The Judicial Council
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 24, 1999
In the Matter of a Charge of Judicial
Misconduct or Disability
Judicial Council Complaint
No. 99-1
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BEFORE: Edwards, Chief Judge of the Circuit.
O R D E R
Upon consideration of the complaint herein, filed against a
judge of the Court of Appeals for the District of Columbia
Circuit pursuant to the Judicial Councils Reform and Judicial
Conduct and Disability Act of 1980 and the Rules of the
Judicial Council for the District of Columbia Circuit Govern-
ing Complaints of Judicial Misconduct or Disability, it is
ORDERED, for the reasons stated in the attached Opinion,
that the complaint be dismissed.
The Clerk is directed to send copies of this Order and
accompanying Opinion to complainant and the subject judge.
See 28 U.S.C. s 372(c)(3) (1994); D.C. Cir. Jud. Misconduct
R. 4(f)(1).
____________________________
Harry T. Edwards, Chief Judge
District of Columbia Circuit
The Judicial Council
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 24, 1999
In the Matter of a Charge of Judicial
Misconduct or Disability
---------
Judicial Council Complaint
No. 99-1
---------
BEFORE: Edwards, Chief Judge of the Circuit.
Edwards, Chief Judge: This matter involves a complaint of
judicial misconduct, arising pursuant to the Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980
("Judicial Councils Act"), which seeks to ensure that federal
court of appeals, district, bankruptcy, and magistrate judges
will not "engage[ ] in conduct prejudicial to the effective and
expeditious administration of the business of the courts." 28
U.S.C. s 372(c)(1) (1994). "Any person" who has reason to
believe that a judge has engaged in such conduct may file a
written complaint, along with a brief statement of the facts
constituting such conduct, with the Clerk of the Court of
Appeals. Id. The matter is then referred to the Chief Judge
of the Circuit, who, by written order, may dismiss the com-
plaint if it is (i) not in conformity with section 372(c)(1), (ii)
directly related to the merits of a decision or procedural
ruling, or (iii) frivolous. See 28 U.S.C. s 372(c)(3)(A) (1994);
D.C. Cir. Jud. Misconduct R. 4(c)(1).
The instant complaint involves charges against a judge of
the United States Court of Appeals for the D.C. Circuit who
serves as a member of the division of the court designated to
appoint independent counsels ("Special Division"). See 28
U.S.C. s 49 (1994). The complaint alleges that the judge
engaged in misconduct when the Special Division on which he
serves issued an order directing the Justice Department and
Independent Counsel Kenneth Starr to respond to an Appli-
cation for Judicial Notice and Writ of Prohibition filed by the
Landmark Legal Foundation. For the reasons that follow,
the complaint must be dismissed.
I. BACKGROUND
The Special Division has three members, each of whom is
appointed by the Chief Justice of the United States for a two-
year term. Although the Special Division is in no way
involved with the judicial work of the D.C. Circuit, Congress
created the Special Division as a "division of the United
States Court of Appeals for the District of Columbia [Cir-
cuit]," 28 U.S.C. s 49(a), in order to give the Special Division
a base of operations. One appointee to the Special Division is
selected from the D.C. Circuit, and the other two appointees
are selected from two other Circuits. The appointment of
independent counsels is the principal responsibility of the
Special Division.
The appointment authority of the Special Division is de-
fined in detail in the Ethics in Government Act of 1978, as
amended by the Independent Counsel Reauthorization Acts
of 1987 and 1994 (collectively, "Ethics Act"). See generally
28 U.S.C. ss 591-599 (1994 & Supp. 1995). Under the Ethics
Act, the Special Division acts, upon receipt of an application
from the Attorney General, to designate an independent
counsel charged with the investigation and possible prosecu-
tion of criminal violations by certain high-ranking federal
government officials. See 28 U.S.C. s 593.
The basic facts of Independent Counsel Starr's appoint-
ment and investigation are widely known and need not be
repeated here. See, e.g., United States v. Hubbell, No.
