial
council considers appropriate.
(3) Limitations on judicial council regarding
removals.--
(A) Article iii judges.--Under no
circumstances may the judicial council order
removal from office of any judge appointed to
hold office during good behavior.
(B) Magistrate and bankruptcy judges.--Any
removal of a magistrate judge under this
subsection shall be in accordance with section
631 and any removal of a bankruptcy judge shall
be in accordance with section 152.
(4) Notice of action to judge.--The judicial
council shall immediately provide written notice to the
complainant and to the judge whose conduct is the
subject of the complaint of the action taken under this
subsection.
(b) Referral to Judicial Conference.--
(1) In general.--In addition to the authority
granted under subsection (a), the judicial council may,
in its discretion, refer any complaint under section
351, together with the record of any associated
proceedings and its recommendations for appropriate
action, to the Judicial Conference of the United
States.
(2) Special circumstances.--In any case in which
the judicial council determines, on the basis of a
complaint and an investigation under this chapter, or
on the basis of information otherwise available to the
judicial council, that a judge appointed to hold office
during good behavior may have engaged in conduct--
(A) which might constitute one or more
grounds for impeachment under article II of the
Constitution, or
(B) which, in the interest of justice, is
not amenable to resolution by the judicial
council,
the judicial council shall promptly certify such
determination, together with any complaint and a record
of any associated proceedings, to the Judicial
Conference of the United States.
(3) Notice to complainant and judge.--A judicial
council acting under authority of this subsection
shall, unless contrary to the interests of justice,
immediately submit written notice to the complainant
and to the judge whose conduct is the subject of the
action taken under this subsection.
Sec. 355. Action by Judicial Conference
(a) In General.--Upon referral or certification of any
matter under section 354(b), the Judicial Conference, after
consideration of the prior proceedings and such additional
investigation as it considers appropriate, shall by majority
vote take such action, as described in section 354(a)(1)(C) and
(2), as it considers appropriate.
(b) If Impeachment Warranted.--
(1) In general.--If the Judicial Conference concurs
in the determination of the judicial council, or makes
its own determination, that consideration of
impeachment may be warranted, it shall so certify and
transmit the determination and the record of
proceedings to the House of Representatives for
whatever action the House of Representatives considers
to be necessary. Upon receipt of the determination and
record of proceedings in the House of Representatives,
the Clerk of the House of Representatives shall make
available to the public the determination and any
reasons for the determination.
(2) In case of felony conviction.--If a judge has
been convicted of a felony under State or Federal law
and has exhausted all means of obtaining direct review
of the conviction, or the time for seeking further
direct review of the conviction has passed and no such
review has been sought, the Judicial Conference may, by
majority vote and without referral or certification
under section 354(b), transmit to the House of
Representatives a determination that consideration of
impeachment may be warranted, together with appropriate
court records, for whatever action the House of
Representatives considers to be necessary.
Sec. 356. Subpoena power
(a) Judicial Councils and Special Committees.--In
conducting any investigation under this chapter, the judicial
council, or a special committee appointed under section 353,
shall have full subpoena powers as provided in section 332(d).
(b) Judicial Conference and Standing Committees.--In
conducting any investigation under this chapter, the Judicial
Conference, or a standing committee appointed by the Chief
Justice under section 331, shall have full subpoena powers as
provided in that section.
Sec. 357. Review of orders and actions
(a) Review of Action of Judicial Council.--A complainant or
judge aggrieved by an action of the judicial council under
section 354 may petition the Judicial Conference of the United
States for review thereof.
(b) Action of Judicial Conference.--The Judicial
Conference, or the standing committee established under section
331, may grant a petition filed by a complainant or judge under
subsection (a).
(c) No Judicial Review.--Except as expressly provided in
this section and section 352(c), all orders and determinations,
including denials of petitions for review, shall be final and
conclusive and shall not be judicially reviewable on appeal or
otherwise.
Sec. 358. Rules
(a) In General.--Each judicial council and the Judicial
Conference may prescribe such rules for the conduct of
proceedings under this chapter, including the processing of
petitions for review, as each considers to be appropriate.
