In Re Complaint of Judicial Misconduct

Corrected reprint 06/26/09

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT



IN RE COMPLAINT No. 08-90113
OF JUDICIAL MISCONDUCT
 ORDER

Filed June 24, 2009

ORDER

KOZINSKI, Chief Judge:

A misconduct complaint has been filed against a district
judge. Complainant filed a pro se federal habeas petition, and
the matter was assigned to the subject judge. The judge also
presided over a state civil suit by complainant prior to joining
the federal bench.

The bulk of complainant’s allegations involve the judge’s
rulings as a state court judge in the earlier proceeding.
Because the plain language of the Judicial Conduct and Dis-
ability Act limits its scope to conduct by federal judicial offi-
cers, 28 U.S.C. §§ 351(a) and (d)(1), these allegations must be
dismissed. See also Judicial-Conduct Rules 4 and 11(c)(1)(G);
In re Complaint of Judicial Misconduct, No. 06-89087 (9th
Cir. Jud. Council 2007). Congress limited the scope of mis-
conduct proceedings in order to preserve the constitutional
scheme of presidential appointment and legislative confirma-
tion:

The judicial branch has no constitutional role in con-
sidering the fitness of an individual to assume judi-
7713
7714 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
cial office. Congress noted the differing roles of the
coordinate branches in relation to judicial fitness,
and recognized that “[b]ecause of the separation of
powers principle established by the Constitution,
these roles must remain separate.”

In re Charge of Judicial Misconduct, No. 83-8037, at 25-26
(9th Cir. Jud. Council 1986) (Browning, C.J.) (quoting H.R.
Rep. No. 1313 at 5). It “would be incompatible with this con-
stitutional principle” to sanction a judge for conduct preced-
ing confirmation. Id. at 26.

Chief Judge Browning expounded on these principles in an
opinion that was rendered long before orders in judicial mis-
conduct cases were published on our web page. Indeed, at the
time, the internet was little more than an obscure government
research project. Because the opinion contains much useful
analysis on this issue, it is appended and incorporated in part
by reference.

To the extent complainant attempts to allege that the judge
should have recused himself from the habeas petition, this
allegation relates directly to the merits of the judge’s rulings
and must be dismissed. See 28 U.S.C. § 352(b)(1)(A)(ii);
Judicial-Conduct Rules 3(h)(3)(A) and 11(c)(1)(B). A mis-
conduct complaint is not a proper vehicle for challenging the
merits of a judge’s rulings. See In re Charge of Judicial Mis-
conduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council 1982).

Complainant’s allegations against other state court judges
are also dismissed, as the Act only applies to federal judges.
See Judicial Conduct Rule 4.

DISMISSED.
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7715
APPENDIX

UNITED STATES JUDICIAL COUNCIL

FOR THE NINTH CIRCUIT
IN RE CHARGE OF No. 83-8037

JUDICIAL MISCONDUCT ORDER

Filed March 5, 1986

Before: James R. Browning, Chief Judge

A complaint has been filed against a district judge in this
circuit pursuant to the Procedures of the Ninth Circuit Relat-
ing to the Handling of Complaints of Judicial Misconduct
Under 28 U.S.C. § 372(c), 28 U.S.C., 9th Cir. R. App. B
(West Supp. 1985), issued under the Judicial Councils Reform
and Judicial Conduct and Disability Act of 1980. 28 U.S.C.
§§ 332, 372, 604 (1982).

Complainant alleges acts of misconduct over a period of
years. The allegations relate to conduct before the judge was
appointed to the bench, and to both official and non-official
conduct after his appointment. The difficult question posed by
this complaint is whether the Act covers all of these allega-
tions or only those relating to misconduct that adversely
affects the functioning of the courts or the performance by the
judge of his official duties. To resolve this question, I will
first discuss the legislative history of the Act and then address
the specific allegations of the complaint.

I.

The legislative history of the Act reflects a long and hotly
debated effort by Congress to balance a perceived need for
public accountability of members of the federal judiciary
7716 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
against the need to preserve the independence of the judiciary
and maintain the constitutional separation of powers. The
debates focused on three primary elements of several legisla-
tive proposals: the forum that would consider complaints of
judicial misconduct, the sanctions that would be available,
and the types of conduct that would be covered. With regard
to the conduct covered, congressmen, witnesses and commen-
tators were divided into two camps.