78-3080 (D.C. Cir. Jan. 26, 1999); In re Charge of Judicial
Misconduct or Disability (No. 98-11), 141 F.3d 333 (D.C. Cir.
1998). The latest chapter of the story, which has given rise
to this complaint, began on February 10, 1999, when various
media outlets reported that the Department of Justice had
begun an investigation into whether Independent Counsel
Starr or his staff violated departmental rules and prosecutori-
al guidelines in violation of the Ethics Act. See 28 U.S.C.
s 594(f)(1) ("[A]n independent counsel shall, except to the
extent that to do so would be inconsistent with the purposes
of this chapter, comply with the written or other established
policies of the Department of Justice respecting enforcement
of the criminal laws"). The next day, February 11, 1999,
Landmark Legal Foundation filed an Application for Judicial
Notice and Writ of Prohibition ("Application") instructing the
Attorney General and her staff to cease any investigation of
Independent Counsel Starr and his staff for ethical violations
or other wrongdoing, arguing that the authority to oversee
the conduct of the Independent Counsel is vested in Congress
rather than the Attorney General. On February 19, 1999, the
judge who is the subject of this complaint, along with the
other members of the Special Division, issued a per curiam
order directing the Attorney General and Independent Coun-
sel to respond to Landmark's Application.
On March 8, 1999, complainant filed the instant complaint,
asserting that the subject judge engaged in misconduct by
joining in the order directing the Attorney General and
Independent Counsel to respond to the Application. The
complainant argues that, because the subject judge and the
Independent Counsel previously served together as judicial
colleagues on the D.C. Circuit, the judge's impartiality could
reasonably be questioned if he acted in any case in which Mr.
Starr was a party. Complainant appears to assume that,
because they served together as members of the U.S. Court
of Appeals for the D.C. Circuit for 20 months and "sat on
various, perhaps even numerous, three judge panels" togeth-
er, the judge and Mr. Starr must be close friends. See
Complaint of Judicial Misconduct 99-1 ("Complaint") at 1.
On March 18, 1999, after this complaint had been filed and
after the Attorney General and Independent Counsel had
responded to the Special Division's order, the Special Division
dismissed Landmark's application, finding that Landmark
lacked standing to pursue its claim and that the Ethics Act
does not authorize the Special Division to review any action
by the Attorney General with regard to the Independent
Counsel. In re Madison Guaranty Savings & Loan Ass'n,
Division No. 94-1 (D.C. Cir. Mar. 18, 1999) (per curiam).
II. THE JURISDICTION OF
THE JUDICIAL COUNCIL FOR THE D.C. CIRCUIT
TO CONSIDER THIS MATTER
As a preliminary matter, I note that there is a jurisdictional
question as to whether members of the Special Division are
subject to disciplinary proceedings in this circuit as a result of
the conduct of their duties for the Special Division. See In re
Charge of Judicial Misconduct or Disability (No. 98-11), 141
F.3d 333, 335 (D.C. Cir. 1998); In re Charge of Judicial
Misconduct or Disability (No. 94-8), 39 F.3d 374, 377-79
(D.C. Cir. 1994). This issue has been avoided in prior miscon-
duct proceedings. Once again, I find it unnecessary to ad-
dress the issue here. Rather, I will assume again for pur-
poses of processing the pending complaint that the Judicial
Council for the District of Columbia Circuit has jurisdiction to
consider this case.
III. DOES THE COMPLAINT PRESENT
NON-FRIVOLOUS GROUNDS FOR A
MISCONDUCT PROCEEDING?
In support of his allegations of misconduct, complainant
cites United States v. Tucker, 78 F.3d 1313 (8th Cir. 1996),
and In re Charge of Judicial Misconduct or Disability (No.
