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WASHINGTON � The federal judiciary’s policy-making body has adopted the first nationally binding judicial discipline rules, curtailing the decentralized self-regulatory system that let individual circuit’s set their own standards. The Judicial Conference of the United States, meeting behind closed doors Tuesday, set uniform standards among the circuits and closed “jurisdictional gaps,” according to Judge Ralph K. Winter of the 2d U.S. Circuit Court of Appeals and chair of the Conduct Committee that compiled the reforms. The changes were made in response to recommendations by a special committee chaired by Supreme Court Justice Stephen G. Breyer and pressure from some in Congress to improve implementation of the Judicial Conduct and Disability Act of 1980, the basis of federal judicial discipline. Breyer’s 2006 report ( .pdf) concluded some complaints were not thoroughly investigated and the system was flawed. A number of judicial ethics authorities and lawyers involved in judicial discipline reforms have said that the discipline process lacks transparency for the public and that the rules don’t go far enough. [See the NLJ's three-part special report on the judicial misconduct.] The reforms take effect in 30 days. Same structure The new rules, binding on each regional circuit court, still use the existing judicial discipline structure. Complaints are filed with the chief judge of the circuit for review. The circuit’s judicial council reviews and approves any potential discipline order. The reforms provide chief judges guidance on when a complaint rises to the level of requiring appointment of a special investigative committee. The reforms also clarify when chief judges may initiate discipline proceedings without receiving a complaint, and when cases should be transferred to another circuit for review. In a post-meeting press conference, Winter said that final discipline orders must be made public. Although he told reporters final orders must be posted on circuit court Web pages, the rules appear to allow a choice of Web posting or placing orders in a file at circuit clerk’s offices. Rule 24(b) states orders must be made public “by placing them in a publicly accessible file in the office of the circuit clerk or by placing the orders on the court’s public website.” So far, only the 7th Circuit, the 9th Circuit and the 10th Circuit routinely post discipline orders online. The 2d and 5th Circuits have publicly posted five orders between them involving high-profile cases only. Winter indicated his conduct committee had at least one area of debate over the proposed rules involving public release of private reprimands, even if the subject judge is not identified. “The committee was divided on this,” he said. “A private reprimand may be appropriate for minor cases, cases in which no one has been hurt, a close case, or where the conduct won’t happen again. It’s not serious enough for a public reprimand. I voted with the [committee] majority. I think the private reprimand is useful. Some felt all reprimands should be public,” he said. More public disclosure could help. “Airing their dirty laundry is difficult for the federal judiciary, according to Charles Geyh, a professor at Indiana University School of Law, who studies judicial ethics and discipline. “The judiciary doesn’t have a culture that has a need to do that. They really can learn from the state system,” he said. “It is healthy for the system for the public to have a good idea of what is going on,” he said. He said while the current rule changes are incremental, it is a positive step. “They have a mechanism now that oversees regional behaviors calculated to go easy on their own,” Geyh said. “They backed down on a couple of their original proposals,” said Arthur Hellman, University of Pittsburgh School of Law professor who has written about judicial ethics and discipline. The Conduct Committee will not get copies of all complaints filed but will see discipline opinions of chief judges. “The problem is all they see is the way the chief judge packages it,” he said. But he added it is a new chapter in discipline and that “has some significance.” The judiciary receives 600 to 800 complaints against judges annually, according to Winter. Roughly 100 merit some further inquiry, he said. No independent authority Under the reforms, discipline orders, or dismissal of a complaint, may be appealed to the Judicial Conference Committee on Judicial Conduct and Disability to determine if a special investigating committee should have been appointed. The rules do not give the Conduct Committee authority to make independent determinations of misconduct, but it can order a circuit to appoint a special investigative committee, according to Winter. Committee decisions can also be appealed to the Judicial Conference. Breyer did not attend the session but issued a statement: “The implementation of these new rules is a very good thing for the federal judiciary and for those who use the federal courts.” Thomas Hogan, chief judge of the U.S. District Court in Washington, D.C., and chairman of the Judicial Conference executive committee, said, “the whole process was very good for the judiciary.” He noted the congressional concern over the Breyer committee findings. “We took our cue from that. Lawyers hate change, and judges hate change even more than lawyers.” “But the judiciary has adopted the new rules, instituted conflict software, has a new judicial code of conduct coming out and has a privately funded seminary disclosure system in place,” he said. Although the Conduct Committee sought public comment on the proposed rules and received a number of comments, including several from circuit courts, the submissions were not released to the public. Hogan said the rules were approved unanimously and without objection.

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