One group believed public accountability and maintenance
of public confidence in the judiciary were the primary goals,
and the legislation therefore should create a system to deal
with all allegations that a judge had engaged in conduct or
was subject to a condition that would undermine public
respect and trust in the judge and, because of his presence on
the bench, in the judicial process itself. The model for this
approach was found in state judicial disciplinary systems,
which typically reached “willful misconduct in office, willful
and persistent failure to perform duties of the office, habitual
intemperance, or other conduct prejudicial to the administra-
tion of justice that brings the judicial office into disrepute.” S.
Rep. No. 1035, 95th Cong., 2d Sess. 32-33 (1978) (hereinafter
S. Rep. No. 1035).

The other group, including the Judicial Conference of the
United States, argued that the legislation should provide an
administrative process for solving problems that involved
interference with the effective conduct of the business of the
courts, specifically problems created by the conduct or condi-
tion of a judge that impeded the fair and prompt disposition
of litigation. The concern for the public’s perception of the
courts was tempered by a concern for preserving the indepen-
dence of federal judges by limiting their exposure to personal
harassment and abuse. The judicial councils of the circuits
had exercised such administrative oversight for forty years
under the authority of 28 U.S.C. § 332 (1964) (amended
1980), which required the councils to “make all necessary
orders for the effective and expeditious administration of the
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7717
business of the courts.” Proponents of this approach argued
that no additional statutory authority was necessary to assure
judicial accountability or, at most, that codification of existing
procedures would suffice. The provisions ultimately included
in the Act conformed more nearly to this administrative
approach.

A. Predecesssors to S. 1873

In 1966 the Senate Subcommittee on Improvements in
Judicial Machinery of the Committee on the Judiciary, under
the chairmanship of Senator Tydings, began hearings on the
problem of the “unfit judge.” See Judicial Tenure Act: Hear-
ings on S. 1423 Before the Subcomm. on Improvements in
Judicial Machinery of the Senate Comm. on the Judiciary,
95th Cong., 1st Sess. 61-62 (1977) (statement of Sen. Tyd-
ings) (hereinafter 1977 Senate Subcomm. Hearings). After
two years of study, Senator Tydings introduced the first judi-
cial conduct and disability legislation of recent years, S. 3055,
90th Cong., 2d Sess. (1968), subsequently amended and rein-
troduced as S. 1506, 91st Cong., 1st Sess. (1969).

S. 1506 proposed creation of a Commission on Judicial
Disabilities and Tenure with authority to investigate “the offi-
cial conduct of any judge of the United States . . . to deter-
mine whether the conduct of such judge is and has been
consistent with the good behavior required by [article III of
the Constitution].” Id., reprinted in 1977 Senate Subcomm.
Hearings 64, 65. Senator Tyding’s bill, which was heavily
influenced by state models, particularly California’s Commis-
sion on Judicial Qualifications, provided for removal of mis-
behaving or disabled federal judges. 1977 Senate Subcomm.
Hearings at 62 (statement of Sen. Tydings). The legislation
did not receive substantial support, primarily because of
opposition from those who believed impeachment to be the
only means by which federal judges could be removed from
office under the Constitution. Id. at 63, 76-77.
7718 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
The next major attempt to create a statutory system of judi-
cial discipline occurred in 1975 when Senator Nunn intro-
duced S. 1110, 94th Cong., 1st Sess. (1975), the Judicial
Tenure Act. That Act, like its predecessor, proposed an inde-
pendent review council to investigate and remove federal
judges for conduct “inconsistent with the good behavior
required by article III section 1 of the Constitution.” S. 1110
§§ 2(a), 3(a)(1), reprinted in Judicial Tenure Act: Hearings
on S. 1110 Before the Subcomm. on Improvements in Judicial
Machinery of the Senate Comm. on the Judiciary, 94th Cong.,
2d Sess. 4-5, 16 (1976) (hereinafter 1976 Senate Subcomm.
Hearings). Again the hearings focused on the constitutionality
of this type of disciplinary scheme, with little elaboration on
the specific conduct that would violate the “good behavior”
standard. One witness before the Subcommittee urged that the
“good behavior” standard be defined in the statute as includ-
ing criminal misconduct in office, embezzlement, bribery,
corruption, abuse of office, neglect of duty, habitual intemper-
ance, 1976 Senate Subcomm. Hearings at 94-96, 112-13 (tes-
timony of Prof. Raoul Berger). Other witnesses suggested that
the standard include conduct prejudicial to the administration
of justice which brings the judicial office into disrepute. Id. at
48 (statement of John A. Sutro, Chairman, Standing Commit-
tee on Judicial Selection, Tenure and Compensation of the
American Bar Association), 119 (statement of Jack E. Frankel
quoting the standards of the California Commission on Judi-
cial Qualifications).

