(Photo by Rebecca Breyer)
Primed to address allegations that an Alabama federal judge assaulted his wife is a system that quietly processes hundreds of claims of judicial misconduct per year.
Federal courts of appeals are supposed to make public how they deal with such matters. At the U.S. Court of Appeals for the Eleventh Circuit, where U.S. District Judge Mark Fuller’s behavior is being investigated, that means stashing binders of orders in a staff member’s office at the court’s administrative building in downtown Atlanta. Older files are locked in a storage room.
The Daily Report asked to review the orders going back to 2006 and received immediate access. The 2006 date was chosen because that is when a national judicial commission urged the courts of appeals to take these matters more seriously—and to be more transparent in the process.
What the newspaper found was hundreds of orders, but not one that included an official rebuke of a judge.
Unlike the Fuller case, which reportedly was initiated at the behest of the Eleventh Circuit itself, most of the complaints are brought by disgruntled litigants, some of them from prison. Many complainants appear to view the process as another chance to challenge a judge’s decision-making on the merits, something that’s not allowed under the rules. Others raise claims of misconduct that are so outlandish—such as a woman who said that “one or more” federal judges had threatened her at gunpoint—that the circuit apparently does not investigate them beyond reviewing the written complaint.
A handful of the orders showed that the circuit’s chief judge or others engaged in some investigation—in one matter interviewing 16 people—but none ended in action being taken against the subject of the complaint.
The system in which federal courts are empowered to discipline their own was set up by Congress in 1980 as an adjunct to the legislature’s rarely used power to remove a judge from office by impeachment. The law says that each circuit’s judicial council, made up of the circuit chief plus an equal number of circuit court judges and district court judges from within the circuit, has the power to privately or publicly censure a judge. The circuit councils can take away a judge’s caseload for a set period of time. (Fuller has been relieved of his caseload for now.)
The judicial councils also can request that a judge resign, sweetening the offer by allowing his or her pension to vest even if the judge hasn’t completed the years-in-service requirement. Finally, they can declare a judge disabled so that a new judge may be appointed to take on the ailing judge’s work.
Under the process set up by the statutes and rules, the circuit’s chief judge is the screener. The chief can dismiss a complaint or appoint a special committee to investigate. That committee’s recommendations are passed along to the circuit’s council.
The Eleventh Circuit’s chief judge is Edward Carnes. Like Fuller, Carnes maintains his chambers in Montgomery, Ala., and it’s presumed Carnes has recused from the Fuller matter. One of Fuller’s attorneys, Barry Ragsdale of Birmingham, has said the complaint served on Fuller was signed by Eleventh Circuit Judge Gerald Tjoflat as “acting chief judge.”
Rules adopted in 2008 by the federal judiciary’s governing body, the Judicial Conference, require that discipline orders by a circuit’s chief judge and judicial council be made public—while still preserving the largely confidential nature of the process. In many cases, the rules specifically dictate that the judge who is the subject of the complaint isn’t identified in the public document. The name of the person who complains also isn’t disclosed in publicly available materials unless the chief judge orders otherwise. The rules say that when a complaint is resolved by way of a private reprimand, neither the name of the subject judge nor the text of the reprimand is to be included in the publicly available materials, although Eleventh Circuit Clerk of Court John Ley said in an email that the issuance of a private reprimand still would result in a redacted document being placed in the public file.
The rules say that “public” can mean putting the orders in a file in the circuit clerk’s office or placing the orders on the court’s website. Since at least the mid-1990s, the national Judicial Conference has urged circuits to submit for publishing orders deemed to have “significant precedential value” to West Publishing Co. and Lexis. The 2006 committee report said posting nonroutine public orders on courts’ websites would “not only benefit judges directly, it would also encourage scholarly commentary and analysis of the orders.”
At least some of the Ninth Circuit’s judicial misconduct decisions appear on Lexis, and the Ninth Circuit and several other federal circuit courts of appeals, including the First, Second, Third, Fifth, Seventh, Tenth and D.C. circuits, post at least some of their judicial discipline orders on their websites. But the Eleventh Circuit does not, maintaining them in paper form for inquiring members of the public.
Ley, the Eleventh Circuit’s clerk, said requests for public access to the court’s discipline orders are not frequent. He said the court has never officially considered posting its misconduct orders on its website.
