Offering common sense solutions for judicial discipline.
How to file a complaint of judicial misconduct
VARIOUS COMPLAINTS
- Judge Richard Cudahy; Chicago, IL; 7th Circuit
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FOR RUSH FANS: Judge Larry Piersol; South Dakota; 8th Circuit.
A complaint, a dismissal, a petition for review and the final Order. Mr. John Armor, a civil rights attorney who has briefed 18 cases in the Supreme Court over 32 years, peer reviewed the petition for review. He said, the "research and reasoning are excellent."
Nonetheless, this complaint was eventually dismissed by the 8th Circuit. Judge Piersol sat on his longtime friend's case - former Senator Tom Daschle, trying to fix an election for him on election eve.
UPDATE: We discovered, after the fact, that while this complaint was in the system, Judge Piersol is still putting the fix in Charles Mix. That is, he's still mucking around with Indians and elections. We presume the dismissing judges knew this and didn't wish to upset the apple cart.
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Judge Ted Steward; Salt Lake City, UT; 10th Circuit.
Another Full Monty and then some, so you can see the entire process from beginning to end. A complaint, an Order dismissing, a petition for review and the final Order. Plus lots of other paperwork surrounding this interesting case involving a judge who swore a secret oath to one of the parties at trial. Plaintiff's attorneys filed four motions for recusal of this compromised judge and even sought a writ of mandamus from the 10th Circuit. (It's all in the link.)
This is especially ironic, since it was the 10th Circuit that instigated Judicial Complaint Legislation decades ago. They were trying to remove a judge who was delinquent in his duties, but had no real authority to do so. Congress swooped in and wrote the Judicial Conduct Act of 1980. Back then, the 10th tried to do the right thing. Today... ?
- We can see the handwriting on the wall here. It seems we're destined to gather complaints from all 13 Circuits. We're not superstitious, but 13 isn't looking like a winner here.
SOME SCHOLARSHIP
Here is what we hope will be a large list of our research that might be useful for battling common arguments from chief judges dismissing your complaint. You would use these, when appropriate, in your petition for review.
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Probably our most important work is on Rule 1(e). Here is de facto proof that the complaint system cannot work the way the Circuit Rules have hamstrung the law Congress gave them. (This text from a letter we sent to the Judicial Conduct and Disability Act Study Commission.)
MORE on Rule 1(e) > >
A common thread in dismissing complaints is the assertion that "it is well-settled that the complaint procedure 'may not be used to have a judge disqualified from sitting on a particular case'. Rule 1(e)" But this rule violates the law. The 3rd Circuit has it right in their parallel version of their Rule {also 1(e)}: "The complaint procedures may not ordinarily be used to have a judge disqualified or recused from a case." The implication - not only logical, but necessary - is that, in some circumstances, sometimes it can. And rightly so.
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On "confidentiality."
Wow, there sure is a lot of inertia on this one. It's like trying to argue the 2nd Amendment really means what it says when it says "the right of the people to keep and bear Arms, shall not be infringed." And so it is with the plain reading of the law on confidentiality, 28 U.S.C. §360.
This statute is often used as an excuse to deny disclosure about any complaint involving a judge. However, that statute narrowly deals with "investigations." Here we agree with the commentator in the 9th and - our now our favorite - the 3rd Circuit. In their Rules Governing Complaints of Judicial Misconduct, they correctly note that "the reference to investigations suggests that §360 technically applies only in cases in which a special committee has been appointed." [1] Amen? That would be proper, akin to a secret Grand Jury investigation, but no more.
Hiding behind "confidentiality" to protect judges from public scrutiny is anathema to an open society. But the fox is guarding the henhouse at the Judicial Branch and cleverly interprets the law Congress wrote for it.
[1] See "Commentary on Rule 15" in the 3rd Circuit's Rules.
WHAT NOT TO COMPLAIN ABOUT
Like complaining to the grunt behind the cash register about the high price of gas, there are some complaints that are simply pointless or misdirected. The poor person behind the register has absolutely NO control over the price of gas. Even if you complain to the gas station owner, complaining after you buy the gas is pointless. You already voted to pay the high price and now you're simply grumbling about it.
So here are some examples of what NOT to write. We include them here for instructional purposes. We don't mean to denigrate anyone. Even though some of these examples are misdirected, they're very professionally crafted, and you might do well to copy some of their presentational elements.
- This complaint is VERY professionally done. (PDF) While we feel sorry for Mrs./Miss Finney, her letter to the Judicial Conduct & Disability Act Study Committee is misdirected. She restates her complaint, hoping the Committee will grant her relief. That is not within the Committee's power. Ostensibly, the Committee's informal task is to evaluate whether the Complaint system is working or not. She eventually gets around to issues for the Committee, notably the issue of recusal of the entire 9th Circuit from her case. However, we're not aware of any provision in the Judicial Improvements Act of 2002 that allows for a mass complaint against an entire circuit. Nor do we understand how that would work, since the entire process is incestuous, the circuit evaluating itself.
Examples of discipline
We're not fans of The American Judicature Society. (It's a Mutual Admiration Society for those who play in the judiciary.) We talked with Cynthia Gray (Director AJS Center for—ostensibly—Judicial Ethics) a few years ago. Unless their editorial policy has changed, they're part of the problem, holding that judges should never be criticized as Congressman Sensenbrenner, Chairman, House Committee on the Judiciary, did in March 2004. (That's his job.)
Here's their snooty editorial.
This flawed thinking persists as late as May, 2006, as evidenced in a webchat with Lefty Mr. Russell R. Wheeler, who used to work at the Federal Judicial Center. See our editorial on our News page.
Still, they publish a rolling list of news stories covering judges who have been disciplined. It's somewhat encouraging to see some complaints making it through the system and can give you an idea of what makes a valid complaint.
Here are some examples of discipline we found on our own as we continue to make this a reluctant hobby:
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Judge Diana R. Hall. Superior Court of California, Santa Barbara County. It doesn't have to be willful, but that's the worst.
A panel of judges has found that Judge Diana Hall displayed "willful misconduct" while on the job, a conclusion that could lead to her removal from the Santa Barbara County Superior Court bench.
Hall, who hears civil cases in Santa Maria, is charged by the state Commission on Judicial Performance with drunken driving, campaign-finance fraud and inappropriate courtroom behavior.
The third allegation, which charges that Hall improperly questioned a prosecutor who attempted to disqualify her from a case, was found to be the most serious in a report issued by three "special masters" who conducted a disciplinary hearing for Hall in April.
We don't know who filed this complaint, and we may never know. Some jurisdictions keep the name of the complainant confidential too. (Seems reasonable.)
You can read the rest of the story for yourself, but the sad part is,
Hall, whose six-year term as judge ends in 2008, can appeal any punishment to the California Supreme Court.
That is, she can lawyer-delay this out forever and it could ultimately be other judges, not citizens, who make the disciplinary decision. Until re-election time, anyway. Then it's YOUR job, if you're a resident of California, to enforce judicial discipline.
More to come. Contact us if you have a link or have filed a complaint and received an order.
As mentioned in our booklet, Congressman Sensenbrenner's complaint against Judge Cudahy. (PDF) If anyone should know how to write a complaint, the staff of the Chairman of the House Subcommittee overseeing the judiciary should.