October 2006

Handling Complaints Against Judges: Good, But Can Be Improved

The federal Judiciary does well overall in handling complaints against judges but improvement is needed in high-visibility cases, a committee led by Supreme Court Justice Stephen Breyer has concluded.

After two years of research, the committee reported to Chief Justice John G. Roberts, Jr. that it found “no serious problem with the Judiciary’s handling of the vast bulk of complaints” filed under the Judicial Conduct and Disability Act.

“The committee found that the relevant error rate, i.e. that of failing properly to process such complaints, is about 2 to 3 percent. While a perfectly operating system remains the goal, the committee recognizes that no human system operates perfectly; some error is inevitable,” the report said.

“And the committee is unanimous in its view that a processing error rate of 2 to 3 percent does not demonstrate a serious flaw in the operation of the system,” the report added.

The 1980 Act authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.”

The late Chief Justice William H. Rehnquist, in 2004, responded to criticism from Congress and others about the way in which the Act had been implemented by appointing this committee. In addition to Justice Breyer, the committee members included Judges Sarah Evans Barker (S.D. Ind.), Pasco M. Bowman (8th Cir.), D. Brock Hornby (D. Me.) and J. Harvie Wilkinson III (4th Cir.), along with Sally M. Rider, then administrative assistant to the Chief Justice.

Roberts made the report public on September 19, the same day the Judicial Conference held its semi-annual meeting in Washington.

The Act requires the chief judge of the relevant judicial circuit to consider each complaint against a judge and, where appropriate, to appoint a special committee of judges to investigate further and to make recommendations to the circuit’s judicial council on how to resolve the complaint. The council may resolve the complaint or refer judicial misconduct to the Judicial Conference for its action, including advising the House of Representatives that impeachment may be warranted.

An average of more than 700 complaints against judges are filed each year, and the committee examined more than 2,000 complaints. Separately, the committee assessed high-visibility cases—those that received national or regional news media coverage, including matters that had come to the attention of (or had been filed by) members of Congress. The committee found 17 of those cases within a five-year period.

The committee concluded that the handling of five of those 17 cases was problematic. “The proper handling of high-visibility complaints has particular importance. Because the matters at issue have received publicity, the public is particularly likely to form a view of the Judiciary’s handling of all cases upon the basis of these few,” the committee’s report said. “And the mishandling of these cases may discourage those with legitimate complaints from using the Act. We consequently consider the mishandling of five such cases out of 17—an error rate close to 30 percent—far too high.”

Available online at www.supremecourtus.gov/publicinfo/breyercommitteereport.pdf, the report made 12 specific recommendations. The report recommends that two groups help chief circuit judges, judicial council members and circuit staff to understand and administer the Judicial Conduct and Disability Act. The two groups are the Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders and the Federal Judicial Center. Also recommended is that circuit councils require all courts covered by the Act to provide information about filing a complaint on the homepage of the court website, as well as to take other steps to publicize the Act’s availability.

In a September 19 news briefing, Chief Justice Roberts thanked the committee for its work, saying, “I was impressed with the thoroughness and comprehensiveness of their work.” He referred the report to the Judicial Conference for consideration by its appropriate committees “and prompt action.”

Comment on the report also came from the Hill. House Judiciary Committee Chairman F. James Sensenbrenner (R-WI) commended the Breyer committee. “I am encouraged the committee acknowledges there have been problems with the enforcement of the judicial discipline construct in recent years, particularly in high-profile cases,” he said. “I look forward to working with the judicial branch to curtail mishandling of complaints about judicial misconduct to ensure judges exhibit the highest standards of integrity and conduct.”