Without further definition of the “good behavior” standard,
the Subcommittee reported S. 1110 to the Judiciary Commit-
tee, but Congress adjourned without action by the full Com-
mittee.

In 1977 Senators Nunn and DeConcini introduced S. 1423,
95th Cong., 1st Sess. (1977), a second Judicial Tenure Act. S.
1423 was substantially the same as prior proposals; it pro-
vided for an independent commission to consider complaints
for violation of the “good behavior” standard with removal as
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7719
a possible sanction. 1977 Senate Subcomm. Hearings at 1
(statement of Sen. DeConcini). For the first time, the legisla-
tion defined conduct inconsistent with the “good behavior”
standard as including “wilful misconduct in office, wilful and
persistent failure to perform duties of the office, habitual
intemperance, or other conduct prejudicial to the administra-
tion of justice that brings the judicial office into disrepute,” S.
1423 § 2(a), reprinted in id. at 14-15 — the standard common
in state statutes. Although some witnesses argued that the
constitutional phrase “good behavior” should be left unde-
fined, see 1977 Senate Subcomm. Hearings at 113-14 (state-
ment of J. Michael McWilliams on behalf of the Standing
Committee on Judicial Selection, Tenure and Compensation
of the American Bar Association), the argument was rejected.
S. Rep. No. 1035 at 33. By adopting the standard used in
many state judicial disciplinary systems, the Committee
believed a body of case law would be available to aid the judi-
cial discipline tribunal in applying the statute to specific
cases. Id. at 33-36. The Senate Committee Report on S. 1423
also quotes the statement from the California Supreme
Court’s opinion in Geiler v. Commission on Judicial Qualifi-
cations, 10 Cal. 3d 270, 515 P.2d 1 (1973), that the disrepute
standard covers “unjudicial conduct committed in bad faith by
a judge not then acting in a judicial capacity.” S. Rep. No.
1035, at 34. S. 1423 was approved by the Senate in the 95th
Congress, but received no attention in the House.

B. S. 1873

The Judicial Conference had approved the Nunn-
DeConcini bill “in principle” before it passed the Senate.
After passage, however, the Conference restated its position
to make it clear that the Conference disapproved any legisla-
tive proposal that included power to remove a federal judge
by means other than impeachment. Report of the Proceedings
of the Judicial Conference of the United States 49-50 (Sept.
1978). In view of the Conference’s opposition, it appeared
unlikely the House of Representatives would approve any
7720 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
proposal permitting removal. The Senate Subcommittee on
Improvements in Judicial Machinery then began work on S.
1873, 96th Cong., 1st Sess. (1979), a proposed compromise
judicial tenure and discipline bill. S. 1873 did not allow for
removal of misbehaving or disabled judges, nor did it create
an independent review commission outside the judiciary. The
bill placed primary responsibility for resolution of allegations
against federal judges in the judicial council of each circuit,
but created a centralized Court on Judicial Conduct and Dis-
ability to review council action. S. Rep. No. 362, 96th Cong.,
1st Sess. 2-3 (1979) (hereinafter S. Rep. No. 362).

The early draft of S. 1873 also replaced the “good behav-
ior” standard of prior proposals with the requirement that a
complainant allege conduct “inconsistent with the effective
and expeditious administration of the business of the courts”
or “prejudicial to the administration of justice by bringing the
judicial office into disrepute.” The first element of this new
dual standard was taken from the provision of the Administra-
tive Office Act of 1939 which created the judicial councils of
the circuits and gave them authority to “make all necessary
and appropriate orders for the effective and expeditious
administration of the courts within the circuit.” 28 U.S.C.
§ 332 (1964) (amended 1980); see generally Administration
of United States Courts: Hearings on H.R. 2973 and H.R.
8999 Before the House Comm. on the Judiciary, 76th Cong.,
1st Sess. (1939); Administration of United States Courts:
Hearings on S. 188 Before a Subcomm. of the Senate Comm.
on the Judiciary, 76th Cong., 1st Sess. (1939). The second
element of the dual standard utilized language from state
models such as that of California, and focused on the public
perception of the judiciary rather than on the effective func-
tioning of the judicial system.