95-14), 85 F.3d 701 (D.C. Cir. 1996). Tucker involved a case
in which a District Court judge had dismissed an indictment
secured by the Independent Counsel against Arkansas Gover-
nor Jim Guy Tucker. On appeal, the Eighth Circuit reversed
the dismissal of the indictment. The court then ruled that,
given a possible appearance of partiality, the case should be
reassigned to a different District Court judge on remand. In
Tucker, there had been a variety of news articles connecting
the District Judge and Hillary Rodham Clinton, and the
District Judge himself had publicly indicated that he would
recuse himself if issues arose regarding the Clintons, because
of his relationship with the First Lady. For their part, the
President and Mrs. Clinton reportedly expressed continued
support for Tucker following his indictment. Tucker, in turn,
had publicly claimed that the prosecution against him was
designed to tar the President. Under these circumstances,
the Eighth Circuit concluded that there was an appearance of
partiality and that reassignment to another District Judge
would "preserve the appearance and reality of justice."
Tucker, 78 F.3d at 1324.
Subsequently, in In re Charge of Judicial Misconduct or
Disability (No. 95-14), the Judicial Council of this Circuit
affirmed the dismissal of a misconduct complaint in a case in
which it was claimed that the subject judge's friendship with
a Senator who supported the appointment of an independent
counsel to investigate the late Secretary of Commerce created
an appearance of bias, tainting the subject judge's partic-
ipation in the appointment. The Judicial Council, distinguish-
ing Tucker, said "Tucker would resemble this matter only if
the Senator were the subject of a criminal proceeding over
which the Special Division judge was presiding. Then there
could be room for supposing the judge's rulings might be
affected." In re Charge of Judicial Misconduct or Disability
(No. 95-14), 85 F.3d at 705. The complainant here contends
that the hypothetical situation raised in Charge of Judicial
Misconduct or Disability (No. 95-14) is the precise situation
raised in this case. Complaint at 4. I disagree.
First, there is no reasonable basis upon which to conclude
that the subject judge and the Independent Counsel are close
friends. The fact that the subject judge and the Independent
Counsel sat on various three-judge panels together during the
20 months that they both sat on this court does not necessari-
ly or logically lead to the conclusion that they were close
friends then or that they are close friends now, ten years
later.
Second, the disputed order in this case, in which the Special
Division merely directed the Attorney General and the Inde-
pendent Counsel to "respond" to the Application that had
been filed by Landmark Legal Foundation, is a far cry from
the hypothetical posed in Charge of Judicial Misconduct or
Disability (No. 95-14). In joining an order that merely
sought a response to a filing by a third party, the subject
judge was not "presiding" over a "criminal proceeding" in-
volving a close friend. The order was not in any way a ruling
on the merits of the case. Indeed, following receipt of the
response that had been sought, the subject judge and his
colleagues ruled that "[t]he Special Division has 'no power to
review ... any of the actions of the Attorney General with
regard to the [independent] counsel.' " In re Madison Guar-
anty Savings & Loan Ass'n, slip op. at 7 (quoting Morrison v.
Olson, 487 U.S. 654, 683 (1988)).
Presumably, complainant's concern here was that the sub-
ject judge would seek to thwart any investigation of the
Independent Counsel in order to protect his "friend." The
Special Division's unanimous decision refusing to intervene
and stop the investigation completely undercuts complainant's
allegation of bias. In short, the claim of bias is entirely
unsupported and thus frivolous. See Complaint of Doe, 2
F.3d 308, 311 (8th Cir. Jud. Council 1993) (dismissing as
frivolous unsupported allegations of bias and conspiracy).
IV. CONCLUSION
For the reasons stated above, the complaint is dismissed as
frivolous under 28 U.S.C. s 372(c)(3)(A)(iii) (1994).1
1 Pursuant to 28 U.S.C. s 372(c)(10) (1994) and D.C. Cir. Jud.
Misconduct R. 5, complainant may file a petition for review by the
Judicial Council for the District of Columbia Circuit. Any petition
must be filed in the Office of the Clerk of the Court of Appeals
within 30 days of the date of the Clerk's letter transmitting the
dismissal Order and this Opinion. See D.C. Cir. Jud. Misconduct R.
6(a).