(b) Required Provisions.--Rules prescribed under subsection
(a) shall contain provisions requiring that--
(1) adequate prior notice of any investigation be
given in writing to the judge whose conduct is the
subject of a complaint under this chapter;
(2) the judge whose conduct is the subject of a
complaint under this chapter be afforded an opportunity
to appear (in person or by counsel) at proceedings
conducted by the investigating panel, to present oral
and documentary evidence, to compel the attendance of
witnesses or the production of documents, to cross-
examine witnesses, and to present argument orally or in
writing; and
(3) the complainant be afforded an opportunity to
appear at proceedings conducted by the investigating
panel, if the panel concludes that the complainant
could offer substantial information.
(c) Procedures.--Any rule prescribed under this section
shall be made or amended only after giving appropriate public
notice and an opportunity for comment. Any such rule shall be a
matter of public record, and any such rule promulgated by a
judicial council may be modified by the Judicial Conference. No
rule promulgated under this section may limit the period of
time within which a person may file a complaint under this
chapter.
Sec. 359. Restrictions
(a) Restriction on Individuals Who Are Subject of
Investigation.--No judge whose conduct is the subject of an
investigation under this chapter shall serve upon a special
committee appointed under section 353, upon a judicial council,
upon the Judicial Conference, or upon the standing committee
established under section 331, until all proceedings under this
chapter relating to such investigation have been finally
terminated.
(b) Amicus Curiae.--No person shall be granted the right to
intervene or to appear as amicus curiae in any proceeding
before a judicial council or the Judicial Conference under this
chapter.
Sec. 360. Disclosure of information
(a) Confidentiality of Proceedings.--Except as provided in
section 355, all papers, documents, and records of proceedings
related to investigations conducted under this chapter shall be
confidential and shall not be disclosed by any person in any
proceeding except to the extent that--
(1) the judicial council of the circuit in its
discretion releases a copy of a report of a special
committee under section 353(c) to the complainant whose
complaint initiated the investigation by that special
committee and to the judge whose conduct is the subject
of the complaint;
(2) the judicial council of the circuit, the
Judicial Conference of the United States, or the Senate
or the House of Representatives by resolution, releases
any such material which is believed necessary to an
impeachment investigation or trial of a judge under
article I of the Constitution; or
(3) such disclosure is authorized in writing by the
judge who is the subject of the complaint and by the
chief judge of the circuit, the Chief Justice, or the
chairman of the standing committee established under
section 331.
(b) Public Availability of Written Orders.--Each written
order to implement any action under section 354(a)(1)(C), which
is issued by a judicial council, the Judicial Conference, or
the standing committee established under section 331, shall be
made available to the public through the appropriate clerk's
office of the court of appeals for the circuit. Unless contrary
to the interests of justice, each such order shall be
accompanied by written reasons therefor.
Sec. 361. Reimbursement of expenses
Upon the request of a judge whose conduct is the subject of
a complaint under this chapter, the judicial council may, if
the complaint has been finally dismissed under section
354(a)(1)(B), recommend that the Director of the Administrative
Office of the United States Courts award reimbursement, from
funds appropriated to the Federal judiciary, for those
reasonable expenses, including attorneys' fees, incurred by
that judge during the investigation which would not have been
incurred but for the requirements of this chapter.
Sec. 362. Other provisions and rules not affected
Except as expressly provided in this chapter, nothing in
this chapter shall be construed to affect any other provision
of this title, the Federal Rules of Civil Procedure, the
Federal Rules of Criminal Procedure, the Federal Rules of
Appellate Procedure, or the Federal Rules of Evidence.
Sec. 363. Court of Federal Claims, Court of International Trade, Court
of Appeals for the Federal Circuit
The United States Court of Federal Claims, the Court of
International Trade, and the Court of Appeals for the Federal
Circuit shall each prescribe rules, consistent with the
provisions of this chapter, establishing procedures for the
filing of complaints with respect to the conduct of any judge
of such court and for the investigation and resolution of such
complaints. In investigating and taking action with respect to
any such complaint, each such court shall have the powers
granted to a judicial council under this chapter.
Sec. 364. Effect of felony conviction
In the case of any judge or judge of a court referred to in
section 363 who is convicted of a felony under State or Federal
law and has exhausted all means of obtaining direct review of
the conviction, or the time for seeking further direct review
of the conviction has passed and no such review has been
sought, that judge shall not hear cases unless the judicial
council of the circuit (or, in the case of a judge of a court
referred to in section 363, that court) determines otherwise.