The Judicial Conference opposed both the creation of a
centralized Court on Judicial Conduct and Disability and the
adoption of a dual standard for determining the conduct cov-
ered. The Conference pointed out to Congress that the circuit
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7721
council, acting solely under the administrative authority con-
ferred upon them by section 332, and without outside inter-
vention, had established administrative procedures for
handling complaints of judicial misconduct, and had for many
years dealt quietly, informally, and effectively with “problem
judges” — disabled judges, alcoholic judges, senile judges,
procrastinators. The Judicial Conference recommended to
Congress that if any legislation were enacted, it be modeled
on this existing procedure. Judicial Tenure and Discipline —
1979-80: Hearings Before the Subcomm. on Courts, Civil Lib-
erties, and the Administration of Justice of the House Comm.
on the Judiciary, 96th Cong., 1st and 2d Sess. 56-58 (testi-
mony of Judge Hunter); 62-63 (March 1979 Resolution of the
Judicial Conference of the United States) (hereinafter 1979-80
House Subcomm. Hearings).

During the full committee markup the “disrepute” element
of the dual standard was deleted from the bill. As Senator
Thurmond later stated on the Senate floor, “[t]his so-called
disrepute standard was dropped because it was felt that this
standard could be too intrusive on the judge’s personal life
and was subject to possible abuse.” 125 Cong. Rec. 30,050
(1979) (statement of Sen. Thurmond).

The Judiciary Committee’s Report to the Senate contains
ambiguous and contradictory statements regarding the con-
duct covered. The Report first states that the council may dis-
miss any complaint that is “without jurisdiction” or is
“insufficient under the standards prescribed by the legisla-
tion,” that is, which does not allege “conduct inconsistent
with the effective and expeditious administration of the busi-
ness of the courts,” S. Rep. No. 362 at 2, and that
“[c]omplaints relating to the conduct of a member of the judi-
ciary which are not connected with the judicial office or
which do not affect the administration of justice are without
jurisdiction . . . .” Id. at 3. The report also states that the object
of S. 1873 “is to remedy matters relating to a judge’s condi-
7722 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
tion or conduct which interferes with his performance and
responsibility. Id. at 6.

Other statements in the Report, however, point in a differ-
ent direction. After stating that the legislation was primarily
intended to reach conduct which falls short of that required
for impeachment, the Report notes “[t]here have been docu-
mented instances and allegations of judicial misconduct . . .
that do not rise to the level of constitutional prescription
found in Article II, section 4, but which do bring the Federal
judiciary into disrepute. Such judicial misbehavior should be
investigated and, when warranted, remedied.” Id. at 5. The
sectional analysis in the Senate Report also suggests a broad
coverage for the Act similar to that of state systems, not lim-
ited to conduct interfering with the effective operation of the
courts but extending to any conduct bringing the judicial
office into disrepute:

The standards spelled out in the statute are to be
given their common usage and already existing stat-
utory understanding . . . . “Effective and expeditious
administration of the business of the courts” is lan-
guage already found in section 332 of title 28 and is
intended to include willful misconduct in office,
willful and persistent failure to perform duties of the
office, habitual intemperance, and other conduct
prejudicial to the administration of justice that brings
the judicial office into disrepute. Each of these terms
are terms which have been in use in several states
which have existing judicial disability and disciplin-
ary systems. Further, it is the intention of the Com-
mittee that the judicial council may consider, but is
not bound by, other factors in determining whether
the behavior of the judge is consistent with that spec-
ified in the bill. They include the following: (1) the
Cannons [sic] of Judicial Ethics of the American Bar
Association and the Code of Judicial Conduct for the
United States Judges, as approved by the Judicial
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7723
Conference of the United States, (2) Resolutions of
the Judicial Conference of the United States relating
to judicial conduct, and (3) Acts of Congress relating
to judicial conduct.

The Committee believes that the use of these
grounds as specified in state law tends to make them
“terms of art”. This offers a body of case law which
will aid the judicial councils and the Court on Judi-
cial Conduct and Disability in applying federal law
to specific cases as they arise.

If it is true that the specified grounds for [sic]
becoming “terms of art”, the Committee does not
believe that it should attempt in this report to add a
legislative gloss to the terms. The testimony given at
the committee hearings on this bill and its predeces-
sor will aid in interpretation.

Id. at 8-9.

Much of this discussion in the Senate Report on S. 1873
was taken verbatim from the Senate Committee Report on S.
1423, the predecessor to S. 1873. See S. Rep. No. 1035 at 32-
36. As we have seen, however, the earlier statute, S. 1423,
adopted the “good behavior” standard and defined it, follow-
ing state models, as including “conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute.” Id. at 32 (emphasis added). S. 1873, on the other
hand, replaced the “good behavior” language with the phrase
“conduct inconsistent with the effective and expeditious
administration of the business of the courts,” and deleted the
reference to conduct “that brings the judicial office into disre-
pute.” Ignoring these changes, the Report on S. 1873 simply
copied the language used in the earlier report. S. Rep. No. 362
at 8-9.