Based on the Daily Report’s review of the Eleventh Circuit’s public discipline files, complaints range from charges that a judge is taking too long to handle a case, is biased in some way or has mental health or addiction problems. Some appear to be vague, while others include specific, albeit bizarre, allegations. The woman who said a judge (who was unnamed) had possibly attacked her at gunpoint also said the judge had tried to force her to engage in sexual intercourse with an attorney the judge was mentoring. The complaint said the judge offered “‘women whom he claims to be prostitutes’ for the enjoyment of attorneys practicing before the court.”
None of the orders found in the court’s public files going back to 2006 refer to any discipline meted out to the judges. Generally the names of the judges whose conduct was being challenged, as well as those who were complaining, are redacted. Most were dismissed by the circuit’s chief judge or someone acting in the chief’s stead on the basis that the complaint amounted to an attack on the merits of a judge’s decision or was not supported by enough evidence.
Based on a complaint filed in 2009, a special committee was appointed to investigate an allegation that an unnamed district court judge had accepted a cash bribe for the promised release of a federal prisoner. According to an order signed by then-Chief Judge Joel Dubina dismissing the complaint, the investigation found no credible evidence to support the charges.
In handling a similar allegation of bribery brought against an unnamed magistrate judge a few years later, Dubina simply rejected the complaint on his own as “facially incredible and lacking in indicia of reliability.”
Complaints from litigants often include allegations of racism. Those are usually brushed aside, but in 2007, then-Chief Judge J.L. Edmondson asked an unnamed magistrate judge to respond to such a complaint. According to Edmondson’s order, the magistrate judge said in reference to a courtroom clock that was not working, “The Koreans can put a missile in the air, but the clock doesn’t work in the courtroom.” Identifying the complaining litigant as black and Asian, Edmondson said, “Judges must be guarded in their remarks, especially when touching on nationality and so on,” but he concluded the remark was not derogatory about Asians and dismissed the complaint.
A chief judge can conclude a misconduct case if he believes the judge in question has voluntarily remedied the problem raised by the complaint. Dubina in this way resolved a 2010 complaint about a judge’s failure to include an expense-paid trip on a required financial disclosure form.
The Eleventh Circuit also occasionally receives complaints from lawyers who say a judge is treating them unfairly. Dubina referred to a special committee for investigation a 2010 complaint by an attorney that alleged an unnamed bankruptcy court judge had engaged in an improper ex parte conversation and also told the attorney that if he did not change his phone system—which the judge said made it difficult to reach anyone in the office—the judge would “make things bumpy” for him.
An order signed by Dubina later said the special committee, after an investigation that included witness interviews and document subpoenas, determined there was insufficient evidence to support the allegations.???
Last year, the circuit received a complaint from an attorney about an unnamed district judge who allegedly had criticized the lawyer on more than one occasion. The attorney said the judge had acted erratically, and the lawyer was concerned that the judge suffered from a mental or physical health problem. Carnes’ order dismissing the matter said he had interviewed 16 people, including judges, court staff and lawyers who regularly appear before the judge, and all stated the judge was not suffering from any kind of disability.
In 2009, an attorney general of an unnamed state—presumably from Georgia, Florida or Alabama, the states in the circuit—filed a complaint regarding a senior district judge, saying the judge’s use of “disrespectful and contemptuous language” suggested a bias against the AG, as well as a lack of respect for his state. Then-Eleventh Circuit Judge Stanley Birch dismissed the complaint in a one-page order saying that even if the judge acted as alleged, his conduct would not indicate a disability or be “prejudicial to the effective and expeditious administration of the business of the courts.”
Arthur Hellman, a law professor at the University of Pittsburgh who has testified before Congress on the federal judicial misconduct process, said making documents available only in the clerk’s office meets the requirements of the rules but doesn’t make them “public” in the way that most people understand that term today. “When the government says a document is public,” said Hellman, “people expect that they’ll be able to find it on the Internet.”
But he said he was not surprised by the lack of reprimands and other discipline in the Eleventh Circuit’s public files, noting that was consistent with other circuits. He added that it was nonetheless valuable for the federal courts to explain why they have dismissed even those complaints that appear frivolous.
“I don’t know [that] there’s any other way of maintaining public confidence,” said Hellman.