CHAPTER 17--RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES
* * * * * * *
Sec.
371. Retirement on salary; retirement in senior status.
372. Retirement for disability; substitute judge on failure to retire[;
judicial discipline].
* * * * * * *
Sec. 372. Retirement for disability; substitute judge on failure to
retire[; judicial discipline]
(a) * * *
* * * * * * *
[(c)(1) Any person alleging that a circuit, district, or
bankruptcy judge, or a magistrate judge, has engaged in conduct
prejudicial to the effective and expeditious administration of
the business of the courts, or alleging that such a judge or
magistrate judge is unable to discharge all the duties of
office by reason of mental or physical disability, 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. In the interests of the effective
and expeditious administration of the business of the courts
and on the basis of information available to the chief judge of
the circuit, the chief judge may, by written order stating
reasons therefor, identify a complaint for purposes of this
subsection and thereby dispense with filing of a written
complaint.
[(2) Upon receipt of a complaint filed under paragraph (1)
of this subsection, the clerk shall promptly transmit such
complaint to the chief judge of the circuit, or, if the conduct
complained of is that of the chief judge, to that circuit judge
in regular active service next senior in date of commission
(hereafter, for purposes of this subsection only, included in
the term ``chief judge''). The clerk shall simultaneously
transmit a copy of the complaint to the judge or magistrate
judge whose conduct is the subject of the complaint.
[(3) After expeditiously reviewing a complaint, the chief
judge, by written order stating his reasons, may--
[(A) dismiss the complaint, if he finds it to be
(i) not in conformity with paragraph (1) of this
subsection, (ii) directly related to the merits of a
decision or procedural ruling, or (iii) frivolous; or
[(B) conclude the proceeding if he finds that
appropriate corrective action has been taken or that
action on the complaint is no longer necessary because
of intervening events.
The chief judge shall transmit copies of his written order to
the complainant and to the judge or magistrate judge whose
conduct is the subject of the complaint.
[(4) If the chief judge does not enter an order under
paragraph (3) of this subsection, such judge shall promptly--
[(A) appoint himself and equal numbers of circuit
and district judges of the circuit to a special
committee to investigate the facts and allegations
contained in the complaint;
[(B) certify the complaint and any other documents
pertaining thereto to each member of such committee;
and
[(C) provide written notice to the complainant and
the judge or magistrate judge whose conduct is the
subject of the complaint of the action taken under this
paragraph.
A judge appointed to a special committee under this paragraph
may continue to serve on that committee after becoming a senior
judge or, in the case of the chief judge of the circuit, after
his or her term as chief judge terminates under subsection
(a)(3) or (c) of section 45 of this title. If a judge appointed
to a committee under this paragraph dies, or retires from
office under section 371(a) of this title, while serving on the
committee, the chief judge of the circuit may appoint another
circuit or district judge, as the case may be, to the
committee.
[(5) Each committee appointed under paragraph (4) of this
subsection shall conduct an investigation as extensive as it
considers necessary, and shall expeditiously file a
comprehensive written report thereon with the judicial council
of the circuit. Such report shall present both the findings of
the investigation and the committee's recommendations for
necessary and appropriate action by the judicial council of the
circuit.
[(6) Upon receipt of a report filed under paragraph (5) of
this subsection, the judicial council--
[(A) may conduct any additional investigation which
it considers to be necessary;
[(B) shall take such action as is appropriate to
assure the effective and expeditious administration of
the business of the courts within the circuit,
including, but not limited to, any of the following
actions:
[(i) directing the chief judge of the
district of the magistrate judge whose conduct
is the subject of the complaint to take such
action as the judicial council considers
appropriate;
[(ii) certifying disability of a judge
appointed to hold office during good behavior
whose conduct is the subject of the complaint,
pursuant to the procedures and standards
provided under subsection (b) of this section;
[(iii) requesting that any such judge
appointed to hold office during good behavior
voluntarily retire, with the provision that the
length of service requirements under section
371 of this title shall not apply;
[(iv) ordering that, on a temporary basis
for a time certain, no further cases be
assigned to any judge or magistrate judge whose
conduct is the subject of a complaint;
[(v) censuring or reprimanding such judge
or magistrate judge by means of private
communication;
[(vi) censuring or reprimanding such judge
or magistrate judge by means of public
announcement; or
[(vii) ordering such other action as it
considers appropriate under the circumstances,
except that (I) in no circumstances may the
council order removal from office of any judge
appointed to hold office during good behavior,
and (II) any removal of a magistrate judge
shall be in accordance with section 631 of this
title and any removal of a bankruptcy judge
shall be in accordance with section 152 of this
title;
[(C) may dismiss the complaint; and
[(D) shall immediately provide written
notice to the complainant and to such judge or
magistrate judge of the action taken under this
paragraph.