The Senate Report on S. 1873 suggests that in determining
whether particular conduct is covered, the chief judges and
7724 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
judicial councils of the circuits should give the statutory stan-
dards “their common usage and already existing statutory
understanding.” Id. Unfortunately, it appears from the proce-
dures formulated by the circuits for handling complaints of
judicial misconduct under section 332 prior to the enactment
of the statute, that there was no consensus among them as to
the meaning of the phrase in section 332 in relation to mis-
conduct by judges.

The focus of the debate in the Senate was the constitution-
ality of any legislation permitting discipline of federal judges
by means other than impeachment. See 125 Cong. Rec.
30,044-64 (1979) (statements of Sen DeConcini, Sen. Thur-
mond, Sen. Laxalt, Sen. Mathias, Sen. Heflin, Sen. Nunn, &
Sen. Bayh). Little was said about the kind of conduct that was
to be subject to the procedures established by the Act. Two
senators commented on the subject. As noted earlier, Senator
Thurmond called attention to the deletion by the Judiciary
Committee of the “disrepute” standard and the reasons for
that deletion:

I feel it is also appropriate to comment on the stan-
dards which were not included in the final draft of S.
1873. During the full committee markup of this bill,
the members of the committee agreed, at the sugges-
tion of the senior Senator from Indiana, to delete a
third standard which allowed the filing of a com-
plaint if the judge had engaged in conduct prejudicial
to the administration of justice by bringing the judi-
cial office into disrepute. This so-called disrepute
standard was dropped because it was felt that this
standard could be too intrusive on the judge’s per-
sonal life and was subject to possible abuse. The
deletion of the disrepute standard was also requested
by the Administrative Office of the U.S. Courts.

125 Cong. Rec. 30,050 (1979) (statement of Sen. Thurmond).
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7725
Senator Bayh commented on his understanding of the stan-
dard:

The bill before us today is designed to handle mis-
conduct by a judge which interferes “with the effec-
tive and expeditious administration of the business
of his court,” in other words his behavior as it affects
his job as a judge: For example, whether he is behind
in handling cases, or having a drinking problem, or
suspected of having a conflict of interest in the cases
before him.

Id. at 30,062 (statement of Sen. Bayh).

S. 1873 also allows judges to be independent to live
their personal lives as they see fit. Extrajudicial hab-
its and behavior are outside the reach of the bill. It
is only when a judge’s behavior affects his perfor-
mance on the bench that a complaint is valid. This
again is as it should be.

Id. at 30, 064.

C. House Consideration

Shortly before S. 1873 was reported out of the Judiciary
Committee of the Senate, the House began the consideration
of legislation on judicial disability and tenure. Hearings on
proposed legislation were held by the House Subcommittee
on Courts, Civil Liberties, and the Administration of Justice
beginning in July 1979. As in the Senate, most of the discus-
sion was directed at the constitutionality of judicial discipline
legislation and the need to establish a system that would mini-
mize the threat to judicial independence. Such comment as
appears concerning the conduct to be covered reflected an
understanding that the standard, as written, was limited in
coverage to conduct interfering with the fair and efficient
operation of the courts.
7726 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
Senator DeConcini, a strong proponent of judicial disci-
pline legislation and a sponsor of S. 1873, testified that the
procedures were intended to address complaints against
judges “who through their arrogance continue to operate when
conflicts of interest have been brought to their attention, to
take such actions that indicate their disregard for recognized
criminal procedure, [or] rules of procedure adopted by the
court itself.” 1979-80 House Subcomm. Hearings at 27 (state-
ment of Sen. DeConcini). Although many congressmen
voiced their opinions regarding the legislation during the
hearings, none of these comments bear on the issue of what
conduct fell within the standards.

Many non-congressional witnesses, however, made clear
their understanding that the standards, as written, were limited
in scope to conduct interfering with the fair and efficient oper-
ation of the courts.

Judge Elmo Hunter, appearing on behalf of the Judicial
Conference of the United States, noted that “judges have no
right to be insulated from the consequences of their own mis-
behavior when it impairs the proper operation of the courts
and the administration of justice.” Id. at 55 (statement of
Judge Hunter). He remarked that “the kind of ‘judicial misbe-
havior’ which is relevant is misbehavior which interferes with
the effective and expeditious administration of the business of
the courts.” Id. at 60, 67.

