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The Judicial Conference this week is expected to approve broad changes to the way the federal courts handle complaints of judicial misconduct and disability. The proposed rules — the culmination of nearly four years of study, initiated at the request of late Chief Justice William Rehnquist — would dispense with a hodgepodge of practices the judicial circuits have developed over time to process complaints and replace them with a uniform system monitored by the conference’s Committee on Judicial Conduct and Disability. At times, Congress has questioned the federal judiciary’s aptitude for policing itself, and some members have called for the creation of an inspector general position to investigate allegations of misconduct. Rehnquist appointed a panel to study the issue in 2004, soon after then-House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), speaking before the Judicial Conference, said that Congress intended to “begin assessing whether the disciplinary authority delegated to the judiciary has been responsibly exercised and ought to continue.” Under the proposed rules, chief circuit judges would be required to explain each dismissed complaint in memorandums to the conduct committee and report complaints referred to investigative bodies composed of district and circuit judges. Complaints are most often filed by litigants, but the new rules allow chief circuit judges to initiate them “if the evidence of misconduct is clear and convincing.” The Judicial Conference is scheduled to vote on the rules on March 11. Judicial ethics experts widely agree that the changes would be an improvement, adding another layer of accountability to a system in which more than 99 percent of all complaints are dismissed. The American Bar Association has praised the proposal, saying it would increase public confidence in the judiciary. But some are critical of what they describe as the system’s opacity. “It’s a step in the right direction,” says Richard Painter, a professor at the University of Minnesota Law School and former White House ethics adviser. “It’s going to be up to the members of the committee to decide whether the system is going to be taken seriously.” Painter points out that although the majority of complaints are frivolous, as with any system, these new rules will likely result in more investigations. If chief judges have to defend their reasoning for dismissals, “fewer legitimate complaints are likely to be swept under the rug,” he says. According to data compiled by the Administrative Office of the U.S. Courts, 7,534 complaints were filed from 1997 to 2006. In that same time, 7,099 were dismissed, nearly all by chief judges. A 2006 study co-authored by a group of judges and legal experts, Justice Stephen Breyer among them, found that between 2001 and 2005, chief judges referred a total of 15 complaints to nine special committees, which like the circuits’ judicial councils, are composed of federal district and appellate judges. Dismissed complaints, under the new rules, would remain confidential, except in circumstances where the complaint was dismissed after a special committee was assigned to investigate it and the conduct committee approved its release. Only those complaints resulting in some disciplinary action would be made available to the public, either in the clerk’s office or on the court’s Web site, and only after final action was taken. Steven Lubet, a legal ethics professor at Northwestern University School of Law, says the rules provide too much cover for judges. “Once a special committee has determined there is probable cause that the judge committed a violation, the public ought to know about it,” Lubet says. And it will be difficult for those outside of the Judicial Conference to appraise the new system, he says, without knowing what percentage of probable cause findings lead to determinations of misconduct. The conduct committee, chaired by Judge Ralph Winter of the U.S. Court of Appeals for the 2nd Circuit, took up the issue in earnest two years ago, after Breyer’s group published its report on the federal judiciary’s implementation of the Judicial Conduct and Disability Act of 1980. The law defined judicial misconduct, as separate from an impeachable offense, and gave the circuits authority to prescribe their own disciplinary rules.
Joe Palazzolo can be contacted at [email protected].

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