[(7)(A) In addition to the authority granted under
paragraph (6) of this subsection, the judicial council may, in
its discretion, refer any complaint under this subsection,
together with the record of any associated proceedings and its
recommendations for appropriate action, to the Judicial
Conference of the United States.
[(B) In any case in which the judicial council determines,
on the basis of a complaint and an investigation under this
subsection, or on the basis of information otherwise available
to the council, that a judge appointed to hold office during
good behavior may have engaged in conduct--
[(i) which might constitute one or more grounds for
impeachment under article II of the Constitution; or
[(ii) which, in the interest of justice, is not
amenable to resolution by the judicial council,
the judicial council shall promptly certify such determination,
together with any complaint and a record of any associated
proceedings, to the Judicial Conference of the United States.
[(C) A judicial council acting under authority of this
paragraph shall, unless contrary to the interests of justice,
immediately submit written notice to the complainant and to the
judge or magistrate judge whose conduct is the subject of the
action taken under this paragraph.
[(8)(A) Upon referral or certification of any matter under
paragraph (7) of this subsection, the Judicial Conference,
after consideration of the prior proceedings and such
additional investigation as it considers appropriate, shall by
majority vote take such action, as described in paragraph
(6)(B) of this subsection, as it considers appropriate. If the
Judicial Conference concurs in the determination of the
council, or makes its own determination, that consideration of
impeachment may be warranted, it shall so certify and transmit
the determination and the record of proceedings to the House of
Representatives for whatever action the House of
Representatives considers to be necessary. Upon receipt of the
determination and record of proceedings in the House of
Representatives, the Clerk of the House of Representatives
shall make available to the public the determination and any
reasons for the determination.
[(B) If a judge or magistrate judge has been convicted of a
felony and has exhausted all means of obtaining direct review
of the conviction, or the time for seeking further direct
review of the conviction has passed and no such review has been
sought, the Judicial Conference may, by majority vote and
without referral or certification under paragraph (7), transmit
to the House of Representatives a determination that
consideration of impeachment may be warranted, together with
appropriate court records, for whatever action the House of
Representatives considers to be necessary.
[(9)(A) In conducting any investigation under this
subsection, the judicial council, or a special committee
appointed under paragraph (4) of this subsection, shall have
full subpoena powers as provided in section 332(d) of this
title.
[(B) In conducting any investigation under this subsection,
the Judicial Conference, or a standing committee appointed by
the Chief Justice under section 331 of this title, shall have
full subpoena powers as provided in that section.
[(10) A complainant, judge, or magistrate judge aggrieved
by a final order of the chief judge under paragraph (3) of this
subsection may petition the judicial council for review
thereof. A complainant, judge, or magistrate judge aggrieved by
an action of the judicial council under paragraph (6) of this
subsection may petition the Judicial Conference of the United
States for review thereof. The Judicial Conference, or the
standing committee established under section 331 of this title,
may grant a petition filed by a complainant, judge, or
magistrate judge under this paragraph. Except as expressly
provided in this paragraph, all orders and determinations,
including denials of petitions for review, shall be final and
conclusive and shall not be judicially reviewable on appeal or
otherwise.
[(11) Each judicial council and the Judicial Conference may
prescribe such rules for the conduct of proceedings under this
subsection, including the processing of petitions for review,
as each considers to be appropriate. Such rules shall contain
provisions requiring that--
[(A) adequate prior notice of any investigation be
given in writing to the judge or magistrate judge whose
conduct is the subject of the complaint;
[(B) the judge or magistrate judge whose conduct is
the subject of the complaint be afforded an opportunity
to appear (in person or by counsel) at proceedings
conducted by the investigating panel, to present oral
and documentary evidence, to compel the attendance of
witnesses or the production of documents, to cross-
examine witnesses, and to present argument orally or in
writing; and
[(C) the complainant be afforded an opportunity to
appear at proceedings conducted by the investigating
panel, if the panel concludes that the complainant
could offer substantial information.