The Department of Justice objected to use of such an
administrative standard of misconduct, arguing that a broader
standard was needed to reach conduct which, though unre-
lated to the administration of the courts, “would tarnish in the
popular perception the image of the Federal courts.” Id. at 170
(testimony of Maurice Rosenberg, Assistant Attorney Gen-
eral). The Department urged a return to a standard initially
proposed and ultimately rejected in the Senate, defining mis-
conduct “as action ‘inconsistent with the good behavior
required by article III, section 1, of the Constitution,’ includ-
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7727
ing, but not limited to, ‘willful misconduct in office, willful
and persistent failure to perform duties of the office, habitual
intemperance, or other conduct prejudicial to the administra-
tion of justice that brings the judicial office into disrepute.’ ”
Id. at 163 (footnote omitted). According to the Department
spokesman, the administrative standard would not reach mis-
behavior the Department believed required action, but which
“wouldn’t have to do with the business of the courts, or the
expeditious movement of that business,” id. at 170, citing as
examples that a “judge might get into shady business deals or
inappropriate financial entanglements . . . . A judge might get
into a drunken brawl at a social party, private or public . . .
[or a] judge might gamble heavily, notoriously, and with very
bad company.” Id. at 169-70.

The American Bar Association’s Standing Committee on
Judicial Selection, Tenure and Compensation shared the
views of the Department of Justice. The ABA Committee
commented:

The language proposed by the judges: “conduct
inconsistent with the effective and expeditious
administration of the courts” is taken from 28 U.S.C.
§ 332. That section deals with administration and is
inappropriate as a specification of the grounds for
judicial discipline.

Id. at 213. (exhibit B to letter from Herbert H. Anderson,
member, American Bar Association Standing Committee on
Judicial Selection, Tenure and Compensation). The Commit-
tee’s suggested list of conduct to be covered included “willful
misconduct which although not related to judicial duties,
brings the judicial office into disrepute,” and “[c]onduct prej-
udicial to the administration of justice or conduct unbecoming
a judicial officer, whether conduct in office or outside of judi-
cial duties, that brings the judicial office into disrepute.” Id.

H.R. 7974, 96th Cong., 2d Sess. (1980), the Judicial Coun-
cils Reform and Judicial Conduct and Disability Act of 1980,
7728 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
emerged from these hearings. The House proposal adopted
the administrative standard drawn from section 332, as had
the Senate’s, but departed from the Senate proposal by requir-
ing that included conduct be “prejudicial to” rather than
merely “inconsistent with” the effective and expeditious
administration of the business of the courts, thus indicating
that a causal connection was required between the alleged
misconduct and the administration of the courts. Compare S.
1873, 96th Cong., 1st Sess. § 2 (1979), reprinted in 125 Con.
Rec. 30,100 (1980) with 28 U.S.C. § 372(c)(1). The House
bill provided that actions taken by the circuit councils were to
be reviewed by the Judicial Conference rather than by a Court
of Judicial Conduct and Disability as provided in the bill
enacted by the Senate. Thus, the House bill incorporated both
of the major revisions in the Senate bill proposed by the Judi-
cial Conference.

In doing so, the House Committee impliedly rejected the
criticisms of the administrative standard based on section 332.
There is no express comment on these criticisms, however, in
the Committee report accompanying the bill. The report sim-
ply states that a complainant need only allege that a judge
“has engaged in conduct that is inconsistent with the effective
and expeditious administration of the business of the courts,”
H.R. Rep. No. 1313, 96th Cong., 2d Sess. 10 (1980) (herein-
after H.R. Rep. No. 1313), and that the chief judge “may dis-
miss the complaint if it does not relate to the effective,
expeditious and fair administration of justice within the cir-
cuit.” Id. The Report notes the concern that an “adversary
accusatorial proceeding raised the dangers of a substantial
chilling effect on judicial independence, as well as the danger
of infliction of harm and disruption on the administration of
justice,” id. at 18 (footnote omitted), and states that the bill
reported by the Committee would create “an administrative
remedy, as opposed to the purely adjudicative and adversarial
model that has prevailed in the past for such legislation.” Id.
at 4; see also id. at 14.
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7729
The House Report is not entirely without ambiguity with
respect to coverage, however. It notes that one of the goals of
the legislation is “to promote respect for the principle that the
appearance of justice is an integral element of this country’s
justice system,” id. at 1, refers to the Act covering complaints
of “unfitness,” id. at 5, and suggests that the Act would apply
to “an allegation that several judges have engaged in activities
demeaning to the bench; assume, for example, that . . . a large
number of judges became intoxicated in a bar of ill repute.”
Id. at 12. Finally, the Report refers to the administrative stan-
dard and then states, “[c]learly, this incorporates complaints
regarding impeachable behavior, [and] violations of the crimi-
nal laws of any State or the United States.” Id. at 10.

