Offering common sense solutions for judicial discipline
How to file a complaint of judicial misconduct
On Rule 1(e). It's wrong. Tell them so.
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.
Take for example the simplest case not involving the "nebulous," subjective, moral issue of misconduct but rather the objective, amoral issue of disability. Judge Kozinski observed that "Disability, mental or physical, is not one of the grounds enumerated in §§ 144, 455 or any other statute; it is, therefore, not a proper basis for seeking a judge's recusal. The only recourse when a judge is believed to be disabled is to complain to the circuit judicial council." (United States v. Washington, 98 F.3d 1159, 9th Cir. 10/23/1996)
Therefore, if one of the parties at trial noticed symptoms of Alzheimer's in their judge, their only recourse is to file a complaint of disability. If the council investigates, calls other doctors who confirm the diagnosis, that judge is disqualified from sitting on that case. So then, the complaint procedure CAN be used to have a judge disqualified from sitting on a particular case. The same should hold if I, as a neurologist, while watching CourtTV (i.e., a non-litigant) notice signs of Alzheimer's in a judge and similarly file a complaint. (Since "any person" can file a complaint.) If my diagnosis is confirmed, the judge is disqualified. Again, the complaint procedure can be used to disqualify a judge, contrary to the assertion that it cannot. In the case of disability, this is quite proper and to be expected, especially as judges live longer and incidents of disability correspondingly increase.
Now, let's expand this to the issue at hand - misconduct, using Judge Jackson in the Microsoft case. (United States v. Microsoft Corp., 253 F.3d 34, 113, D.C. Cir. 2001) The court remanded the trial to a different judge because Judge Jackson gave "rise to an appearance of partiality." It said " ...we hold that the actions of the trial judge seriously tainted the proceedings before the District Court and called into question the integrity of the judicial process." In its decision, the court used the Code of Conduct as black letter law, a binding requirement on federal judges, citing "violation" as de facto judicial misconduct. The court found Judge Jackson's "violations were deliberate, repeated, egregious, and flagrant." The court "disqualified" Judge Jackson saying "we vacate the Final Judgment on remedies, because the trial judge engaged in impermissible ex parte contacts ... giving rise to an appearance of partiality."
Now, instead of Microsoft, a litigant at trial, claiming impropriety in court on appeal, suppose I, a non-litigant, had made the exact same case to the chief judge in the form of a complaint. Should the outcome be any different? No! Impropriety is impropriety, no matter who brings the charge. Judge Jackson needed to be disqualified from sitting on the case because he appeared biased. It ought not matter if a party at trial raises the issue of impropriety or whether a good citizen raises it. So again, a complaint can sometimes be used to disqualify a judge. Rule 1(e) as written in all but the 3rd circuit, is unlawful.
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