Any such rule shall be made or amended only after giving
appropriate public notice and an opportunity for comment. Any
rule promulgated under this subsection shall be a matter of
public record, and any such rule promulgated by a judicial
council may be modified by the Judicial Conference. No rule
promulgated under this subsection may limit the period of time
within which a person may file a complaint under this
subsection.
[(12) No judge or magistrate judge whose conduct is the
subject of an investigation under this subsection shall serve
upon a special committee appointed under paragraph (4) of this
subsection, upon a judicial council, upon the Judicial
Conference, or upon the standing committee established under
section 331 of this title, until all related proceedings under
this subsection have been finally terminated.
[(13) No person shall be granted the right to intervene or
to appear as amicus curiae in any proceeding before a judicial
council or the Judicial Conference under this subsection.
[(14) Except as provided in paragraph (8), all papers,
documents, and records of proceedings related to investigations
conducted under this subsection shall be confidential and shall
not be disclosed by any person in any proceeding except to the
extent that--
[(A) the judicial council of the circuit in its
discretion releases a copy of a report of a special
investigative committee under paragraph (5) to the
complainant whose complaint initiated the investigation
by that special committee and to the judge or
magistrate judge whose conduct is the subject of the
complaint;
[(B) the judicial council of the circuit, the
Judicial Conference of the United States, or the Senate
or the House of Representatives by resolution, releases
any such material which is believed necessary to an
impeachment investigation or trial of a judge under
article I of the Constitution; or
[(C) such disclosure is authorized in writing by
the judge or magistrate judge who is the subject of the
complaint and by the chief judge of the circuit, the
Chief Justice, or the chairman of the standing
committee established under section 331 of this title.
[(15) Each written order to implement any action under
paragraph (6)(B) of this subsection, which is issued by a
judicial council, the Judicial Conference, or the standing
committee established under section 331 of this title, shall be
made available to the public through the appropriate clerk's
office of the court of appeals for the circuit. Unless contrary
to the interests of justice, each such order issued under this
paragraph shall be accompanied by written reasons therefor.
[(16) Upon the request of a judge or magistrate judge whose
conduct is the subject of a complaint under this subsection,
the judicial council may, if the complaint has been finally
dismissed under paragraph (6)(C), recommend that the Director
of the Administrative Office of the United States Courts award
reimbursement, from funds appropriated to the Federal
judiciary, for those reasonable expenses, including attorneys'
fees, incurred by that judge or magistrate judge during the
investigation which would not have been incurred but for the
requirements of this subsection.
[(17) Except as expressly provided in this subsection,
nothing in this subsection shall be construed to affect any
other provision of this title, the Federal Rules of Civil
Procedure, the Federal Rules of Criminal Procedure, the Federal
Rules of Appellate Procedure, or the Federal Rules of Evidence.
[(18) The United States Court of Federal Claims, the Court
of International Trade, and the Court of Appeals for the
Federal Circuit shall each prescribe rules, consistent with the
foregoing provisions of this subsection, establishing
procedures for the filing of complaints with respect to the
conduct of any judge of such court and for the investigation
and resolution of such complaints. In investigating and taking
action with respect to any such complaint, each such court
shall have the powers granted to a judicial council under this
subsection.]
* * * * * * *
Sec. 375. Recall of certain judges and magistrate judges
(a) * * *
* * * * * * *
(d) A certification under subsection (a) may be terminated
in accordance with [section 372(c)] chapter 16 of this title,
and such a certification shall be terminated upon the death of
the recalled judge or magistrate judge involved.
* * * * * * *
PART III--COURT OFFICERS AND EMPLOYEES
* * * * * * *
CHAPTER 41--ADMINISTRATIVE OFFICE OF UNITED STATES COURTS
* * * * * * *
Sec. 604. Duties of Director generally
(a) The Director shall be the administrative officer of the
courts, and under the supervision and direction of the Judicial
Conference of the United States, shall:
(1) * * *
* * * * * * *
(20) Periodically compile--
(A) * * *
(B) the rules which are prescribed under
section [372(c)(11)] 358 of this title; and
(C) the orders which are required to be
publicly available under section [372(c)(15)]
360(b) of this title;
so as to provide a current record of such rules and
orders;
* * * * * * *
(h)(1) The Director shall, out of funds appropriated for
the operation and maintenance of the courts, provide facilities
and pay necessary expenses incurred by the judicial councils of
the circuits and the Judicial Conference under [section 372]
chapter 16 of this title, including mileage allowance and
witness fees, at the same rate as provided in section 1821 of
this title. Administrative and professional assistance from the
Administrative Office of the United States Courts may be
requested by each judicial council and the Judicial Conference
for purposes of discharging their duties under [section 372]
chapter 16 of this title.