H.R. 7974 was unanimously reported to the House of Rep-
resentatives by the Judiciary Committee. There was no refer-
ence to the conduct intended to be covered by the bill in the
debates preceding the vote, except an occasional quotation of
the statutory standard. Congressman Kastenmeier moved to
substitute the provisions of the House bill for the provisions
of the Senate bill, S. 1873. The House agreed to the motion
and unanimously passed the legislation by voice vote on Sep-
tember 15, 1980. 126 Cong. Rec. 25,372-74 (1980). The Sen-
ate passed the amended version of S. 1873 two weeks later
with minor changes subsequently ratified by the House.

II.

The legislative history of the Act, particularly in the Senate,
contains ambiguous and inconsistent evidence of legislative
intent. A clearer picture emerges, however, from a review of
the chronological development of the legislation.

Earlier proposals in the Senate were broad, covering a wide
range of conduct, establishing an independent adjudicatory
court and authorizing sanctions as severe as removal from
office. These proposals received no attention from the House.
Each successive proposal in the Senate eliminated one or
7730 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
another aspect of the scheme thought to pose a threat to judi-
cial independence. By the time the final Senate bill, S. 1873,
was reported to the full Senate, removal had been eliminated
as a potential sanction, the primary authority for considering
complaints against judges had been placed in the judicial
councils of the circuits, an administrative approach had
replaced the adversarial-adjudicatory approach, and the “good
behavior” and “disrepute” standard had been replaced by a
standard focusing on the effective and expeditious administra-
tion of the business of the courts.

The Senate Report states that coverage under S. 1873 was
limited to conduct connected with the judge’s official perfor-
mance. It is true that some portions of the Senate Report still
suggested that the “good behavior” and “disrepute” standards
were somehow incorporated in the administrative test finally
adopted as the jurisdictional standard. But as noted, most of
this language was taken verbatim from a committee report on
a predecessor bill which expressly adopted the state standards.
These earlier proposals modeled on state systems received
substantial support in the Senate, but were never considered
by the House. Only after the Senate proposal had been pared
down to a purely administrative format unlike the state sys-
tems did the House begin to work toward passage of the legis-
lation.

Retention in the Senate Report of references to state stan-
dards was in all probability inadvertent. The Senate Commit-
tee eliminated the state-originated disrepute standard from the
language of the Senate bill because of the concern for preserv-
ing judicial independence and the full Senate was so advised
by the ranking minority member of the Committee, see 125
Cong. Rec. 30,050 (1979) (statement of Sen. Thurmond). As
quoted above, Senator Bayh also stated on the floor that the
Act was aimed at conduct adversely affecting official perfor-
mance rather than the public perception of a judge’s private
conduct. See Id. at 30,062, 30,064 (statement of Sen. Bayh).
If other members of the Senate believed the Act would reach
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7731
conduct which was unrelated to the judicial office, but
brought that office into disrepute, a response to these clear
and unequivocal statements to the contrary might have been
expected. There was none.

Even if some members of the Senate intended S. 1873 to
reach conduct unrelated to the judicial office, it was not the
Senate but the House that succeeded in drafting the compro-
mise bill eventually enacted. The history of the legislation in
the House is far less ambiguous and contradictory than in the
Senate. Although witnesses before the House Subcommittee
had differing views as to the conduct that should be covered,
all appeared to agree that the language adopted — “conduct
prejudicial to the effective and expeditious administration of
the business of the courts” — would cover only conduct
directly affecting the functioning of the courts or the perfor-
mance of judicial duties.

As noted, two statements in the House Report may suggest
a broader coverage. First, the Report’s statement that the stan-
dard incorporates violations of state and federal criminal law
is not necessarily inconsistent with an administrative standard.
Conduct by a judge that violates the criminal law may not in
itself affect the administration of the court or the judge’s offi-
cial performance, but conviction of such conduct with the
possibility of incarceration obviously would, and the refer-
ence may easily be read as applying to conviction of crime
rather than to mere allegation of unproved criminal conduct.
To subject a judge to administrative proceedings on the basis
of unproved allegations of criminal conduct that do not them-
selves reveal a deficiency in the judge’s performance would
be inconsistent with congressional intent to protect judicial
independence.

The second reference, concerning the intoxication “of a
large number of judges at a bar of ill repute” is misleading out
of context. In context the discussion concerned the kind of
cases that a judicial council of a circuit should certify directly
7732 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
to the Judicial Conference rather than deciding itself. See 28
U.S.C. § 372(c)(7)(B)(ii). The focus was on the number of
judges involved and their relationship and the consequent
need to avoid the appearance of conflicting loyalties by those
charged with considering the complaint. The reference was
merely a misleading attempt to explain the purpose of section
372(c)(7)(B)(ii) permitting referral to the Judicial Conference;
it cannot be reasonably read as intended to expand the juris-
dictional limits established by the administrative standard
adopted in the Act.

