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March 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Judicial Conference Meets: National Rules Adopted for Judicial Conduct and Disability Proceedings

At its March 2008 meeting, the Judicial Conference approved the first-ever binding, nationwide set of rules for handling conduct and disability complaints against federal judges, bringing consistency and rigor to the process.

The new rules, which take effect in 30 days, are authorized under a statute (the Judicial Conduct and Disability Act of 1980) that allows 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 statute also permits the filing of a complaint relating to a judge's inability to perform his or her duties because of "mental or physical disability."

The Conference approved these rules in response to recommendations made in September 2006 by a special committee chaired by Supreme Court Justice Stephen Breyer (the Judicial Conduct and Disability Act Study Committee). The rules cover such topics as complaint initiation and review, venue, confidentiality and publication, remedies, the conduct of investigations, and the rights and roles of participants in the process.

Justice Breyer released the following statement: "I am pleased the Judicial Conference has taken action on all of the recommendations of the Judicial Conduct and Disability Act Study Committee. The implementation of these new rules is a very good thing for the federal Judiciary and for those who use the federal courts."

The new rules are binding, unlike the Illustrative Rules they replace, which since 1986 served as a prototype that could be modified and promulgated separately by an individual judicial council, the governing entity within each judicial circuit. Judicial councils will retain the power to adopt local rules regarding procedural details of the complaint-handling process, provided that those rules do not contradict the new uniform rules.

The new rules, recommended to the Conference by its Committee on Judicial Conduct and Disability, seek to promote greater public awareness of the complaint process. Under the rules, final orders on complaints against judges must be made public—for example, by placing those orders on the court's public website. All courts of appeals have now posted complaint-filing instructions on their websites.

The new rules make clear, however, that some aspects of the judicial conduct and disability complaint process remain confidential, as required by federal law. A final order dismissing a complaint will not identify a complainant or the judge who is the subject of the complaint. In most cases, a final order sanctioning a judge will identify the judge.

The rules also clarify the authority and the obligation, in some circumstances, of a circuit chief judge to "identify a complaint" and inquire into certain judicial conduct even when no formal complaint has been filed, an option the Breyer Committee said should be highlighted.

The rules also enable the Conference Committee on Judicial Conduct and Disability to review complaint dismissals by judicial councils to determine whether special investigating committees should be appointed.

With the adoption of the 29 Rules for Judicial-Conduct and Judicial-Disability Proceedings, action has now been taken on all 12 recommendations of Justice Breyer's Judicial Conduct and Disability Act Study Committee.

In other action, the Conference voted to seek legislation that would give probation officers who conduct searches the same powers available to other law enforcement officers to take safety precautions directed against third persons who may pose a threat.

Also to be sought is legislation that would allow a probation officer to arrest, based on probable cause, persons who assault, resist, or impede the officer in the performance of official duties.

Such legislation is required because probation officers otherwise lack general police powers over persons whom they do not supervise.