(2) The Director of the Administrative Office of the United
States Courts shall include in his annual report filed with the
Congress under this section a summary of the number of
complaints filed with each judicial council under [section
372(c)] chapter 16 of this title, indicating the general nature
of such complaints and the disposition of those complaints in
which action has been taken.
* * * * * * *
----------
SECTION 7253 OF TITLE 38, UNITED STATES CODE
Sec. 7253. Composition
(a) * * *
* * * * * * *
(g) Rules.--(1) The Court shall prescribe rules, consistent
with the provisions of [section 372(c)] chapter 16 of title 28,
establishing procedures for the filing of complaints with
respect to the conduct of any judge of the Court and for the
investigation and resolution of such complaints. In
investigating and taking action with respect to any such
complaint, the Court shall have the powers granted to a
judicial council under [such section] such chapter.
(2) The provisions of [paragraphs (7) through (15) of
section 372(c)] sections 354(b) through 360 of title 28,
regarding referral or certification to, and petition for review
in, the Judicial Conference of the United States and action
thereon, shall apply to the exercise by the Court of the powers
of a judicial council under paragraph (1) of this subsection.
The grounds for removal from office specified in subsection
(f)(1) shall provide a basis for a determination pursuant to
[paragraph (7) or (8) of section 372(c)] section 354(b) or 355
of title 28, and certification and transmittal by the
Conference shall be made to the President for consideration
under subsection (f).
(3)(A) * * *
(B) The Court shall have the power provided under section
[372(c)(16)] 361 of title 28 to award reimbursement for the
reasonable expenses described in that section. Reimbursements
under this subparagraph shall be made from funds appropriated
to the Court.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, APRIL 24, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. [Presiding.] The Committee will be
in order.
[Intervening business.]
At this point in time, because the gentleman from
California, Mr. Berman, had an appointment, the Committee
stands in recess subject--okay. Then the Chair recognizes the
gentleman from North Carolina, Mr. Coble.
The next item on the agenda is H.R. 3892, the ``Judicial
Improvements Act of 2002.''
[The bill, H.R. 3892, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from North Carolina, Mr. Coble, Chairman of the Subcommittee on
Courts, the Internet, and Intellectual Property, for a motion.
Mr. Coble. Mr. Chairman, the Subcommittee on Courts, the
Internet, and Intellectual Property reports favorably the bill
H.R. 3892, with a single amendment in the nature of a
substitute, and moves its favorable recommendation to the full
House.
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point, and the
Subcommittee amendment in the nature of a substitute which the
Members have before them will be considered as read and be
considered as the original text for purposes of amendment.
[The amendment in the nature of a substitute follows:]
Chairman Sensenbrenner. Again, the Chair encourages
everybody to be brief and recognizes the gentleman from North
Carolina.
Mr. Coble. Mr. Chairman, I move to strike the last word and
I----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Coble. And I can do this within the 5-minute limit.
H.R. 3892 constitutes a noncontroversial fine-tuning of an
existing statute, the Judicial Conduct and Disability Act of
1980, which permits individuals to file complaints against
Federal judges for inappropriate behavior. Mr. Berman and I
have introduced the bill, Mr. Chairman, and there appears to be
no controversy, and I move its favorable consideration.
[The prepared statement of Mr. Coble follows:]
Prepared Statement of the Honorable Howard Coble, a Representative in
Congress From the State of North Carolina
Mr. Chairman, I move to strike the last word.
H.R. 3892 constitutes a noncontroversial fine-tuning of an existing
statute, the ``Judicial Conduct and Disability Act of 1980,'' which
permits individuals to file complaints against federal judges for
inappropriate behavior.