The conduct covered by the Act was not mentioned on the
House floor; congressmen speaking in support of the bill
merely quoted the administrative standard without elabora-
tion. No one expressed concern that the administrative stan-
dard was too narrow to achieve the Act’s purpose. Nothing in
the House debates supports an interpretation that would
include conduct not within the literal language of the Act:
“conduct prejudicial to the effective and expeditious adminis-
tration of the business of the courts.”

The most reasonable conclusion to be drawn from the
House materials is that the House intended to limit jurisdic-
tion under the Act to conduct adversely affecting judicial per-
formance in some concrete manner. Although some evidence
of legislative intent in the Senate is ambiguous and might be
selectively used to support a broad jurisdictional standard, as
in state systems, the continuous, progressive narrowing of the
scope of the Senate proposals, and the action finally taken by
the Senate and the reasons given for that action, lead to the
same conclusion. Taken as a whole the legislative history of
both chambers can be harmonized only by interpreting the
phrase “prejudicial to the effective and expeditious adminis-
tration of the business of the courts” according to its plain
meaning and requiring complaints to allege conduct affecting
the functioning of the courts.
 IN RE COMPLAINT OF JUDICIAL MISCONDUCT 7733
With this understanding of the jurisdictional standard and
its application, I address the specific allegations of the com-
plaint.

III.

A.

Most of the complainant’s allegations involve conduct by
the judge while engaged in private practice as an attorney
prior to his appointment, unrelated to the effective functioning
of the judge’s court. The plain language of the statute indi-
cates its scope is limited to conduct by a judicial officer. “Any
person alleging that a circuit, district or bankruptcy judge, or
a magistrate” has engaged in conduct covered by the Act may
file a complaint. The legislative history contains only one ref-
erence to conduct preceding the judge’s appointment to the
bench. That reference suggests that such conduct is not cov-
ered by the Act. See 1979-80 House Subcomm. Hearings at
105 (testimony of Judge Wallace).

The principle of separation of powers supports this con-
struction. Article III, Section 2 of the United States Constitu-
tion vests the President with power to nominate officers of the
United States, including federal judges, and to appoint such
officers with the advice and consent of the Senate. The judi-
cial branch has no constitutional role in considering the fit-
ness of an individual to assume judicial office. Congress
noted the differing roles of the coordinate branches in relation
to judicial fitness, and recognized that, “[b]ecause of the sepa-
ration of powers principle established by the Constitution,
these roles must remain separate.” H.R. Rep. No. 1313 at 5.
It would be incompatible with this constitutional principle for
the judiciary to review the determination of the executive and
legislative branches in the nomination and confirmation pro-
cess by investigating and possibly disciplining a judge for
conduct occurring before appointment to the bench.
7734 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
Confirmation by the Senate does not, of course, shield a
judge from responsibility for prior misconduct. If allegations
of pre-confirmation conduct involve violation of the state’s
ethical standards for lawyers, the complainant may file
charges with the state bar association’s disciplinary body. If
the allegations rise to the level of criminal conduct, as in this
case, complainant may lodge his complaint with the United
States Department of Justice or the appropriate state law
enforcement authorities. If the allegations involve conduct
constituting “Treason, Bribery or other high Crimes and Mis-
demeanors,” complainant may take the complaint directly to
the House of Representatives. Complainant has, in fact, sub-
mitted his complaint and supplemental materials directly to
Congress as well as to state and federal prosecutors.

Complainant acknowledges that we may lack jurisdiction
over most of his allegations and urges us, also, to refer the
complaint to the House of Representatives. The Act does pro-
vide that if the judicial council of the circuit determines that
a judge has engaged in conduct “which might constitute one
or more grounds for impeachment . . . the judicial council
shall promptly certify such determination . . . to the Judicial
Conference of the United States.” 28 U.S.C. § 372(c)(7)(B)(i).
This is not, however an independent grant of power. Before
the council may conduct the investigation and make the fac-
tual determination necessary to certify that a judge has
engaged in conduct that might constitute a ground for
impeachment, the council must first be presented with allega-
tions of conduct over which it has jurisdiction under section
372(c)(1).

...

The . . . allegations of the complaint are dismissed on the
ground they are not within the jurisdiction of the Judicial
Council of the Ninth Circuit under section 372(c)(1).

James R. Browning
Chief Judge
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2009 Thomson Reuters/West.