The Subcommittee on Courts, the Internet, and Intellectual Property
conducted an oversight hearing on the operations of federal judicial
misconduct statutes last November 29. The witnesses at the hearing were
united in their general praise for the Third Branch. Their respect for
the federal judiciary is, I am confident, also shared by each Committee
member. Still, no federal entity is immune from periodic evaluation,
and that is why the Subcommittee Ranking Member, Mr. Berman, and I have
introduced H.R. 3892.
The legislation before us will reorganize the 1980 Act by re-
codifying it as a new chapter of title 28 of the U.S. Code. The bill
will also clarify the responsibilities of a circuit chief judge in
making initial evaluations of a complaint.
The changes set forth in the ``Judicial Improvements Act of 2002''
are largely based on procedures that the judges themselves have
developed through the years. The construct for the bill, based as it is
on self-regulation, indicates that Congress and the American people
retain great confidence in the ability of federal judges to identify
and correct misconduct among their own colleagues.
Mr. Chairman, that concludes my explanation of H.R. 3892, and I
yield back the balance of my time.
Chairman Sensenbrenner. Without objection, all Members'
statements may appear in the record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I rise in support of this legislation. H.R. 3892 makes several
changes that will improve vastly the operation of the Federal judicial
discipline statutes.
A preliminary change is to raise the profile of the law pertaining
to complaints filed against judges. By giving these provisions their
own section--as opposed to an obscure subsection as in current law--it
will be easier for persons with complaints to find and understand the
review process.
The legislation also allows the chief judge of the relevant court
to conduct a ``limited inquiry'' of a complaint to determine (1)
whether a formal investigation should proceed, and (2) whether the
facts alleged are plainly untrue or incapable of being established
through an investigation. This provision will preserve the resources of
the judiciary so that it is not required to investigate every complaint
but can focus on those most deserving its attention. At the same time,
a complainant can appeal the final order from a limited inquiry to the
court's judicial council.
Third, current law says that, when a judge is convicted of a
felony, the Judicial Conference may transmit to Congress a
determination that impeachment may be warranted. It is unclear,
however, whether both Federal and state felonies are covered; this
legislation makes it explicit that felonies in both jurisdictions are
grounds for a referral.
Finally, the bill amends to law to prohibit judges later convicted
of felonies from handling cases unless and until the judicial council
or relevant court determines otherwise.
I urge the members to vote ``Yes'' on this non-controversial bill.
[The prepared statement of Mr. Berman follows:]
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress From the State of California
Mr. Chairman,
Thank you for calling this markup on the Judicial Improvements Act
of 2002. This Act makes slight modifications to existing federal
judicial misconduct statutes, and I am pleased to be a co-sponsor.
At our November hearing on the federal judicial misconduct
statutes, several suggestions were made by Professor Arthur Hellman and
Mr. Michael Remington to improve the methods and procedures for filing
and evaluating a complaint against a federal judge. This legislation is
the outcome of those suggestions. In particular, this legislation re-
organizes the misconduct statutes into a more convenient, separate
chapter; it gives a chief judge increased flexibility to perform a
limited investigation of a complaint and dismiss it upon finding
clearly obviating facts; and it specifies how petitions for review
should be evaluated.
I have shown this proposed legislation to several judges with
jurisdiction over my California district, and I have received only
positive responses. The judges believe this legislation will make it
easier for a complainant to have a fair and expeditious review of his
or her complaint. They also believe it will make it easier for the
judicial branch to process each complaint efficiently.
I urge my colleagues to support this bill, and I yield back the
balance of my time.
Are there amendments to the bill? If there are no
amendments to the bill, the question occurs on the amendment in
the nature of a substitute. Those in favor will say aye?
Opposed, no?
The ayes appear to have it. The ayes have it, and the
amendment in the nature of a substitute is agreed to.
The question now occurs on the motion to report the bill
H.R. 3892 favorably as amended by the amendment in the nature
of a substitute. The Chair notes the presence of a reporting
quorum. All those in favor will say aye? Opposed, no?
The ayes appear to have it. The ayes have it, and the
motion to report favorably is adopted.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all Members will be given two days, as provided by House
rules, in which to submit additional dissenting, supplemental,
or minority views.
And now the Subcommittee--or the Committee is recessed
pursuant to the call of the Chair.
[Whereupon, at 12:07 p.m., the Committee was adjourned.]